Archive for July, 2008

A Cautionary Tale on Hiring: Finish the Interview!

Thursday, July 31st, 2008

We are all familiar with the recommended procedures for dealing with job applicants. Have a standard list of questions. Ask open-ended questions that invite expansive responses. Be careful – very careful – with any disclosures about medical conditions or prior injuries. Here is a case in point where an interviewer stopped the interview at exactly the wrong moment.
“John Doe” suffers from paranoid schizophrenia and was hospitalized or lived in group homes from 1995 through 2005. In 2005 he began working with Cordell DeGraw, a vocational job developer. DeGraw accompanied him to a job interview at the Salvation Army, where he applied for a driver position.
Charles Snider, the Salvation Army supervisor, explained that the part-time job required three eight hour days per week. Doe responded that he could not work on Fridays because “[he] had to see [his] doctor and pick up [his] medicine.” Snider asked (inappropriately) “what kind of medication?” Doe responded, “psychotropic medicine.”
According to Doe, at that point Snider “stopped the interview and said that his insurance would not cover me.” Doe offered to obtain a letter from his doctor, but Snider refused to reconsider – another big mistake.
Snider testified that he ended the interview saying, “[w]hat I’ll have to do is have this checked out,” meaning apparently that he wanted to determine whether his commercial vehicle insurance would cover a driver using psychotropic medication. He never actually pursued this with his carrier and even if he did, it was the wrong question for the wrong party. Only a doctor could determine whether Doe was able to operate a motor vehicle.
The Summary Judgment Judged
Doe filed a complaint in district court, alleging a violation of the Rehabilitation Act of 1973. He claimed that the Salvation Army asked a “prohibited pre-employment inquiry” and denied him employment based upon his answer. Astoundingly, the district court granted the Salvation Army’s motion for summary judgment, holding that Doe failed to establish the elements for a prima facie disability discrimination case. The district court apparently relied upon evidence of Doe’s present abilities and determined that he was no longer disabled.
Ah, but the law also protects individuals with a record of an impairment and those regarded as having an impairment. Somehow, the district court failed to apply these criteria – both of which applied to Doe. The US Court of Appeals for the 6th circuit has reversed the district court’s summary judment and remanded the case for further proceedings.
Follow the Book
In this situation, Snider should have followed his own procedures: first, handle Doe’s disclosure about medications with kid gloves. He could have asked, “does your medication impact your ability to perform the essential functions of this job?” He really cannot go beyond that point. Once Doe responded, Snider should have moved on to his other questions and completed the interview. It would have been appropriate as a follow up to ask Doe for a letter from his doctor, indicating that he was able to drive and that his condition did not present any immediate risk of harm to Doe or others.
As is so often the issue in discrimination cases, the employer’s prejudice got in the way of a sound business decision. No matter how Snider felt about Doe and his troubled history, his job is to determine whether Doe can do the work safely. Indeed, the fact that he works for the Salvation Army makes the need for open and unprejudiced evaluation all the more important. Snider certainly should have required an expert medical opinion before making his final decision. If after completing the interview and reviewing the doctor’s recommendations, Snider still had doubts about Doe’s ability to perform the work safely, he could have chosen another, “more qualified” candidate. As it is, he responded with his gut and that response was clearly an act of discrimination.

Cavalcade of Risk is awaiting your perusal

Wednesday, July 30th, 2008

Richard Eskow of Sentinel Effect hosts this week’s Cavalcade of Risk. It’s a real smorgasbord, featuring such far-reaching topics as as watermelons, beer, fish, phishing, the housing market, hedge funds and health care.
While you’re in the neighborhood, check out some of Richard’s other posts. Here’s a few we found interesting:
Long-Term Thinking About Health: Seven Trends That Should Concern Us
‘Pro-Business” Isn’t Always What You Think. Take Health Reform, For Example
Congress Rips AIG, Other Carriers Over Comp Costs In a War Zone
Med Mal: Sometimes The Best Defense Is … No Defense

Accident investigation slide shows

Tuesday, July 29th, 2008

WorkSafeBC offers a variety of prevention resources which we’ve featured previously, most recently the videos of teens talking about how they were injured on the job. They offer an excellent library of safety materials – while laws may vary from here in the U.S., good safety practices don’t change over the border.
Recently, we’ve discovered WorkSafeBC’s library of accident investigation slide shows. These feature actual investigations conducted by WorkSafeBC investigators in the wake of fatal or serious work accidents. Each presentation includes an audio track of the investigator narrating the conditions that led to the accident, illustrated by photos, diagrams, and animations of the actual accident scene and conditions. The cause of each accident is identified and links to related prevention resources are made available. We think they’re pretty compelling because they reflect real-life events. They are brief and would be a good resource for safety training or a springboard for discussions. Hopefully, WorkSafeBC will continue to expand the library, which currently includes incidents involving construction, machinery, falls, forklifts and various other scenarios. In addition to the accident investigations, there are also a few slide shows on general prevention topics, such as housekeeping, violence prevention in retail settings, disease prevention, and machine guarding. Also, see the lift / lower calculator.
We’re always interested in free, quality safety & prevention resources that we can share with readers. If you know of other good prevention resources or libraries that are publicly available, let us know. (Please note: the operative word is “free” – we regularly delete comments promoting products or services that must be purchased.)

Real Injuries, Phony Claims

Monday, July 28th, 2008

When it comes to fraud in workers comp, we usually look to employers, doctors and lawyers. They go after the big bucks. While there are opportunities for ordinary workers to exploit the system, most decline to do it. Today we examine two claims, both involving real injuries and both involving fraud. Coincidentally, it’s a bi-coastal story.
Let’s begin in the east, in Gardner, Massachusetts, where Erik Teong managed a Shell Station. On October 28, 2006, Teong reported to Gardner police that he had been assaulted and robbed while taking cash receipts to the bank. He sported a bruised face and injured eye.
The police did not buy his story. He eventually confessed to stealing the $7,000 deposit. In February 2007 he was charged with larceny and making a false report of a crime. In April, he pled guilty to both charges and was sentenced to one year of probation. He also must pay the insurance company $7,900 (to repay the “stolen” payroll).
The injury to his eye? Teong told police that he had a friend give him a hard punch to the face, to make his story more credible. The hapless Teong has permanently damaged his vision. And because the injury appeared to occur in the course of employment, Teong filed a comp claim. AIG, the comp insurer (with a few problems of their own!), paid his $16,000 medical fees and $3,000 indemnity. Now AIG wants its money back. They referred the matter to the fraud bureau, which led to Teong’s indictment by a Worcester County grand jury.
So Teong has earned himself a place in the Hall of Fame for Incompetent Criminals. He botched the fake robbery. His friend all-too-convincingly smashed him in the face. He has to repay the medical expenses and ill-gotten indemnity. And to top it off, given his permanently impaired vision, he may have trouble reading the charges against him.
California Scheming
Now let’s hop across the continent to the Lake Tahoe, where Nicholas Jason Beaver resides. Nick worked for the Sierra-at-Tahoe resort, but busy as a Beaver he was not: the resort told him they would not rehire him for the following season. One night, after a few beers with his buddies, Nick decided to get even. He decided get himself injured on the job.
On April 9, 2004 Nick jumped up and down on a snow bridge that covered the top of percolation test hole. After three or four jumps, he broke through the bridge and fell into the 5 foot deep hole, injuring his knee. He collected comp (the injured knee required surgery) and then decided to sue the resort: he wanted to pierce comp’s “exclusive remedy” shield due to the resort’s “extreme negligence” in allowing an “unprotected” hole to exist on their grounds. (Nick’s story belongs in the burgeoning archives defining the word “chutzpah.”) The resort spent $40,000 defending itself and over $42,000 in medical bills on Nick’s injured knee. They offered Nick $110,000 to make the case go away.
Nick refused to accept the chump change. He apparently told his buddies that he wanted really big bucks. At that point, one of the (disgusted) friends who witnessed the incident dropped a dime on him. His friends were given immunity from prosecution; while technically co-conspirators, they did not benefit financially from the fraud. Nick was convicted of stealing more than $65,000 and now faces up to four years in prison.
Benefit of the Doubt?
Erik and Nick were both injured on the job, but their injuries were part of a conscious effort to defraud the employer and insurer. Their stories demonstrate how the comp system defaults toward accepting a reported claim: Erik and Nick both were successful in accessing comp benefits for their injuries. The wheels of justice in these cases ground a bit slowly, but they did grind exceedingly fine. The pain of the actual injuries, with the exception of Erik’s impaired vision, has already faded. But the pain of lives ruined by impulsive greed will linger for a long, long time.

Health Wonk Review, help for paraplegics, crane safety, PBM shakeups and more

Thursday, July 24th, 2008

Health Wonk Review – David Williams has a snappy new edition of Health Wonk Review posted over at Health Business Blog. Because HWR took a little summer hiatus last week, this issue is packed – and it’s all organized in a great format that allows for quick and easy scanning. David’s witty summaries are fun – check it out, it’s a good edition.
Cool development in assistive technology for paraplegics – Radi Kioff is a 40-year-old Israeli who spent the last 20 years in a wheelchair after being shot in the back while serving in the Israel Defense Forces. The video in this post shows him walking and climbing stairs with the help of a light wearable brace called ReWalk, a system designed to help paraplegics regain mobility. The system is undergoing clinical trials in Israel and scheduled to begin US trials in November. It’s great to see such a promising development for those who have suffered spinal chord injuries. (Thanks to Medgadget for the pointer.)
Crane fatalitiesrawblogXport points us to the story of an eyewitness account from one of the workers who escaped in last week’s LyondellBasell’s crane collapse that killed 4 workers and injured 7. The article’s sidebar recounts the number of crane accidents so far this year. Celeste Monforton posts more on this and other crane fatalities at The Pump Handle.
PBM shakeup – Joe Paduda has the skinny on PMSI’s recent sale to investment firm HIG. Find more detail in his post PMSI sale – the numbers.
Disgruntled claimant on trial for murder – When you’ve worked in insurance for awhile, you know that a lot of anger and tension can surface around money matters, even more so when things reach a litigation stage. And many a claims manager can cite a litany of stories about angry calls or threats from disgruntled claimants who feel they’d had a raw deal. A story from California today reports on the trial of a claimant who shot and killed his own attorney two years ago. Angus McIntyre was very angry at his workers compensation settlement. He had reportedly threatened and harassed his claims adjuster in e-mails and voice mails on numerous occasions and apparently also held his attorney responsible. One evening he walked into that attorneys office and shot him in the head. Terrible story, and a sad reminder that violent threats must never be taken lightly.
Provider jailed for fraud – It’s 12 months jail time for a New York social worker who double-billed insurance companies to the tune of $102,000 for health care services. A health care provider may bill two insurance companies for the same treatment, but is obligate to disclose the double billing and cannot keep amount beyond 100 percent of the cost of the service. The conviction is not surprising, but I can’t recall too many insurance fraud cases that result in jail time. It’s also a reminder that fraud comes in many flavors – it is not synonymous with “employee.”
Fall protection – Brooks Schuelke posts an overview of fall protection systems at Falls are one of the most common source of injury and death in construction work. (Related: our prior post on human fall traps)

Semi Pro, Semi Screwed: the Saga of Tarrence Rhodes

Wednesday, July 23rd, 2008

Unless you are an aficionado of marginal sports, you do not follow arena football, which has taken a classic outdoor sport of considerable violence and transposed it to an indoor setting, with little if any reduction in the violence. The main difference between outdoor and indoor football? Money.
Our focus today is Tarrence Rhodes, a defensive back for the Huntington (WV) Heroes. (Any Heroes fanatics out there?) Rhodes played his first game with the Heroes on April 11, 2008. During the game he tore his right ACL. He was placed in “pre-hab,” which is rehabilitation before surgical repair of his torn ACL.
It’s safe to say that arena football was not what Rhodes had in mind when he played college ball at Missouri Valley. He was under consideration by NFL teams during the 2006 draft, but apparently did not make the grade. He played briefly for the Florida Firecats (another arena team) and then signed with the Heroes, where his career came to an abrupt end.
Fat Cats and Ordinary Joes
We are all used to the absurdly inflated salaries of professional athletes; a good defensive back often pulls down several million dollars a year. Rhodes, alas, signed a contract that paid him $250 per game (!) with a whopping $50 bonus if the team happened to win. His contract apparently stated he was covered by workers compensation, but when Rhodes filed a claim for his knee injury, Brickstreet (WV’s sole insurer at the time) denied it, saying there was no policy in place for the team.
So now Rhodes has filed suit in Cabell Circuit Court against the team and its owner, Barbie Moody-Wood. Rhodes claims he is unable to have his surgery because of BrickStreet’s denial. He has no other insurance to cover the cost of his surgery and subsequent rehabilitation.
Rhodes also claims he was not paid his $300 (the Heroes won!) when it was due, and did not receive it until the end of April.
In the three-count suit, Rhodes seeks compensatory and punitive damages, as well as liquidated damages of $900, plus attorney fees.
Professional athletes remain an outlying conundrum in workers comp. With their inflated salaries, they don’t usually care about indemnity – it’s the lifetime medical benefits they want, to cover all-too-frequent permanent partial impairments. Tarrence Rhodes, who once dreamed of playing in the NFL, now shares a fate with ordinary workers whose employers neglected to secure comp coverage. There is nothing special or glamorous about his situation. Rhodes would like to see some wage replacement, modest though it may be, and he would like his former team to cover the cost of his surgery.
Football careers can be brutal and short, with that of the unfortunate Rhodes being shorter than most. Here’s hoping he took some courses at Missouri Valley to prepare him for life after football.

Lightning! Safety precautions for work and home

Tuesday, July 22nd, 2008

This week here in Massachusetts, ten people were struck by lightning when a flash storm suddenly disrupted a soccer game. At this writing, one victim is fighting for his life and four others are in intensive care. Just a few days before and about 80 miles to the northwest, two people in Maine who stepped outside to chase a dog that had run off with a pair of eyeglasses were killed by a lightning strike. At least 17 people have been struck by lightning so far this month, and seven of those people have died.
Over the last 30 years the U.S. has averaged 62 reported lightning fatalities per year. But only about 10% of those who are struck by lightning die from the incident – about 90% survive, often with serious injuries and after effects that continue for years. NASA has produced an interesting page entitled Human Voltage that discusses what happens when people and lightning converge. It includes a list of typical medical disorders associated with lightning strikes.
NOAA estimates that your odds of being struck by lightning in any given year range from 1 in 400,000 to 1 in 700,000. Your lifetime risk is about 1 in 5,000. The chance that a lightning strike will affect someone you know is about 1 in 500. Men are struck by lightning four times more often than women. Lightning strikes are most likely to occur between 2 pm and 6 pm from June to August. About one third of all injuries occur during work, another third occur in recreational activities, and the remaining occur in a variety of life activities.
Is lightning safety a part of your organization’s safety plan?
Industries with a preponerance of outdoor workers, such as construction and farm workers, often have safety policies and procedures dealing with work during electrical storms, and some distribute lightning safety safety materials to workers. But it’s a safety topic that should concern all organizations, regardless of the nature of the work.
While NOAA issues recommendations for lightning safety on the job (PDF) the best and most current advice for both work and home safety during electrical storms is encapsulated in Five Levels of Lightning Safety (PDF). The fundamental principle is that no place outside within six miles of a thunderstorm is safe:
1 Schedule outdoor activities to avoid lightning
2 ’30-30 Rule’ (If less than 30 seconds between lightning and thunder, go inside. While inside, stay away from corded telephones, electrical appliances and wiring, and plumbing. Stay inside until 30 min after last thunder.)
3 Avoid dangerous locations/activities (elevated places, open areas, tall isolated objects, water activities).
Do NOT go under trees to keep dry in thunderstorms!
4 Lightning Crouch (desperate last resort)
5 First Aid: Call 9-1-1. CPR or rescue breathing, as appropriate.
More lightning resources

Dr. Mahoney’s Baloney

Monday, July 21st, 2008

Last week we blogged the suspicious “total and permanent” disability of Boston firefighter Albert Arroyo, who celebrated his profound disability rating by placing 8th in 2008 Pro Natural Body Building Championship. Yeah, I know, he was just having a good day.
Not having a very good day is Arroyo’s doctor, John Mahoney, a neurologist at Caritas Carney Hospital. Dr. Mahoney claims that Arroyo did remove his shirt during the most recent exam (which resulted in the permanent and total disability rating), Mahoney noted that Arroyo “had lost some weight and was working hard on his physical therapy and being fit.” Mahoney goes on: “If someone is doing bodybuilding and doesn’t tell me, how the hell would I know?” Excellent question, Doc. For starters, you might put your hands on his (rock hard) body and ask him to try a few push ups.
Mahoney concedes that his diagnosis is not looking too brilliant in the light of Arroyo’s recent triumph. “I knew my practice would be destroyed. I accepted that. I am prepared to get [expletive]. I am [expletive] and it was in the stars.” Which I amend (via Shakespeare): “the fault, dear Brutus, lies not in the stars, but in ourselves…”
Mahoney goes on to say that were it not for the restrictions imposed on him by the doctor-patient relationship, people would understand that his diagnosis was legitimate. Here’s hoping that some well-timed indictments lift those restrictions. I would love to know just what evidence Mahoney used to reach his dubious conclusions.
Culture Problem
As the Boston Globe’s Walter Robinson points out, this is not an isolated case of fraud. Boston firefighters retire on disability at a rate three times higher than those in other cities. Many of the “disabled” include high ranking chiefs – and therein lies the crux of the problem. As chiefs go, so go the line workers. Boston has a deeply rooted culture of disability among its firefighters. As we saw in the parking department of Philadelphia, disability cultures run from top to bottom. Chiefs on the take are hardly in a position to discipline line workers who want a piece of the action.
I am pleased to report that Albert Arroyo has been ordered back to his regular job as an inspector (no heavy lifting!). Meanwhile, the retirement board may want to take a closer look at the 25 firefighters whom Dr. Mahoney has rated as totally disabled since 2001. While there may not be any more bodybuilders in this group, I would not be shocked to find a few on boats in Florida, gamely working to overcome their disabilities by reeling in 200 pound sportfish. It’s not easy, but it sure beats putting out fires.

Cavalcade of Risk and a news roundup

Thursday, July 17th, 2008

Michael Cannon is hosting Cavalcade of Risk this week and he’s posted a diverse collection of risk-related links at The Cato Institute blog – good end of week reading.
Insurance reform – Is insurance due for a regulatory overhaul? The move to an Optional Federal Charter appears to be gathering steam. To help you stay informed on the topic of insurance reform, Networks Financial Institute at Indiana State University has recently launched an online Insurance Regulatory Modernization resource. It is designed to serve as a clearinghouse for resources relevant to insurance regulation and reform.
Health care debate – Kaiser Family Foundation has compiled Viewpoints: The Health Care Debate. This is a series of interviews with leaders of organizations representing health care providers, insurers, policymakers, employers, labor unions and consumers sharing their views on shortcomings in the nation’s health care system and how it could be improved. Interviews are available in video, podcast or transcript formats.
Prescription promos – Merrill Goozner notes that the pharmaceutical industry is trying to eliminate the practice of showering physicians with gifts and trinkets emblazoned with drug brand names. (We’ve previously discussed promotional efforts based on dining and pom poms.) Goozner suggests the voluntary ban should be broader, and notes that it doesn’t get to the most significant ways that drug companies influence doctors. He suggests additional practices that should be banned.
Kudos to Jottings By an Employer’s Lawyer – Michael W. Fox just celebrated his 6 year blogoversary yesterday – his informative and excellent law blog is one of our regular reads – we’re happy he keeps on keeping on. Congrats, Michael!
Physician humor – although we don’t think it is a medical specialty often called upon for work-related injuries, we can’t resist posting the Colorectal Surgeon Song (video). It’s a silly but amusing ditty performed by popular Canadian comic duo Bowser & Blue.

New York: Trust not in Trusts

Wednesday, July 16th, 2008

We have been following the saga of the busted trusts in New York (here and here). Twelve workers comp trusts, all administered by Compensation Risk Management (CRM), have apparently failed. The workers comp board has decided to hit up the remaining trusts for the shortfall. These latter trusts are all solvent, and all are administered by someone other than CRM. The healthy trusts have been asked to cough up $11 million to pay for the sins of others, a mere 8,000 percent increase in their monthly assessments. That’s joint and several liability on a New York scale, indeed.
The solvent trusts cried foul and took their case to the New York Supreme Court, where they won the skirmish and most certainly will lose the war. Acting Supreme Court Justice Kimberly O’Connor has put a temporary halt to the assessments, not because they are illegal, but because the comp board has not proven that the failing trusts are in fact insolvent.
“Insolvency must be real and actual prior to imposing the assessment, not prospective or speculative,” she wrote.
Attorney for the solvent trusts, Rich Honen, has declared victory. “Annulled and vacated is what we asked for. The petition was granted.”
That’s like scoring two runs in the top of the first inning and claiming victory. This reprieve is not likely to last. In her ruling, Justice O’Oconnor has (somewhat reluctantly) upheld the board’s right to assess healthy trusts. Board chair Zachary Weiss is semi-thrilled: he surely does not like the delay, but he is “pleased…that this decision will allow us to collect the money needed to pay the claims of injured workers.”
Assuming the board’s auditors can work their way through the CRM mess in a timely manner, the assessments will be in the mail before long. That’s a tough pill to swallow: the healthy trusts played by the rules, paid actuarially sound premiums and confronted reasonably accurate reserves on their claims – none of which can be said of CRM’s accounts. In this case, the good guys pay the price for the scoundrels. It isn’t fair, but after all, this is New York.