Posts Tagged ‘Texas’

This Cat Is Dead. Let It Stay That Way.

Friday, September 22nd, 2017

“Seriously. This is BANANAS” – Senator Chris Murphy, (D-CT), on Graham-Cassidy.

When I was in college I was part of a pretty successful folk group. We played all over, cut a few LPs. It was a great time. On college campuses we would sing a simple, little, nearly childish song that somehow actually became a bit of a hit. It was called The Cat Came Back.

Oh, the cat came back.
She didn’t want to stay.
She was sittin’ on the back porch
The very next day.

Well, there’s a new cat sittin’ on the porch, and it’s called Graham-Cassidy.

Every time we stick a fork in it and call it dead, a new zombie repeal and replace Obamacare horrendoma springs to life.

The selling point of this one, at least according to Senators Graham and Cassidy (and Vice President Pence yesterday morning on CBS), seems to be centered on the idea that passage of this bill will finally allow the states to plot their own health care futures.

That was also the position argued yesterday in a New York Times Op-Ed by Philip Klein, the Managing Editor of the Washington Examiner (Is this a coordinated effort?). In Graham Cassidy has One Great Idea Klein claims the different states have different healthcare needs and, consequently, should be able to address those needs through their own creativity rather than arbitrary requirements of  Washington.

A more flexible system would give states latitude to pursue healthcare programs that are a better fit for their populations’ ideological sensibilities. And there are practical reasons to think of healthcare as a state-based issue: Every one has its own demographics, health challenges and other unique characteristics.

“Ideological sensibilities?” Excuse me? Oh, well.

One thing that strikes me square in the jaw about the states rights argument is this: For the last 26 years, states have been able, with federal waiver approval, to craft their own Medicaid programs as long as the results are revenue neutral and comply with minimum requirements.

By way of explanation, Medicaid has been with us since 30 July 1965 when President Johnson signed it and Medicare into law. Medicaid has been a lifeline for the poor who, prior to the Affordable Care Act, were mostly uninsured for health care. The ER was their primary care physician. The Act had a number of goals, one of which was to lower the number of uninsured and underinsured Americans. Since these people were nearly all of the lower income variety, the Act provided federal funding for states to expand Medicaid. Thirty-one states plus the District of Columbia did that. And the numbers of uninsured dropped significantly in those states.

In 1991, the Social Security Act was amended to create federal waiver programs. States were given the authority, through what are known as Section 1115 waivers, to tailor their own Medicaid programs to their own population needs. As of September 2017, there are 33 states with 41 approved waivers and 18 states with 21 pending waivers. A subset of state waivers are aimed at healthcare delivery system reforms. They are known by the catchy title Delivery System Reform Incentive Payment waiversDSRIP waivers allow states to create innovative programs that reform how care is delivered and paid for. These are demonstration projects and come with federal funding. Lots of it. For example, one of Texas’s two DSRIP waivers, just concluded, provided $11.5 billion over five years. The Texas Health and Human Services Commission has applied for an extension and in May, 2017, submitted to the CMS its positive evaluation of the program’s results (Despite this deep drink at the federal trough, you might remember Texas’s very public, Alamo-like  rejection of federal money to expand Medicaid).

Personally, I think there are many reasons to bury the Graham-Cassidy cat so deep it never sees the sun again. Others have written and catalogued them (see America’s newest health care expert Jimmy Kimmel). But not much has been said to refute this ridiculous let-the-states-have-a-chance claim. The states already have, and have had for 26 years, autonomy to innovate and create programs, with the help of federal funding, that zero in on the needs of their particular populations within sensible federal limits. Graham-Cassidy would do away with those limits, significantly lower funding, force millions of our fellow citizens to become uninsured (again), drop the states down a deep well of chaos and put us all back in the wild west of health care.

Yesterday, in a highly unusual move, the Board of Directors of the National Association of Medicaid Directors (NAMD) issued a statement highly critical of Graham-Cassidy, saying it would place a massive burden on the states.

“Taken together, the per-capita caps and the envisioned block grants would constitute the largest intergovernmental transfer of financial risk from the federal government to the states in our country’s history.”

And last night, after learning of NAMD’s statement, Senator Chris Murphy (D-CT) tweeted, “You can’t get ALL 50 state Medicaid Directors to agree on anything else in health care. Seriously. This is BANANAS.”

America’s health care system is complicated (“Nobody knew healthcare could be so complicated!”) and full of inside baseball stuff. But it does allow states to chart their own destinies. So, here’s a question for Lindsay, Bill and Mike: What’s the real reason you’re trying so hard to resurrect this dead cat?

 

 

WCRI: Day One, Part Three: The 2nd Opt-Out Session

Thursday, March 10th, 2016

Bruce Wood, of the American Insurance Association, led off the second Opt-Out session by reminding participants that the 1972 National Commission “considered and rejected employer or employee choice of benefit plans.” So, right away we knew where Mr. Wood was heading. He boarded the Trey Gillespie train and left the station smartly. His conclusions:

  • Opt-Out raises fundamental issues of public policy that policymakers have failed to consider;
  • Opt-Out lacks an organizing principle that reflects acceptable social policy; and,
  • Opt-Out is flawed and should not be enacted.

You know where Mr. Wood stands.

The second presenter was Elizabeth Bailey, VP of Workers’ Compensation & Safety for Waffle House, Inc. Waffle House, headquartered in Georgia,  is in a number of states, Texas being one of them. The company has been a Texas Non-Subscriber (it’s Opted-Out) since 2002, and, according to Ms. Bailey, has enjoyed spectacular results ever since. Such as:

  • Within one year, claims cost per restaurant dropped 57%;
  • Indemnity claims went from 15.03% of total claims to 3.23%;and,
  • Indemnity costs declined 99%

Wow!

Ms. Bailey described how Waffle House has increased its safety and health efforts while providing equivalent benefits as those required by the workers’ compensation statute. The company’s economic results are certainly stellar, but at what cost to employees? We were left wondering. However, as David Deitz pointed out in the question period, Ms. Bailey was the only Opt-out presenter who “presented” any data.

 

The third presenter, Alan Pierce, is a Massachusetts plaintiffs attorney, but that doesn’t begin to describe his standing in the legal community. He is one of the nation’s foremost advocates for injured workers and is the past chair of the Workers’ Compensation Section of the American Bar Association and the Massachusetts Bar Association. As expected, he offered an eloquent precis suggesting that workers’ compensation is not a benefit, but rather an employee right. He, too, cited the 1972 National Commission pointing out that most of its recommendations have never been adopted. Mr. Pierce is always interesting.

The last presented was Oklahoma Insurance Department Chief of Staff James Mills. I was somewhat surprised to hear him defend the Oklahoma Opt-Out statute. Essentially, Attorney Mills said that he was open to any program or law that might have the chance of benefiting both employers and employees and likened the statute, which had 57 legislative authors, to some other ideas that needed time to grow and prosper. Who knows? Maybe that’s what will happen to Opt-Out.

But I wouldn’t hold my breath waiting for that to happen.

WCRI: Day One, Part Two: The 1st Opt-Out Session

Thursday, March 10th, 2016

The afternoon of WCRI’s 2016 Annual Conference was devoted to Opt-Out. The first of two sessions was a Point-Counterpoint exercise. Trey Gillespie of the Property & Casualty Association of America led off. To Mr. Gillespie, with Opt-Out it’s 1910 all over again. He described Opt-Out in Texas and Oklahoma as allowing employers to deliver sub-standard care to injured workers without government oversight. Showing stark contrasts between what is allowed in Opt-Out and required in workers’ compensation, he suggested that employees were at the mercy of employers, which could sometimes be good and sometimes be bad. Opt-Out’s a kind of Employer Personal Responsibility Plan.

Bill Minick, of PartnerSource, followed with a presentation in favor of “Options to Workers’ Compensation.” Minick has been the loudest proponent and most significant advocate for Opt-Out. He and Opt-Out were the subject of a Propublica investigative journalism story late last year. He described Opt-out as a substantial improvement on a failed system and painted a picture of employers being able to provide better care for injured workers at less cost, because regulatory and bureaucratic requirements have been stripped out. Essentially, Minick claims that the workers’ compensation system makes employers go from Massachusetts to Rhode Island by way of Alex Swedlow’s California. He’d rather just drive the 30 miles down Route 95.

My basic problem with Opt-Out, wherever it is, is that some employers with resources and good intentions welcome the chance to design their own injury benefit plans that will provide benefits at least as good as traditional workers’ compensation at significantly less cost. This, in itself, is a good thing. Some large employers in Texas, such as Costco, seem to have done that. Trouble is, not every employer is Costco. As I wrote when I evaluated Opt-Out in 2014, I’m concerned about Kenny’s Citgo, down the street and around the corner, where Kenny and his five hourly workers labor without the benefits of a mandated workers’ compensation plan, because Kenny has Opted-Out. There are more Kenny’s than Costcos.

Chemical Safety Board Issues Report on West Fertilizer Company Explosion

Wednesday, January 27th, 2016

Two days after the 2013 Boston Marathon bombing, a giant explosion rocked the small town of West TX. Twelve emergency responders who rushed to the initial fire at the scene were killed in the subsequent blast, as were three civilians. More than 260 were injured and treated at hospitals; 150 buildings were damaged.

Initially, local authorities feared the blast was a terrorist event, but the cause of the blast was the storage of 270 tons of fertilizer grade ammonium nitrate (FGAN). To give some perspective to this, in the 1995 Oklahoma City bombing of the Alfred P. Murrah Building, Timothy McVeigh used 2 tons of ammonium nitrate.

Earlier this week, the U.S. Chemical Safety Board (CSB) issued a draft version of its 265-page Investigation Report into the April 2013 Fire and Explosion at West Fertilizer Company for public preview. The CSB’s January 28 public meeting to release its West Investigation Report will be available via live webcast at 6 pm CST

The report is dedicated to the 12 emergency responders and 3 members of the public who lost their lives. It represents one of the most destructive incidents ever investigated by the CSB.

“The CSB’s analysis includes findings on the technical causes of the fire and explosion; regulatory changes that could have resulted in safety enhancements to the facility; the failure of the insurer to conduct safety inspections or provide an adequate level of coverage; shortcomings in emergency response, including pre-incident planning or response training of the volunteer fire fighters; and deficiencies in land use planning that permitted the City of West to encroach upon the WFC over the years.”

The CSB directed recommendations to the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), U.S. Department of Labor, the Federal Emergency Management Agency (FEMA), U.S. Department of Homeland Security, the Texas Department of Insurance, the Texas Commission on Fire Protection, and other regional entities.

CSB estimated that total insurance-related losses were around $230 million, but the WFC was only insured for $1 million. One part of the report looks at related policies and regulations, including ” … the failure of the insurer to identify the risks posed by FGAN. A few years prior to the incident, WFC was dropped by one insurer for failing to address safety concerns identified in loss control surveys. The company that insured WFC at the time of the incident did not appear to have conducted its own safety inspections of the facility.”

The CSB’s analysis also pointed to:

  • A lack of training in hazardous materials response and pre-incident planning on the part of the West Volunteer Fire Department.
  • Shortcomings in federal and state regulations and standards that could reduce the risk of another incident of this type.
  • The location of the WFC relative to the surrounding community, which exacerbated offsite consequences.

In terms of the location, the risk to the public continues:

“CSB’s analysis shows that the risk to the public from a catastrophic incident exists at least within the state of Texas, if not more broadly. For example, 19 other Texas facilities storing more than 10,000 pounds of FGAN are located within 0.5 miles of a school, hospital, or nursing home, raising concerns that an incident with offsite consequences of this magnitude could happen again.”

Related coverage:

Dallas News: Federal investigators: Texans still face risk of West-like blast

The Waco Tribune: Report: Public still not safe from West-style industrial blasts

There are many ongoing related lawsuits. In October, The Waco Tribune reported: 1st West explosion trial gets settled

Earlier coverage

Interactive: West plant before and after – before & after aerial photos show scope of destruction

Ellis County remembers West fertilizer plant explosion – “The day a fertilizer plant exploded in West, Texas, Ellis County community members went to Facebook and Twitter to share their reactions. Here’s a look back at not only how the explosion that killed 15 people and destroyed most of the town unfolded, but reactions from the terrible tragedy.”

West blast survivors share their stories

Special Report: Poor planning left Texas firefighters unprepared

An excellent Reuters report by M.B. Pell, Ryan McNeill and Janet Roberts was issued in May of 2013.

“The lack of preparedness endangers not only firefighters and emergency medical technicians, but also people nationwide living near chemical stockpiles similar to those that exploded in West.

At least 800,000 people in the United States live within a mile of 440 sites that store potentially explosive ammonium nitrate, which investigators say was the source of the explosion in West, according to a Reuters analysis of hazardous-chemical storage data maintained by 29 states.”

Another section of this report indicates how adequate preparation and training might have saved lives:

“Firefighters who have battled ammonium nitrate fires elsewhere – without death or injury to first responders – say having the Tier II information was critical to their success. They knew what they were facing going in, and responded accordingly.
Called to a fire at a similar fertilizer facility in 2009 in Bryan, Texas, firefighters opted not to fight the blaze. Although the circumstances were somewhat different – firefighters knew going in that ammonium nitrate already had ignited – the first responders decided to keep a safe distance and evacuate nearby residents. No one was injured, and the fire burned itself out.

Key to the response, said Chief Joe Ondrasek of the Brazos County Fire Department Precinct 4, was having the fertilizer company’s Tier II report in hand. Firefighters were unable to contact the plant manager immediately, he said, and therefore relied on the report to inform their response.

A federally funded program intended to grant fire departments online access to the Tier II reports was not being used in West. Although some firefighters in Texas said they know about and use the system, known as E-Plan, others said they didn’t know of its existence or how to access it.

Federal funding for the E-Plan system was eliminated last October, which could hurt efforts to keep it up and running.”

Texas Workers’ Compensation Opt-Out Report: A Herculean Effort Lighting a Path to the Future (Or Maybe the Past)

Thursday, December 13th, 2012

Unlike any other US state, Texas has never required its employers to buy or provide statutory workers’ compensation. Texas employers who opt-out of this traditional form of injury benefit system are called non-subscribers. In 1993, 44% of Texas employers were non-subscribers, and they employed 20% of the employees in the state. By 2008, employer non-subscribers had shrunk to 33%, but their percentage of the state’s total workers had grown to 25%. No one knows for sure, but estimates are that as many as 114,000 Texas employers have opted-out.
Until now, with the exception of two academic studies, one in 1996 examining lost injury days, the other, a 2010 survey of large, multi-state non-subscribers, no one has ever fully examined the Texas opt-out phenomenon. But, with the release today of the 87-page “Workers’ Compensation Opt-Out: Can Privatization Work? The Texas Experience and the Oklahoma Proposal,” that has changed.
Funded by the big TPA, Sedgwick CMS, published by the New Street Group and written by Primary Researcher Peter Rousmaniere and former Risk & Insurance editor and New Street Group founder Jack Roberts, this thorough, well-researched and entirely lucid analysis is certain to propel the opt-out debate now and in the foreseeable future.
In Texas, It’s 1910 All Over Again
To get a grasp of the back-to-the-future Texas opt-out, think 1910, the year before states began enacting workers’ compensation laws, the grand bargain in which employers promised to replace lost wages and cover medical costs due to injury and workers agreed not to sue employers when the workers were injured on the job.
Lots of employers buy workers’ comp in Texas, but for those who don’t it’s 1910 all over again with virtually no state oversight. Let me be clear about that: In Texas, there is no requirement for non-subscribers to pay for work injuries in any way. There is one important difference, however. The Texas legislature has statutorily removed the three major defenses used by employers prior to workers’ comp statutes being enacted to defend themselves against worker suits: contributory negligence, assumption of risk and the negligence of fellow employees. Also, without workers’ comp, there can be no “exclusive remedy,” and for non-subscribers there isn’t. Large non-subscribers, such as Costco, have been very creative in dealing with that.
Rousmaniere and Roberts discovered that Texas opt-out was a bit of a carnival sideshow until ten to fifteen years ago when large employers like Costco, whose program they analyze in depth, cottoned on to the idea that they could provide a sleek, fast-moving, common-sensible injury benefit management system if they wove it into their ERISA plans. ERISA, the Employee Retirement Income Security Act, is a federal program which allows employers to design their own benefit systems, and substantially more than a cottage industry has evolved in Texas to help them do that for worker injuries. The operable phrase in that last sentence is “design their own.”
Designing Their Own
Suppose someone, your boss for example, said to you, “There’s no more workers’ comp. Design me a plan that will provide our workers who get injured immediate medical care and wage replacement. Make worker participation mandatory. Keep the administration to nothing more than what is absolutely needed for it to run smoothly, and, before I forget, keep all the lawyers out of it.”
What would you do? Well, large employers in Texas have had about fifteen years to think about that, and at least one of them, Costco, has created the ideal program I would design myself if I had a magic wand. I say “at least one,” because Costco is the only employer Rousmaniere and Roberts point to, although they do report on interviews with many professionals involved in Texas opt-out. They also suggest that Costco is fairly typical of the large employer opt-out experience.
After much research and planning, Costco became a non-subscriber in 2007. At that time, the company operated 15 large warehouses throughout Texas, carried a payroll of $87 million and employed about 4,000 workers. Its loss costs had grown to around $150 per employee, or 97 cents per hundred dollars of payroll. In the four years following non-subscription, losses fell to 46 cents per hundred dollars of payroll, a decline of 52%, with high employee satisfaction for the system.
Here are the main points of Costco’s worker injury benefit program, and remember, Costco was able to start with a blank piece of paper:

  • Work must be the “sole cause” of injury, not just a “contributory factor.” More about this below.
  • Injuries “must” be reported by end of shift, but in no case later than 24 hours after happening. Failure to do this will negate any benefits. Workers who don’t report in time are on their own; most use group health to cover medical costs, but, as one can imagine, a worker is more likely to win the Powerball than to not report within 24 hours.
  • Employees receive a taxable 80% of pre-injury wages with no waiting period. They’re paid from day one.
  • Upon hiring, workers are required to accept binding arbitration for disputed claims, and Costco picks the arbitrators. If unsatisfied with the arbitrator’s ruling, employees do have the option of bringing suit for employer negligence in civil court, but since 2007 only three such suits have been brought; two were settled modestly, and the third is pending
  • Chiropractic care is not allowed (Costco’s analysis of its losses concluded that excessive chiropractic care was a major driver of loss costs and unnecessary for employee recovery)
  • There are no permanent partial disability awards
  • Wage and medical benefits end after 156 weeks, but, in rare cases, future medicals can be settled (Rousmaniere and Roberts don’t address this, but I’m wondering about the degree to which CMS plans on extending its long, bony Medicare fingers into this pie)
  • Costco carefully picked an emergency care and specialist medical provider network comprised of highly reputable physicians, with as many as possible being board-certified occupational medical physicians. Costco routinely pays its providers full invoiced charges
  • If employees fail to follow through on medical recommendations or miss appointments for no good reason, benefits are terminated
  • For the rare event when injuries extend beyond 156 weeks, Costco has purchased insurance to cover the tail
  • Because any disputes go quickly to arbitration, attorney involvement is nearly non-existent

With loss costs reduced by 52% and employee satisfaction high, Costco obviously has a winning program. Costco has seamlessly woven injury benefits into its ERISA plan, blending them with its group health and short and long-term disability programs.
One thing that Costco wrestles with is co-morbidity. Imagine a Type-1 diabetic warehouse worker without safety shoes who drops some heavy object on his or her foot. Because of the diabetes, the foot is much more susceptible to infection, which actually happens. Then, because diabetes seriously inhibits healing, the infection worsens, and the foot is amputated. In statutory workers’ comp, this would be covered, but what about at Costco. I asked Peter Rousmaniere about this. He wrote back:

“You are right, this would be excluded… With Obamacare assuring universal health coverage, the opt-out employer’s message will be something like, “Don’t expect indemnity payments for a work injury if there is a good chance that your personal health condition will contribute to it.”

Rousmaniere admits that this “sounds draconian,” but he believes that this issue, as well as what to do about degenerative conditions, such as what to do about the 55-year old wall board hanger whose rotator cuff finally gives out, will gradually self correct with help from the ADA as well as the Affordable Care Act. The jury on this is decidedly out. But, just for a moment, imagine that he’s right. What we could be moving toward, after decades of failed experiments, is the first manageable and potentially successful version of 24-hour care.
The Other Side of the Coin
One thing is clear from the Rousmaniere and Roberts study: Costco and other large employers like Target and Safeway, two other non-subscribers, have the resources and core values necessary to provide compassionate care for injured workers while bringing them back to work as fast as medically possible in a businesslike way. But what about Kenny’s CITGO, down the street on the corner with five employees, all of whom, including Kenny, live paycheck to paycheck? And Kenny is just as free to non-subscribe as Costco.
Kenny and others like him are the Third World of non-subscription. Operating with no regulatory or legal oversight by the state, he can do what he pleases or what he perceives he can afford, which is probably not much. If one of his workers is injured, and Kenny decides to offer nothing in the way of injury benefits, the worker is on his own. He can certainly sue Kenny for employer negligence, and Kenny won’t have those three pre-workers’ comp era defenses to rely on. However, no attorney is going to take the employee’s case because Kenny won’t have the resources to pay if he loses, which he probably would. But, to quote Rousmaniere and Roberts, “That is a hollow victory, indeed.”
And on a grander scale, what about the large employer with significant resources, but who also may have more than a bit of malevolence in its DNA and wants to play schoolyard bully (see Massey Energy)? In an environment without one scintilla of regulation will the bully treat workers fairly?
The Oklahoma Proposal
After studying the lay of the land for the Texas opt-out and seeing where the Punji Pits are (see Kenny’s CITGO and Massey Energy), Oklahoma legislators crafted a remarkable piece of opt-out legislation that narrowly lost 42 to 50 in the Oklahoma House of Representatives in late April, 2012.
The Oklahoma proposed legislation would have corrected many of the perceived flaws in the Texas opt-out system. For example, Oklahoma would require any employer choosing to opt-out to provide similar, in some cases better, benefits than the statutory system. Also, injury benefits would be required to be part of an ERISA-approved plan, although there is significant uncertainty if this provision would withstand a constitutionality challenge. Further, employers applying to opt-out would have to pay a fee of $1,500 annually to do so. This would more than likely eliminate the Kennys of the world, employers who just don’t have the resources to “pay to play.”
Rousmaniere and Roberts expect Oklahoma legislators to do some tinkering and re-file during 2013. They think there is a good chance that this time the legislation will pass. Whether Governor Mary Fallin, who campaigned on a platform of workers’ comp reforms, will sign it is another matter.
Summary
This 87-page report is a Herculean effort, and, in my view, the worker’s compensation insurance industry owes Rousmaniere and Roberts a huge debt for spending close to a year to produce it. Sedgwick should be commended for funding it. Perhaps we can forgive Rousmaniere for a bit of acquired bias, but he’s seen, up close, what a conscientious, fair-minded employer can do if given the chance. I come away from his report finding myself agreeing with him as he wrote me the other day: “Every state should offer and every medium and large sized employer should consider opt -out.” But to this I add, “With a healthy dose of regulatory and state oversight. Not everyone is Costco.”

Texas: Coming and Going, Going, Gone

Tuesday, September 25th, 2012

One of the most compelling issues in the compensability of workers comp claims is determining the moment when coverage begins. For most workers, coverage begins at the worksite, often in the employer’s parking lot. Under the “coming and going” (or “to and fro”) rule, the commute to and from work is generally not covered. There are exceptions, of course, and these exceptions become the focus of litigation when an injury occurs during a commute. When a serious injury or, in today’s case, a fatality occurs, there is a lot at stake in the interpretation of this deceptively simple rule.
Juan de los Santos worked for Ram Production Services, a Texas company that services gas and oil leases. De los Santos was assigned to work on a gas lease located on a large piece of fenced ranchland. The employer furnished de los Santos with a company-owned truck and paid for work-related fuel expenses. The truck was not for personal use. De los Santos spent a significant part of his workday traveling to wells and job sites within a designated area known as the Buck Hamilton Ranch. De los Santos entered the ranch through the only entrance, a gate where he was signed in by a guard. De los Santos traveled to the exact same location each day to begin his work, which started at 6:00 a.m. He was a salaried employee, who was not paid extra for his travel.
One Fateful Day
In June of 2005, de los Santos was driving to work, on a public highway, when he was involved in an accident that resulted in his death. He was survived by his wife, Noela, and his daughter, Kimberly Ann. [Note that the litigation around the compensability of his death remained unresolved more than seven years later.] Noela filed for workers comp benefits, which were denied, then granted, and then finally resolved in the Texas Fourth Court of Appeals.
Mrs. de los Santos tried to develop a narrative of the accident that met the standard for a compensable claim: she noted that her husband was traveling in a company truck furnished as part of his employment contract, and that her husband’s travel originated in the employer’s business because he was taking a route to a remote job location, was on a “special mission” at the time of the accident, and was transporting tools and equipment to the worksite.
Deconstructed Narrative
The appeals court dismantled her narrative one piece at a time:
– Being in a company vehicle does not mean you are necessarily “in the course and scope” of employment;
– Yes, he was driving to a remote location, but that was his regular assignment, unchanging from week to week;
– Even though he was meeting a contractor at the jobsite, this did not mean he was on a “special mission” as he was headed to his usual workplace at the usual time;
– And the fact that he was carrying tools and equipment did not change the nature of the commute. [NOTE: had he been injured moving the equipment into the truck, he would have had a compensable claim.]
The court noted that “there is no bright line rule for determining if employee travel originates in the employer’s business; each situation is dependent on the facts.” And the facts, as the court interpreted them, did not favor the widow’s claim. They reversed the trial court’s ruling by rendering a “take-nothing” judgment. Take nothing, indeed.
Thus, after seven years, the case grinds to its conclusion. Mrs. de los Santos and her daughter are on their own.
Letter of the Law
The court was correct in its determination that de los Santos was on his ordinary commute to his regular workplace. While we all have moments when we might like to engage in social engineering – the widow and her daughter certainly could use a helping hand – the rules are the rules and the law is the law. Workers comp offers a formidable package of benefits to workers across America. The wage benefits are generous and the medical benefits superior to any conventional health plan. But the barrier to coverage is substantial: the injury – in this case, fatality – must arise “in the course and scope” of employment. In his drive seven years ago on that lonely and presumably quiet back road to his remote job site, de los Santos was commuting to work. He never made it to the Buck Hamilton Ranch. Now, years later, his widow must deal with the consequences of his not quite reaching the gate, where his compensable workday would have begun.

Annals of Compensability: Confusion and Death from an East Texas Cocktail

Monday, September 10th, 2012

We have been tracking the compelling issue of compensability in drug overdoses within the workers comp system. We have blogged drug-induced fatalities that are compensable (Tennessee) and non-compensable (Ohio and Connecticut). Given the prevalence – make that rampant over-use – of opioids in the workers comp system, prescription drug abuse is an issue with profound implications for injured workers, their employers and the insurers writing workers comp policies across the country.
Which brings us to the saga of Bruce Ferguson-Stewart. He was injured on May 25, 2004 while working for AltairStrickland, an industrial contracting firm in Texas. A bolt weighing several pounds fell from above, striking Ferguson-Stewart and injuring his shoulder and neck. The MRI showed “minor disc bulges” at three levels on his cervical vertebrae. His treating physician diagnosed him with a left shoulder contusion and prescribed hydrocodone as part of the treatment plan. The doctor also recommended surgery to repair the shoulder.
Denial and its Consequences
For reasons that are not clear from the trial documents, the claim was denied by Commerce & Industry Insurance, the employer’s carrier. The carrier lost the initial appeal and then lost again. The insurer then sought judicial review of the Division-level finding of compensability.
Meanwhile, with his shoulder untreated and in extreme pain, Stewart continued to take his prescribed Hydrocodone, known locally as an “East Texas cocktail.” At every level of appeal, the compensability of the claim was upheld, but the surgery was delayed – with apparently disastrous results. (The delaying tactics may have been related to Stewart’s alleged history of abusing prescription drugs.)
On October 3, 2004, while his worker’s compensation claim was still being contested, Ferguson-Stewart died from an overdose of hydrocodone. His blood contained a hydrocodone level of 0.38 mg/L, which is consistent with acute severe toxicity. The blood also contained carisoprodol, a prescription muscle relaxant, and marihuana.
Trial by Jury
Ferguson-Stewart’s widow filed for death benefits under workers comp, but the case was denied. The widow appealed.
At trial, Ferguson-Stewart presented two theories as to how and why Stewart might have unintentionally or unknowingly ingested a lethal dose of hydrocodone. First, in what CIIC describes as the “accidental overdose” theory, Ferguson-Stewart alleged that the overdose must have been accidental because her husband did not intentionally or knowingly commit suicide.
Tommy J. Brown, a forensic pathologist who performed an autopsy on Stewart, concluded that the cause of death was hydrocodone toxicity and that the manner of death was “accidental.” Brown’s testimony is right out of central casting:

Well, I–I see it a lot. I do autopsies on people with chronic pain a lot and
this–like before I see them, start out with their drugs and then they
increase the drugs, and then to try the [sic] alleviate the pain more, and pretty soon they’re taking more than prescribed, and pretty soon they will
overdose theirselves [sic] or they will overdose theirselves [sic], some
people do. And then they die and it’s usually in a low lethal range [like
that observed in Stewart]. So I consider that an accidental death because
they were overdosing due to the chronic pain.

With its pathos and illuminating detail, the widow’s testimony reads like a monologue from a Faulkner novel:

The day before or the day of–that he died. They say he actually died
early in the morning; so, I guess the day before. He was really disoriented. He was not acting normal or the way he had been acting since he was hurt. He wasn’t acting normal at all. His speech was slurred. He was stumbling and falling all over things. I remember–I think I remember one time he actually falling [sic] out of a chair and–in the yard
because he was trying to get up and he tripped over a root and he fell on
the shoulder he had injured. And that made it even that much more
painful for him. He was–he was very–he was crying about it. He really
had hurt himself.
. . . .
He was–in the last couple of days before he died, he was getting really
bad about forgetting that he had already taken his medicine and taking it
again; and you know, sometimes I would have to tell him, “Hey, you
already took it. You can’t take it again.” And usually he would agree with me; but there were times when he would say, “No. No. No. I didn’t take it. I’m sure I didn’t take it. I’m still hurting too bad, and I don’t remember taking it.” So, he’d take it again.
But especially the day of [his death], he was entirely too confused. He
wasn’t–like I said, he wasn’t himself at all.

The jury charge instructed that “[a] claimant’s death does not
result from medical treatment instituted to relieve the effects of his compensable injury if the death results solely from a claimant intentionally or knowingly failing to comply with his doctor’s instructions[emphasis added].” The jury concluded that Ferguson-Stewart’s death was unintentional, resulting from the treatment for his compensable injury. The widow was granted death benefits.
Intention, Confusion and Compensability
Under Texas law, compensability hinges on Ferguson-Stewart’s intent: was the death an intentional suicide or was it an accident? He had no intention of killing himself, so the death was compensable. In a somewhat similar Connecticut case (see above), the overdose was the result of the deliberate (and illegal) act of using a needle to ingest drugs. That case was denied.
Behind every death due to prescription drugs lies a story worth telling. Powerful and effective pain killers are transformed into instruments of death. When it comes to the compensability of these cases, disorientation and confusion are not limited to injured workers experiencing pain. The medical and workers comp systems struggle with the ambiguous legacy of medications: while opioids offer immediate, short-term relief from pain, the relief is followed all-too-often by a downward spiral of addiction and dependency.
I truly wish the testimony of Ferguson-Stewart’s widow could be played in the examination room of any doctor about to write a script for an “East Texas cocktail.” The doctor just might consider a more benign and less toxic alternative.

Health Wonk Review and assorted news of note

Thursday, April 12th, 2012

Brad Wright of Wright on Health tees up all the health wonkery this week as he hosts Health Wonk Review: A Masterful Edition.
Texas – Texas does things differently and their work comp program is true to course. Employers are not mandated to have workers comp insurance – they can opt out. According to a 2010 survey, 15% of businesses with 500+ employees choose to opt out. And now Walmart is opting out of work comp in Texas. See more on this at PropertyCasualyt360, including a graph of market share for the top 10 insurers comparing 2010 to 2011: Concerns Arise over Texas Workers’ Comp. State System After Walmart Drops Out
Mississippi reform – Mississippi is working on workers comp reform and we note that one provision about “medical proof” establishes a pretty high bar to hurdle for some injuries; for example, a back injury: “It also would require a worker to provide the employer with medical proof that an injury or illness is a direct result of the job if the worker’s claim is contested.”
Dirty Business – Is workers’ comp dirty? Some people seem to think so and Dave DePaolo considers whether there’s more to the frequent use of the term than coincidence. See Work Comp and Dirt – Do They Have to be Synonymous?
Florida drug warsTampa Bay Times says that drugstores are the new focus of painkiller investigations. From the article: “The U.S. Drug Enforcement Administration says that in 2009 no Walgreens retail pharmacies were listed among the DEA’s top 100 Florida purchasers of oxycodone — a key ingredient in OxyContin, Percocet and Percodan. / By 2011, 38 Walgreens made the list. By February, the total reached 53 of the top 100. So says a warrant filed last week in U.S. District Court for the Middle District of Florida. / In Fort Myers, the DEA says one Walgreens pharmacy sold more than 2.1 million oxycodone pills in 2011. That’s more than 22 times the oxycodone sales at the same pharmacy two years earlier.”
Healthcare’s 1%Who are the chronically costly? The costliest 1% of patients consume one-fifth of all health care spending in the U.S., according to federal data. Doug Trapp of amednews digs into the data to profile the most costly patients and where so much of the medical spend goes.
From the courts – Fred Hosier of SafetyNewsAlert has an interesting post about whether workers comp will be on the hook for prescribed drug’s side effects. He cites a case related to a West Palm Beach police officer who has filed for additional workers’ comp benefits for the treatment of his gynecomastia, an excess growth of breast tissue, a side effect of medication he was prescribed to treat a work-related injury. Initially denied, an appeals court has reopened his claim for review by an expert medical advisor.
Occupational Medicine – It’s been a bit since we visited the American College of Occupational and Environmental Medicine (ACOEM) site. ACOEM offers up a few new guides, and a revision of an older guide – Fatigue Risk Management in the Workplace (PDF), Guidance to Prevent Occupational Noise-Induced Hearing Loss and Guidance for the Chronic Use of Opioids.
Affordable Care Act – At Health Care Policy and Marketplace Review, Bob Laszewski looks at what individual health insurance might cost if the court strikes the mandate down and still requires insurers to cover everyone. Hint: a lot.
Briefly….

Austin City Limits: Payment for Prejudice

Wednesday, April 27th, 2011

Edwin Graning drove a van for the Capital Area Transportation System (CARTS), which serves the public in the communities surrounding Austin, Texas. He is also an ordained minister. He was sent to pick up two women and deliver them to the Planned Parenthood office in Austin. He was “concerned” that the customers were going to Planned Parenthood for an abortion, so he called his supervisor and told her that in good conscience, he could not carry out the job. He was instructed to return to the garage, where he was promptly terminated for this refusal to follow orders.
Graning, supported by lawyers from the American Center for Law and Justice, alleged a violation of the Civil Rights Act of 1964. (Goodness, quite a bit of irony in that!) He sued his employer for discrimination based upon religious beliefs. In the lawsuit, he sought reinstatement with backpay, payment for his pain, suffering and emotional distress.
Surely, there is no basis in the law for this claim. Surely, Graning is the one who should be sued. Then again, this is the Lone Star state that some would transform into a sovereign nation.
Unsettling Settlement
Lawyers for CART advised them to settle. Blanco County Commissioner Paul Granberg said that the attorneys “advised the board that it would cost a lot more in attorney fees than it would cost to settle.” So they wrote a check to Graning for $21,000. Is there any such thing as principle in law these days? Did CART’s attorneys even consider doing what is right and just?
CART, which did nothing wrong, has changed its hiring procedures, to prevent a recurrence of this ludicrous situation. David Marsh, CART general manager, said officials have begun making it clear when drivers are hired “that we have a job to do and we don’t decide what destinations are.” Boy, that must be a revelation (no pun intended) to people applying for jobs as drivers.
Graning has been amply rewarded for his discriminatory and prejudice-laden act. He had no way of knowing why the customers were going to Planned Parenthood, which offers a wide range of health services, by no means limited to abortion. He was represented in this crackpot lawsuit by attorney Thomas Brandon, Junior, of counsel to Whitaker, Chalk, Swindle & Sawyer. Chalk it up as a Swindle, indeed.

Health Wonk Review, CTE, bill review, messing with Texas, and more

Thursday, March 3rd, 2011

Jared Rhoads of The Lucidicus Project hosts this week’s Health Wonk Review, and he dishes up a heaping helping of the blogosphere’s best heath policy posts from the last two weeks. Check it out!
Happy Birthday – to David Williams at Health Business Blog for 6 years of quality healthcare blogging. David is one f the regular Health Wonkers. See his Best of the Blog post for a fine sampling of his work.
More sports-related head trauma tragedy – Earlier this week, my colleague posted about football-related chronic traumatic encephalopathy (CTE). Yesterday, the New York Times featured a story about how hockey brawler Bob Probert also suffered from CTE: “But the legacy of [Bob] Probert, who died last July of heart failure at 45, could soon be rooted as much in his head as his hands.After examining Probert’s brain tissue, researchers at Boston University said this week that they found the same degenerative disease, chronic traumatic encephalopathy, whose presence in more than 20 deceased professional football players has prompted the National Football League to change some rules and policies in an effort to limit dangerous head impacts.”
Bill review – Are you getting what you pay for with medical bill review? At Managed Care Matters, Joe Paduda takes some of the mystery out of the equation in his discussion about what your savings should be from your work comp medical bill review program.
Criminal indictment for Massey mine official – Hughie Elbert Stover, the chief of security for Massey Energy’s Upper Big Branch Mine has been charged with two felonies related to the April 2010 explosion that killed 29 coal miners. He is accused of lying to investigators and destroying records. On his blog, reporter Ken Ward asks if this is just the beginning of indictments.
Don’t mess with Texas – If you ever use the words “workers compensation” and “Texas” in the same sentence, you better think twice. TX law blogger John Gibson has been issued a “cease and desist” order and threatened with further legal action for his TX Workers Comp Law Blog for having the temerity to use the words “workers compensation” and “Texas” in his blog. We can’t get Gibson’s take because his blog appears to be down (www.texasworkerscomplaw.com), but Julius Young posts the scoop on the Texas workers comp language imbroglio at his Oakland Workers Comp Blog. If you don’t see his post – or ours – please blame Texas. Just to be on the safe side, from here on out we may begin referring to Texas as “Exas-Tay.”
Sedgwick acquires SRS – In a major move in the world of third party administrators, Sedgwick completed the purchased of Specialty Risk Services for $278 million. SRS was the claims TPA arm of The Hartford. In his bog on the Hartford Courant, Matthew Sturdevant reports that: “The deal makes Sedgwick CMS the largest independent North American provider of claims administration services. The combined companies will have annualized revenue of about $1 billion as well as almost 8,500 employees.”
Devil’s in the details – Yvonne Guilbert of Complex Care Blog posts two concrete incidents that show how one small detail missed in home care could easily end up costing $50,000 or more.
Safe hiring practices – As the economy ramps up, new hires will increase an employer’s potential for workplace injuries. At MEMIC Safety Blog, Greg LaRochelle says that a new employee is 5x more likely to have a lost-time injury than a more experienced worker, and that 40% of all workers injured on the job have been on the job for less than a year. He posts about hiring practices to help mitigate risk.
Hiring VetsHR Daily Advisor offers a good roundup of tips and advice for hiring returning veterans. The post includes questions to ask and to avoid during the interview.
Short Takes
AIG results and workers comp
Four steps to evaluate absence policies
Insurance Fraud Hall of Shame 2010
Smiling makes the world go round
7 wellness benefits employees want most