Archive for October, 2009

It’s Cavalcade of Risk week; that and other news briefs

Wednesday, October 7th, 2009

Feeling risky? Cavalcade of Risk #89 is posted at David Williams’ Health Business Blog. David is a master of the brief synopsis making it a very user-friendly compilation to browse.
Other news briefs
Fire Prevention – We’re right in the middle of Fire Prevention Week, a good time to communicate with your employees about fire safety at work as well as at home.
Economy and workers comp – At Comp Time, Roberto Ceniceros looks at the issue of how continuing job losses could hammer comp. He notes that, “Comp researchers have referred to recessions and the accompanying fear of job loss as having a ‘disciplining effect’ on workers, which leads to fewer claims filed. But that effect may only last so long.” And for another perspective on where we are headed, at Managed Care Matters, Joe Paduda reports from the AmComp conference, predicting that workers comp results are going to get worse – he points to medical costs as the culprit. And for more on this topic, see How the Great Recession is Changing the American Workplace, an article in Insurance Journal by Jay Reeves and Christopher Leonard. The authors look at effects that are likely to be long lasting.
Hawaii – In 2010, workers comp rates in Hawaii are expected to decline for the fifth consecutive year. Insurance Commissioner J.P. Schmidt says, “This is the largest workers’ compensation insurance rate decline of any state in the nation, except possibly those states that have enacted major statutory reforms.”
Traumatic brain injuries – Military medicine practiced in response to war injuries has always been a proving ground for medical advances and the Iraq war has been true to form. The L.A. Times features an excellent article on what we are learning from the battlefield about treating traumatic brain injuries. Many of the symptoms of PTSD can mimic the symptoms of traumatic brain injury, which can be better identified with new diagnostic imaging technologies.
Friction reducing devices – On the MEMIC Safety Blog, Lauren Caulfield talks about friction reducing devices aka “slider sheets” as a way to reduce injuries in healthcare settings when repositioning and turning patients.
Followup on UCLA lab deathChemJobber has some recent updates in the case of Sheri Sangi, a UCLA lab worker who died in a fire while working. We’ve talked about this case last June in Death in the lab: why aren’t university labs safer? and More on the UCLA lab death of Sheri Sangji
Legal matters – In the Wall Street Journal, Cari Tuna talks about the rise in employer retaliation claims, which were up by 23% in 2008, according to the Equal Employment Opportunity Commission. The article quotes one employment law attorney who puts retaliation as the No. 1 risk for employers today. Jeffrey Hirsch at Workplace Prof Blog says part of the reason is something akin to the principle it’s not the crime, it’s the cover up.
Every picture tells a story – We’ve previously pointed to the Naval Safety Center’s Photo of the Week. hair-raising photos of unsafe work practices. The Safety Duck Quacks also has a collection of photos of unsafe work situations.
Quick links
Mortality calculators
Lessons learned on e-mail – When it comes to messages, some traces can linger
So You Think Your E-Mail Is Really Deleted?
Owner-Operator truckers back texting while driving ban
World statistics updated in real time

Annals of Insurance: The Battered Need Not Apply?

Tuesday, October 6th, 2009

I’m guessing that you never thought of domestic violence as a pre-existing condition. Well, you haven’t tried to file a claim in one of the seven states that permit health insurers to deny coverage for the battered. The seven are Idaho, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota and Wyoming, plus the District of Columbia.
The aptly named Ryan Grim at the Huffington Post has developed a thorough chronology on this bone rattling demonstration of insurance logic. This is simply one example among many that when it comes to determining what qualifies for coverage, private insurers should definitely not be left on their own. The phantom “death panels” be damned: we already have health care rationing and premature deaths due to carrier rescissions of coverage, routine denials of (expensive) treatment, and exorbitant tier 4 drug charges.
To be sure, there is a logic at work in the insurance thinking: “We do not have to cover pre-existing conditions. You were beaten up before coverage began. You were beaten after coverage went into effect. Therefore, we deny your claim.” I wonder if the subsequent beating involves a new beater, does that create a new – as opposed to pre-existing – condition? Using the same logic, if I fell down and broke my arm prior to my current coverage and broke the same arm again in another fall, would that be a pre-existing condition?
State Farm used to be among the carriers that at least considered denying claims from battered women (and men, for that matter). Spokesperson K. C. Eynatten put it this way:

State Farm no longer rates or denies life or health insurance to battered women, even if there’s a history of domestic violence.

We realized our position was based on gut feelings, not hard numbers. And we became aware that we were part of the reason a woman and her children might not leave an abuser. They were afraid they’d lose their insurance. And we wanted no part of that.

It’s great that State Farm changed the policy, but you have to wonder how their “gut feelings” led them to deny coverage in the first place. Victims of domestic violence need prompt medical treatment, counseling (yes, adjusters, pay for the counseling!) and a little chat with the police. One would hope that insurance companies would figure this out for themselves. They don’t really need new state and federal laws compelling them to do the right thing, do they?

California Comp: Personal Responsibility?

Monday, October 5th, 2009

Fernando Martinez worked for the D. H. Smith Company, as did his two sons. The company provided Martinez and his sons a Ford F350 flatbed to drive to and from work. Because Martinez did not have a driver’s license, only the sons were to operate the vehicle. In June 2007, Martinez and his sons were on their way to a construction site, with the elder Martinez behind the wheel. Martinez rear-ended another vehicle on the freeway, injuring himself and his son. At first, Fernando and his son lied to the investigating officer from the Califomia Highway Patrol about who was driving the company truck. However, marks on their bodies from their seatbelts showed that Fernando was driving and his son was a passenger at the time of the collision. They eventually fessed up to the fact that Fernando was driving.
Both filed workers comp claims. There is no doubt that the son’s injuries are compensable. But what about Fernando?
At first, Fernando’s claim was denied. Here is an excerpt from the initial ruling:

After consideration of all of the evidence, testimony at trial and in deposition, and the demeanor of witnesses, it was found that applicant’s conduct in driving the company truck to work without a driver’s license, against the express orders of the employer, was a cause of the injury, and takes the activity in which the injury occurred outside the course of employment. The conduct of driving the company truck on public highways against the express order of the company was more than the manner of performing duties. It was different duties than he was employed for. It appears that applicant did drive the truck before his sons were licensed, contrary to the testimony of defendants. However, on the evidence it is clear that he was not allowed to drive after they were licensed, and he and his sons were well aware of that…Applicant’s conduct in this case posed an increased hazard to his own safety and life, to that of his son and members of the public, and greatly increased the risk of liability to the employer for damage to property and injury.

Sounds reasonable, but remember, this is California. The review board overturned this decision. They found the injuries to Fernando were compensable, as he was in the course and scope of employment and furthering the interests of the employer, even though he was disregarding the employer’s instructions pertaining to his driving.
Golden State Precedents
The review board cited some fascinating cases to support their contention that the injuries were compensable:

Benefits not barred for injury incurred following a high-speed chase through heavy traffic after employee had run a red light [Williams v. Workmen’s Comp. Appeals Bd. (1974)];

Bus driver who sustained injury as a result of nearly hitting an oncoming vehicle while recklessly driving his bus not barred from recovering workers’ compensation benefits for the injury [Westbrooks v. Workers’ Comp. Appeals Bd. (1988)]

With precedents like these, it would be hard to come up with a case where employee misconduct resulting in an injury was not compensable. In California at least, virtually anything you do at work is compensable.
The review board goes on to say:

In this case, it does not matter that applicant may not have been authorized by defendant to drive the truck because his travel to the job site in the truck was authorized by the employer and was of benefit to the employer.

A distinction must be made between an unauthorized departure from the course of employment and the performance of a duty in an unauthorized manner. Injury occurring during the course of the former conduct is not compensable. The latter conduct … does not take the employee outside the course of his employment.

It is apparently not a concern to the review board that the “unauthorized manner” in this particular case involves an illegal activity (driving without a license).
The End of “To and Fro”?
Finally, California has interpreted the “coming and going” rule in the most generous manner. In most states, commuting “to and fro” is generally not compensable, even when the employee is operating a company vehicle. The workday usually begins at the worksite. Not in California: “When the employer provides the means of transportation, the course of employment begins when the employee begins to travel.”
NOTE to CA employers: you may want to bag it on the company cars.
Workers comp costs in California are the highest in the country, despite the fact that employee benefits are relatively stingy. The high costs derive from many factors, one of which is revealed in this particular case. There are embedded in case law deeply rooted concepts that tilt the interpretation of compensability in the direction of injured employees. In many states, defense could certainly raise the issue of whether Fernando’s insistence on driving the truck without a license crossed the line into “serious and wilful misconduct.” You know, the concept of personal responsibility. That might be a reasonable argument in some states, but it doesn’t hold any water in California.

New Health Wonk Review posted; other noteworthy news

Thursday, October 1st, 2009

For another biweekly issue of the best of the health policy blogs, Brady Augustine hosts The Boys (and Girls) of October edition of Health Wonk Review at medicaidfirstaid. Get a little baseball nostalgia with your health policy. For our neighbors in the Boston area, Brady recalls the era of Carlton Fisk, Carl Yastrzemski, Fred Lynn, Jim Rice, and Luis Tiant.
Other news notes…
ADA, RTW and the law – Failure to accommodate an injured worker as they return to the workplace can be costly. Sears is setting a $6.2 million bias case over just such an issue. Sears refused to reinstate a recovering injured worker with reasonable accommodations when he sought to return to work, and subsequently fired him. An investigation turned up more than 100 other employees who sought return to work with an accommodation, but were fired by the company.
New Mexico – “Thirty-three states, including neighboring Colorado and Arizona, already require workers’ compensation for farm workers, although some limit coverage or exempt small farms. But New Mexico’s agricultural workers fall into a job category not protected under state law.” New Mexico agricultural laborers sue for workers’ comp coverage.
PresenteeismIs presenteeism worse than absenteeism? Roberto Ceniceros looks at new research on the issue at CompTime.
Veteran issuesRisk and Insurance has been running an excellent series on issues facing vets on their return from Iraq and Afghanistan, authored by Peter Rousmaniere. The third and most recent installment: Dealing With Scar Tissues. If you haven’t been following, catch up here:
Part 1: Wounded Back Home
Part 2: Frayed Obligations
H1N1 Virus – Jon Gelman makes the case for the urgent need for workers compensation pandemic planning, noting that in the case of emergency, the Federal government has sweeping powers under the Public Health Service Act (PHS) that could disrupt employment throughout the country. He cites a recent Harvard School of Public Health study reveals that 80% of businesses foresee severe problems in maintaining operations if there is an outbreak, and looks at what this might mean to workers comp.
Flu.gov has issued Guidance for Businesses and Employers for the Fall Flu Season. Consumer resources are available at the Consumer Insurance Blog.