Jimmy Walters worked for the Florida Department of Corrections. In December 2009, he came down with a cold, but continued to work for a week. He suffered from chills and nausea on his days off and then experienced chest pain. He went to a hospital, where he was treated for “heart symptoms” and subsequently diagnosed with myopericarditis and cardiomyopathy. He was hospitalized for several days. He filed a workers comp claim, under the Sec 112.18, the “firefighter’s presumption” which creates a rebuttable presumption of occupational causation for disabling heart disease.
For most workers, there would be no conceivable issue of compensability for flu-caused heart problems, but most workers do not work in the public safety arena and most workers are not protected by presumption laws. The facts of the case were not in dispute: there was a direct causal relationship between Walters’s stomach flu and subsequent heart problems. His initial claim was denied by the state of Florida and by a judge on appeal, who ruled that Walters had not proven that his viral gastroenteritis was an occupational disease or that the exposure was traceable to the workplace.
The District Court of Appeal overturned the ruling and awarded benefits for the treatment of heart disease. The judges noted that the presumption statute shifts the burden of proof from the claimant to the employer: “The state had the burden to prove he did not get the virus at work, and failed to carry its burden.” Some burden! The chain of causality is stark and rather crude: for public safety employees, any heart ailment caused by illness is compensable, unless the employer can trace the exposure to specific, non-work conditions. Where the cause/exposure is unknown – as in most cases – there can be no outcome other than the awarding of benefits.
By facilitating benefits to firefighters and police who may develop cancers or heart desease related to employment, law makers acknowledge the unique exposures for the people who protect us.[Back in 2008, my colleague Julie Ferguson provided the background for presumption laws.] But the generous language of these statutes may open the door to compensability far wider than any prudent legislature would intend.
The Politics of Presumption
In practice, presumption laws may create as many problems as they solve. For stressed taxpayers who ultimately foot the bills, cases of questionable compensability can be shocking: the firefighter with lung cancer who smokes two packs a day, the obese cop with heart disease, and now, the corrections officer with a flu-caused heart problem. Are these truly work related? For most people, the answer would be “no way.” For the public safety employees covered by presumption laws, compensability is a given. Their safety net is woven of much finer cloth than that which protects most people in the working world.
Posts Tagged ‘illness’
Presumption Laws: Wide Open Door to Benefits
Monday, October 22nd, 2012Cavalcade of Risk & other workers’ comp news briefs
Thursday, November 5th, 2009Debbie Dragon or Wise Bread hosts this week’s Cavalcade of Risk, which she dubs the “the How Much Assurance Does Your Insurance Offer edition.” As usual, a good source of some of the best biweekly risk-related posts in the blogosphere!
OSHA – frequent citations – OSHA recently announced its Top 10 Enforcement Citations. For a more generic, non-company specific view, see the top 10 lists for the most frequently cited standards and the standards with the highest penalties. To narrow down to information to an industry SIC code, a state, or a size of employer, see the interactive frequently cited OSHA standards page.
Montana Supreme Court – Montana’s Supreme Court ruled that workers’ compensation benefits for permanently and totally disabled workers are meant to assist them for their “work life,” and not into retirement. Writing for the 5-2 majority, Justice William Leaphart stated that, “By acting to terminate benefits as it does, (the law) rationally advances the governmental purpose of providing wage-loss benefits that bear a reasonable relationship to actual wages lost.”
Chronic illness – This week, Roberto Ceniceros has featured a pair of posts related to chronic illness on his Comp Time blog. The first highlights a research report from the Integrated Benefits Institute in which nine in ten workers reported one or more chronic health problems. The report is based on 27,000 employee surveys. In his second post, Ceniceros explores the issue of wellness programs as they relate to chronic illness and workers comp. He makes the point that an increasing number of employees may be getting better health care attention after reporting a comp injury, but that is likely true mostly for employees of large, sophisticated employers.
Related to this issue, Peter Rousmaniere writes about “the elephant in the room” in his column in Risk and Insurance, noting that co-morbidities — such as obesity, depression, diabetes, sexual trauma, smoking, and drug addiction — derail the recovery of injured workers and pose challenges for claims adjusters and case managers. He makes the point that the the workers’ compensation courts are more inclined today to rule that insurers “own” the comorbidity that impedes recovery, as evidenced by the recent weight-loss surgery rulings.
Long road to recovery – the Pocono Record features the story of John Capanna’s long, slow recovery from a severe industrial injury. John was severely burned and disfigured in a flash explosion at an oil refinery some 30 years ago. It’s a story of courage and strength. Thanks to SafetynewsAlert for pointing us to this story.
Saving lives through safety – Robert Hartwig, president of the Insurance Information Institute, makes the case that insurers don’t get enough credit for saving lives with safety research in this month’s National Underwriter. Among the points that he makes: “Today, workers’ comp insurers are a primary source of loss control expertise for millions of American businesses – with tangible results. Consider that in 1926, an employee working in a manufacturing setting had a 25 percent chance of being injured on the job. In other words, one-in-four workers suffered injuries each year. In 2008, the odds were only about 5 percent, or just one-in-20.”
Ferreting out fraud through social networking – Attorney Molly DiBianca discusses risks entailed in using Facebook to investigate employee fraud, suggesting guidelines to ensure employer protection.
Quickies
Surgical Fire Prevention
Who is the authorized employee for Lockout/Tagout?
Lack of paid sick days may worsen flu pandemic
Your forklift questions answered
More forklift questions, more answers
Compensable Sunshine, Revisted
Tuesday, May 26th, 2009Our blog last week linking skin cancer to workers comp has already generated a few comments. “Workers comp attorney” raises some interesting questions:
(1) How much weight do you give to the person’s leisure activities and/or length of employment? It seems these would certainly be factors in assessing whether the employment is the predominate cause.
When assessing the work-relatedness of skin cancer, claims adjusters will look carefully at non work exposures: hobbies such as hiking, fishing, boating, outdoor sports, surfing, swimming or simply tanning. Balanced against these exposures will be the work setting: outdoors all the time (eg, roofing, migrant farm work, paving) or just incidentally (framing carpentry).
While the case law is still rather limited, there are examples of compensable skin cancers involving a limousine chauffeur (!) in New York and an architect in Texas. [NOTE: a sun screen manufacturer, unsurprisingly, is keeping close track of case law developments!] It is safe to assume that the burden of proof remains on the employee to show that the cancer is work related, but this burden is now supported by substantial medical evidence. Indeed, the existence of government funded education on the risk – here is a CDC link – would tend to support claims of compensability.
As far as length of employment goes, it usually does not matter. As in the case of repetitive motion injuries, the most recent employer is usually on the hook for coverage, even if the employee has only been working for a few weeks.
(2) What steps could employers take to prevent work-related skin cancer other than the mentioned provision of sun screen and policies to enforce dress code?
Employers should just stick with the basics: provide – and enforce the use of – sun screens; require head gear. In the vast majority of exposed workers, this is not happening. There is research showing an increase in skin cancers among Latinos. I wonder if this is related to the negative cultural images associated with protective gear. [NOTE: my teenage daughters hate my wide-brimmed sun hat. It’s just not cool!] [I wear it anyway.]
(3) What about research indicating that some, if not all, sunscreen products are carcinogenic?
While there is some evidence that tanning booths may be associated with cancer, I am not aware of any medical evidence to support a connection between sunscreens and cancer. In any event, the risk of not using a sunscreen far exceeds the risk of using one.
4) What balance should be sought between skin cancer and heat-related illnesses (if any “balance”) as far as prevention is concerned?
Skin and heat protection are not mutually exclusive. People have been covering up in desert cultures for centuries by wearing light colored, loose clothing and head gear. (I hardly need add that American workers would vehemently reject any protective measures that made them resemble middle-eastern sheiks!)
Proactive, Reactive, Inactive?
Another reader wonders how many companies have actually implemented the recommended preventive measures. That’s a great question. Judging by limited observation of workers in the sun, smaller employers have done little if anything to prevent risk. Any time I see a worker in the hot sun, shirtless and hatless, I assume that the cancer issue is simply being ignored.
What, if anything, will mobilize employers to take action to limit sun exposures? It usually comes down to money. Employers who operate in states that view skin cancer as potentially work related will eventually find it cheaper to provide (inexpensive) sunscreens and hats to their workers in the great outdoors. If state courts reject these claims, the workers will bear the burden.
Let’s hope that employers take action before the courts force the issue. We have a known risk and we have proven remedies. Reason says that employers, at a minimum, will immediately share this information with exposed workers. But then again, how often is the voice of reason heard in the American workplace?
Swine Flu part 2 – links to helpful resources for employers
Wednesday, April 29th, 2009To follow up on my colleague Jon’s Monday post on Swine Flu Meets Workers Comp, we’ve compiled a list of swine flu news and planning resources for employers.
How Employers Should Respond to the Swine Flu Outbreak – the Workplace Safety Compliance Practice Group of the employment law firm Jackson Lewis suggests 8 steps for employers to take in responding to employee concerns.
PandemicFlu.gov – Workplace Planning – HHS and the Centers for Disease Control and Prevention have developed guidelines, including checklists, to assist businesses, industries, and other employers in planning for a pandemic outbreak as well as for other comparable catastrophes.
Guidance on Preparing Workplaces for an Influenza Pandemic – a new guide for employers from OSHA
CDC Swine Influenza – news, updates, and resources from the Centers for Disease Control and Prevention
WHO Swine Influenza – global updates and news from the World Health Organization.
MedlinePlus: Swine Flu – excellent page with news, articles and links to a variety of resources.
Taking Care of Yourself: What to Do if You Get Sick with Flu – from the CDC
Taking Care of a Sick Person in Your Home – from the CDC
Maps
Global disease alert map from HealthMap
H1N1 Swine Flu
News feeds
CDC Emergency Twitter feed
What’s new on the CDC Swine Flu page
CNN Health News
Y! Health Cold & Flu News
Morbid Obesity: One Man’s Tale
Monday, June 27th, 2005David Montgomery, a staff writer for the Washington Post, has written a moving and intimate article (registration required) about John Keitz, who weighs 625 pounds (down from his maximum weight of 781 pounds). The article is accompanied by a remarkable set of photographs, which you should be able to link to at the article. Keitz is so heavy his legs will not support his weight. The last time he stood on his feet was Aug. 1, 1998. That night he was making macaroni and cheese for his wife, Gina. He boiled and drained the noodles. Right after he cut in the Velveeta (nutritionists take note), he went down — and he has been bedridden ever since. Keitz is 39 years old. This article presents Keitz as a man of Falstaffian dimensions, who regales the reporter with his exploits as a youth and dreams of the day when he can sit up and even stand up on his own.
Morbid Obesity Personified
Keitz has to lie on his front, because if he were to lie on his back, rolls of flesh would press on his windpipe and suffocate him. His head never touches sheet or pillow. At night, his left cheek nestles upon a soft white pile of shoulder and breast meat.
Every time Keitz must be moved — usually to the hospital to treat his asthma — a major public drama ensues. One time, firefighters removed two windows from his second-story apartment and extracted him with a lift truck. More recently, firefighters used a whale sling from the National Aquarium in Baltimore to haul him out of his house in Dundalk. They put him on a flatbed truck. His ordeal was rehashed on late-night television and morning radio.
Obesity as Illness
At 26, Keitz got the first dramatic warning that his weight was barreling out of control. On the job at a bowling alley, his knees gave out. Doctors diagnosed severe arthritis. He stopped working regularly and began receiving disability checks. I think we can assume that the disability payments were under SSDI and not workers comp.
Montgomery writes that many scientists, doctors and health insurance executives are coming around to the conviction that obesity is a disease. But it is a disease with personal responsibility attached. Advocates for obese people say health care is full of conditions that involve personal choice: smoking; alcoholism; gum disease brought on by poor dental hygiene; skin cancer following too much tanning. Yet obesity is unique in how much blame is placed on the victims themselves. “Once you take off this moral interpretation, it is a dysfunction of the body and an abnormal physiological state,” says Morgan Downey, executive director of the American Obesity Association in Washington.
Workers Comp Risks
I would direct you to the 6th image in the gallery of photos that accompanies the article. (It is sometimes difficult to access Washington Post articles, so I will describe the scene in detail.) Six men from East Coast Ambulance surround Keitz. They have placed a yellow rubber tarp under him. On the count of three, they all lift. You can see the strain on the face of one of the men near to the camera — the faces of the others are obscured in the dim light of the dingy apartment. The men have only the yellow tarp to hold — there are no handles, so the lift places tremendous pressure on their forearms, fingers and wrists. Four of the men are clustered around Keitz’s formidable upper body, so only two are available to lift his lower body. Theoretically, it’s a 105 pound lift for each man. However, Keitz’s great bulk is prone to shifting, so the weight itself may change as they head for the ambulance. Indeed, you can tell from the photo that some of the men bear more weight than others (at least one appears to be “dogging” it). Ergonomically, the lift is far from ideal. Beyond that, there is clutter on the floor — tripping hazards for the men as they begin to move Keitz toward the door. There is no stretcher or gurney in the photo — it appears that they are going to carry him out of the house to the waiting ambulance.
The doorway is of average width. How will the men get through it, when Keitz’s bulk alone will barely fit through? The men at his head will have to squeeze ahead, while trying to keep Keitz from slipping out of the sling. We are left with no answers, as this is the only photo of this particular move. Given the absence of additional details in what is a very comprehensive article, perhaps we can assume that the lift was performed without any problems. No workers comp claims this time. (One hospital client of ours had two serious back injuries in the single lift from an ambulance of a similarly sized person.)
Heavy Issues
Obesity is surely a personal crisis for those who suffer from it, as well as for those who love them. It presents challenges to employers. It is also a crisis for the insurance industry — to pay or not to pay for stomach stapling, that is the question — see this Los Angeles Times article. On the front lines, it’s a huge challenge for health care workers who are called upon to move morbidly obese individuals under very difficult conditions. In the working world, it’s not always possible to perform the work as outlined in the ergonomic textbooks. All too often the workers — and their employers — are left to bear the consequences.
The Smallpox Conundrum
Friday, January 28th, 2005Remember smallpox? At the height of concerns about terrorism following 9/11, the federal government proposed that health care providers and first responders get vaccinated against the disease. The lack of response, as they say, was deafening. Recently there was a privately-funded simulation of a smallpox incident in the news. Headed up by former Secretary of State Madeline Albright, the exercise — dubbed “Atlantic Storm” — posed a scenario in which terrorists spread dried smallpox at an airport in Frankfurt, Germany and a number of other locations throughout Europe and the United States. The simulation revealed a number of serious weaknesses in our current planning. As the former Polish Prime Minister, Jerzy Buzek, put it: “Fortunately, we are not prime ministers anymore. Nobody is ready.”
Here are a few facts concerning the vaccination for smallpox (for detailed information, see the CDC’s website):
- For the most part, the vaccination is safe: the rate of adverse response to the vaccine is relatively small (1,000 serious reactions for every million vaccinated). However, given the scale of the anticipated inoculations that would be needed if all health care providers needed protection, there is cause for concern. Under rare circumstances the vaccine can lead to death.
- After vaccination, the individual is potentially contagious, for up to three weeks (as long as the vaccination site remains open). This means that health care workers — primary targets for vaccination — might not be able to work for a significant period of time.
- There is a portion of the general population that is at higher risk for adverse reaction to the vaccine (e.g., people with a history of eczema or acne, HIV positive individuals, burn victims, cancer patients, pregnant women). There are guidelines for screening these individuals out of a vaccination program.
The Public Policy conundrum
The smallpox vaccination program raises a number of issues involving workers compensation and other forms of insurance. In addition, there are some gray areas, where vaccinated workers and their families may face periods of disability that are not covered by insurance. Here is our take on just a few of these issues:
If employers require their employees to be vaccinated, any adverse responses would certainly be covered by workers comp, up to and including death. Even if the vaccination is “voluntary,” adverse reactions are still likely to be covered by workers comp. There is a potential “disproportionate impact” on insurers of health care facilities and ambulance services, whose workers are first in line for vaccination. This exposure is not currently contemplated in workers comp rates.
Regarding the significant portion of the general population that is at higher risk for adverse reaction to the vaccine (see above), many of these vulnerable individuals work in health care facilities, where their not being vaccinated might put them at higher risk for serious illness. If exposed to smallpox, they would be at very high risk when they are compelled to take the vaccine to stave off the illness.
As if the real risks were not enough, the considerable publicity about the dangers of the vaccine significantly increases the probability of “false positives” — people reporting what may be imaginary ailments. These “false positives” would immediately appear on the workers comp radar screen.
Here’s the crux of the problem for the health care industry: inoculated workers might not be allowed to come into contact with patients during their potentially contagious period (up to 21 days). This would apply especially to health care workers whose patients include the highly vulnerable groups mentioned above. This inability to work is not a period of “disability” but of quarantine. Workers comp would not apply. Who replaces the lost wages during this period? Is it fair to require workers to use their sick leave? What if they do not have any sick leave? Beyond that, if there is a mass inoculation of health care workers, how will hospitals staff their facilities during the quarantine period?
As if all the above weren’t enough to worry about, during the contagious period, a worker might infect family members. How would these exposures be covered?
This is not meant as a definitive summary of the smallpox policy issues. However, it is clear that any mass inoculation program will raise a number of concerns that need to be confronted head on, not as we are currently doing, with our heads buried in the sand.
IBM cancer lawsuit – exclusive remedy, workplace illnesses, and technology industry exposures
Sunday, February 29th, 2004Last week a jury found in favor of IBM by denying damages in a suit filed by two retired workers. The workers alleged that exposure to chemicals and toxins at an IBM plant led to cancer. This case points to several issues that should be of interest to employers and to those of us who work in the field of workers compensation.
First, there is the tort issue. Normally, any compensability for work-related injuries or illnesses would be determined by the state workers compensation system. In that these illnesses arose out of and in the course of employment, why wouldn’t they fall under the prevailing jurisdiction’s exclusive remedy clause of workers compensation?
The answer to this question lies in the fact that almost every state has exceptions to the exclusive remedy doctrine that allow for workers to file tort actions. One common exception is willful intent on the part of the employer. That was essentially the basis of this particular lawsuit: the employees were trying to establish that IBM knew the potential hazard these chemicals represented, that IBM willfully disregarded that danger, and – very important to the California exception – that IBM neglected to inform the employees about that danger. Courts typically impose fairly high standards of proof in cases involving willful intent.
A second issue this case highlights is the difficulty in proving the work-relatedness of an illness. Injuries are generally easier to determine – they often entail observable events, such as a fall, a cut, or a burn. Illnesses may take years to develop. It may also be difficult to separate work-related factors that led to an illness from non-work factors. In the case of chemical exposures, a direct medical link between chemical exposure levels and an illness can be years in determination; even then, chemical agents may be in widespread use, making it difficult to isolate whether the workplace is the proximate cause of the illness.
The judgment in this case may well be a pyrrhic victory for IBM and for the chip industry. A series of 200 related suits from former workers about cancer and chemical poisening are still in the docket, as are about 40 suits involving birth defects in children of workers. The first birth defect suit against IBM will begin in New York next week.
We’ve been talking laws here, but at the heart of the matter is worker safety. The toxins involved in the chip making industry have been coming under scrutiny for several years now, and although there have been some industry efforts at self-policing and enhancing safety, hazards still exist that risk managers, health & safety practitioners, and the industry itself must still address. The fact that IBM has “won” this round does nothing to lift the moral mandate that every employer has to provide a safe and healthful workplace. And if one of the remaining suits finds success in another jurisdiction, the financial imperative may become more pressing as well.
Confined Space reports more on the safety hazards involved in this case, and also reports extensively on a proposed European initiative called REACH (Registration, Evaluation and Authorization of Chemicals) that increases the chemical industry’s responsibility for generating knowledge on chemicals, evaluating risk, maintaining safety standards, and substituting safer chemicals when possible.
More information:
Labor perspective from IBM Alliance
Tech industry reportage at Information Week
Toxic technology: Critics say chemicals used in making chips cause serious illnesses
Dirty secrets of the chipmaking industry
CCOHS: Health effects of trichloroethylene
Toxic mold and workers compensation: an issue for your watch list
Sunday, February 22nd, 2004The Sebastian, FL police station recently dealt with 21 toxic mold claims from employees who allegedly became ill from mold at the station. Fifteen cases were dismissed or settled for small amounts; another six involved lump sum settlements.
Toxic mold is an issue to watch. It’s a potentially explosive issue, and some in the industry liken it to asbestos or sick building syndrome because any exposure could involve large numbers of employees. And it is an issue that is attracting legal attention. The Ballard family of TX had a judgment of $32 million – later reduced to $4 million – for damages in a suit about illnesses from mold exposure in their home. Many think that with judgments of that magnitude, toxic mold claims will inevitably migrate to the occupational arena. And according to Mold Spreads, an article in CFO Magazine last September, this is already occurring:
“Some corporate risk managers are closely watching the federal suits filed against IBM Corp. in North Carolina, where several employees allege they experienced mold-related illnesses following an April 2000 flooding incident at the Research Triangle Park campus. Also under scrutiny is a class-action suit by two United Airlines employees alleging that mold constitutes a major health hazard in Concourse B at Denver International Airport.”
And workers comp claims play a part in these suits:
“In addition to several workers’-comp complaints relating to IBM’s Building Nos. 61 and 205 at Research Triangle Park, the company is confronting federal-court claims from senior financial analyst Julie Ord, now on disability leave, and program manager Linda Allen. The two claim that in the wake of flooding one weekend in April 2000 at the campus, they contracted toxic encephalitis, a swelling of internal organs, along with fatigue, memory loss, vertigo, and respiratory ailments.”
This Tech Bulletin on Mold & Workers Comp presents and excellent overview of the workers comp issues. (pdf file)
“The proof issues for determining compensability in mold exposure claims are the same as the proof issues for claims alleging “sick building syndrome” and multiple chemical sensitivities. In cases where the compensability of claims alleging sick building syndrome or multiple chemical sensitivities have been denied, the courts have reasoned that since there is no specific diagnosis attributed to the sick building or chemical exposure there is no definitive cause and effect relationship. The employee’s symptoms are considered to be an ordinary disease of life.
Since there are conflicting reports from the medical community as to the relationship of the exposure to certain molds and health problems, the same cause and effect issues for occupational exposure versus ordinary disease of
life exist for workplace mold exposures. Other possible exposures to mold outside the workplace, such as in the home, are likely to be an issue in those cases.”
In addition to testing basic issues of compensability, toxic mold will no doubt pose challenges to the exclusive remedy provision of workers comp. In an effort to secure richer remedies than those afforded by comp, plaintiff and class action attorneys are likely to pursue willful or intentional conduct suits.
Like many issues, the best defense is often a good offense so employers would do well to prevent or address any mold exposures before they pose a problem to the health of workers. Recommendations and resources are available from OSHA in its Brief Guide to Mold in the Workplace.
Additional information:
Centers for Disease Control – Mold
Insurance Information Institute – Mold and the Insurance Industry
Job-related hepatitis C infections are hard to prove
Tuesday, November 18th, 2003The likelihood of contracting hepatitis C from a single, contaminated needle stick is small, perhaps 2 percent or lower. But the number of accidental needle sticks and other skin punctures each year is high – 380,000 to 600,000, according to the Occupational Safety and Health Administration.
Still, many workers have little hope of getting their treatments or doctor visits covered – much less lost wages – when hepatitis C renders them disabled.
The problem: a patchwork system of state workers compensation laws that were created to deal with broken bones, not hepatitis C.
“The worker compensation system does not effectively deal with occupational illness,” said Bill Borwegen, safety director for the Service Employees International Union. “It needs to be totally reformed.”
