Imagine the scene at the Pennsylvania Workers’ Comp Appeal Board earlier this year: the judges each carefully examined the nose of Rhonda Walker, to determine just how crooked it was and whether Walker was entitled to disfigurement benefits. Prior to the appeals hearing, a judge had awarded Walker 45 weeks of compensation for scars and disfigurement on her nose.
WorkCompCentral (subscription required) tells us that Walker was a meter reader for Health Consultants. In May 2007 she fell down a flight of stairs and fractured her nose. She was cleared for full duty in August, at which time her indemnity payments were halted. She resigned her position soon after and then filed for permanent disfigurement benefits; she considered herself to be “deformed” because her nose had scars and the tip was crooked.
Following their close and individual examination of Walker’s nose, the judges determined that there was “a slight crookedness” but this was “not noticeably disfiguring.” The alteration in her nose did not “rise to the level of creating an unsightly appearance.” They reversed the award of disfigurement damages. Walker may be self-conscious about her transformed nose, but the changes are not compensable.
Aesthetics and Self-Image
With all the emphasis on personal appearance in this culture, with the myriad options for changing one’s appearance, it is easy to become obsessed with what we see in the mirror. (I often wonder where that aging man in the bathroom mirror came from.) A few years back we blogged the interesting case of Penny Rumple Richardson, one of whose breast implants was damaged in a work-related auto accident. In the understandable interests of symmetry, her doctor replaced both implants. In the similarly related interests of compensability, the comp insurer paid for one implant and denied the other as not being work related.
Rhonda Walker is sensitive to the imperfections that greet her every time she looks in the mirror, but she will not be reimbursed for her troubles. In a mysterious footnote, President Judge Dan Pelligrini dissented without opinion. Given his silence, we will never know what he was thinking, but it appears that he bought Walker’s argument. In the inherently subjective matter of compensability, who knows whose nose meets an elusive standard?
Archive for the ‘Uncategorized’ Category
Compensability of a Crooked Nose
Monday, May 7th, 2012OSHA: Is Your Safety Incentive Program an Act of Discrimination?
Thursday, April 5th, 2012Under 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.
Annals of Compensability: Violence as a “Normal” Working Condition
Thursday, September 22nd, 2011Here is a very interesting case from Pennsylvania, where the definition of “normal working conditions” is fraught with terror (and which, as a result, closes the door to comp compensability while potentially opening another to lawsuits). But in our excitement to discuss this intriguing case, we get ahead of ourselves.
Greg Kochanowicz worked as a manager for the Pennsylvania Liquor Control Board. That might sound like an enforcement job, but ironically, his job was selling liquor from a retail outlet. On April 28, 2008, a masked man entered the store, pointed two guns at Greg and a co-worker, and forced them to empty the safe and cash register. The robber prodded the back of Greg’s head with one of the guns. After getting the cash, the robber used duct tape to tie Greg and his co-worker to chairs in the office. There was no physical harm – just the threat of violence if Greg did not cooperate.
Following this incident, Greg suffered from anxiety, depression and flashbacks. He was too traumatized to return to work. Diagnosed with PTSD, he collected temporary total benefits under workers comp for what Pennsylvania calls a “psychic” injury. (It is worth noting that in 1981 Greg’s brother was stabbed to death in a robbery, an incident for which Greg received no counseling or support.)
Abnormal Justice
Greg’s employer appealed the WCJ ruling. A split panel of judges (4-3) reversed the finding of compensability on the basis that armed robberies were a “normal” working condition – and only “abnormal” working conditions lead to compensability for PTSD/”psychic” injuries. That’s a very interesting notion, indeed.
In its reversal, the appeals court noted that robberies were quite common among the Liquor Control Board stores: in the five county area, there were 99 robberies since 2002, an average of one a month. In addition, employees were acutely aware of the risks. They received a written pamphlet entitled “Things you should know about armed robbery.” Greg had read the booklet and received training related to it. In fact, he followed the employer’s written protocol to the letter, thereby avoiding bodily harm to himself and his co-worker.
The appeals court is saying that armed robberies should come as no surprise to liquor board employees. They have been forewarned. And in the view of a majority of the judges, forewarned is foreclosed: there can be no compensability for a psychic injury as a result of normal working conditions. (Had Greg been shot, however, he would have had a compensable injury.)
OSHA to the Rescue?
The appeals court states that having a gun pressed to the back of the head is a “normal” working condition. If this is indeed true, then the employer has put employees in a workplace that is fraught with risk. This is something employers are not allowed to do.
Here is OSHA’s General Duty Clause:
“Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
If the court is correct, if armed robberies are a “normal” working condition, then the employer has failed to eliminate an unacceptable risk. By leaving unarmed employees in high risk areas, they are out of compliance with OSHA standards. Given their knowledge of the likelihood of robberies, they should place armed guards in each store, particularly in evening hours. Their failure to protect employees from an all-too-routine hazard is unacceptable and may be grounds for lawsuits.
This case is wending its way toward the PA Supreme Court, where the arguments of the dissenting judges, led by Renee Cohn Jubelirer, are likely to prevail. Greg will probably qualify once again for workers comp. Yes, he received training in violence; he was well aware of the risks in his job; he even handled the situation with exemplary composure. But there is nothing normal about having a gun pressed into the back of your head, unless you are an actor taping a cop show for cable TV.
Health Wonk Review: Day Late and Dollar Short?
Friday, November 12th, 2010The Veteran’s day version of Health Wonk Review is up. We apologize for our delay in linking to this ever-valuable forum for health-related issues. One of the links involves Jon Morgan’s experience with long-term back pain: check out his blog on his experience with spondylosis. He regrets not beginning an exercise regimen much earlier in his life. May his word to the wise prove sufficient.
Joe Cassano and Joshua Lawrence Chamberlain: Take Your Pick
Thursday, July 1st, 2010Joe Cassano is not apologizing to anyone. The former AIG executive who helped bring the world economy tumbling down says he did nothing wrong. His underwriting standards never changed: he never saw any risk in underwriting those collateralized debt obligations (CDOs). And if AIG leadership had had the cojones to keep him on board after the proverbial waste matter hit the fan, he would have cut the tax payers a better deal. He would have stuck it to the financial institutions that AIG was so anxious to insure. You want tough – Joe will show you tough!
Joe has avoided an indictment (he walks), and now he testifies (he talks). In his own not-so-humble opinion, he is blameless in the collapse of the worlds’s largest insurer. When the final story is written about AIG, it will confirm what we have suspected all along: Cassano is not too bright. Tough, yes. Greedy, yes. Arrogant, for sure. A leader of men (and women, only because he has to), not so much. Self-aware and reflective: you gotta be kidding.
In Search of Leadership
When the great men and women of the revolution founded this country, they wanted freedom from tyranny. I imagine they also envisioned generation after generation of principled leaders to further their original goals. It’s highly unlikely that Joe Cassano is what they had in mind.
As we approach the nation’s birthday this weekend, let’s (somewhat arbitrarily) shift our focus to a real leader: Joshua Lawrence Chamberlain, the prodigiously gifted general whose improvisation on Little Round Top turned the tide in the civil war. The Washington Post is running a series on leadership; here is their (video) take on Chamberlain’s actions at Gettysburg.
The Insider extends to all our readers the wish for a fine holiday break. Amid the fireworks and family outings, pause for a moment in gratitude to those who brought us to this moment. In times of great need, great leaders have often emerged. Who knows, perhaps the same will eventually be said of these challenging times.
Dueling Disabilities
Monday, May 17th, 2010Emily Kysel, 24, is highly allergic to a common item: paprika, a spice made from ground bell and chili peppers. Inhaling the colorful spice can send her into shock and could even kill her. “It’s like someone poured acid down your throat,” she says. So family members raised $10,000 to buy her an allergy-detection dog, a golden retriever named Penny. When sensing the presence of paprika, Penny jumps up on Emily, who then presumably high-tails it out of the area. This might prove socially and professionally awkward, but it apparently works.
The City of Indianapolis’s Department of Code Enforcement hired Emily. Well aware of her unusual condition, they approved her bringing Penny to work and alerted supervisors and co-workers to Emily’s plight. Employees were asked to forego the paprika on hummus, chili, buffalo chicken wings, etc.
So Emily shows up for work, Penny at her side, and a co-worker immediately has an asthmatic reaction: not to Emily, of course, but to the dog. Emily’s boss makes an on-the-spot management decision to void Emily’s accommodation; he tells Emily that she cannot bring Penny to work. Forced into the limbo of neither working nor being unemployed, Emily files suit, alleging discrimination and failure to accommodate.
“I was crestfallen, angry,” Emily said. “I thought I had jumped through all the hoops to get permission, but then it immediately felt they were favoring this other individual.”
Emily points out that the city allows the use of guide dogs for blind individuals – though it appears that no blind folks work in the Department of Code Enforcement.
Christopher Kuczynski, assistant legal counsel for the ADA division of the EEOC, declined to comment on the particulars of this case. But he did say that “what’s important when you have two people with disabilities is you don’t treat one as inherently more important than the other.”
Management Conundrum
So what’s a manager to do? Where is the balance between the dog that is needed and the dog that is the problem? Would it be possible to establish a reliable “Paprika free zone” and thus eliminate the need for Penny? (This seems somewhat feasible, although paprika is often a hidden ingredient, as in hotdogs and sausages.) Could Penny perform a spice “sweep” at the beginning of the workday and then go home? (How would workers feel about a dog sniffing their lunches?) Or could they find a hypo-allergenic, paprika sniffing dog (thereby relegating the loyal Penny to the proverbial dustbin of history)?
So many questions, so few answers: this case of dueling disabilities presents an interesting conundrum. By creating a safe workplace for one employee, another employee is put at risk. We note in passing that any allergic reactions – whether involving Emily or the co-worker – would likely be compensable under workers comp. In this particular situation, however, comp appears to be the least of management’s worries.
A Healthy Dose of Health Wonkery
Thursday, May 13th, 2010The latest edition of the Health Wonk Review is up, hosted by Hank Stern at Insureblog. As usual, there are some fascinating nuggets, including: cancer scare tactics (fear mongering), contaminated meds for kids (fear justified) and the anticipated impact of health reform (a combination of fear mongering and justifiable fears?). Check it out.
Cavalcade of Risk: Short and Sweet
Wednesday, November 18th, 2009Jason Shafrin of Healthcare Economist has posted the latest edition of Cavalcade of Risk. It’s a pungent mix of interesting items and well worth a few minutes of your time. Readers will be rewarded with a nice precis on the nature and predictability of risk, along with the story of an English company called the French Connection, which achieved notoriety and profit by abbreviating the name to FCUK (no comment necessary).
Health Wonk Review – Issue Number 22
Thursday, December 14th, 2006Rita Schwab of MSSPNexus is the gracious hostess for this week’s Health Wonk Review. In a happy coincidence, there are 22 blog participants in this, our 22nd issue, so it’s a good meaty issue for you to peruse with morning coffee. Rita does a masterful job organizing and offering a synopsis for all the posts.
By the way, if you are curious about what MSSP stands for, it is an acronym for Medical Staff Service Professionals. According to Rita:
“Medical Staff Service Professionals are a vital part of your healthcare team, but you won’t receive a bill from us, and in most cases, you’ll never know our names. We partner with Medical and Administrative leadership to protect patients from unskilled, impaired, or in the worst case, fraudulent physicians. Among our responsibilities are the verification of licenses, education, training, and skills of physicians and other providers of care.”
Sounds like a vital role indeed. Here is a post where she explains more about the role that MSSPs play in the health-care arena.
News briefs: outcomes, weekly toll, PA reforms, obesity
Monday, November 13th, 2006Blog smorgasbord – Cavalcade of Risk #12 is posted by Christopher Parks at MedBillManager Blog.
What makes for good outcomes? – Joe Paduda talks about what he learned about outcomes at the Workers Comp Research Institutes’s (WCRI) recent annual meeting: “The net is this – states with high medical costs tended to have pretty poor outcomes, defined as longer absences from work and fewer injured workers getting back to their jobs, and low cost states tended to have much better outcomes.”
The weekly toll – Tammy at Confined Space chronicles death in the American workplace.
PA reform – Roberto Ceniceros of Business Insurance informs us that last week Pennsylvania enacted workers comp reforms, including the creation of an uninsured employers guarantee fund and added measures designed to reduce litigation, such as caps on attorney fees in negotiated settlements and mandatory mediation conferences as part of any trial schedule. Here’s more from the Philadelphia Business Journal
Bullies – Workplace Prof Blog discusses a recent study about bullies in the workplace.
The cost of obesity – Actuary,net points us to an interesting post and discussion: Should fat people pay higher insurance premiums?. And on a related theme, Bill Danylik at HR Web Cafe tells us why help for your out-of-shape workers may be cheaper than you think.
New York construction risks – New York City’s construction zone nightmare – a New York Daily News article: “Between 2001 and 2005, OSHA investigated 68 “catastrophic accidents” citywide, meaning at least one worker died or three were seriously injured. Because the vast majority of mishaps occur on nonunion jobs involving immigrant laborers, numerous additional cases are believed to go unreported.” (via rawblogXport).
Just for fun – Every profession has its jargon and slang – this compilation of doctor’s slang. medical slang, and medical acronymns is rather amusing.
