Archive for the ‘Disability’ Category

Annals of Compensability: (Lack of) Education Pays

Tuesday, March 26th, 2013

Imagine identical injuries to two workers: one is a junior college graduate, the other lacks a high school diploma;one can read and compute fairly well, the other reads at the 8th grade level and performs math at the 6th grade level. The injury involves failed back syndrome, with the injured worker experiencing fairly constant pain and the inability to perform sustained physical work.
In the world of workers comp, the first worker is deemed “employable” and entitled to temporary total benefits, followed (in some states) with a lump sum settlement for permanent loss of function. The second worker, lacking the education and skills to transfer to another job, is awarded permanent total disability benefits. In the two claims involving identical injuries, a marginal education pays.
For many years, Missouri resident Todd Grauberger worked for Atlas Van Lines, moving furniture and household goods. He performed heavy lifting routinely, avoiding physically demanding work only when driving from pick up point A to delivery point B. Ironically, his injury did not involve heavy lifting: in December 2001, he bent over to put padding on a nightstand – something virtually anyone could do – and felt an immediate pain in his back. His herniated disc required surgery. Even after some minor improvements, he continued to suffer from substantial pain and numbness in his legs. He was diagnosed with a phrase that terrifies any injured worker – and any claims adjuster: “failed back syndrome.”
Grauberger filed for permanent total disability benefits. His employer countered with a vocational rehabilitation assessment that concluded – without directly interviewing Grauberger – that he could perform light factory work or perhaps drive a car or truck. But the claimant’s doctor countered that with a failed back and almost no transferable (non-physical) skills, Grauberger was unemployable for any position that he might be qualified to hold. In other words, his only employable asset was the labor of his body and his body was irreparably broken. In a unanimous decision, the Court of Appeals in Missouri sided with Grauberger and upheld the award of permanent total benefits.
Hiring Conundrum
Employers do not give much thought to transferable skills when they hire new employees. They simply hire people qualified to do the work. Indeed, for jobs requiring sheer physical strength, it is often cheaper to hire the lowest skilled available workers. But workers comp, long the great equalizer, takes a post-injury look at employability. Once maximum medical improvement has been reached, the issue for workers comp is simple: the worker is either employable or not. If employable, benefits come to an end. If there are no transferable skills and no reasonable prospect of employment, the benefits may continue for the lifetime of the worker.
Grauberger will never again have to worry about finding gainful employment. Because he can offer nothing of value to the labor market, and because of his persistent, debilitating pain, he will be supported by workers comp indefinitely. It’s an odd calculus, seemingly rewarding the absence of marketable skills beyond the strength in one’s body. In this Missouri case, limited skills and limited education secure a future well beyond the reach of a failed back and a failing body.

Opioid Catastrophe: The Data Leads to Doctors

Monday, March 4th, 2013

After two stimulating days at the Workers Comp Research Institute conference, the Insider is ready to solve the opioid problem. To be sure, WCRI is a research-driven organization and makes no claims of solving problems; it simply reveals them through stark, powerful data. However, in a series of presentations ranging from improving the way doctors prescribe drugs through the mobilization of entire communities to tackle the problem, the conference has illuminated the path toward a favorable resolution of this increasingly dire problem.
Dr. Karin Mack of the Centers for Disease Control established the parameters of the problem: death from drug overdoses – mostly involving prescribed medications – now kills more people than traffic accidents. While heroin and cocaine account for about 4,000 deaths annually, opioids kill four times as many people – more than 16,000 in 2010. Most of the drug overdoses involved people of working age (between early 20s and 60). Dr. Mack identified the population most at risk:
– “Doctor shoppers”
– People receiving high daily doses of opioids and those using a variety of drugs
– Low income people and those living in rural areas
– Medicaid populations
– People with mental illness or a history of substance abuse
When the discussion shifted specifically to workers comp, the data becomes even more alarming. In some states, over 80% of injured workers receive opioids for pain relief – way too many! The prescribed doses are often much higher than is medically necessary. For many workers, the prescriptions extend for many weeks, even though pain usually subsides relatively quickly. And finally, very few doctors are monitoring patients who have been prescribed opioids.
Doctor Problems
Given that drug abuse has reached catastrophic proportions, and given that most of the problem involves prescribed – as opposed to illicit – medications, it is becoming increasingly clear that doctors are a big part of the drug problem. They are too quick to prescribe opioids; they prescribe them for too long; and they fail to monitor injured workers who are on these medications. The first red flag, in other words, is raised over the heads of our medical practitioners.
Dr. Dean Hashimoto outlined a Massachusetts initiative that significantly reduced doctor mistakes in prescribing opioids (a summary of the state’s approach can be found here). The guidelines:
1. Distinguish between acute and chronic pain. For acute pain, doctors should explore ady and all alternatives before prescribing opioids and then carefully re-evaluate before extending the initial prescription.
2. For chronic pain [in itself a red flag], doctors should run urine screens to determine whether the prescribed drug is being used properly and whether other drugs have been taken; they should meet fact to face with patients as frequently as needed; and they should try to focus on function rather than pain.
Note that these are steps that doctors should, but all-too-often don’t take. Combine that with the fact that a small number of doctors are generally responsible for a huge number of prescriptions: in California, 3% of doctors prescribe over 50% of the opioids. Once again, doctors are at the root of the drug problem.
PDMPs
In addition to improving best practices in the medical use of opioids, we need to know more about prescription practices. This involves the evolving tool of prescription drug monitoring programs (PDMPs), which track prescription practices of doctors across a given state. Because the programs are state based, they vary widely on how they work: what is tracked, how often data is submitted, how it is analyzed and what is done with it. Ideally, to be effective, the data should be collected on a real-time basis, but in practice, it’s generally submitted weekly. Ideally, there should be standards across all state PDMPs: everyone collecting the same data, in the same form, generating information on prescription practices and “hot spots” with consistency.
Brandeis University’s Center for Excellence identifies the best practices for PDMAs. But we live in an age where uniform standards are anathema. It’s just not going to happen, so we’ll have to live with the current chaos – which, however inadequate, is better than nothing.
Community Mobilization
While there is much that can and should be done at the doctor-patient level to fix the opioid problem, such efforts cannot solve the problem. We can actually map the crisis across the country and identify specific communities that have been devastated by drug abuse. The conference highlighted efforts in eastern Kentucky, where in some counties half the children are being raised with no parents in the home (the parents being dead from overdoses, incapacitated by addiction or in prison). Under Operation UNITE, the community has responded with a combination of drug enforcement, coordinated treatment, support for families and friends of abusers, education and mentoring for young adults. They teach kids archery and fishing, among other things, surely an example of putting the beautiful natural surroundings to good use.
It is hardly surprising that one focus of UNITE is the pill mills that are frequently found in poor, rural areas. One doctor prescribed over 100,000 pills a month (!) by issuing 40-50 scripts each day (!). Don’t bother asking whether Dr. Hashimoto’s standards of treatment were followed.
The Path to a Cure
The WCRI conference illuminates the path toward solving the opioid abuse catastrophe: teach doctors how and when to use these powerful drugs and how to find alternative treatment forms; carefully monitor injured workers on opioids to ensure proper use; severely limit the use of these drugs over the long term; monitor prescription practices to identify doctors who are not with the program; and provide support, mentoring and education to young people in high risk communities.
There are many obstacles to implementing a comprehensive and effective program, but in those areas where key elements have been established, the incidence of opioid abuse has been dramatically reduced. It is ironic, of course, that the stakeholders who must “do no harm” are in fact in the forefront of the problem. They can and must do better. Medicine got us into this mess and it is medicine, with its highly trained and presumably well-intentioned practitioners, that must lead the way out.

Retired Jocks Dig for Gold in the California Hills

Monday, February 25th, 2013

We have long noted how the generous benefit structure in California encourages professional athletes to file claims long after their careers are over. These athletes need not play for teams based in California: just playing a few games in the state over the course of their careers opens the door for generous lump sum payouts and, more important, lifetime medical benefits. There is indeed “gold in them thar hills.”
Marc Lifsher of the Los Angeles Times does a great job summarizing the impact of California comp law on professional athletes. Since the 1980s, $747 million has been paid out to 4,500 players. That is apparently just what’s been paid – the $3/4 billion may not reflect what’s been reserved for future medical payments.
California’s statute is uniquely generous. It allows anyone injured while working in California to file a claim in the state. Even if the worker has been paid under another state’s comp system, the door remains open. Professional athletes may settle out claims for a few hundred thousand dollars, but they may also secure lifetime medical benefits: given the concussed brains and frequent musculoskeletal injuries that are a routine part of professional athletics, the lifetime medical bills may be enormous. Finally, California has a worker-friendly definition of cumulative trauma, so a professional athlete need not prove a specific body part was injured during a game in that state.
Athletic Attorneys
A number of the lawyers specializing in these claims are former athletes. Mel Owens, a former Los Angeles Rams line backer, represents a number of out-of-state athletes filing claims. “California is a last resort for a lot of these guys because they’ve already been cut off in the other states,” he says.
Lifsher describes the situation of journeyman tight end Ernie Conwell, who played for two out-of-state teams, including the New Orleans Saints. During his 11 year career, he underwent 18 surgeries, including 11 knee operations. He filed for comp benefits in Louisiana and received $181,000 to cover career-ending knee surgery in 2006. He also received $195,000 in injury-related benefits as part of the players’s collective bargaining agreement. But the claim in Lousiana only covered his knee injury. So he filed a claim in California to deal with ongoing health problems that affect his arms, legs, muscles, bones and head. A California judge awarded him $161,000 plus future medical benefits. The payer in this case, the New Orleans Saints, has appealed.
Wrong Solution to a Real Problem
There is little question that retired players face formidable physical and mental challenges resulting directly from their athletic careers. But the question on the table is whether California is an appropriate forum for delivering extended benefits for professional athletes. Part of the rationale for continuing this gratuitously generous program is the fact that athletes pay state taxes on their incomes for contests in California. But given the fact that income taxes have nothing whatsoever to do with comp, this is a specious argument. The taxes paid do not support California’s workers comp system.
Ultimately, the solution to the problem of long-term injuries to professional athletes must be removed from California and relocated to where it belongs: in the labor agreements between professional sport teams and their athletes. The first step in this process requires an act by the California legislature to shut off the spigot, so that out-of-state athletes are no longer allowed to file comp cases in the Golden State. Immediately following this, the players will have to put the issue of life-long benefits for retired players on the bargaining table. This may seem obvious to those of us on the outside, but there is a reason why it may not happen: collective bargaining tends to focus on the needs (and greeds?) of today’s players. Once out of the game, players – other than those joining a broadcast network – simply disappear.
As is so often the case, it’s all about the money: money the owners want to preserve as profits; money the current players want in their own pockets. While management and labor are undoubtedly sympathetic to the former players, the latter are out of the limelight, struggling day by day to function with compromised bodies and brains. They paid the price. Someone should step up and negotiate a reasonable settlement. It’s time for this particular form of California scheming to come to an end.

A Fine Line Between Willful Intent and No Fault

Wednesday, February 20th, 2013

The severe injuries to a utility lineman in Tennessee delineate the fine line where “no fault” ends and “willful intent” begins. In January 2009, Troy Mitchell and his crew were replacing a forty-foot power pole with a new pole forty-five feet in height. Mitchell was in a bucket lift near the top of the new pole preparing to attach a lightning arrestor when a copper ground wire that he held in his bare hands came into contact with a transformer on the older, charged pole some five feet below. Mitchell received an electrical shock of approximately 7,200 volts. He suffered severe burns and injuries to both hands. Clearly, Mitchell was in the course and scope of employment, but he had removed the safety gloves that would have prevented the injury. So is this a case of no fault coverage or willful disregard of safety rules? Are Mitchell’s injuries compensable?
There is no doubt about the severity of the injuries. Mitchell underwent eight surgeries–five on the left hand and three on the right. Procedures included cleaning the wounds, cutting away dead tissue, and removing healthy skin from Mitchell’s forearms and upper arm to suture into the hands. Following these surgeries, he underwent physical and occupational therapy for ten-months in an effort to reduce the swelling in his hands and increase strength and flexibility. He was also treated for burn injuries to his side. Just over one year after the accident, Mitchell was able to return to work in the same position he held at the time of the accident.
Before considering the compensability issues, let’s take a moment to applaud Mitchell for his gritty recovery and his fierce determination to get back to work. You could hardly ask for a more motivated worker.
An Initial Determination of Compensability
A trial court found the injuries to be compensable. They awarded Mitchell a vocational disability rating of 39% permanent partial disability to the body as a whole–one and one-half times the 26% medical impairment rating to the body as a whole. The court noted that Mitchell is “apparently a tough guy. He’s back at work. He and the doctor worked together to make sure there were no restrictions. This is a profound injury. He has deformity on both of the hands. It’s quite visible.”
In addition to an award of $117,312.00 for permanent partial disability, the trial court granted $23,462.40 in attorney’s fees and $1,669.20 in discretionary costs. (As much as we would like to explore the concept of “permanent partial disability” ratings for people who are able to perform their original jobs, we must set that aside for another day.)
The Appeal
Mitchell’s employer appealed the compensability determination. In Tennessee – as in most states – there is a four-pronged test for willful intent. No one questioned that the first three tests had been met: (1) at the time of the injury the employer had in effect a policy requiring the employee’s use of a particular safety appliance; (2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer.
The crux of the matter arises in the fourth test: (4) the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. In other words, the sole issue was whether Mitchell’s removal of his gloves while in the performance of his duties was a willful disregard of safety policy.
Mitchell testified that he had worn his protective gloves when lifted in the bucket and when he covered the “hot” lines on the lower pole with rubber blankets and hosing. Having done that, he believed that he was in a “safe zone” and “clear” of the danger five feet below. He then took off his gloves to hammer a metal staple, which was to secure a lightning arrestor into the crossarm of the new, taller pole. Mitchell explained that it was easier to hammer without the gloves and, further, that he “didn’t want to puncture a hole” in the gloves. After removing the gloves, he remembered being struck by a “ball of fire.” He later realized later that the copper ground wire he was handling at the time must have come into contact with the transformer on the lower pole. He further testified that because he had removed his gloves under similar circumstances on previous occasions, he did not believe that he was exposing himself to danger.
On cross-examination, Mitchell acknowledged that the employer’s policy was that “any time from cradle to cradle, which is when the bucket closes, you have to wear your rubber gloves if you’re around anything hot․” He admitted that when he was “around” the hot wires, the rule required him to wear his gloves for safety reasons. He further understood that the employer’s policy required leather gloves as an additional covering to guard against puncturing the rubber gloves. He agreed that his gloves were in perfect condition and that he should have kept them on as he attached the staple. Mitchell conceded that his failure to do so violated the safety rules. When asked whether he could hammer the staples with the gloves on, he responded, “Yes, but it’s hard.”
The cost of replacement gloves was not an issue: the company’s safety coordinator confirmed the gloves were provided by the employer and were immediately replaced when punctured or worn out. As a result, it appears that Mitchell was just trying to save his employer a few bucks by not ruining the gloves!
The Supreme Court of Tennessee determined that Mitchell had indeed willfully disregarded company safety policy and thus was not eligible for benefits under workers compensation.
A Compelling Dissent
Justice Holder dissented from the majority opinion. She noted that Mitchell believed he was in a “safe zone” and was not in danger of electrocution when he removed his rubber gloves. Holder quotes the trial court: “it is plausible that [Mr. Mitchell] believed the pole he was working on was not hot.” Holder goes on to note that although Mitchell’s conduct in this case may rise to the level of negligence or recklessness, the removal of his gloves when he assumed he was in a safe zone should not be deemed willful misconduct.
Mitchell, an experienced lineman, made a judgment that he had protected himself from potential harm by covering the lower power lines with insulated blankets. He removed the gloves to more easily complete the installation process. He made a mistake, he was certainly at fault, but the action, in the opinion of Justice Holder, did not rise to the level of willful misconduct.
This case falls within the perpetual gray zone in which most disputes on compensability are argued. While the majority was technically correct in their determination, and while the law does not discriminate between worthy and unworthy employees, it is difficult not to side with Justice Holder in her dissent: Mitchell is in so many respects an exemplary worker. If the rules of comp could be made to bend toward justice, perhaps they would bend in the direction of this stoic and stalwart man. Unfortunately, that’s not the way this system works.

Annals of Risk Management: Guns and Mental Illness in New York

Wednesday, January 16th, 2013

New York has just signed into law a new gun control measure [S. 2230] that comes as a direct response to the incomprehensible tragedy in Sandy Hook, CT. While the bill touts its “first in the nation” status, with respect to its approach to mental illness, it is by no means a model for other states to follow.
The bill addresses three distinct issues relating to mental illness: first, limiting access to gun licenses for those diagnosed as mentally ill and dangerous. Second, the bill requires gun owners who reside with a mentally ill and “dangerous” individual to keep guns under lock and key. Finally, and most disturbingly, the bill requires mental health professionals to report any patient who is “likely to engage in conduct that will cause serious harm to
him- or herself or others.” In other words, the bill assumes that any individual with suicidal tendencies is a potential mass murderer. Such stereotyping is not what is needed in the mental health community.
Double Bind
S.2230 places a formidable burden on mental health professions – who not only must treat their patients, they are held accountable for predicting future behavior:

A new Section 9.46 of the Mental Hygiene Law will require
mental health professionals, in the exercise of reasonable
professional judgment, to report if an individual they are treating
is likely to engage in conduct that will cause serious harm to
him- or herself or others. A good faith decision about whether to report
will not be a basis for any criminal or civil liability.

If we have learned anything in the all-too-frequent incidences of random slaughter, the “likelihood” of homicidal acts is usually only revealed retroactively, long after the fact.
The bill goes on to read:

When a Section 9.46 report is made, the Division of Criminal Justice
Services will determine whether the person possesses a firearms
license and, if so, will notify the appropriate local licensing
official, who must suspend the license. The person’s firearms will
then be removed.

After a therapist reports a potentially violent patient to the state – once again, this rather large population includes people who only threaten to hurt themselves – New York will run the names through the data base of licensed gun owners. All hits must result in license suspension. Of course, bureaucracies being what they are, it might take months for the suspension to take place. Hence, the individual who at one time exhibited psychotic symptoms or discussed violent feelings with a therapist might find him or herself months later confronted by cops on the doorstep. Such encounters will hardly be helpful for people trying to establish mental equilibrium.
Finally, the image of forcefully removing guns from the home surely presents enormous risk to gun owners and public safety officials alike. Who will do this and under what circumstances? My guess is that, given the profound implications of reporting patients to the state, most therapists will err on the side of non-reporting and rationalize their inaction, when necessary, under the heading of acting in “good faith.”
The Wrong Cohort
It is important to note that only individuals receiving treatment for mental illness will be subject to this onerous standard. Given the fractured and fragmented nature of mental health treatment in this country, the vast majority of mentally ill individuals have never received and are not about to receive any treatment. And among the violent individuals who might well contemplate an attack of homicidal proportions, few would bother to discuss it with a therapist or go through the formality of securing a gun license before buying an assault weapon.
The relatively small subset of people impacted by the New York bill – people diagnosed with mental illness who are licensed gun owners – is likely to prove statistically insignificant, as is the probability that a single mass murder can be prevented by this radical undermining of the doctor-patient relationship. Surely, there is a better way to manage what has become a remote but appalling risk of life in the 21st century.

Annals of the Aging Workforce: An Old Man Takes His Lump(s)

Monday, January 14th, 2013

We have often discussed the disconnect between the roughly 100 year old workers comp system and the realities of today’s workforce. The old system was not designed to handle older – and we do mean older – workers. Today’s case in point is Von Brock, a 77 year old greeter for Walmart in Mississippi. In July 2008 Brock was moving a lawn mower for a customer when the handle fell off, causing him to fall and break his leg. After surgery, one leg was shorter than the other. Brock was assigned a 20 percent disability rating and never returned to work.
Given his permanent total disability, Brock was awarded benefits of $163.67 per week for 450 weeks. He requested and was granted a lump sum settlement which totalled about $75,000, minus what had already been paid, for a revised total of $53,000. Using actuarial tables for life expectancy, the workers comp commission further reduced the lump sum to $32,000 – a discount of 42 percent, compared to the usual 4 percent discount for younger workers. Brock sued, stating that he had already exceeded average life expectancy for white males and was in good health. He alleged that the use of actuarial charts was discriminatory.
The Mississippi court of appeals rejected Brock’s claim, citing Mississippi Code Annotated section 71-3-37(10):

Whenever the [C]ommission determines that it is for the best interests of a person entitled to compensation, the liability of the employer for compensation, or any part thereof as determined by the [C]ommission, may be discharged by the payment of a lump sum equal to the present value of future compensation payments commuted, computed at four percent (4%) true discount compounded annually. The probability of the death of the injured employee or other person entitled to compensation shall be determined in accordance with validated actuarial tables or factors as the [C]ommission finds equitable and consistent with the purposes of the Workers’Compensation Law.[emphasis added in appeals court decision]

The appeals court noted that the language of the law is unambiguous: the commission “shall apply validated actuarial tables…” Hence, despite Brock’s apparent good health and his already beating the prevailing odds on mortality, the lump sum was discounted substantially because of his age.
New Realities of the Working World
The Mississippi statute, like those of other states, does not contemplate the dilemma of a 79 year old disabled worker. Nor do these various statutes take into account the precarious state of the rapidly aging American workforce, where post-employment prospects are exceedingly dim. Retirement is hardly an option for people who lack the substantial resources necessary for retirement. Von Brock continued working because he needed the money; once disabled, he needed workers comp to fill in the gap. Unfortunately, the “mortal coil” of age finally caught up with him: his working days are over.
Even if Brock had prevailed, the nest egg represented by the maximum lump sum settlement would only have covered his expenses for a few years; as it is, he now walks away with a substantially lower amount. While his former employer Walmart continues to offer discounts to bring in the customers, workers comp offers a discount that substantially reduces his ability to survive. Mr. Brock is in the vanguard of a multitude of aging workers in a dire situation. We wish them all the best of luck.

Annals of Aging: Return to Work at 80?

Wednesday, December 26th, 2012

As the New Year looms, the 100 year old workers compensation system continues its awkward foray into the 21st century, it encounters problems beyond its original design: the widespread availability of opioids, increasing sophistication in medical interventions, and an aging workforce. Today we examine a formerly inconceivable conundrum: can an 80 year old man be expected to return to work after an injury?
Kenneth Brunner graduated high school in 1949 and worked steadily all his life: From 1951 through 1993 he ran the family dairy farm with help from his wife, an accountant. Brunner raised crops; used a tractor, plow and other farm machines, kept track of feed and each animal’s output. He took milk samples from each cow and sent them for analysis; after receiving reports, he adjusted feed for each animal to maximize output. He supervised two to three individuals on the farm.
From 1954 through 1984 he supplemented his farm income by driving a school bus – work which, in the view of the Ohio workers comp commission, required the ability to work independently and use judgment.
From 1968 through 2000 Brunner also was employed as an insurance adjuster. He estimated crop loss for an insurance company, a job that required using scales, taking samples and writing reports. In 1990, at age 58, he was certified for insurance sales.
In January 2011, at age 77, he was working in a maintenance job, when he tripped on a drain pipe and fell face first onto pavement. His injuries were severe:bilateral frontal bone fracture; fracture lateral wall right maxilla; fracture bilateral paranasal sinuses; closed fracture bilateral nasal bone; open wound of forehead; abrasion face; closed fracture C2 vertebra.
He received workers comp benefits. A couple of years into his recovery, he filed for permanent total benefits (PTD). Brunner was 80 years out and had had enough of working.
Brunner’s treating doctor concluded that he would never work again:

This claimant has an injury that is permanent and for which there is no curative therapy. This claimant has progressively suffered loss of function and has had to endure progressively more pain. The exam above shows that there is so little functional capacity and that the claimant is so affected by his condition and its required care, that there is no capacity for sustained remunerative employment and that there is no reasonable employer that would ever hire the claimant expecting any work capacity.
Based on the examination above, review of documents, and based on sound medical reasoning I find that the allowed physical conditions, independently and by themselves, render the claimant permanently and totally disabled and unfit for all sustained remunerative employment.

Once a Worker, Always a Worker?
The Ohio workers comp commission reviewed Brunner’s claim for PTD benefits. They took into account his age, as well as his resume in determining that he was still capable of working. While most of his living involved physical labor, throughout his working life Brunner had displayed skills that at least theoretically were transferable to sedentary work. As a result, they rejected Brunner’s request for PTD benefits. The commission did not address the likelihood of anyone offering Brunner a sedentary job.
An appeals court upheld the denial of the claim, finding that the commission did not abuse its discretion: (1) in weighing Brunner’s age in assessing the non-medical factors; and (2) in determining that Brunner has some transferable skills.
It appears that Brunner’s longevity worked against him. He labored well into his 70s and displayed unusual fortitude in recovery from serious injuries. Because the premise of PTD payments is protection for disabled workers who are available for work but no longer able to do it, Brunner finds himself ineligible for benefits. In a supreme irony, his ability to work as an older worker precluded the conclusion that he was unable – even at 80 – to continue working.
Brunner’s dilemma is by no means unique. As the workforce ages, as more and more workers continue labor late into their seventies and even 80s, a paradox emerges: the point where one is too old to work recedes into the haze of the future, leaving injured older workers in a gray zone where their permanent injuries may or may not be compensable and where their (theoretical) ability to work mitigates against their being paid not to work.
In the months and years ahead we will see more and more litigation involving the claims of “older” workers with ages far beyond what was contemplated in the original workers comp system. State by state, the system will have to respond, becoming the focal point of economic, social and even psychological forces that are far larger than workers, comp stakeholders and state policy makers combined. This is an evolving narrative of surpassing interest. Stay tuned.

Co-Morbidities and the Cost of Claims

Wednesday, December 5th, 2012

NCCI Holdings has issued a report on the impact of co-morbidities on workers comp claims. While there are few surprises, the research is able to point toward a handful of specific conditions that are most likely to drive up the cost of a claim: hypertension, drug abuse, chronic pulmonary problems and diabetes. The research also confirms a particular red flag that has frequently been the focus of this blog: the impact of the aging workforce on the costs of workers comp.
The overall scale of the co-morbidity problem is relatively modest: only 6.6 percent of claims involve workers with co-morbid conditions that directly impact their treatment; however, this reflects a nearly a three fold increase between 2000 and 2009. In those claims where co-morbidities are a factor, the cost of medical treatment is double that of less complicated claims. Co-morbidities begin to show up in workers in their mid-30s and rise with age. Workers with co-morbidities are more likely to work in contracting or manufacturing – as opposed to clerical/office and goods and services. Finally, injuries to workers with co-morbidities are more likely to involve lost time, transforming what might normally be a medical-only claim into one involving indemnity.
The majority of claimants with co-morbidity diagnoses are male: 65 percent of all claimants, 73 percent of claims involving drug abuse, 68 percent of claims involving diabetes and 67% of claims involving hypertension. This may also correlate to the fact that men are more likely to be involved in physically demanding jobs, where co-morbidities would have more of an impact on recovery.
American Health
The study notes that illness rates in the general population are increasing, especially in the areas of hypertension, obesity and diabetes. As the incidence rates increase in the general population, the workforce will mirror this growth. While workers with co-morbidities currently comprise only 6.6 percent of injured workers, we should expect to see a steady climb in that percentage over time..Amercian workers reflect American health.
It will be fascinating to track the impact of (virtually) universal healthcare – AKA Obamacare – on workers compensation. For starters, we can hope for earlier diagnosis and treatment of serious health problems. Where workers without health insurance were highly unlikely to undergo treatment for their non-work related conditions, insured workers may receive treatment. Where uninsured workers were only covered by workers comp – and then only for work-related injury and illness – insured workers will have access to preventive care all along. This might help to contain the growth of workers comp costs.
As always, medical treatment under workers comp represents just a miniscule portion (about 3 percent) of total medical costs in America. There is an elephant in the room and it isn’t us. But what happens to that elephant will impact the unique, 100 year old public policy experiment that is workers comp. In this era of data mining, there will be much data to be mined.

Annals of Compensability: These Boots Ain’t Made for Walking…

Friday, November 16th, 2012

John Pearson was diagnosed in his mid-20s with diabetes and was insulin dependent. About fifteen years after the diagnosis, he was working for an Arkansas temporary placement agency, Worksource, which sent him to a steel fabricator. His temporary employer gave him a pair of steel toe boots and assigned him the task of covering warm steel bundles with blankets. The job required a lot of rapid walking across a large field, as the bundles emerged from the plant at odd intervals. In the course of the day he experienced discomfort in his left foot and at the end of the day he found a blister on his left great toe. The next day he requested a wider pair of boots, but none were available. The employer suggested he buy them, but he could not afford to do so before being paid – and payday was still a couple weeks away.
Two weeks later Pearson was diagnosed with “diabetic neuropathy and cellulitis.” Worksource sent him to another doctor, who diagnosed a diabetic ulcer and cellulitis and placed him on light duty, restricting his standing and walking. (The court is silent on how long Pearson continued to work at the steel fabricator.) Ultimately, surgery was performed on the toe, which fortunately did not require amputation, and Pearson was able to begin working again, albeit with (temporary) restrictions. Pearson took a job in a Waffle House, where he was able to resume full time work. In the meantime, he was faced with lost wages and formidable medical bills.
Proving Compensability
Pearson filed a workers comp claim, which at first was accepted and then denied on appeal to the Arkansas Workers Compensation Commission. The denial was based upon an interpretation of state law:

(4)(A) “Compensable injury” means:
(i) An accidental injury causing internal or external physical harm to the body
or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or
hearing aids, arising out of and in the course of employment and which requires
medical services or results in disability or death. An injury is “accidental” only if it
is caused by a specific incident and is identifiable by time and place of occurrence;
(ii) An injury causing internal or external physical harm to the body and arising
out of and in the course of employment if it is not caused by a specific incident or is
not identifiable by time and place of occurrence, if the injury is:
(a) Caused by rapid repetitive motion.
[Arkansas Code Annotated section 11-9-102(4)(A) (Supp. 2011)]

The Arkansas Court of Appeals agreed with the commission that the injury did not meet first criteria: there was no specific incident identifiable by time and place. However, the Court found that the injury was caused by “rapid repetitive motion,” applying a two-pronged test that is stunning in its obviousness: did injury involve “repetition” and did it involve “rapidity”?
The “repetitive” part involved walking itself: Pearson walked up and down the field in tight boots, watching for the steel bundles as they emerged from the plant. The rapid part involved his walking briskly to protect the bundles as they appeared. He walked from bundle to bundle, as fast as he could, performing the job as instructed. In doing so, the boots rubbed his toe continuously over the course of the day, resulting in a blister. For most people, a blister is no big deal. For a diabetic, it could lead directly to amputation.
Lessons for management?
It is difficult to draw conclusions from this unusual case. Because Pearson was a temporary employee, the steel company had no awareness of his diabetes and no reason to be aware of it: he was able to perform the work as assigned. Theoretically, they could have done better on Pearson’s request for wider boots, but they had no reason to anticipate a serious problem beyond a bit of discomfort. Pearson himself was probably unaware of the risks involved in wearing the tight boots. He obviously was feeling pressure to earn money and probably thought the discomfort, while painful, was not a serious matter.
Perhaps the most important aspect of this case is Pearson himself: despite a life-altering health problem, he is strongly motivated to work. In the few months described in the court narrative, he tries hard to do what he’s supposed to do and he keeps working as best he can. Given comfortable footwear, Pearson will do just fine.

Mental Illness in the Cockpit, Revisited

Tuesday, November 13th, 2012

The last time we encountered Clayton Osbon, he was strapped to a gurney after being forcibly removed from an airplane. Osbon was a Jet Blue pilot who had a psychotic break during a flight from New York to Las Vegas back in March. He randomly flipped switches in the cockpit, turned off the radio and told his co-pilot that “things just don’t matter.” When he left the cockpit to go to the bathroom, the co-pilot locked him out of the cabin, after which he ran up the aisles, shouting incoherently about religion and terrorists. The flight was diverted to Amarillo Texas, where Osbon was arrested and charged with interfering with a flight crew – his own, as he was crew leader.
The psychotic episode lasted about a week. After a July trial, Osbon was sent to a prison medical facility in North Carolina for evaluation. He apparently suffered another psychotic episode in prison – a significant event, as it demonstrated that his illness was not a one-time incident caused by the combination of sleep deprivation and substance abuse.
At a recent hearing in Amarillo, a forensic neuropsychiatirst testified that Osbon had experienced a “brief psychotic episode” brought on by lack of sleep. Osbon was found not guilty by reason of insanity. The medical records are sealed – as they should be – but the requirement that Osbon attend a treatment program for substance abuse makes it clear that drugs or alcohol were a factor in the incident. U.S. District Judge Mary Lou Robinson has prohibited Osbon from boarding an airplane without the court’s permission; he and a Jet Blue colleague had to drive the 1,300 miles from Georgia to Amarillo for the hearing. The court has also ordered him to seek alternative employment, as his prospects for flying an aircraft are likely gone forever.
Living with Mental Illness
Given his age (49) and the court directive to find alternative employment, Osbon finds himself in the same position as injured workers in the comp system whose disabilities prevent them from returning to their original jobs. As a pilot, Osbon has a formidable set of transferable skills, which theoretically should make finding a new career relatively easy. It is likely, however, that his earnings capacity will be severely reduced. In addition, given the fragility of his current mental state, he may be months away from being able to function in a work environment.
In the course of a few days in March, Osbon went from being a skilled and productive member of society to a confused, fragile individual incapable of functioning in the world as we know it. He is fortunate to be supported by his family – often the sine qua non of survival for people with mental illness. In rebuilding his life, Osbon faces the burden of demonstrating to others – and to himself – that he can once again be sane, reliable and stable.
Osbon’s story embodies mystery – and agony – of mental illness. In his case, psychosis appears to have been triggered by a combination of sleep deprivation and substance abuse. But taking it one step further, perhaps the sleep deprivation and substance abuse were part of a desperate effort to mask and subdue a more primal turmoil in his mind. We only know the end result of that fierce inner struggle: a battle was lost, at least for the moment, and Osbon now faces a future where every gesture is scrutinized with fear and every day looms with uncertainty.
Formidable challenges now confront Osbon and those who support him: the search for a return to the simple joys of everyday life, where he can be comfortable in knowing who he is and what he needs to do. We can only wish him well.