Posts Tagged ‘investigations’

UBB mine disaster: the plot thickens as former CEO Blankenship implicated

Tuesday, March 12th, 2013

In the ongoing saga of the federal investigation into the April 2010 Upper Big Branch Mine Disaster that resulted in the deaths of 29 miners, things recently took a dramatic turn. The legal-criminal proceedings have resulted in four convictions to date. Now, in the most recent proceedings, a top Massey official has implicated former CEO Don Blakenship.

According to a news report by Ken Ward Jr in the Charleston Gazette:

Former Massey official David C. Hughart pleaded guilty to two federal criminal charges that he plotted with other company officials to routinely violate safety standards and then cover up the resulting workplace hazards.

But a fairly routine plea hearing here took a surprising twist when U.S. District Judge Irene Berger pressed Hughart to name his co-conspirators and Hughart responded, “the chief executive officer.”

Hughart did not use Blankenship’s name, but Blankenship was CEO of Massey from 2000 until 2010, during the period when the crimes Hughart admitted to committing occurred.

On his Coal Tattoo blog, Ward looks at media coverage this news generated and how it was reported. He talks about what’s next in the Upper Big Branch criminal probe. The prosecution has stated that “This is not the end of the investigation.”

You can follow Don Blankenship’s doings on his fairly new website, where he is self billed as “Native of Appalachia, Job Creator, CEO, and American competitionist.” He posts his thoughts about mine safety, among other things, in an essay page. In his page of media coverage, Ken Ward’s clips and the UBB mining investigations are unsurprisingly absent.
You can also follow his opinions and comments on Twitter at @DonBlankenship. Ironically, his most recent post accuses President Obama of lying, with a link to an essay which claims that Obama lied about climate change in his State of the Union address.

We’re coming up on the third anniversary of this terrible Massey mine tragedy. The investigation and criminal probe of company officials continues, but it’s important to look beyond that to ensure future safety. Ken Ward takes the MHSA to task for waiting 32 years to enforce the landmark mine safety act of 1977.

We point you to the Miners Memorial Page at the tribute site, Faces of the Mine. Scrolling through a page of 29 portraits brings home the enormity of this tragedy in a visceral way.

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Social media and workers comp

Wednesday, August 3rd, 2011

Are Facebook, Twitter and other social media postings fair game when conducting a workers comp fraud investigation?
We’ve posted on this topic previously, including a reference to a successful Facebook-related investigation conducted by New York State Insurance Department’s Fraud Bureau: social networking, workers comp & the law. Now, two of the experts that we cited in that post – Professor Gregory Duhl of the William Mitchell College of Law and attorney Jaclyn Millner – have a new article that is worth your attention: Social media and insurance fraud.
In the article, they answer our opening question with a strong affirmative, making a comparison between internet searches of public social networking profiles to the more common fraud investigation tool of video surveillance of property-casualty claimants. In fact, they make the case for why insurance investigators should be spending even more company time on Facebook, suggesting that postings or photos can substantiate some other evidence found in an investigation. While privacy issues are of concern, they state:

A privacy argument is unlikely to prevail in court because a person has no reasonable expectation of privacy in whether he or she has a social networking account or in what is posted in his or her profile. Even if a claimant protects his or her social networking profile information with privacy settings, the information is available to at least some third parties, to whom the claimant gives access (the claimant’s “friends”).

Some courts have gone so far as to say that there is no privacy interest in information stored on the internet because even if information, such as social networking information, is protected with privacy settings, it could be accessed by certain members of the public.

The recent case of Romano v. Steelcase Inc. shows that anything posted on Facebook or any other social networking site, whether the user has privacy settings or not, is likely discoverable.

Social Media & Employment Law
The social media landscape is dynamic and the courts are grappling with many thorny issues. If it isn’t one of the top issues you are tracking in employment law, it needs to be. While fraud investigation is one area of interest, there are many other significant issues: how social media is used in hiring and pre-employment screening; social media policies in and out of the workplace; monitoring employees in the workplace, and more. Here are some good resources to help you keep current with the dynamic intersection of social media and employment law:
Think Before You Click: Strategies for Managing Social Media in the Workplace is a newly released book that we can’t wait to read. The book’s authors and editors are among some of the legal authorities we most frequently turn to on the topic of social media – several are practicing bloggers. We would particularly cite the following two authors, who frequently blog on social media:
**Employment Law Attorney Jon Hyman: Ohio Employer’s Law Blog
**Employment Law Attorney Daniel Schwartz: Connecticut Employment Law Blog
And from the plaintiff perspective, we would recognize attorneys Jon Gelman and Alan S. Pierce who paired up for a podcast on Privacy, Clients and Social Media. Gelman frequently posts about social media on his blog, Workers’ Compensation (which is well worth reading on other topics, too). He also has authored articles on social media, such asFacebook Becomes a Questionable Friend of Workers’ Compensation.

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New York: What Is Compensable May Not Be Just

Monday, July 18th, 2011

Gary Veeder had the kind of job TV viewers love: for 31 years he was a scientist in the New York State Police Forensic Investigation Center. He specialized in trace evidence, examining fibers, arson residue, footwear impressions, glass, hair and other evidence gathered in criminal investigations. His findings carried significant weight in criminal trials. People went to jail based upon his evidence. Alas, a state investigation found significant problems in 29 percent of Veeder’s 322 cases. That’s a lot of problems – and a lot of jail time – for people who may or may not have committed crimes.
As the investigation into his work unfolded, Veeder first retired and then committed suicide by hanging himself in his garage. Given that the stress leading to the suicide was predominantly caused by work, his widow filed for workers comp benefits. The claim was denied, on the basis that the stress was the result of personnel actions, which are excluded from comp eligibility.
The case wended its way to the Appelate Division of the NY Supreme Court, where the decision to deny benefits was reversed and the case sent back to the workers comp board for reconsideration.
Nothing Personnel
The reversal was based upon a simple, rather stark conclusion: at the time of Veeder’s suicide, no personnel actions had been implemented. The state was investigating the situation; they had uncovered problems in Veeder’s work, but they were on a narrowly defined “fact finding” mission. No action had been taken against Veeder: he was not suspended or demoted or disciplined in any manner. Thus the stress was purely the result of the investigation, not of any personnel action.
In other words, had the employer simply announced to Veeder that the investigation was the initial phase of a disciplinary process, he would probably not have been eligible for workers comp. The only facts that count: he was under enormous work-related stress (of his own making) and he killed himself as a direct result of the work-related situation. And because comp is no fault, it appears that Veeder’s widow will be eligible for burial and indemnity benefits.
Is this fair? Is this just? Maybe yes, maybe no, but these questions themselves are not relevant in the determination of compensability. The claim may still be denied, but some other basis of denial must be found.
Hard Time
Veeder did his job poorly, but he was never held accountable by his superiors. A case can be made that Veeder’s widow is an innocent party, that she is entitled to benefits for her husband’s “work-related” death – despite the fact that virtually all of the stress was of Veeder’s own doing. Meanwhile, quite a few people convicted on corrupted evidence are serving hard time. Some were probably guilty, others completely innocent. But in cases where the lynchpin of conviction was Veeder’s incompetent work, all deserve to go free. This is unlikely to happen. Is this fair? Is this just? Nothing “maybe” about it. Justice – to this point, at least – has certainly not been served.

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Is OSHA’s Voluntary Protection Program (VPP) broken?

Monday, July 11th, 2011

OSHA’s Voluntary Protection Program was implemented some 30 years ago and includes about 2,500 workplaces. Employers must qualify for participation by meeting certain criteria, including a demonstrated safety record that is better the than industry average and practices such as training and employee involvement that would indicate a serious safety culture. Companies that are accepted into the program become exempt from programmed OSHA inspections while they retain their VPP status — a not insubstantial benefit that makes the program popular with employers and small government advocates alike. So popular that some legislators are trying to make the VPP permanent.
But many question the effectiveness of the program beyond its popularity. And now, some investigators are asking what a company would have to do to lose the VPP status. If a company experienced a preventable workplace fatality, would they be ejected from the program? Would they be subject to a higher level of scrutiny?
Apparently not. A recent investigative report by the Center for Public Integrity (CPI) revealed that at least 80 workers have died at VPP employers since 2001 yet have retained their “model workplace” status in VPP. Yet in 47 of these cases, inspectors found serious safety violations and, sometimes, tragedies that could have been averted.
Last week CPI and PBS’s Need to Know ran the first report of their investigative series on OSHA’s Voluntary Protection Program (VPP), Model Workplaces, Imperiled Lives. In addition to the number of deaths at VPP participants, the investigation found that:

  • Even when workers die and inspectors find safety violations, “model workplaces” often face minimal consequences and retain the special designation. At least 65 percent of workplaces where a fatal accident occurred remain in the special “Voluntary Protection Program” today.
  • As the program tripled in size over the last decade, OSHA cut the number of staffers overseeing it and weakened requirements for membership, raising questions about how well the program supplements the efforts of inspectors in safeguarding American workers.
  • Little widespread evidence exists that the 29-year-old program works. Despite calls by the Government Accountability Office and others for OSHA to complete a comprehensive evaluation of the program’s effectiveness, none has occurred.

PBS featured this report on The Watch list: Safety matters: Injuries and fatalities at ‘model’ workplaces, which included this video.

This is not the first we’ve heard of the flaws in the VPP. In The Pump Handle’s post entitled Investigators probe integrity of OSHA’s safety recognition program, they link to a May 2009 GAO Report on OSHA’s VPPs, which was extremely critical of OSHA’s VPP program, noting that:

  • OSHA’s internal controls are not sufficient to ensure that only qualified worksites participate in the VPP. First, OSHA’s oversight is limited by the minimal documentation requirements of the program. Second, OSHA does not ensure that its regional offices consistently comply with its policies for the VPP.
  • OSHA’s lack of a policy requiring documentation in the VPP files of actions taken by the regions in response to incidents, such as fatalities and serious injuries, at VPP sites limits the national office’s ability to ensure that regions have taken the required actions. OSHA’s VPP Manual requires regions to review sites’ safety and health systems after such incidents to determine whether systemic changes are needed to prevent similar incidents from occurring in the future and whether the site should remain in the program.
  • OSHA’s oversight of the VPP is limited because it does not have internal controls, such as management reviews by the national office, to ensure
    that its regions consistently comply with VPP policies for verifying sites’ injury and illness rates and conducting on-site reviews.
  • OSHA’s efforts to assess the performance of the VPP and evaluate its effectiveness are not adequate. First, OSHA has not developed performance goals or measures to assess the performance of the program. Second, OSHA contracted for a study of the VPP to evaluate its effectiveness, but the study was flawed.

Shortly after this GAO report, OSHA pledged to reform the VPP.
There’s certainly a place for a “Centers of Excellence” program for workplace safety. Companies that have made extraordinary efforts to ensure safety should be recognized. But it looks like a program that began with good intent has morphed into something that is poorly managed at best and a mockery of the original intent at worst. How much of a distinction is it for the truly high performing organizations if weak or inappropriate entities are kept in the program? Before any expansion of this program occurs, Congress would do well to ensure that the program that exists gets fixed.

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Cavalcade of Risk and News You Can Use

Wednesday, February 24th, 2010

New Cavalcade of Risk – David Williams of Health Business Blog is this week’s host of Cavalcade of Risk. He offers a concise array of postings, including one method of improving immune response that you absolutely do not want to miss. While stopping by, check out his other posts – he always has the scoop on interesting new issues and trends in healthcare. Also, follow his Twitter feed.
Healthcare reform – The latest Kaiser Tracking Poll on attitudes to healthcare reform shows that while Americans are evenly split on health care reform legislation (43% for; 43% against), but agree on certain provisions. The poll also shows that if Congress decides to stop working on healthcare, 58 percent of Americans say they will be either disappointed or angry, with 38% saying they will feel happy or relieved.
There is support for several key provisions of reform that cuts across all political persuasions. Percent saying that it is extremely or very important:
76% – reforming the way health insurance works
72% providing tax credits to small businesses
71% Creating a health insurance exchange / marketplace
71% Helping to close the Medicare doughnut hole
70% Expanding high risk insurance pools
68% Providing financial help for low / middle income
Property-casualty trends – At the Insurance Information Institute’s Blog, Claire Wilkinson posts that the U.S. property-casualty rating trends are stable. She reports on the A.M. Best 2009 Rating Trend Review, which says that although the industry’s results are likely to be pressured in 2010, rating actions are not expected to move profoundly in one direction and the number of upgrades/positive outlooks and downgrades/negative outlooks will be fairly balanced over the next year.
California agriculture – According to a study conducted by the California Workers’ Compensation Institute, the state’s agriculture industry accounted for 5.5 percent of all injury claims and 5.9 percent of all workers’ compensation benefit payments over an eight-year study period. The three most common injury categories for these workers were medical back problems without spinal cord involvement; minor wounds and injuries to the skin; and shoulder, arm, knee and lower leg sprains.
Colorado Fraud surveillance – Pending legislation in Colorado would put new restrictions on insurers and employers use of surveillance of employees with workers comp claims. Before surveillance can be conducted, the insurer or employer must have a reasonable basis to suspect fraud, and employees would have the right to a hearing to learn why they are being investigated. Critics of the law say that, if passed, it would be the nation’s most restrictive surveillance law related to workers comp. At Comp Time, Roberto Ceniceros examines the issue of the dollar value of surveillance.
Medicare Second Payer deadline – The Centers for Medicare/Medicaid Services (CMS) advises that the deadline for non-group health mandatory reporting for secondary payer has been delayed from April 1, 2010 to January 1, 2011. “Medicare Secondary Payer reporting requirements are intended to ensure that Medicare remains the secondary payer when a Medicare beneficiary has medical expenses that should be paid primarily by a liability, no-fault or workers compensation plan.”
Health & Safety – Most employers know that good health & safety resources are avaiable from OSHA and the CDC. Don’t forget out neighbor to the north. The Canadian Center for Occupational Health and Safety has a wealth of information also. A few recent finds:
Vibration Exposure
Tips on handling negative interactions at work
Substitution of Chemicals: Considerations for Selection
Excavations: A guide to safe work practices – a 6 part video

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Cavalcade of Risk & other workers’ comp news briefs

Thursday, November 5th, 2009

Debbie 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

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Accident investigation slide shows

Tuesday, July 29th, 2008

WorkSafeBC offers a variety of prevention resources which we’ve featured previously, most recently the videos of teens talking about how they were injured on the job. They offer an excellent library of safety materials – while laws may vary from here in the U.S., good safety practices don’t change over the border.
Recently, we’ve discovered WorkSafeBC’s library of accident investigation slide shows. These feature actual investigations conducted by WorkSafeBC investigators in the wake of fatal or serious work accidents. Each presentation includes an audio track of the investigator narrating the conditions that led to the accident, illustrated by photos, diagrams, and animations of the actual accident scene and conditions. The cause of each accident is identified and links to related prevention resources are made available. We think they’re pretty compelling because they reflect real-life events. They are brief and would be a good resource for safety training or a springboard for discussions. Hopefully, WorkSafeBC will continue to expand the library, which currently includes incidents involving construction, machinery, falls, forklifts and various other scenarios. In addition to the accident investigations, there are also a few slide shows on general prevention topics, such as housekeeping, violence prevention in retail settings, disease prevention, and machine guarding. Also, see the lift / lower calculator.
We’re always interested in free, quality safety & prevention resources that we can share with readers. If you know of other good prevention resources or libraries that are publicly available, let us know. (Please note: the operative word is “free” – we regularly delete comments promoting products or services that must be purchased.)

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Insurance industry scandal watch

Tuesday, August 9th, 2005

Joe Paduda has been doing so much heavy lifting in his diligent tracking of the many investigations into insurance wrongdoing that we are thinking he may need to change his blog name to “Scandal Central.” It’s almost like one of those whack-a-mole carnival games – new developments seem to keep popping to the surface daily.
Today, Joe reports on a guilty plea filed by an underwriter from a Liberty Mutual subsidiary who was submitting unattractive bids to Marsh McLennan. This enabled the broker to steer clients to insurers with the best commissions.
Yesterday, Joe reported on similar charges being levied against Arthur Gallagher & Co, the offshoot of a probe into practices involving several large public entities, an investigation that Florida’s Attorney General says may involve bid rigging. This follows on the heels of other Florida problems that surfaced in Broward County involving Gallagher Bassett and Corvel.*
Last Friday, Joe blogged about 14 insurance execs from Marsh, AIG, and Zurich who pled guilty to various charges in the Spitzer investigations.
He’s also recently updated the Ohio coingate developments, a many-headed hydra of scandal that is now ensnaring Governor Taft. Some other problems have been bubbling to the surface with the Ohio Bureau of Workers Compensation, too, in the form of unusual markups paid to servicing hospitals.
A collective black eye
Whether we want to or not, all of us who work in the industry have front row seats to these sorry spectacles since they involve some of the industry “leaders.” As an industry, we will be years restoring good faith with clients. And though I have no sympathy for the malefactors, I do feel badly for some of the decent, conscientious workers in the scandal-riddled firms. If things follow the patterns of other recent corporate scandals, a few bigwigs may or may not be called to account, but the real price may well be paid by the hundreds, if not thousands, of honest workers when the inevitable job reductions and reorganizations ensue.
Many of these firms were the trusted vendors that employers turned to as stewards of their loss experience and as watchdogs for fraud. Ironically, while the back door was being guarded by pit-bulls to prevent a few wayward employees from making off with the piggy bank, the front door was wide open so the serious thieves could saunter off with the safe.
The bottom line: caveat emptor
We’ve long been proponents of the idea that employers need to be active, savvy buyers and managers of their workers comp programs, but never more so than now. For most employers, workers comp is not simply a matter of dollars and cents (although that is reason enough to pay attention), it is also a matter of employee relations and reputation management. When hiring vendors to assist in these matters, we’ve always encouraged employers to buy for quality, not for price, but the fact that these scandals are tarnishing some of the “quality” names in our industry says that employer scrutiny doesn’t reach deep enough. And, for the most part, we aren’t talking about the mom and pop employer here – many of the employers who were gouged are large corporations with legions of lawyers and accountants. It sure looks like it’s time for buyers to step up due diligence in the “trusted vendor” selection process.
*edited on 8/10. The second news item dealt with Gallagher Bassett, not Arthur Gallager & Co.

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