After a Thanksgiving hiatus, Health Wonk Review is back with your biweekly view of what the healthcare policy wonk’s have been blogging about. Brad Wright hosts Health Wonk Review: Holiday Shopping Guide at Wright on Health.
Workers Comp Networks – At Managed Care Matters, Joe Paduda has been front and center covering the matter of Aetna’s exit from workers comp and his post today, Aetna part 2. Also related, his post about Where work comp networks are headed.
UBB Report followup – In followup to yesterday’s post, here is a link to the MSHA Upper Big Branch Investigation Report – it’s a detailed account, including transcripts of interviews.
Bloodborne Pathogens – According to the CDC, about 385,000 sharps-related injuries occur annually among health care workers in hospitals, and the average risk of bloodborne infection following one of these injuries is approximately 1.8%. The NIOSH Science Blog posts about needlestick punctures and bloodborne pathogens, highlighting the film Puncture which is about the personal injury case of Vinessa Shaw, a nurse who contracts AIDS after an accidental stick. The post calls attention to the NIOSH injury prevention initiative, The Stop Sticks Campaign. which is aimed at clinical and nonclinical health care workers and health care administrators in hospitals, doctor’s offices, nursing homes, and home health care agencies.
Pole Dancing: – A Georgia Court recently ruled that Pole Dancers are not independent contractors. “The Judge found the club exercised control over the dancers because the amounts charged by the dancers for certain types of dances were set by the club. The club also established what amounts had to be paid by the dancers to the DJ and to other employees of the club each day at the conclusion of their shift. The club could also fine or fire the dancer for not coming to work or being late. The Judge also noted that every other FLSA case brought by exotic dancers from Alaska to Florida had concluded they were ’employees’, and not ‘independent contractors’.” Note: This is not the first pole dancing issue we’ve covered. My colleague posted about another claim with a pole dancing angle last May. This should lead to some interesting search results in our logs – not to mention some disappointed searchers.
Brain Trauma – the New York Times has a 3-part series on 28-year old professional hockey player Derek Boogard’s death due to repeated head trauma, chronic pain and a deadly drug addiction. Read part 1 A Boy learns to Brawl, Part 2 Blood on the Ice and Part 3 A Brain ‘Going Bad’. There is also a related video: An Enforcer’s Story. For a good resource on preventing, treating and living with traumatic brain injury, we point you to Brainline.org.
Related – In doing our rounds, we note that Dave DePaolo has an excellent post on Professional Sports and the Relevancy of Comp.
In the I-guess-it-doesn’t-go-without-saying department – Slightly off track here, but Bob Wilson has a rather unusual warning that we are passing along as a public service: Beware the Door to Door Breast Examiner.
News Briefs
Posts Tagged ‘brain injuries’
Health Wonkery, Networks, TBI, Pole Dancers & other news of notes
Thursday, December 8th, 2011Virginia’s No Brainer
Monday, April 11th, 2011We have long puzzled over a peculiar and cruel stipulation in Virginia’s workers comp statute that denies coverage to workers with brain injuries, where the injury had no witnesses and the injured could not testify on their own behalf. We first encountered the issue with a trucker named Arthur Pierce, who was found unconscious beside his truck with multiple skull fractures, a sinus facture and head trauma. Had Pierce been found dead at the scene, the injury would have been compensable. But because survived the accident only to die later at a hospital, the system invoked the rule that the claimant must provide direct testimony.
In their denial of benefits, the workers comp commission wrote:
The circumstances surrounding the claimant’s injury and death are tragic, and we are certainly sympathetic to the loss his family members have experienced. We are also mindful of the difficulties in obtaining and introducing sufficient evidence to support those claims…It would be purely speculative to infer that the only rationale (for the accident) was a workplace risk.
Purely speculative?. Sure, he might have been knocked off the truck by space aliens (which, to my mind, would still be compensable as he clearly was in the course and scope of employment).
Ever-So-Gradual Justice
We are pleased to report that the Virginia legislature – through a unanimous vote in both house and senate – has corrected the statute, which Governor Bob McDonnell has signed into law. Title 65 of the Code of Virginia now reads:
In any claim for compensation where the employee is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates the injury was work-related, it should be presumed in the absence of a preponderance of evidence to the contrary that the injury was work related.
It’s too late for Claire Pierce, Arthur’s widow, to benefit from a law that she diligently lobbied for. And while the Virginia legislature would never thumb its nose at the comp board, it would have been nice to call Title 65 the “Arthur Pierce Provision.” This grotesque loophole has finally been closed. Unwitnessed brain injuries may now be compensable. It appears to be a no-brainer, but it took the brains of Virginia a rather long time to reach this just conclusion.
Thanks to Workcompcentral(subscription required) for the heads up on this item.
Yes, Virginia, There Might Be a Sanity Clause
Tuesday, January 25th, 2011Two years ago we blogged the sad story of Arthur Pierce, a commercial driver in Virginia who suffered a traumatic brain injury and eventually died from a fall on the job. Pierce’s death was deemed non-compensable due to a cruel and rather peculiar glitch in the Virginia comp statute. Under the law, if a worker suffers a brain injury that is not witnessed by others, and the worker is unable to provide details on the injury (Pierce was found in a coma from which he never emerged), the incident is not compensable. There is no room for judicial discretion: no testimony, no benefits.
We also blogged a more recent incident, where Dan Casey, a cable installer, fell off a roof. Again, there were no witnesses and again, in the days and weeks following the incident, Casey had no memory of what happened. Fortunately for him and his family, he eventually was able to remember some of the details. With some reluctance, the insurer settled the case.
The problem, obviously, lies in the Virginia comp statute. Rather than allow the comp system the normal latitude in determining compensability, the law rigidly lays out a harsh standard: if there are no witnesses, the employee must provide the narrative. In the absence of a narrative, there can be no compensability. In the above rare but compelling circumstances, seriously injured workers were unable to provide details on exactly what happened.
The Fix is In?
There is finally some movement toward amending the faulty statute. Here is the language of a bill which recently made its way out of committee, onto the floor of the Virginia House:
Workers’ compensation; presumption that injury arises out of employment. Creates a presumption that a workplace injury results from an accident arising out of employment for purposes of the Workers’ Compensation Act if the employee is found dead or to have incurred a brain injury resulting from external mechanical force that impairs the employee’s brain function to such an extent that the employee is incapable of recalling the relevant circumstances of the accident. A judicially created presumption currently exists when an employee is found dead as the result of an accident at his place of work and there is no evidence offered to show what caused the death or to show that he was not engaged in his employer’s business at the time.
Note that the brain injury must be the result of “external mechanical force” – no aneuryisms need apply. This revision would crack open the door to compensability just enough for a grievously injured Arthur Pierce or Dan Casey to slip through.
Pierce’s widow has been lobbying the legislature to address this gaping hole in coverage for Virginia workers. She has nothing to gain, as the changes will not be retroactive. But it would be comforting to think that workers who suffer severe brain injuries on the job in the Old Dominion State will have recourse to the protections that are virtually universal for all workers. That would be a sanity clause, indeed.
Virginia Comp: Bad Law, Devastating Results
Monday, September 20th, 2010Last year the Insider blogged the unfortunate fate of Arthur Pierce, who died in a work-related accident, but whose claim was denied due to a glitch in the Virginia comp statute. Fearing a rash of bogus claims by workers faking severe brain injuries, the lawmakers allow insurers to deny any unwitnessed incident where the injured worker cannot testify to what happened. If Pierce had died instantly, his claim would have been accepted. By surviving for months without being able to talk, he never collected a dime.
Dan Casey, a columnist for the Roanoke Times, brings us the saga of Mike Gentry, who fell off a roof while installing a satellite dish. He survived, but suffered brain damage and severe physical trauma. While paying the claim at first (Gentry was in a coma and rehab for weeks), the insurer finally got to talk to him. Here is Mike and his wife Andrea’s summary of the exchange with the claims adjuster:
“She asked me,’Ever jumped off a roof before? Ever thought of killing yourself?'”
“I said, ‘No, and no.'”
And then she said, “Do you remember what happened?”
“And he said no,” Andrea interjected. “Because he didn’t. And she said, ‘OK, that’s all I need.'”
Thus, in accordance with the peculiar and patently unfair Virginia law, the claim was denied. Ironically, just 12 days before Gentry fell off the roof, an attempt to change the Virginia statute, instigated by Arthur Pierce’s widow, was defeated in committee. The revision would have allowed brain injured workers the same presumption of compensability as workers killed on the job. In the words of insurance lobbyist and attorney Charles Midkiff, any changes in the current law would be “an invitation to fraud.”
It was only through the kindness of strangers that Gentry and his family were able to survive the months without any insurance benefits. Then a minor miracle occurred: Gentry’s memory of the incident came back. Not all at once, but gradually. First, he remembered that the battery on his power drill died. A few more memories filtered in. Finally, about a month after the initial recall, he remembered everything. He was climbing down to get a replacement battery from his truck, when the ladder slid and he fell.
(Over)Due Process
Armed with this new information, Gentry filed for benefits. The carrier, defended by – who woulda guessed? – attorney Midkiff, managed to delay the hearing for months (from December 2009 until April 2010). Finally, three hours before the rescheduled hearing, the carrier caved and accepted the claim.
Mike Gentry will never work again. He has double vision, his speech is slurred and he is frequently exhausted. He has severe seizures and difficulty thinking. He takes 10 medications daily. But he and his family are finally protected by the workers comp safety net – no thanks to a carrier following the letter of the law, and no thanks to the legislators who think workers are going to fake brain injuries in order to qualify for benefits.
In the words of the immortal Frank Zappa: “The United States is a nation of laws: badly written and randomly enforced.” Not true of most laws, but certainly applicable to this bizarre and completely unnecessary provision of Virginia’s comp statute.
NOTE: The Insider is quoted in course of Casey’s fine article.
Traumatic brain injuries (TBI): in the workplace and in the field
Thursday, March 11th, 2010The Brain Injury Association reminds us that March is Brain Injury Awareness Month, so it was timely to see that our colleague Peter Rousmaniere has an important piece on brain injury recovery in the current issue of Risk Management magazine: Gray Matters: The Employer’s Role in Brain Injury Recovery. It is important for two reasons: it sheds light and hope on the issue of traumatic brain injuries and the improved prospects for recovery, including return to work; and it serves as an illustration of some important differences between workers compensation and group health
The article notes that each year, 50,000 Americans die of a traumatic brain injury and 235,000 are hospitalized. There really aren’t good statistics to tell us the prevalence of work-related brain injuries. Although there are better statistics available for what Rousmaniere calls “the signature wound of today’s wars,” many think that the estimate of 320,000 war-related traumatic brain injuries may be on the low side.
The good news, as Rousmaniere documents with examples, is that with proper medical care there have been great advances for a type of injury that was once written off as lost cause: “In the past, many adults with work-related traumatic brain injury were simply warehoused. But with advances in treatment and care strategies, including an employer that is ready and willing to help in gradual return to work, many survivors of severe brain injury can regain most of their former way of life.”
Part of the challenge is early identification, rapid response, and aggressive treatment early in the injury, and aggressive recovery goals. Patients who are treated in the workers comp system, where care is often managed and coordinated and where insurers and employers aggressively advocate for recovery and return to work, often have an advantage over those patients treated under group health. With workers compensation, employers/insurers have financial responsibility for the life of a claim and, therefore, more incentive to work towards maximum recovery. Rousmaniere cites a case manager who says, “You have a workers compensation brain injured patient who is in the same hospital room as a nonworkers compensation patient, and the difference in resources is like night and day.”
Rousmaniere cites examples of successes, along with best practices that contributed to those successes – including the important role that the employer can play in maximizing recovery, some of the challenges that occur, and some of the best practices:
As with all successful brain injury recoveries, job coaching is a critical phase that demands employer participation. Rehab counselors often make the trip with the worker back to her or his workplace. Memory failure, a signature feature of brain injury, is sometimes best treated, in part, at the physical site of the employer. So for several months, the vocational specialist helps the worker find ways to organize the day, reinforce memory and work with others. In this way, the patient’s prospects for recovery are greatly improved.
Department of Defense embarks on more aggressive brain injury screening program
Rousmaniere discusses the prevalence of war-related TBI and some of the promising medical advances. He cites the recovery of reporter Bob Woodruff, perhaps one of the cases that we are all most familiar with due to the news coverage. After returning to his job as a reporter, Woodruff became an advocate for our soldiers in the field, developing a ReMIND, a foundation to provide resources and support to injured service members, veterans and their families.
In speaking of his own recovery, Woodruff praised the quality of the care and support that he received, but saw with dismay that such treatment and recovery resources were not always available to service members with similar injuries. He saw the military culture as often stigmatizing or impeding screenings, and treatment options being limited once a vet returned home. That’s why the Department of Defense’s recent policy announcement is such welcome news: head-injury evaluations will be mandatory for all troops who suffer possible concussions. Moving to an incident-based response is a significant change from prior protocol, which depended on service members to self-identify with a complaint. The weakness in this approach is that service members are highly mission-focused and can shrug off complaints that can later prove to be serious problems.
America’s Heroes at Work is a U.S. Department of Labor project that addresses the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and/or Post-Traumatic Stress Disorder (PTSD). The resources and links pages are particularly helpful – and a good resource for employers who are working with either vets or non-vets who are recovering from TBIs.
TBI resources
Brain Injury Association of America
Survivors’ Voice
Traumatic Brain Injury Survival Guide
Brain Injury Resource Center
Promising PTSD and TBI research holds hope for better treating injured veterans
Wednesday, November 11th, 2009On this Veteran’s Day, here’s a salute to all the veterans and active military service members out there. In the shadow of the horrific events at Fort Hood, this day of commemoration takes on a particular poignancy.
Here at Workers Comp Insider, we have a tendency to view things through the lens of dis-ability and the restoration work-ability because that’s the nature of what it is that we do. So we were particularly intrigued to read about new research that is offering hope to unlock some of the secrets of post traumatic stress disorder (PTSD) and traumatic brain injuries (TBI), two of the most frequent and debilitating types of injuries sustained in Afghanistan and Iraq.
Powerful new scanning techniques are allowing doctors to see how the brain changes with such injuries, and doctors are learning that there are many similarities in these injuries, including symptoms like memory and attention problems, anxiety, irritability, depression and insomnia. This leads researchers to believe that the two disorders share brain regions.
“A brain processing system that includes the amygdala — the fear hot spot — becomes overactive. Other regions important for attention and memory, regions that usually moderate our response to fear, are tamped down.
“The good news is this neural signal is not permanent. It can change with treatment,” Hayes says.
Her lab performed MRI scans while patients either tried to suppress their negative memories, or followed PTSD therapy and changed how they thought about their trauma. That fear-processing region quickly cooled down when people followed the PTSD therapy.
It’s work that has implications far beyond the military: About a quarter of a million Americans will develop PTSD at some point in their lives. Anyone can develop it after a terrifying experience, from a car accident or hurricane to rape or child abuse.”
These physical signs that tests are revealing hold the potential to greatly enhance a physician’s ability to accurately diagnose and treat PTSD – an illness that is often unrecognized and untreated. While there is heightened awareness of PTSD, it can be difficult to diagnose and there are limitations for establishing accurate prevalence rates.
Additional Resources on PTSD and TBI
National Center for PTSD – with resources for veterans, the general public, providers, and researchers
Veterans: where to get help for PTSD
Post-Traumatic Stress Disorder (PTSD) – from the National Institute of Mental Health
Post Traumatic Stress Disorder Gateway
Defense and Veterans Brain Injury Defense Center
Traumatic Brain Injury Information Page – from the National Institute of Neurological Disorders and Stroke (NINDS)
Traumatic Brain Injury – from the CDC
It’s Cavalcade of Risk week; that and other news briefs
Wednesday, October 7th, 2009Feeling risky? Cavalcade of Risk #89 is posted at David Williams’ Health Business Blog. David is a master of the brief synopsis making it a very user-friendly compilation to browse.
Other news briefs
Fire Prevention – We’re right in the middle of Fire Prevention Week, a good time to communicate with your employees about fire safety at work as well as at home.
Economy and workers comp – At Comp Time, Roberto Ceniceros looks at the issue of how continuing job losses could hammer comp. He notes that, “Comp researchers have referred to recessions and the accompanying fear of job loss as having a ‘disciplining effect’ on workers, which leads to fewer claims filed. But that effect may only last so long.” And for another perspective on where we are headed, at Managed Care Matters, Joe Paduda reports from the AmComp conference, predicting that workers comp results are going to get worse – he points to medical costs as the culprit. And for more on this topic, see How the Great Recession is Changing the American Workplace, an article in Insurance Journal by Jay Reeves and Christopher Leonard. The authors look at effects that are likely to be long lasting.
Hawaii – In 2010, workers comp rates in Hawaii are expected to decline for the fifth consecutive year. Insurance Commissioner J.P. Schmidt says, “This is the largest workers’ compensation insurance rate decline of any state in the nation, except possibly those states that have enacted major statutory reforms.”
Traumatic brain injuries – Military medicine practiced in response to war injuries has always been a proving ground for medical advances and the Iraq war has been true to form. The L.A. Times features an excellent article on what we are learning from the battlefield about treating traumatic brain injuries. Many of the symptoms of PTSD can mimic the symptoms of traumatic brain injury, which can be better identified with new diagnostic imaging technologies.
Friction reducing devices – On the MEMIC Safety Blog, Lauren Caulfield talks about friction reducing devices aka “slider sheets” as a way to reduce injuries in healthcare settings when repositioning and turning patients.
Followup on UCLA lab death – ChemJobber has some recent updates in the case of Sheri Sangi, a UCLA lab worker who died in a fire while working. We’ve talked about this case last June in Death in the lab: why aren’t university labs safer? and More on the UCLA lab death of Sheri Sangji
Legal matters – In the Wall Street Journal, Cari Tuna talks about the rise in employer retaliation claims, which were up by 23% in 2008, according to the Equal Employment Opportunity Commission. The article quotes one employment law attorney who puts retaliation as the No. 1 risk for employers today. Jeffrey Hirsch at Workplace Prof Blog says part of the reason is something akin to the principle it’s not the crime, it’s the cover up.
Every picture tells a story – We’ve previously pointed to the Naval Safety Center’s Photo of the Week. hair-raising photos of unsafe work practices. The Safety Duck Quacks also has a collection of photos of unsafe work situations.
Quick links
Mortality calculators
Lessons learned on e-mail – When it comes to messages, some traces can linger
So You Think Your E-Mail Is Really Deleted?
Owner-Operator truckers back texting while driving ban
World statistics updated in real time
