Archive for December, 2007

Age and Disability in California

Wednesday, December 5th, 2007

We have frequently blogged the implications of an aging workforce. We are very interested in seeing how the workers comp system will handle older workers – people beyond the normal retirement age – when they are injured. Well, here is an interesting case from California.
Lois Vaira was a receptionist for the California Travel and Tourism Commission. In January of 2003 she was 73 years old. She bent over to pick up some travel brochures that fell off a shelf and injured her back. She suffered a compound fracture at T12 on her spinal column and was totally disabled from work. The medical examiner concluded that Vaira’s age and preexisting osteoporosis contributed to her disability. He apportioned 40 percent of the disability to the preexisting conditions and 60 percent to the industrial injury. Vaira was awarded $51,152 in permanent disability benefits.
There have been three appeals, along with three reconsiderations. Vaira contends that the comp board erred in apportioning part of her disability to her age and her osteoporosis, thereby reducing the amount of the final award.
Permanent Disability and Apportionment
First, the appeals court defines permanent disability: “…the irreversible residual of an injury.” The court goes on to state that “a permanent disability is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market.” In other words, permanent disability payments compensate workers for two distinct losses: the physical loss and the loss of earning capacity.
The long-overdue comp reforms contained in CA Senate Bill No. 899 (2003) redefined apportionment as follows:

A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage…was caused by other factors both before and subsequent to the industrial injury.

Let’s paraphrase this: the new approach to apportionment is to look at the current disability and parcel out its causative sources – nonindustrial, prior industrial, current industrial – and isolate the amount directly caused by the current disabling injury.
Vaira claimed that age and osteoporosis were unrelated to the disability caused by her work-related injury. The fact that age and osteoporosis made her more susceptible to a spinal injury is irrelavent. Employers must accept people “as they are.” Apportionment is appropriate only if these conditions contributed directly to the disabling injury – which Vaira says they did not.
Here is what the medical examiner had to say:

It was my opinion that, you know, her age predisposed her to the injury, the presence of osteoporosis, and possibly other factors of which, you know, in the physical examination may have shown up.

The court zooms in on this statement. To the extent that the examiner based his apportionment of 40 percent of disability on Vaira’s age, he violated the statute prohibiting age discrimination. You cannot reduce benefits simply because Vaira is older (a lot older) than other workers doing similar work.
Back to Square One
Ultimately, the appeals court could not determine how much of the apportionment was based upon age. If osteoporosis becomes more acute with age (it surely does), and if this deteriorating condition contributes directly to the disability, then some degree of apportionment is appropriate. But the medical examiner failed to explain how he came up with his numbers. As a result, the appeals court remands the case back to the comp bureau for further consideration.
I can only wonder how the medical examiner is going to tackle his new task. How do you assign a specific percentage to such open-ended factors as age and preexisting conditions? Doctors are expected to come up with a precise number, but they are only making educated guesses. Their medical training does not prepare them for this work. This is not about healing, it’s about indemnity benefits.
Ironically, as American workers continue in the workforce well beyond the age of 65, this type of assessment is going to become increasingly important. Lois Vaira does not think of herself as a pioneer and pace-setter for the comp system, but she is. Her struggle to secure benefits for her retirement will be re-enacted in courtrooms across the country.

Awake in the Dark: The link Between Shift Work and Cancer

Tuesday, December 4th, 2007

In yesterday’s post, Julie Ferguson mentioned a recent study that directly links night shift work with certain forms of cancer. The International Agency for Research on Cancer (IARC) is about to list shift work as a “probable” carcinogen. This will put shift work into the same category as anabolic steroids, ultraviolet radiation and diesel engine exhaust.
The potential number of people impacted by this designation is staggering – roughly 15 to 20 percent of the workforce in developed countries.
The scientists suspect that shift work is dangerous because it disrupts the circadian rhythm, the body’s biological clock. Light shuts down melatonin production, so people working in artificial light at night may have lower melatonin levels, which can raise their chances of developing cancer. Sleep deprivation might also be a factor. Not getting enough sleep makes your immune system vulnerable to attack and less able to fight off potentially cancerous cells.
Perhaps the most alarming finding is the impact of switching between night and day shifts: it’s probably better to work just at night and adjust accordingly. Shifting back and forth – a common practice in medical facility shift assignments – appears to compound the risks. The body’s clock is prevented from establishing a steady course.
The studies do point the way toward making shift work safer, with one relatively simple recommendation: shift workers should make sure that when they do sleep, they do so in a darkened room. The balance between light and dark is important for the body. When shift workers finally climb into bed, an (artificially) darkened room might enhance the body’s ability to generate protective melatonin.
Compensable Cancers?
What does this mean for workers comp? Not much. The comp system is notoriously conservative, slow to react and even slower to allow compensability where definitive proof is lacking. Under the prevailing standard in most states, work exposure would have to be the “predominant cause” for cancer to be compensable. A claimant would be hard pressed to prove that other risks for cancer in their lives were not significant factors in the illness: family history, lifestyle issues and other exposures. Given the general uncertainty about cancer’s origins, claims will be routinely and aggressively denied.
Our colleague Peter Rousmaniere has completed a remarkable series of articles in Risk & Insurance magazine, which graphically illustrate the inability of the comp system to confront workplace illness issues. The system balks at comprehending – and compensating – victims of illness caused by the events of 9/11, even though the “cause” — toxic dust – is pretty difficult to overlook.
Thus it is highly unlikely that shift workers with cancer will receive much of a welcome – let alone sympathy – in the comp system. They are awake for all of us, doing the jobs that must be done at night. Their “thanks” is limited to higher pay (shift differential). Their lives are disrupted, their health is apparently at risk. But when it comes to work-induced cancers, they are on their own.

News roundup: Iraq contractors, OSHA safety violations, night shifts, and more

Monday, December 3rd, 2007

Iraq civilian contractors – It can be difficult to come by news about this shadowy work force, despite the fact that at 180,000 thousand strong, civilian workers trump the presence of our armed forces by about 12,000. To date, at least 1,000 contractors have been killed in Iraq and last year, 5,749 were wounded, up from 804 the preceding year. Often, the injured contractors are caught in a legal wrangle for disability compensation. As this article notes, and as we’ve discussed previously (1, 2, 3, and 4), all contractors – citizens and foreign nationals alike – are covered by the Defense Based Act in the event of injuries or death. However, that doesn’t mean that claims aren’t contested – particularly PTSD. In most workers comp cases, the employer has a stake in the outcome and works to bring an injured employee back to the job. But in these cases, the employer has no skin in the game in terms of losses so the employee (or often, the ex-employee) deals directly with the insurer and the Office of Worker’s Compensation Program, the federal agency that oversees the law. The contractors don’t have a support structure the way that veterans do to see them through the officious and complex labyrinth for securing medical care and benefits. Matters are likely to get worse before they get better. Officials predict more than 14,000 contractor claims will be filed this year.
Top 10 Safety Violations – OSHA has recently released its list of the 10 most frequently cited safety violations of 2007, with scaffolding earning the dubious spot as the clear “winner.” The list includes links to a page of related compliance resources for each topic, or see NSC for a concise summary chart. OSHA also offers a resource for generating reports about frequent citations for specific industries.
Safety communications – Last week, we blogged about controversial, graphic safety videos from Ontario. This week, George Lenard of George’s Employment Blawg has a lengthy post on humor and gore in safety training videos and he asks whether these approaches are effective. We’ve never been big fans of humor in safety posters or training. Remember the bad safety clip-art cartoons of yesteryear? Call us humorless, but there isn’t anything too comical about industrial accidents. Thank goodness safety communications have generally moved on to a more sophisticated level.
Medicaid & workers comp – Joe Paduda talks about Medicaid and workers comp. If you think those two systems are apples to oranges, Joe agrees with you. He explains why he thinks California and New York are misguided in basing their workers comp fee schedule on Medicaid rates.
Graveyard shift aptly named? – Next month, the World Health Organization’s International Agency for Research on Cancer is expected to add overnight shift work as a probable carcinogen. “Scientists suspect that overnight work is dangerous because it disrupts the circadian rhythm, the body’s biological clock. The hormone melatonin, which can suppress tumor development, is normally produced at night.” That’s rather bad news for about 20% of the work population.