John Pike may be the most (in)famous campus cop in America. He was video taped on November 18, 2011, at the University of California, Davis, spraying seated demonstrators with pepper spray. His demeanor was remarkably casual, as if he were spraying bushes for an infestation of bugs. He is now the subject of a meme that has spread across the internet, with images of Pike spraying Christina, in the famous painting by Andrew Wyeth, among other things. While we live in a culture where many are famous for being famous (the Kardashians come to mind), Pike is famous for one moment of his policing career.
An internal investigation by the university recommended that Pike be demoted. New police chief Michael Carmichael – the original chief had resigned – rejected that recommendation, deciding, in July of 2012, to fire Pike. There were a number of problems with Pike’s behaviour: he used an unapproved pepper spray that was three times stronger than the university’s preferred brand and he violated university protocol by spraying people in the face at close range.
Enter Workers Comp
Pike has filed a stress claim under the California workers comp statute. The state used to be famous for its lenient criteria for stress claims: only 10 percent of the stress had to be work related for a claim to be compensable. (How could work not comprise at least 10 percent of what is wrong in one’s life?) Over time, California tightened up the compensability guidelines, which now total six (as outlined by the Kenton Koszdin Law Office):
1.The employment must be six months or more. Check
2.The employee must have a psychiatric condition that is listed in DSM IV. Probably a check.
3.The employee must prove that the actual events of employment are the predominant cause of the psychiatric condition (51% or more). Definitely a check.
4.A psychiatric condition that is substantially caused (35%–45%) by good faith, non discriminatory personnel action(s) is not compensable as a work-related injury. Examples of good faith personnel actions are criticism of the employee’s work or attendance, change in work assignments, and decision about raises or promotion. The employer has the burden of proof on this issue. DNA.
5.A psychiatric injury that is caused by the litigation process is not compensable. Examples of psychiatric injury caused by the litigation process are an employees reaction to the denial of their claim, dealing with an abusive claims adjuster, or having their benefits terminated.DNA
6.A stress claim or mental–mental psychiatric injury claim filed after termination or notice of termination is not compensable unless the employer know of the injury or medical records of treatment for the psychiatric dated prior to the termination exist. He filed on June 10, presumably before the notice of termination.
A Mental-Mental Claim
Pike must prove compensability of the notoriously difficult “mental-mental” claim. In many states, there must be a physical injury that precedes the mental disability. In this case, the physical injury was limited to the protesters; the university settled their claims for $1 million. In the immediate aftermath of the incident, Pike in his new-found infamy has been subject to harassment, threats and humiliation. He is the principal subject of a meme that has spread throughout the internet. Stressful? Certainly. Compensable? Possibly, but by no means a certainty.
Pike’s former employer will try to show that he violated policy in spraying the students, including the use of an unapproved spray. Pike will undoubtedly try to show the ambiguity of the university’s policies, perhaps a lack of training specific to the circumstances he faced.
In the meantime, Pike has lost a job that paid in excess of $100,000 per year. He has achieved indelible fame for a single, ill-advised work-day decision. He is without a doubt suffering from work-related stress – stress of his own making – but the compensability of that stress is another matter altogether. We await the results of the August conference with great interest.
Archive for July, 2013
Pike’s Pique: The Stress of Behaving Badly
Monday, July 29th, 2013Fall protection at 1776 feet: One World Trade Center
Friday, July 26th, 2013Acrohphobes, take note: this post is about working at extreme heights!
We spotted a jaw dropping video in our Twitter feed the other day — an engineer climbing the spire at the top of the One World Trade Center, a dizzying 1,776 feet. It’s a promotional video for a fall protection firm called Rigid Lifelines. It led us to more dramatic video footage of the tower completion and an interesting case history behind the safety engineering challenge that the tower construction posed, which is depicted in a dedicated website, Safe at 1776.
“A symbolic reference to the year America signed the Declaration of Independence. With its spire attached, the new World Trade Center became the tallest building in the Western Hemisphere, and the third tallest building in the world. The 104-story super-scraper stands on the northwest corner of the 16-acre World Trade Center site, occupying the location of what used to be the original 6 World Trade Center.”
“To ensure the safety of workers who will perform routine maintenance atop the massive tower, builders, engineers, and the Port Authority partnered with Rigid Lifelines to design and supply 1,975 linear feet of total fall protection track, and the highest self-retracting lanyards in an occupied building. Rigid Lifelines designed two systems for the One World Trade Center building–a horizontal system for the rings and a vertical system for the spire. Each system was specifically designed to ensure that workers have 100 percent fall protection from the moment they leave the top floor to the moment they touch the flashing beacon light.”
We’re heartened to see this commitment to worker safety – see our prior entry You Think Your Job is Tough, which includes footage of a worker “free climbing” a 1,768 foot Antenna Tower. And on a related note, The high price for fast phones: Cell tower deaths, a Frontline and Pro Publica investigative video about cell tower worker deaths in a small industry with a death rate that is about 10 times the rate of construction. Accountability is hindered by the complex web of subcontractors on these jobs, allowing large network sponsors to deflect responsibility for fatalities.
These prior posts may also may be of interest:
- Safety Nets, Hard-Boiled Hard Hats & The Halfway to Hell Club: Safety Innovations in the Golden Gate Bridge Construction
- NY scaffolding: one miracle survivor saved by physics; others not so lucky
- Dangerous jobs: window washing at extreme heights
Biweekly Risk Roundup is posted: Cavalcade of Risk #188
Thursday, July 25th, 2013Nina Kallen hosts the 188th Cavalcade of Risk at Insurance Coverage Law in Massachusetts. It’s a varied roundup – Nina notes: “I was struck by their technical and detailed nature. I learned from the posts about the history of health insurance in China, how the MTA in New York City is planning for the next storm surge, and who serves on the Massachusetts Board of Registration in Pharmacy. ”
And while we’re on the topic of the Cavalcade, we extend appreciation the the Cavalcade’s founder and chief-cook-and-bottle-washer, Hank Stern of InsureBlog. We note that his colleague Bob Vineyard just received an honorable mention in the The 2013 National Underwriter Industry Elite Awards for the Life and Health insurance industry. Kudos, Bob!
IMEs in a New York Minute
Tuesday, July 23rd, 2013Back in 2009, we blogged an expose from the New York Times concerning the abuse of independent medical exams (IMEs) in New York. The article quoted 79 year old Dr. Hershel Samuels, who performed as many as 50 exams in a day. He filled out a checklist and let others write the reports. Did he read these reports? “I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”
Muckraking journalism apparently did not solve New York’s IME problem. Which brings us to orthopedist Michael Katz, who makes a pretty good living performing, among other things, about 1,000 IMEs a year for the state of New York. [Details can be found at the invaluable Workcompcentral (subscription required).] After examining an injured worker, Manuel Bermejo, Dr. Katz wrote up his findings. In testimony, he declared that he spent 10 to 20 minutes with Bermejo. Unfortunately for Dr. Katz, Bermejo secretly recorded the session, which lasted just four seconds shy of 2 minutes.
Tantrum in the Court
When presented evidence of the IME’s duration, Queens Supreme Court Judge Duane Hart went ballistic. “How do I stop carriers from putting people like Dr. Katz on the stand and causing the state to spend thousands and thousands of dollars trying a case and putting a lying witness on the stand?” Judge Hart referred the transcripts of the proceedings to a Queens administrative law judge for potential perjury action against Dr. Katz.
The judge’s rage is understandable: IMEs are a vital activity in workers comp: in theory, IMEs offer a fresh, objective look at a worker’s injuries to determine what, if anything, is wrong, the extent of the disability and the role work played in it. In an ideal world, the IME is dispassionate, with no vested interest in the ultimate determination of compensability.
Good Faith, Bad Faith, No Faith
Dr. Katz claims he has been set up by plaintiff attorneys, who believe he acts primarily to further the interests of insurance carriers. (Here is a link to a plaintiff attorney’s blog featured Dr. Katz and other alleged abusers of IMEs.) On the other hand, there are surely IME doctors who tend to find in favor of injured workers and are thus favored by plaintiff attorneys, .
The world of medicine is supposed to be driven by objective medical evidence, but doctors are hardly robots, evidence is in the eye of the beholder and what the doctor sees might well be influenced by political views, personal history and, yes, even financial considerations.
It is interesting to note that the Bermejo claim began in the workers comp system, where the benefits are limited to lost wages and medical costs. Because the injury involved a fall from heights, the claim also fell under New York’s unique – and understandably unreplicated – Scaffold Law. But the claim now involved literally millions of dollars: Bermejo was suing the hospital where he was treated for malpractice. It is this last suit that brought Dr. Katz into Judge Hart’s courtroom. The judge was hoping for an objective analysis of the claim in order to determine whether the hospital had really screwed up. Alas, he ended up with no faith whatsoever in the quickie IME performed in the proverbial New York minute.
Midsummer Health Wonkery, trucking, homicides, bad faith, wearable tech & more
Thursday, July 18th, 2013Health Wonk Review – Louise and Jay Norris have posted the newest
Health Wonk Review: A Midsummer Wonk’s Dream at Colorado Health Insurance Insider . This is a double-plus good issue because HWR is only posted monthly during the summer so wonks have unleashed their best posts. Plus, Louise always does an excellent job summarizing and hosting. Catch up with your health policy issues now – next issue isn’t until mid-August.
Obamacare – As long as we’re delving into health policy, we point you to Joe Paduda’s excellent series on health care reform. He is more than midway through his postings on Obamacare and Workers’ Comp (Part 1). Here are links to updates in the series: overview; Part 2: the impact of increased group and Medicaid insurance coverage; Part 3: More implications of increased covered; Part 4: Cost shifting, and Part 5: IPAB and ACOs.
Trucking – The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration announced new federal trucking regulations designed to reduce driver fatigue and improve safety for the motoring public. The rules, which took effect on July 1, 2013, retain the current 11-hour daily driving limit and 14-hour work day, but impose other restrictions: they limit the maximum average work week for truck drivers to 70 hours, a decrease from the current maximum of 82 hours. If the maximum 70 hours of driving within a week is reached, drivers may resume if they rest for 34 consecutive hours. Rules also require drivers to take a 30-minute break during the first eight hours of a shift.
Homicides – Taxicab drivers face one of the highest homicide rates of any occupation: 7.4 per 100,000 employed vs 0.37 for the general working population. New research from NIOSH examines the effectiveness of partitions and security cameras in reducing homicides among taxicab drivers. The study found a three times lower homicide rate in the cities where taxicabs use security cameras than the control cities and a seven times lower homicide rate when compared to the rates before installation of the cameras. There was no statistically significant difference in homicide rates for cities where the taxicabs used partitions compared with control cities.
Brave new world Does your organization have a “wearable tech” policy? Probably not, but you may need one in the not-too-distant future. HR expert Sharyn Lauby posts about What Google Glass Means for Workplace Policy. Google Glass is wearable computer that allows the wearer to take pictures, record video, get directions, send messages, share what they’re looking at and much more. There are many potential privacy-related issues – and for an employer, many workplace issues. If you aren’t up on the technology, see Google Glass: what you need to know. While Google says that these devices will be built to ethical standards so that you can tell when someone is recording, but hackers may have other ideas.
Obesity as a Disease and the ADA – Employment law attorney Eric B. Meyer says that despite the AMA’s recent declaration that obesity is a disease, the courts may not necessarily agree. He discusses a recent West Virginia Supreme Court ruling in a case involving a charge of disability discrimination for a termination. But Meyer cautions that despite the ruling, “employers should err on the side of caution and continue to provide reasonable accommodations to morbidly obese employees as well as those with other conditions that may arguably fall within the scope of the ADA.”
Guns & WC – In Lawyers, guns & money, Dave DePaolo takes a look at workers comp as it relates to shooting sports establishments. While gun demand is high and sales are skyrocketing, “the current boom in sales is being countered with a shortage in available workers’ compensation coverage.” He notes that the insurer reluctance seems to bear little relation to the industry’s loss experience, which is excellent.
Bad faith – Workers’ Comp & Bad Faith: Unacceptable Oversights – At PropertyCasualty360, Everette Lee Herndon offers an excellent overview on the issue of bad faith claims. While workers comp is the “exclusive remedy”, some states offer recourse in cases “When benefits are not properly (and promptly) rendered.” While not all states have “bad faith” provisions in the laws, those that do typically provide for penalties and fines while still retaining the exclusive remedy provision. Herndon draws lessons from the case of Romano v. Kroger/Sedgwick, invloving a claimant who had surgery for a shoulder and spine injury, and who subsequently contracted an MSRA infection and later died of conditions related to this infection.
“In May of this year, the state Workers’ Compensation Appeals Board (WCAB) referred Sedgwick CMS to the Division of Workers’ Compensation’s Audit Unit for “unreasonably delaying or denying treatment for a patient who was dying from an infection he contracted after undergoing surgery for a compensable work injury.
In the decision, Romano v. Kroger Co., the WCAB charged that Sedgwick demonstrated “blithe disregard for its legal and ethical obligations and a callous indifference to the catastrophic consequences of its delays, inaction and outright neglect.”
The WCAB upheld penalties imposed against Sedgwick CMS in the amount of the maximum penalty allowed by law–$10,000 for each of 11 instances of unreasonably delaying medical care.”
Herndon suggests that whether your state allows bad faith lawsuits or not, “the workers’ compensation claim should be handled in such a manner as to preclude any allegations of improper conduct.” He offers additional thoughts on how to avoid bad faith claims.
Low interest yields & P/C insurers – Strained investment returns are translating into property and casualty rate increases. The National Association of Insurance Commissioners puts the net yield for insurance carrier invested assets at an all-time low of 3.68%.
Coal mining – At Coal Tattoo, Ken Ward notes that a key MSHA rule related to Black Lung has been delayed again. In another matter, he points to a report about the November 2012 CONSOL Energy coal-slurry impoundment that took the life of miner Markel Koon. He notes that the report raises “… some serious questions about how well one of the nation’s largest coal producers managed a particularly dangerous sort of operation.”
Other noteworthy news
- 6th Circuit’s definition of “supervisor” under the NLRA has broad implications
- A wrong decision is better than indecision: Eight leadership lessons from Tony Soprano
- R.I. to Keep Assessment Rate for Workers’ Comp Insurers at 6.75%
- The Exploding Spark: Workplace Violence in an Infectious Disease Hospital–A Longitudinal Study
- Kansas schools that arm teachers may have trouble securing insurance
- ‘Wildfire’ Growth Of Freestanding ERs Raises Concerns About Cost
- WCRI: GA Physicians Continue to Dispense, But at Much Lower Prices After New Regulation
- Climate Change Altering Insurers’ Risk Assessment
- Study: 85% of Insurance Companies Have No Women in Top Positions
- How far do you have to go to accommodate a lifting restriction?
- OSHA Announces Outreach Campaign To Protect Health Care Workers From Hazards Causing Musculoskeletal Disorders
- For Now, Fed Elects Not to Apply Bank-Centric Rules to Insurers
- US Department of Labor and US Postal Service agree to terms on improving worker safety at postal facilities
Cavalcade of Risk – Bob Wilson’s hosting debut
Friday, July 12th, 2013Yay – our friend Bob Wilson has joined the Cavalcade of Risk crew and he is hosting his first issue at Cavalcade of Risk #187 at workerscompensation.com. Bob is an early web pioneer – he had the foresight to buy the best work comp URL ever and to build a valuable service – starting back when everyone in insurance was still saying “I’m not sure about this new-fangled web thing.” In addition to being a visionary, he’s also an awfully nice guy – as anyone who’s talked to him on the conference circuit knows.
When you stop by to visit his blog, make sure you check out From Bob’s Cluttered Desk – sometimes serious, often hilarious, always an enjoyable read.
Do you have a 90-second plan for your organization?
Thursday, July 11th, 2013On July 6, Samsung Executive and Asiana Airlines passenger David Eun posted a photo via Twitter, saying “I just crash landed at SFO. Most everyone seems fine. I’m OK. Surreal…”
Within seconds, horrified witness reports were being posted and shared on Twitter and other social media, reporters online kicked into gear finding out info about the airline and the flight. About 20-30 minutes later, TV began reporting on the event, cautiously taking much of their information from the social media reports. This event, like many other recent events, demonstrates how breaking news now occurs in the age of ubiquitous camera phones and social media.
Kudos to an industry that until this past weekend had logged only one commercial fatality since 2001. Sadly, two young Chinese students perished in this crash and dozens of other passengers sustained injuries, some quite serious and potentially life-changing. Nevertheless, it was remarkable that so many people survived this crash. Among other observations, one theme on social media was “hug an engineer today” in appreciation for their contributions to improving air travel safety.
Safety Officer first and foremost
One of the noteworthy stories that emerged was that of Lee Yoon-hye, the flight attendant who was last off the plane. You can read a story of her initial reports of the evacuation. Despite the ordeal, she was so composed that reporters did not realize she had been on the plane, they thought she was stationed as airport staff. She proceeded to do a press conference (in Korean, but just click to marvel at her composure) and only later at the hospital did she realize she had broken her tailbone. (See also: Harrowing tales of rescue after crash of Asiana Flight 214.)
In pop culture over the years, the job of the flight attendant has often been portrayed as a glorified cocktail server — and because flights are generally so safe, it’s easy to forget what the main responsibilities of the flight attendant are: first and foremost, safety, and when required, emergency response. Attendants undergo rigorous safety training which includes emergency passenger evacuation management, use of evacuation slides/life rafts, in-flight firefighting, survival in the jungle, sea, desert, ice, first aid, CPR, defibrillation, ditching/emergency landing procedures, decompression emergencies, Crew Resource Management and security. They are also often required to speak several languages because they have to communicate with international travelers.
Lessons to be learned
The National Transportation Safety Board was on the scene very quickly, beginning a thorough investigation and analysis of exactly what happened and why. This is expected to take some time, although happily enough, NTSB has an advantage in the number of on-the-scene witnesses and staff. All too often they are piecing fragments together and the staff reports are from a recovered black box. You can watch the NTSB’s most recent public report from Wednesday.
The evacuation standard for getting off a plane in an emergency is within 90 seconds – something that seems incredible if you stop and think how long it can take to deplane under normal circumstances, never mind in the midst of chaos and turmoil in a crash scene and fire. The recent NTSB reports are now saying that the orders to evacuate didn’t come until 90 seconds after landing – the pilots originally told passengers to stay in their seats. Perhaps pilots may have been waiting for rescue vehicles to get to the plane, it’s unclear. But when fire was spotted 90 seconds in, evacuation ensued. It’s easy to second guess decisions but it is up to the NTSB to gather more facts and determine what happened.
Lee’s exceptional safety training kicked in to gear on that Saturday crash and she saved lives. Think of her next time you shrug off the safety drill at the start of your next flight. More importantly, think of your organization’s emergency response plan. How ready would your organization be should an unexpected event occur. Could you evacuate the premises in 90 seconds or less? Do you have an assigned emergency response team or assigned safety staff? Fred Hosier offers 7 safety lessons any workers can take from SF plane crash at Safety News Alert – a excellent rundown of take-aways for any employer in any industry. As the NTSB report progresses, there will no doubt be other lessons in safety, planning, and emergency response – lessons for both for the airline industry and other businesses a well.
See also: Emergency Response Plans & Resources for Businesses
Related reading
Walking down the grain … and the fines
Tuesday, July 2nd, 2013
It’s called “walking down the grain,” it’s illegal and it results in suffocation deaths on farms with frightening regularity. It refers to the practice of workers going into grain silos and bins with shovels and picks to break up clogs in the grain so that it can flow smoothly. It’s a highly dangerous practice that can result in sudden entrapment similar to being sucked in by quicksand. It can happen in less than a minute.
This summer is starting as many others, with a lone worker trapped and suffocated in a grain silo – his would be rescuers talk about futile attempts to save him. News reports say that he fell in – until OSHA investigations, we may not know the particulars around why he entered the bin alone and had no protection, such as harnesses. Sometimes farmers do this on their own. Sometimes, they send workers in to walk down the grain – often teens, immigrants or some other temporary workers who may not be aware of the dangers. That was the case in 2010 when a 20 year old and two teens were entrapped in an Indiana silo. One teen survived.
2010 was a year for the record books. Heavy rains the prior year made for very moist, clumpy grain in storage. Twenty-six people died in that year, the worst year in decades.
According to the Center for Public Integrity:
“At least 498 people have suffocated in grain bins since 1964, according to data analyzed for the Center and NPR by William Field, a professor of agricultural and biological engineering at Purdue University.
At least 165 more people drowned in wagons, trucks, rail cars or other grain storage structures. Almost 300 were engulfed but survived. Twenty percent of the 946 people caught in grain were under 18.”
It should be noted that these are reported incidents.
Walking down the fines
This spring, the Center for Public Integrity and NPR produced a special investigative series called Buried in Grain. In a recorded segment, the sole survivor of the Indiana grain bin entrapment recounts the experience, a gripping and powerful account. The first segment also talks about another dangerous practice: how almost all the fines levied by OSHA in such fatalities wind up being slashed in what might be termed “walking down the fines.” In subsequent reports, the series talks about why storage bin rescues are so risky and complex, and a third offers prevention strategies.
Liz Borowski of The Pump Handle links to various other news reports and resources on grain bins and temporary workers. The Pump Handle, an excellent blog that reports on public health and policy issues, has been great in keeping attention on this subject. We also point you to the powerful video on Grain Bin Safety issued by The National Corn Growers Association and the National Grain and Feed Foundation, previously posted here.
Farming is a dangerous livelihood. Storage facilities present many other dangers. A year after the deaths discussed in the above report, we posted about two teens who both lost legs in a grain bin augur accident. Other grain storage hazards beyond engulfment and suffocation or being caught in machinery include lung disease and poisoning from fumigants, mold, and grain dust. Plus, the risk of explosions from combustible dust: this year has seen at least two deaths related to a grain bin explosion in Indiana.
OSHA has put bin operators on notice and provides a variety of tools and resources about grain handling safety. Many are cynical, however, that with weak enforcement and continued “walking down the fines” the practice of “walking down the grain” won’t go away any time soon.