Posts Tagged ‘Transportation’

The Bike Helmet Battle: Some Things never Change

Monday, August 29th, 2016

It’s been ten years since the Insider wrote a word about motorcycle and bicycle helmets. Shame on us. This Post provides a ten-year update and connects helmet use to workers’ compensation.

To review the bidding:

We “tackled” motorcycle helmets after Ben Roethlisberger, quarterback of the Pittsburgh Steelers (who, at the time, were reigning Super Bowl champions), had been seriously injured when, sans helmet, he drove head on into the side of a Chrysler New Yorker making a left turn in front of him in downtown Pittsburgh. Big Ben suffered serious facial and head injuries. He could easily have been killed. We ended that Post with this:

As a diehard New England Patriot fan, I really want to see Ben Roethlisberger on the field challenging my team for all he’s worth. So, I hope he makes a miraculously speedy recovery and is his old self by the start of training camp. But what would be really great, better than any football game, is if Big Ben, as soon as he’s sitting up and able to mouth coherent speech, were to make a big-time television public service announcement. A TV spot in which he would tell every kid and every football fan in America that he was wrong, that he was stupid, that he is not immortal and that he will never, ever again ride a motorcycle without wearing the best helmet made in the universe.

That didn’t happen. Quite the opposite, actually. For when media asked Mr. Super Bowl Superman if he would continue riding his bike (well, make that his new bike) and, if so, would he wear a helmet, he said “Yes” to the first and “No” to the second. It was at that moment that I knew we had lost the motorcycle helmet game in America.

With respect to bicycle helmets we reported on a New York City study (unfortunately no longer available) analyzing the 225 bicycle accident deaths that occurred over the most recent ten year period in the City. The study provided compelling evidence of life-saving properties of bicycle helmets. This from that Post:

  • Almost three-quarters of fatal crashes (74%) involved a head injury.
  • Nearly all bicyclists who died (97%) were not wearing a helmet.
  • Helmet use among those bicyclists with serious injuries was low (13%), but it was even lower among bicyclists killed (3%).
  • Only one fatal crash with a motor vehicle occurred when a bicyclist was in a marked bike lane.
  • Nearly all bicyclist deaths (92%) occurred as a result of crashes with motor vehicles.
  • Large vehicles (trucks, buses) were involved in almost one-third (32%) of fatal crashes, but they make up approximately 15% of vehicles on NYC roadways.
  • Most fatal crashes (89%) occurred at or near intersections.
  • Nearly all (94%) fatalities involved human error.
  • Most bicyclists who died were males (91%), and men aged 45–54 had the highest death rate (8.1 per million) of any age group.

So, where are we now?

According to the Insurance Institute for Highway Safety:

Currently, 19 states and the District of Columbia have laws requiring all motorcyclists to wear a helmet, known as universal helmet laws (Insider Note: in 2006, it was 20 states and the District of Columbia). Laws requiring only some motorcyclists to wear a helmet are in place in 28 states. There is no motorcycle helmet use law in three states (Illinois, Iowa and New Hampshire).

Regarding bicycles helmets, no state requires an adult to wear one, although 21 states and the District of Columbia require young riders to wear them.

Now, into this cranial hodgepodge of helmet laws ride researchers from the University of Arizona. Writing in the American Journal of Surgery, they report on their study, the largest ever done regarding the efficacy of bicycle helmets. This from the study’s Abstract:

Methods

We performed analysis of the 2012 NTDB abstracted information of all patients with an intracranial hemorrhage after bicycle related accidents. Regression analysis was performed.

Results

A total of 6,267 patients were included. 25.1%(n=1,573) of bicycle riders were helmeted. Overall 52.4%(n=3,284) patients had severe TBI (Traumatic Brain Injury), and the mortality rate was 2.8%(n=176). Helmeted bicycle riders had 51% reduced odds of severe TBI (0.49 [0.43-0.55]; p<0.001) and 44% reduced odds of mortality (0.56; 95% CI, 0.34-0.78; p=0.010). Helmet use also reduced the odds of facial fractures by 31%(0.69; 95% CI, 0.58-0.81; p<0.001).

Conclusion

Bicycle helmet use provides protection against severe TBI, reduces facial fractures, and saves lives even after sustaining an intracranial hemorrhage.

The good news from this study? In a bicycle accident you are more than 50% less likely to sustain a TBI, 44% less likely to die and 31% less likely sustain a facial fracture if you are wearing a helmet (Insider Note: Ask Ben Roethlisberger to describe the pain of a facial fracture).

The bad news? Despite the good news only 25% of bicyclists wear helmets. In ten years nothing has changed.

Does this have anything to do with workers’ compensation? According to Bureau of Labor Statistics data, if you’re one of the more than 73,000 bicycle messengers and couriers in the U.S. it might. And if you’re one of the more than 12,000 that navigate streets in southern California or one of the more than 5,000 that zip through Midtown Manhattan, or one of the 1,400 dodging traffic in Chicago’s Loop it might. Because, while all states require employers to provide helmets to their bicyclist employees, and while most states require employers to provide training that includes the benefits of helmets, no state requires the bicyclist to wear them. However, both New York City and Chicago have enacted local laws requiring employers to provide working cyclists helmets meeting either A.N.S.I. or Snell standards and further require the cyclists to wear them.  Although in the case of NYC, someone might want to pass the requirement on to the messenger and courier companies, the largest of which told me wearing a helmet is “totally up to the rider’s discretion.”

For now, we’re left with a mish-mash. Things are pretty much as they were back in 2006, along with the helmetless rider’s continuing mantra: “It’s all about the freedom of personal choice.” That may be true, but society, that’s you, I and everyone else, doesn’t have a choice about sending EMT Rescue Units to the scenes of cycle accidents and caring for those who sustain serious injury or death in the “Live Free Or Die” game.

 

 

Highway regulators calling for better truck safety

Wednesday, January 28th, 2015

ntsb
Since 2009, fatalities related to large truck road accidents have increased by 17%. In 2013, that number rose to 3,964 fatalities, the fourth straight year of increases. This bucks the trend of vehicle-related fatalities overall, which have been steadily decreasing. Fatalities involving large trucks and buses represent about 4% of the overall annual vehicle-related fatality total.

The increase in fatalities has prompted the National Transportation Safety Board (NTSB) to call for tighter commercial trucking regulations.

Despite the annual uptick, NTSB says that more than 100 recommendations for improved truck safety have not come to fruition. And worse, instead of strengthening measures, it would appear that legislators rolled back safety-related regulations:

“Congress last year weakened regulations designed to reduce trucker fatigue. Lawmakers targeted a portion of a rule closing a loophole that kept some drivers from working 82 hours over eight days, according to Transportation Secretary Anthony Foxx. That provision won’t be enforced for at least a year as regulators conduct research to see if it had an unintended effect of forcing more trucks onto the road during rush hours. “

NTSB has included the need for a strengthening in commercial trucking on it 2015 Most Wanted List. Among some of the recommendations, NTSB says:

“Regulators have taken initial steps by maintaining science-based hours of service rules and are in the process of rulemaking mandating electronic logging devices that can help assure that drivers are adequately rested. Other important rulemaking initiatives include requirements to screen drivers for obstructive sleep apnea, other potentially impairing medical conditions, and potentially impairing drugs.”

Truck driver safety
According to the Bureau of Labor Statistics (BLS) truck drivers are six times more likely to be killed on the job than other workers. The trucking Industry is among the top 5 most catastrophic occupations. According to a 1992 article in the Journal of Public Health Policy:

“In the 1992 study, over one thousand long haul tractor-trailer drivers were interviewed by a research team over four months, and almost three-quarters of the respondents said they self-reported violations of Hours-of-Service rules. Two-thirds said they “routinely” drive more than legal weekly maximums. Those long hours in the driver’s seat lead to decreased attentiveness and heightened rates of fatigue, creating prime conditions for unwanted accidents and catastrophic injuries.”

One excellent resource for trucker safety is TIRES (Trucking Injury Reduction Emphasis), a research project developed by the SHARP program at the Washington Department of Labor & Industries. SHARP’s research shows that trucking has some of the highest claims rates and costs in the State of Washington.

In addition to a wide range of training and safety information, TIRES an excellent Keep Trucking Safe Blog that we’ll be adding to the sidebar.

Related

Risk roundup, elephants in the room, dental claims, yelling as an essential function, and more

Wednesday, November 30th, 2011

David Williams of Health Business Blog hosts the biweekly roundup of posts in the Insurance Fest Edition of Cavalcade of Risk. Check it out! Plus, poke around David’s blog – lots of good information, such as his recent posts on What does an Explanation of Benefits (EOB) actually explain and part 2.
The elephant in the room – Last week, my colleague reported on several issues and trends under discussion at the WCRI Conference. One of the key issues that has attracted some media attention is Richard Victor’s conference summary about the elephant in the room – employment. Insurance Journal’s Andrew Simpson has more on the tough challenges that face the workers’ comp system in the coming years as we cope with the “unprecedented disruption of the labor market.”
Ghosts of crises past… – Peter Rousmaniere recalls the workers comp crisis of 1991 private sector markets in some states came close to collapsing. He discusses ensuing legislative reforms and changes in employer and claims payer practices, which are are still making their impact known in today’s market.
Meanwhile, in England… – Jon Gelman notes that Britain’s Department of Work and Pensions has concluded that the principle of “no fault” should be eliminated from the workers’ comp system. “In a review published next week there are calls for a ‘rebalancing’ of safety laws and a dramatic reduction in the number of rules in the workplace.” Jon notes that our US system was modeled after Britain’s.
California Network Utilization Study – If California proves to be the national pacesetter that it so often is, look for network utilization to increase. According to a recent study by the California Workers’ Compensation Institute (CWCI), the use of Physician Networks in California workers’ comp is at a record high. Network physicians now provide more than 75% of all first year physician-based treatment, and receive two thirds of the dollars paid for physician-based services rendered in the first year. You can download the full report (and other reports too) from the CCWI Research page.
Dental claims – If you think it’s difficult to find a physician who understands workers comp issues, how about a dentist? At Risk Management Magazine, Laura McClain explores some of the complexities involved in dental claims, such as the fact that the average dental claim requires 17 dental provider visits. She notes that risk managers generally rely on their PPOs to manage dental injuries, but suggests that because these claims require a more specialized approach, risk managers need to give them special attention.
Essential Functions – We couldn’t find a better example of why it’s important to document the essential functions of a job that the recent case that Jon Hyman Of Ohio Employers Law Blog discusses in his post, “SAY IT! SAY IT!” Yelling as an essential function. Hyman’s take away for employers: “Just because the ADA (as amended by the ADAAA) renders virtually every medical condition a protected disability does not render employers defenseless. Essential functions come in all shapes and sizes. When handling an accommodation request from a disabled employee, do not omit consideration of all facets of the job.”
US Road Casualties Mapped – Transportation related accidents are not only one of the leading causes of work-related fatalities in the US, they are one of the leading causes of death, period. Between 2001 and 2009, 369,629 people died on US roads. Now, courtesy of the Guardian’s Data Blog, you can see US traffic fatalities – every one mapped across America for those years on an interactive map. You can zoom in to search by your location. (Thanks to Liz Borowski at the always excellent Pump Handle for the pointer).
Cool Tool – NIOSH offers a Noise Meter shows how long it takes before a particular sound level becomes dangerous to the human ear. You can listen to the sounds and sound intensities of everyday objects. It’s an interesting little toy to share with workers to call attention to prevention efforts. Also see the other NIOSH resources on noise and hearing loss prevention.
Still an important health issue… – omorrow is World HIV-AIDS Day. The CDC has a good workplace resource: Business and Labor Responds to AIDS, which includes info on policy development, supervisory training materials, and educational materials.
News of Note

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.

Commercial drivers & medical certification (and other alarming commercial transportation safety matters)

Thursday, October 7th, 2010

On Mother’s Day in 1999, Custom Bus Charters’ bus driver Frank Bedell veered off a highway near New Orleans, killing 22 passengers and injuring 20 others. Just 10 hours before this trip, Bedell was treated at a local hospital for “nausea and weakness.” He had been treated at least 20 times in the 21 months prior to the accident, and 10 of those times involved hospitalization for “life-threatening” heart and kidney disease. You can read more about this horrific crash, which remains one of the nation’s deadliest bus crashes, at NOLA.com: Loopholes let sick man drive, safety board says. Also of interest: Breaking the law went with the job.
This accident brought the issue of the medical competence of commercial drivers to the public attention in a dramatic way. In its subsequent report of the accident after the investigation, The National Transportation Safety Board (NTSB) determined that “…the probable cause of this accident was the driver’s incapacitation due to his severe medical conditions and the failure of the medical certification process to detect and remove the driver from service. Other factors that may have had a role in the accident were the driver’s fatigue and the driver’s use of marijuana and a sedating antihistamine.
The incident and investigation prompted NTSB to issue Safety Recommendations revolving around medical certification of commercial drivers.
How are we doing today?
Nearly a decade later, how are these safety measures designed to protect the public from medically unsafe commercial drivers working out? Not too well, according to a recent investigative report by News21, which was published by MSNBC in the article Truckers fit to drive — if a chiropractor says so: “From 2002, when the recommendations were made, through 2008, the last year for which data is available, there were at least 826 fatal crashes involving medically unqualified or fatigued drivers, according to a News21 analysis of the FMCSA Crash Statistics database.”
The article paints a scary portrait of a driver medical certification program that is pretty broken. Truck drivers can pop into roadside clinics to pick up certifications issued after a cursory examination by almost any health professional. And that’s a good scenario – drivers can also download online certificates and fill them out themselves or ignore the requirement entirely. Forgeries are a common occurrence. Being caught without a certificate might result in a slap-on-the-wrist fine. While there have been calls for a national registry for medical certification of commercial drivers, the idea has made little progress. It will probably take the next big incident to ignite public outrage to motivate any change.
For a resource on current regulations, see the US Department of Transportation Motor Carrier Safety Administration’s Medical Programs, which includes medical regulations and notices, including drug and alcohol testing.
The News21 story on commercial drivers is the third part in a series of four articles that deal with transportation and public safety. Here are the others:

Part 1:
Driving While Tired: Safety officials are slow to react to operator fatigue:
“NTSB does not track fatigue-related highway accidents on a regular basis. But in 1993, the board commissioned a study expecting to learn about the effects of drugs and alcohol on trucking accidents. Investigators studied all heavy-trucking accidents that year and made an unexpected discovery: Fatigue turned out to be the bigger problem. NTSB Crash investigators said driver fatigue played a key role in a bus accident in Utah in 2008 that killed nine people returning from a ski trip.
The study found 3,311 heavy truck accidents killed 3,783 people that year, and between 30 percent and 40 percent of those accidents were fatigue-related.”
Part 2: Video in the cockpit: Privacy vs. safety
In 200, the NTSB added a recommendation for video recorders to be installed in commercial and charter planes to its “most wanted” list. Pilot unions and other groups have lobbied this safety measure. See this story’s sidebar article: Shhhh! Your pilot is napping
Part 4: Outsourcing safety: Airplane repairs move to unregulated foreign shops
“More maintenance has moved overseas. Airlines are not required to use regulated repair shops. Foreign repair stations can go five years between inspections, and even then are often tipped off that inspectors are coming. Manuals are in English, but not all the workers read English. Drug tests of workers are illegal in some countries.
A News21 analysis of Federal Aviation Administration data showed that about 15,000 accidents or safety incidents in all aviation travel can be attributed at least in part to inferior maintenance or repairs since 1973, when the FAA started keeping such records. In these accidents at least 2,500 people died and 4,200 were injured.”
Most wanted list: transportation safety improvements
The NTSB keeps a most wanted list of transportation safety improvements, in which it makes recommendations for critical safety improvements for various transportation sectors. Recommendations are designed to improve public safety and save lives, but many have been on the list for years. In some cases, individual states may have requirements, but these recommendations are national in scope. While issues on the “most wanted list” are pending, individual employers might use the list as best practice guidance for safety programs to limit exposure both for workers compensation and other liability issues that might arise from commercial transportation accidents.
You can find more reports on transportation and public safety at News21, “a national initiative led by 12 of America’s leading research universities with the support of two major foundations” with a purpose of furthering in-depth and investigative reporting. In 2010, one of the main areas of focus has been Breakdown: Traveling Dangerously in America.

The Annals of Disability: Post Traumatic Spitting Syndrome

Tuesday, May 25th, 2010

The Insider scans the world of risk in a risky world. We try to zero in on hazards that might be overlooked in the rush of daily commerce. In that spirit we bring you the distasteful but necessary tale from the New York Times involving bus drivers in New York City, a number of whom have suffered prolonged disability due to the unsanitary habits of riders.
Unhappy riders may express their displeasure in any number of ways, including the unfortunate choice of spitting on the bus driver. I am sure we all sympathize with these uniformed public servants who are simply doing their jobs. You cannot please everyone all the time, especially in the Big Apple.
It’s what happens after these incidents that is really puzzling. One third of all the assaults that prompted a bus operator to take paid leave in 2009 involved spitting, 51 in all. The MTA defines these “spat upon” incidents as assaults. The 51 drivers who went on paid leave after a spitting incident took, on average, 64 days off work — the equivalent of three months with pay. One driver spent 191 days on paid leave.
Before we jump to conclusions like irate citizens running after a bus, let’s listen to John Samuelson, president of the transit union:

“Being spat upon — having a passenger spit in your face, spit in your mouth, spit in your eye — is a physically and psychologically traumatic experience. If transit workers are assaulted, they are going to take off whatever amount of time they are going to take off to recuperate.” [Emphasis added.]

Mr. Samuelson has given us one of the most compelling definitions of disability I have ever encountered: workers are going to “take off whatever amount of time they are going to take off to recuperate.” It’s not a matter of medically (or psychologically) necessary time away from work, but the amount of time the worker deems necessary. Who needs a doctor when the drivers are empowered to determine the extent of their own disabilities?
Tough Times, Not-So-Tough Drivers
The MTA is facing a budget shortfall of $400 million. It’s tempting to conclude that tightening up a bit on eligibility for “Post Traumatic Spitting Syndrome” (PTSS – you first read about it here!) might help reduce that deficit. Heck, it might even make the riding public a bit more sympathetic to bus operators.
Nancy Shevell, the chairwoman of the transit authority’s bus committee, questions whether three months’ off is a bit excessive.
“You have to wonder if you can go home and shower off, take a nap, take off the rest of the day and maybe the next day,” she said. “When it gets strung out for months, you start to wonder.”
As we peruse the annals disability – mostly real and painful, occasionally trumped up – we do indeed begin to wonder who is in control in New York, just who is driving – in this case, not driving – the bus.

Cavalcade of Risk and an assortment of workers’ comp news briefs

Wednesday, January 27th, 2010

It’s Cavalcade of Risk day – visit the bi-weekly roundup of posts about risk, graciously hosted this week at Wenchy’s Place – check out this week’s edition and wish the hostess a happy birthday while there.
In other workers’ comp-related news:
Medical costs and WC – Joe Paduda explains why you should expect work comp medical costs to be heading up over at Managed Care Matters. He points to one of the primary problems: “Misaligned incentives for work comp managed care programs, and payers’ increased reliance on managed care program revenue and profits.”
Moving violationsU.S. bans truckers, bus drivers from texting. The National Safety Council estimates that at least 1.6 million crashes are caused each year by drivers using cell phones and texting. The NSC has called for a total ban all cell phone use and texting while driving. Here’s a good site to bookmark since cell phone and texting laws have been changing frequently in response to safety reports: State cell phone and texting while driving laws. It’s maintained by the Governors Highway Safety Association.
More on marijuana – Should pot provided as a work comp medical benefit? Roberto Ceniceros talks about a California
marijuana ruling
at Comp Time. Meanwhile, the CA Supreme Court nixed limits on medical marijuana and the Los Angeles City Council voted to close hundreds of dispensaries that have sprung up.
Global risk – Before you open that branch office in Somalia, you may want to take a look at Emily Holbrook’s posting on Risk Monitor: the most hazardous countries for business.
P/C Forecast – What’s in store for the property-casualty industry in 2010? Ernst & Young offer a 2010 U.S. industry outlook. (PDF)
Comp Case Law Over at LexisNexis WC Law Blog, Larson’s Case Law Developments offers their picks for The Top 10 Workers’ Compensation Cases of 2009.
Union censusWorkplace Prof Blog reports on a Department of Labor report which shows that the union density rate was essentially unchanged in 2009 – 12.3% vs 12.4% in 2008. Among private sector employees, the rate dropped to 7.2% from the 2008 rate of 7.6%. Also of note from the report: “The data also show the median usual weekly earnings of full-time wage and salary union members were $908 per week, compared to $710 for workers not represented by unions. Union members earn 28 percent more than their non-union counterparts.”
Quickies

Instant Message, Instant Catastrophe

Monday, January 25th, 2010

Robert Sanchez operated Metrolink trains in the Los Angeles area. By all accounts, he was a personable fellow. You might say, nice to a fault. He occasionally invited young passengers to take control of the train. He stayed in touch with train enthusiasts and friends via texting. Cool!
On September 12, 2008, he was operating a train near the end of an 11 hour shift. He was also sending and receiving text messages – 57 in all while on duty that day. Sanchez missed a red light signal and plowed without braking into a freight train heading in the opposite direction on the same track. Twenty five people died (Sanchez included); 135 were injured, many critically. For dozens of the survivors, life will never be the same. (You can attach faces to the numbers here.)
The National Transportation Safety Board (NTSB) has issued its final report. While criticizing the long shifts and the lack of automatic crash controls, the board has placed the blame squarely on the shoulders of the late Mr. Sanchez. Distracted by his texting activity, he failed to notice yellow and red signals, which should have alerted him to trouble ahead. As one board member put it, “his head was not in the game.” That’s an odd but apt metaphor for a tragedy on this scale, with losses totalling about $12 million, not to mention the random destruction of human life.
Distractions
We live in a world where distraction is deeply embedded in our way of life. As the poet T.S. Eliot put it in his poem “Burnt Norton,” we are “distracted from distraction by distraction.” From moment to moment, one thing or another tempts us. Don’t like the music? Change the station. Wondering what a friend is up to? Fire off a text. No need to be bored when there are so many ways to engage our flighty minds. It’s deceptively easy to multi-task your way out of the doldrums. It worked for Sanchez – up to a very specific point in time.
Eliot’s poem ends with what might be an epitaph for the victims of this terrible incident, Sanchez included, who surely never intended any harm:
Ridiculous the sad waste time
stretching before and after.
Ridiculous and sad, indeed.

Risk Management and the Vectors of Life

Tuesday, December 29th, 2009

Umar Farouk Abdulmutallab was depressed and lonely, so he decided to blow up an airplane. He boarded a Northwest flight from Amsterdam to Detroit on Christmas day with explosives strapped to his underwear. (The Freudians will have a field day with that one.) As the plane prepared for landing, Umar, in seat 19A, began to detonate his deadly concoction.
One row back and several seats over, Jasper Schuringa sat in seat 20J. As soon as flames and smoke began to rise in front of him, Jasper lunged across the row and seized Umar around the neck. He disarmed the would-be terrorist and prevented the ignition of the explosives. He suffered some burns, but none as severe as Umar’s.
We will probably never know the pathetic thought process that led the spoiled and privileged Umar to seek an end not only to his own life, but those of 280 innocent people. But we can certainly acknowledge the instinctual courage that motivated Schuringa. Like U.S. Airways pilot Chesley Sullenberger, Schuringa demonstrated grace under pressure. In the weeks ahead, most of the attention will be on the Umars of the world: how to find them, how to prevent them from carrying out their wretched pseudo-political vendettas against life itself. It would be reassuring to think that our risk management tools might help us identify these folks before they can act, but I doubt it. Umar has succeeded in adding underwear to the long list of items to be scrutinized before boarding a plane. What’s next: explosives hidden in dental crowns?
Seen from a perspective of time, our lives are vectors: as we move in the world, our paths intersect randomly with others. There are mostly gifts in these encounters – but there are also dangers. We all try to manage risk – personal and professional – but there are risks that fall well beyond our control. It takes a lot of luck just to survive. As we welcome the New Year, let’s take a moment to appreciate all the good fortune that brought us to this moment. And let’s give thanks to the latent heroes among us – the Schuringas and the Sullenbergers – who are ready in a flash to do what needs to be done.

Racketeering and Comp: When the Denial of an Injury is an Injury

Wednesday, December 9th, 2009

Imagine you work as a commercial driver for a long-established trucking firm that self-insures for workers comp. You are injured on the job. You seek benefits under the comp statute. The TPA handling the claim refers you to a company doctor. The doctor determines that the injury is not work related. The adjuster for the TPA denies the claim. End of story?
Not quite. What if you shared your story with five other employees, all of whom filed comp claims, all of whom saw the same doctor (a family practitioner), with the same result: claim denied by the same adjuster at the TPA? A coincidence or a conspiracy?
Five employees of Cassens Transport in Michigan concluded that there was a conspiracy to deny their claims. They filed suit in federal court, alleging a violation of the Racketeer Influenced and Corrupt Organizations Act (“RICO”). A district court dismissed their claims, finding that their individual claims did not constitute a “pattern” of activity and that invocation of the RICO statute would violate the McCarren-Ferguson Act by interfering with state regulation of insurance.
The U.S. Court of Appeals for the 6th Circuit reviewed the case and overturned the district court’s ruling. Now the U.S. Supreme Court, by declining to get involved, has upheld the Appeals Court. The Appeals ruling is a fascinating document which explores the nature and definition of racketeering, the relationship of workers comp benefits to insurance and the roles of state and federal governments. It’s required reading for attorneys and highly recommended for all others.
Criminal Acts?
The district court has been ordered to reconsider the allegations. The five Cassens drivers allege that Cassens, their self-insured employer, Tina Litwiller, a claims adjuster for the TPA Crawford and Co., and Dr. Saul Margules conspired to deny their comp claims. (While you might expect Dr. Margules to be board certified in occupational medicine, he appears to be a family practitioner.) The Appeals Court does not address the substance of the allegations: it simply rules that denial of the workers comp claims might involve a violation of the RICO statute and thus is appropriate fodder for the federal courts.
Some folks are alarmed that the feds are getting involved in what is usually a state issue. That might be a problem, but let’s not lose sight of the delicious prospect before us. During the course of the new hearings, plaintiff attorneys will seek access to some fascinating communication records: between Cassen and Crawford, detailing the status of individual claims; Ms. Litwiller’s claim notes; and communications between Crawford and Dr. Margules, who had so much difficulty finding a connection between a given injury and work. As much as I enjoyed the Appeals Court’s discussion, I am really looking forward to the nitty-gritty details of the proceedings in the district court. (You don’t suppose that some of the written and electronic communications have disappeared, do you?)
At heart, this is a very serious matter. The five employees allege that they have been unlawfully denied the protection of Michigan’s workers comp law through a conspiracy of company, TPA and doctor. If the allegations are proven, if the accused violated the RICO statute, they will face the consequences of a criminal conspiracy. In the Insider’s burgeoning annals of fraud – employee, employer, attorney, doctor, agent, insurer – this case will surely offer one of the more compelling narratives.