Posts Tagged ‘Tennessee’

Oh God, for one more breath

Wednesday, May 21st, 2014

The excellent site Letters of Note publishes a fascinating collection of historical letters, postcards, telegrams and memos — a great site for browsing. On a recent visit, we came upon a heartfelt letter from miner Jacob Vowell, his last communication before suffocating in the Fraterville Coal Mine in Tennessee. The letter was to Sarah Ellen, his beloved wife and mother to their 6 children, one of whom, 14-year-old Elbert, was by his side in the mine. The 1902 disaster killed most of the 216 miners who were working when an explosion occurred. (Source of the photo and more about the Fraterville disaster).
jacob-vowell-letter
This letter seems particularly poignant in light of the recent terrible mining tragedy in Soma, Turkey that has claimed more than 300 lives.
Ken Ward Jr. of Coal Tattoo points us to a four-year old report that warned of the life-threatening risks in the Soma mines. Accounts from survivors also give testimony to a lax safety record and climate of fear. And as if the tragedy weren’t terrible enough, Prime Minister Erdogan’s handling of the event and the governmental response to grieving families seems like something out of a Dickensian novel. More recently, several arrests have been made.
In the “people who live in glass houses” department, Ken Ward asks why we can’t do better right here in the U.S. in his post, Why is it OK for mine operators to break the law? Last week, Eric Legg and Gary Hensley were killed at Patriot Coal’s Brody Mine No. 1. NPR investigations revealed that this mine consistently violated federal mine safety laws, but federal regulators say they were powerless to shut it down.

Despite the threat to miners, federal regulators say they do not have the authority to simply close the mine.

“MSHA failed to use an even tougher tool at the Brody mine. The agency has the authority to seek a federal court injunction that would place a mine under the supervision of a federal judge. The judge could then order the closure of the mine if its owner failed to fix chronic safety problems.

But in the 40 years it has had this authority, MSHA has used it only once — in 2010 against Massey Energy’s Freedom Mine No. 1 in Kentucky. Massey then closed the mine.”

On this topic, it’s also worth reading Alan Neuhauser’s article In US News & World Report, Experts: Coal Mining Deaths Preventable. Here’s a key excerpt:

“We have not come up with any new ways to kill coal miners,” says Celeste Monforton, a mine safety researcher and advocate who worked at the Mine Safety and Health Administration. “These are things that we’ve known for a long time and we know how to prevent them.”

Instead, for the fifth straight year, the coal mining industry is once again well on its way to recording more than 20 workers’ deaths this year.

“Very few accidents are act of God,” says Mary Poulton, head of the Department of Mining and Geological Engineering at the University of Arizona. “Almost all of them are something we should have been monitoring or controlling or dealing with. When these things happen, it’s a tragedy because our systems failed.”

News roundup: risk, happiness, state fund in Illinois, new hire compliance & more

Wednesday, March 20th, 2013

Risk Roundup – Check out this week’s Cavalcade of Risk #179 – March 20th, 2013 Edition posted at My Personal Finance Journey
Taking care of business – At WorkCompWire, Joe Paduda poses the question What business are you in?” He hazards a guess that most of us would say “the insurance business” but he argues that we are really in “the medical and disability management business – with medical listed first in order of priority.” He suggests that, “Senior management misunderstands their core deliverable – they think it is providing financial protection from industrial accidents, when in reality it is preventing losses and delivering quality medical care designed to return injured workers to maximum functionality.” We could quote the whole thing, he makes a compelling argument so be sure to check it out. It echoes one of the Lynch Ryan founding tenets. When many of us got into this business, we did not come with insurance backgrounds. We felt at its core, managing injuries required a focus on the human event and not the dollars. We believed then and still believe now that if you took excellent care of the injured worker, got them quality medical care and helped them get well and back to work, the dollars would follow.
Smile – it’s March 20 – Did you know that March 20 is International Day of Happiness? Now you do. It’s also the first day or Spring, and if, like us, you wondered why Spring isn’t commencing on the usual March 21 date, Joe Rao at SPACE.com explains Why Spring Begins Early This Year.
New State Fund in Illinois?Illinois Bucks Trend in Other States; Looks to Establish Competitive Workers’ Comp State Fund – “Illinois state legislators are running counter to a national trend by proposing creation of a state workers’ compensation insurance fund that would compete with the private system. The development is generating deep angst amongst Illinois insurers and industry trade groups.”
Other state news

New Citizenship Verification form – As of 3-8-13, a revised US Citizenship & Immigration Service (USCIS) Verification Form I-9 has been issued. There is a 60-day grace period to come into compliance – new USCIS I-9 Formsforms must be in use by May 7, 2013.
When healthcare workers are unsafe, patient quality suffers – “Many medical work environments are unsafe for health professionals, adding stress and distraction that can expose patients to harm,” according Kevin B. O’Reilly who writes about a recent report by the National Patient Safety Foundation’s Lucian Leape Institute. In an article in amednews.com entitled Warning sounded on demoralized health care work force, he cites a high injury rate that is 33% higher than private industry as one factor, as well as “the lingering problem of disruptive behavior in health care, which can create a culture of fear and intimidation that inhibits safe, high-quality care.”
Fatalities Report – The March Monthly Labor Review has a report on Hispanic/Latino fatal occupational injury rates (PDF). The fatality rate for Hispanic/Latino workers is much higher than that of other demographic groups. Studies also show that, “… foreign-born Hispanic/Latino workers have higher rates than native-born Hispanic/Latino workers in certain occupations, a statistic that is explainable by differentials in employment between the two groups.”
Worker Costs – According to the latest Department of Labor report, the Northeast leads the U.S. in worker costs. “Hourly costs per employee in the Northeast – which includes the New England states, New York, New Jersey and Pennsylvania – averaged $33.10 in December, higher than the national average of $28.89. The next costliest region was the West, which consists of the mountain and Pacific coast states, at $30.29. The average hourly wage in the Northeast was $22.85, while the average per-hour employer cost in benefits was $10.25, both the highest in the U.S.”
More news of note

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.

Overdosing on Drugs: Compensable in Tennessee, Denied in Ohio

Monday, December 12th, 2011

Today we examine two court cases that trouble the dreams of claims adjusters: workers with severe injuries whose use of pain medication leads to their deaths. In one case, the accidental overdose is deemed compensable; in the other, the claim is denied. The devil, of course, is in the details.
Compensable Death In Tennessee
In November 2008, Charles Kilburn was severely injured in an auto accident while in the course and scope of employment. Fractures to his back and neck resulted in permanent total disability. Following surgeries, he still experienced severe pain. A pain specialist prescribed oxycodone. Fourteen months after the accident, Kilburn died of an accidental overdose. His widow filed for death benefits.
Kilburn’s employer believed that the death was the result of negligence, which would break the chain of causality with the original injury. Kilburn had ignored his doctor’s cautions to limit his intake of oxycontin to a specific maximum dose. The Supreme Court of Tennessee determined that the severe pain experienced by Kilburn might result in diminished faculties, which in turn might lead to taking more medicine than was prescribed. In their view, the chain of causality remained intact at Kilburn’s death and thus his widow was entitled to benefits.
Denial in Ohio
In Parker v Honda of America, the initial circumstances are similar, but the apparent “diminished faculties” lead to a very different result. John Parker suffered a severe back injury at work in 1988. He was prescribed OxyContin in March 1999. He eventually became addicted to the drug, along with cocaine, percocet and heroin. In March of 2006 he was found dead, a syringe in his arm, a spoon with a lethal dose of melted OxyContin at his side. In this case, the Ohio Court of Appeals found that his melting and injecting the drug, combined with his documented abuse of street drugs, broke the chain of causation linking the death to the workplace injury.
The court rejected his widow’s argument that the drug abuse was the result of a “severe disturbance of mind” and thus unintentional. It’s worth noting that if Parker had deliberately overdosed as an explicit act of suicide, the death may have been deemed compensable. But because the overdose was an acccident, workers comp benefits were denied.
The Big (and Not-So-Pretty) Picture
Pain is a constant factor in work-related injuries. The control of pain is a complex and widely misunderstood aspect of claims management. Because we live in a culture that relies heavily on powerful medications to control pain, and because the prescribing of these powerful drugs is neither well managed nor well monitored, we will see more and more cases of drug overdoses wending their way through the workers comp system. Some cases will be compensable, others will not. One thing is certain: the challenges of managing these situations will continue to haunt key players in the comp system: the doctors who prescribe the drugs, the adjusters who authorize bill payment, the families who suffer the consequences of loved ones in severe discomfort, and above all, the injured workers, whose every waking moment is compromised and consumed by a pain that just won’t go away.

The Tennessee Solution

Monday, November 2nd, 2009

It’s safe to say that no state has really solved the independent contractor/sole proprietor conundrum. Rather than require comp coverage for all workers, most states either exempt sole proprietors from coverage or make it optional. As a result, many small construction sites are full of “sole proprietors.” No one works for anyone. Thoeretically at least, no one is in charge. Nonetheless, the building goes up on schedule. And the final cost of construction is far less than similar job sites where all workers are protected by comp. If one of these sole proprietors is severely injured, the state will try to pin the cost on a general contractor, if they can find one. Otherwise, the state fund usually pays for the benefits.
Solving this problem creates new problems. In Massachusetts, the attorney general issued an advisory with a catch-all definition of “independent contractors” that is so broad, it includes virtually everyone. As a result, when general contractors cannot produce certificates of insurance for subcontractors, the cost of these subs is added to the payroll for calculating comp premiums. The cost of doing business goes up substantially.
In Delaware, they passed a law a few years ago requiring coverage for everyone, including sole proprietors. That is the cleanest and most comprehensive way to solve the problem. Alas, it’s also fraught with political risk. The subsequent uproar led legislators to back track and repeal the law.
Now, Tennessee is moving ahead with a new law that mirrors the one repealed in Delaware: limited to construction workers, the law requires coverage for everyone, including sole proporietors. Cost estimates for individual policies range from a few hundred to as much as $6,000. The latter figure is pretty daunting to a part-time, semi-retired craftsman who earns less than $25,000 a year.
The Tennessee legislature is considering some modifications to the law, which is scheduled to go into effect on December 31, 2009. They may allow for cheaper-than-usual policies that include high deductibles. Or they might let sole proporietors off the hook, if they can show that their own health insurance will cover workplace accidents. (Now there’s a cost-shifting measure that will create some interesting dialogue on the health care side!) The legislature has the right idea: find a way to make comp affordable to people who cannot afford much in the way of premiums.
With the legislature not scheduled to meet again until mid January, the law will go into effect as written on the last day of the year. Solve one problem, create another. Welcome, once again, to the ever-complicated world of workers comp.

Compensable Fun

Monday, August 3rd, 2009

There is an ongoing debate concerning the compensability of injuries that occur during company sponsored recreation. As Dr. Suess might say, “These things are fun and fun is good,” except when your employer makes you do it. There is a fine line between employees participating because they want to, as opposed to feeling that they have to.
Clark Kauffman has a nice summary of the compensability issues in the Des Moines Register. He sites the case of Robert Powell, an employee of the Cedar Rapids Gazette, who injured his back bowling at a “Family Fun Fest” sponsored by his employer. His injury was compensable – to the tune of $100,000 – because the employer urged participation: “Don’t make us cancel this event from lack of interest/attendance.”
Iowa has some interesting case law regarding compensability:
Hunting: way back in 1933 Claire Fintzel was trying to close a deal while pheasant hunting with a business associate. He was shot in the leg. He received $15 a week for 100 weeks (a paltry sum, to be sure, but this was back in the depression).
Boating: In 1941 Roy Linderman, a salesman for Cowie Furs, won a company-sponsored contest for highest sales. His prize? A fishing trip, during which, alas, he drowned. His death was deemed compensable.
Basketball: In 1982 Professor Charles Campolo of Briar Cliff College was partcipating in a faculty-student basketball game. At age 40, Campolo had a known heart condition. He died in the game’s final seconds. Because the school derived a benefit from his participation, the death was compensable.
State by State
Kauffman takes a brief look of the compensability issue from state to state. It usually boils down to this: is the event truly voluntary? Does the employer derive a direct business benefit from the activity? To some degree the burden of proof is on the employer to demonstrate that there is no pressure on employees to participate – that participation is not the only true measure of “team spirit.”
The state of Tennessee recently revised their comp statute, to provide clarification on the compensability issue. The statute is brief but comprehensive:

Public Chapter 407 (SB1909/HB1500) excludes from workers’ compensation injuries that occur during recreational activities that are not required by the employer, and do not directly benefit the employer. Workers’ compensation injuries that are covered under workers’ compensation include those that occur where participation:
1) was expressly or impliedly (sic) required by the employer; or
2) produced a direct benefit to the employer beyond improvement in employee
health and morale; or
3) was during work hours and was part of the employee’s work duties; or
4) occurred due to unsafe conditions the employer had knowledge of and failed to
curtail or cure the unsafe condition.

This statutory language summarizes the issues without tying the hands of judges unnecessarily. It’s a good model for legislators contemplating changes. Beyond that, it’s good policy guidance for employers who want to encourage team building and fun, without creating inadvertant comp exposures.
NOTE: Our collegue Julie Ferguson has related blogs here and here.