Archive for April, 2006

Hawaii Comp Needs Tweaking. We’re Ready to Help!

Monday, April 17th, 2006

The Insurance Journal has published a summary of benchmarking research on the state of Hawaii from the Workers Compensation Research Institute (WCRI). The Cambridge MA think tank found many things to like in the Hawaii system, and a few areas of concern. We’d like to link you to the full report, but WCRI reports are generally not available to the non-paying public. Too bad, because it’s always interesting material.
A high proportion of claims in Hawaii involve lost time. Among the 19 states with a three-day waiting period, Hawaii had the highest proportion of incurred indemnity claims per 100,000 workers — 46 percent compared to the 19-state median of 29 percent (policy year 2000, the most recent data available). I wonder if this high rate is related to another finding of the study: The time to first payment in Hawaii was noticeably faster than 39 other jurisdictions. When you combine the “quick trigger” of a three day waiting period with rapid initial payment, you quickly cross into that murky zone where people are being paid not to work. It’s the right thing to do, but it may also create “moral hazards” for people who really hate their jobs. And if you prefer fishing to work, what better state could you live in?
Safety Net
Most American workers must either prove that their conditions are work related or they will collect no benefits at all. Millions lack basic health insurance, and millions more lack disability insurance. It’s workers comp or nothing. Hawaii has come up with its own state-mandated “twenty four hour coverage” program. This involves two related programs: non-occupational temporary disability insurance (TDI) and prepaid health care (PHC) insurance programs. While the compensability of a claim is being determined, a worker can file for non-occupational TDI and is entitled to 58 percent of her/his average weekly wage for up to 26 weeks. Under the PHC program, employers must provide health care benefits to eligible employees. In combination, these two programs help mitigate the impact on workers of delays in receiving workers’ compensation benefits while compensability is in dispute. Hawaii is way ahead of most states in this area.
Hawaii has by no means perfected their workers comp program There are problems on both sides: Business representatives are critical of the high cost of premiums, fraud, mental stress claims and hearing delays. On the other hand, worker representatives expressed concern about rule changes promulgated by the Department of Labor and Industrial Relations to adopt evidence-based treatment guidelines. By focusing on work-related causation, some claims will be forced out of the system. (There may still be coverage, however, under the above mentioned TDI and PHC.)
Here are some of WCRI’s other findings:
*Two features combine to produce a “user-friendly” hearing process in Hawaii. First, the process is issue specific and requires no special preparation other than the exchange of reports. Second, hearings are informal, held by hearing officers, who are usually not attorneys. In roughly one-half of the hearings, a claims adjuster represents the insurer or self-insurer; in roughly 45 percent of initial hearings, the worker chooses to be unrepresented or is assisted by a union representative. This results in less work for the attorneys, but less friction usually translates into lower costs. (Our attorney readers, naturally enough, will question whether the worker is adequately represented in this process.)
*The dispute resolution process is relatively fast. In 2004, the state-wide average interval from the request for a hearing to a hearing and decision was 162 days (5.3 months). This interval was shorter than in seven of nine other states WCRI has studied in the past ten years for which comparable data were available.
Paradise Found?
Hawaii used to be ranked among the lower cost states. But an alert reader (see Mike’s comment below) points to more recent rankings, which show Hawaii moving up into the more expensive tier. The quick-trigger compensability and the generous benefits may be catching up with them. This evolving situation reminds us that comp is rarely static: what worked yesterday may not work tomorrow. Comp involves a delicate balancing act that requires constant fine tuning. If Hawaii is serious about bringing a “continuous improvement” discipline to their comp problem, if they want to turn the tide on rising costs, the Insider is willing to help. Our bags are packed and we’re ready to leave on short notice. We have to admit that the prospect of consulting in Hawaii is just a bit more inviting than some of the more remote locations we’ve visited over the past 20 years. Comp issues may be universal, but some problem settings are more compelling than others…

“My Supervisor’s Dead! Praise the Lord!”

Thursday, April 13th, 2006

Many employees wish that their bosses would drop dead, but when it actually happens, is it OK to celebrate in the workplace? If you ascribe the death to an act of God, is your speech protected under your freedom to practice religion?
We read in Suits in the Workplace about just such a case. When the supervisor of a Florida hospital worker suffered a stroke during a routine hernia operation and subsequently died, the employee began telling her coworkers that the stroke was a sign of God’s “wrath” and an indication of Divine judgment. The employee told coworkers that God’s vengeance was served and “victory is mine.” These statements, needless to say, caused a major disruption. Some employees were so upset, they were unable to perform their jobs. The employee was subsequently fired for her conduct. So, naturally, she sued the hospital for religious discrimination under Title VII.
The (Less-Than-Divine) Judgment
The district court granted summary judgment for the employer, finding that there was no pretext in the employer’s stated basis for termination, namely that the plaintiff was fired for openly celebrating the death of a coworker whom she despised. The fact that there was a religious element to the plaintiff’s celebrations did not protect them or her. The court specifically noted it was not the religious component of plaintiff’s comments that prompted the termination, but rather the inappropriate celebration of the supervisor’s demise. The article did not indicate whether the plaintiff called down thunderbolts on the judge’s head.
Accommodating Religious Belief
Setting aside the above employee’s belief in a deity who functions like Marlon Brando in The Godfather, employers do have to make some accommodations for religious beliefs. Attorney Allan W. Brown from Eckert Seamans Cherin & Mellott provides the following summary:
: Meet (more than once) with the employee to seek a resolution (and take notes!)
: Accommodate the employee’s observance of religious holidays, whenever possible
: Attempt to find a volunteer to swap shifts with an employee
: Attempt to transfer the employee to another job in the company, if necessary.
Spirituality and Work
Back in 1999, Business Week published an interesting article by Michelle Conlin on spiritual revivals based in the workplace. It’s still a timely summary of the way spirituality in its many forms can impact the workplace. Conlin points out that people are working more and more hours, so the workplace becomes host to activities that used to take place somewhere else.
Most companies and executives are careful to stick to a cross-denominational, hybrid message that’s often referred to as secular spirituality. It focuses on the pluralistic, moral messages common to all the great religions, such as plugging into something larger than yourself, respecting the interconnectedness of all actions and things, and practicing the Golden Rule. But it also puts a premium on free expression and eschews cramming beliefs down other people’s throats.
Religious belief can be a tricky area for management. It’s one thing to tolerate different beliefs. It’s quite another when those beliefs infringe on other employees and disrupt the flow of work. Even if you believe your deity to be a vengeful personal protector, it’s best to keep this comforting thought to yourself.

News Roundup: Immigration, illnesses, frequency, and more

Wednesday, April 12th, 2006

Immigration – A column by Dana Parsons in the L.A. Times (free registration required) discusses illegal workers and the cost of doing business in California. He interviews a roofing contractor on reasons why he hires people off the books and – no surprise – the cost of workers comp is one of the primary reasons cited. Parsons follows up with:

“I ran the owner’s comments past labor union executive Richard Slawson. In so many words, he says the laments are a crock.

Rather than being victimized by the system, Slawson says, the owner is a felon for violating workers’ comp laws and represents one of the major contributors to the illegal immigration problem — namely, employers who depress wages by hiring illegal workers and not contributing fairly to the system.

The workers’ comp complaints are nothing more than rationalizations for seeking unfair competitive advantages, says Slawson, executive secretary of the Los Angeles and Orange Counties Building and Construction Trades Council.”

Immigration is, of course, a hot topic on many of the work-related blogs these days. Workplace Prof Blog discusses Immigration rallies and absenteeism and Jottings By an Employer’s Lawyer has a post on A Summary of the Problem for Business. We recommend Peter Rousmaniere’s blog Working Immigrants for facts, research, and news on the topic.
Disease MongeringDB’s Medical Rants points to an article that discusses disease mongering – whether the pharmaceutical companies are “inventing diseases” by exacerbating demand when there is none through direct to consumer advertising. I don’t know about you, but I’ve felt a lot less healthy since all these ads have been on TV.
Flu and compensability – Joe Paduda poses the question as to whether the flu would be compensable if it were contracted at work – specifically during business travel. He’s had a few replies, one from my colleague Jon Coppelman. Interesting discussion, weigh in with your thoughts.
Frequency underestimated by BLS? – Jordan Barab points us to a study led by Michigan State University, East Lansing Professor Kenneth D. Rosenman and team in an article in the April Journal of Occupational and Environmental Medicine finding that workplace injuries and illnesses may be significantly undercounted – by as much as two-thirds:

“Based on the results of our analysis we estimate that the number of work-related injuries and illnesses in Michigan is three times greater than the official estimate derived from the BLS annual survey,” Dr. Rosenman and colleagues report. Whereas BLS statistics suggest that work-related injuries affect 1 in 15 Michigan workers per year, the new results suggest that the true rate is closer to 1 in 5.”

24/7 Work Weeks – Michael Fitzgibbon at Thoughts from a Management Lawyer discusses the future of work and the idea that the 24/7 work week is becoming more commonplace, at least in certain types of jobs. That raises interesting questions in my mind about compensability issues and the course and scope of employment.
Worker Memorial Day – Just a reminder that this is coming up on April 28. RawblogXport offers some free posters for the occasion. The AFL-CIO site also has a page dedicated to resources.
Blogs – One of my new blog rediscoveries through Health Wonk Review is Over My Med Body!, a blog by Graham Walker, a Stanford medical student. It’s not related to occupational medicine, but he does treat a variety of health policy and general health care issues. Plus, it’s just an interesting read. Apparently U.S.News & World report thinks so too since his blog waas highlighted in a recent issue. Walker has also has developed a handy free service for consumers called Medslist. he suggests, “Sit down with your pill bottles for 5 minutes, enter in all your medications, and presto-change-o, you can download a PDF of it as well! (Small enough to cut out and carry in your wallet in case of emergencies or doctors’ visits.)”

The long tail of WTC toxic exposures

Tuesday, April 11th, 2006

Health experts predict that the health implications for the workers involved in the World Trade Center cleanup will take more than 20 years to be fully evident. A recent article in the PhillyBurbs discusses the frustrations that sick workers and health authorities alike are having in trying to come to grips with the health ramifications of post 9-11 cleanups. The World Trade Center Health Registry is faced with the daunting task of trying to track information on some 71,437 people who worked at ground zero, but even the matter of keeping a running tally of deaths is proving difficult. And although the health tracking is an important effort, many wish that there were less emphasis on the future and more on addressing the serious health issues that are emerging every day. In many cases, the workers have no financial or medical protection:

“Through its worker compensation program, the U.S. government has taken a dim view of any injury claim not directly from the day of the attacks.

Allen, 46, was one of the 485 federal employees to file for workers compensation claiming injuries from the aftermath at ground zero. Virtually all of those claims, some 478, were either rejected by the government or abandoned. Of the claims stemming from the day of the attacks, the government approved nearly all 987 of those.

New York state received 8,491 injury and exposure claims due to the events of Sept. 11 or the cleanup effort. About 680 – less than 10 percent – remain unresolved, but New York state insists it still has no idea how many of its resolved claims were granted or rejected.”

Terrible stories are surfacing about WTC workers who are suffering severe and incapacitating disabilities – some are dying in poverty with inadequate medical care, and these stories will become more common as time goes on. At the time of the event, praise for the heroics of these workers was profuse – we need to find a way to care for these workers so those words don’t ring hollow.
If the experience of the workers in the nation’s nuclear defense industry are any measure, help may not be quick in coming. While it looks like these workers eventually found some relief, the next generation, toxic site cleanup workers, are exposed to serious health risks and the first workers comp claims are being filed.
Toxic exposure and toxic torts
Toxic exposures pose a unique challenge for the workers compensation system. Workers who contract occupational illnesses have a much harder time of making their case for compensation than a worker who suffers an occupational injury from a single event. It may be years before an illness surfaces, and even then, it is difficult to prove that the exposure was solely related to work and not to exposure that may have occurred in ordinary life. In some cases, such as radiation exposures or asbestosis, the dangers are so clearly linked to the exposure that the case is clear. But with the WTC, it’s unclear if any accurate analyses of the toxic residues have been conducted. Certainly, the WTC environmental dangers were at best underestimated and at worst falsified by the EPA in the immediate wake of the events.
When workers compensation does not provide remedy, toxic torts often are the result, such as in the popcorn lung case. As the number of ill and dying WTC workers who have no workers comp coverage expands, we will have to see if the courts will be the place where workers turn for relief.

Boston scaffolding deaths: the blame game

Monday, April 10th, 2006

Mourners gathered at funeral services on Saturday for the two Boston workers who were killed in last week’s scaffolding collapse. Meanwhile, the blame game is in full swing. The city of Boston is reviewing an analysis of the accident submitted by Macomber Builders, the company with overall project responsibility. The union representing one of the workers who was killed is conducting a separate investigation, and the city has appointed top engineering firm Simpson Gumpertz & Heger of Waltham to determine what caused 10 tons of steel to fall on Boylston Street, killing three. The scaffold manufacturer has already weighed in noting that a crane should have been attached to the scaffold while it was being dismantled. The news media has also been digging into the safety records for both companies. As usual, Jordan Barab offers some perspective on the issue. In one post, he talks about how OSHA has responsibility for inspections but is woefully understaffed, and in a follow-on post, he notes that the state is on a voluntary inspection program.
On first blush, it would appear that workers compensation would come into play for any spouses and dependent children of the two deceased workers – the bar for piercing the exclusive remedy provision is very high, and would generally require willful intent to cause injury on the part of the employer. It’s no surprise that the equipment maker was quick to offer an analysis – one of the first places that insurers would look is for any equipment failure so that insurance claims could be subrogated. The deceased passer-by is not beholden by workers comp laws so there would be no restriction on survivors filing suit. Confined Space has something to say about these economics, too.
While all the insurance and legal matters are being disputed, more workers are at risk. Last year, we wrote about the fact that, on average, three construction workers die on the job every day and, as this analysis of N.Y. construction accidents indicates, scaffolding and fall prevention are some of the most frequent sources of violations. Maybe it’s about time we rethought the issue of inspections.

The day of the wonks

Thursday, April 6th, 2006

For those of you who have been waiting with bated breath to get your next heaping helping of health wonkishness, David Williams of Health Business Blog does a fine job of hosting the fourth and latest edition of Health Wonk Review. Some good reading!

Safety Disappears in a Hurry

Wednesday, April 5th, 2006

Dressed in surgical scrubs, Dr. Michael Tsan Ty was driving through downtown Boston on his way to Brigham & Women’s Hospital. He was in the midst of his usual 80-hour workweek as a neurology resident. Perhaps he was thinking about his post-doctoral work at MIT, where he studied the way brain cells recover after they are damaged by disease or injury. Or he might have been thinking about his small theatre group, which he somehow found time for during his hectic week. We will never know, because he happened to be in the wrong place at the wrong time: a scaffolding fell off of a building and crushed his Honda. In addition to killing Dr. Tsan, two construction workers died in the accident.
A series of articles in the Boston Globe describe how the scaffold came down during the dismantling process. It might have been human error. It might have been mechanical failure. Investigators are focusing on the apparent disconnection of a metal tie that had secured the 3-ton platform to the building. While there is much that is not known at this point, we do know this: Bostonian Masonry, a subcontractor to the general contractor Macomber Builders, was under tremendous time pressure to finish the job.
According to one employee of the masonry company, Workers had been laboring two shifts a day, seven days a week to try to get the building ready for the next school year. This push to complete the job has left many of the workers exhausted.
”The pressure is unbelievable,” said the worker.
Robert Beane, 41, the supervisor killed in the accident, worked so hard at his construction job that ”it seemed like it beat the snot out of him,” said Edward Page, who once was Beane’s roommate. Beane had plenty of construction experience and had completed a number of OSHA training programs. His co-worker, Romildo Silva, a young Brazilian with a family, dreamed of opening a hair salon. He, too, died in the accident.
Time Pressures
Where did the pressure come from? We need look no further than the public statement of the customer, Emerson College. Officials said that from the outset, the project, renovating an office building into dormitories, had been scheduled to open this fall.
”It’s going to open September 2006, and that was stated at the outset of construction,” said Emerson spokesman David Rosen. ”We expect it to be finished on time if work resumes within a week.” In other words, inspectors have a week to complete their work and draw their conclusions. A week to bury the dead and move on. Then it’s back to business as usual.
We are in no position to judge the pace of the work or the working conditions. Both Macomber and Bostonian Masonry have been cited for OSHA violations in the past, but that does not necessarily mean there were problems at this particular jobsite. At this point I would guess that human error caused the accident. But how can you factor in the deeply-rooted fatigue that appears to permeate the Emerson jobsite?
Fingers pointing everywhere, but no one is to blame. Let’s extract just one simple lesson from this incident: haste trumps safety, every time. No safety program can adequately adjust for an unreasonable pace of work. Whether you’re driving a car or working on a scaffold, when you’re in hurry, you and the lives around you are always at risk.

News roundup: kudos, unions, sheepherders, and more

Tuesday, April 4th, 2006

Congratulations – to Jordan Barab of Confined Space. He recently celebrated his 3-year blogiversary, and now this week, his blog has been recognized with a Koufax Award for Best Single Issue Blog. Well deserved recognition it is – Jordan is a tireless voice for worker safety, shedding light on topics that would otherwise be relegated to coverage in obscure journals and the back pages of newspapers, if at all. He’s knowledgeable, passionate, and indefatigable. We join the chorus in extending our appreciation for the work that he does. Kudos also to Tammy Miser who helps Jordan compile The Weekly Toll
Immigrant workers – Peter Rousmaniere at Working Immigrants reports on the AgJobs Bill that passed the Judiciary Committee March 27. Hopefully, it will have some protections for sheepherders. WorkplaceProf Blog points us to a story in the Washington Post about the bleak and terrible work of sheepherding, one of the many jobs that no U.S. citizen wants and immigrants perform. It’s hard to believe that people in this country work under such conditions.
Dispute resolution – This is a nice story – three California construction-industry unions helped save employers $3 million on workers’ compensation premiums in a new dispute resolution program for injured workers: “… none of the 380 employee claims reported since its inception 18 months ago has landed in court. The program encourages injured workers, their employers and health care providers to work together to avoid costly lawsuits.
Substance Abuse – The DOL is encouraging employers to recognize April as Alcohol Awareness Month. The state that “… Workplace alcohol use and impairment affect an estimated 15 percent of the U.S. workforce, or 19.2 million workers, according to the result of a recent study by the University at Buffalo’s Research Institute on Addictions.”
Pharma news – Joe Paduda has posted a Workers comp pharmacy news roundup reporting on things he learned while attending the National Council for Prescription Drug Programs (NCPDP) meeting in Phoenix last week.
Worker Memorials – a collection of Worker memorials via rawblogXport. Remember, April 28 is International Worker Memorial day – what better tribute than to redouble your organization’s commitmet to “zero injuries.” If quality initiatives can produce zero defects for manufacturing, we should be able to do the same for workers, no?
Blogging – I guess this blogging business makes for some strange bedfellows. Nick at Blogboygmi announces the surprising news that Grand Rounds now has a corporate sponsor. Be sure to read the comments to learn what the other contributors and readers think of this idea.

Know Noe? No No!

Monday, April 3rd, 2006

Although the country is in the middle of an emotional and compelling debate on immigration, the Insider returns to the amazing and appalling case of Tom Noe, the ubiquitous Ohio coin dealer whose name has disappeared from the address books of powerful people near the Great Lakes and the Potomac River. Toledo Blade reporters James Drew and Steve Eder have been doing a great job keeping track of this ongoing saga, which now shifts to the nation’s capital. We will return to the immigration issue soon. (If you can’t wait, the latest developments, along with concise analysis, can be found at Peter Rousmaniere’s working immigrant blog.)
Noe parlayed his formidable fund raising activities into the chairmanship of the Citizens Coinage Advisory Committee, where he helped guide the U. S. Mint toward issuing its first 24-karat, .9999 pure gold investment coin. There are those who believe that if the scandal had not erupted, he may have ended up directing the U. S. Mint. I wonder whose faces would have appeared on Noe-era coins…I’m sure that these “No-eez” would have made awesome collectibles!
In D.C., Noe set up the “Noe Supper Club,” a group of high-ranking government officials who gathered for dinners at Morton’s Steakhouse, where the tab was grabbed, needless to say, by Mr. Noe. (The Insider appreciates the name of the club, as it contains the kind of built in deniability that politicians relish: “There was no supper club, as far as I know.”)
In cultivating his Washington contacts, Noe communicated through effusive emails, this one directed to Madelyn Simmons Marchessault, the U. S. Mint’s director of legislative and intergovernmental affairs: “Wow, you are GOOD,” he wrote in December of 2004. Listing his home phone numbers from Lake Erie to the Florida Keys, he added: “If you can’t find me now…I don’t exist!!!!”
Well, Tom, as a matter of fact, you don’t exist!!! The passionate friendships, cultivated, we assume, with the millions pilfered from the Workers Comp fund in Ohio, have abruptly disappeared. Ohio’s governor and three others have already pled guilty to accepting inappropriate gifts. We suspect that the federal inquiry might find some problems with Noe’s largesse in the Nation’s capital.
This dreary tale of corruption undoubtedly contains lessons for us all. Knowing what is known now, officials in Ohio and Washington would say “no way” to the Noe way. Alas, it’s a bit too late for that.