Posts Tagged ‘Washington’

Risk carnival, election wrap-up, and tooting our own horn

Wednesday, November 3rd, 2010

This week’s Cavalcade or Risk is posted by Ironman at Political Calculations. This biweeky roundup of risk posts is a sampling or “carnival” or topic-related posts. Ironman grades the entries for topicality, quality and readability – check it out.
Election results – Washington’s Initiative 1082 to privatize workers’ comp was soundly defeated last night, as about 58% of the voters opted to keep the system that has operated since 1911 in place. Obviously, this is a disappointment to private insurers and independent agents that hoped to open the state.
In Louisiana, it looks like Amendment 9 passed, but news reports we found are still vague. This change would require that claims would have to be re-argued before a panel of at least five appeals court judges before an agency’s decision could be reversed or changed.
In Arizona, Oklahoma and Colorado, voters cast ballots on constitutional amendments that would bar healthcare reform’s mandate that individuals buy insurance. Opt-out measures were passed in Oklahoma and Arizona, but was defeated in Colorado. Missouri had rejected the mandate in August, but not by a a state constitutional amendment.
At Comp Time, Roberto Ceniceros took a pre-election look at what gubernatorial wins might mean in California and New York. He notes that Jerry Brown was very quiet on the issue of workers compensation in California, but in New York, Andrew Cuomo has employee misclassification on his radar screen. As the state’s Attorney General, he recently joined attorneys general from Montana and New Jersey in an intent to sue FedEx.
And as long as we are on politics, it seems like a good time to bring up today’s news that the Treasury expects to earn a profit on AIG investments. Overall, despite the controversy, the Troubled Asset Relief Program (TARP) bailout looks as though it is earning a healthy return.
CT Commissioner resigns – somewhat upstaged by yesterday’s election brouhaha was news that Connecticut’s Insurance Commissioner resigned abruptly. National Underwriter reports that Thomas Sullivan resigns amid pressure over healthcare rate hikes. He faced criticism after approving a 47% rate hike by Anthem BC/BS of CT.
Workers Comp Insider again named to top WC blogs
We were gratified and pleased to be named to 2010 roster of the LexisNexis Top 25 Workers Compensation and Workplace Issues:

“Consistently at the top of the heap when it comes to workers’ comp blogs, the Workers’ Comp Insider is a rare combination of breadth and depth. Now in its eighth year, the Insider covers comp issues, risk management, business insurance, and workplace health and safety from Anchorage to Miami. It provides in-depth analysis concerning workplace legislation, occupational medicine, and best practices from Maine to Hawaii. It should be in the “favorites” folder of every comp attorney’s web browser.”

We thank you, our readers, for your continued interest and support. We were happy to see many friends and colleagues on the list as well – we’re honored by the company in which we find ourselves. Be sure to check out some of the other fine blogs on the list. Also, if you haven’t discovered the gem that is the LexisNexis Workers’ Compensation Law Community, we urge you to check that out, too.

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Posted in News roundups | 2 Comments »

Washington State: Comp Monopoly at Risk with Initiative 1082

Wednesday, September 29th, 2010

In November the voters in the Evergreen state have the opportunity to end one of the few remaining monopolistic systems for workers compensation (the three others are North Dakota, Ohio and Wyoming). As you might expect, there is much fulminating and little rational discourse evident in the pre-election build up on Initiative 1082.
Opponents of privitization project visions of greedy insurers denying claims (Hank Greenberg with an ax?), while proponents lampoon the arrogance and incompetence of a bloated state bureaucracy. (If you want to see what passes for humor in the great northwest, check out this rather lame rap video in support of the initiative.)
It’s hardly surprising that opponents of the measure view insurers as a greedy, heartless enemy. On the other hand, it’s pretty clear that most monopolies tend to evolve (or is it devolve?) into behemoths slow to respond and slow to innovate. Both visions suffer from inaccuracy and distortion.
Who Pays?
In most states, employers bear the full cost of workers comp: employees pay nothing for the premiums and nothing for the treatments. In Washington, there are three funds supported by comp premiums: an indemnity fund; a medical fund; and a supplemental pension fund. Employees contribute through payroll deduction to the latter two funds. The current deduction is 0.1543 percent of earnings, with no caps. If I’ve done the math right – a big if, unfortunately! – that’s about $76 per year for the average worker. Not a lot of money, but the principle is interesting – employees have a little “skin” in the game. Total employee contribution of premiums does reach the substantial level of about 22 percent.
While you would expect small businesses to embrace competition, some oppose 1082 for the simple fact that it will eliminate the employee contribution to premiums and shift the entire burden onto employers. Costs might go up. On the other hand, competition might bring costs down.
Decision Makers
Currently, costs for workers comp in Washington are modest: they rank 38th for cost in the 2008 Oregon survey, with an average rate of $1.98 per $100 of payroll. If the costs were higher, the pressure for change would probably be much more intense. As it is, voters will go the polls as they often do, with a lot of inflammatory rhetoric (and perhaps an annoying rap song) ringing in their ears. Then they will fill out their ballots. The fate of Washington’s comp system is in their hands.

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Posted in Business, Insurance & Insurers, State News | 7 Comments »

ADA and Fitness for Duty Exams: No Fear

Tuesday, August 31st, 2010

Today we examine an interesting case where the ADA runs up against OSHA’s general duty clause, where the individual’s right to “reasonable accommodation” collides with the need to ensure the safety of the general public.
In 1999 Oscar Brownfield became a policemen in Yakima, Washington. By all accounts, he was a good cop. In 2000 he suffered a head injury in a non-work-related car accident. He returned to work about 6 months later. In 2005 the troubles began: he (wrongfully) accused a co-worker of malfeasance. He was short-tempered, storming out of a disciplinary hearing with a superior. He described moments of intense anxiety when he was not sure he could control himself. And he made alarming comments about how meaningless life had become.
Fearful of Brownfield’s mental state, his employer sent him for a Fitness for Duty Exam (FFDE). He was diagnosed with a mood disorder and disabled from work due to his “emotional volatility, poor judgment and irritibility.” The disability was considered permanent.
Then Brownfield had another auto accident. His treating physician, Dr. Gondo, released him for work: that is, he wrote that Brownfield could carry out the “physical requirements” of the job. When pressed on the issue of Brownfield’s mental state, Dr. Gondo did not back down, but he did not respond either. He simply remained silent. As a result, the Yakima police department sent Brownfield for a second FFDE, with the same result as the first. Brownfield was terminated from his job.
Claiming an ADA disability (he does appear eligible), Brownfield sued for a violation of the ADA, violation of his first amendment rights of free speech (his apparently groundless accusations against a fellow cop) and violation of the FMLA (which limits the ability of employers to require multiple FFDEs). Brownfield’s case was dismissed on summary judgment by the district court, a decision subsequently upheld by the 9th circuit court of appeals.
A Tool in the Toolbox
Employers often balk at requiring Fitness for Duty exams. They fear a violation of the employee’s rights. This case clearly indicates that those rights can and should be tempered by a clear-headed vision of business necessity. If the employee’s mental or physical condition undermines his ability to perform essential job functions safely, a fitness for duty exam is not only allowable, it is necessary. To be sure, the exam comes with a high standard: the need must be work related and it must derive from business necessity. But where these standards are met, employers must act. If the employer takes the path of least resistance and does nothing, they could easily be charged with negligent retention when and if something bad happens.
Management continuously walks a fine line between employee rights and the obligation to operate a safe workplace. Yakima took a chance in terminating Brownfield’s employment, but it appears that they did what had to be done and they did it legally. Brownfield was unable to perform his job safely. His mental state comprised a risk to himself and to the public he was oath-bound to protect. It is never easy confronting an unruly, agitated and volatile employee, but it must be done – and done in a timely manner.

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Posted in Best Practices, Compensability, Safety & Health | 2 Comments »

Disabled Carpenter Climbs a Mountain

Monday, November 9th, 2009

Christopher Robin Briejer used to be a carpenter. He suffered a back injury in 2000 and was disabled from work. Except that he apparently kept on working. In 2003 he hurt his back again while working without comp coverage. He claimed the new injury was a recurrence of the 2000 incident. The claim was re-opened and he began collecting benefits. Between January 2004 and April 2008, Briejer received 121 state checks totaling $258,995 for time-loss compensation, $75,295 in medical services and $31,651 in vocational retraining – for a total of nearly $366,000.
The state of Washington recently indicted Breijer for comp fraud, alleging that the 2003 injury was not a recurrence, but a new injury. Someone dropped a dime on him.
Breijer states: “I have a permanent back injury with permanent damage to my spine.”
For a man collecting disability payments, Breijer maintains a very active life style. He likes to “rock crawl” and last year he climbed Mount Ranier.
“It doesn’t take a back to climb a mountain, it takes legs,” he said. [Think about that for a moment.] “I’m an active injured person. Even though I’m injured, I take care of my body. My doctors are 100 percent in favor of me hiking.” Hmm. I wonder if his doctors are 100 percent in favor of him working…
A Famous Bear of LIttle Brain
Breijer appears to have been named after Christopher Robin, the boy who appears in the Winnie the Pooh books written by A.A. Milne. (I refer to the books, not to an abomination of the same name from the Disney folks.) It seems that Breijer took to heart one of the Pooh bear’s famous quotes: “A bear, however hard he tries, grows tubby without exercise.” No bear belly for Breijer!
I’m guessing that Breijer might resent being named after a character in a children’s book. Well, the original Christopher Robin resented it, too. Christopher Robin was based upon Milne’s own son, Christopher Robin Milne, who in later life became unhappy with the use of his name. “It seemed to me almost that my father had got where he was by climbing on my infant shoulders, that he had filched from me my good name and left me nothing but empty fame”. Children can be so harsh!
Well, as Pooh himself famously said: “People who don’t Think probably don’t have Brains; rather, they have grey fluff that’s blown into their heads by mistake.” And again: “If the person you are talking to doesn’t appear to be listening, be patient. It may simply be that he has a small piece of fluff in his ear.”
I wonder if the prodigiously active Christopher Robin Breijer might have just gotten a little confused, Pooh-bear style, between right and wrong, between being truly disabled and being able to work. Such confusion is rampant in these morally compromised times. It’s a bit like distinguishing one hand from another, which Pooh himself found to be quite difficult:

Pooh looked at his two paws. He knew that one of them was the right, and he knew that when you had decided which one of them was the right, then the other was the left, but he never could remember how to begin.

When it comes to confronting moral hazards, it’s really important to remember how to begin.

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Posted in Disability, fraud | 2 Comments »

When play becomes work, or the case of the traveling employee

Tuesday, February 26th, 2008

There are various circumstances in which an injury that occurs during a recreational activity might be compensable. One exception might be if the injury occurs on company premises or at a company-sponsored event, a likelihood that approaches near certainty if participation in the event was mandatory. Another common exception is in the case of traveling employees. When employees are engaged in business travel on behalf of their employer, compensable activities may encompass a variety of activities that would likely not be compensable for a “fixed place” employee. For the purpose of workers compensation, a traveling employee is generally considered to be working continuously during the business trip unless a special deviation from business can be determined. Daily life and personal comfort activities that would not be covered at home are generally considered work: eating, sleeping, and traveling, for example, as well as some recreational activities.
Roberto Ceniceros of Business Insurance has a brief write-up of a judgment by Washington’s Supreme Court that offers an excellent illustration of the traveling employee doctrine at work. Alfred Giovanelli was a skilled firebrick mason who regularly traveled the country to rebuild and fix furnaces for Saint-Gobain Corporation (formerly Ball-Foster Glass Container Company). During one assignment at one of the company’s plants in Seattle, he was injured on his day off. He was headed to a park with his supervisor to investigate a concert, but on crossing the street in front of his hotel, he was struck by a vehicle and grievously injured. He applied for and was granted workers compensation. His employer continued to appeal on the basis that the Giovanelli was engaged in a recreational activity that had no business purpose. The appeal wended its way through the various strata of the court until the matter reached the Supreme Court where compensability was upheld. In his article, Ceniceros notes:

The doctrine–also known as the “commercial traveler rule” or the “continuous coverage rule” — generally states that a traveling employee is considered to be in the course of employment during his or her entire trip, except for “a distinct departure on a personal errand,” court records show. The case document – Ball Foster Glass Container Company v. Alfred Giovanelli and the Department of Labor and Industries in the State of Washington – is worth a read. It’s pretty plain-spoken and it illustrates various principles that generally apply to workers compensation. It offers a brief history of how workers comp evolved, and the adoption of the British Compensation Act’s formula of an injury “arising out of and in the course of employment” – nine not-so-simple words that have spawned innumerable court challenges. The document discusses this phrase in this context and moves on to discussing the matter of whether Giovanelli fit the definition of a “traveling employee” (yes) and the meat of the case, whether Giovanelli had “left the course of employment” when he was injured. In its discussion, the court referenced a few cases when compensability for recreational activities was denied:

Although distinguishing between reasonable personal ministrations and purely
personal amusement ventures may be difficult, courts have had little difficulty denying compensation for unusual or unreasonable activities. See, e.g., E. Airlines v. Rigdon, 543 So. 2d 822 (Fla. Dist. Ct. App. 1989) (denying compensation for employee injured during skiing trip at resort over 50 miles from hotel); Buczynski, 934 P.2d 1169 (hot tub injury occurring in hotel 150 miles away from convention
center and days before convention not compensable).

The employer argued that Giovanelli’s activity was a deviation and that crossing a thoroughfare without the right of way was an “inherently dangerous” activity. The Court disagreed, citing the personal comfort doctrine, and finding that negotiating unfamiliar streets is one of the typical risks that a traveling employee faces. In the discussion of personal comfort, the Court stated:

The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a nontraveling employee because a traveling employee is in a significantly different position of risk than a nontraveling employee. The nontraveling employee may satisfy his personal needs without leaving the comfort of home. In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise.

In evaluating this particular activity, the Court found that Giovanelli’s crossing the street did not represent a significant deviation from the course of employment.
For further discussion on these matters, see Jim Pocius’ excellent discussion of Workers Compensation and Course of Employment. He looks at the issues of course of employment, fixed place versus traveling employees, and scope of employment. He also offers excellent advice to employers on how to minimize risk:

  • Make social events voluntary. An employer should not make attendance at a social event mandatory. The less control that an employer exerts over social events, the less chance there will be that an injury during a softball game, volleyball game, basketball game, etc., will be considered within the course of employment.
  • Enforce work rules. If the employer has a valid set of work rules that are enforced, such employee behavior as fighting, foul language, and wandering to restricted areas of the plant can all be considered activities which would remove the employee from the course of employment.
  • Keep traveling employees to a minimum. There are innumerable cases of traveling employees being hurt while in vehicles, hotels, and restaurants. In order to avoid this liability, traveling employees should be kept to a minimum if your business permits.
  • Do not send fixed place employees on special missions unless absolutely necessary. If your employees work at one location, the employer must try to keep casual missions by these employees to a minimum. Thus, sending an employee to obtain a form at a state office building or run other errands increases workers compensation exposure.
  • Investigate all claims. As always, good factual investigation on any questionable course of employment claims will pay dividends during litigation.

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Posted in Compensability | 1 Comment »

Heat stress rules go into effect in Washington, California

Thursday, June 28th, 2007

For the second year in a row, Washington is implementing an emergency heat-stress rule designed to protect outdoor workers. It took effect on June 5 and will run through October. The rule requires employers to provide outdoor workers with a quart of drinking water per hour, to educate employees about risk factors for heat-related illness, and to have some area to treat workers who exhibit heat-related symptoms, such as shade canopies or air conditioning.
The Department implemented the rule after the death of an agricultural worker from heat-related stress in 2005; in 2006, a construction worker died on the job while working in a trench, further solidifying the Department’s resolve about the need for such a measure.
Unsurprisingly, the measure is unpopular with several business groups, which view the rule as both needless and an intrusive layer of bureaucracy. An additional bone of contention is that business had no input into the measure. At the end of this season, the state’s Department of Labor & Industries plans to establish a permanent rule and to seek public input in the process.
California regulation was the pacesetter
Washington is not the only state with such a measure. In 2006, California became the first sate to adopt a heat stress regulation after a spike of 13 heat-related deaths in 2005. In a reminder to employers for the coming season, Cal/OSHA reviews the basic provisions:

Under the new heat illness regulation, employers are required to take four basic steps to prevent heat illness at all outdoor worksites: develop and implement written procedures on heat illness prevention; provide heat illness training to all employees; make readily available and encourage each employee to drink four 8-ounce cups of fresh water per hour; and provide immediate access to shade or any cool area out of the sun for recovery periods for at least five minutes at a time.

Coming to a state near you?
Could such regulations be the beginning of a trend that will move to other states? Last year, the Centers for Disease Control and Prevention issued a report which showed that heat-related deaths are increasing, although some think that the increase can be attributed to better tracking. The report is not specific to workplaces, but if the numbers of heat-related deaths continue on an upward trend, it is possible that we may see an increase in state efforts to protect at-risk populations, including workers
Wise employers who have outdoor workers will look to control risk and prevent heat-related illness, regardless of state mandates. Any time the temperature exceeds 90 degrees, workers should be protected. In addition to providing sufficient water and access to shade, employers should be on the alert for employees with high risk factors. Acclimation to the heat is very significant – a new worker or a worker returning from vacation is at greater risk than a worker who has been acclimated to the heat over a few weeks. Many cases of heat stress occur to workers on the first day of the job. Other risk factors may include pre-existing medical conditions – obesity, diabetes, and heart, lung and kidney disease. Workers who are on medications and workers who are nursing hangovers may be at risk because they are starting work already in a dehydrated mode. OSHA has a Quick Card on Heat Stress (also in Spanish), as well as a Fact Sheet about Working Outdoors in Warm Climates(PDF) that includes prevention tips for heat stress, along with other outdoor hazards.
Additional resources
California – Heat related illness prevention and information
Washington – Outdoor Heat-Related Illness (Heat Stress)
OSHA Technical Manual on Heat Stress
Heat Illness in the Workplace: How You Can Control the Risk
CDC Frequently Asked Questions About Extreme Heat
Heat stress: fluid and electrolyte balance can be fatal

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Posted in Safety & Health, State News | 1 Comment »

Washington passes “Safe Patient Handling” legislation

Thursday, March 23rd, 2006

Few think of health care as one of the nation’s most hazardous professions, but there you have it: nurses, nursing home attendants, and other health care workers are among the nation’s most frequently injured work population, suffering from a high incidence of musculoskeletal injuries. Patient care calls for frequent lifting and moving, and this wreaks havoc with the back and shoulders. It’s estimated that as many as 12 to 18% of all nurses stop practicing due to chronic back pain. The nursing shortage means that many health care workers have to do more with less, increasing the likelihood of injury; ironically, these injuries may be a primary culprit in exacerbating the nursing shortage.
Not to mention the hazards to the patient. When you are at your most vulnerable, do you really want a single nurse to be heaving you about? Bill Cosby used to have a stand-up routine about how you never wanted to hear a doctor say “oops.” Similarly, When you are taking your first steps after major surgery, you don’t really want the nurse who is helping you to say “ouch” – a helper who is writhing in pain may not be in your best interests.
Legislators in Washington – prompted by the Washington State Nurses Association, United Food and Commercial Workers Local 141 and Service Employees International Union 1199NW – just passed a Safe Patient Handling law that requires hospitals to provide mechanical lift equipment for the safe lifting and movement of patients. According to Occupational Hazards:

“On a timeline between Feb. 1, 2007, and Jan. 30, 2010, Washington hospitals must take measures including implementation of a safe patient handling policy and acquisition of their choice of either one readily available lift per acute-care unit on the same floor, one lift for every 10 acute-care inpatient beds or lift equipment for use by specially trained lift teams.”

In August, we reported on Texas legislation that required nursing homes and hospitals to implement safe patient handling and movement programs. Most importantly, both laws have provisions that protect health care workers from reprisals should they refuse to perform patient handling that they deem potentially harmful to themselves or their patients.

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Posted in Law, Safety & Health, State News | 2 Comments »