When employees travel overnight for their employers, workers comp may expand into 24 hour coverage. Work put you on the road; comp covers you while you are working.
An unnamed (for soon to be evident reasons) woman in Australia has filed a workers comp claim for injuries incurred during sexual activity while on a business trip. She was having sex with a man (not that that matters) when a glass light fitting came away from the wall above the bed. The light struck her in the face, leaving her with injuries to her nose, mouth and a tooth, as well as “a consequent psychiatric injury”. The relative positions of the man, the woman and the light are not detailed in either of two newspaper articles, one in the Sydney Morning Herald and the other in the Herald Sun.
The woman’s lawyers argue that being injured while having sex “during an interval or interlude within an overall period or episode of work” was no different to being hurt while carrying out other recreational activities – some recreational activities evidently being “higher risk” than others.
Course and Scope
But Australia’s ComCare, which says the woman was having sex with “an acquaintance, who had no connection with her work”, will argue “neither legal authority nor common sense” could lead to a finding that the injury was sustained during the course of her employment. This implies, of course, that had the man been a work acquaintance, the injury might have been compensable. Hmmm. The devil, as always, is in the (salacious) details.
From the American litigation perspective, it might seem more logical to sue the hotel or the light manufacturer. But as Australia’s comp law – unlike the American statutes – does allow compensation for pain and suffering, a liability claim might not add anything to the potential payout.
In the final analysis, this incident stands as a stark example of the dangers of mixing business and pleasure. In her expansive notion of the “course and scope of employment,” the anonymous claimant has literally brought the workers comp system into the (hotel) bedroom, where it rarely resides. We await with great interest the final resolution of this intriguing case from down under.
Posts Tagged ‘Australia’
Compensable Sex, Down Under?
Thursday, July 28th, 2011Cavalcade of Risk & workers comp news briefs
Wednesday, January 12th, 2011It’s Cavalcade of Risk week and issue #122 is hosted by our friend David Williams at Health Business Blog – check it out!
Industry pulse – Good news. Robert Hartwig of the Insurance Information Institute takes the pulse of the property casualty industry and sees signs of life: Insurance Industry On The Mend. “Mr. Hartwig said in comparison to all of 2009, the industry’s 2010 third-quarter results are close to all of the prior years. While the industry is not back to where it was prior to the economic downturn in 2007 when it reported property and casualty net income of $62.5 billion, it is performing significantly better than the worst of the downturn in 2008 when p&c income came in at slightly more than $3 billion.”
That’s good news, but it’s not time to break out the champagne yet. A.M. Best forecasts downward rating pressure for the commercial market and two new reports indicate that reinsurance prices should remain soft in 2011.
Physician dispensed drugs – If you are an employer or an insurer and this topic isn’t yet on your radar, it needs to be. Joe Paduda posts about recent NCCI report on physician-dispensed drugs in workers comp, a significant growth area that NCCI says is putting upward pressure on WC costs. California took steps to regulate the practice a few years ago after learning that repackaged costs were two to twelve times higher than the fee schedule.
Labor – The New York Times reports that cash-strapped states are looking to curb labor unions. Expect a flurry of legislative initiatives to limit the power of labor unions representing government employees. While both parties are wrestling with ways to keep state budgets in line, the article notes:
“But in some cases — mostly in states with Republican governors and Republican statehouse majorities — officials are seeking more far-reaching, structural changes that would weaken the bargaining power and political influence of unions, including private sector ones.”
Prevention works – A concerted campaign to reduce textile service worker injuries is working, according to the recently released annual TRSA Textile Services Industry Safety Report. Recordable injuries and illnesses dropped by 17 percent from 2008 to the 2009, and have dropped by 50% since 2005. Sandy Smith reports on SafeTRSA, an industry-wide safety initiative to improve worker safety through awareness, education and training.
Breast cancer & comp – At Comp Time, Roberto Ceniceros discusses City of Las Vegas v. Lawson. The Nevada Supreme Court ruled that a firefighter is entitled to a presumption that her breast cancer arose from her on-the-job exposure to benzene. His post also discusses male breast cancer.
Dramatic Australia flood footage – Office workers catch footage of a modest creek turning into a raging torrent sweeping cars away. More news and dramatic videos of the cataclysmic Australian flooding is available on MSNBC. At least 16 people are reported dead and more than 90 missing in what has been likened to an inland tsunami. Brisbane is under siege. You can follow breaking news on Twitter at #Brisbane.
David Warren and the Little Black Box
Monday, July 26th, 2010David Warren died last week in a suburb of Melbourne, Australia. He was 85. You may never have heard of this aeronautical researcher, but his work has impacted anyone who travels by air. David Warren is credited with the invention of the black box. (A splendid obituary by Douglas Martin in the New York Times can be found here.)
In 1934, when Warren was just 8 years old, his father died in a plane crash. His last gift to his son was a ham radio set. After earning a PhD in chemistry from the Imperial College in London, Warren went to work for the Australian defense department, where he investigated a spate of civilian air crashes.
Thinking like a good risk manager, he recognized the need for better data at the time of the crash. He volunteered to work on developing a flight recorder system. His bosses were not impressed. One went so far as to say: “If I find you talking to anyone, including me, about this matter, I will have to sack you.”
His peers went on to note that if his idea had any merit, the Americans would have already made it (!). Preserving pilot conversations would yield “more expletives than explanations.” (The pilots, naturally, did not like the idea of a permanent record of their chatter.) It was only a visit by a high ranking British aviation official in 1958 that triggered a positive response. Warren was flown to England to show off his little black box (which, for the record, was and remains red or orange). The rest, as they say, is history – a history that has significantly enhanced our ability to understand exactly why a given plane went down.
Obscurity and Fame
We live in an age of instant (unmerited) celebrity: you can become rich and famous for doing absolutely nothing (did someone say Snooki???). The quiet Australian David Warren accomplished a great deal in his long life and managed to stay in the background. He was able to transform the painful loss of his father into safer skies for everyone. It will not surprise you that he never profited from his work. Even if his government had offered him all the profits from his invention, he says he would have refused. He quipped that if he were to profit from his good idea, he might also get billed for the ones that amounted to nothing.
The latest generation of black boxes are self-ejecting, encased in steel and insulated against fire. They provide more than 200 measurements and dump data 128 times a second. These technical wonders have their origins in the mind of young child tinkering with a radio set and dreaming of a father who never came home. We should all be grateful for the exemplary life of this humble man.
Life for Dr. Death?
Tuesday, June 29th, 2010Five years ago almost to the day we blogged the saga of Dr. Jayant Patel, a surgeon of staggering incompetence who wreaked havoc on the citizens of Bundaberg, Australia. After 14 weeks of testimony, more than 75 witnesses and nearly 50 hours of deliberations over six days, a jury convicted Patel of manslaughter in the deaths of four patients and causing “grievous bodily harm” to a fifth. These charges involve just a small number of the cases where Patel’s doctoring skills have been called into question. There may be further trials ahead.
The most appalling aspect of this case involves institutional denial: despite Patel’s obvious incompetence – nurses actually hid patients from him – and despite explicit and alarming descriptions of his shortcomings as a doctor, administrators continued to support Patel, even naming him “employee of the month” following an egregious operating error that led to the death of a patient. Only when an enterprising reporter Googled his name did his prior problems as a surgeon in America pop up, at which point his employment was finally terminated.
The maximum penalty for manslaughter in Australia is life in prison. Dr. Death, in other words, is facing life. (He is filing an appeal.) In a just world, the administrators who hired, coddled and facilitated Patel would also be held accountable. But in case you haven’t noticed, this is not exactly a just world. The wheels of justice, slow though they may be, have finally put an end to Patel’s bizarre career, which transformed the medical premise of “do no harm” into its opposite. We can only say that he will do no further harm – a small consolation to his victims and a savage indictment of his profession.
RTW resources from Australia
Friday, March 14th, 2008The RTW Knowledge Base Website is a free service from Australia providing research based information and links to external resources on work disability prevention. We received a notice about this site from Mary Wyatt, an Occupational Physician based in Melbourne Australia. She offered a good overview of the site’s features, so we will take the liberty of using her description of the site:
The Return to Work Knowledge Base was developed by ResWorks (a small Australian nonprofit) with the support of the WorkSafe Victoria RTW Fund. The site has been endorsed by the Australasian Faculty of Occupational & Environmental Medicine.
The website is designed to help with return to work. The site includes:
- Research papers translated into plain language. The articles can be browsed in interest group collections – employee, employer etc. Alternatively all articles can be seen via the ‘View all Articles’ tab. On the summary pages the article title is the link to the full text. A search facility is available on all pages.
- Resources – links to useful information on work disability such as patient handouts, work disability reports, treatment guidelines. The link to the Resources Page for each group is at the top of the left navigation menu on the summary pages. Most links are to patient handouts, guidelines, or reports on the topic. Other links are to webcasts or videos relevant to the field.
Research is often difficult to access and for most people research is hard to read. The site translates individual research papers into a format that can be understood and houses the information in a readily accessible format. Topics include consequences of being off work in the long term, medical issues, workplace factors, system factors, and people issues.
There are two broad ways the site can help:
1. Increasing peoples’ knowledge and understanding of the area through reading the information provided on the site.
2. Influencing others. Many working in this area practice best evidence care. However it can be difficult to influence others with a less enlightened approach. The site is designed for sharing of information with the ability to send links to colleagues or print articles (eg for patients, HR managers, supervisors).
Google New Hires!
Monday, June 20th, 2005If you were to Google the name “Dr. Jayant Patel,” you would find over 20,000 references going back a number of years. The more recent entries are undoubtedly the most alarming. “Dr. Death” has been implicated in the demise of 87 patients at a municipal hospital in Bundaberg, Australia. He has become infamous for not washing his hands between surgeries, for failing to use anesthesia during surgery and perhaps most famously, for performing a colostomy backwards (I’m not sure what that would look like, and I don’t really want to know). If you do take a few moments to google his name, you would be more diligent in researching the doctor than were his previous employer and the executive recruitment firm that brought him to Australia. Therein lies our tale.
Bundaberg is a farming community on the eastern coast of Australia, just south of the Great Barrier Reef. They are famous for “Bundy Rum” — an alcoholic beverage that presumably bears no relationship to the star of the dubious sitcom, “Married with Children.” The local municipal hospital was delighted to find a former professor of surgery at the State University of New York who was willing to relocate to Australia. Unfortunately, his tenure down under was not unlike his work in Oregon and New York. He had been suspended in New York and his license had been revoked in Oregon, where he had once worked for Kaiser Permanente.
Whistleblower Blown Off
One of the striking aspects of the story as presented in the New York Times (registration required) involves the head nurse at the hospital, Toni Ellen Hoffman. She continuously raised her concerns about Dr. Patel’s performance with hospital administrators, only to be told that she had a “personality problem.” After a particularly shocking incident, where a 9 year old girl watched her father die through Patel’s neglect, the nurse requested an inquiry. The administration’s response? They named Patel as the employee of the month!
Finally, as the result of a legislative inquiry, Dr. Patel’s name was published in a paper. An enterprising reporter Googled the name and the scandal finally exploded. Dr. Patel fled the country, returning to Oregon where he lives in a mansion and appears to be unenthusiastic about returning to Australia, where he could face charges of homicide.
Management Lessons
We often talk about the potential negligence involved in hiring and entrusting incompetent or dangerous people to carry out their responsibilities. Here we certainly have a case of negligence in hiring: the hospital in Bundaberg was so excited to find a credentialed foreigner willing to join their staff, they did not look beyond the documents he presented about himself. As we have seen, a simple Google search would have exposed Patel as both incompetent and dangerous.
In addition, Patel carried letters of reference from several of his Oregon colleagues. These letters were provided after his termination for cause; the doctors who wrote them are likely to find themselves involved in the many lawsuits that are going to come out of this situation, under the legal concept of “negligent reference.” Then again, perhaps the colleague who described Patel as “above average” has a very low opinion of the average doctor!
Beyond these examples of negligence, hospital administrators really messed up when they failed to respond to the alarms raised by a trusted member of the staff. The administration went into a denial mode that will severely compound their negligence in hiring: it’s bad enough to drop the ball on reference checking, but far more serious to ignore the evidence right in front of your eyes. The lawyers will have a field day.
Some are calling Patel a psychopath. Others think he is simply incompetent. The bottom line is that he did not belong in any operating room, anywhere in the world, including one in a relatively remote town on the shores of Australia. With the advent of the internet, the HR folks in Australia had access to the same data available in New York City. So here’s our advice: google new hires. It doesn’t cost anything, it only takes a few moments, and it might save you a whole lot of pain, suffering and trouble.