Archive for April, 2012

Mental Illness in the Cockpit

Monday, April 9th, 2012

Clayton Osbon, 49, served as a pilot for Jet Blue Airlines for 12 years. On March 27 during Flight 191 from New York to Las Vegas, he suddenly began raving about terrorists and started pushing buttons and flipping switches in the cockpit, all the while telling air traffic controllers to shut up. His co-pilot had the presence of mind to suggest Osbon, the flight captain, go to the bathroom. When Osbon did, the co-pilot and another JetBlue pilot on board locked him out of the cockpit. Osbon started banging on the door and had to be subdued by passengers on the flight.
Osbon is now charged with interfering with a flight crew – an intriguing conundrum, as he was head of the flight crew with which he interfered. Osbon had passed a physical a few months prior to the incident, although it is unlikely that a detailed mental health evaluation was part of that physical.
Osbon’s friends have stated that he has no history of mental illness and had exhibited no symptoms that would have foretold the bizarre behavior on flight 191. It appears that with no warning signs, Osbon simply snapped, putting the passengers and crew at immediate risk.
(Mental) Fitness for Duty
This incident raises important issues about mental health and fitness for duty, especially in jobs which involve not just the well-being of a single worker, but the general public as well. A couple of years ago we blogged the saga of Bryan Griffin, a pilot for Quantas Airlines who had “uncontrollable urges” to crash airplanes. While he never actually followed through on his death wish, he continued to fly for about three years, while suffering from this obvious mental health problem. Quantas chose to risk disaster rather than remove Griffin from his pilot duties. Ironically, thirty years later he was awarded over $200K in disability pay for the stress of flying while he was mentally vulnerable, a ruling which left Quantas – and the rest of us – shaking our heads in disbelief.
In the months ahead we will learn more about Osbon’s sudden breakdown, including whether there were subtle indications that something was wrong. But at the heart of this story is the mystery of mental illness itself. While significant advances have been made in both the diagnosis and treatment of mental disabilities, much remains unknown. The Federal Aviation Authority has issued guidance on the use of anti-depressants for pilots, even while admitting that the science is tentative and subject to change. Pilots who are placed on anti-depressants are not allowed to fly for one year; it is reasonable to assume that Osbon will not return to the cockpit for at least a year, perhaps more.
The Paradox of Mental Illness
Even as unprecedented advances have been made in the treatment of mental illness, pervasive prejudice still remains. Individuals seeking care are often stigmatized; there is considerable public pressure for individuals to suppress symptoms and avoid treatment. Insurance coverage for treatment may be spotty, and for those without insurance, the emergency room is usually the only treatment option. In the above referenced guidance, the FAA estimates that about ten percent of the population suffers from depression, with the majority of these people working, raising families, driving motor vehicles and even flying airplanes.
Osbon’s case illustrates the difficulty in trying to establish viable policies on mental fitness for duty. As my southern friends would say, it’s like trying to nail Jello to a tree. We are reminded that just getting out of bed and heading off to work – let alone boarding an airplane – is an act of faith. We trust other drivers on the road to stay in their lanes, just as we assume that the pilot of our aircraft is rational, detail-oriented and totally focused on the job at hand. We as individuals may be a bit distracted, but everyone else is locked into what they are supposed to be doing. That’s not just a leap of faith, that’s an Evel Knievel rocket across the Snake River Canyon.

OSHA: Is Your Safety Incentive Program an Act of Discrimination?

Thursday, April 5th, 2012

Under the general heading of whistleblowing protection, OSHA has raised concerns about a number of common industry practices designed to lower the cost of workers compensation. Policies such as employees reporting (or not reporting) injuries, disciplinary actions taken against workers filing comp claims, and even safety incentive programs, may discriminate against employees who have been injured. And if discrimination can be proven, employers are at risk for major penalties.
Richard Fairfax, Deputy Assistant Secretary for OSHA, has distributed a memo alerting his regional staff to potential discrimation against injured employees. Now that his staff has been alerted, employers would do well to educate themselves about the issues.
Fairfax’s memo identifies four potential areas of discrimination. We’ll analyze them one at a time:
Taking disciplinary action against injured employees might involve discrimination
Fairfax points out that an employee’s reporting of a claim is a protected act. If injured employees are disciplined every time an injury is reported, this would be a clear case of discrimination. If, on the other hand, the discipline was triggered by specific violation of safety rules, employers could and should document the violation; keep in mind that this type of documentation must be done in all situations, not just where an employee is injured. It is also worth noting that comp, being a no-fault system, would in most instances still pay benefits to injured employees despite the safety violation.
Penalizing injured employees for late reporting of an injury might involve discrimination
LynchRyan encourages employers to require prompt reporting of all injuries; the existence of this type of policy is not in itself discriminatory. However, OSHA will review the application of disciplinary actions on a case-by-case basis, considering such factors as whether the employee’s deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee acted reasonably, and whether the discipline imposed is proportionate to the violation. In this and other related matters, one shoe does not fit all!
Penalizing injured workers who violate safety rules might involve discrimination
OSHA recognizes the need to enforce legitimate workplace safety rules. However, these rules need to be specific and they need to be enforced and documented on a regular basis, not just when someone reports an injury. For example, safety rules that employees “maintain situational awareness” or “work carefully” are inherently vague and offer the potential for abuse. Employers must be prepared to document that injured workers are not singled out for attention in this area.
Some performance incentive programs might involve discrimination
Many employers reward their workers for injury-free workdays. For example, if no injuries are reported for a 30 day period, workers might be eligible for a raffle or might enjoy a pizza lunch. OSHA implies that these practices might by their very nature stifle the reporting of injuries and thus violate OSHA standards. For example, an injured worker might decide not to report an injury in order to keep the clean record intact. Because the reporting of an injury is a protected act, the employer is vulnerable to charges of discrimination, even though the employee made the decision not to report the incident.
OSHA recommends that safety incentive programs focus not on reported injuries but on safety initiatives: for example, rewarding a crew for completing a safety training program or for identifying and correcting workplace hazards.
Best Practices
In view of OSHA’s stance in the area of safety incentive and disincentive programs, employers need to make sure their policies do not discriminate. That means:
1. Be careful to document specific safety violations involving injured workers
2. Before disciplining an injured worker for a late report, examine the circumstances carefully
3. In disciplining an injured worker for violating safety rules, be very specific and document the violations in writing
4. Review any safety incentive programs for the unintended effect of stifling the reporting of injuries; if your program operates in this manner, consider revising it to address OSHA’s concerns
Prompt reporting, discipline for safety violations and incentive programs can be useful tools in a comprehensive approach to a safe workplace. Like all tools, they can be misused and abused. OSHA has made it quite clear that the rules themselves might not be sufficient and, in some cases, they might be illegal. Claimant attorneys will surely file the Fairfax memo in their tool box for pursuing claims against employers. Prudent managers should take their own notes and adjust current programs accordingly.

This week’s risk roundup

Wednesday, April 4th, 2012

Ken Faulkenberry of AAAMP Blog hosts the latest risk-related roundup: Cavalcade of Risk #154 – Healthcare Mandate Edition. Check it out!

100 Years of Workers Comp

Tuesday, April 3rd, 2012

vintage photo of ambulance and injured worker
We’re happy to bring you this 12-minute, must-watch video commemorating the 100th Anniversary of Workers Comp. The video highlights progress in worker safety, treatment of injured workers and risk management in the past 100 years. In addition to telling the history of comp, it also features three visionary women who were instrumental in furthering health and safety of workers…one of whom witnessed the Triangle Shirtwaist fire. Until this clip, I did not realize the strong role that women played in this history.
Kudos go to Sedgwick as well as to our colleague and friend Peter Rousmaniere. who wrote the script.
Here’s some additional information about the women highlighted in the video clip:
Crystal Eastman
Frances Perkins
Alice Hamilton MD

New York Comp Assessments: The High Cost of Friction

Monday, April 2nd, 2012

In the 2010 Oregon rankings for the cost of comp insurance, New York comes in 13th, with an average rate of $2.34 per $100 of payroll. That does not sound too bad, until you factor in the extraordinary 20.2 percent assessment that is tacked onto premiums. ** This assessment is double that of the nearest state (Minnesota at 8.9 percent) and nearly five times the average among states. When you combine the already high rates for coverage with the assessment, New York ends up near top of high cost states.
Quoting research from the Workers Comp Policy Institute (WCPI), Risk & Insurance Magazine identifies three major components in the assessment:
– the Second Injury Fund, accounting for half the total
– the Reopened Case Fund that covers claims reopened after more than 7 years
– the Workers Compensation Board, which oversees comp in NY
Recent reforms may eventually reduce the impact of the first two cost drivers, but there is no end in sight for the third. New York operates a huge – and largely redundant – bureaucracy to administer comp claims. Where other states empower insurance companies to make decisions on individual claims, with the state involved only in disputes, New York is involved in every step of every claim. The Board has over 300,000 hearings per year, overseen by 97 judges. The system generates 31 million forms annually, all of which are scanned and saved! Stenographers document every proceeding: a well-intentioned effort to pilot the cost-saving use of video recording devices met with ferocious opposition in the state legislature. The Board employs over 1,300 people; as a point of reference, the Massachusetts DIA, in a state with one third the number of workers, has only 167 employees.
The high cost of insurance might be more tolerable if injured workers were the primary beneficiaries, but this is not the case. The maximum weekly benefit in New York is only $740, which might support a frugal worker in upstate New York, but it will not buy much in the five boroughs. By comparison, Illinois – ranked number 3 for cost – has a maximum wage benefit of $1,288, while MA, ranked 46th, pays up to $1,136.00.
New York is stuck in an archaic system that is fiercely defended by the stakeholders who benefit from its inefficiencies. If only this same energy and commitment were devoted to the protection of disabled workers in the Empire State. Surely, that would be a system worth emulating.
**We heard from our friends involved with the Oregon ranking study, who provided the following clarification:
The Oregon WC Rate Ranking study does include state assessment rates in our index rate computation. We ask our state respondents to provide the rates that are assessed as a percentage of premiums. The NY rating bureau provided us that information in 2010, and there was a 14.2% factor included in the study index rate for NY. Apparently the rate has increased since that time, and the 2012 index rates would incorporate that information in our next study, due out this fall.
Unfortunately assessments are an area that does not lend itself to straightforward comparison. States use different terminology (assessment , surcharge, tax, etc), have different bases for assessment, and fund different functions through this mechanism. So there is plenty of room for different interpretations when looking at the data, depending on where the lines are drawn for inclusion or exclusion.