Posts Tagged ‘Disability’

The Sickest Of The Sick, The Poorest Of The Poor

Tuesday, April 5th, 2016

They comprise less than 4% of the nation’s population, yet consume nearly 34% of health care dollars. Sixty percent are age 65 or older. About 40% are younger people with ADL-qualifying disabilities. More than half fall below the federal poverty level. Almost half never graduated high school. Nearly two-thirds are female. Fifty-eight percent are white/non-hispanics.

They are America’s “Dual Eligibles,” our fellow citizens who qualify for both Medicare and Medicaid benefits. Technically, because they’re Duals, they are not the “uninsured.” Still, they sit smack dab in Obamacare’s bulls eye.

In 2003, here in Massachusetts, a pioneering visionary decided to create a non-profit HMO that would offer as its sole product a Senior Care Option plan aimed at the over-65 Dual population. As a former head of the Long-Term Care Division within the Commonwealth’s Medicaid Program, Mass Health, Dr. Bob Master knew a lot about the Duals and the many challenges they presented. Somehow, he convinced a few academics and business people to join his brand new Board of Directors for his Quixotic quest. I was one of them.

In the early days, the hunt for funding was all-consuming, but against considerable odds, funding was found, and, with the support of CMS and Mass Health, an incubator for the nation was born – Commonwealth Care Alliance.

Bob immediately set out to prove that Duals could achieve significantly better health and well-being at lower cost if they were cared for in a home-based regimen by highly trained teams of providers. And between 2003 and 2014, CCA produced eye-popping proof of concept results. For example, thirty-day hospital readmission rates for these sickest of the sick and poorest of the poor consistently beat Medicare’s overall rate. CCA achieved annual Medicare star ratings of 4.5 or better (Because of Senior Care Option demographics, it is statistically impossible for the company to achieve a higher rating).

CMS took note. And when medical, academic and political luminaries were crafting the Affordable Care Act, Bob was instrumental in convincing them Duals were a target not to be missed.

Consequently, the Affordable Care Act created demonstration projects in nine states from California to Massachusetts to see whether it’s possible to improve the health of all Duals, those over the age of 65 as well as under it, while reducing their health care costs. A tall order, indeed, because it had never been done before.

CMS and Mass Medicaid issued a humongously big RFP. Commonwealth Care Alliance answered it and won the right to play in the new sandbox, called One Care. The year 2014 was spent in preparing. For example, in order to be ready, the company had to double the size of staff (there are now more than 800) and train the newbies to successfully manage CCA’s unique model of care. That was not easy.

In early 2015, we opened the floodgates to the state’s thousands of Duals under the age of 65. Since then, it’s been a thrilling ride, because throughout 2015 CCA had a few near-death-experiences. But with the help of both CMS and Medicaid we were able to negotiate the potholes and speed-bumps, and now, after more than a few sleepless nights, the company cares for more than 17,000 Duals with Medicare and Medicaid premium of more than $850 million. In essence, CCA is beginning (barely) to do well by doing good. To my mind, if the Affordable Care Act, Obamacare, does nothing more than significantly improve the lot in life of the nation’s Duals while lowering their cost of care, it will be a success of the first order.

Now, it’s time to turn the reins over to a new era of leadership. Last Friday, we had a retirement party for Bob Master where CCA employees who could free themselves from work for a couple of hours came to Boston to say hail and farewell. Many came on their own time. There was a great big cake and a lake-full of diet soda and coffee, but no dignitaries, just current staff and a number of Directors. The Chair of the Board said nice things about Bob and the ride we’d all been on. I described how, after all this time, Bob and I had discovered less than a year ago over lunch that, in addition to growing up in the next town to each other, we had been comrades in arms back in the late-60s in Vietnam; in the same Division, even, at the same time. Funny, that.

Many employees read stories they’d prepared for the occasion. Honest tears were shed. Bob gave an extemporaneous speech that was heartfelt and touching. He thanked all who had joined in the noble quest, many by name. Then he rode off into the sunset.

But the work goes on.

 

 

 

 

Fifty States, Fifty Different Laws: A Peter Rousmaniere Analysis

Monday, February 1st, 2016

According to the Bureau of Labor Statistics’ (BLS) Consumer Price Index calculator, what you bought for $100 in 1973 would today cost $533.82. Despite this, during that same period wage growth for the median hourly worker grew by less that 4%. 

Moreover, as the following chart from the Economic Policy Institute (EPI) shows, while wages flattened out after 1973, productivity continued to increase at a steady pace through 2010.

Everything seems to be going up across America except hourly compensation. That helps explain why our recent economic high hard one to the head, known as The Great Recession, has left so many families living paycheck to paycheck, one crisis away from living under a bridge. It also illuminates why the indemnity and medical benefits of workers’ compensation are critical to economic survival following a work injury.

In 2015, ProPublica and NPR published a series of exposès that showed widespread disparity in the way the various states deal with work injuries. Workers’ comp professionals didn’t like the series much, complaining en masse that it was biased, agenda-driven and just plain wrong. Silly me, I thought the series actually made some important points, especially around the level of compensation for loss of function.

Into this battle now rides Peter Rousmaniere, friend, colleague, Harvard MBA, WorkCompCentral columnist and all-around deep thinker.

Mr. Rousmaniere spent a good portion of 2015 researching the economic consequences to injured workers with respect to how the different state workers’ compensation laws deal with the early days of a work injury. He illustrates his findings in The Uncompensated Worker: The Financial Impact of Workers’ Comp on Injured Workers & Their Families, published as a workcompcentral special report.

In the Uncompensated Worker, Peter Rousmaniere creates the metaphorical Tim, a New York electrician earning the median wage for New York electricians. He then goes really deep into the take home pay hit Tim experiences following a work injury. He shows how Tim will always suffer earnings losses while injured regardless of how long he’s out of work, and he does it by considering the waiting period (the number of calendar days between the injury and when indemnity payments will begin), the “shortfall” (“The difference between a workers’ after-tax take-home pay and the amount of the replacement wages”), the “retroactive” calculation (the number of days an injured worker has to lose from work before being paid indemnity for the waiting period) and the maximum weekly benefit cap.

Here’s how Rousmaniere describes what happens to Tim if he misses three, six or ten days due to the injury:

While Tim’s 6% shortfall may not seem unreasonable, additional deductions further reduce his replacement wages. First, there’s a waiting period during which a worker receives nothing, a retroactive period (in most states) and a maximum weekly benefit cap. The amount Tim actually receives depends on the number of days he missed work. We can correlate work and calendar days for Tim by looking at a calendar and figuring his first lost work day on a Monday. If Tim misses three days of work, he receives nothing; losing six days of work yields close to one work day of replacement wages, and losing 10 work days yields five work days (seven calendar days) of replacement wages.

With that New York backdrop, Rousmaniere then shows how Tim would fare in each of the other states. But he goes even farther. Drawing from Economic Policy Institute estimates, which create basic monthly household budgets based on household size and location “to attain a modest yet adequate standard of living,” he builds an EPI-estimated monthly basic budget for Tim and his family of four. He then lays out what happens to the family economy when Tim is out of work due to injury for an extended time, say more than a month. If Tim’s spouse works part-time, the family can’t afford the basic budget in 29 states; if the spouse doesn’t work, they’re under water to the tune of $2,200 a month in every state.

This is sobering stuff. The 50-state and District of Columbia chart at the end of the report is nearly totally comprised of negative numbers.

Reading the report, I’m left with this: Assume (as most claim adjusters tell me) that well over 90% of injured workers really are injured and want to get back to work as expeditiously as possible. Should those workers suffer economic deprivation simply because they had the misfortune to be injured at work? Does society have an obligation to ensure that families, already perilously close to the edge of the financial cliff, are not booted into the abyss because of that work injury? And, finally, is it time for indemnity and medical benefit parity among the states (for example, if Tim were injured in New Jersey he’d fare considerably better than in New York)?

Peter Rousmaniere has performed a valuable service with The Uncompensated Worker. When (it should not be “if”) you read it, you’ll come away admiring the level of research and detail that went into producing it. I also hope you come away thinking their just might be a better way.

 

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.

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 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.

Aging Workers, Limited English, Limited Skills

Tuesday, November 20th, 2012

When a laborer with limited English is disabled from physical work, is he obligated to increase his employability by learning English? This interesting question emerged in the case of Enrique Gutierrez, a 48 year old welder who worked at Merivic, a company specializing in grain-related processing. Gutierrez came to the United States at age 14, but in his 34 years in the country never learned to speak or write English. While at work, Gutierrez fell about 10 feet onto a steel table, injuring his shoulder and wrist. He underwent two surgeries, worked for a while as a one-armed welder, and then was let go. His post-injury functioning was significantly limited, including difficulty lifting and carrying, gripping and grasping, and reaching.
When the workers comp commission found him permanently and totally disabled, the employer appealed and the case reached the Iowa Court of Appeals, where the finding of compensability was upheld. Up until 2007, Iowa courts routinely lowered the indemnity paid to limited English speaking workers, on the theory that a language disability was something within the power of the worker to correct. A case entitled Lovic v. Construction put an end to that practice. The reasoning in this decision is worth quoting:

Unfortunately, this line of cases [involving reduced indemnity]
overlooked the fact that the employers who hired these workers should
have reasonably anticipated that an injury which limits an ability to return
to manual labor work would have far more devastating consequences
upon non-English speaking workers than English speaking workers.
Oftentimes, this agency has penalized non-English speaking workers
despite the knowledge that the employers actually recruited such workers
because they were willing to work for less wages.

In other words, you get what you pay for: limited English speaking workers are willing to work for less, so the employer benefits from this potential “disability.” The ruling goes on to attack the rationale for the reduced wages:

What has been troublesome to many, including myself, is that this
agency has never similarly treated non-immigrant workers for failing to
learn other skills. Defendants would certainly have trouble citing any
agency or court precedent in the workers’ compensation arena where an
industrial award for an English speaking worker was lowered because the
injured worker, before the injury, failed to anticipate he would suffer a
devastating work injury and failed to obtain a type of education before the
injury that would mitigate the effects of such an injury.
We simply cannot assume that claimant was capable of such training or that such classes are generally successful in leading to employment where fluent English is required . . . .

By reiterating the logic of the pre-Lovic court, Merivic was attacking settled – albeit recently settled – law. The Appeals Court rejected this “collateral attack” on Lovic and upheld the permanent total award, and in doing stumbled upon yet another conundrum: that of the older worker. The court found that once a laborer goes beyond age 47, his ability to perform physically demanding work comes into question. A vocational expert retained by Gutierrez described the 48 year old worker as “approaching advanced age.” The Judge noted that “We have previously held the age of forty-seven is a factor that the commissioner may consider in finding industrial disability.” The expert also noted that Gutierrez’s entire career involved “limited education” and a work history limited to physically demanding jobs, which his permanent work restrictions now prevented him from performing.
The Very Big Picture
Our Colleague Peter Rousmaniere provides a valuable perspective on aging manual workers. In his Risk & Insurance article “The Age Trap” he points out that 55+ workers comprised 16.7 percent of the workforce in 2010, a number projected to increase to 22.7 percent by 2020. In contrast to Enrique Gutierrez, most aging workers are not injured and eligible for workers comp; to be sure, their bodies are wearing down and they are confronted with diminishing strength and balance, even as they desperately try to hold onto their places in the workforce. Rousmaniere suggests that employers develop a renewed focus on prevention, one that has been adapted to the realities of the aging worker. After all, these workers are valued for the skill and experience they bring to the work, even as their work capacities diminish.
The Big picture here – and it is a very big picture indeed – is the dilemma of aging workers who perform physically demanding jobs and who have little education and virtually no transferable skills. There are millions of such workers, some are immigrants, while many others are native born. Most have zero prospects for a secure retirement, even as Congress contemplates pushing social security retirement even further into the future.
Whether they like their jobs or not, aging workers see themselves working out of necessity well into the their 60s, 70s and even 80s. As their bodies inevitably wear out, as their injuries (cumulative and sudden) lead a number of them into workers comp courts across the country, judges will be confronted with the same dilemma that faced the appeals court in Iowa: for older workers with no transferable skills, workers comp becomes the retirement plan of choice for those with no retirement plans and no way to continue working.

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.

Annals of Compensability: Oh, My Aching Pedicure

Monday, June 25th, 2012

Kelly Taylor worked as an accountant for Community Health Partners (CHP) in Montana. On her way out for lunch in May 2009, she slipped on the stairs and landed on her tailbone. Her primary caregiver, Rebecca Hintze, worked for the same employer and provided medical advice soon after the injury. The claim was accepted by the Montana State Fund. Taylor suffered from pain off and on over the following months, using up her sick leave in a random succession of 1-3 day episodes. She did not seek comp indemnity for these incidents as she mistakenly thought comp required 4 consecutive lost days.
Over a year later, in September of 2010, Taylor was sitting on a couch at home. She put her foot on her coffee table and bent over to paint her toenails. When she finished, she tried to stand up, but immediately had difficulty, experiencing extreme pain in her back and down the front of her leg. In the following weeks, she experienced this sharp pain two more times, once after stubbing her toe on a rug at CHP and again when she was scooping out cat litter. (For all the severity of the injury, this case is sublimely prosaic in terms of risk.)
Because of the long gap between indemnity payments, and because an IME found that the herniated disc following the pedicure was a new injury and not a recurrence of the old one, the claim was denied. Taylor appealed, and the case came before the estimable Judge John Jeremiah Shea, whom we have encountered a couple of times in the past: in the notorious “pot smoking with bears” incident, and in another complicated claim involving a non-compensable back injury.
Dispensing Dispassionate Justice
Judge Shea appears to be a relentless seeker of fact and a dispassionate purveyor of justice. While he praises both the IME doctor (for reasonably concluding that the pedicure incident involved a new injury) and the claims adjuster (for reasonably denying benefits), he over-ruled the denial and reinstated the benefits. He found continuity in the documented self-treatment and in the somewhat informal, ongoing treatment provided by Rebecca Hintze. While the IME doctor had stronger credentials and a longer track record, Hintze had “substantially more opportunities to observe and talk with Taylor about her injury in both formal appointments and in informal workplace conversations.”
He concluded that the pedicure injury was an aggravation of the back injury suffered over a year prior. At the same time, he denied an award for attorney’s fees to Taylor, as he found that in denying the claim, the adjuster had acted reasonably.
All of which might appear to be much ado about not much, but in the intricate and ever-evolving world of comp, this case embodies a core value of the system: the relentless effort to determine whether any given injury occurred “in the course and scope of employment.” Judge Shea, connecting the dots as methodically as a detective, concludes that the pedicure injury was an extension of the original fall. While the ruling itself can be questioned, Judge Shea’s method and discipline are beyond reproach .