Posts Tagged ‘Compensability’

Annals of Compensability: A Cop’s Coffee Break

Friday, September 14th, 2012

Whether in a local coffee shop or a Dunkin Donuts (but never a Starbucks?), the coffee break is an iconic moment in the routine of a police officer and thus appropriate fodder for our Friday blog.
Carolyn McDermed, a lieutenant in the Eugene, Oregon, police department, left her desk in the station and walked across the street to purchase coffee. She planned to drink it at her desk. Unfortunately, she was struck by a car and suffered multiple injuries. Her claim for workers comp revolved around one central issue: was she on a personal errand or “in the course and scope” of employment? Was she on a break or on call?
An administrative law judge ruled that McDermed was indeed working; the ruling was upheld recently by the Oregon Court of Appeals.
McDermed worked in the Office of Professional Standards; she managed her own time and took breaks when she felt like it. But unlike most of us, who can leave our work behind when we head out for coffee, McDermed was still prepared to do her job. She carried her cell phone and might be required to return to her office on a moment’s notice. Indeed, her coffee breaks were not without incident: one time she witnessed an auto accident and administered first aid; another time she escorted a woman fearful of a stalker to the latter’s office; and when a vehicle caught fire near her office, she applied a fire extinguisher and exerted crowd control. As a well-known, 17 year veteran of the force, she found herself frequently answering questions out in public about community law enforcement concerns. No wonder she would take the coffee back to her desk, where she could at least enjoy it in relative quiet.
Public safety officers are a bit like comic book heroes: they are expected to respond to public need at a moment’s notice. Thus, even though there were no safety issues on the day of the accident, McDermed was prepared to respond had something arisen. She was on duty and on call. Her work environment was not limited to her desk in the police station, where most of her duties were performed.
In the Course of Employment
The appeals court clarified the concept of “in the course of” employment:

An injury occurs ‘in the course of’ employment if it takes place within the period of employment, at a place where a worker reasonably may be expected to be, and while the worker reasonably is fulfilling the duties of the employment
or is doing something reasonably incidental to it.”

It is possible to extend the implications of this ruling to the point where public safety officers are on call 24/7. When the police encounter a circumstance requiring intervention or assistance, they are obligated to respond. They might be home in bed, or shopping at a mall with the family, or just moseying across the street for a cup of coffee, but they must be ready for anything and thus they are, potentially at least, at work. Compensability would revolve around what they were doing at the time of the injury and why they were doing it. In McDermed’s case, her taking a break did not sever her availability for service.
So the next time you see some cops taking a coffee break (that shouldn’t take very long), rather than ask whether they could find something better to do, remind yourself that they are on call and at work, unlike most of us, whose coffee breaks really are a break from our daily routines.

Annals of Compensability: Sedentary Worker in the Garden

Wednesday, July 11th, 2012

Barton Rodr was a computer programmer for Yzer Inc, DBA Funnel Design Group in Oklahoma. When the yard crew taking care of Yzer’s property quit, the company asked for volunteers and Rodr stepped forward. He and his son mowed the lawn and manicured the yard on successive Saturdays, in preparation for the festivities at Automobile Alley, the historic district of downtown Oklahoma City. Barton, a salaried employee, was not paid for the work; his son received $40.
On July 18, 2009, Rodr was putting away the lawn mower when he suffered a heart attack. He was 36 at the time. A workers comp judge awarded him benefits, determining that the injury occurred in the course and scope of employment. A three-judge panel affirmed, but the OK Court of Civil Appeals reversed, opining that Rodr’s lawn work bore no relation to his primary job as a programmer.
The OK Supreme Court has ruled in favor of Rodr. Despite his performing volunteer work out of class and on the weekend, he was still an employee of Yzer, as the yard work met the primary test of employment: it furthered the interests of his employer.
In its defense, the company pointed out that the heart attack was caused by a pre-existing conditon: Rodr was overweight, a smoker, with a family history of heart problems. From the perspective of (very distant) consultants, we are tempted to ask: why did the company allow this employee to volunteer? Despite his relatively young age, he worked at a sedentary job and displayed risk factors that precluded his doing physical work. Speaking as a weekend mower, I can certify that the task is strenuous and noisy (less so for my neighbor who sits calmly on his riding mower, listening to music through noise-canceling headphones).
Volunteer vs. Employee
The court has ruled that an employee who volunteers is not a “volunteer.” OK law defines a volunteer as “any other person providing or performing voluntary service who receives no wages for the services other than meals, …therapy…or reimbursement for incidental expenses.” An employee is not “any other person.”
This is no small matter, for Rodr or for Yzer’s workers comp insurer. The unfortunate Rodr is permanently and totally disabled. He is unlikely to work again. He is currently surviving on a mechanical heart and will need a transplant soon. Given Rodr’s age and medical expenses of significant magnitude, this claim is likely to reach seven figures.
The lesson for employers is clear: saving a few bucks on physically demanding jobs is not worth the risk. An overweight smoker with a family history of heart problems does not belong within ten feet of a lawnmower. When your lawn crew quits, just go find another one.
Thanks to WorkCompCentral (subscription required) for the heads up on this case.

Annals of Compensability: Oh, My Aching Pedicure

Monday, June 25th, 2012

Kelly Taylor worked as an accountant for Community Health Partners (CHP) in Montana. On her way out for lunch in May 2009, she slipped on the stairs and landed on her tailbone. Her primary caregiver, Rebecca Hintze, worked for the same employer and provided medical advice soon after the injury. The claim was accepted by the Montana State Fund. Taylor suffered from pain off and on over the following months, using up her sick leave in a random succession of 1-3 day episodes. She did not seek comp indemnity for these incidents as she mistakenly thought comp required 4 consecutive lost days.
Over a year later, in September of 2010, Taylor was sitting on a couch at home. She put her foot on her coffee table and bent over to paint her toenails. When she finished, she tried to stand up, but immediately had difficulty, experiencing extreme pain in her back and down the front of her leg. In the following weeks, she experienced this sharp pain two more times, once after stubbing her toe on a rug at CHP and again when she was scooping out cat litter. (For all the severity of the injury, this case is sublimely prosaic in terms of risk.)
Because of the long gap between indemnity payments, and because an IME found that the herniated disc following the pedicure was a new injury and not a recurrence of the old one, the claim was denied. Taylor appealed, and the case came before the estimable Judge John Jeremiah Shea, whom we have encountered a couple of times in the past: in the notorious “pot smoking with bears” incident, and in another complicated claim involving a non-compensable back injury.
Dispensing Dispassionate Justice
Judge Shea appears to be a relentless seeker of fact and a dispassionate purveyor of justice. While he praises both the IME doctor (for reasonably concluding that the pedicure incident involved a new injury) and the claims adjuster (for reasonably denying benefits), he over-ruled the denial and reinstated the benefits. He found continuity in the documented self-treatment and in the somewhat informal, ongoing treatment provided by Rebecca Hintze. While the IME doctor had stronger credentials and a longer track record, Hintze had “substantially more opportunities to observe and talk with Taylor about her injury in both formal appointments and in informal workplace conversations.”
He concluded that the pedicure injury was an aggravation of the back injury suffered over a year prior. At the same time, he denied an award for attorney’s fees to Taylor, as he found that in denying the claim, the adjuster had acted reasonably.
All of which might appear to be much ado about not much, but in the intricate and ever-evolving world of comp, this case embodies a core value of the system: the relentless effort to determine whether any given injury occurred “in the course and scope of employment.” Judge Shea, connecting the dots as methodically as a detective, concludes that the pedicure injury was an extension of the original fall. While the ruling itself can be questioned, Judge Shea’s method and discipline are beyond reproach .

Of Pain Killers, Wilful Misconduct and Compensability

Monday, June 11th, 2012

The immortal Mae West once said that “too much of a good thing can be wonderful.” When it comes to pain relievers, however, too much of a good thing can kill you. Which brings us to the sad saga of Anthony Sapko, who died of an accidental prescription drug overdose in August of 2006. Sapko worked as a policeman for 21 years in New Haven, CT, and went on in the mid-1990s to become a state corrections officer. Beginning in 1999, he was treated for depression. He suffered four work-related injuries while working in corrections, the last being a back problem from which he never returned to work.
Sapko was treated with a cornucopia of medications: oxycodone, Zanaflex, Kadian, Celebrex, Roxicodone, Avinza, Lidoderm patches and Duragesic. When his depression deepened in 2006, his psychiatrist prescribed Seroquel. Two weeks later, Sapko was dead. The autopsy revealed a level of oxycodone 20 times normal, and of Seroquel at 5 times normal. The combination of the two over-consumed drugs proved both toxic and fatal.
Suicidal Intent Vs. Accident
Sapko’s widow filed for workers compensation death benefits. The claim was denied at the Commission level and again at the Appeals Court level. Sapko’s widow argued that the death was directly related to his workplace injuries, but the court found a disconnect: this was not a suicide (where such a link might be established), but an accidental overdose.
In a December 2011 blog, we made note of two similar cases: a compensable case in Tennessee and a denied case in Ohio. Fatal overdoses, in other words, may or may not be compensable, depending upon the specific circumstances and state-based precedents. But the over-arching issues are clear: the abuse of prescription narcotics has reached epidemic proportions in workers comp; some individuals are unable to properly self-manage the use of these medications; and doctors are all-too-too willing to prescribe very powerful drugs to alleviate pain.
Workers compensation is endlessly fascinating because it inevitably brings together pain (from workplace injury) and pain suppression (far too often, opioids). In Sapko’s foreshortened life, the combination of medications was toxic. In workers comp as a whole, the mixture of pain and drugs is proving to be a formidable problem.
No Will, No Way?
One of the interesting sidebars in this case is the concept of wilful misconduct: when an injured worker abuses prescription medication, is this a “serious and wilful” action that precludes compensability? Or is the pain so consuming and the drugs so powerfully addicting, that the concept of “wilful” disappears in a drug-induced haze? There are no simple answers. There is undoubtedly some link between Sapko’s depression, the work he performed and the injuries he suffered. But in the world of comp these links must be explicit and, unlike life itself, unambiguous. It would require a novelist to reveal the connections. Unfortunately for Sapko’s widow and children, the commissioners and judges in charge are simply not in a position to craft that kind of narrative.

Too Much Sitting Plus Comorbidities = Big Trouble

Tuesday, May 15th, 2012

For those who seek risk conundrums, workers comp is fertile ground. From a micro perspective, the unfortunate Ronald Westerman, a paramedic for a California ambulance company, embodies many of the elements that result in sleepless nights for claims adjusters and actuaries: Westerman had an inordinately long commute (2.5 hours each way!), a sitting job with periodic lifting (inert patients and medical equipment), along with the comorbidities of hypertension, obesity and diabetes. In two years of ambulance work, Westerman gained 70 pounds, thereby compounding the co-morbidity issues.
In March 2009 Westerman returned home from a 36 hour shift and suffered a stroke. His doctor determined that the stroke was work related and that Westerman was permanently and totally disabled. He was 50 years old. While there was some dispute over the cause of the stroke, an independent medical evaluator surmised that it was caused by a blood clot moving through a hole in Westerman’s heart to his brain, otherwise known as in-situ thrombosis in his lower extremities – a direct result of too much sitting. (We blogged a compensable fatality from too much sitting here.)
At the appeals level, compensability centered on the performance of a shunt study – an invasive test – that would have determined whether the blood clot caused the stroke. Westerman was willing to undergo the test, but his wife refused to authorize it, due to his fragile health. If there was no hole near the heart, the entire theory of compensability would be disproven; the stroke would not have been work related.
Had the defense attempted to force the test issue, it would have given rise to yet another conundrum: was refusing an invasive test the equivalent of “unreasonable refusal to submit to medical treatment”? Indeed, does a diagnostic test, by itself, meet the definition of “treatment”? Fortunately for Westerman, the defense requested – but did not attempt to require – the shunt test.
Managing Comorbidities
Our esteemed colleague Joe Paduda, who blogs over at Managed Care Matters, provides the macro perspective, one which is unlikely to aid in the sleep patterns for actuaries. He reports on the impact of comorbidities on cost from the recent NCCI conference:

The work done by NCCI was enlightening. 4% of all claims (MO and LT) between 2000 – 09 had treatments, paid for by workers comp, for comorbidities, with hypertension the most common. These claims cost twice as much as those without comorbidities [emphasis added].

It is beyond doubt that comorbidities make work-related injuries more expensive. But what, if anything, can claims managers do about this? In the Westerman case, there is not much to be done, as the stroke resulted in a permanent total disability. But in other cases where there is a path to recovery and even return to work, adjusters should flag these claims for early, intensive intervention, including psychological counseling and support for weight loss and other life style adjustments. To be sure, this would increase the upfront costs, but these steps just might go a long way toward mitigating the ultimate cost of the claims.
As is so often the case in workers comp, it’s “pay me now” and “pay me later.” To which I can only say to my claims adjuster and actuary friends, “sweet dreams!”

9/11 news roundup: health, insurance, and disability-related issues

Saturday, September 11th, 2004

Most Ground Zero Volunteers Still Waiting For Workers’ Comp
From Adjuster.com: “A study of workers’ compensation claims from the cleanup at the World Trade Center site after the Sept. 11 attacks found that about 90 percent of the 10,182 claims for workers’ comp have been resolved. In contrast, less than a third, or 31 percent, of the 588 volunteer claims were resolved as of June 30, 2004, the Government Accountability Office, the investigative arm of Congress, found.
Sept. 11 attacks didn’t bankrupt U.S. insurers: Study
Business Insurance reports on a forthcoming study from Ball State University in Muncie on the effects of 9/11 on the insurance industry that states that the impact on the insurance industry was less than anticipated, partly due to the federal compensation fund. .
Breathing and mental health problems widespread among Ground Zero rescue and recovery workers
Preliminary data from screenings conducted at The Mount Sinai Medical Center show that both upper and lower respiratory problems and mental health difficulties are widespread among rescue and recovery workers who dug through the ruins of the World Trade Center in the days following its destruction in the attack of September 11, 2001.
An analysis of the screenings of 1,138 workers and volunteers who responded to the World Trade Center disaster found that nearly three-quarters of them experienced new or worsened upper respiratory problems at some point while working at Ground Zero. And half of those examined had upper and/or lower respiratory symptoms that persisted up to the time of their examinations, an average of eight months after their WTC efforts ended. In addition, more than half of the Ground Zero workers who were examined had persistent psychological symptoms.
(via Pulse).
9/11 Impact on Marsh & McLennan Cos. Nothing Short of Devastation
Claims Journal features an interview with Marsh & McLennan Companies Chairman and CEO Jeff Greenberg reflecting on the lingering aftermath of the loss of 295 employees in terms of both the human and the business impact.
Additional stories:
Lingering 9/11 anger finds its outlet in courts
Court declines to hear appeal of 9-11 Workers’ Comp benefit case
No answers for kin of Mexican 9/11 victims
WTC rescue workers still ailing, study finds
Terrorism insurance is now common
World Trade Center Health Registry
Cantor Fitzgerald sues al-Qaeda over Sept. 11
The Port Authority of New York and New Jersey to join 9/11 lawsuit against Saudis
The miracle survivors – coping with recovery
Workers Comp and terror: the long shadow

Heart attacks on the job: are they covered by workers compensation?

Tuesday, June 1st, 2004

Lately, we’ve had several visitors to the site searching for information about heart attacks. We take that to mean that people are trying to determine whether a heart attack that occurs in the workplace is a compensable event. Not everything that occurs in the workplace is deemed compensable and that is particularly true of illnesses. Generally, a heart attack in and of itself would not be a compensable event. The acid test for compensability would revolve around whether it can be determined that the heart attack is an event that has arisen out of and in the course of employment.

First, as with anything related to workers comp, your state law will prevail. Because workers comp legislation varies by state, there is no universal dictate that would apply nationally so we are speaking in generalities here. Heart attacks and strokes can be complex issues and may require legal consultation.
“Arising out of employment” means that a heart attack would have to be job related, or in other words, did the heart attack happen because of the work? Was there a causal connection? “In the course and scope of employment” generally would have to do with the time, place, and surrounding events.
Illnesses and conditions are often progressive in nature, and they may be due to other or unknown causes, such as family history, obesity, smoking, etc. It would be up to the worker to prove that the heart attack was related to or caused – at least in part – by the work. Were there precipitating work factors, such as unusual physical exertion or mental stress? Also, in any discussion of heart attacks, the issue of pre-existing conditions often comes into play. While pre-existing conditions would generally not be compensable, they would also not necessarily be a bar to compensability. If it can be shown that the work aggravated or accelerated a pre-existing condition, compensability may be granted.

Compensability: Driving “To and From”

Tuesday, April 20th, 2004

In most states, an individual in the normal commute to and from work is not considered “in course and scope” of employment. If employees have accidents on the way to or from work, they are usually on their own and will not have access to benefits under workers compensation. However, there are a number of circumstances when employees may be covered during the commute. For example:

  • An on-call employee is called back to the workplace. This individual is usually covered from home to work and then from work back to home.
  • An employee has no geographic starting point for employment (e.g., a salesperson). He or she heads off in a different direction every morning. There is no single “workplace.” This individual is covered from the time of leaving the home until returning.
  • An employee conducts a work-related errand. An employee is asked to pick up some supplies on the way home. This “deviation” is considered part of employment and any accident or injury during the “deviation” from the regular route would be covered.
  • An employee heads out for lunch in his personal vehicle (a “personal errand” not covered by workers compensation). A supervisor asks the employee to “pick up some fries.” This errand now has a work-related aspect and workers compensation may well apply under the “dual capacity” concept.

What is striking about these “to and fro” exceptions is how common they are. Even though employees in the above situations might drive only rarely under the workers compensation umbrella, in most states they are covered by workers compensation. Hence, any accidents would have a direct impact on the employer’s experience rating (or self-insurance, for those who cover their own losses).

Sometimes coverage may begin even before an employee gets into his or her car. On-call employees are covered from the moment they receive the call back to work; a fall down the stairs at home might be considered workers compensation! In a case from Connecticut, a salesman was asked to go out on the road immediately after a snowstorm. He didn’t want to go, but his supervisor insisted. While shoveling the snow from his driveway, he had a heart attack. The Connecticut Supreme Court determined that he was “in the course and scope” of employment, because he had to clear the driveway in order to operate the car. And he had to operate the car in order to carry out his job.