Archive for October, 2009

Halloween edition of Health Wonk Review; other news notes from the blogs

Thursday, October 29th, 2009

Our local neighbor Tinker Ready of Boston Health News has done a most excellent job in her illustrated Halloween edition of Health Wonk Review – she even included photos from her local haunted house. Go visit now: Health Wonk Review: Killer viruses and the undead public option – lots of good posts in an entertaining format.
Other news from the blogosphere
Is the party over in workers comp? – Joe Paduda of Managed Care Matters sees a lot of similarities between market conditions today and back in the dread late 1990s – lengthy soft market, premium rates that have dropped by two-thirds over five years, continued increase in medical severity … he doesn’t see a soft landing as likely.
FDA issues list of fraudulent H1N1 flu products and websites – “This list is intended to alert consumers about Web sites that are or were illegally marketing unapproved, uncleared, or unauthorized products in relation to the 2009 H1N1 Flu Virus (sometimes referred to as the “swine flu” virus). Note that until evidence to the contrary is presented to FDA, the owner of the listed Web site is considered responsible for promoting the unapproved, uncleared, or unauthorized products. The uses related to the 2009 H1N1 Flu Virus are not necessarily being promoted by the manufacturers of the products.” (Thanks to Gooznews for the pointer.
Could integrating comp medical care into group health could save big bucks? That’s a question that Roberto Ceniceros examines at CompTime in light of a recent California study that says savings could be achieved.
Judge Robert Vonada has been frequently updating Pennsylvannia Workers’ Compensation Journal of late. We particularly enjoyed a recent post entitled an entertaining primer on mediation, in which he points to and comments on a list of thirty things to say in mediation – or as he puts it, a list of things you will hear yourself say and wish you hadn’t.
CDC NIOSH Science Blog offers workplace safety & health tips for tattooists and piercers – a group of workers who are at hgh risk for exposure to bloodborne pathogens. They’ve created a Body Art Topic Page for more information.
We’ve recently been discussing the issue of injuries inflicted by animals and workers comp in the light of the chimp that attacked a CT woman. Risk Monitor features a posting called when circus animals kill that focuses on risks related to wild animals in the entertainment industry.
BLR’s Safety Daily Advisor reminds us that OSHA gives your employees 14 specific workplace rights. See OSHA’s 14-Point Employee Bill of Rights

FedEx Sued: Mooning in Moon Township?

Tuesday, October 27th, 2009

Labor officials of three states have written to FedEx, announcing their intention to file suit for “widespread, long-term, and unlawful employment practices.” We have blogged this employment law conundrum many times (search “independent contractors” in the box to the right). There are at least two mysteries in this action: why only three states are participating (FedEx has lost court cases in at least six states and doomed to lose in many others) and why the states chose to sue at this particular time.
FedEx has until today to file objections to the suit. The complaint was filed from the office of the attorney general in New York and included the signatures of officials from Montana and New Jersey (a somewhat odd triumvirate). Their letter is addressed to William Conley, Esq., managing director of the FedEx Legal Department. With an office in Moon Township PA, Conley may end up mooning the AGs in response – after all, FedEx thus far has shown little interest in conventional employment standards. Mr. Conley runs what must be a very busy office, as there have been numerous court challenges to the FedEx business model. FedEx calls their delivery drivers “independent contractors,” even though the drivers must wear FedEx uniforms (no white sox!), drive FedEx trucks, adhere to FedEx timetables, use FedEx scanners and meet detailed FedEx standards. Drivers they are; independent they are not.
The AGs are seeking restitution, damages, civil penalties and other unspecified types of relief.
Is It Legal, Or Is It FedEx?
In some instances, individuals take over FedEx routes and hire others to do the driving. Even though these subcontractor drivers must meet the explicit FedEx standards, the entrepreneurs managing the routes can run the businesses with at least some degree of independence. But where the driver has no employees and simply covers the route for FedEx, there is no credible case to be made for independence.
The FedEx business model has been languishing in state courts for years. Meanwhile, thousands of drivers have labored without a safety net. They work without benefits. If injured, they are completely on their own. It is not difficult to imagine the sense of frustration and outrage that led to this legal action. As for the timing, the three states are filing suit just a few days before Halloween, when ghosts and goblins will prowl dark streets in search of a candy fix. It’s as good a time as any to bury this bogus incarnation of the “independent contractor” concept once and for all.

Workers Comp Insider Named to LexisNexis Top 25 WC Blogs

Monday, October 26th, 2009

We thought we’d toot our own horn a little this morning. We were pleased to find a note in our mailbox from LexisNexis telling us that we had been included in the Top 25 Blogs for Workers Compensation and Workplace Issues. Here’s what they had to say:

Considered by many as the gold standard for workers’ comp blogs, the Workers’ Comp Insider covers it all: workers’ compensation, risk management, business insurance, workplace health & safety, occupational medicine, and much more. Launched in September 2003, this weblog proved how a company can harness the power of the open web by allowing its employees to voice their opinions and showcase the company’s expertise.

We appreciate the recognition, and we’re happy to see so many fine blogs in the work comp arena today – it was sure a quiet place in 2003 when we first hung out our shingle. Be sure to visit and check out some other fine blogs in this space – we’re happy to see many blog pals there and look forward to discovering some new finds.
And if you have a mind to, LexisNexis is taking recommendations for the TopBlog of 2009 – we’d welcome your input and appreciate any votes of confidence should you so choose.
Thanks, LexisNexis!

Cavalcade of Risk’s spooky pre-Halloween edition

Wednesday, October 21st, 2009

Did you know that this week is Protect Your Identity Week? Identity fraud seems like a rather timely theme for the week leading up to the nation’s second most-popular holiday, noted for widespread trickery, mayhem and identity assumption. All levity aside, Halloween holds a fair amount of risk, so here are some risk reduction tips for the homeowner, the employer, and all the little monsters. And a word to the wise: don’t forget to update your Zombie Insurance.
While we can’t do much more in the way of protecting your from monsters, ghosts and zombies, our contributing bloggers have submitted some excellent posts to help you tame some very real-life risks. Without more ado, I give you the pre-halloween edition of Cavalcade of Risk.

Inferno: Combustible dust explosion at Imperial Sugar – video report

Tuesday, October 20th, 2009

We recently posted about the Imperial Sugar Company explosion report issued by the US Chemical Safety Board, but more recently we found a video version, which we think is well worth the nine and a half minutes it takes to view it. Using computer graphics, it clearly explains how the accident happened and the conditions that led to it. It should be mandatory viewing by the 100,000 at-risk organizations that have the potential for such explosions, but think “it can’t happen here.”

Not Exactly a Rush to Judgment

Monday, October 19th, 2009

Kris Indergard used to work on the railroad. Then she hurt her knee (partly work related), had surgery and was out of work for over a year. Her doctor established “permanent” restrictions. Indergard wanted to return to work, so Georgia Pacific sent her for a physical capacity exam (PCE). The PCE provider observed Kris’s actual job, which the employer stated required lifting up to 60 pounds. Sixty pounds exceeded the restrictions established by the treating doctor, so the employer refused to take her back.
Half a year later, Kris’s doctor lifted the “permanent” restrictions. (“Miracle recoveries” – a subject in themselves – are beyond the scope of today’s blog.) So Kris had another PCE, this time including a complete medical workup. Her lifting ability was tested, along with job simulations. Not surprisingly, Kris was out of shape – she had been out of work nearly two years – so her aerobic capacity was limited. She could not complete a 60 pound lift. As a result, Georgia Pacific terminated her.
Indergard sued, claiming that the employer misrepresented the essential functions of the job: she believed that the lifting requirement was exaggerated; hence, the PCE was improper and discriminatory.
Her case boiled down to a technicality: was the PCE a medical exam? If yes, the exam “must be job related and consistent with business necessity.” If not, the PCE was exempt from this requirement.
The prior court determined that the PCE was not a medical exam and issued a summary judgment for the employer.
Big Picture, Little Picture, No Picture
Indergard appealed, noting that the PCE included a check of her blood pressure, her aerobic capacity and a detailed medical history. In other words, it was not simply a test of her physical capacities. The U.S. Court of Appeals, 9th Circuit in Oregon, determined that the PCE was indeed a medical exam. They over-ruled the summary judgment and remanded the case back to district court.
What is fascinating in all the legal arguments is what is missing: the issue of “reasonable accommodation.” Indergard challenges her employer’s contention that the job requires lifting of 60 pounds. How often is this lifting required? Are there any available lifting aids? Are other people available to help? Is lifting 60 pounds truly an “essential” job function?
Indergard’s victory isbased upon a technicality: the PCE was in fact a medical exam, because medical issues were included. (It’s difficult to imagine any test for physical capacities that would not include at least some medical issues.) We can only hope that the lower court focuses on the big picture: Indegard’s ability to perform the essential job functions, with or without accommodation. It’s hard to believe that this case has dragged on for six years. It began with a rush to judgment and ends with an agonizingly slow parsing of technicalities. Indergard wants her job back. Sounds simple enough, but with the wheels of justice churning along, it is doubtful that such an outcome will ever take place.

Health Wonk Review; also, the crazed chimp case and workers comp

Thursday, October 15th, 2009

It’s Health Wonk Review week, and the happenings are at Hank Stern’s place this week. Please visit InsureBlog for the Lean, Mean, and Clean edition of Health Wonk Review.
Was chimp mauling work-related?
In other news this week, who can forget last February’s horrific mauling by Travis the chimpanzee that left Charla Nash disfigured and blind? Charla’s extensive injuries are still being treated at the Cleveland Clinic, which specializes in reconstructive surgery and is noted for being the hospital that performed the nation’s first face transplant. Her sister keeps an online diary of her progress at Friends of Charlie Nash. Charla’s family has filed a $50 million lawsuit against the primate’s owner for ” …negligence and recklessness for owning “a wild animal with violent propensities, even though she lacked sufficient skill, strength and/or experience to subdue the chimpanzee when necessary.”
Yesterday, we learned that the attorney for Sandra Herold, the chimp’s owner, asserts that the injuries sustained were work-related and should be treated as a workers compensation claim:

“But Herold’s attorney, Robert Golger, says in recent court papers that Nash was working as an employee of Herold’s tow truck company, Desire Me Motors, at the time of the attack. He argues that Travis was an integral part of the business, saying his picture was on the wrecker, he appeared at the garage daily and he attended numerous promotional events.
The house where the attack occurred is a business office of the company, Golger said. Nash fed Travis, cleaned his play area and purchased his supplies as an employee, Golger contends.”

If the link to work is successfully established, it is possible workers comp could be determined to be Charla’s exclusive remedy. This may force the family’s hand because, according to Connecticut law, a workers compensation claim must be filed within one year of the date of injury.
Workers comp is a no-fault system. While there have been questions raised about whether Herold was negligent in keeping such a dangerous wild animal, employer negligence would not pierce the exclusive remedy shield – just as negligence on the part of an employee would not disqualify an employee from benefits. In most states, an employer’s conduct would have to rise to a standard of deliberate intent to injure an employee to pierce exclusivity.
Workers comp covers wage replacement and medical care, but it differs from civil remedies in that there is no compensation for pain and suffering. In the case of severe and egregious injuries, this can seem unfair, but it is part and parcel of the workers compensation pact – if injured on the job, the employee forgoes the right to sue the employer in exchange for a guarantee that the employer will provide medical care and wage replacement in accordance with a state’s statutory benefits. We’ll have to watch how this plays out in terms of establishing the work connection.

The Swine Flu, the ADA and Lawyers on the Prowl

Wednesday, October 14th, 2009

You might not think that the H1N1 virus, commonly know as swine flu, has anything to do with the ADA. Well, you clearly have not been reading Nation’s Restaurant News. Lisa Jennings writes a complex and cautionary tale for restaurant managers, warning them to back off from asking obviously sick employees whether they have the swine flu. Somehow, this advice does not sit well with me – or with anyone else who might sit down for a meal in a restaurant.
Attorneys with nothing else to do have raised the issue that swine flu may be a disability under the ADA. After all, we have all been warned of a potential pandemic and there have been a relatively small number of fatalities associated with the virus. But does that mean that every case of swine flu is a disability? Is the ADA’s recent recognition of shorter term disabilities meant to include a week of sore throats, coughing and fever?
Jennings quotes Virginia attorney Jonathan Mook, who notes that the ADA sets limits for when and how employers may inquire about medical conditions. He concedes that swine flu may not technically be a disability, but “it could be perceived as disabling because of the myths about it. If an employer asks specifically about swine flu, for example, and later is perceived as not wanting to work near the employee, even after the worker is no longer contagious, there may be grounds for a discrimination complaint.”
Are employers really supposed to worry about that?
Fortunately, the article recommends that employers focus on symptoms:

In communities where an outbreak occurs, it is a good idea to include in every preshift meeting questions about specific symptoms related to the flu. It’s also OK for employers to ask whether employees have fevers, sore throats, coughs or intestinal ills, so long as they don’t ask for a diagnosis [emphasis added].

In addition, attorneys say, employers are permitted to send employees home if they’re showing symptoms of the flu and are allowed to ask them to stay home for three to seven days, as recommended by the CDC in Atlanta–or as long as necessary to complete treatment, such as antiviral medication.

So the attorneys say that it’s ok to send people home for flu-like symptoms, as long as you don’t suggest that you are doing so because you think they have swine flu.
A Note from the Doctor and FMLA
To complicate matters even further, a specific diagnosis of swine flu is unlikely, as most people with flu-like symptoms are instructed to stay home and employ the usual remedies. We are not to go to hospitals and clinics unless symptoms are unusually severe. The CDC does not want to overwhelm emergency rooms and local clinics with needless requests for documentation.
On the other hand, if there is a formal diagnosis of swine flu, the employee may be eligible for FMLA leave, as this particular flu would be considered a “serious medical condition” – as opposed to regular flu, which might also kill you but is not viewed as a part of a world-wide pandemic. Go figure.
I hope that a fear of (preposterous) litigation does not result in employers keeping sick people at work. No one with flu-like symptoms belongs in the workplace. I have never sued anyone, but if my scrambled eggs are delivered by a waitperson with a runny nose, flushed skin, an expectorant cough and a raspy voice, I won’t eat a thing. And if there happens to be a lawyer in the next booth, I surely would be tempted to strike up a conversation.
Postscript: A note of thanks to my esteemed colleague Jennifer Christian, CEO of Webility, who somehow finds the time to read National Restaurant News.

Focus on fraud

Tuesday, October 13th, 2009

States offer public tools to curb premium fraud
Massachusetts has recently announced an online tool to verify that an employer has workers’ compensation coverage. The tool can be accessed from the Department of Industrial Accidents site.
In addition to helping employees to verify that they will be covered should they be injured on the job, businesses may also want to verify that their competitors are not gaining unfair advantage by avoiding their workers compensation obligations. Officials say the stated goals of the program are to:

  • Permit homeowners to ensure that hired contractors have workers’ comp insurance
  • Allow general contractors to ensure that all subcontractors are properly insured
  • Assist medical providers with coverage questions when treating an injured worker
  • Aid state and municipal officials with ensuring workers’ comp compliance with licensing, permitting, and awarding public contracts
  • Help protect employers from agent and broker fraud allowing them to verify their own coverage

State officials have noted that 36 other states have similar public services online – we’ve seen such services on the NY, CA, FL, IL and TX workers’ comp sites, although on some sites, it can be a devil of a time to find the services. See All 50 States’ and D.C.’s Home Pages and Workers’ Compensation Agencies
While most states have some type of anonymous fraud reporting system on their websites, some states are getting more aggressive than others in promoting their services to the public. Florida has been touting the results of their workers comp whistle blower site, which allows citizens to submit referrals of alleged violations of workers compensation rules. As of August, after only two months of operation, the site had already produced hundreds of new complaints and over $500,000 in penalties. Fraud reporting systems aren’t just for reporting noncompliant employers. They can also be used to report suspected employee, physician, or attorney fraud related to workers comp.
Fraud is on the rise
According to the National Insurance Crime Bureau, workers comp fraud referrals were up by 2% in the first half of 2009. Premium fraud was down by 21%, but other types of fraud such as medical provider fraud and claimant fraud have risen.
Steve Tuckey is currently writing an in-depth series on fraud for Risk and Insurance. The first installment, Transparency of Evidence, deals with fraud by doctors, hospitals and other healthcare professionals. He notes that “grayer areas of so-called abuse or overutilization continue to vex payers, insurance companies and lawmakers eager to maintain the financial stability and integrity of the system that has protected workers for nearly a century.” Evidence-based medicine standards are helping to curtail both the egregious fraud as well as “softer” abuses. Part 2, Vanishing Premiums, deals with the issue of premium fraud and the myriad schemes employers use to avoid paying their fair share.
Social networks provide clues
Some employers and insurers are finding that social networking sites are a useful new tool in com batting employee fraud. In fact, in many cases, fraudulent employees are outing themselves as cheats by bragging about false claims or posting photos or videos of themselves engaging in activities that are incompatible with the injuries they are claiming.
“Some claimants supposedly too disabled to work post locations and dates for their upcoming sports competitions or rock band performances, boast of new businesses launched, and include date-stamped photographs of their physical activity, investigators say.
Others have openly bragged about fooling their employers with “Monday morning” workers comp claims for injuries that occurred the weekend prior and away from the workplace.”
However, employers need to ensure that they stay within the law when using online information about employees. New Jersey attorney Jonathan Bick suggests some best practice policies for employers when mining social networks. The issue of employee privacy can be a murky one. A good rule of thumb is that an employer should avoid duplicitous methods to spy on private, nonpublic pages – a New Jersey jury recently upheld a group of employees’ rights to privacy in just such a case. Information that employees post to public pages may be another matter. As Bick notes, “In order for a person’s privacy to be invaded, that person must have a reasonable expectation of privacy.”

Annals of Fraud: Corrections Officer in Need of Correcting?

Thursday, October 8th, 2009

Stephen Zaczynski, 49, is a lieutenant with the Connecticut Department of Correction. He claimed an on-the-job injury in September of 2008 and collected over $12,000 in benefits. While on disability, he continued to run a company he co-owned, New England Pellet. People in need of pellets pre-paid for the product, which, unfortunately for them, was never delivered. The company closed soon after Zaczynski went out on comp and filed for bankruptcy protection in January. To complete the trifecta, it appears that Zaczynski did not carry workers comp protection for his employees.
Let’s see if we’ve got this one straight: Zaczynski collects comp for an injury that did not disable him, freeing him up to run a business that did not deliver the product that his customers paid for – a product at least theoretically handled by employees who were not covered by workers comp insurance. (Perhaps they were “independent contractors”?)
Zaczynski has a court date on October 20, where he faces charges of first-degree larceny, workers comp fraud and failure to maintain workers comp insurance.
His attorney, Jim Oliver, denies all the charges: “I do not believe that a crime has been committed by Stephen. We intend to vigorously defend all claims.”
Oliver may have a case. In not delivering the pellets, Zaczynski perhaps was not performing work that exceeded the medical restrictions that kept him out of work. (We have no way of knowing whether the DOC tried to bring him back to work on light duty – as a lieutenant, this would surely have been an option.) While not delivering the product reduced the workplace hazards for his employees – less material handling, for sure – Zaczynski would still be required to provide workers comp protection, assuming these folks were, in fact, employees of the company. There’s usually not a lot of wiggle room on that issue.
Finally, failure to deliver the pellets certainly appears to be a form of larceny, but theft on a much bigger scale worked out pretty well for the giant banks, mortgage companies and insurers, so perhaps it can work for Stephen, too. In the final analysis, his problem may be one of scale: he just didn’t think big enough. If you’re not going to deliver the goods, you want to screw people out of more than a few pellets for a stove. Next time, Stephen, think big, really big. It’s the American way.