Later this month, UCLA's chemistry professor Patrick Harran will face four felony charges in the laboratory death of his 23-year old research assistant Sheri Sangji. Harran is pleading not guilty to charges that revolve around his alleged failure to provide protective equipment and clothing, failure to provide training, and failure to correct unsafe working conditions. By way of background: In December 2008, Sheri Sangji was working with t-butyl lithium, a substance that ignites on contact with air. A drop spilled on her clothing causing an instant conflagration. She suffered second and third degree burns over 40% of her body, and died 18 days after the fire.

Our usual go-to source on this case is the blogger Chemjobber, who reported on some of the court proceedings leading up to these charges. He includes this statement from the trial judge

In court today, Judge Lisa B. Lench heard brief oral arguments from both sides, first on the issue to dismiss and then on the motion to reduce charges. She commented that the issues presented in the case were interesting and novel. She also said that Harran was unique compared with the usual defendants moving through the criminal justice system.

One of the other unique things about this case is the culture in which this accident occurred. There's a strong "blame the victim" thread that runs through comments on stories, as well as protestations that the academic and/or the scientific arena is "different." When we first read about and discussed the case,some criticism was directed at us for naivete, stating that health and safety personnel were unqualified to oversee "exotic" scientific protocols. (See our prior posts, More on the UCLA lab death of Sheri Sangji and Follow-up on the death of Sheri Sangji: a painful path to academic lab safety.)

Sheri Sangji's death and the subsequent criminal proceedings against Harran have sparked a great deal of controversy in the academic scientific community - and on the more positive side, appear to have been a catalyst for a more serious look at university lab safety. Beryl Lieff Benderly of Science reports on a yearlong study of lab safety in nonindustrial institutions that was launched in May by the National Academies:

"An overriding theme at the meeting was the nature and size of the disparity between safety cultures and practices in industrial and academic settings. I have long heard from safety experts--and stated in my writing--that industry's safety record far surpasses that of academe. Typical of this view is a letter by officials of three major industrial corporations, Dow, Corning, and DuPont, that was recently published in Chemical & Engineering News and was quoted at the May meeting. "The facts are unequivocal," the letter asserts. "Occupational Safety & Health Administration statistics demonstrate that researchers are 11 times more likely to get hurt in an academic lab than in an industrial lab."

Benderly goes on to explore many reasons why a safety gap exists in the academic environment - among them, a wide variation in or lack of standards, a high value on independence, the lack of a hierarchical structure to enforce accountability, and various cultural barriers and resistance:

"As a result, the report continues, "At academic research institutions, PIs may view laboratory inspections by an outside entity as infringing upon their academic freedom. ... To combat cultural issues (such as fiefdoms) and bring a focus to safety within any given organization, it is important to ensure that the reporting structure allows for communication of safety information to those within the organizational hierarchy that have the authority and resources to implement safety change."

The Harran trial will be watched closely by many in academia - it's a painful situation all around. The best possible outcome of this tragic situation would be a heightened focus on lab worker safety - and it appears to be having some effect in prompting greater industry/education partnerships to heighten safety. Case in point: the recently launched Dow Lab Safety Academy.

New Health Wonk Review - Jason Shafrin has posted Health Wonk Review: Jeopardy Edition at Healthcare Economist. Put your health wonkery to the test.

Cost shifting - A recent study by NIOSH researchers reports that many work-related injuries treated in emergency rooms aren't being billed to workers comp. The figure approaches 40%, according to Celeste Monforton, who discusses this study in a post at The Pump Handle, Hefty portion of work-related injury costs not paid for by workers' comp, others picking up the tab. "The analysis involves four years of data from the National Hospital Ambulatory Medical Care Survey (NHAMCS), a representative sample of U.S. emergency room visits. An estimated 458 million emergency department (ED) visits occurred between 2003-2006, based on the representative sample of 146,296 cases. The researchers specifically examined the subset of emergency room visits which were coded as a work-related injury or illness." She notes that while not all workers are covered by workers comp, other may prefer private insurance out of fear of some disciplinary action. The impact of the study is enormous, both in terms of the economic cost-shifting implications and the accuracy or work-related injury data.

On the case - Joe Paduda looks at The next revenue-generator for work comp profiteers.

Healthcare hygiene - "With drug-resistant superbugs on the rise, according to a recent report by the federal Centers for Disease Control and Prevention, and with hospital-acquired infections costing $30 billion and leading to nearly 100,000 patient deaths a year, hospitals are willing to try almost anything to reduce the risk of transmission." Anemona Hartocollis of the New York Times writes about the lengths that hospitals are going to and the strategies they use to get workers to wash their hands. She notes that the incentives for action are strong because under new federal rules, hospitals stand to lose Medicare money when patients get preventable infections. In a related initiative, NIOSH is looking to improve poor compliance with respiratory protection requirements and proper use recommendations in healthcare settings. NIOSH issues an invitation to be part of formulating a solution: Improving Respirator Use and Compliance in Healthcare

NFL vs CA - Roberto Ceniceros of Business Insurance offers an update on the ongoing California-NFL court battles about work comp indemnity rights. "A California appellate court has given a temporary victory to 32 insurers that are battling the National Football League over defense and indemnity rights under 187 commercial general liability policies purchased over 45 years."

The Modern Claims Adjuster - At Risk & Insurance, Peter Rousmaniere looks at the image myths vs reality of the modern claim's adjuster, and in the process, offers some clues as to what a savvy TPA shopper should be looking for in measuring performance.

Patriot Coal - Trouble ahead: What the Patriot Coal ruling means for the future of Southern West Virginia's coalfields - Ken Ward talks about the recent federal bankruptcy judge ruling which approved Patriot Coal's plan to dump its union contract and its retiree health-care plan. He looks at what this decision and other issues might signify about the viability of the industry.

Defense Base Act - "The final withdrawal of U.S. military forces from Iraq in December 2011 may have brought to a decisive conclusion an almost decade long conflict in the region, but much remains in question when it comes to how U.S. Government Contractors are protected from tort liability should their employees be injured, become ill or die in country while on company business. U.S. corporations should be aware of which form of workers' compensation applies to their employees should a work-related incident occur." Michal Gnatek of the Lockton Companies offers a whitepaper: After the Fire: Status of Defense Base Act in Postwar Iraq.

PEOs - In his post Surprise! PEOs Not As Bad As Thought, Dave DePaolo talks about the recent NCCI report on PEOs. Despite a few high profile bankruptcies, "...the NCCI report suggests that non-PEO employers might do better if they managed risks as well as PEOs do. / "The conventional but untested wisdom has been that PEOs are a problem," NCCI Chief Economist Harry Shuford tells WorkCompCentral. "Our analysis suggests that this is not supported by the data."

The Most Dangerous Job in the World? - How did 900 bus drivers end up dead in Guatemala City? - a riveting read about the mind-boggling dangers some workers face just to put bread on their family's table.

Risky Women - When it comes to women in the senior ranks, Lori Widemer says that the United States is lagging far behind most other countries. "The proportion of women in senior management in the United States paled by comparison to countries such as Russia, with 36% of all senior execs being women, and Thailand, which topped Grant Thornton's survey with 45% of senior managers being women." She looks at the tea leaves, and makes the case for Why Women Should Lead Risk Management in Risk Management magazine.

Call for Evangelists - Annmarie Geddes Baribeau issues a call for more work comp evangelists to convert CEOs to the cause of worker's comp. We agree - every organization's priorities are set in the corner office and if you don't have deep-rooted employer commitment to make comp a priority, it won't be.

OSHA - OSHA introduces a new campaign for fall protection in construction

First Responders - The Boston Marathon Bombings: Lessons Learned for Saving Lives - a video featuring first responders, sponsored by WBUR and Harvard in the Harvard School of Public Health's Forum series.

Pro-tip to fraudsters - If you are going to commit fraud, it's probably a good idea to avoid TV game show appearances. (hat tip to Hank at InsureBlog for the pointer.)

Brief Takes

• The cost curve is bending. Does Obamacare deserve the credit?
• 10 Things to Know About the Trucking Industry
• Homebuilders struggle to find workers
• Doctor shortage expected to grow over the next decade
• Telecommuting and Technology: Ergonomic and Worker's Comp Considerations
• After the Shooting: A Tale of Two Recoveries
• Preventing Heat-related Illness or Death of Outdoor Workers and Hot Environments - Health Effects
• Preferred Setups for Large Computer Displays and Side-by-Side Dual Display Arrangements
• Clinical guidelines for occupational lifting in pregnancy: evidence summary and provisional recommendations

The folks at Murray Bresky Consultants are just trying to scratch out a living by raising chickens - not just any chickens, but free range chickens that are "happy and healthy." Their signature breed is "fed an all-natural and all-vegetable diet that, combined with plenty of exercise, makes our birds the leanest on the market. The leisurely lifestyle eliminates the need for antibiotics to prevent diseases commonly found in chickens as a result of stress and confined living conditions. Minimally processed, without the use of preservatives or other artificial ingredients, Murray's Certified Humane Chicken is truly all chicken."

Unfortunately for the company, they secured workers comp insurance through New York Compensation Managers (NYCM), the now defunct operator of a dozen self-insurance groups in New York. NYCM claimed to offer favorable rates, strict underwriting standards and exemplary claims services. They ended up with egg on their face with their inadequate rates, suspect underwriting and rampant under-reserving of claims. In retrospect, the operation ran around like a chicken with its head cut off. By the time the problems emerged (in 2006), it was too late to shake a feather and correct the problems.

Following the SIG's failure, Murray Bresky Associates was hit with a $1.2 million assessment to make up their share of the SIG's deficit. That ain't chicken feed.

A Game of Chicken
Murray Bresky is not chickening out of a fight. Indeed, the chickens have come home to roost in the form of a lawsuit filed against NYCM and its board of trustees. The lawsuit seeks to recover the $1.2 million and then some, alleging breach of contract and breach of fiduciary duty. The case worked its way up to the NY Supreme Court, Appellate Division, where the motion by the defendents to dismiss the lawsuit was, for the most part, dismissed.

Now the defendents are walking on egg shells, facing the prospect of personal liability for the failures of the SIG. Where they once feathered their nests with the proceeds of the operation, their financial security has flown the coop. This is a legal mess perhaps best described by the late Lyndon Baines Johnson: "Boys, I may not know much, but I know chicken poop from chicken salad."

Roles and Irresponsibilities
One of the former trustees of the SIG is squawking that he was not aware that he was, in fact, a trustee. He may have signed off on a few trustee documents, he may have performed some of the functions of a trustee, but he insists that he had no memory of being appointed. He insisted that he was not a bad egg and claimed that he had no place in the pecking order. The court, however, ruled otherwise.

As the saying goes, you have to break eggs to make an omelette. Quite a few more eggs will be broken before this particular concoction is served up. Hard-boiled attorneys will parse the details to figure out who, if anyone, owes Murray Bresky Consultants and exactly how much they owe.

Pecking Orders
The courts now rule the roost. They have upheld Murray Bresky's right to sue, with the exception of some actions that are time-barred. There may well be a sunny side up in the chicken company's quest for justice. We look forward to the final resolution of this stew, the chicken scratch of a judge's signature that will put a final number on the liability of an insurance operation that flaps my wattles (ie., annoys me).

Here's a little unsolicited advice to Murray Bresky Consultants: don't count your chickens before they hatch. This one has a long way to go before the company can feather its nest with the proceeds of a complex litigation. In the meantime, their free range chickens have the run of the coop, enjoying their cage-free, stress-free lives right up to the very end. Bon appetite!

Preliminary reports for 2012 show that there were 82 firefighter fatalities, the fourth consecutive year in which fatalities were 91 or under, in contrast with the decade prior when fatalities were all in triple digits. And in one of those years, 2007, 9 firefighter deaths occurred on June 18 in a warehouse in Charleston, South Carolina.

The National Fallen Firefighters Foundation has recently released a documentary on that fire, which looks at the dramatic changes made in the operations of Charleston's Fire Department following those deaths.

It's good to hear the courage of this department at looking at and embracing the changes that needed to be made to heighten firefighter safety. Related to the idea of challenging traditional ways of doing things to improve safety, read how flashover research could change the future of firefighting tactics. A recent series of tests were conducted Spartanburg, SC to study various suppression methods for ventilating and isolating fires to prevent -- or at least delay -- flashover. The research shows that by "listening to the fires," certain traditional firefighting tactics have come under scrutiny. In addition to homes being constructed closer together, they include more plastic and chemical elements, allowing fires to spread more rapidly. On the other hand, advances in windows and doors help to create ventilation-limited fires. This may mean more water on the fire sooner and waiting to open doors or windows to enter the building until a strategy is deployed. Even the old shibboleth about not using water on smoke is coming under scrutiny.

Article author Shane Ray says:

"Experienced company officers and instructors should examine the latest research, textbooks, and NIOSH firefighter-fatality and near-miss reports. Does the fire service operate and function the way it does -- especially on single-family, detached dwellings -- because it produces the best outcomes or because of anecdotal procedures and processes from the past? Fire officers can make a difference by improving tactical decision-making and training new firefighters and upcoming fire officers to think about their actions based on the knowledge they have, not just the skills and abilities. Ask the tough questions and embrace the answers."

More resources on firefighter safety:

Everyone Goes Home

Fire Chief - Health & Safety

Health Wonkery - At Wright on Health, Brad Wright has posted the Sardonic Edition of Health Wonk Review. He takes a bit of a tongue in cheek approach to the seriousness of our usual wonkery. Harumph, harumph. Check it out.

Station Nightclub Fire Fine in Dispute - Michael and Jeffrey Derderian, owners of the Station Nightclub, are protesting a $1 million fine levied for not having workers' comp coverage. A 2003 fire at the Warwick, RI nightclub resulted in the deaths of 100 people, including four employees. They claim that they did not know they needed to cover part-time employees and are asking for a review by the state's Supreme Court. The Providence Journal reports that the Department of Labor and Training is unsympathetic - according to DLT lawyer Bernard P. Healy: "The Derderians, he says, have benefited by the almost nine-year delay in finalizing the $1.066-million penalty since interest hasn't been accruing. If the brothers had made efforts to compensate "their employees so grievously harmed," the penalty most probably would have been entirely suspended, he says."

Don't Fry Friday - May 24 - Jon Gelman tells us that workers need to be aware that skin cancer is the most common cancer and they need to take preventative action to protect themselves from the sun's rays. The EPA, CDC, FDA, National Council on Skin Cancer Prevention have declared May 24 as Don't Fry Friday and offer sun safety tips. Also see Safety Daily Advisor: Skin-Deep Training to Prevent Skin Cancer from the Sun

The future of manufacturing - Joe Paduda posts Where's manufacturing going - and why should you care? He says you should care because "manufacturing jobs drive workers comp premium." He reports on a recent talk at the NCCI Issues Conference which predicted the growth of manufacturing in the US. Related: see our December post: Insourcing: A positive trend for U.S. manufacturing and Joe's post Manufacturing's coming back.

Different perspectives - At WorkCompEdge Blog, Kory Wells posts Employers and the Work Comp Industry: Failure to Communicate?. She reports on the disconnect between the industry insiders and employers as evidenced in Zywave's 2013 P&C Workers' Compensation & Safety Survey with over 3,100 participants. Topics that are heavily covered in workers comp media and widely under discussion by work comp professionals aren't as high on employers' radar. Only 28% of employers say they are very or somewhat concerned about opioid issue and only 36% of employers report being very or somewhat concerned about comorbidity issues such as obesity and diabetes complicating recoveries. And although 42% of survey participants were very or somewhat concerned about this year's change in the experience rating formula, only 15% of employers say they know the value of their company's loss-free rating, or minimum mod. This raises the issue: are we in the industry communicating enough with employers?

Rocket Science & Workers Comp - fresh from the NCCI Issues Conference, Dave DePaolo opines on all the moving parts that keep the workers' compensation system working as well as it does in his post It's Not Rocket Science, But Close - a thoughtful and interesting look at the industry. Some commenters pushed back on his reference to a front end and a back end, and he clarified in another post, Workers' Compensation Finance 101: "The point that I was making is that there are two distinct processes involved in the worker's compensation game that are extraordinarily complex and require a good degree of coordination, forecasting and soothsaying in order to operate reasonably efficiently. / Another point that I was making is that workers' compensation is a cash flow system. By this I mean that money comes into the system through employer assessments; and money flows out of the system by benefit distribution."

Opioids - Michael Gavin at Evidence Based posts that abuse-deterrent opioids are a great solution but the wrong problem. He says, "The problem as we see it is lack of medical necessity. In most cases, it doesn't matter if the patient's opioid is abuse-deterrent or not. If it's medically unnecessary, if it's leading to loss of function, if it's leading to dependence and addiction... it needs to go away. The doctor will be better educated. The patient will get better. The cost of care will go down. Everyone wins. Abuse deterrent technology is great, but if we focus on technology over medical necessity, we will have missed the mark and the crisis will continue."

Foreshadowing ACA? - At Employee Benefit Adviser, Gillian Roberts reports on recent study released by PricewaterhouseCoopers that shows that employer health coverage actually increased from the time the health care law took effect in Massachusetts seven years ago. In Deconstructing Mass. employer health insurance increase, she notes that while this is not a true indicator of what will happen with the Affordable Care Act, industry insiders say it could point to some overall trends. She reports: "Between 1999 and 2011, PwC's report says "employer coverage in Massachusetts rose from 70.8% in 2006 to 72.1% in 2011. Nationally, during the same period, employer coverage fell from 68.2% to 58.3%." PwC's report also says that qualitative evidence, interviews with HR executives at companies in the state, show that more employees were interested in coverage. The results were of course that 98% of the state became coverage by health insurance."

Still a problem - While black lung may sound like a disease from a bygone era, that is unfortunately not the case. At Coal Tattoo, Ken Ward Jr. reports that autopsies confirm black lung at Upper Big Branch - it remains a serious concern in today's coalfields.

Other noteworthy news

• Patriots cutting of diabetic player raises serious ADA issues
• Risk Management's Gender Pay Gap
• Postal Service Releases Top Dog Attack City Rankings
• Digging Deeper into Trenching Safety
• You know how to make an entrance, what about an EXIT?
• Powered Industrial Trucks (Forklift) eTool
• Turning Off IPhone Critical to Pilots Citing Interference
• Dairy Farmers, Workers Help Each Other Survive
• Former company president faces jail, huge fines for workers' deaths
• Facebook posts prove Workers' Comp fraud

Dennis Mealy, chief actuary for NCCI, has issued his state of the line report on workers compensation. There's a lot of good news for insurers, along with a few little red flags that might well morph into big banners of bad news. Mealy's presentation will soon be available as a webinar at the NCCI site, but for the moment, let's glean the essence from his Powerpoint presentation.

There's a lot of positive news (with apologies to those who are not up to speed in insurance jargon). Premium is up by $3.3B, about 9 percent in all. The all-important combined ratio has dropped from 115 to 109 (projected). Given suppressed interest rates, 109 is still high, but it puts profitability within reach. The calendar year loss ratio has dropped from the unacceptable - 70.8 percent - to 66 percent. Pre-tax operational gains are plus 5 percent.

There is (mostly) good news in the loss area: frequency of lost-time claims is down an average of five per cent across all sectors. Indemnity claim costs are up just slightly, as are severity costs. Even in assigned risk pools - insurers of last resort - results have improved, with combined ratios down to 112 percent, compared to 117 in the two prior years.

At the same time - and directly related to the improving results - discounting of premiums has diminished from -7.6 percent to a projected level of -4.5 percent. [Perhaps even the sceptical rate setters in Massachusetts will begin to see the relationship between (slightly) higher rates and a healthy market. If they continue their intransigence on rate increases, the Massachusetts miracle will soon collapse in a heap.]

Who Pays?
In all success stories - however modest - there are winners and losers. In workers comp, the winners are employers with low losses; the losers tend to be those with relatively high losses. NCCI has upped the ante by changing the way experience mods are calculated.

Beginning in January and rolling throughout this year, NCCI is implementing a new mod calculation, raising the split point of primary losses from $5,000 to $10,000. (See Tom Lynch's detailed explanation beginning here.) For many experience rated risks, the change has been positive. Despite paying slightly higher rates in many states, the cost of insurance has remained stable or even dropped. Here is NCCI's summary of the new rating plan impact:

- 12 percent of risks see premiums decreasing by 5 to 15 percent
- 76 percent see plus or minus changes within 5 percent
- 11.3 percent see increases in the 5 to 15 percent range
- less than 1 percent see increases above 15 percent (these are the folks who have been calling...)

The Big (Cloudy?) Picture
Mealy's presentation offers a good news/bad news overview of workers comp. On the plus side, we have seen a slight increase in premiums, a reduction in frequency, stable severity and a good capital position for the industry in general.

On the negative side, the slow pace of economic recovery is troubling, as is the structural unemployment that threatens the livelihoods of aging, middle class workers. Underwriting is confronted with unprecedented instability in predicting risk: today's low loss company might well be tomorrow's catastrophe. Low interest rates impede profitability. Alternative markets - the new opt-out law in Oklahoma being a prime example - threaten to drain good risks from the market and leave higher risks in conventional coverage. Finally, it is too soon to know the impact of health care reform, though in the long run, it seems likely that virtually universal health care should reduce cost-shifting into workers comp.

Perhaps we should add the impact of global warming to the negative side. As storms increase in magnitude, the risks to those who are working when storms hit also increase exponentially.

As the Chinese curse would have it, we live in "interesting times." For the moment, from the rather narrow perspective of the workers compensation market, things look cautiously and incrementally better. But as they say in New England, if you don't like the weather, just wait a minute. It was clear and warm a few moments ago. Suddenly, the wind picks up, the wind chills and the rain comes pouring down. Like a harried underwriter, we struggle to find shelter in the unexpected storm.