Archive for January, 2010

To and a Meandering Fro

Tuesday, January 12th, 2010

Richard Selest worked for the state of Wyoming Department of Transportation. He was asked to attend a training session 100 miles away from his office. Given the nice June weather, Richard, his supervisor and a co-worker decided to ride their motorcycles. (This surely would not have been an option in January!) On the way back to the home office, they discussed taking a scenic route, but no final decision was made. When they arrived at the intersection for the scenic road, the supervisor, riding in front, turned off. Richard and the co-worker followed. In the course of the ride, Richard lost control of his motorcycle and suffered serious injuries. Compensable under comp?
Richard’s claim was initially denied on the theory that the scenic route – 50 miles longer – was a deviation from the road back to the office and thus not compensable. Richard countered that his supervisor approved the deviation and that he was not on any specific “personal errand.” He merely was going back to his office, albeit in a meandering fashion.
The case, like the scenic road, wended up to the Wyoming Supreme Court, where Richard once again lost. The court found that the choice of a scenic road was purely personal and a clear deviation from the “course and scope” of employment. Even though Richard had no specific goal in taking the longer road, and even though he was in fact heading back to the office, the deviation in route was substantial, thus taking him outside of comp’s protective umbrella.
One justice dissented, but I think the majority acted appropriately. Despite the fact that Richard was paid for the entire trip (which took one hour longer than the direct road) and despite the fact that he followed his supervisor’s lead, the deviation had nothing whatsoever to do with work. As all good claims adjusters know, this is a matter of reading a map: the presumptive route to the office is a (relatively) straight line. Richard and his co-workers were seduced by the curvy call of nature, for which poor Richard has had to pay a very steep price.

From Hedge Funds to Comp Board: A Welcome to Jeffrey Fenster

Monday, January 11th, 2010

Back in June we blogged the resignation of Zach Weiss from one of the more difficult jobs in America: head of New York’s workers comp board. Weiss had been appointed by former governor Elliot Spitzer (whose libidinous indiscretions, we note in passing, were relatively modest, at least when judged by the new standard set by Tiger Woods). After two years mired in New York’s deeply adversarial system, Weiss quit to become an administrative law judge.
Governor David Patterson, who stepped in when Spitzer stepped down, has announced the appointment of Jeffrey Fenster as the new director of the board. Today is Fenster’s first day on the job. Fenster is a lawyer who once worked for WR Group Holdings, a hedge fund group based in Connecticut. The company website features a picture of the Connecticut shore with a lighthouse in the distance. The sea is absolutely calm – not exactly indicative of the world of hedge funds, or the world of workers comp, for that matter.
If nothing else, Fenster’s experience in hedge funds prepares him for the complex risks involved in his new position. He now manages one of the most expensive, frictional, cumbersome, and ineffective comp systems in America. Despite recent reforms, rates are still too high, benefits are too low, fraud is rampant and virtually all stakeholders are miserable. The Empire state is a mess. I have no idea what Governor Patterson promised Fenster for taking the job, but it probably wasn’t enough. Fenster is likely to look back on his presumably hectic hedge fund days as the calm before the storm, which is not exactly high praise for his new job. Good luck to him and to all who labor in New York’s challenged and challenging comp system.

A Toke In Time

Friday, January 8th, 2010

Six years ago Robin Hove was working as a security guard. The Saskatchewan resident became entangled with a shoplifter. In the course of the struggle, an open cut in the shoplifter’s mouth bled onto Hove: “The blood came pouring out of his mouth, into my eyes and into my mouth and I was just drowning in it.” Ugh.
Hove, suffering from post-traumatic stress, has not worked since the incident. For five years, his doctor prescribed conventional anxiety medications. None worked. Then his doctor prescribed medical marijuana. Bingo. Hove began to enjoy life again. While still incapable of working, he was able to get out of the house and function somewhat normally. A few tokes and he was as good as new.
Unfortunately for Hove, the Saskatchewan Workers Compensation Board does not recognize medical marijuana as a legitimate medication; marijuana is not listed in the catalogue of approved pharmaceuticals. Hove has to pay for the pot himself. It’s running a whopping $600 per month (and they used to refer to “nickel bags”!).
Hove is appealing the board’s denial of his request that his marijuana expenses be reimbursed. My advice to Hove: don’t hold your breath. The board is unlikely to budge.
Like, Heroic
Hove found himself in the news recently. He was enjoying a coffee at a local restaurant when a robber armed with a machete tried to rob a nearby gas station. Hove reacted instinctively and heroically, helping to subdue the man. He received a commendation from the mayor for his selfless actions.
Hove’s heroism does raise a couple of questions: what is the relationship between his post-traumatic stress and his ability to intervene in a dangerous situation? Was he “stoned” (sorry about that) or unmedicated when he took action? And finally, if he is capable of heroic acts, why can’t he go back to work?
If Hove’s ability to act is directly related to his consumption of pot, he is probably not employable. No employer would or could tolerate an employee constantly functioning under the influence of marijuana. Thus in all likelihood, Hove will continue his spacy path as an individual with a disability. He will find comfort in his drug of choice, but it will take a third of his limited disability income to pay for the medication. There’s a lot of anxiety in the situation, but relief is just a toke away.

Special Edition of Health Wonk Review & other news briefs

Thursday, January 7th, 2010

At The Health Care Blog, Brian Klepper has posted a Special Edition of Health Wonk Review: American Health Care Reform: Observations From Health Care Analysts. If you want to know what’s going on with health care reform, this is a thoughtful and selective compendium from experts that deserves your attention.
Catching up on other carnivals we missed: if, like us, you missed the last Cavalcade of Risk for the last decade at Jaan Sidorov’s Disease Management Care Blog, it’s worth checking out.
More news briefs

Emerging technologies: Freedom legs, bionic fingers, gastric condoms

Wednesday, January 6th, 2010

It’s been some time since we’ve made a foray into one of our favorite topics: emerging health technology, particularly in the area of rehabilitative and assistive technologies. We’ve compiled a few stories that we found fascinating and promising. If you enjoy them and and would like to read more, we point you to the following excellent sources: Always: Medgadget and MassDevice. Sometimes: Wired and Gizmodo.
Throw out those crutches
Crutches are an awkward and uncomfortable so we are delighted to learn about the Freedom-Leg, an “off-loading prosthetic,” which allows users greater mobility. The device allows a user to avoid putting any weight on the injured foot, ankle or knee, but keeps the strength in the upper muscles of the injured leg.

Bionic fingers
If you are advancing in years as I am, you will remember TV’s popular Six-Million Dollar Man and The Bionic Woman. Yesterday’s fantasy is today’s reality, giving powerful new potential to amputees. Prodigits is a prostehetic device for partial-hand amputees who are missing one or more fingers. Bionic or self-contained fingers that are individually powered allow users to bend, touch, grasp, and point.

Gastric “condom” for obesity, diabetes treatment
A recurring topic here on the blog is the debilitating impact of comorbidities such as obesity and diabetes on the recovery process. Obesity is frequently also a contributing factor to a work-related injury. Recently, we’ve seen some controversial court decisions mandating that employers foot the bill for gastric by-pass surgery for workers who are recovering from work-related injuries.
A new temporary device, the EndoBarrier Gastric Bypass, holds promise for helping with weight loss. The device is implanted endoscopically via the mouth, creating a chamber in the stomach which limits the amount of food a patient can digest. A prior story showed the device had positive results in clinical trials.

Donning and Doffing Quashed

Monday, January 4th, 2010

Way back in November 2005 we blogged the interesting issue of donning and doffing: whether the time meatpackers spend at the beginning of work putting on protective gear and taking it off at the end of the shift is time on task and compensable. The 2005 ruling of the U.S. Supreme Court went in favor of the workers, but other courts have split on the issue. Now 4th U.S. Circuit Court of Appeals in Richmond has once again ruled against the workers.
The court held that putting on and taking off the gear is “changing clothes” and thus is not necessarily compensable under the Federal Labor Standards Act.
“This sort of fact-intensive determination has classically been grist for the mill of collective bargaining, and Congress ensured that employers and unions could keep it that way by enacting Section 203 (o),” Judge J. Harvie Wilkinson III wrote for the three-judge panel. We assume that the salaried Judge Wilkinson was amply paid during the time he donned his robes to issue the ruling.
Clothes Make the Man
The district court has a rather expansive view of what comprises clothing: workers, members of United Food & Commercial Workers Local 27, each must wear steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a “bump cap,” a hair net, rubber gloves, mesh sleeves and arm shields to do the work, which includes the hanging, eviscerating and de-boning of chickens.
“Because many work clothes are protective to some extent, the distinction urged upon us by the employees would be difficult, if not impossible, for courts to administer in a consistent and coherent manner,” the judge wrote, before also rejecting the plaintiffs’ argument about the definition of “changing.”
What is at stake here is fifteen minutes of pay twice each shift, presumably at or near minimum wage. Call it four bucks per shift per worker. With 250 workers involved in the class action suit, that’s a total of about $1,000 per workforce shift. Having lost the suit, the workers will be paid only for their gruesome “time on task.”
As most of the workers are non-English speaking, the union stewards will have to translate the court’s ruling into their native tongue(s). I trust that the workers will be dressed for the occasion in street clothes: it’s pretty difficult to understand the court’s subtle distinctions when you are encased in steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a “bump cap,” a hair net, rubber gloves, mesh sleeves and arm shields. Then again, perhaps their attorney should have made his case in court while dressed in full slaughterhouse regalia: the visual evidence distinguishing ordinary clothing from personal protective equipment might have been compelling enough for even a judge to understand.