Archive for July, 2009

Spouse as Caregiver: To Pay or Not to Pay

Wednesday, July 8th, 2009

Serious workplace injuries often turn spouses into caregivers. So the question becomes, are their services compensable under workers comp? As is so often the case, it depends upon where you live.
The Supreme Court of Arizona recently decided a case in the spouse’s favor (Sabino Carbajal v.Industrial Commission of Arizona). In 1999, Sabino, working for Phelps Dodge, suffered a serious injury, resulting in cognitive problems and partial paralysis on his right side. He required full-time supervision and intermittent attendant assistance. The carrier paid for nursing aides during daylight hours. At all other times, Sabino’s wife took charge of his care: this included giving him his medication in the morning; specially preparing his food; cleaning him when he was returned from day care soiled; and moving him between his wheelchair and his bed, the toilet, or his recliner.
In their deliberations, the Arizona Supremes examined practices in two other states. They looked first at Virginia, where the courts have denied reimbursement to spouses for home health care services (Warren Trucking v. Chandler, 277 S.E.2d 488). In Warren, the claimant’s wife helped him bathe, shave, and put on braces, and she prepared his meals, drove the car, and maintained the household. When the claimant lost consciousness, his wife revived him.
The Virginia court concluded that under the statute, to qualify as compensable “medical attention,” the spouse’s care must, among other requirements, be “performed under the direction and control of a physician” and be “the type [of care] usually rendered only by trained attendants and beyond the scope of normal household duties.” The court rejected the spouse’s claim because the care rendered by the wife was not prescribed by a doctor and was not “of the type usually rendered only by trained attendants.” I suppose that when the wife revived her husband, she was just acting as a good samaritan.
NOTE: Workers in Virginia may well wonder whom the comp statute is designed to protect. We recently blogged an absurd provision of the law which precludes payment to brain injured employees who have the misfortune of surviving catastrophic injuries. Virginia seems to go out of its way to construct “rigid frameworks” that preclude compensation for the families of seriously injured workers.
Empathy in Action
Arizona justices also looked at case law in Vermont, where a similar set of circumstances led to a very different conclusion. In Close v. Superior Excavating Co. (693 A.2d 729), the claimant received a severe head injury and required 24-hour supervision. The claimant’s wife cared for him at home, including “administer[ing] and monitor[ing] his medications[,] . . . alter[ing] the doses [of medication,] . . . log[ging] . . . her husband’s behavior[, and] monitoring her husband’s seizure activity and responding appropriately.”
In concluding that the wife’s services were compensable, the Vermont court rejected the “rigid framework” of Warren, noting that “it “would . . . conflict with [its] longstanding practice of construing the workers’ compensation statute liberally.”
The Arizona court restated the aim of workers comp: rather than pushing the notion of spousal duty deep into the area of custodial care, the court “places the burden of injury and death upon industry.” The Arizona court overturned rulings at the commission and Appeals court levels. They found that Mrs. Carbajal routinely performed work that others were paid to perform and that these duties were necessitated by workplace injury. Therefore, she is entitled to reimbursement. It will be interesting to see how the comp commission comes up with a dollar value for her services: will she be reimbursed for “time on task” or is she “on call” and working whenever other paid help is not available?
When workers suffer catastrophic injuries, their families suffer loss beyond measure. The quality of life changes for everyone, not just the injured worker. If the question is “to pay or not to pay” for the onerous burdens placed on spouses, the answer, in Arizona and Vermont at least, is to pay.

Atul Gawande’s The Cost Conundrum – Why haven’t you read it yet?

Monday, July 6th, 2009

Over the last twenty years, medical costs have gradually, but steadily, replaced indemnity wage replacement as the engine driving the workers’ compensation train. This is the same period during which our nation’s health care costs have grown from average among OECD countries (Organization for Economic Cooperation and Economic Development) to double the average (PDF). In other words, workers’ compensation medical cost increases reflect similar increases within the general public. The only surprising thing here is that during the last decade or so, the steady increase in workers’ compensation medical costs has happened at twice the rate of those eye-popping group health increases.
The National Council on Compensation Insurance (NCCI) has convincingly demonstrated that the rise in workers’ compensation medical costs is due primarily to over-utilization of physical medicine services, especially those for chronic, soft tissue claims. (See here (PDF) and here (PDF ). And now, Atul Gawande, writing in the June 1, 2009 issue of The New Yorker, has demonstrated even more convincingly that over-utilization of medical services, including testing, surgery and hospitalization, is the metastasizing cancer in America’s health care system.
Dr. Gawande’s lengthy article, The Cost Conundrum, for which he should win the Pulitzer Prize, is the most trenchant argument yet for why costs in America are so appallingly high, but outcomes merely mediocre. He reduces the problem to its simplest terms. In essence, our American health care house that Jack built has turned the once noble profession of medicine into nothing more than assembly line piecemeal work, and our physicians both in primary care and the specialties, have been economically incentivized to over-prescribe in all areas. And, as Gawande’s article clearly shows, the areas of the country that produce the highest costs with all that over-prescribing also produce the poorest health care results.
Dr. Gawande examines health care in McAllen, Texas, a town within Hidalgo County, the County with the lowest household income in the country, but, after Miami, the second most expensive health care costs. He wanted to know why. He also wanted to know why health care costs in El Paso County, eight hundred miles to the north with similar demographics to Hidalgo’s, were 50% lower.
He wanted to know why the Mayo Clinic, in Rochester, Minnesota, with the best medical technology on the planet, produced some of the highest quality medical care in the nation, but with costs that rank in the lowest fifteen percent of the nation. And why the Mayo was able to replicate that achievement when it opened its hospital medical center in Florida, one of the country’s highest cost states for health care?
His answer? Because in the pockets of excellence he found around the country doctors work together in teams, peer-reviewing each other’s work. In these low-cost, high-quality areas, physician income is neutralized. At the Mayo, for example, the doctors are all on salary. Whether they order ten procedures or none, they get paid the same. This is central to understanding how to fix the problem. As Gawande writes:

“Providing health care is like building a house. The task requires experts, expensive equipment and materials, and a huge amount of coordination. Imagine that, instead of paying a contractor to pull a team together and keep them on track, you paid an electrician for every outlet he recommends, a plumber for every faucet, and a carpenter for every cabinet. Would you be surprised if you got a house with a thousand outlets, faucets, and cabinets, at three times the cost you expected, and the whole thing fell apart a couple of years later? Getting the country’s best electrician on the job (he trained at Harvard, somebody tells you) isn’t going to solve this problem. Nor will changing the person who writes him the check.
This last point is vital. Activists and policymakers spend an inordinate amount of time arguing about whether the solution to high medical costs is to have government or private insurance companies write the checks. Here’s how this whole debate goes. Advocates of a public option say government financing would save the most money by having leaner administrative costs and forcing doctors and hospitals to take lower payments than they get from private insurance. Opponents say doctors would skimp, quit, or game the system, and make us wait in line for our care; they maintain that private insurers are better at policing doctors. No, the skeptics say: all insurance companies do is reject applicants who need health care and stall on paying their bills. Then we have the economists who say that the people who should pay the doctors are the ones who use them. Have consumers pay with their own dollars, make sure that they have some “skin in the game,” and then they’ll get the care they deserve. These arguments miss the main issue. When it comes to making care better and cheaper, changing who pays the doctor will make no more difference than changing who pays the electrician. The lesson of the high-quality, low-cost communities is that someone has to be accountable for the totality of care.”

The Cost Conundrum, by Atul Gawande, should be required reading for anyone interested in understanding and participating in American health care reform. And that should be all of us.

Putrescible Waste

Thursday, July 2nd, 2009

There are certain aspects of civilized life that few of us want to experience directly. Once our garbage has disappeared from the curbside, we are unlikely to give it any further thought. We have little curiousity about the desolate environments where this garbage is taken. But some folks work in these places, such as the ironically-named Regal Recycling Company on Douglas Ave, Jamaica, Queens. New York Times writer Robert McFadden describes the location as “an ugly street of waste plants, garbage scows and sheds enclosed by chain-link and topped by fluttering American flags.”
A manhole-size, 18 foot deep well at Regal was the sight of a terrible accident earlier this week. S. Dahan Piping and Heating Corporation was hired to clean the manhole. They apparently were not alerted to the hazard of poisonous gases in the well. First, Harel Dahan, son of the owner, climbed into the well’s three foot diameter opening and disappeared. His father – we can only imagine his desperate concern for his son – followed him down and did not return. Finally, a Regal employee named Rene Rivas entered the well to help out.
All three workers were quickly killed by the high level of hydrogen sulfide in the confined air of the well. Hydrogen sulfide is a highly toxic and flammable gas. Being heavier than air, it tends to accumulate at the bottom of poorly ventilated spaces. Although very pungent at first, it quickly deadens the sense of smell, so potential victims may be unaware of its presence until it is too late. Exposure to 50 parts per million can be lethal within 10 minutes. The level in the well measured an astounding 200 parts per million.
A Firefighter from the rescue squad named Robert Lagnese recovered the bodies. He wore protective clothing and an enclosed breathing apparatus.
Hydrogen sulfide is a by-product of decomposing organic matter. (Here is a five page MSDS sheet for anyone interested.) At this point, no one is sure how the gas accumulated in the well. When trucks enter the facility, they empty their contents into two categories of waste: “putrescible” and “non-putrescible.” It is the former that generates the poisonous gas.
When Shlomo Dahan arrived at Regal, he expected to find a routine job of pumping out a well. He was not aware of any immanent danger. It’s clear that Regal employee Rene Rivas was also unaware of – and untrained in – the danger. Regal handles tons of “putrescible” waste, but apparently had no awareness of the accompanying dangers.
We are left with a chain of doomed, heroic actions: Harel Dahan’s collapse in the well, followed by the rescue attempts of his father and of Rivas. It should never have happened. But let’s face it. We all want the debris of our civilized lives to be removed from our sight as quickly as possible. No one wants to look at – or smell – garbage. What happens to it after it’s removed is someone else’s business.

Cavalcade of Risk and other news notes

Wednesday, July 1st, 2009

Cavalcade of Risk #81 is posted at Jaan Sidorov’s Disease Management Care blog. Check it out, covered topics include health care, information technology, personal risk, market risk and more.
Confined spacethree sanitation workers died when they were overcome by hydrogen sulfide gas in an 18 foot hole at Regal Recycling Company in Queens. The deceased included a father and son. The three were draining waste from the hole when one fell in and was overcome. As is so often the case in confined space deaths and trench deaths, his would-be-rescuers also became victims. OSHA: Confined Space
Insurance industry – According to the ISO and the Property Casualty Insurers of America, the first quarter of 2009 was the worst on record for the property casualty industry. Of course, it should be noted that records only go back to 1986, but since then, this is the industry’s worst net loss – some $1.3 billion – and its worst net written premium growth. Net written premiums dropped $4 billion, or 3.6%, in the first three months of 2009 from $110.4 billion in the first three months of 2008.
Independent contractor vs employee – Roberto Ceniceros of Business Insurance tells us that 8 attorneys general — from Iowa, Kentucky, Missouri, Montana, New Jersey, Ohio, Rhode Island, and Vermont — have expressed their concern to FedEx about potential misclassification of workers. We’ve blogged on this issue numerous times – here are a few past posts related to the new administration , shareholders , NH, CA, CT, federal courts, and MA.
OSHA – Acting Assistant Secretary of Labor for OSHA and erstwhile blogger Jordan Barab recently outlined key challenges that OSHA is addressing and urged safety professionals to get involved when he spoke before a group from American Society of Safety Engineers (ASSE). He emphasized that workers will have a voice and that ” …unions and safety professionals like you will have a seat at the table.” Some of the priorities include developing a Severe Violators Program, addressing critical problems with construction fatalities and injuries, and developing a National Emphasis Program (NEP) for the chemical industry.
Hazmat – Training programs and tools developed by the Agency for Toxic Substances and Disease Registry (ATSDR) to help communities develop sound, evidence-based assumptions in preparing for hazardous materials (HazMat) emergencies and disasters: HazMat Emergency Preparedness Training and Tools for Responders
Arc FlashSafety Daily Advisor tells us that more than 2,000 workers a year are treated for severe burn injuries from arc flash, a short circuit through the air. In a follow-up post, they discuss arc flash prevention and related safe work practices.
DisabilityWhat’s your PDQ? Find out now.