Archive for November, 2011

Risk roundup, elephants in the room, dental claims, yelling as an essential function, and more

Wednesday, November 30th, 2011

David Williams of Health Business Blog hosts the biweekly roundup of posts in the Insurance Fest Edition of Cavalcade of Risk. Check it out! Plus, poke around David’s blog – lots of good information, such as his recent posts on What does an Explanation of Benefits (EOB) actually explain and part 2.
The elephant in the room – Last week, my colleague reported on several issues and trends under discussion at the WCRI Conference. One of the key issues that has attracted some media attention is Richard Victor’s conference summary about the elephant in the room – employment. Insurance Journal’s Andrew Simpson has more on the tough challenges that face the workers’ comp system in the coming years as we cope with the “unprecedented disruption of the labor market.”
Ghosts of crises past… – Peter Rousmaniere recalls the workers comp crisis of 1991 private sector markets in some states came close to collapsing. He discusses ensuing legislative reforms and changes in employer and claims payer practices, which are are still making their impact known in today’s market.
Meanwhile, in England… – Jon Gelman notes that Britain’s Department of Work and Pensions has concluded that the principle of “no fault” should be eliminated from the workers’ comp system. “In a review published next week there are calls for a ‘rebalancing’ of safety laws and a dramatic reduction in the number of rules in the workplace.” Jon notes that our US system was modeled after Britain’s.
California Network Utilization Study – If California proves to be the national pacesetter that it so often is, look for network utilization to increase. According to a recent study by the California Workers’ Compensation Institute (CWCI), the use of Physician Networks in California workers’ comp is at a record high. Network physicians now provide more than 75% of all first year physician-based treatment, and receive two thirds of the dollars paid for physician-based services rendered in the first year. You can download the full report (and other reports too) from the CCWI Research page.
Dental claims – If you think it’s difficult to find a physician who understands workers comp issues, how about a dentist? At Risk Management Magazine, Laura McClain explores some of the complexities involved in dental claims, such as the fact that the average dental claim requires 17 dental provider visits. She notes that risk managers generally rely on their PPOs to manage dental injuries, but suggests that because these claims require a more specialized approach, risk managers need to give them special attention.
Essential Functions – We couldn’t find a better example of why it’s important to document the essential functions of a job that the recent case that Jon Hyman Of Ohio Employers Law Blog discusses in his post, “SAY IT! SAY IT!” Yelling as an essential function. Hyman’s take away for employers: “Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.”
US Road Casualties Mapped – Transportation related accidents are not only one of the leading causes of work-related fatalities in the US, they are one of the leading causes of death, period. Between 2001 and 2009, 369,629 people died on US roads. Now, courtesy of the Guardian’s Data Blog, you can see US traffic fatalities – every one mapped across America for those years on an interactive map. You can zoom in to search by your location. (Thanks to Liz Borowski at the always excellent Pump Handle for the pointer).
Cool Tool – NIOSH offers a Noise Meter shows how long it takes before a particular sound level becomes dangerous to the human ear. You can listen to the sounds and sound intensities of everyday objects. It’s an interesting little toy to share with workers to call attention to prevention efforts. Also see the other NIOSH resources on noise and hearing loss prevention.
Still an important health issue… – omorrow is World HIV-AIDS Day. The CDC has a good workplace resource: Business and Labor Responds to AIDS, which includes info on policy development, supervisory training materials, and educational materials.
News of Note

Good laptop ergonomics – for work and for play

Tuesday, November 29th, 2011

In the office, on the road or at home, proper ergonomics when using laptops will help to prevent back, shoulder, and wrist problems.

In Harm’s Way: A Non-Compensable Fall

Monday, November 28th, 2011

Geoffrey Hampton worked as a laborer for Intech Contracting LLC. Hampton, an insulin dependent diabetic, was working with a crew on September 9, 2009, repairing a bridge in Muhlenberg KY. Hampton suddenly uttered a profanity and walked to the edge of the bridge. He climbed over a 4 foot barrier and fell 60 feet, suffering permanent injuries.
Hampton has no memory of the incident. His co-workers testified that he had been complaining about not feeling well; that he had taken a snack of sweets to adjust his blood sugar; and that the fall did not appear to be an act of suicide.
Hampton was certainly “in the course and scope” of employment, but the question for the courts was whether his injuries arose “out of” employment. The Appeals Court found that his idiopathic condition – diabetes – was the likely cause of his actions and that his extensive injuries did not arise “out of” employment. As a result, Hampton was unable to collect workers comp.
It’s important to note that Hampton’s employer took specific steps on that fateful evening to remove Hampton from harm’s way:
– When he requested time for a break to adjust his blood sugar, they immediately consented.
[NOTE: Hampton had inadvertently left his insulin at the hotel room.]
– When Hampton complained about not feeling well toward the end of the shift, he was told to sit in the truck. He left the truck and walked toward the bridge rail on his own.
Not All Risk is Work-Related
The court noted that Hampton’s diabetes was not under control, which certainly raises the issue as to whether it was safe for him to perform this kind of work; if the employer had awareness of the medical condition, they should have required a note from Hampton’s doctor that it was safe for him to perform the essential job duties.
The court implies that there were circumstances where an injury might have been compensable: for example, if Hampton had been working near the edge of the bridge and had experienced a black out due to hypoglycemia, he would likely have been eligible for comp benefits. However, if it could be proven that the black out was the result of his own negligence in attending to his illness, perhaps the claim would still have been denied.
But Hampton was sitting in a truck, safe and secure, with no unusual risks or exposures. He was clearly out of harm’s way. There is no way of knowing why he did what he did, but it is clear that work had nothing to do with it. When he went over the rail of the Muhlenberg bridge, he gave no thought to the workers comp safety net that usually covers his every working moment. The findings of the court are both harsh and fair. For Geoffrey Hampton, the fateful date of 9/09/09 will resonate every moment of his diminished life.

Have you protected your employees from this seasonal peril?

Wednesday, November 23rd, 2011

We’re looking for some OSHA safety guidelines, but to no avail. There’s a peril that is plaguing postal workers, police, EMTs and news producers alike, yet it’s a safety issue that remains largely unaddressed. We’re talking turkey here. Wild, urban turkeys are fast, aggressive and persistent. In honor of Thanksgiving, we bring you these videos of brave workers confronting this natural peril.

As yet, we aren’t aware of any turkey-related claims. Wait, that is not entirely true – there was the rather unusual situation where a claims investigator was mistaken as a turkey and shot, an unfortuante situation my colleague discussed a few years ago. But a claim resulting from an actual turkey attack? We’ve yet to hear of one.
Should you be confronted by a wild turkey – and we assure you, it can be an intimidating experience to be attacked by a 30-pound enraged male turkey that sees you as threat or a subordinate in the pecking order – the best advice we have is to try not to give ground. They are trying to establish dominance. Hold your ground, carry a big stick to shoo them, or better yet, carry an umbrella, which you can open and close to create your own display of dominance.
Or barring that, just stay in your vehicle, call state wildlife authorities, and wait until help arrives or the turkeys meander away.
Happy Thanksgiving to all our readers!

WCRI Conference: Shifting Paradigms in Workers Comp

Monday, November 21st, 2011

I spent two very productive days last week at the Workers Comp Research Institute (WCRI) conference in Boston. WCRI plays a unique role in the comp system. Their annual conference, devoid of the usual hucksterism, focuses on the fundamental paradigms of insurance and poses the toughest questions. Some of the answers provided by conference speakers (most of whom are not from WCRI) are both radical and surprising. I find myself relentlessly jotting down notes from topic to topic.
Here are ten paradigm-shifting propositions that I have extracted from my time at the conference. A number of these propositions address the issue of opiate use, perhaps, along with back surgery, the most important cost drivers in the treatment of workplace injuries.
[VERY IMPORTANT DISCLAIMER: These are my interpretations and should not be attributed in any way to WCRI]:
1. Pain is hard to objectify, expensive to treat, and absolutely the wrong focus for treating workplace injuries. Treatment should focus instead on behavioural approaches to pain and the relentless encouraging of maximum feasible physical activity.
2. The comp system, a wonderful success story celebrating its 100th anniversary, is poorly designed to confront the problems in today’s fractured and highly unstable economy.
3. Monopolistic systems for comp (only 4 remain) have unique leverage to solve intractible problems such the cost of drugs in the comp system. Washington state has solved the pharma problem through the aggressive use of generic drugs, the limiting of opiate prescriptions and the imposition of a favorable fee schedule. Alas, these solutions are unlikely to work in states with competitive systems.
4. Most prescriptions for opiates in the comp system are unnecessary, ill-advised and poorly managed. [See below.]
5. Virtually all injured workers prescribed opiates should be evaluated for dependency issues prior to beginning an opiate regimen, drug tested prior to receiving opiates and throughout the course of treatment. Without these pre-conditions, opiate use is full of uncertainty and fraught with danger. (Dr. Janet Pearl has a compelling and well-structured approach to the use of opioids in treatment.)
6. Opiates should come with a written contract and a User’s Manual. Workers should be tested on their knowledge of the benefits and the risks.
7. Most doctors who prescribe opiates have no idea what they are doing, no idea how to manage opiate-based treatment and no clue about the potential for harm. Medical schools simply do not address these issues.
8. Back pain is virtually universal, the inevitable result of aging, and generally is unrelated to workplace trauma. (You might want to read that again for full effect.) To be sure, this is a controversial assertion and involves a complete paradigm shift. Nonetheless, the idea is well worth scrutiny by all parties involved: doctors, payers, injured workers and their families. Conference speaker Dr. James Rainville asserts, among other things, that exercise is the best treatment for back pain.
9. Medical fee schedules lower costs, except when they don’t (e.g.Connecticut, where the schedule appears to be set too high).
10. There is an enormous disconnect between the workers losing their jobs in this recession and the severely limited number of jobs projected for creation over the coming decade. This bodes poorly for the 25 million injured or unemployed workers with obsolete skills who are struggling to return to productive employment.
I recognize that these ideas require much more in the way of detail and documentation. I offer them as a Monday morning stimulant. Consider this posting as a micro-conference on some of the major issues facing the time-worn workers compensation system. I hope it’s a list worth a few moments of your time, as you sip your coffee and prepare for the holiday-shortened week ahead.
Special thanks to Andrew Kenneally, WCRI’s able communications director, for recognizing that bloggers have a role to play in disseminating information about workers comp research and who invited me to attend the conference. I would also acknowledge Dr. Richard Victor, whose penetrating insights animate the entire WCRI world and whose conference-concluding talk (“The Elephant in the Room”) made it well worth the time to stay to the end (see # 10 above).

Risk roundup and other news of note

Wednesday, November 16th, 2011

Insurance Writer Nancy Germond hosts this week’s edition of Cavalcade of Risk and she has a seasonal theme: The Turkey Edition. Check it out.
Reminder – Tomorrow is Great American Smokeout day. More than 46 million Americans still smoke and if some of them are your employees, it is likely that smoking is taking a financial toll on your organization. It’s not too late to remind your employees: here are some printable tools, or you can just email a reminder about 1-800-QUIT-NOW, a free smoker’s quit line.
Wellness – Speaking of smoking or any other so-called lifestyle issue that is related to employee health, Roberto Ceniceros recently tackled the topic of wellness programs being adapted for workers comp in an article in Business Insurance, as well as at his blog. He notes a trend toward integrating wellness benefits into workers comp programs, which “…requires employers to transcend traditional corporate silos that typically separate risk management and workers compensation departments from those administering health benefits and nonoccupational disability plans.”
Sandy Blunt update – Joe Paduda recently featured a post on progress in clearing Sandy Blunt’s name. North Dakota Supreme Court’s disciplinary board has recommended that Cynthia M. Feland, the prosecutor in the Blunt case and now a judge, should have her attorney’s license suspended for 60-days and be required to pay court costs related to her failure to “… disclose to Michael Hoffman, defense attorney for Charles Blunt, the Wahl memo, and other documents which were evidence or information known to the prosecutor that tended to negate the guilt of the accused…” Next step, new trial? (For more background, see A Good Man Wronged). We had a chance to catch up with Sandy at the Las Vegas Work Comp Expo at the Medata reception. Sandy is serving as Vice President of Insurance Services with Cy King and crew. (Side note: if you are ever invited to a Medata reception, say yes. Three words: “nice people” and “yum.”)
Other notes from last week’s Las Vegas Workers’ Comp Expo – Kudos to Peter Rousmaniere, who collaborated with Sedgwick to produce a great video on the history of workers comp – we’ll bring it to you as soon as it’s available online.
Our fellow blogger Joe Paduda kicked off the show with an informative opening general session, part of which was a Point/Counterpoint style sparring between Joe and David North of Sedgwick and Davidson Pattiz of Zenith about pricing and billing transparency. You can see Joe’s reports from Vegas here and here.
Evan Falchuk was part of a panel on expert physicians. Falchuk is President and Chief Strategy Officer of Best Doctors, an organization that has been making quite a splash on the healthcare side. (Check out Falchuk’s blog, See First). While not as widely known as their general healthcare services, Best Doctors also offers services in the workers comp arena, which include help for legacy claims, complex care claims, and cases involving chronic pain, among other services.
Chris Brigham of Impairment Resources made an impassioned presentation on how we can and should be making a commitment to prevent the needless disabling of injured workers. He and his team were also exhibiting, side by side with their partner firm and our neighbor, Insurance Recovery Group, who were touting their subrogation services.
Other sightings: Colleague Jim Paugh was representing his new predictive analytics endeavor, WorkersComp Analytics; Mark Walls was the man of the hour, moderating sessions and hosting a reception for members of his popular linkedIn Work Comp Analysis Group; We also spotted Bob Wilson, another online pioneer, and were fortunate to spend time with Helen Knight of King Knight Communications, arguably the best PR person in workers comp; and a shoutout to Frank Pennachio (erstwhile guest poster) and Susan Toussaint of Work Comp Advisory Group, who we finally met in person. Finally, congrats to Nancy Grover, program chair, along with all the advisors and staff of LRP and Risk & Insurance for putting on a good conference.

Hurry Up and Wait: NCCI’s Slow Road to Big Changes in Experience Rating

Tuesday, November 15th, 2011

Back in September we blogged NCCI’s pending changes in experience rating plans. While initially proposed for this fall, the new implementation schedule (contained in NCCI Circular Letter E-1402) does not even begin until January 2013, at which time 18 states will kick off the program. The other 21 states will follow throughout the year, with Utah being the last, in December. We have more than a year to figure out the implications of raising primary losses from $5,000 first to $10,000 and eventually to $15,000 and even higher. The rules are going to change and, as is so often the case, there will be some winners and some losers.
Rating’s Black Box
In the course of retooling the black box that is experience modification, NCCI’s actuaries will set the numbers that determine exactly how the new plans will operate. To date, there has been no word on the D ratio – the percentage of total losses that are expected to fall below the primary split. This will be the key factor in analyzing the implications of the new rating plans.
No matter where this number is set, one thing is certain: employers with higher than expected losses will see their experience mods go up higher than under the current system; at the same time, employers with lower than expected losses may see their mods drop even lower than under the current rules. NCCI pledges that the new plans will be revenue neutral: overall premiums will remain the same. [Legislative approval in each state would be required if the new rating plans resulted in increased premiums.]
One important feature of the new system is its dynamic nature: unlike the current rating plan, where the primary loss split point remained at $5,000 for over 20 years, the split point going forward will rise as losses rise.
Educated Consumers
What does all this mean for experience-rated employers? It’s important to understand exactly how the new system will work. Sticker shock awaits those who ignore the implications of escalating primary losses. The Insider will do its best to alert employers to the details of the new calculations, along with a user-friendly walk-through of the entire experience rating process. No, it’s not our idea of fun, but with billions in insurance premium on the table, it will certainly be worth the effort. Stay tuned.

Horn tooting and confetti throwing

Monday, November 14th, 2011

Indulge us for a minute as we toot our own horn. We’re pleased and honored to once again be named to the LexisNexis Top 25 Blogs for Workers’ Compensation and Workplace Issues.

Now in its ninth year, the Workers’ Comp Insider is among a handful of blogs that are consistently thorough, edgy, provocative, and accurately informative. The blog covers comp issues, risk management, business insurance, and workplace health and safety across the nation. The blog’s quality can easily be seen in two recent offerings: “Triaging Trouble: Predictive Modeling in Claims Management (October 4, 2011), which discusses the use of systematic modeling by risk management consultants, TPAs and insurers to identify injured workers who are most at-risk of delayed recovery or malingering, and “Wide disparity in costs for common medical procedures” (July 6, 2011), which points out that because of the lack of transparency in the level of health care costs, the cost of an abdominal CT scan might be $1200 at one hospital and yet only $300 in a clinic or doctor’s office in a nearby town.

A good part of this honor is in the company that we keep. We are pleased to find so many of our valued colleagues named, too – Joe Paduda, Roberto Ceniceros, Bob Wilson, and Peter Rousmaniere. Plus, we were happy to see The Weekly Toll, a blog that reminds us why most of us are in this business in the first place – to keep the human toll from climbing.
We’re also happy to find many blogs that are new to us on the list – we’ll be exploring them and encourage you to do so, too! Our congratulations to all our fellow work comp bloggers!
We thank the folks at LexisNexis for the honor – particularly Ted Zwayer and Robin Kobayashi, who deserve their own award for the valuable contributions that they make to furthering workers comp blogging and the online workers comp community. It’s gratifying to see so many excellent workers comp blogs thriving today – it was a far different environment back in 2003. The shared resources, news and opinions help to make us all better at what we do.
Support your work comp bloggers!

Of Fat Cats, Abstinence Pledges and Medical Quacktitioners

Thursday, November 10th, 2011

Hank Stern of InsureBlog is hosting an entertaining edition of the Health Wonk Review. Take a few moments and you will learn some interesting things: The dangers of obesity – a well-known hazard for adults – is also a danger for pets. There is an alarmingly high rate of pregnancy among U. S. teens – 10 percent of all pregnancies; in a directly related issue, the ideologically-driven attempt to mitigate these pregnancies through “abstinence pledges ” has proven remarkably ineffective: one study shows that 88 percent of abstinence pledgers go ahead and have sex anyway.
Speaking of failed programs, we will resist, at least for the moment, the temptation to pontificate on the appalling situation at Penn State University. Suffice it to say that power comes with responsibility, especially toward the powerless. Protecting the brand is a sorry excuse for failing to protect the innocent.

Retailers: Are you ready for crowds on Black Friday?

Tuesday, November 8th, 2011

In the pre-holiday shopping season, crowd control is no small issue for retailers. And Black Friday, the day after Thanksgiving, is the behemoth day that dwarfs all other days. Last year, 212 million people spent $45 billion shopping in retail stores and websites over the Black Friday weekend. And it’s not always happy holiday cheer – people can get pretty cranky in their pursuit of a bargain.
A few years ago, we reported on the the death of a worker trampled by crowds in a Long Island, NY during a Walmart “Black Friday” sale. Crowd control experts would say that the term “trampling is imprecise:

“Crowd forces can reach levels that almost impossible to resist or control. Virtually all crowd deaths are due to compressive asphyxia and not the “trampling” reported by the news media. Evidence of bent steel railings after several fatal crowd incidents show that forces of more than 4500N (1,000lbs) occurred. Forces are due to pushing, and the domino effect of people leaning against each other.”

Since that unfortunate event, WalMart has spent nearly $2 million fighting the $7,000 fine imposed by OSHA. History was not in the retailer’s favor: in the three prior years, thronging crowds had popped the hinges off the doors of the same store. And as it got closer to the 5 a.m. opening, the crowd was rowdy enough that a regional WalMart executive suggested that they not open the doors because police were not present, a suggestion that the store manager did not take.
It may seem counterproductive to spend so much money to contest a modest fine (the maximum penalty amount for a serious violation allowed under the law), but WalMart was actually trying to prevent a precedent from being established. Retail industry groups do not want the “government micromanaging how sales are conducted.” Two years after the WalMart stampede, OSHA issued Crowd Management Safety Guidelines for Retailers (PDF), which offered guidance for various crowd control measures, including suggestions for major changes to the first-come, first-serve way that many sales events are held.
In October, the National Retail Federation issued its own guidance in the form of Effective Crowd Management: Guidelines on how to maintain the safety and security of your customers, employees and store. Retailers can download a copy of the 22-page document, which discusses crowd control for planned events such as sales, promotions, and celebrity appearances, as well as for unplanned events such as the Occupy Wall Street (OWS) protests, comedic flash mobs, and organized criminal gangs.
Criminal shoplifting gangs are nothing new – retailers have long been plagued by groups of “grab and run” gangs that descend in numbers on a store and distract employees. What’s different today is the efficiency with which they can organize using mobile phones and social media. Although the National Retail Foundation has noted that media distorts the threat of the so-called criminal flash mobs. These are not to be confused with the much more benign and often entertaining flash mobs that occasionally stage improvisational musical or dance events in retail establishments. But despite whether they are amusing to the public or not, “spontaneous” unplanned events still pose a crowd control and security challenge to the workers.