All of us at Lynch Ryan hope you are enjoying the holiday season. As our year end wrap-up, we are revisiting some of our popular posts, as indicated by post clicks. Thanks for your interest and support in 2011, and we’ll see you around the bend!
Top 20 posts in 2011
Have you protected your employees from this seasonal peril?
Medical Marijuana: Walmart Wins! (Walmart Loses)
Cool work safety tool from WorkSafeBC – “What’s wrong with this photo?”
John T. Dibble’s Sympathetic Ear
Dangerous jobs: window washing at extreme heights
Health Wonk Review: the heatwave edition
The wacky world of workers comp
Managing Chronic Pain, Revisited
Health Wonk Review: Stormy Weather
Social media and workers comp
Independent Contractors in Pennsylvania
Experience Modification Alert: NCCI Changing the Rules
Are nurses and health care workers facing more on-the-job violence?
Low clearance: truckers, this one is for you
The “here’s a guy doing stupid things” safety photo genre
The Not-So-Hidden Cost of Obesity
Record number of grain bin fatalities in 2010; OSHA cites employers
NCCI suggests a “precarious outlook prevails” for the workers comp market
Medical Marijuana in the Workplace: Dude, Lock Me Out!
Managing Chronic Pain
All time greatest hits
We’ve been blogging for more than 8 years, but our stat counter has only been tracking for about half that time. In that time, we have recorded 1,356,748 visits. Below, we’ve posted the all-time favorites over the 4+ years we’ve been tracking, along with the number of visits to each post. There are no duplicates with the above list. Since about 85% of all visits come from search engines, the list gives you a pretty good window into what types of things people are searching on for worker’s comp topics.
26,766 – You’re fired! Should you terminate an employee who is on workers compensation?
21,138 – Independent Contractor or Employee?
18,180 – Carpal Tunnel Syndrome: Who Should Pay?
11,100 – The history of workers compensation
7,607 – Can You Terminate an Employee on Workers Comp?
6,607 – Exception to the “going and coming” rule: operating premises
6,309 – The AIG Saga: Joe Cassano’s Performance-Based Compensation
5,349 – Cavalcade of Risk #113 and a scary work scenario
5,320 – Pre-existing conditions and second injuries
5,258 – Heart attacks on the job: are they covered by workers compensation?
4,922 – Workers comp costs and benefits – Current state rankings
4,726 – Controversial Canadian workplace safety ads unveiled
4,550 – Workers’ compensation reform in a New York minute
3,825 – You think your job is tough?
3,693 – Measuring Success 2
3,671 – Poppy Seeds and Drug Testing: False Positives?
3,596 – Underwriting for Dummies?
3,540 = The Comp Success Story in Massachusetts: Who Pays?
3,484 – The Cost of Volunteers
2,870 – Swine Flu Meets Workers Comp
Archive for December, 2011
All of us at Lynch Ryan hope you are enjoying the holiday season. As our year end wrap-up, we are revisiting some of our popular posts, as indicated by post clicks. Thanks for your interest and support in 2011, and we’ll see you around the bend!
Gary Schwitzer makes his hosting debut with Unwrapping early presents, wrapping up ’11 Health Wonk Review series. Gary is the publisher of the excellent HealthNewsReview.org and its associated Health News Watchdog blog – take a look around while you are there.
Absence Management – The Disability Management Employers Coalition and Liberty Mutual recently released a set of best practice for absence management and easing the transition back to work after a disability leave. Download a whitepaper on Best Practices in Return to Work or view Taming the Intermittent Beast, a one-hour webinar on managing intermittent leave.
Support a good guy – Joe Paduda explains why you should join the Friends of Sandy Blunt on LinkedIn.
Desperate Housewives – Reality just got a little harsher for a would-be reality TV star caught in a huge California workers comp scam, She and her husband were charged with $30 million in premium fraud. “The couple gained notoriety in 2010 after fraud investigators raided several properties they owned and found luxury cars including a Bentley, two Ferraris, $500,000 in jewelry and $51,000 in cash. They also found an application for Kile to appear on the television show.”
Going and coming – Injuries that occur while traveling to and from work generally are not compensable. There are several common exceptions to this “going and coming” rule – if an employer provides transportation, if traveling is part of the normal course and scope of an employee’s job (such as a salesperson), or if the employee is on a “special mission” for the employer. Risk and Insurance reports on a recent benefit denial by the New Jersey Superior Court, Appellate Division in a case where a company president was invoking the “special mission” exception for an injury that occurred during an early trip to work for a special meeting. In denying the appeal, the court reasoned that the exception did not apply because the president was not required to be away from the restaurant’s usual place of business and he did not have “identifiable time and space limits on his employment.”
Up in smoke – Roberto Ceniceros posts about a denied claim involving a landscaper injured after a fall from a tree. Ceniceros notes that, “A urine sample taken at the hospital the day after the Tennessee man fell showed he had an intoxicant level 50 times beyond the threshold for a positive result, leading a doctor to describe him as a chronic pot user.” The court concluded that while the employee was not guilty of willful misconduct, his intoxication was a proximate cause of the injuries.
Hope for PTSD relief? – Wired has an interesting article on a how the Navy is testing neck injections to relieve PTSD. The unorthodox procedure, which is called stellate-ganglion block (SGB), has secured immediate relief for some PTSD sufferers.
NYWCB Web change – Effective December 20, the New York State Workers’ Compensation Board (WCB) updated its website to use the standard “ny.gov” domain naming convention – the new web address is www.wcb.ny.gov. WorkersCompensation.com has more detail about related email changes.
On the lighter side: Holiday roundup
In honor of the holiday season, we’ve put together a grab bag of some fun holiday links. We wish all our friends the best for the season!
- Risk Managers Find Santa Exposed, Urge $1 Billion Coverage Plan
- Straight No Chaser: The 12 Days of Christmas
- I Got a Feeling, Hanukkah style
- Portable North Pole – Create a personalized video from Santa Claus for your children, friends, family members or colleagues
- Make a Flake
- Singing Christmas Hedgehogs – a cute interactive feature which shows that the holiday season is hard on hedgehogs!
- Tesla Christmas Tree – impressive, but don’t try this at home!
- Gallery of Unfortunate Christmas Cards
- Don’t Sue Me Santa Clause
Raymond Letellier co-founded a steel fabrication company in New Hampshire called Steelelements. The company suffered a major fire in March of 2007. They rebuilt, although the cost of the rebuilding, managed by Letellier’s partner, exceeded the budget. In October 2009 the company went out of business. Throughout the long, downward spiral, Letellier suffered from stress, hypertension and depression. Soon after the company’s failure, he filed for personal and business bankruptcy. At the same time, he applied for workers comp benefits.
Letellier’s claim was initially denied, then accepted for the medical costs only, and then denied again. Eventually the claim reached the New Hampshire Supreme Court, where a deeply divided court (3 to 2) ruled against Letellier. The court reasoned that the failure of the company was akin to a personnel action: workers comp does not cover such employer actions as discipline, termination and lay off. In closing the business, Letellier subjected himself – and everyone else – to a lay off. – a non-compensable personnel action.
Two dissenting judges pointed out that the majority focused almost exclusively on the ultimate failure of the company, the lay off itself. But the extraordinary and relentless stressors in Letellier’s life began with the fire and continued throughout the struggle to keep the over-leveraged company in business. This is not the stress of a single event, but the cumulation of stress over months and years. The dissenters noted that Letellier’s commute to the factory was 100 miles, so he often slept in his office, where ever-pending doom haunted his every waking moment and his troubled dreams. They opined that his multiple health issues were predominantly caused by work.
Letellier, once the proud owner of a successful business, finds himself in the same situation as laid off workers across America. He is on his own and out of luck.
We will set aside for the moment what may be Letellier’s biggest mistake: instead of trying to make things that people can actually use, he should have pursued a career in finance, where he could have sold worthless mortgages, watched his company flounder, and then be rescued by tax-payer bailout, all the while preserving a superbly inflated salary. That’s an All-American story of a different sort, albeit fodder for another day.
From time to time, we like to take a look at the wizardry that is under development in rehabilitative and assistive technologies. What used to be on the order of Flash Gordon type fantasy is now reality within reach. In out first clip, Toyota Unveils Quartet of Healthcare Robots. MedGadget says these four robots are expected to be production ready in 2013. Three are walking assist and balance training robots that would help in patient rehab. The fourth is a patient transfer assist – something we see as very valuable in helping to prevent health care worker injuries.
And while on the topic of lifting aids, we’d be remiss if we didn’t include RIBA, a versatile if somewhat surreal patient care robot.
Finally, we have a Robotic Man’s Best Friend to Guide the Blind. Yes, it may cost a bit more, but think of the savings in dog food. All joking aside, it’s exciting to see these technological advances moving closer to the practical reality of helping people to overcome injuries and disabilities.
Our favorite “down under” blogger Russell Chatswood has posted the latest and greatest issue of Cavalcade of Risk at his Chatswood moneyblog. Now despite the mild weather we are enjoying right now in the northeastern U.S., we are envious of Russell’s blooming garden, as evidenced by the photos in the post. And beyond the flora and fauna, there is your garden variety biweekly grab bag of risk-related posts from around the blogosphere. Check it out.
Ironically, when we first learned about potential trouble with a three-decker fire in Worcester last week, we were in the process of gathering links about a recent NFPA report showing that firefighter injuries are down eight percent from 2009; in addition, we had come upon another Arizona study that showed that more firefighters are injured while engaged in training and exercise than in fighting fires. We were tracking NFPA stats on injuries by type of duty and by nature of injury.
But then we heard about the new tragedy in Worcester where 17-year veteran firefighter John Davies lost his life in a three alarm fire. He and his partner were searching the tenement’s third floor for possible trapped people when a wall collapsed on Davies. His partner Brian Carroll fell through to the basement, and was subsequently rescued, surviving his injuries.
Subsequent news reports of the fire say that no body has been found in the rubble. The resident that was reported missing is still missing, and authorities are searching for that person as a witness. Unsurprisingly, the home that burnt had 30 code violations and the owner is facing charges.
A firefighter death is a difficult and tragic event whenever and where ever they occur. About 100 firefighters die in the line of duty each year. FEMA notes that “Although the number of firefighter fatalities has steadily decreased over the past 20 years, the incidence of firefighter fatalities per 100,000 incidents has actually risen. Despite a downward dip in the early 1990’s, the level of firefighter fatalities is back up to the same levels experienced in the 1980’s.” In 2011 to date, 83 firefighters have died in the line of duty.
The death of firefighter Davies is a particularly difficult loss. He was to be married on New Year’s Eve. He was the father of three sons, one of whom is returning from an Afghanistan deployment to attend his Dad’s funeral. But occurring as it did in December, a few short days after the 12-year anniversary of the Worcester Cold Storage building fire that killed six firefighters, this is a particularly painful loss for the Worcester firefighting community. This grievous loss is still fresh in the minds of many locals. Both Davies and his partner were among the firefighters that responded to that fire. Both Davies and his partner were stationed at Franklin Street Station, a new station and memorial which was built at the site of the former Cold Storage warehouse.
Funeral ceremonies for John Davies are scheduled for this Thursday. It is being reported that as many as 12,000 firefighters from across the country are expected.
Firefighting may indeed be getting safer overall, but this week, statistics pale in the face of gritty reality. As long as people are trapped in burning buildings, firefighters like John Davies will be losing their lives. And as insignificant a response as it is, we thank them.
Today we examine two court cases that trouble the dreams of claims adjusters: workers with severe injuries whose use of pain medication leads to their deaths. In one case, the accidental overdose is deemed compensable; in the other, the claim is denied. The devil, of course, is in the details.
Compensable Death In Tennessee
In November 2008, Charles Kilburn was severely injured in an auto accident while in the course and scope of employment. Fractures to his back and neck resulted in permanent total disability. Following surgeries, he still experienced severe pain. A pain specialist prescribed oxycodone. Fourteen months after the accident, Kilburn died of an accidental overdose. His widow filed for death benefits.
Kilburn’s employer believed that the death was the result of negligence, which would break the chain of causality with the original injury. Kilburn had ignored his doctor’s cautions to limit his intake of oxycontin to a specific maximum dose. The Supreme Court of Tennessee determined that the severe pain experienced by Kilburn might result in diminished faculties, which in turn might lead to taking more medicine than was prescribed. In their view, the chain of causality remained intact at Kilburn’s death and thus his widow was entitled to benefits.
Denial in Ohio
In Parker v Honda of America, the initial circumstances are similar, but the apparent “diminished faculties” lead to a very different result. John Parker suffered a severe back injury at work in 1988. He was prescribed OxyContin in March 1999. He eventually became addicted to the drug, along with cocaine, percocet and heroin. In March of 2006 he was found dead, a syringe in his arm, a spoon with a lethal dose of melted OxyContin at his side. In this case, the Ohio Court of Appeals found that his melting and injecting the drug, combined with his documented abuse of street drugs, broke the chain of causation linking the death to the workplace injury.
The court rejected his widow’s argument that the drug abuse was the result of a “severe disturbance of mind” and thus unintentional. It’s worth noting that if Parker had deliberately overdosed as an explicit act of suicide, the death may have been deemed compensable. But because the overdose was an acccident, workers comp benefits were denied.
The Big (and Not-So-Pretty) Picture
Pain is a constant factor in work-related injuries. The control of pain is a complex and widely misunderstood aspect of claims management. Because we live in a culture that relies heavily on powerful medications to control pain, and because the prescribing of these powerful drugs is neither well managed nor well monitored, we will see more and more cases of drug overdoses wending their way through the workers comp system. Some cases will be compensable, others will not. One thing is certain: the challenges of managing these situations will continue to haunt key players in the comp system: the doctors who prescribe the drugs, the adjusters who authorize bill payment, the families who suffer the consequences of loved ones in severe discomfort, and above all, the injured workers, whose every waking moment is compromised and consumed by a pain that just won’t go away.
After a Thanksgiving hiatus, Health Wonk Review is back with your biweekly view of what the healthcare policy wonk’s have been blogging about. Brad Wright hosts Health Wonk Review: Holiday Shopping Guide at Wright on Health.
Workers Comp Networks – At Managed Care Matters, Joe Paduda has been front and center covering the matter of Aetna’s exit from workers comp and his post today, Aetna part 2. Also related, his post about Where work comp networks are headed.
UBB Report followup – In followup to yesterday’s post, here is a link to the MSHA Upper Big Branch Investigation Report – it’s a detailed account, including transcripts of interviews.
Bloodborne Pathogens – According to the CDC, about 385,000 sharps-related injuries occur annually among health care workers in hospitals, and the average risk of bloodborne infection following one of these injuries is approximately 1.8%. The NIOSH Science Blog posts about needlestick punctures and bloodborne pathogens, highlighting the film Puncture which is about the personal injury case of Vinessa Shaw, a nurse who contracts AIDS after an accidental stick. The post calls attention to the NIOSH injury prevention initiative, The Stop Sticks Campaign. which is aimed at clinical and nonclinical health care workers and health care administrators in hospitals, doctor’s offices, nursing homes, and home health care agencies.
Pole Dancing: – A Georgia Court recently ruled that Pole Dancers are not independent contractors. “The Judge found the club exercised control over the dancers because the amounts charged by the dancers for certain types of dances were set by the club. The club also established what amounts had to be paid by the dancers to the DJ and to other employees of the club each day at the conclusion of their shift. The club could also fine or fire the dancer for not coming to work or being late. The Judge also noted that every other FLSA case brought by exotic dancers from Alaska to Florida had concluded they were ’employees’, and not ‘independent contractors’.” Note: This is not the first pole dancing issue we’ve covered. My colleague posted about another claim with a pole dancing angle last May. This should lead to some interesting search results in our logs – not to mention some disappointed searchers.
Brain Trauma – the New York Times has a 3-part series on 28-year old professional hockey player Derek Boogard’s death due to repeated head trauma, chronic pain and a deadly drug addiction. Read part 1 A Boy learns to Brawl, Part 2 Blood on the Ice and Part 3 A Brain ‘Going Bad’. There is also a related video: An Enforcer’s Story. For a good resource on preventing, treating and living with traumatic brain injury, we point you to Brainline.org.
Related – In doing our rounds, we note that Dave DePaolo has an excellent post on Professional Sports and the Relevancy of Comp.
In the I-guess-it-doesn’t-go-without-saying department – Slightly off track here, but Bob Wilson has a rather unusual warning that we are passing along as a public service: Beware the Door to Door Breast Examiner.
“Every time Massey sent miners into the UBB Mine, Massey put those miners’ lives at risk” – Joe Main, assistant labor secretary for mine safety and health and chief of MSHA
A scathing report issued by the U.S. Mine Safety and Health Administration yesterday put the blame for the coal mining disaster that claimed 29 lives on “a workplace culture that valued production over safety.” The report characterized the coal mining disaster as “entirely preventable”, one that could have been avoided if long-standing and well-known safety standards had been followed. The report documents flagrant safety violations, routine coverups of violations, and intimidation of workers to keep them from reporting safety hazards and violations.
Ken Ward, who has covered the Upper Big Branch Mine Disaster with painstaking detail in The Charleston Gazette, reports:
“Outlining flagrant safety violations and a practice of trying to cover up major hazards, the U.S. Mine Safety and Health Administration officials cited mine operator Performance Coal Co. with 369 violations — including 12 that directly contributed to the disaster — and levied more than $10.8 million in fines.
Both the fines and the settlement are by far the largest ever in a case over worker safety in the mining industry.”
In addition, federal prosecutors announced a $200 million settlement with Alpha Natural Resources, the firm that bought Massey Energy. The settlement calls for $80 million to be directed to enhanced safety at all the company’s underground mines, as well as a dedicated training center and a $48 million trust to fund mine safety research at academic institutions. The settlement also includes $46.5 million in restitution for the families of the disaster victims.
Key to the deal, though, is that — unlike a previous deal with Massey following the Aracoma Mine fire — the Justice Department is not agreeing to never bring charges against any individual executives, officers or employees of Massey or Performance. Goodwin said resolution of issues with Alpha allows prosecutors to focus their resources on potential cases against such individuals.
In addition to his newspaper reports, Ward covers related events at his Coal Tattoo blog. Of particular note is a post in which he talks more about the settlement and how U.S. Attorney’s criminal probe will continue. He quotes one US attorney as saying, “If anything, certain aspects of our investigation are going into high gear.”
All eyes will be on Alpha going forward. Their buyout occurred last June despite intense opposition, questions about events, and allegations of secret deals revolving around the $8.5 billion sale. Shortly after this deal, Alpha joined industry opposition to tougher safety rules.
The report was issued on the 104th anniversary of the worst mining disaster in U.S. history – the coal mining explosions at Monongah W.V. that claimed 362 lives. While mining safety has improved in the decades since, yesterday’s report demonstrates there are many more improvements that could and must occur to protect workers.
Related prior posts
- Massey Energy Mine Disaster: The Soul of a Bean Counter
- Mining safety: not just for China
- Cold comfort: Crandall Canyon survivors and workers comp
- A bad way to make a living
- The sad, quiet death of Bud Morris – father, husband, motorcycle aficionado
- The feds and Phantom Miners
- Sago mining disaster and workers comp: newly formed insurer to pay benefits
- Sago mining deaths: a sorry way to begin the new year
Florida is famous for at least three things: citrus fruit, sunshine and pain pills. The citrus and sunshine are pretty much permanent, but it appears that the easy dispensing of opioids may be coming to an end. HB 7095, the state’s new law regulating opioid distribution, bans doctor dispensing of drugs and subjects pharmacies to inspection of prescription records. The state is determined to put an end to its reputation as the pill mall of America.
Now CVS, the giant pharmacy concern with over 700 stores in Florida, has stepped into the breach. They have notified a small number of doctors that they will no longer honor their prescriptions for opioids. CVS has analyzed prescription data and determined that these doctors are over-prescribing. As with so many issues involving insurance coverage, the data goes into a black box and a determination comes out the far end. What happens in the box remains a mystery. Our esteemed colleague, Joe Paduda, has strongly endorsed the CVS effort at his Managed Care Matters blog.
Feeling the Pain
It should come as no surprise that a key stakeholder in the use of opioids, the Florida Academy of Pain Medicine, is crying foul. The academy points out that the criteria for blackballing doctors is unknown and that doctors – and only doctors – should be allowed to determine who needs pain killers and for how long. As Jeffrey Zipper, chair of the Academy’s Medical Affairs committee puts it, “I don’t want to be subject to the scrutiny of CVS.”
Given the immense dimensions of the prescription drug problem in Florida, it’s clear that some doctors have long been abusing their power to prescribe medications. They need scrutiny and they need to be sanctioned. While CVS and other pharmacies are a key part of the distribution network, their leverage in this area is somewhat limited. To begin with, other pharmacies may choose to pick up the rejected business: we’re talking big bucks. In addition, CVS at some point will have to disclose the criteria used for rejecting the prescriptions written by certain doctors. Once this happens, doctors may attempt to manipulate their prescription practices to avoid detection and sanction.
In attempting to get its arms around this formidable problem, the State of Florida has reframed the question about who controls controlled substances. While it’s apparent that doctors no longer have sole discretion in the area, it remains to be seen how effective and how equitable the control exerted by pharmacies can be. The Insider will monitor with great interest this important experiment in substance abuse control.