October 2005 Archives

October 31, 2005


Under ordinary circumstances, any injuries that employees might suffer while traveling to and from work would not be covered by workers compensation. This is commonly referred to as the "going and coming" rule. There are several common exceptions to this rule, however, and a recent 4-3 decision by the Pennsylvania Supreme Court illustrates one of those exceptions: the company car. When an employer provides transportation to an employee, injuries occurring during a commute would usually be compensable.

In Wachs v. Workers' Compensation Appeal Board, the case involved an employee who was killed while driving to work in a company-supplied car. The car was provided to the worker as part of a compensation contract negotiated at the time that he was hired some seven years prior to his death. The worker's widow was able to secure benefits by providing evidence of this negotiated contract. There was some dissension by the court because the employee's most recent contract did not explicitly address transportation, but the widow prevailed by proving that her deceased husband's employment was contingent on his getting a company car.

Workers compensation laws vary state to state so a contractual exception may not occur in every jurisdiction, but employers should be aware that while details may vary, exceptions based on employer-provided transportation are quite common. This could include a private company car or group transportation via a company-owned vehicle, such as in the case of 14 Guatemalan migrant workers killed in Maine when the company van transporting them to work careened from a bridge into the Allagash River.

There are many other common exceptions to the going and coming rule. We recently discussed a case involving operating premises, and in that post we listed a variety of other exceptions. Here are some additional resources:

Compensability: Driving "To and From"
Extreme Commuting: Not Exactly the Sporting Life
IWIF: Going & Coming From Work: Exceptions Are the Rule

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October 27, 2005


The New York Times (registration required) has published excerpts from an internal Walmart memo, in which M. Susan Chambers, Wal-Mart's executive vice president for benefits, outlines a fascinating dual strategy of polishing the company's public image and at the same time reducing the costs of benefits to employees. Wal-Mart executives said the memo was part of an effort to rein in benefit costs, which to Wall Street's "dismay" have soared by 15 percent a year on average since 2002. The LA Times (registration required) has an interesting analysis of Walmart's dilemma here.

Who Needs Experience?
Perhaps the most startling recommendation targets longer term employees, especially those deemed "unhealthy." The memo asserts that workers with seven years' seniority earn more than workers with one year's seniority, but are no more productive. In other words, in the world of Walmart, experience and loyalty are worth absolutely nothing. It fact, less than nothing, because the experienced worker costs more. So unlike most employers, who value experience and try to retain good people, Walmart is in search of a method for turning over the workforce before more expensive benefits and wages kick in.

"It will be far easier to attract and retain a healthier work force than it will be to
change behavior in an existing one," the memo said. "These moves would also dissuade unhealthy people from coming to work at Wal-Mart."

The memo goes to observe that "the least healthy, least productive associates are more satisfied with their benefits than other segments and are interested in longer careers with Wal-Mart." In other words, Walmart's most loyal employees are the ones they want to get rid of. I would love to overhear the conversations at Walmarts across the country today during coffee breaks. Then again, they probably don't get coffee breaks.

Ms. Chambers's recommended strategy includes a reduction in benefits that older works prefer and an increase in benefits that appeal to younger employees. Thus she recommends reducing 401(k) contributions and life insurance coverage, while at the same time offering education benefits.

Ms. Chambers asserts that she made her recommendations after surveying employees about how they felt about the benefits plan. "This is not about cutting," she said. "This is about redirecting savings to another part of their benefit plans." And it is about showing older, less healthy associates the door.

Ms. Chambers acknowledged that 46 percent of the children of Wal-Mart's 1.33 million United States employees were uninsured or on Medicaid. Perhaps the new hiring policies could discourage the hiring of single parents.

Discrimination in Hiring & Termination
Now that the memo is public, I have a bit of advice for Walmart. If you really want to implement this plan, you better hire a few extra lawyers. If local managers avoid hiring "unhealthy people" and systematically terminate current employees who are in less than perfect health, you are violating federal and state employment laws.

By writing the memo and by defending it in public, the company has created an amazing opportunity for lawyers. The memo is the proverbial "smoking gun." Every termination of an employee who is perceived to be unhealthy will give rise to immediate suspicion of discrimination. Every time Walmart rejects a job applicant with obvious and perhaps not-so-obvious health issues, they are again open to claims of discrimination. The burden of proof will be on Walmart to demonstrate that they did not implement the suggestions of the soon-to-be notorious memo. Did someone say "class action suit"?

A Modest Proposal
I can feel Walmart's pain. I can understand why they would want to get rid of any "associate" with more than a few years on the job. I can understand why healthy people would be cheaper to hire and support. And I have a plan. I can guarantee Walmart a virtually unlimited supply of clean cut, physically fit, young people who know how to follow directions. And I can get rid of all the current, aging, poorly conditioned associates over night. It's simple. Walmart needs to outsource its personnel to the U.S. Army.

Think about it for a moment. You would have a superbly disciplined workforce, spirited, conservatively dressed, short hair, no body piercings, no obesity. You want a Walmart cheer, they'll give you a Walmart cheer. They are all physically fit. And they carry guns, which surely would cut down substantially on shop lifting. (You might end up with a few lawsuits, but Walmart has lawyers to handle that.) The wages and benefits are marginal at best.

In return, Walmart provides logistical support for the military. Goods will be moved on time, every time. No more embarassments like Katrina. It's a "win-win." And best of all, the transition from the current workforce to the army can be accomplished literally overnight. Just send in the troops to remove all current employees and take over the stores. It might be a bit disconcerting at first, to have an armed cashier at check out. But we'll get used to it. After all, you just can't beat those prices!

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October 26, 2005


RIMS Benchmark Survey: downturn in commercial rates
Commercial insurance renewal premiums in the third quarter were down by more than 5% from rates in the same quarter last year, although the survey notes that workers comp was the only major line to drop by less than 5%, with an average reduction of 3.75%. However, for many respondents, the effects of hurricane season hadn't yet been factored into prices.

ADA protects persons "associated with" the disabled
Diane Pfadenhauer discusses a less widely recognized provision of the Americans With Disabilities Act that extends legal protections to those individuals who are associated with a disabled person.

October is Disability Awareness Month
According to the Society for Human Resource Managers (SHRM), there are 33 million people in the United States with disabilities and the unemployment rate for this population is 44%. SHRM notes that many employers fear high costs associated with making accommodations for workers with disabilities, but 38% of employers have not had to spend any money on accommodations and an additional 17% have spent less than $500.

For a whole different outlook on disability, you may want to see a film called Murderball about a team of quadriplegic rugby players. Some time back, Larry King featured a very compelling interview with a few of the charismatic team members - what an inspiration!

Ohio: many oppose privatization of workers comp
Despite the recent investment scandals, it seems that many employers, attorneys, and unions are unified in opposition to the idea of privatizing the state workers' compensation system. Ohio is one of a diminishing number of monopolistic states. The current Bureau of Workers Compensation system was established in 1995 with a nine-member Workers' Compensation Oversight Commission. Since then, it has been credited with speeding up claims and reducing premiums by an average of more than 30%.

The Best-laid Disaster Plans Are Merely Works in Progress
Workforce features an article offering an overview of problems and issues that HR departments faced in the aftermath of the Katrina disaster. The article profiles the experiences of three large employers - Entergy, Sodexho USA, and McDonalds - and some of the creative problem-solving that was required to locate and retain workers, communicate with workers despite the collapse of the communication infrastructure, arrange payments and administer benefit programs, and assist workers and their families in resolving various psycho-social issues.

12 picks for America's Safest Companies of 2005
Occupational Hazards recognizes a dozen companies that set their own standards for safety excellence, exceeding OSHA and EPA regulations and industry norms. Safety efforts in these companies were generally characterized by high employee involvement and superior management commitment.

Insider View of the Vioxx trials in NJ
Robert Ambrogi and J. Craig Williams from Law.com's arsenal of law bloggers offer first hand accounts from inside the courtroom at the VIOXX trial underway in New Jersey.

Also. from Legal Talk Network's Workers Comp Matters:
Latex allergies in the workplace with Sandra Jutras, a career clinical nurse who developed a serious level one latex allergy; Attorney Jim Brady, and Dr. Gail Lenehan, national advocate and member of the Massachusetts Nurses Association's Congress on Occupational Health and Safety.
Medicare set-aside allocations - Jean Feldman of CHOICE Medical Management discusses the complex issue of workers compensation Medicare set-aside allocations.

Making a difference
We can all sometimes get bogged down in the status quo and wonder if it's still worth it to try to effect a change. It's good to be reminded how one person can make an enormous difference - rest in peace, Rosa Parks. The LA Times has a wonderful tribute to this remarkable woman. (free registration required)

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October 24, 2005


The Insider has tracked the impact of Walmart, the nation's largest retailer, with considerable interest. We have no idea what happens to employees who file workers compensation claims, but we would guess that the company is ferociously aggressive in applying claims management/denial techniques. As with many employers, the company's workers comp problems are compounded by the fact that more than half of their employees lack health insurance. That is about to change.

The Good News
We read in today's New York Times (registration required) that Walmart is significantly expanding the health insurance options for its workers. The good news concerning the company's new health insurance plan is its cost. This is a relatively inexpensive plan -- as low as $11 month for individual coverage, $37 for a single parent and $67 for families. Individuals could visit a doctor three times before paying a deductible, an arrangement aimed at encouraging workers to seek preventive care. In the past, workers have had to pay a deductible before their insurance kicked in.

The Squeeze
That's the good news. This being Walmart, we better look at the details. When Walmart says that monthly premiums would cost between 40 percent and 60 percent less than those for any existing Wal-Mart insurance policy, we need to find out why. The plan carries a $1000 deductible -- a big number for most people and one which represents over 5% of the annual income for many Walmart workers. In the first year, total payments under the plan are capped at $25,000, so workers had best plan their catastrophic illnesses only after they are beyond their one year anniversary. In addition, out-of-pocket payments range from $300 for prescriptions to $1,000 for hospital stays.

As with many types of insurance, this plan works best for people who don't need it. It's a good fit for workers who are young and healthy, as opposed to those who are older and more vulnerable to illness. It's one thing to have an annual check up with no follow up visits. It's quite another for an older Wal-Mart employee, who might visit a doctor three times in a one month and then need to pay $1,000 before the company would share the cost of care. The last time I wandered through a Walmart, I saw more people likely to run up against the deductible than those who would not.

Bottom Lines and Health Care
Perhaps Walmart has taken the recent spate of bad publicity to heart. Sure, their prices are low, but consumers may have begun to balk when a company hires illegal immigrants to clean their facilities and then locks them in to prevent theft, or when many company employees end up on public assistance because they lack health insurance.

The Walmart model will be closely watched from all sides. Wall Street and Wal-Mart investors will scrutinize the bottom line, tracking the impact of the new benefits on Walmart's profitability. There are a number of analysts hoping that the Walmart plan will prove a useful model to others in controlling spiralling health costs. On the other hand, consumer and worker advocates will focus on the impact of the premiums and the deductibles on the quality of health care available to workers. We are a long way from resolving this problem, but it is encouraging to see Walmart step into the health care arena. Whether it's a step in the right direction remains to be seen.

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October 20, 2005


Bill Swanson, CEO of Raytheon, has become famous for his leadership at the company. In an article published in US Black Engineer and available as a PDF at Raytheon's website, Swanson receives high praise for his support of minority engineers. The article also presents his "25 Unwritten Rules of Management." Not to quibble, but if I can read the rules in this article, what exactly makes them unwritten? You can even request a written copy of the unwritten rules from Raytheon, but be advised that they are currently out of stock.

As part of the Insider's ongoing commitment to keep our readers informed of the latest trends in management philosophy, we are presenting an abbreviated version of Mr. Swanson's 25 rules, with a little annotation, of course.

Excerpts from Bill Swanson's Twenty Five Unwritten Rules of Management:

1. Learn to say, "I don't know." If used when appropriate, it will be often.
Ah yes, but if used too often, you will be out of a job.

2. It is easier to get into something than it is to get out of it.
And if you never get into anything, you are likely to be out of a job.

3. If you are not criticized, you may not be doing much.
And if you are criticized, you may be screwing up.

6. Work for a boss with whom you are comfortable telling it like it is. Remember that you can't pick your relatives, but you can pick your boss.
Easily said by the CEO, but most of us get stuck from time to time with bosses who won't listen. As for relatives, if they don't behave, fire them. They can always reapply for the job.

12. Don't be timid; speak up. Express yourself, and promote your ideas.
Unless, of course, you have a boss as in #6. In which case you'd best keep your mouth shut.

13. Practice shows that those who speak the most knowingly and confidently often end up with the assignment to get it done.
Is this akin to volunteering in the army (never do it!)? Is Swanson encouraging speaking up or shutting up?

14. Strive for brevity and clarity in oral and written reports.
How about: "Be brief, be clear?" And while you are at it, could you perhaps reduce your 25 rules to 10?

15. Be extremely careful of the accuracy of your statements.
If I am too careful, I might not say anything.

16. Don't overlook the fact that you are working for a boss. Keep him or her informed. Avoid surprises! Whatever the boss wants takes top priority.
Easily said by the CEO! And what are we to do with the boss as in #6?

18. Never direct a complaint to the top. A serious offense is to "cc" a person's boss.
By my calculation, this means that Swanson never hears any complaints, as he is the boss of the bosses. Works for him, I'm sure.

21. Don't get excited in engineering emergencies. Keep your feet on the ground.
All depends on which wires you have in your hands!

22. Cultivate the habit of making quick, clean-cut decisions.
Unless, of course, they are the wrong decisions. Then see # 1 & 2 above.

23. When making decisions, the pros are much easier to deal with than the cons. Your boss wants to see the cons also.
Unless, of course, your boss is a con, in which case see #6.

24. Don't ever lose your sense of humor.
With all due respect, there is absolutely nothing funny in these 25 rules.

25. Have fun at what you do. It will reflect in your work. No one likes a grump except another grump.
I'm not sure a grump likes another grump, but other than that, I agree.

Swanson's subordinates are in the best position to determine whether these unwritten rules embody what it's like to work for him. I sincerely hope he walks the talk. Surely, there are some genuine nuggets of wisdom in the complete list, but as with any wisdom, careful scrutiny is in order. You have to judge for yourself.

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October 19, 2005


On Monday, California's 2nd District Court of Appeal upheld the rights of undocumented workers who are injured at work to receive workers compensation benefits in its ruling in Farmers Brothers Coffee vs. Workers' Compensation Appeals Board. A three-judge panel ruled unanimously, stating, "California law has expressly declared immigration status irrelevant to the issue of liability to pay compensation to an injured worker." This ruling was issued despite the fact that the worker in question had a fraudulent Social Security card. See Roberto Ceniceros' story in Business Insurance for insight on the issue of fraud in this case.

We've beaten this drum several times before, but one more time for the record: we fully endorse this ruling. We note with interest how this story is being reported by some of the "dead-tree" media. Newsday, Business Week, and the Washington Post all have headlines that read "Calif. Ruling Expands Workers' Comp," a phrase that is not only inaccurate, it demonstrates a fundamental lack of knowledge of workers compensation. Including immigrant workers in workers comp does not expand coverage - in most states, this is a protection afforded to all workers already, and in legal challenges, courts almost always uphold the rights of the undocumented workers. To deny them such protection would be exclusionary. It would also open employers up to civil suits and weaken the protection afforded by exclusive remedy. Not to mention the incentive it would provide unscrupulous employers to hire even more undocumented workers, and to assign them the most dangerous jobs.

Answered prayers
One quote that I am fond of citing is attributed to Saint Theresa: "There are more tears shed over answered prayers than over unanswered prayers." A few years ago, employers in the state of Virginia had an "answered prayers" moment when the Virginia's Supreme Court ruled to exclude illegal immigrants from the protections of workers comp. Almost before the ink could dry on the ruling, the onslaught of litigation had employers clamoring to amend state law to explicitly include aliens, both legal and illegal. But not satisfied to learn from this experience, some knee-jerk Virginia lawmakers jumped on the politically charged illegal immigration bandwagon this past February, once again trying to restrict access to workers comp protections. The bill passed the House of Delegates but was defeated in the Senate (free registration may be required to access these last two articles).

With the sentiment against illegal immigrants reaching a near-fevered pitch - witness the vigilante movements at our borders - we doubt this will be the last post we make on this topic.

For more on the topic:
Wyoming court to examine compensability for illegal immigrants
Janitors: The Big Squeeze
S. Carolina to bar workers comp for undocumented immigrants?
Modern day slavery
More on immigrant workers
Jobs that lure Mexican workers to the U.S. are killing them

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October 18, 2005


The Insider has written with some frequency about older workers. With a majority of the workforce now over 40, employers and risk managers face a new set of challenges in keeping older workers healthy and productive. One recent post notes the increase in the incidence of rotator cuff injuries among older workers. We also have blogged the financial necessity that leads people to work longer. They might want to retire, but they are simply unable to do so.

One reader responded to our most recent blog on older workers by questioning whether the Insider has a bias. With all our dire warnings about risks of injury increasing with age, are we signaling to management to avoid older workers? Are we encouraging discriminatory practices?

As one who meets any known definition of older worker, I can state personally that we have no interest -- and would not support -- any movement to discriminate against older workers. The Insider's job is to keep track of the data and alert our readers to any significant trends in risk and loss management, whether they involve a 16 year old summer hire or a 75 year old driver. We are not focused on age per se, but on risk. If certain risks increase with age, management needs to be aware of it and take appropriate steps to ameliorate the risk.

Carpal Tunnel Syndrome
The National Council on Compensation Insurance (NCCI) has published an interesting study (PDF) of carpal tunnel claims in the workers compensation system. Carpal Tunnel Syndrome (CTS) ranks second behind back injuries as the leading lost-time diagnosis. In terms of the total costs of all claims, CTS also ranks second. Here's the kicker: compared with back strain cases, CTS claimants are more likely to be higher paid...and more likely to be older. In addition, the severity of the claim tends to rise with age.

So here we go again: The Insider is alerting management that older workers are more likely to get CTS (not a surprise, really, as CTS involves trauma that accumulates over time). And we are reminding managers that the older the worker, the more expensive the claim. Before we draw any conclusions, let's look a little closer at the data.

Among all claims tracked by NCCI between 1996 and 2000, CTS ranks second behind lumbar disc displacement in terms of total loss costs, with just under $1 billion incurred for CTS claims 18 months after the injury. Lumbar disc problems resulted in $1.4 billion incurred at the same point in time. Here are some additional details in the comparison of CTS to lumbar strains:
: CTS cases are more likely to result in lost-time claims
: Women suffer relatively more CTS injuries, while men incur more back injuries
: Workers suffering CTS injuries are more likely to be higher paid than workers incurring back injuries.
: Compared with back strain cases, CTS claimants tend to be older (over 35)

[We need to note that NCCI defines "older" as 35 and up, which is certainly one of the more generous definitions we have seen. For most purposes, including most age discrimination laws, older work begins at 40.]

The average total incurred cost at 18 months for CTS was $12,181, compared to $29,701 for lumbar disc displacement. However, CTS accounted for 1.8 per cent of total claims, while lumbar disc comprised only 1 per cent. In other words, the severity of CTS was lower, but the frequency higher. It's worth noting that rotator cuff sprains (another big risk as you get older -- see our blog here) ranked fourth in total incurred and averaged $21,907 per claim. Once again, injuries with age-related risk factors are among the most expensive.

Responding to the Data
NCCI's conclusion is rather blandly worded: "As the workforce ages over the coming decades, these findings suggest that insurance companies and employers need to carefully monitor some of the financial and demographic characteristics of CTS injuries."

This wording is a bit too circumspect for the Insider. An aging workforce presents serious problems and requires concerted action. As workers get older, managers need to focus safety and prevention programs on age-related risks. Cross-train people to the degree possible, rotating them through jobs that call upon different body mechanics. If people must do the same task every day, all day, bring in a wellness expert to teach stretching and conditioning.

The solution to age-related risk is surely not discrimination. Let's face it, given the experience of your aging workers, they are a far greater asset and less of a risk than hiring young, inexperienced strangers, assuming you could even find them. Savvy employers make the commitment to keeping all workers safe, healthy and productive, regardless of age. That's where risk management begins and where it rightly ends.

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October 17, 2005


Have you checked out the Cool Tools in our sidebar lately? We periodically add insurance and business calcuators, glossaries, and other reference material and tools that we find in our travels. Here are a few recent finds we'll be adding:

Glossary of Reinsurance Terms

Manitoba Centre for Health Policy's Concept Dictionary

Complete Glossary of Health Insurance Terminology

Health & Safety Glossary

Trench Safety Glossary

Excavation Safety Glossary

MSDS Hyper Glossary

Bureau of Labor Statistics Glossary

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October 14, 2005


Addition to the blogroll. We welcome the Brooklyn Dodger to our growing list of resources in the sidebar. Brooklyn Dodger comments on research in occupational and public health and current events in politics related to public health, occupational health, and the environment. The blog reports on studies and articles from Journals that may not be readily available. Here's a sampling of recent posts:
Increased Colorectal Cancer Observed Among Asbestos Exposed Workers
Association of Risk Factors for Breast Cancer with Types of Work
Workplace violence in Health Care Settings

Gulf recovery workers. Jordan Barab has been covering the health risks posed to Gulf recovery workers in the aftermath of the recent hurricanes and some legislative efforts to ensure worker safeguards. And rawblogXpoat points us to this article on the exploitation of immigrant workers who are subject to harsh living and working conditions, and facing serious risks with little in the way of safety precautions or protective equipment.

Managed care. Joe Paduda discusses "the wild world of workers comp managed care," offering informed commentary on the competitive arena, with a rundown of the key industry players in terms of networks and service providers.

Pay for Performance. DB's Medical Rants has an excellent post on medical pay for performance that reports on some initial studies. Initial data analysis would seem to indicate that "Paying clinicians to reach a common, fixed performance target may produce little gain in quality for the money spent and will largely reward those with higher performance at baseline."

More on genetic testing. We've been discussing this issue over the last few days, and we note that Workplace Fairness has more discussion on genetic testing in its October 11th post.

FMLA mistakes. Strategic HR Lawyer points to common mistakes that employers make in connection with the Family & Medical Leave Act.

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October 12, 2005


Yesterday's blog concerning genetic testing has prompted some thoughtful responses from our readers. It has also led to further research into the current and rather compelling story of Eddie Curry, a highly touted young center for the Chicago Bulls. Curry missed the last 13 games of the season and the playoffs due to a heart problem. The Bulls wanted him to submit to a genetic test, to determine whether he's susceptible to cardiomyopathy, the ailment that killed former Boston Celtics guard Reggie Lewis and Loyola Marymount star Hank Gathers. Curry, citing his right to privacy, refused. He was subsequently traded to the New York Knicks, who say they have no intention of requiring the genetic test "because of New York's privacy and employment laws." Instead, the Knicks will rely on their team doctors.

John Hollinger at ESPN Insider was at the Knick's press conference: "Isiah Thomas, [the Knicks general manager] must have said 'I have tremendous confidence in our medical team' about 12 times in a 20-minute [period]."

Wow. This is a loaded and truly fascinating situation. Were the Bulls being prudent in requiring the DNA test, or were they violating the ADA? Were they concerned for Curry's well being or the team's bottom line? Are the Knicks and their team doctors opening themselves to lawsuits (from Curry's family, no less) for allowing him to play without knowing the details of his condition? Is the life of a 22 year old worth the risk, if he can pull down the boards and put up some points?

Hollinger has a rather scathing analysis of the risks the Knicks are taking: not the health risks per se, but the impact on the team's future performance. He's not impressed with their risk management skills.

The Death of Reggie Lewis
This situation brings to mind the saga of Reggie Lewis, the former Boston Celtics captain whose death from a heart ailment in 1993 is still wending its way through the courts. (A thorough and lucid summary of the story can be found here.) Lewis passed out briefly during a playoff game. He was sent to New England Baptist hospital where he underwent a number of tests supervised by a team of 12 of the most respected cardiologists in the Boston area. This team was called "The Dream Team" based on a similar phrase to describe the superior talent of the gold medal winning USA basketball of 1992. After thorough testing, the Dream Team diagnosed Lewis to be suffering from ventricular tachycardia, the most dangerous form of arrhythmia. The cause of this was believed to be focal cardiomyopathy, a disease of heart muscle. Of the various forms of arrhythmia, some are harmless and others are potentially life-threatening, such as this diagnosed one. Dr. Stanley Lewis, director of clinical cardiology at New England Deaconess Hospital and member of the Dream Team, said, "When you talk about arrhythmia's that result in loss of consciousness' you're dealing with a deadly arrhythmia."

Lewis found the dream team's diagnosis -- and its resulting immediate end of his basketball career -- to be a nightmare, so he sought a second opinion. He consulted with Gilbert Mudge, a well known cardiologist who ran his own tests and declared that Lewis was not suffering from any sort of cardiomyopathy but merely from a curable neurocardiogenic fainting disorder.

Approximately two months after receiving Mudge's favorable diagnosis, Reggie Lewis collapsed and died shooting baskets at a Boston gym. An autopsy revealed that his heart was abnormal, enlarged and extensively scarred. The state medical examiner was vague about the description of the scarring and the how it was likely caused.

Hidden Truth
Overarching this entire sad saga is the distinct possibility that Lewis abused cocaine. If this is true (his widow denies it vehemently), his failure to disclose the drug use directly impacted Mudge's findings and those of the dream team as well. The author of this study finds plenty of blame to distribute among the blazing egos of the dream team docs, Gilbert Mudge and Reggie Lewis himself.

It is a cautionary tale, but the lessons are probably beyond the reach of the ambitious New York Knicks and their new center. In the best of worlds, people would look at all the available information and make informed judgments concerning Eddie Curry's future. The world of professional sport is far from ideal -- there is simply too much at stake. So here's wishing Mr. Curry the best of luck as he throws up his jump shots and fights for his rebounds. Every time he loses his balance and falls to the floor, we'll all just hold our collective breaths -- to see if he is able to get up off the floor and go on with the game.

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October 11, 2005


In yesterday's New York Times (the free section, registration required), we learn that IBM has a Chief Privacy Officer, which tells you something about the current state of affairs in corporate America. We also learn that IBM has issued a policy asserting that it will not use genetic information in hiring or in determining eligibility for health care and other benefits (including, I assume, disability and life insurance policies).

Before you offer a standing ovation to the CPO, remember that IBM has a vested interest in keeping genetic information off the table: as an information technology company with a increasing presence in the medical industry, IBM has a business stake in promoting genetic data gathering and processing.

There are quite a few employers who would be sorely tempted to use genetic information when evaluating job applicants or current employees. Employers who are self-insured for health care would love to screen out people with family histories of expensive illnesses. The EEOC has issued guidelines for federal employees on the use of genetic data, with congress contemplating related legislation to limit the misuse of this information among employers. But questionable use of genetic information can also flow the other way: individuals who learn that they have a genetic predisposition for a disabling illness have a strong incentive to load up on disability policies -- and in doing so, they can be reasonably confident that no insurance carrier can access this information for underwriting purposes!

You might assume that genetic information would have no bearing on workers comp. Think again.

Back in 2002 the Burlington Northern and Santa Fe Railroad was fined $2.2 million by the Equal Employment Opportunity Commission for genetically testing (without permission) 36 employees who had filed carpal tunnel claims. The railroad was apparently trying to determine if the employees had a genetic predisposition for the malady -- and therefore might be ineligible for comp benefits. In agreeing to settle the case, the railroad denied that it violated disability laws (specifically, the ADA), but vowed not to use genetic tests in future medical examinations.

In this particular situation, ethical issues aside, I think the railroad was pumping the side car down a dead-end spur. Even if the tests had proven positive, with some of the employees having a genetic predisposition for developing carpal tunnel, the railroad would still have to pay the claims. It would be impossible for the employer to demonstrate that the repetitive demands of railroad work had nothing whatsoever to do with the eventual malady.

Personnel Practices
In comp we say that you have to take people as they come to you. Virtually all applicants walking through the door have issues that might eventually put them on your workers comp loss runs. Prudent employers will carefully define the essential requirements of each job, specifying exactly what people must do and how they must do it. Employers can ask questions to verify the applicant's experience and ability to perform these essential job functions. They can study prior job histories and references for patterns or problems. Once someone is hired, the employer can and should carefully supervise the work as it is being performed. Best practices focus on behavior and performance, leaving what's hidden in the genes appropriately beyond the scope of the employer-employee relationship. Let's hope that most employers can stay on the ethical track without requiring the services (or expense) of a Chief Privacy Officer.

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October 10, 2005


Want to have an impact on the future of occupational medicine? Do you purchase (or influence the purchase) of occupational medicine services for your organization? Do you manage relationships with medical service providers for your company? If so, the American College of Occupational & Environmental Medicine (ACOEM) invites your opinion via an online survey. Click here to take the survey.

The purpose of the survey is to assist the American College of Occupational and Environmental medicine (ACOEM) in learning more about the current practices, priorities, and point of view of those who pay for and use occupational medical services. In particular, ACOEM wants to learn how company managers and executives in organizations are currently viewing a few major issues in organizational and occupational health. ACOEM also wants to hear what companies look for when choosing physicians to provide either hands-on or consulting medical services for their workers compensation and disability programs.

The survey is being conducted by Crescendo Consulting Group, a national research and consulting firm based in Portland, ME. Results will go directly to Crescendo Consulting Group to preserve anonymity.

The survey should take less than 15 minutes of your time, and individual responses will be confidential. In exchange for participation, ACOEM will provide an executive summary of results to any participants who supply contact information.

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October 7, 2005


Thanks to all those of you who have taken our reader survey - the survey is still active if you'd like to take it, but we thought we would report on results to date.

So far, we've learned that 63% of the survey respondants visit daily or several times a week; 84% rated the blog as excellent or good; 61% work in the insurance industry; 27% of respondants are clients or friends of Lynch Ryan while 73% have no connection; respondants come from 20 states, as well as Canada, Australia, and Egypt.

Areas of interest:
-Claims management 80%
-Legal issues 80%
-Medical issues 65%
-Online tools, links, resources 61%
-Safety & prevention 59%
-Employer loss reduction tips 55%
-Injured worker info 51%
-Human resource issues 47%

How respondants self identified:
-Employer/manager 22%
-Insurer or TPA 10%
-Regulator 10%
-Law 10%
-Agent/broker 8%
-Health & Safety practioner 8%
-Educator/librarian/trainer 5%
-Consultant 5%
-Employee/injured worker 4%
-Case manager 4%
-Media 4%
-Risk manager 4%
-Financial industry 4%
-Union 2%

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October 6, 2005


This week is Fallen Firefighter Memorial Weekend, a time to salute the brave people who sacrificed their lives to make the world a safer place for you and me. Firefighters are out there on the front lines every day, risking injury and death. According to the Centers for Disease Control, more than 100 firefighters die at work each year. At this time of year, my thoughts turn to six hometown firefighters who died in the line of duty some half-dozen years ago.

So given that this weekend is a time set aside to recognize these fallen heroes, it seemed fitting when I got a note in my mailbox from the Public Entity Risk Institute (PERI) about a free online symposium entitled Fire Department Integrated Risk Analysis and Management that is scheduled for November 7 to 11. The program brings together authors and experts from the U.S. and U.K. to discuss an integrated risk management approach to injury prevention. According to PERI: "Each day during the program, PERI will email participants specially commissioned "Issues and Ideas Papers" that discuss aspects of the integrated risk management approach. Participants can read the papers at their convenience, and also make copies to distribute to colleagues. All enrollees can participate in an online discussion in the Symposium Center, exchanging ideas, posting comments, and asking questions about the issues and solutions presented in the papers.

What better tribute could be offered to those who previously gave their lives than to learn more about how to make work safer for all the men and women who are at risk on the job every day? Learn more, or enroll for the seminar: Fire Department Integrated Risk Analysis and Management.

October 5, 2005


Medical inflation - B. Janell Grenier at BenefitsBlog links to and comments on the 2006 Towers Perrin Health Care Cost Survey. One excerpt: "Employees are paying 64% more in health care costs today than they spent five years ago. Employers, meanwhile, are paying 78% more in health care costs today than five years ago."

OSHA - thanks to Mike, one of our readers, who mailed us an interesting link to The Memory Hole which has posted OSHA data on companies with the highest levels of work-related injuries and illnesses. Background info: The Department of Labor's Occupational Safety and Health Administration (OSHA) has for several years tracked lost work day injury and illness (LWDII) rates at about 80,000 worksites in selected high-hazard industries across the country. OSHA kept secret its LWDII database, claiming that the data are confidential. Reporter David Barstow of the New York Times, seeking the names and rates of the most injury- and illness-prone worksites, requested the data under the Freedom of Information Act in October 2002. His request was rejected, and when his appeal was also turned down, he sued for the release of the data in mid-2003. As a preemptive move, in February 2004 OSHA released a list of the workplaces with the highest rates, but the list didn't contain the rates themselves. That list can be found on The Memory Hole here.

Work safety - if you are interested in workplace safety, Confined Space should be on your reading list. Here's a sampling of a few recent items:
Pandemic Flu Awareness Week
W.R. Grace and the asbestos-containing vermiculite exposure at several sites
Worker fatalities that OSHA ignores
New Jersey invites worker participation in chemical plant inspections

George's Employment Blawg. Congratulations to George, Michael, and Catherine on a spiffy new look and a new site address. This is one of our favorite reads - always a good quality of information to be found.

Management - Rita Schwab of MSSPNexus offers 10 Easy Ways to Know You're Not a Leader. If you identify with that post and want to turn over a new leaf, start with her post on Developing Effective Communication Skills.

Case law - Judge Vonada's Pennyslvania Workers' Compensation Journal deals with recent court rulings. The Sept 12 post deals with a case where an employee suspension was reversed due to the employer's failure to file a Notice Of Ability To Return To Work prior the suspension. The September 3rd post deals with the case of a volunteer who was denied workers comp when he was injured while performing community service.

Health Law - via HealthLawProf Blog, an overview of the Supreme Court's Health Law Docket, 2005 Term.

Agent domino effect - Bob Sargent of the Specialty Insurance Blog discusses the so-called agent domino effect in relation to insurance agents and their state-to-state regulatory requirements. "The failure to report an insurance regulatory violation by an insurance agent or broker ("producer") can lead to violations in other states.

Disintermediation out, personalized service in - Anita Campbell posts on a trend that should offer some welcome news to independent agents and consultants: anti-disinternediation. For some time, it was thought the Web might empower consumers, rendering many intermediaries superfluous. Anita discusses how this concept has played out over time. While it may be true for commodity types of products and services, it has not proven true for more complex services - indeed, there may be an increasing trend to personalized service.

Salary planning - Diane Pfadenhauer of Strategic HR Lawyer reminds us that it is the time of the year when many companies should be planning for 2006 salary increases. Raises are likely to fall in the 3.5 to 3.8% range, with variable compensation increasing to about 11.4% of payroll, up from 9.5% in 2004.

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October 4, 2005


Garrison Keilor, host of the Prairie Home Companion on Public Radio, recently responded to the debate over teaching evolution in high school by stating that he has seen little evidence of evolution or of intelligent design in the way the affairs of this country are being managed. Which brings us to the convergence of two obliquely related items: the aftermath of hurricanes Katrina and Rita and the pending decision on the renewal of the federal Terrorism Risk Insurance Act (TRIA). (See our previous blogs here and here.)

Our colleague Peter Rousmaniere addresses TRIA's revewal in the current edition of Risk and Insurance. He points out that the issue is not simply a matter extending TRIA. You'll find some people favoring extension, while others are ready for the private market to take over. Peter says this debate misses the point: neither option addresses the magnitude of the risks confronting us. Currently, we lack a viable model for addressing the impact of catastrophes -- whether manmade or the acts of terrorists -- on our country.

If Katrina and the subsequent evacuation of Houston taught us anything, it's that we are woefully incapable of emptying out major urban centers even with a few day's notice. When I saw the long lines of unmoving cars stalled out on the freeways heading out of the city, two things come to mind: "Pack up the BMW and head north" is not an adequate evacuation plan. And a lot of urban Americans don't even own cars in which to sit, unmoving, alongside thousands of their fellow citizens.

Enhancing TRIA
Rousmaniere asks us to consider three critical factors in the TRIA renewal debate:

First, TRIA must hold insurers accountable for their actions. By categorically reinsuring every carrier at a certain level of loss, the Act eliminates incentives for prudent planning and risk mitigation. The incompetent carrier and the carrier which invests in detailed planning are treated the same.

Second, the Act does not address coverage. As a corollary to number one, the Act does not require insurers to take on potential "hot spots" in terrorist attacks. There are high profile "trophy" targets across the country, which somehow must be insured.

Third, TRIA is silent on the issue of risk management. The Act does not require insurers to undertake any prevention or mitigation investments. It's worth mentioning, of course, that carriers oppose any such requirements. It seems that everyone is content to sit back and see what happens. If disaster strikes, we'll load up the Beamer and head out, right?

"Intelligent Design"
If you are curious about the process for really understanding potential catastrophes and the response options, I highly recommend a study done by the Wharton Business School entitled "Tria and Beyond." You won't find a lot of answers here, just a lot of very intelligent questions and a nicely framed discussion. You might even call it "intelligent design" -- something we could use a lot more of as we contemplate the unnerving possibilities of the road ahead.

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October 3, 2005


When you think of ballet, workers compensation is probably not what first comes to mind. A ballerina spins across the stage with breathtaking grace, her male partner leaps across the stage in a grand jete, seeming to float in the air. Sitting in the audience, you don't spend much time thinking about the pain in the dancers's feet, the strain on their muscles, the possible stress fractures in their legs. My two dancing daughters remind me that ballet is more physically and mentally demanding than football. According to a 1975 study by Dr. James Nicholas in The Journal of Sports Medicine, it even ranks above bullfighting. Ballet is not for sissies.

Workers comp has become a major issue for many ballet companies. The Diablo Ballet in California has seen its workers' compensation rates rise more than 300 percent in the past four years to where it pays nearly $100,000 annually. The Oakland ballet saw its comp costs rise from $80,000 to $140,000 per year. These are very tough numbers for non-profit organizations that depend upon revenues from public performances.

It's not difficult to see why comp costs are so high. Dancing is high risk. When injured, a dancer is "out of work" and unable to perform. There is no "light duty" per se -- you can either dance your role or you cannot. All of this leads to significant comp costs: extended periods of indemnity payments plus substantial medical bills. And as with any business, on rare occasions dance companies can be defrauded by employees who try to take advantage of the system.

Managing Risk in Dance
So how can you manage this problem? The New York City Ballet has tackled the comp problem head on. From 2000 to 2003, the number of major workers' compensation claims made by City Ballet dancers fell 24 percent, to 29, and the weeks of disability logged by company dancers fell 46 percent, to 231. Since implementing an exemplary wellness program, costs have gone down dramatically. In 2001, the company spent $8 per $100 of payroll on comp premiums for dancers. In 2004, it cut the expense in half to about $4, a decrease attributable to fewer claims and less severity in the claims.

Erika Kinetz, who covers dance for the New York Times, details how the New York City Ballet has been able to focus on prevention among its dancers. The Company's' Wellness Team ran a weekend workshop for dancers at Lincoln Center in New York City, sharing the lessons of their efforts to reduce workers comp and improve dancer health. Their premise -- a compelling one -- is that when your jobs are inherently high risk, as dancing is, you must focus on prevention. Once a dancer is injured, there is not much you can do to control your costs.

Wellness and Dance
Most of us assume that dancers are all in great physical shape. In fact, they are usually in an extreme and quite particular kind of shape. They spend much of their lives with their legs rotated outward, their feet pointing in opposite directions ("turned out"). Women stand on the tips of their toes for hours (needless to add, toes are not designed to bear the full weight of the body). While beautiful when seen at a distance, these are not natural body postions. The dancer smiles, but sometimes beneath the smile a grimace of pain is hidden. Although flexible in ways the rest of us can only dream about, dancers tend to have little cardiovascular stamina, chronically understretched quadriceps and weak upper bodies. Therein lies their risk of injury.

The wellness workshop teaches dancers that simply attending dance class after dance class is not the equivalent of a well balanced approach to physical conditioning. Dr. Linda Hamilton, a former dancer who now provides counseling for dancers, cautions that dancers are trained to be stoic: "We can dance with sprained ankles. We can dance when we are breaking up with our boyfriends. We can dance when we are starving." She teaches dancers to be aware of pain, because pain is bad. The workshop emphasizes the importance of a healthy diet, stress management and cross-training - for example, doing Pilates and swimming in addition to dance classes.

Lessons for the Rest of Us
Fortunately, few jobs require the training, discipline and conditioning of classical ballet. If our jobs had such requirements, most of us would be out of work. But there is in the NYC Ballet's approach to risk management a lesson for all of us. We need to look beyond the work that is performed and keep our eyes on our workers. All jobs have inherent risks. When workers are well conditioned and alert, when they are able to manage the on- and off-the-job stresses in their lives, when they eat well and get adequate rest, and when they are passionate about that they are doing, they are more likely to perform the job well and far less likely to be injured. We may not be asked to perform arabesques and grand jetes in our daily routines, but a sound conditioning program enhances our ability to do any job more proficiently and with less risk of injury. As a result, it is clearly in the self-interest of employers to support wellness programs and build them into their core operations.

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