Archive for August, 2009

Brutal, graphic video aimed at teens: don’t text while driving

Monday, August 31st, 2009

There’s been quite a lot of media coverage on the high risk of texting while driving and several states are lining up to issue bans or restrictions on the practice. We recently featured a texting while driving game that let’s you get a rough gauge of how you’d fare while texting at the wheel. But this simulator really soft pedals things in comparison to the approach that some countries are taking in getting the message out. Nothing that we’ve seen or read here in the U.S. has the raw, visceral power that a recent British public service announcement aimed at teens.
Before watching, please be warned that this video is very graphic.

There’s no disputing the danger that texting while driving poses – the studies are adding up. One of the more recent is a study by the VirginiaTech Transportation Institute, which found that texting truck drivers were 23 times more at risk of a crash or near crash event than nondistracted drivers. But there has been some debate about the effectiveness of shock advertising as an awareness and prevention tactic – some see them as highly effective, while other think that viewers tend to tune them out. This is an issue that came up about two years ago when Ontario’s Workplace Safety and Insurance Board released a series of graphic public service announcements designed to highlight worker safety.
As for the subject of this ad – currently, 18 states ban texting for all drivers. The Governors’ Highway Safety Association maintains and updates a handy chart of state cell phone and texting laws – check back often, as this is an issue on several state legislative dockets.

Health and safety news from the blogosphere

Wednesday, August 26th, 2009

Money-Driven Medicine – Maggie Mahar, one of the regular Health Wonk bloggers who we admire, is author of the book Money driven medicine: the real reason health care costs so much. Her book has been made into a documentary by Alex Gibney, the producer noted for his documentary expo Enron: The Smartest Guys in the Room. This Friday night, Bill Moyers Journal will preview excerpts of Money Driven Medicine, which Moyers cites as one of the strongest documentaries he has seen in years. It bears checking out. For more about the documentary, including a trailer, see moneydrivenmedicine.org. You can also follow Maggie’s blog posts at Health Beat.
Meanwhile, in Business Insurance, Joanne Wojcik writes that two surveys project that healthcare benefit costs will increase by more than 10% in 2010. Aon Consulting projects an average 10.5% increase, while Segal Co. sees cost increases ranging between 10.2% and 10.8% for managed care plans.
Nanoparticles – the NIOSH Science Blog highlights recent research related to occupational disease and nanoparticles. Nanotechnology is the discipline of technology that works at a molecular level with particles that are less than 100 nanometers in size. Earlier this year, the CDC released Approaches to Safe Nanotechnology (PDF), which offers recommendations for specific precautions to protect workers who are exposed to any level of nanoparticles. Learn more about research and risk management at the NIOSH Nanotechnology site.
Fatal SunshineTime recently featured an article on the plight of California farm workers, who frequently do not have adequate protection from heat stroke and basic precautions to prevent heat-related illness. While California state law mandates heat stress standards, many employers do not adhere to those standards. The ACLU and the law firm Munger, Tolles & Olson are suing California’s occupational health and safety agency on behalf of the United Farm Workers, workers who became sick, and relatives of workers who died from heatstroke.
Employer Pandemic Planning – While there are dueling projections for the potential impact of the H1N1 flu this fall and winter, it pays to be prepared. Safety Daily Advisor offers an abbreviated workplace pandemic planning checklist based on CDC recommendations. For more detailed planning information for work and home, see Flu.gov.
More on work suicides – We noted last week that a recent Bureau of Labor Statistics report showed that workplace suicides increased by 28% in 2008. At Comp Time, Roberto Ceniceros looks at the issue of workplace suicide in light of a recent Indiana appeals court ruling in which a widow was denied benefits related to her husband’s suicide.
Taking the job home – Jon Gelman blogs about a recent CDC study showing that workers who are exposed to lead can transport it home. The CDC suggests certain precentive measures to minimize risk to other family members.
Fitness for Duty – Fred Hosier of SafetyNewsAlert posts about how to deal with employees who are consistently unsafe through a comprehensive fitness for duty program.
OSHA – Is OSHA back in the business of enforcement? The Safety Duck thinks that issuance of 142 citations and $576,000 in penalties against Sims Bark Co. and Sims Stone Co. signifies that it is.

Dying to Find Fault in Wyoming

Monday, August 24th, 2009

Wyoming might be a good place to work, but it’s also a good place to die at work. The mortality rate for occupational injuries is three times the national average, with 15.6 fatalities per 100,000 workers. Many of these fatalities occur in the oil fields, where “roughnecks” make pretty good wages in exchange for working in relatively dangerous conditions. As DeeDee Correll writes in the Los Angeles Times, everyone shares the goal of improving safety on the far-flung job sites, but there is a continental divide in how to achieve that goal.
Most oil workers are employed by independent contractors, who provide the bodies for the intense work in the fields. The fields are owned by big corporations. On one side of the fence you find workers and their advocates, who want to be able to hold the big corporations liable for what happens on the job. They want to be able to sue the big corporations when they suffer catastrophic injuries or deaths on the job.
The counter argument says that workers comp – carried by the employers of these field workers – should be the exclusive remedy for work-related injuries.
At issue here is the question of accountability and control: under current Wyoming case law, injured workers have to prove that the operator maintained “pervasive” control over the site. This is a very high standard, because the daily operations at these sites are primarily under the control of the independent contractors. By lowering the standard of control, worker advocates would make it easier for workers to sue the oil companies for damages.
Denim Versus Suits
The battleground for this dispute is the Wyoming legislature. As is so often the case, there is considerable theatricality on display. Many of the roughnecks lobbying for a change in the law show the scars of their chosen occupation. They are dressed in denim and baseball caps. Their opposition, lawyers for the oil companies, wear the indispensable dark suits.
The “suits” counter the compelling visual evidence of the roughnecks with some dubious arguments, maintaining, for example, that any change in the law would expose home owners to liability for injuries to contractors working on their houses. That’s a red herring, as homeowners rarely exercise significant control over the work environment of their contractors.
There should be enough middle ground in this dispute to fashion a meaningful compromise. Wide-open litigation is rarely the best way to go. The legislature should set specific standards for safe operating procedures in the oil fields. Oil companies should be held accountable for meeting these standards. Only if they are demonstrably negligent in maintaining and documenting these standards should the door be opened to law suits. At the same time, the state should bolster the benefits available to workers who are killed or severely injured on the job.
The “exclusive remedy” provision of workers comp is a standard well worth preserving. It’s tempting to carve out exceptions, but each exception becomes a fault line in the fundamental compromise that is workers comp. We are nearing the 100th anniversary of comp in America (New York 1911). For the most part, it is a remarkably successful experiment in public policy. The law makers of Wyoming would do well to keep this success in mind: by all means tinker with the statute to make it more responsive to 21st century working conditions, but don’t mess with the premise. This is not the time to find fault with “no fault.”

News roundup: Health Wonk Review, WC recovery, fatalities, joint & several, AIG and web tools

Friday, August 21st, 2009

Things are sure getting ugly out there in the national debate on health policy. Read what the health policy wonks in the blogosphere have to say about all this – a fresh Health Wonk Review is posted over at David Williams Health Business Blog.
The recovery and WC – Joe Paduda offers an excellent analysis of the likely impact of economic recovery on various segments of the workers comp industry in his post The recovery is coming – what does that mean for work comp? He offers a word of caution for employers: as hiring increases, so too will injuries. “The good folks at the NCCI have looked at the impact of economic recoveries on workers comp, finding “Job creation is related to an increase in the proportion of workers who are inexperienced in their current job and, hence, more likely to sustain a workplace injury.”
Work fatalities down, suicides up – The good news: “A total of 5,071 fatal work injuries were recorded in the U.S. in 2008, down about 10 percent from a total of 5,657 fatal work injuries reported for 2007, according to preliminary government figures.” However, some of the drop is attributed to the economy and a decline in the number of hours worked. Researchers also think that numbers may be lagging since budget constraints at reporting agencies may have delayed classifying cases. One of the most troubling parts of the report is that workplace suicides were up 28 percent to a series high of 251 cases in 2008 – “…the highest number ever reported by the fatality census. Suicides among protective service occupations rose from 14 in 2007 to 25 in 2008.” Read more about the report in Insurance Journal’s story, Fatal Work Injuries Dropped 10% in 2008; Down 20% in Construction.
Joint and Several Liability in action – Roberto Ceniceros blogs about the hefty bills that some New York employers are facing after the demise of self-insured trusts (aka SIGs) in his post Self insuring comp claims has its risks. About 1,789 will be footing about $133 million in unfunded workers comp claims – an average of about $74,000 per employer.
AIG wins one – An NCCI suit alleging that AIG has been shortchanging state workers comp pools for 35 years was dismissed by a federal judge yesterday, but the suit was dismissed on a legal technicality, with no ruling on the actual charges.
Web tools – here are a few good web tools we’ve come across in our travels:
Choose the Best Search for Your Information Need – a guide to some specialty search engines
Wordnik – An ongoing project devoted to discovering all the words and everything about them. We’re liking this, and also recommend our long-term favorite word tool, OneLook.
Meeting ticker – log the number of attendees, enter the average hourly rate, and start your engines. You’ll be surprised to learn how much meetings cost!
ParkWhiz – find and reserve parking before you get there. Enter a date, time & address and get nearby parking garages, rate comparisons, and distance from your destination.
Down for everyone of just me? – enter the address of a website to see if the site is having a widespread problem or if the problem with the page is on your end. It’s surprisingly useful!

The Cost of Getting Better

Thursday, August 20th, 2009

Earlier this week, my colleague Julie Ferguson blogged an intriguing case in Indiana, where Adam Childers, an obese pizza baker, suffered a back injury when he was hit by a swinging freezer door. He was unable to get better due to his obesity. As a result, the Indiana court ordered the employer to pay for weight reduction surgery, to be followed by back surgery, all the while providing temporary total disability benefits to Childers. A relatively large claim becomes a very large claim due to the prospect of sequential surgeries. This case raises some fascinating issues concerning the cost of getting better. Boy, does it ever!
There is no need to repeat the succinct summary of the case provided in Julie’s blog. For those interested in the details, here is the actual opinion of the court.
This case raises two compelling issues: First, the degree to which employers become responsible for non-work related factors in recovery; and second, the looming specter of widespread discrimination against people whose pre-existing conditions make virtually any injury substantially more difficult to manage.
Taking People as They Are
Employers cannot set a high bar for “health and wellness” and then exclude everyone who falls below it. Any health standards must be grounded in business necessity. As we have seen in recent blogs, employers might be in a position to reject applicants who smoke (depending upon the state), but they generally cannot arbitrarily turn away people with co-morbidities that may impact recovery times: diabetes, heart conditions, asthma, etc.
In the Indiana case, at the time of the injury Childers weighed 340 pounds and smoked 30 cigarettes a day. In its opinion, the court did not consider him “disabled” as defined in the ADA: his weight did not “substantially impact” one or more major life activities. Thus, despite his weight, he did not fall into a protected class.
Once injured, however, Childers’s weight became a major obstacle to his recovery. Indeed, any obese person suffering from back, hip, knee, leg or ankle injuries would find recovery extremely difficult, as their spine and limbs are routinely stressed by the sheer weight of the body. Under Indiana law, the pre-existing condition of obesity combines with the work-related injury to produce a single injury. With the pre-existing condition absorbed into the workers comp claim, the employer is responsible for any and all treatments required to bring the worker to maximum medical improvement.
There is a definite logic to the Indiana court’s position. The problem is not in its protection of Childers, but in the implications for all Indiana employers as they are confronted with hiring decisions.
When in Doubt, Leave Them Out?
With the Childers’s decision, employers in Indiana have been put on notice that at least one conspicuous part of the labor pool – obese people – bring the risk of substantially higher costs following injuries in the workplace. As employers make day to day hiring decisions, they may well have the image of higher costs of injuries associated with obesity in the back of their minds. Given two applicants, one obese, one within normal weight ranges, employers may be tempted to ignore other important hiring factors such as motivation and experience and reject the obese applicant.
Thus the unfortunate consequence of providing extensive benefits to Childers is that it may have the proverbial “chilling effect” on the job prospects for others with similar weight problems. The obese already suffer from the daily judgment of a thousand eyes: their weight problems are impossible to hide. Now they may have to overcome the additional burden of fearful Indiana employers, who exclude them from employment in the vague hope of keeping the costs of comp under control.

California Fraud Bill: The Solution is a Problem

Wednesday, August 19th, 2009

California has a California-sized fraud problem, with much of action in the medical arena. Unscrupulous providers are billing for services that are never provided, often under the names of people who have never been injured. It’s identity theft targeted at businesses, not individuals. In California’s $7 billion comp system (down from $21 billion just a few years ago), fraud is a significant cost driver.
Here is just one example of medical billing fraud, involving the Los Angeles Unified School District. In August of 2006 the district received a bill for lab services involving a principal injured in a fall the previous May. Unfortunately for the perpetrator, one James Wilson, the principal had died prior to the date of the lab test. (Comp is rarely interested in post-mortems.) Wilson was a financial rep at Cedars-Sinai Medical center – a highly reputable institution – and had access to patient medical records. He was convicted on five felony counts and sentenced to 4+ years in prison.
As we read in the LA Times, a task force of private and public employers, including the Walt Disney Co., came up with an intriguing solution: require insurers to send notices to injured workers to check whether they actually received all the medical services billed. To eliminate the suspense, I will tell you now that the bill died in committee, at the request of the insurance industry. As much as the Insider detests fraud, we’re with the carriers on this one.
Junk Mail?
The fraud problem is very real, but this particular solution is flawed. Too many assumptions are embedded in the approach. The bill assumes that:
– the carrier has a valid address for the individual
– the individual will read and understand the mailing, which is likely to contain technical information on treatments provided. (The claimant may be non-English speaking and/or illiterate.)
– the individual will take the time to fill out the form and respond, even though there is no direct incentive to do so
– the individual is not a willing participant in the fraud (having received a few bucks for the effort)
The fundamental flaw is that injured workers have no direct financial stake in fraud: they are held harmless in the comp system, with no co-pays, no deductibles and no premiums. The stake holders are the employer, who either pays for insurance or is self-insured, and the carrier/TPA, who under this bill is confronted with the significant cost of mailings (perhaps multiple mailings to individual claimants) and the arduous task of logging responses, which would be random: most would indicate no problems, while those pointing to fraud might well come from folks who simply did not understand the questions. This solution is equivalent to using a shotgun to eliminate a bunch of (very pesky and rather deadly) mosquitoes.
There may be a quick fix to make this approach somewhat more effective: send the confirmation of services to the employer. That way a vested stake-holder would be given useful information and would have an incentive to follow up on it. The employer could sit down with the individual and verify the treatments. Any problems could be relayed to the carrier. In this approach, the scale of the effort becomes more manageable, as the burden falls on hundreds of thousands of employers, as opposed to a few hundred carrier/TPAs.
A cost-benefit analysis would probably place this fraud buster where it currently resides, in the circular file. It’s always tempting to legislate solutions to intractable problems, but alas, mandated solutions often become a new set of problems. Administrators, employers and carriers need a variety of tools to tackle fraud. This aborted bill is not exactly what the prudent doctor would have ordered.

Compensable weight loss surgery? A new wrinkle in obesity

Tuesday, August 18th, 2009

Yesterday, my colleague blogged about employers that refuse to hire smokers and cited another employer who would like to extend that ban to obese applicants. Health-related matters and their associated costs are challenging for employers and we expect they will continue to be played out in the courts. In fact, yesterday, Roberto Ceniceros blogged about a surprise ruling by the Indiana Court of Appeals about weight loss surgery related to a workers comp claim … or at least the ruling was a surprise to us. In Boston’s Gourmet Pizza v. Adam Childers, the court determined that the employer must pay for weight-reduction surgery for Childers as a precursor to treating the work-related back injury. The employer must provide temporary total disability benefits while the employee prepares for, and recovers from, the weight-loss surgery. The subsequent treatment path for the back injury is unclear, various treatments have been under consideration but the employer’s weight was deemed a barrier to any success.
In 2007, the then 25-year-old Adam Childers sustained a back injury after being struck in the back by a freezer door while serving as a cook for his employer. At the time, he weighed 340 pounds and smoked about a pack and a half of cigarettes a day. Because of his weight, his physician advised against any nuerosurgery, but Childers’ back pain persisted and other treatments did not provide relief. Over the course of this treatment, his weight increased to 380 pounds. His physician suggested lap band or gastric bypass surgery to get his weight down, both to relieve his symptoms and to improve his suitability for potential surgical treatments, such as spinal fusion.
Understandably, the employer balked at footing the bill for weight loss surgery. While the employer assumed responsibility in providing treatment for Childer’s work-related injury, they contested the idea that they should have any responsibility for providing secondary medical treatment for a preexisting condition. However, in Indiana, a preexisting condition is not a bar to benefits, a matter that the courts have taken up in several prior cases. Ceniceros sums up it ups this way: But the court agreed with a Worker’s Compensation Board finding that the worker’s pre-existing medical and health condition combined with the accident to create a single injury for which he is entitled to work comp benefits.
We’ve posted many times about the high-cost of obesity and diabetes in the workplace, and how comorbidities can add to the cost of workers comp injuries. We’ve also blogged about employers’ increasingly aggressive efforts to target so-called lifestyle issues that impact health. Decisions like this might heighten employers’ resolve to control obesity – but in that regard, they may find themselves between a rock and a hard place.

Fire the Smokers! Tax the Fat?

Monday, August 17th, 2009

Back in December of 2006 we blogged the story of Scott Rodrigues, a new hire of the Scotts lawn care company, who was fired after failing a drug test. No news here, perhaps, except that the drug in his system, nicotine is perfectly legal. Scott’s is self-insured for health benefits, so they have a vested interest in making sure that employees follow basic wellness practices.
On his way to a pre-placement drug test, Mr. Rodrigues chewed on Nicorette gum. He was trying to kick the habit. Ironically, the Nicorette may have triggered the positive finding for nicotine. Rodrigues was hired provisionally and then abruptly terminated once the test results were released.
Rodrigues brought suit in federal court for violation of privacy and civil rights. Judge George O’Toole has ruled in favor of the company. The judge found no violation of privacy laws, as Rodrigues smoked while walking down the street and in a restaurant parking lot. His supervisor spotted a pack of cigarettes on the dashboard of his truck. Would the judge have ruled for Rodrigues if the employer had peeked through a window to see him smoking at home?
O’Toole also rejected the notion that the firing violated a 1974 federal law that protects employee rights to benefits. O’Toole ruled that Rodrigues was not yet a bona fide employee and was working on the condition that he pass the urinalysis.
Jim King, a spokesman for Scotts, said the smoking ban has never been used to fire an “existing” employee. It is used solely to screen out applicants. Since the ban went into effect in 2005, the percentage of smokers among the company’s 7,000 employees has fallen to 7 percent from 28 percent.
[The Insider notes in passing that even as a “provisional” employee, Rodrigues was covered by workers comp from the moment he began working – indeed, while he was on his way to the drug testing lab.]
Whether employees can smoke or not depends upon the state they work in. A few states (e.g., Kentucky, Louisiana) explicitly protect smoker rights. Other states do not. It’s interesting that Rodrigues pursued his case in federal court, probably because Massachusetts laws offered no protection to smokers.
Is Obesity Next?
We all know that smoking increases the risk of illness and the cost of medical coverage. The same goes for obesity. So the next front in the battle to control the business side of medical costs may well be the bathroom scale. The New York Times magazine profiles the Cleveland Clinic, which has been upheld as a model for medical cost control. Two years ago, they stopped hiring smokers. Delos M. Cosgrove, the heart surgeon who is the clinic’s chief executive, would like to expand the hiring ban to include applicants who are obese.
“Why is it unfair? Has anyone ever shown the law of conservation of matter doesn’t apply?” Cosgrove states that people’s weight is a reflection of how much they eat and how active they are. The country has grown fat because it’s consuming more calories and burning fewer. Our national weight problem brings huge costs, both medical and economic. Yet our anti-obesity efforts have none of the urgency of our antismoking efforts. “We should declare obesity a disease and say we’re going to help you get over it.”
Should the Cleveland Clinic – or any other employer- decline to hire obese people, it will be interesting to track the results. Where obesity can be traced back to genetic or chemical issues – where it qualifies as a disability under the Americans with Disabilities Act- employers would be guilty of discrimination. If no such causes can be specified, employers may be on solid ground. (The unaddressed issue in these hiring practices, of course, is the loss of a vast pool of talented and often essential workers.)
A recent article in Health Affairs estimated the annual cost of obesity to be $147 billion and growing. That translates into $1,250 per household, mostly in taxes and insurance premiums.
The Fat Tax
Cosgrove is interested in an idea that some economists favor: charging higher health-insurance premiums to anyone with a certain body-mass index. Call it the Fat Tax. Another alternative might be taxing the calorie-rich foods that lead to obesity: just imagine paying a little surcharge for your large order of fries, your jumbo soda and your two-for-one pizza. That would be interesting, indeed! Just as smokers pay a tax-driven premium for their cigarettes, eaters would be taxed for their food addictions.
This is simply not going to happen. To be sure, fundamental wellness is the cornerstone of any plan to contain health care costs. But when the public good collides with the rights of freedom and privacy, individual rights will win out. Policy wonks may not like it, but citizens can eat whatever they damn well please. Lighting up after that supersized meal? Well, that’s one area where the public good pretty much trumps the private right.

Cavalcade of Risk, Downunder style

Thursday, August 13th, 2009

This week’s Cavalcade has gone global. Our New Zealand blog neighbor Russell Hutchinson of the Chatswood Consulting Blog has posted the Downunder version of Cavalcade of Risk. In addition to doing a roundup of posts from the usual suspects, he’s amassed a selection of risk-related posts from New Zealand bloggers. These are a welcome addition to and change from the U.S. health policy issue, which has been the 800 lb. gorilla in the room of late. Grab a coffee and check things out!

Independent Contractors: The Bare Essentials

Wednesday, August 12th, 2009

The King Arthur Lounge in Chelsea, MA does not exactly bring to mind the Knights of the Round Table. It’s a tough place in a tough town – a strip joint with a motel attached (don’t ask, don’t tell). The strippers had to work under some pretty difficult conditions. They were hired as independent contractors. They paid a $35 fee for every shift. There were no wages, just customer tips. They provided their own (easily removable) costumes. When they moved to the darker regions of the bar and provided “private shows” (please don’t ask, don’t tell!), they had to turn over one third of their earnings to management.
Jonathan Saltzman tells the story in the Boston Globe: About 70 strippers, led by Lucienne Chaves, a 32 year old former stripper, filed suit, alleging in a class action that they were not independent contractors, but employees entitled to minimum wages and benefits. Their lawyer, Shannon Liss-Riordan, compared the strippers to indentured servants: “They weren’t making any wage. Imagine a restaurant where a waiter has to pay to come to work and hand over a portion of the tips.”
Robert Berluti, King Arthur’s lawyer, countered that some strippers made hundreds of dollars a shift. He argued that the strippers were truly independent contractors, picking their own music, costumes, partners and routines.
Judge Frances McIntyre did not buy management’s argument. “A court would need to be blind to human instinct [indeed!] to decide that live nude entertainment was the equivalent to the wallpaper of routinely-televised matches, games…and sports talk in such a place. The dancing is an integral part of King Arthur’s business.” She went on to say that the club hired and fired strippers, determined their hours and made hiring decisions solely on looks. In other words, the strippers were employees.
Mr. Berluti lamented the burden of overcoming Massachusett’s strict standards for independent contractors. “This was a case where the judge was saddled with a MA law that makes it an outlier with respect to the rest of the country.” Does Berluti really think the outcome would have been different if the law had been more ambiguous?
Debt Collection
The strippers have been awarded thousands of dollars in damages. It will be interesting to see if they can collect. As noted above, King Arthur’s Lounge is a tough place. Back in 1982, there was an argument between Alfred Mattuchio and an off-duty Everett MA police officer named John McLeod. The cop left the lounge and returned with several fellow officers, armed with nightsticks, baseball bats and tire irons. They attacked a dozen patrons and employees, one of whom was beaten to death. Four cops were indicted and three were convicted. The Insider wonders which, if any, of the King Arthur employees injured in the fracas collected workers comp.
The chivalry of the original Round Table still lives in some places, but not, alas, in the dank recesses of King Arthur’s Lounge.