Archive for November, 2005

Supreme Court on “Donning, Doffing & Walking”

Tuesday, November 8th, 2005

In a ruling (New York Times, free registration required) surprising for its rare unanimity, the U.S. Supreme court just came down on the side of meatpacking workers. The decision in IBP Inc. v. Alvarez involved whether workers should be paid for the time between putting on personal protective equipment (“donning”) and walking to the actual site where the ferociously unpleasant work takes place. The employer argued that under the “portal-to-portal” concept, the workers were on their own until they got to the actual job site and punched the time clock; and on their own once again, as they walked bloodied (but, one hopes, not bowed) at the end of the shift back to the dressing room. The court — subliminally aware perhaps of their own donning and doffing of black robes — decided that the walk to and from the production line required payment of wages. Let’s hear it for the Supremes, who got this one right.
It doesn’t seem that a lot of money was at stake (how far is the production line from the dressing room?), but when you consider the number of meatpackers, perhaps the employers are indeed facing, as the industry argued, “vast new costs.”
Comp not an Issue
Regardless of how the court ruled in this situation, the meatpackers would be covered by workers comp in their walk from the dressing room to the production line and back. Many workers are “in the course and scope of employment” for workers comp purposes even when they are not being paid.
When I think of these hard working people heading to and from their singularly unpleasant tasks, covered each shift with the remnants of their bloody work, I don’t begrudge them getting paid for the walk in and the walk out. If these wages result in a few extra cents in the price of beef, pork and chicken, so be it. They’ve earned it.

Grand rounds: a smorgasbord of the medical blogs

Tuesday, November 8th, 2005

Want to sample some interesting new blogs and find out what the hot news and trends are in the medical arena? This week, Rita Schwab at MSSP Nexus is hosting Grand Rounds, a rotating weekly roundup of eclectic posts from medical bloggers. Even though none of us at Lynch Ryan are medical providers, Rita was kind enough to ask us to participate – thanks, Rita! Working in the occupational arena, we have a window seat on issues related to occupational medicine, prevention, and quality care — and as some of you may have noticed, we have no shortage of opinions — so we are happy for the opportunity to participate.
Many pioneer physician blogs were inspiration to us back in the “olden days” of blogging and provided great role models when we were getting started. Check out Grand Rounds to see why.

November: a bloody month in labor history

Monday, November 7th, 2005

If you’re a history buff, then this is a fitting month to root around in the Web’s labor archives since so many seminal events occurred in November. Plus, it just so happens that 2005 marks the 100 year anniversary of the Industrial Workers of the World, more commonly known as “the Wobblies.” My colleague Jon recently wrote a post about the curious juxtaposition of Starbucks vs. IWW, a seemingly anachronistic occurrence. In a similar vein, a recent article in The Toronto Star notes that The Wobblies are stirring and wonders if we need `one big union’ in the global village:
“At the turn of the last century, the very presence of radical giants like two-fisted Big Bill Haywood, social reformer Eugene Debs and silver-haired firebrand “Mother” Jones in one room was enough to make captains of industry gnaw their cigar ends with angst.
But to the latte-swilling, Wal-Mart-shopping, logo-sporting workers of today, the founding of the Industrial Workers of the World – a.k.a. the Wobblies – 100 years ago tomorrow, sounds, well, so awesomely over.
In an age of globalization, when the vast majority of the world’s underpaid, insecure and unemployed people live in conditions that wouldn’t have surprised Charles Dickens, the idea of an expansive cross-border labour movement to unite the workers of the world seems to have gone the way of the doily and the moustache cup.
The Wobblies were free-spirited, often transient, and dedicated to a large social vision,” says Craig Heron, professor of history at York University. “They carried around the union songbook in their back pockets.
Those days of zealous singsongs, all-night debates and pamphlets on the meaning of life as a labourer are light years away from today’s shrinking union population, beleaguered by globalization and bruised by layoffs, cutbacks and wage freezes. And for many of the world’s non-union workers, collective action is as distant, or irrelevant, as water on Mars.”

Talk of singsongs and the free-spiritedness of members might give a false impression of the times in which the Wobblies first made their debut. These events of by-gone Novembers offer a flavor of the era that gave rise to the labor movement:
November 5, 1916 – The Everett Massacre
The I.W.W. was particularly active in the Pacific Northwest in the early years of the last century. They planned a street-speaking event in Everett to show solidarity with striking shingle workers. About 300 members boarded two steamers, but as the boats approached the dock, shots rang out. “On the dock, deputies Jefferson Beard and Charles Curtis lay dying, and 20 others, including the sheriff, were wounded. On the Verona’s deck, Wobblies Hugo Gerlot, Abraham Rabinowitz, Gus Johnson and John Looney were dead and Felix Baran was dying. While the official I.W.W. toll was listed as 5 dead and 27 wounded, as many as 12 Wobblies probably lost their lives, their bodies surreptitiously recovered from the bay at a later date.” You can read more and view primary sources of the event at the Everett Public Library’s Digital Collection.
November 11, 1919 – Centralia Masacre
“On November 11, 1919, a gunbattle erupts during an Armistice Day parade of American Legionnaires in Centralia, leaving four dead and resulting in the lynching of one member of the Industrial Workers of the World (IWW). World War I veterans and other Centralia citizens march on the local headquarters of the IWW, whose members anticipate an attack. Shots are fired, killing veterans Arthur McElfresh, Ben Casagranda, and Warren Grimm and wounding veterans John Watt, Bernard Eubanks, and Eugene Pfister. That night a mob removes imprisoned IWW member Wesley Everest, who was also a veteran, from the town jail and lynches him from the bridge over the Chehalis River.” The University of Washington Libraries offers a collection of primary sources.
November 19, 1915 – Joe Hill shot by firing squad
A labor activist and I.W.W. member, Joe Hill was a famous songwriter whose protest songs were highly popular with workers and a staple on picket lines. While he was in Salt Lake City to organize a strike, a former policeman was shot and killed. Joe was charged with the murder and shot by a firing squad. Protesting his innocence, he had this to say before his death:
“The main and only fact worth considering, however, is this: I never killed Morrison and do not know a thing about it. He was, as the records plainly show, killed by some enemy for the sake of revenge, and I have not been in the city long enough to make an enemy. Shortly before my arrest I came down from Park City; where I was working in the mines. Owing to the prominence of Mr. Morrison, there had to be a “goat” and the undersigned being, as they thought, a friendless tramp, a Swede, and worst of all, an I.W.W, had no right to live anyway, and was therefore duly selected to be “the goat”. I have always worked hard for a living and paid for everything I got, and in my spare time I spend by painting pictures, writing songs and composing music. Now, if the people of the state of Utah want to shoot me without giving me half a chance to state my side of the case, bring on your firing squads – I am ready for you. I have lived like an artist and I shall die like an artist.”
For more on Joe Hill, see the PBS biography, which includes links to song clips and lyrics.

Compensable Fighting in Virginia

Friday, November 4th, 2005

When an employee starts a fight, any potential workers comp claims based upon injuries to the instigator are denied. The denial stems from the employee’s “wilful intent.” If you knowingly and wilfully injure yourself (by starting a fight), the comp system rejects the claim. The person who is attacked, however, may collect comp for injuries, unless the fight has absolutely nothing to do with work.
But what if the employee is a minor league hockey player? And what if his coach tells him to start the fight? Ty Jones, a formidable 218 pound winger for the Norfolk Admirals, hurt his shoulder during a fight on the ice in 2002. He said his coach ordered him to fight. After he fought, he was unable to lift his arm.
Under the Virginia system, Jones was awarded worker’s comp in 2004, for the seven months he was undergoing therapy for the injury. The Admirals appealed, claiming the fighting was wilful misconduct.
The state appeals court recently ruled in Jones’ favor, saying that the injury rose from his employment. The court went on to note that fighting is very much a part hockey, as opposed to the normal working world, where fighting is never a regular part of the work day. I wonder if the Admirals were able to present evidence that they coach their players never to fight. That fighting is against their policy and anyone violating the policy is subject to discipline, up to and including termination. Yeah, right, just what I would expect from a hockey team!
While many states exclude professional athletes from the workers comp system, others leave the door open. Ty Jones was able to access the benefits available to other “employees” in Virginia. By contrast, those who take on careers in the boxing ring, with all the risks that sport entails, have no such protections. We have before us the sad image of the once gregarious Muhammed Ali, who suffers from a debilitating Parkinson’s disease that is very likely related to his long career in the ring. As far as I know, there is no comp rate for boxers — and if there were, I imagine the actuaries would come up with a high multiple of the payroll, something like $400 per $100 of payroll. That’s one form of insurance that few would sell and few would buy.

News roundup: Guns, depression, CA doctors, translation services, and more

Thursday, November 3rd, 2005

Kudos – Congratulations to friend and colleague Joe Paduda on the one-year anniversary of his excellent blog, Managed Care Matters. If this blog isn�t on your regular reading list yet, it should be!
Guns at Work – Thanks to Michael Fitzgibbon for pointing us to a post at Workplace Prof Blog about guns at work: “Oklahoma and Kentucky have enacted laws prohibiting employers from excluding guns from the workplace. A bill has been introduced in Utah to do the same thing; a bill introduced in Florida would allow employees to keep guns in their cars even when the cars are at the workplace.”
Also, see our prior post on the topic – it yielded an interesting discussion.
Wal-Mart Watch – The hits just keep on coming. Jordan Barab of Confined Space reports about a sweetheart deal between the Labor Department and Wal-Mart. Some officials apparently agreed to give the company 15 days advance notice before conducting any inspections for child labor safety violations.
Unhappy docs in California – The Sacramento Bee reports: “California Medical Association vow to cut back or stop treating injured workers in the wake of sweeping changes to the state workers’ compensation system. While slashing costs, the historic overhaul has spawned an environment “that is hostile to physicians and often harmful to the patients they serve,” according to a report released Monday by the medical association.”
Aetna to pay for depression – Identifying depression as a cause of absence and a factor that exacerbates major illnesses, Aetna has agreed to cover a program to manage depression. (New York Times, free registration)
Healthcare translation – Bookmark this handy site! Rita Schwab of MSSPNexus points us to a terrific resource – Health Information Translations. There are nearly 40 million people in the U.S. who are not proficient in English, and some of them probably work for you. Three Ohio healthcare organizations provide fact sheets and health care information in 11 languages – and the service is free.
BP deaths were preventable – 15 deaths and 170 injuries could have been prevented if the refinery had installed a flare system years before, as OSHA had recommended, and heeded past warnings. Read more at Confined Space and rawblogXport.
New HR blog – Check out Ashraf Al Shafaki’s AnswerOnce weblog that provides answers to many HR questions, such as “How can I manage employee retention?” and “How do I design a questionnaire?” It looks promising.
Business jargon – Look up more than 2,500 common business terms in the Dictionary of Small Business. Thanks to Dane Carlson of the always excellent Business Opportunities Weblog.
Insurance web service lacking – In the fifth study of its kind, 47 health care, life and health, and property & casualty insurer Web sites fared poorly in a study measuring the “Customer Respect Index.” From the report:
The insurance industry remains the only industry sector evaluated with no Web site reaching the standard of excellent, noted the report. The insurance industry showed little or no improvement over the last study and in many key areas fell behind other industry sectors. For example, the industry failed to response to 26% of e-mail inquiries compared to an “ignore rate” of 16% for financial services. Read more about the report in Insurance Networking News.
New CEO at Ohio BWC – William Mabe, a retired Nationwide Insurance executive, has taken the helm at the beleaguered Ohio Bureau of Workers Compensation. We wish him luck – things are still in considerable disarray. Follow the money in the Toledo Blade’s excellent ongoing coverage of Coingate.
A little levity – Maybe we are a tad too serious here at the Workers Comp Insider. Heck, even actuaries let their hair down now and again. So we post the following tidbits for your amusement:
Interview with an honest boss (flash and sound alert) – (via Regina Miller.) Also, if you are looking for an educational craft project to while away the late fall evenings, you might consider knitting a digestive system. Fetching! (via Kevin, MD.)

Pre-Employment Strength Test: When the Test Fails the Test

Wednesday, November 2nd, 2005

A federal judge has ordered the Dial Corporation to pay over $3 million to resolve a sex discrimination suit brought by the Equal Employment Opportunity Commission (EEOC) against The Dial Corporation’s Armour Star Meat Packing plant in Fort Madison, Iowa. Fifty two women who were rejected for entry-level production jobs because they had failed a strength test will be offered jobs at Dial and will share approximately $3,390,000. The Bureau of National Affairs (BNA) has a summary here.
The case began with a single rejected job applicant. Paula Liles had performed “heavy physical work” in the past, met the other job requirements and was given a conditional job offer pending her passing of a physical test. The test required the repeated lifting of 35 pounds to a height of 65 inches (Ms. Liles herself was only 62″ tall, so she was lifting the racks 3″ above her head). Despite her lack of height, she past the test, but she was still not hired because at times during the test she had to stand on her tiptoes. The company was concerned that this stretching might increase her risk of injury. (They are probably right — our posts on rotator cuff injuries highlight the risks of working “above the shoulder.”)
But failing the test does not correlate with Ms. Liles and other female applicants being unable to perform the work. That’s where Armour Star went astray of the law.
A Test of Strength
The judge determined that the test discriminated against women, since fewer than 40% of female applicants passed the test, while nearly all male applicants passed. Here are three critical facts that hurt the company’s case: first, prior to the testing, women had been successfully performing the jobs in the sausage making department. Second, injury rates for male and female employees doing this work were virtually identical. And finally, the test was more difficult than the job itself.
No one questions Dial’s goal of reducing workplace injuries. However, testing does not occur in a vacuum. Prior to implementing the test, 46 percent of the individuals hired for the job had been women. The new test resulted in most of the women losing their jobs.
Given the disparate impact of the test on female employees, the court determined that the test violated Title VII of the 1964 Civil Rights Act. So now the company must pay.
Dialing Back
Where did an apparently well-intentioned employer go wrong? After all, implementing pre-employment testing is considered a “best practice” in reducing workplace injuries. Unfortunately, Dial’s program appeared to be missing several critical elements:
– a feedback loop, where test results were analyzed to ensure that the impact was fair and equitable. The high failure rate of women should have raised flags.
– a re-engineering loop, where the work itself is examined to ensure that it is organized as efficiently and safely as possible. To my mind, the 65″ lifting on a repetitive basis is an ergonomic problem that might well be solved through re-engineering.
– Finally, a common sense loop. Because many women had been performing the work safely in the past, their high failure rate should have brought the test itself into question.
This is a case where apparently well-intentioned management became too enamored of their new hiring process. They were convinced that the strength test would lower the risk of injury to workers. On a superficial level, you could certainly make this case. But the test results, with the high failure rate of women, should have brought the entire process into question. It didn’t and the company has now paid the price. Let that be a fair warning to any other employers contemplating pre-placement testing to reduce the risk of injuries.