Posts Tagged ‘Wyoming’

What’s odd about this picture?

Tuesday, August 13th, 2013

Delaine Davis has been sentenced to 4 to 6 years in Wyoming Women’s Center jail. Her crime was workers’ compensation fraud of $11,072. She knowingly collected workers comp benefits while being gainfully employed in another job. In addition to her jail term, she was ordered by Judge Marvin L. Tyler to pay $11,072 in restitution to the State of Wyoming.

Is it just us, or does that penalty seem a little harsh? Perhaps there are some extenuating circumstances that contributed to the sentence that weren’t revealed in news reports. Certainly, we would agree that fraud is bad and should be punished – we have no argument with that. Apparently, Ms. Davis willfully violated the law. She should indeed be required to pay restitution and suffer some punishment for her crime — but 4 to 6 years seems pretty steep to us — particularly in contrast to the “up to 6 month” jail penalty for a willful violation resulting in a worker fatality under OSHA’s general duty clause:

(e) Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both.

In looking further into the data, we turned up this SHRM article: Report Finds OSHA Resources Lacking, Penalties Weak, which notes that:

“The median penalty for a fatality investigation conducted in FY 2012 was $5,175 for federal OSHA, and the median current penalty for the state OSHA plans combined was $4,200, according to OSHA enforcement data.

Criminal enforcement under the OSH Act has been and remains exceedingly rare, the report said.

Only 84 cases have been prosecuted since 1970, with defendants serving a total of 89 months in prison. During this time there were more than 390,000 workplace fatalities, according to Labor Department data. In FY 2012 13 cases were referred for possible criminal prosecution.”

Fraud is serious business and we all pay the price. Wyoming has chosen to wield a pretty big stick in doling out punishment, noting that “Workers’ compensation is intended to help workers injured on the job, We won’t stand for people who defraud and abuse this important program.” OK. But when it comes to protecting workers and keeping them safe, the state takes less of a hard line and more of a courtesy approach to safety, generally favoring carrots over penalties. This hasn’t produced great results: While there have been some small improvements of late, Wyoming has a pretty ignominious record when it comes to worker fatalities. Except for the most recent year, Wyoming has consistently ranked as the worst or the next-to-the-worst state for worker fatalities over the past decade.

Health Wonk Review, OSHA, state reports, and the single best thing for your health

Friday, January 6th, 2012

Healthcare policy – Kick off the new year with a bit of health policy wonkery. Jared Rhoads hosts 2012’s first edition of Health Wonk Review at The Center for Objective Health Policy. We’ll be hosting the next issue here on this blog later in the month.
OSHA fines double for serious violationsOSHA Law Update has a good overview of statistics recently released by OSHA. While the number of inspections have dropped in 2011, fines for serious violations or workplace safety doubled. The average OSHA penalty per serious violation in 2011 increased to $2,132, more than doubling from 2010’s average of $1,053. OSHA head David Michaels points out that this is still too low, “We have to maximize the impact of our penalties because we’re trying to not just focus on the employer where we found the [violation], but the whole industry.” OSHA conducted 40,648 inspections, down from 40,993 in 2010. The drop was attributed to a change in inspection priorities, with a higher mix of health inspections and recordkeeping compliance, which take longer.
Wyoming – “Wyoming’s overall workplace death rate was more than three and a half times the national average in 2010 and has ranked worst in the nation five of the past 10 years.” A yearlong study and report to the Governor by epidemiologist Dr. Timothy Ryan points to a lack of workplace safety culture and finds that employers consistently fail to enforce safety rules. (Thanks to Joanne Wojcik for the pointer.
Hello, hard market – By year’s end, it looks as though insurers finally had something to toast. Joe Paduda posts that the soft workers comp market is over. He cites a MarketScout report, which indicated rates were up 3% in December, the highest increase among all P&C lines.
Claims adjuster workload norms – At Comp Time, Roberto Ceniceros asks if 12 to 18 minutes per claim file is adequate. He’s looking for feedback on “how much time should be devoted per file in order for adjusters to do a really great job.”
Michigan, Maryland – WCRI recently issued two new cost-per-claim reports on Maryland and Michigan. Both studies include observations about the impact of recessionary pressures on claim costs. The picture may change going forward in Michigan, where reform legislation was just signed, the state’s first overhaul in more than twenty years.
Brief takes

We close with this compelling video, which might provide some inspiration for your new year. It’s a great video to share with your work force. (Hat tip to the Renaissance Alliance Consumer Insurance Blog

To and a Meandering Fro

Tuesday, January 12th, 2010

Richard Selest worked for the state of Wyoming Department of Transportation. He was asked to attend a training session 100 miles away from his office. Given the nice June weather, Richard, his supervisor and a co-worker decided to ride their motorcycles. (This surely would not have been an option in January!) On the way back to the home office, they discussed taking a scenic route, but no final decision was made. When they arrived at the intersection for the scenic road, the supervisor, riding in front, turned off. Richard and the co-worker followed. In the course of the ride, Richard lost control of his motorcycle and suffered serious injuries. Compensable under comp?
Richard’s claim was initially denied on the theory that the scenic route – 50 miles longer – was a deviation from the road back to the office and thus not compensable. Richard countered that his supervisor approved the deviation and that he was not on any specific “personal errand.” He merely was going back to his office, albeit in a meandering fashion.
The case, like the scenic road, wended up to the Wyoming Supreme Court, where Richard once again lost. The court found that the choice of a scenic road was purely personal and a clear deviation from the “course and scope” of employment. Even though Richard had no specific goal in taking the longer road, and even though he was in fact heading back to the office, the deviation in route was substantial, thus taking him outside of comp’s protective umbrella.
One justice dissented, but I think the majority acted appropriately. Despite the fact that Richard was paid for the entire trip (which took one hour longer than the direct road) and despite the fact that he followed his supervisor’s lead, the deviation had nothing whatsoever to do with work. As all good claims adjusters know, this is a matter of reading a map: the presumptive route to the office is a (relatively) straight line. Richard and his co-workers were seduced by the curvy call of nature, for which poor Richard has had to pay a very steep price.

Dying to Find Fault in Wyoming

Monday, August 24th, 2009

Wyoming might be a good place to work, but it’s also a good place to die at work. The mortality rate for occupational injuries is three times the national average, with 15.6 fatalities per 100,000 workers. Many of these fatalities occur in the oil fields, where “roughnecks” make pretty good wages in exchange for working in relatively dangerous conditions. As DeeDee Correll writes in the Los Angeles Times, everyone shares the goal of improving safety on the far-flung job sites, but there is a continental divide in how to achieve that goal.
Most oil workers are employed by independent contractors, who provide the bodies for the intense work in the fields. The fields are owned by big corporations. On one side of the fence you find workers and their advocates, who want to be able to hold the big corporations liable for what happens on the job. They want to be able to sue the big corporations when they suffer catastrophic injuries or deaths on the job.
The counter argument says that workers comp – carried by the employers of these field workers – should be the exclusive remedy for work-related injuries.
At issue here is the question of accountability and control: under current Wyoming case law, injured workers have to prove that the operator maintained “pervasive” control over the site. This is a very high standard, because the daily operations at these sites are primarily under the control of the independent contractors. By lowering the standard of control, worker advocates would make it easier for workers to sue the oil companies for damages.
Denim Versus Suits
The battleground for this dispute is the Wyoming legislature. As is so often the case, there is considerable theatricality on display. Many of the roughnecks lobbying for a change in the law show the scars of their chosen occupation. They are dressed in denim and baseball caps. Their opposition, lawyers for the oil companies, wear the indispensable dark suits.
The “suits” counter the compelling visual evidence of the roughnecks with some dubious arguments, maintaining, for example, that any change in the law would expose home owners to liability for injuries to contractors working on their houses. That’s a red herring, as homeowners rarely exercise significant control over the work environment of their contractors.
There should be enough middle ground in this dispute to fashion a meaningful compromise. Wide-open litigation is rarely the best way to go. The legislature should set specific standards for safe operating procedures in the oil fields. Oil companies should be held accountable for meeting these standards. Only if they are demonstrably negligent in maintaining and documenting these standards should the door be opened to law suits. At the same time, the state should bolster the benefits available to workers who are killed or severely injured on the job.
The “exclusive remedy” provision of workers comp is a standard well worth preserving. It’s tempting to carve out exceptions, but each exception becomes a fault line in the fundamental compromise that is workers comp. We are nearing the 100th anniversary of comp in America (New York 1911). For the most part, it is a remarkably successful experiment in public policy. The law makers of Wyoming would do well to keep this success in mind: by all means tinker with the statute to make it more responsive to 21st century working conditions, but don’t mess with the premise. This is not the time to find fault with “no fault.”