Archive for April, 2011

Virginia’s No Brainer

Monday, April 11th, 2011

We have long puzzled over a peculiar and cruel stipulation in Virginia’s workers comp statute that denies coverage to workers with brain injuries, where the injury had no witnesses and the injured could not testify on their own behalf. We first encountered the issue with a trucker named Arthur Pierce, who was found unconscious beside his truck with multiple skull fractures, a sinus facture and head trauma. Had Pierce been found dead at the scene, the injury would have been compensable. But because survived the accident only to die later at a hospital, the system invoked the rule that the claimant must provide direct testimony.
In their denial of benefits, the workers comp commission wrote:

The circumstances surrounding the claimant’s injury and death are tragic, and we are certainly sympathetic to the loss his family members have experienced. We are also mindful of the difficulties in obtaining and introducing sufficient evidence to support those claims…It would be purely speculative to infer that the only rationale (for the accident) was a workplace risk.

Purely speculative?. Sure, he might have been knocked off the truck by space aliens (which, to my mind, would still be compensable as he clearly was in the course and scope of employment).
Ever-So-Gradual Justice
We are pleased to report that the Virginia legislature – through a unanimous vote in both house and senate – has corrected the statute, which Governor Bob McDonnell has signed into law. Title 65 of the Code of Virginia now reads:

In any claim for compensation where the employee is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates the injury was work-related, it should be presumed in the absence of a preponderance of evidence to the contrary that the injury was work related.

It’s too late for Claire Pierce, Arthur’s widow, to benefit from a law that she diligently lobbied for. And while the Virginia legislature would never thumb its nose at the comp board, it would have been nice to call Title 65 the “Arthur Pierce Provision.” This grotesque loophole has finally been closed. Unwitnessed brain injuries may now be compensable. It appears to be a no-brainer, but it took the brains of Virginia a rather long time to reach this just conclusion.
Thanks to Workcompcentral(subscription required) for the heads up on this item.

Cavalcade of Risk & briefs from the Blogosphere

Thursday, April 7th, 2011

Russell Chatwood, our riskmeister from New Zealand (… or as some have put it “down under the Down Under”) is our host for this week’s edition of the 128th Cavalcade of Risk. It’s a substantive issue — and don’t miss the oddball features.
System spillover – In a recent column in Risk & Insurance, Peter Rousmaniere takes a look at workers’ comp and finds leaks in the system. He talks about how many nonoccupational disability and health problems find their way into the comp system, while many work injuries leave the work comp system to roost elsewhere.
Federal shutdown? – If tomorrow brings a government shutdown, the Federal Times reports that some 800,000 federal employees will be furloughed, and discusses the likely impact. Federal Times is a news and information service for Federal Managers, so might be a good source to follow along if worse comes to worst. Related: CNN also has a government shutdown FAQ.
One year laterEHS Today takes a look back at the Big Branch mining disaster on the one year anniversary. Reporter Ken Ward of the WV Gazette raises the questions that linger about Massey’s mine disaster on his Coal Tattoo blog, and points us to a tribute to the miners composed by one of his colleagues. Also see Faces of the Mine, a moving community-driven, interactive memorial for those affected by the Upper Big Branch mine disaster.
Rhabdomyolysis & athletes – If athletes are among your employees, you may want to note that the recent post about rhabdomyolysis that ran in the L.A. Times health blog, Booster Shots. This is a type of overexertion illness in which muscle tissue is so overworked it breaks down and floods the bloodstream with a protein that can impair kidney function.
Medicare: FAQs on ACOs – the folks at HealthLawProf Blog have compiled some good resources on Accountable Care Organizations: Your ACO Primer Links and Getting up to speed on ACOs.
Lights, camera, action… – Bet you thought our item about a sitcom called Workers Comp was an early April Fool’s joke … nope, here is a news update: ‘Sopranos’ actor added to cast of Bradenton-shot TV show. The show is described as a “comedy about zany employees dealing with weird insurance claims.” Get your popcorn ready.
Briefs from the Blogosphere

New Hampshire Fee Schedule: Climbing a Mountain in the Fog?

Wednesday, April 6th, 2011

Nearly a year ago we blogged the issue of a medical fee schedule in Maine. The legislature mandated the creation of a fee schedule way back in 1991. Twenty years later, there have been a few reports, a few changes in the membership of the committee trying to establish the fee schedule and, to date, no fee schedule. We now wonder whether neighboring New Hampshire will follow Maine’s example, climbing a slippery mountain trail into a deep fog.
New Hampshire, like Maine, has a two tiered system: in the first tier are managed care networks, which negotiate fees with doctors and hospitals. Everyone in the second tier – those outside the networks, the self-insured, smaller carriers, etc. – are stuck with paying the “usual and customary fees.” Medical costs account for 71% of total costs – a truly staggering number when compared to the national average of 58%.
Dr. Gary Woods, an orthopedic surgeon and chair of the NH Workers Comp Advisory Council, thinks that the high percentage of medicals is the result of good medical care, combined with a strong return-to-work focus: in other words, indemnity is relatively low because workers are not out of work very long. Well, doc, show me the numbers. I expect that New Hampshire – ranked 14th highest among states for comp costs – is spending too much on indemnity and way too much on medical services. It’s no bargain for anyone.
The Fix is (Not Quite)) In
The New Hampshire legislature is contemplating SB 71, which would impose a fee schedule on medical services. The bill proposes that hospitals be reimbursed at a uniform conversion rate of up to 150% of Medicare rates. While somewhat on the high side for such linked payments, it would probably bring down the overall costs of medical services in the state.
SB 71 is going nowhere, at least for the moment. The bill will remain in committee while the lawmakers appoint a study group to review the proposal and make further recommendations.
Ultimately, the details of the fee schedule will be in the hands of the comp advisory council, of which Dr. Woods is the chair. Hmm. This brings to mind the stalemate in Maine, where Dr. Paul Dionne was for a long time chair of the committee responsible for implementing the fee schedule. The group just couldn’t come up with a number that would satisfy the doctors. (How would a doctor define a fair fee schedule? “Usual and customary.” ) Last June, facing allegations of a conflict of interest, Dr. Dionne finally stepped aside.
Perhaps the good folks in New Hampshire could speed up the fee schedule project by asking Dr. Woods to step aside. No doctor is going to embrace a cut in reimbursement rates. Dr. Woods would have a choice: he could sit on the sidelines and watch the committee hash out the details, or, with his health and well-being in mind, he could put on his hiking boots and climb one of the Presidentials. I recommend the latter, even if the peak is momentarily obscured by the fog.
Thanks to Work Comp Central for the heads up on this issue (subscription required).

Cool work safety tool from WorkSafeBC – “What’s wrong with this photo?”

Tuesday, April 5th, 2011

Remember playing those “what’s wrong with this picture” games in activity books when you were a kid? Well WorkSafe BC has adapted the concept as a safety tool. Every issue of WorkSafe Magazine includes a photo that has been staged to show at least six hazards or dangerous work habits – you can interact with the photo to position pushpins on identified hazards, describe the hazards, and then submit your response to WorkSafeBC for a possible prize (although it’s likely that only B.C. residents are eligible). In each issue, they include the winning entry from the last issue, along with responses from other readers. Neat.
One of the really cool and useful things is that they keep an archive of all past photos online – you can either take the challenge online and then check the answer key, or you can print the photos and the answer keys and use them in safety meetings or toolbox talks.
Here’s one example: Can you spot the safety hazards in this commercial kitchen? Note: the image below is only a sample pic – the online interactive version is accessible at Kitchen Safety and here’s the commercial kitchen answer key to check your responses.
WorkSafeBC
Archived “What’s wrong with this photo” tools
There’s a pretty good array of work scenarios representing a variety of industries. Here are direct links to each:

Pot Smoking with Bears: Stupidity is (Still) Compensable

Friday, April 1st, 2011

We last encountered Brock Hopkins back in June of 2010, when he had secured workers comp benefits for severe injuries incurred while feeding bears. He was a bit stoned at the time. Russell Kilpatrick, owner of Great Bear Adventures in Montana, contended that Hopkins was a volunteer. Judge Jeremiah Shea found in Hopkins’s favor. Now the Supreme Court of Montana has weighed in, finding that Judge Shea got it right.
There were three major issues in determining compensability: whether Hopkins was an employee; whether he was in the course and scope of employment when attacked; and whether his marijuana use precluded payment of benefits.
Hopkins frequently worked in the park, performing minor repairs and, yes, feeding the bears.The pay was informal, but Kilpatrick would slip him some money now and then. This “exchange of money for favors” is, well, employment. Thus, Hopkins was an employee, working under the admittedly informal and ad hoc supervision of the laid-back Kilpatrick.
While it is not clear that Kilpatrick wanted the bears fed on the fateful day, he did not tell Hopkins not to feed them. And as Judge Shea deadpanned in his ruling: “…presumably, customers are unwilling to pay cash to see dead and emaciated bears.” Hopkins, in other words, was working when he mixed up the feed, set down his marijuana pipe on a fence post and entered the enclosure.
Finally, the judge opined that smoking marijuana while working among bears was “ill-advised to say the least and mind-bogglingly stupid to say the most,” being high was not a factor in the attack. Red, the attacking bear, was an “equal opportunity mauler” and likely would have gone after anyone, stoned or sober.
So Brock Hopkins, a loser by most accounts, wins in the courts. He collects indemnity for his (considerable) troubles and has all his extensive medical bills paid through the Montana uninsured fund. Kilpatrick’s legal woes continue, as he did not carry workers comp insurance for the employees he didn’t think he had. So much for clear thinking in the good mountain air of Montana.