November 2005 Archives

November 29, 2005


The Insider has long puzzled over the way controversial drugs become industry favorites in the workers comp system. In a previous blog, we described the fancy dinners sponsored by drug companies, where doctors listened to a colleague describe symptoms and the presumed prescription cure. At that point, it appeared that the path to the doctor's brain (where prescriptions are determined) was through the stomach. A recent article by Stephanie Saul in the New York Times (subscription required) suggests that the path might actually run a bit lower in the doctor's body.

"Give me an O!"
You probably don't connect drug sales with cheerleading. But that's because you assume that doctors operate to a higher standard than the usual "sex sells." Medicine is still a largely male profession - and sex really does sell. Ms. Saul points out that sales reps for the pharmaceutical companies are frequently female and invariably good looking. Less recognized is the fact that a good many are recruited from the ranks of college cheerleaders.

"They don't ask what the major is," says T. Lynn Williamson, a cheerleading advisor at the University of Kentucky. Proven cheerleading skills suffice. "Exaggerated motions, exaggerated smiles, exaggerated enthusiasm - they learn those things, and they can get people to do what they want." What a terrifying thought: that hyper-cuteness can directly influence a doctor's choice of medication!

Some industry critics view wholesomely sexy drug representatives as a variation on the seductive inducements like dinners, golf outings and speaking fees that pharmaceutical companies have dangled to sway doctors to their brands

There are about 90,000 drug representatives across the country. Among these, cheerleaders stand out. Ms. Saul quotes Jamie Reidy, a drug representative who was fired by Eli Lilly this year after writing a book lampooning the industry, "Hard Sell: The Evolution of a Viagra Salesman."

In an interview, Mr. Reidy remembered a sales call with the "all-time most attractive, coolest woman in the history of drug repdom." At first, he said, the doctor "gave ten reasons not to use one of our drugs." But, Mr. Reidy added: "She gave a little hair toss and a tug on his sleeve and said, 'Come on, doctor, I need the scrips.' He said, 'O.K., how do I dose that thing?'" How do you dose it, indeed!

Controlling Costs
So it appears the answer to the question of how oxycontin and Vioxx rose to the top of prescribed medications in the workers comp system may be simpler - and more troubling - than we suspected. It's just a matter of waving the pom poms!

Just how far does the inappropriate influence go? There is a federal lawsuit pending against Novartis involving a saleswoman encouraged to exploit a personal relationship (AKA, engage in sex) with a doctor to increase her sales. Novartis denies the charges. A doctor in Washington pleaded guilty to assault last year and gave up his license after forcibly kissing a saleswoman on the lips.

So here is the anatomy lesson for the day: the road to prescription choice runs at least at times through the stomachs and lower regions of the doctors who prescribe them. Any strategy for controlling the costs of prescription drugs in the comp system needs to take that cynical lesson into account.

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November 28, 2005


Health insurance: mandatory in Massachusetts?
"Under two major proposals that aim to cover the estimated half million uninsured in Massachusetts, the state would require all residents who can afford it to purchase some type of individual plan or face penalties, such as losing their driver's licenses.
Massachusetts joins a growing number of states grappling with how to expand coverage at a time when employers are pulling back benefits.
But its call for an "individual mandate" is among the most ambitious - and controversial - healthcare reform plans in the country. If passed, its impact could be far-reaching, experts say."

Drucker Knew Best
"It would be easy to simply view Drucker�s contributions through the well-known executives he influenced, but that would miss the point. His real contribution to management--workforce management--is through the critical insights, observations and guidance he provided to generations of middle managers everywhere. As The New York Times noted, "Mr. Drucker staunchly defended the need for businesses to be profitable, but he preached that employees were a resource, not a cost. His constant focus on the human impact of management decisions did not always appeal to executives, but they could not help noticing how it helped him to foresee many major trends in business and politics."
See also: The Business World According to Peter F. Drucker

At Work is a weblog by Brent Hunsberger, a workplace reporter of The Oregonian. Hunsberger began his blog in September, and has been covering a wide range of employment and workplace issues - from Oregon job trends to blog coverage of the recent Wal-Mart memo. It's well worth checking out - it would be great to see more workplace reporters starting blogs!

Safety Photo
This British site posts photos of work hazards, poor working procedures, and near misses in the workplace as a visual aid to supplement safety training. "This site has little in entertainment value. The content of this site is not to name or shame or to be funny; it is for anyone who has an interest in occupational health and safety and some of the hazards people at work encounter."

Attacking Ladder Falls - One Rung at a Time
"The direct compensation and medical treatments associated with falls from elevation cost American businesses $4.6 billion, according to Liberty Mutual's 2005 Workplace Safety Index."

ASC: Safety at Frito-Lay Inc.: More Addictive than Potato Chips
"A corporate philosophy of prevention, rather than post-accident intervention, manifests itself in the company's focus on ergonomics and driver safety."

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November 23, 2005


As many of us prepare to sit down to a turkey dinner, my thoughts turn toward the 30 million birds we will eat and the people who raise them. If you assume that a turkey's life is not one of pure pleasure, you're right. According to the largest turkey farmer in Michigan, the birds are incapable of participating in their own reproduction: all insemination is artificial, because the birds's large breasts render them incapable of doing what needs to be done. Too bad for the turkeys.

Here is another tidbit from the Kauffman Turkey Farm website:

Q. Is it true that turkeys grow so fast they collapse under their own weight?

A. Not in my experience. Last year we raised some of our toms to dress at 40+ pounds and we walked them up to the plant.

As for what happens to them in the plant, well, if you're a turkey, you really don't want to know.

Raising turkeys
There are a lot of safety issues for people engaged in the work of raising turkeys. The larger the farm, the greater the hazards. The International Labor Organization has outlined an extensive list of hazards and safety issues, which include the following:

Poultry Farm Workers may contract, from the fowl in their care, infectious diseases that are common to fowl and man. (The CDC suspects that a few farm workers caught the West Nile virus a couple of years ago from turkeys - and not from the usual source, mosquitoes).
The atmosphere in poultry farms usually contains significant levels of agricultural dust and toxic gases, which put the workers at a health risk.
Some chemicals used at poultry farms (for disinfection, etc.) may cause harm to workers' health.
The Poultry Farm Worker's work is often physically difficult and involves handling heavy loads, uncomfortable postures and movements. This may cause traumas (including falls), back, arms and hands pains.

It takes a lot of hard work to bring that bird to your table. Let's include these folks in our pre-dinner grace.

Thoughts Before Dozing
As part of our relentless effort to inform, we would like to explain why you are going to feel tired tomorrow after finishing your dinner and homemade pie (if you are lucky enough to have a pie maker in your extended family). The drowsiness will stem from a combination of blissful overeating and the amino acid l-typtophan, which occurs naturally in turkeys. L-tryptophan produces a calming effect, similar to that of a warm glass of milk. Sometime when you are hungry, instead of a warm glass of milk before bedtime, try a turkey sandwich.

On that note, the Insider wishes all of our readers a very happy Thanksgiving holiday.

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November 22, 2005


S.C. Carrier to Stop Writing New Workers' Comp Policies - The Companion Property and Casualty Insurance Group, a Columbia-based subsidiary of Blue Cross Blue Shield of South Carolina, announced that as of December 1, it will have a moratorium on new policies, blaming the decision on five years of losses and deteriorating business conditions. The company says that it will not renew customers who limit their coverage to workers' compensation only and the moratorium "will remain in effect until we see adequate evidence that sufficient changes are in motion to help return the marketplace to profitability."

CT: Work-Related Deaths Rose 50% in 2004 - "The number of deaths in Connecticut due to work-related injuries increased by 50 percent last year, rising from 36 to 54, according to a state report. Connecticut is one of 27 states to have reported an increase in workplace fatalities in 2004, according to the report that was issued by the state Department of Labor. The work-related fatalities is the most recorded in Connecticut since 2000, when 55 deaths occurred."

More on Work Fatalities: the Weekly Toll November 20, 2005.

Latino Forest Workers: Abuse, Mistreatment and Death - Jordan Barab reports on a three-part series in The Sacramento Bee exposing the shocking work conditions facing pineros, the men who work in the pines. "Guest forest workers are routinely subjected to conditions not tolerated elsewhere in the United States, The Bee investigation found. They are gashed by chain saws, bruised by tumbling logs and rocks, verbally abused and forced to live in squalor."

Congratualtions to Strategic HR Lawyer - Diane Pfadenhauer's great blog recently marked one year anniversary. She s featuring two interesting items this week - one on BNA's annual survey of year-end holiday plans that indicates that many employers are offering time off, but the old tradition of giving turkeys to employees has largely died off. The other item of note is a story in the Christian Science Monitor noting that, after inflation, American workers earned 2.3 percent less than they did a year ago.

Maybe salary has something to do with why 3 out of 4 employees looking to change jobs? Michael Fox at Jottings by an Employer's Lawyer points to a 2005 survey on U.S. Job Recovery and Retention Survey by the Society for Human Resource Management (SHRM) and The survey points to a potential mass exodus of workers so retention may become an issue for employers. In light of this, an article on how Applebees� reduces turnover using metrics, accountability, and rewards posted bt Michael Harris at George's Employment Blawg might be a timely read. The article notes: "The system is based on a working assumption that the loss of a top 20 percent hourly employee costs the company $2,500. The loss of a middle 60 percent employee costs $1,000. But the loss of a bottom 20 percent employee actually lets the company make $500."

Job Tracker - Job seekers can get a report card on future employers. Working America, the community affiliate of the AFL-CIO, has created a search function that allows users to find out which companies have OSHA citations, NLRB labor violations, recent layoffs, and more. Users can search by company name, zip code, or state.

Insurance price increases post-Katrina
- Martin Grace at RiskProf gives us a lesson in how catastrophic events affect price. Here's a excerpt: "The capacity constraint model suggests that insurers experience sharp price spikes and capacity swings following capital shocks because of the high cost of accessing external capital markets. Winter and Gron argue that insurers will respond to a sudden loss of surplus, by reducing capacity and slowly building capital internally rather than seeking to raise costly external capital (a la Myers and Majluf�s (1984) pecking order theory) immediately."

Wex - a free legal dictionary and encyclopedia - this collaboratively built, free resource from Cornell Law School is in a similar vein to Wikipedia. Thanks to BoleyBlogs! for the pointer.

Code Blog is hosting this week's Grand Rounds, the best of the medical blogs

Joe Paduda blogs on survey of 1400 employers by the Rhode Island's Insurance Commissioner on the availability of health insurance, employee adoption rates, premium increases, and the wage status of the employees ... a quarter of the surveyed employers do not offer health insurance, and half said health care costs are driving down profits.

HealthLawProf Blog reports on new national standards for health care interpreters that were developed by The National Council on Interpreting in Health Care (NCIHC). These standards provide guidance on the qualifications and proper role of the interpreter and define what constitutes good practice. This is good news. These standards might be a helpful starting point for workplace prevention efforts, too.

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November 18, 2005


Workers comp reform is on the table again in New York. The governor's press release outlines a comprehensive package of changes that is supposed to reduce overall costs by 25 per cent, even as certain benefits are increased. New York is currently in big trouble, ranked among the four most expensive states, so reform is certainly in order. But is the reform addressing the fundamental problems in the Granite State?

In Governor Pataki's press release, he announces a 25% increase in the maximum weekly indemnity benefit - from a ridiculous $400 to an only slightly less ridiculous $500. It is indeed ironic that Massachusetts - where businesses pay far less for workers comp - offers a maximum average weekly wage of nearly $900. You have to wonder where all the money is going in New York.

Friction in the System
When you look at any state system for comp, one of the most telling factors is the built in friction - the inherent adversarial nature of the state's approach. The higher the friction, the higher the costs. A key indicator of friction is the involvement of attorneys. It's no coincidence that the states with the highest costs tend to have the most attorney involvement.

What makes New York unique among states is the bureaucratic oversight of each and every claim. While most states offer extensive latitude for insurers to make changes in the status of a claim, in New York a hearing is required to make any changes. The system, designed by people who emerged from the crucible of labor-management strife, places the state in the position of micro managing every claim. The last time I checked the numbers, New York was holding over a half million such hearings each year.

The Key to Reform
So among all the items in the governor's press release, one really caught my attention: "the reforms would establish a pilot program to encourage the voluntary delivery of compensation and medical benefits to injured workers without intervention by the Board, but subject to the Board's supervision." In other words, under this pilot program, carriers would be able to function as they do in every other non-monopolistic state. They will make decisions, presumably within the rules. If claimants don't like the decisions, they can appeal. In giving up the control of every decision in every claim, the New York system should begin to run more smoothly, more efficiently, and with less friction.

There are other elements in the proposed reforms, including an expansion of the preferred provider network program (piloted in the prior reforms) and an extension of the pay without prejudice period to a full year. The governor also proposes a three-tiered approach to permanent partial disabilities: in looking for savings in this particular area, we can expect a strong push back from organized labor.

It will be fascinating to track the fate of this reform package. My money is on the pilot for voluntary delivery of benefits. If that pilot is eventually extended throughout the entire system, New York might finally be in position to provide workers comp coverage at a reasonable cost to employers.

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November 17, 2005


States continue to struggle with the dilemma of independent contractors. How can you ensure that small artisan contractors in construction have adequate workers comp coverage? How can you prevent abuses, such as employers calling their own employees "independent" to avoid paying comp premiums? And who pays for independent contractors when they get hurt?

Tennessee had a solution called form I-18, "Election of Non-coverage by Subcontractor." Under this program, subcontractors self-certified that they were truly independent and not to be considered employees of the general contractor. In a rare but welcome move toward full disclosure, Tennessee acknowledged a number of problems with this program, leading directly to their revoking it:
- Employers forced their own employees to sign the I-18 form, thereby fostering the illusion that the employees were independent. (This of course saved the employer a lot of money on taxes, benefits and comp premiums, while at the same time depriving employees of statutorily ensured coverage.)
- Insurance premiums for comp were routinely understated, due to frequent misclassification of employees
- The forms themselves were not filled out properly, causing delays in the processing of insurance premiums
- the Tennessee Department of Labor had no way to verify the accuracy of the information on the form

So Tennessee has eliminated the form. In doing so, they remind local employers of the state's criteria for "independent contractors." In the language of their statute, the following factors are to be "considered":
A. the right to control the conduct of the work
B. The right of termination
C. The method of payment
D. The freedom to select and hire helpers
E. The furnishing of tools and equipment
F. Self scheduling of working hours
G. The freedom to offer services to other entities

This is pretty standard stuff, running parallel to the IRS criteria. It's interesting that Tennessee simply asks that these factors be "considered." They have set up a flexible and to some degree ambiguous program. When it comes to collecting workers comp premium, the insurance auditors will make the determination of independence on a case by case basis. Sometimes they will seek additional premium for uninsured subs; in other cases, they might not.

By contrast, Massachusetts has set up a program that puts all of the heat on general contractors. Coverage defaults to the GC, even if the sub appears to meet the criteria for independence. Most premium auditors have been given a simple but harsh instruction: if subs are uninsured, put them on the GC's payroll for comp. And don't waste your time trying to figure out if the sub is really independent.

The Massachusetts plan has infuriated GCs. They angrily point to their uninsured competitors, whose cost of doing business is already substantially lower, even before the GC absorbs the cost of his subs's insurance. Right they are. But until the enforcement mechanism catches up, the disparities will continue. This issue -- with its many ramifications for fairness and for the cost of doing business -- won't go away anytime soon.

Special thanks to Dave Austin at Penn National Insurance for a heads up on the Tennessee story.

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November 15, 2005


As China moves its workforce into the modern era, they confront the issues that this country went through about 100 years ago, when the need for workers comp protection was first addressed. After a century of experience, our system has become a staple of the working world. Workers comp offers a unique set of benefits to workers, the only statutorily guaranteed disability insurance for workers in America.

So what happens when the most populous country on earth implements a workers comp system in the proverbial one fell swoop? Our colleague Joe Paduda summarized a presentation by Peter Barth on this subject at the annual Workers Compensation Research Institute conference last month in Cambridge MA. China implemented a program last year, modeled to some extent on this country's system. Among the highlights:
- the standard for an injury or illness is generally the same as in the US; the statute covers injuries arising "out of or in the course of employment." Ah, but defining just what this means will take years and years!
- premiums are in three bands, ranging from 0.5% of payroll to 1.5%, with 2.0% for the highest risks. Even with low benefit levels, two percent of payroll will not cover the costs of high risk employers.
- experience rating is in place, but a maximum of one point can be assessed for the worst risks. China will find such a simplistic method far from effective: no credits for companies who prevent injuries and few disincentives for those who ignore safety altogether.

China will operate a monopolistic system, but unlike such systems in this country, the scale will be humongous. It will be whatever the bureaucrats want it to be. But no matter how carefully they anticipate the issues or how narrowly they define the benefits, there will be disputes. And once that happens, they will need some people in suits to sort it out.

Where are the Lawyers When You Need Them?
At the risk of understating the obvious, most of us in the workers comp arena feel some ambivalence about the role of attorneys. We recognize, nonetheless, that they are key players in administering the system. While in theory "no fault," comp in practice involves a host of divisive and inevitably adversarial issues ranging from what is a compensable injury to determining the dollar value of a disability. It's not simple. It's not cheap. And all too often it does not appear to be fair. Attorneys who line the corridors of the courthouses are absolutely necessary components in a system struggling to find an equilibrium between the interests of employers and injured employees.

China lacks the tradition and the infrastructure of attorneys to duplicate the American model. There are slightly over 100,000 attorneys in China, along with nearly 12,000 law firms. This tells you two things: the average law firm is still quite small and the number of lawyers is dwarfed by the country's population of 1.3 billion people. In addition, many of these attorneys are looking for corporate work, a by-product of China's burgeoning trade. They are not generally interested in the fate of the Chinese worker. China has only 0.8 attorneys per 10,000 people. In our country, there are 32.7 attorneys per 10000 -- the highest such ratio in the world. In Great Britain the ratio drops to 15.4 attorneys, while in Germany and France the figure is 8 and 4 respectively. So just where does an injured employee turn for help?

A Really Big Case Study
It's fascinating to speculate just how this new Chinese comp system will operate. Employers are responsible for communicating the program to their employees. Never having seen this type of program before -- indeed, operating in a system with virtually no fair labor standards -- how will these employers actually do this? Will employees feel secure enough to use the system, or will they simply avoid it? How will China develop case law to determine eligibility and compensability? Will they move toward a more sophisticated experience rating approach, to provide incentives for safe operations? This is an experiment in public policy on an unprecedented scale.

There is at least one consequence of this welcomed improvement in the rights and benefits for Chinese workers. The costs of doing business in China are going up. The Financial Times points to a growing gap in the cost of labor in China and India. Annual salaries of Indian project managers averaged $10,039 compared with $23,409 in China. The pay of Chinese financial analysts, at $13,194, also outstripped Indian salaries of $8,408 for the same job. So China may actually find itself losing jobs to the less expensive labor in India. This will give rise to many anguished analyses of their wage and benefit practices. To which I say, welcome to the 21st century!

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November 14, 2005


House bill would extend TRIA for two years - Mark Hoffmann of Business Insurance reports that legislation that would extend the Terrorism Risk Insurance Act by two years is scheduled for review on Nov. 16. He report: "Sources familiar with negotiations surrounding the legislation say that the bill would create so-called silos that would segregate individual lines of coverage and subject them to differing deductibles before individual insurers could tap the federal financial backstop created by TRIA. The silos would include workers compensation, property and general liability. Group life, which was not covered in the original version of TRIA, would be added."
Here's an additional story on the potential TRIA extension from Insurance Journal, and check out Joe Paduda's excellent blog post.

Study: Repetitive motion may cause 'sick worker'
"Early nerve damage caused by repetitive motion on the job can cause "sick worker" syndrome, a fatigue or depression that can be mistaken for poor work performance, according to a study published in this month's Journal of Neuroimmunology." - thanks to Jann and Allison of Standard Publishing for alerting us to this article.

Motivating the Middle: How to reward the best without alienating the rest.
excerpt from CFO: "So how can you reward the star quarterback without depressing the competent linemen who make his plays possible? Here's a hint: it's not necessarily more money. Instead, a combination of honest communication, clear metrics, and reasonable career mobility will keep your employees playing like a team."

How to Prepare a Workers Compensation Medicare Set-Aside Agreement from attorney Jon L. Gelman.

ASSE Urges Employers to Make Accommodations for Aging Work Force - "Businesses must act now to accommodate and provide a safer work environment for the aging worker, a valuable and experienced group, or their bottom line will be impacted negatively," ASSE President Jack Dobson Jr., CSP, says. "There are easy and economical ways to do this that in the long run will save time, increase output and contribute positively to the business." - Hat tip to George Lenard of George's Employment Blawg for the pointer.

Support troops by hiring them. This was an item that rawblogXport ran in commemoration of Veteran's Day - a fitting tribute - but it seems like a good idea any day.
"Reuters wire service reported in August that the number of American veterans collecting unemployment insurance nearly doubled during the past three years.
At that time, there were nearly 30,000 vets throughout the nation requesting unemployment aid. The same story quoted veterans groups as saying military personnel fresh from active duty have few job prospects when they return home. That's because the training and licensing acquired while in the military doesn't necessarily translate into the civilian work force. "

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November 11, 2005


Workers comp can be frustrating for employers of all sizes -- from the mom & pop store on main street to Fortune 500 giants. But somehow most problems in the private sector seem pretty managable when compared to public sector entities. Take the city of Pittsburgh. We read in the Tribune Review that they have an annual budget of $23 million for workers comp, which includes over 1,000 claims, 3,700 employees and 10 collective bargaining units. Despite a declining city workforce, the budget for comp is growing.

As we have pointed out in the past, one of the major problems for public sector entities is the budgeting process itself. There is no incentive to clean up old claims, because that would only increase your short term costs. It's cheaper in the short run to pay monthly indemnity benefits for out-of-work employees than confront the issue by settling out the claims, thereby reducing your long term costs. Today's mayor is not really concerned about making the job easier for his successors.

Settling the Old Claims
Over 21% of Pittsburgh's workers comp payments in 2003 went to employees who were injured over 20 years ago! The city is paying over $2.5 million a year to support these claims. My first thought is how much needless waste is contained in those numbers: here are skilled people being paid to do nothing because the system could not bring them back to work. Many (but not all) of these claimants would prefer a productive life.

As part of a massive government restructuring project entitled the Act 47 Recovery Plan (PDF with 230 pages), Pittsburgh is working with a number of consultants to improve basic government functions. One of these consultants, Philadelphia based Public Financial Management (PFM), Inc., has made a number of recommendations for lowering workers compensation costs, including a pilot program to settle out old claims. They have settled 14 claims in the current year, with a total cost of $652,000. The average settlement cost $50,000 with an average worker age of 47.

After the pilot settlement project has been evaluated, with particular reference to future savings, additional money is likely to be set aside to continue the program. Settling old claims can be grueling and thankless work. As a cost control measure, it's akin to closing the barn door after your horses have already wandered into your neighbor's field. Nonetheless, it's worth the effort.

Collective Bargaining & Modified Duty
The Act 47 report identifies a number of obstacles to controlling costs in Pittsburgh. Perhaps the biggest one lies in the collective bargaining area. Under the current contracts, modified duty assignments can only be offered in the injured employee's home department. Injured employees cannot be moved among city departments to find appropriate jobs. This is unfortunate, because the vast operations of a major city offer numerous opportunities for lighter duty jobs. Virtually any physical limitations could be accommodated. To be sure, there may be wage equity issues, as higher paid employees (police and fire) are moved into lower paying positions. Nonetheless, these problems are solvable. And the bottom line is simple: keeping injured employees productive will speed their recovery and lower the costs of workers comp.

I must note, however, that an expanded light duty program does not even make the list of recommendations. Perhaps the political ramifications are more than the city is willing to take on at this time. I think Pittsburgh has done an admirable job of identifying the sources of their workers comp costs. Many of their recommendations are solid and will bear fruit in the months and years ahead: settling out old claims, adding a safety manager to the citywide risk management team, tightening the managed care contract, holding monthly case management conferences. But modified duty is the single most important tool in controlling losses. Unless they are able to expand the modified duty program through the collective bargaining process, their efforts will fall far short of what can and should be done to control comp costs in a major American city.

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November 10, 2005


Do any of you folks plan to be at the Workers Compensation & Disability Conference in Chicago next week? I'll be there for a few days, and I understand that our colleague and fellow-blogger Joe Paduda will be there, too. If you plan to attend, let me know - I'd love to meet some readers! Drop a line to (substitute the AT with @ so we know you aren't a spamming robot).

Among other things, I am looking forward to hearing Dr. Jennifer Christian's presentation on The Real Truth About Disability Management. I worked with Dr. Christian for several years, so I developed a great respect for her expertise. Shes a noted expert in occupational medicine and a prolific author and lecturer. You can read some of her writings at her website, She writes a monthly column called "Ask Dr. J" for the Disability Management Employer Coalition and also hosts the Work Fitness and Disability Roundtable, an e-group comprised of more than 500 professionals dedicated to " ... preventing and minimizing the disruptive impact of injury and illness on peoples' daily lives, especially regarding their work, and in promoting the health and productivity of the American workforce."

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November 8, 2005


In a ruling (New York Times, free registration required) surprising for its rare unanimity, the U.S. Supreme court just came down on the side of meatpacking workers. The decision in IBP Inc. v. Alvarez involved whether workers should be paid for the time between putting on personal protective equipment ("donning") and walking to the actual site where the ferociously unpleasant work takes place. The employer argued that under the "portal-to-portal" concept, the workers were on their own until they got to the actual job site and punched the time clock; and on their own once again, as they walked bloodied (but, one hopes, not bowed) at the end of the shift back to the dressing room. The court -- subliminally aware perhaps of their own donning and doffing of black robes -- decided that the walk to and from the production line required payment of wages. Let's hear it for the Supremes, who got this one right.

It doesn't seem that a lot of money was at stake (how far is the production line from the dressing room?), but when you consider the number of meatpackers, perhaps the employers are indeed facing, as the industry argued, "vast new costs."

Comp not an Issue
Regardless of how the court ruled in this situation, the meatpackers would be covered by workers comp in their walk from the dressing room to the production line and back. Many workers are "in the course and scope of employment" for workers comp purposes even when they are not being paid.

When I think of these hard working people heading to and from their singularly unpleasant tasks, covered each shift with the remnants of their bloody work, I don't begrudge them getting paid for the walk in and the walk out. If these wages result in a few extra cents in the price of beef, pork and chicken, so be it. They've earned it.

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November 8, 2005


Want to sample some interesting new blogs and find out what the hot news and trends are in the medical arena? This week, Rita Schwab at MSSP Nexus is hosting Grand Rounds, a rotating weekly roundup of eclectic posts from medical bloggers. Even though none of us at Lynch Ryan are medical providers, Rita was kind enough to ask us to participate - thanks, Rita! Working in the occupational arena, we have a window seat on issues related to occupational medicine, prevention, and quality care -- and as some of you may have noticed, we have no shortage of opinions -- so we are happy for the opportunity to participate.

Many pioneer physician blogs were inspiration to us back in the "olden days" of blogging and provided great role models when we were getting started. Check out Grand Rounds to see why.

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November 7, 2005


If you're a history buff, then this is a fitting month to root around in the Web's labor archives since so many seminal events occurred in November. Plus, it just so happens that 2005 marks the 100 year anniversary of the Industrial Workers of the World, more commonly known as "the Wobblies." My colleague Jon recently wrote a post about the curious juxtaposition of Starbucks vs. IWW, a seemingly anachronistic occurrence. In a similar vein, a recent article in The Toronto Star notes that The Wobblies are stirring and wonders if we need `one big union' in the global village:

"At the turn of the last century, the very presence of radical giants like two-fisted Big Bill Haywood, social reformer Eugene Debs and silver-haired firebrand "Mother" Jones in one room was enough to make captains of industry gnaw their cigar ends with angst.

But to the latte-swilling, Wal-Mart-shopping, logo-sporting workers of today, the founding of the Industrial Workers of the World - a.k.a. the Wobblies - 100 years ago tomorrow, sounds, well, so awesomely over.

In an age of globalization, when the vast majority of the world's underpaid, insecure and unemployed people live in conditions that wouldn't have surprised Charles Dickens, the idea of an expansive cross-border labour movement to unite the workers of the world seems to have gone the way of the doily and the moustache cup.

The Wobblies were free-spirited, often transient, and dedicated to a large social vision," says Craig Heron, professor of history at York University. "They carried around the union songbook in their back pockets.

Those days of zealous singsongs, all-night debates and pamphlets on the meaning of life as a labourer are light years away from today's shrinking union population, beleaguered by globalization and bruised by layoffs, cutbacks and wage freezes. And for many of the world's non-union workers, collective action is as distant, or irrelevant, as water on Mars."

Talk of singsongs and the free-spiritedness of members might give a false impression of the times in which the Wobblies first made their debut. These events of by-gone Novembers offer a flavor of the era that gave rise to the labor movement:

November 5, 1916 - The Everett Massacre
The I.W.W. was particularly active in the Pacific Northwest in the early years of the last century. They planned a street-speaking event in Everett to show solidarity with striking shingle workers. About 300 members boarded two steamers, but as the boats approached the dock, shots rang out. "On the dock, deputies Jefferson Beard and Charles Curtis lay dying, and 20 others, including the sheriff, were wounded. On the Verona's deck, Wobblies Hugo Gerlot, Abraham Rabinowitz, Gus Johnson and John Looney were dead and Felix Baran was dying. While the official I.W.W. toll was listed as 5 dead and 27 wounded, as many as 12 Wobblies probably lost their lives, their bodies surreptitiously recovered from the bay at a later date." You can read more and view primary sources of the event at the Everett Public Library's Digital Collection.

November 11, 1919 - Centralia Masacre
"On November 11, 1919, a gunbattle erupts during an Armistice Day parade of American Legionnaires in Centralia, leaving four dead and resulting in the lynching of one member of the Industrial Workers of the World (IWW). World War I veterans and other Centralia citizens march on the local headquarters of the IWW, whose members anticipate an attack. Shots are fired, killing veterans Arthur McElfresh, Ben Casagranda, and Warren Grimm and wounding veterans John Watt, Bernard Eubanks, and Eugene Pfister. That night a mob removes imprisoned IWW member Wesley Everest, who was also a veteran, from the town jail and lynches him from the bridge over the Chehalis River." The University of Washington Libraries offers a collection of primary sources.

November 19, 1915 - Joe Hill shot by firing squad
A labor activist and I.W.W. member, Joe Hill was a famous songwriter whose protest songs were highly popular with workers and a staple on picket lines. While he was in Salt Lake City to organize a strike, a former policeman was shot and killed. Joe was charged with the murder and shot by a firing squad. Protesting his innocence, he had this to say before his death:

"The main and only fact worth considering, however, is this: I never killed Morrison and do not know a thing about it. He was, as the records plainly show, killed by some enemy for the sake of revenge, and I have not been in the city long enough to make an enemy. Shortly before my arrest I came down from Park City; where I was working in the mines. Owing to the prominence of Mr. Morrison, there had to be a "goat" and the undersigned being, as they thought, a friendless tramp, a Swede, and worst of all, an I.W.W, had no right to live anyway, and was therefore duly selected to be "the goat". I have always worked hard for a living and paid for everything I got, and in my spare time I spend by painting pictures, writing songs and composing music. Now, if the people of the state of Utah want to shoot me without giving me half a chance to state my side of the case, bring on your firing squads - I am ready for you. I have lived like an artist and I shall die like an artist."

For more on Joe Hill, see the PBS biography, which includes links to song clips and lyrics.

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November 4, 2005


When an employee starts a fight, any potential workers comp claims based upon injuries to the instigator are denied. The denial stems from the employee's "wilful intent." If you knowingly and wilfully injure yourself (by starting a fight), the comp system rejects the claim. The person who is attacked, however, may collect comp for injuries, unless the fight has absolutely nothing to do with work.

But what if the employee is a minor league hockey player? And what if his coach tells him to start the fight? Ty Jones, a formidable 218 pound winger for the Norfolk Admirals, hurt his shoulder during a fight on the ice in 2002. He said his coach ordered him to fight. After he fought, he was unable to lift his arm.

Under the Virginia system, Jones was awarded worker's comp in 2004, for the seven months he was undergoing therapy for the injury. The Admirals appealed, claiming the fighting was wilful misconduct.

The state appeals court recently ruled in Jones' favor, saying that the injury rose from his employment. The court went on to note that fighting is very much a part hockey, as opposed to the normal working world, where fighting is never a regular part of the work day. I wonder if the Admirals were able to present evidence that they coach their players never to fight. That fighting is against their policy and anyone violating the policy is subject to discipline, up to and including termination. Yeah, right, just what I would expect from a hockey team!

While many states exclude professional athletes from the workers comp system, others leave the door open. Ty Jones was able to access the benefits available to other "employees" in Virginia. By contrast, those who take on careers in the boxing ring, with all the risks that sport entails, have no such protections. We have before us the sad image of the once gregarious Muhammed Ali, who suffers from a debilitating Parkinson's disease that is very likely related to his long career in the ring. As far as I know, there is no comp rate for boxers -- and if there were, I imagine the actuaries would come up with a high multiple of the payroll, something like $400 per $100 of payroll. That's one form of insurance that few would sell and few would buy.

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November 3, 2005


Kudos - Congratulations to friend and colleague Joe Paduda on the one-year anniversary of his excellent blog, Managed Care Matters. If this blog isn�t on your regular reading list yet, it should be!

Guns at Work - Thanks to Michael Fitzgibbon for pointing us to a post at Workplace Prof Blog about guns at work: "Oklahoma and Kentucky have enacted laws prohibiting employers from excluding guns from the workplace. A bill has been introduced in Utah to do the same thing; a bill introduced in Florida would allow employees to keep guns in their cars even when the cars are at the workplace."
Also, see our prior post on the topic - it yielded an interesting discussion.

Wal-Mart Watch - The hits just keep on coming. Jordan Barab of Confined Space reports about a sweetheart deal between the Labor Department and Wal-Mart. Some officials apparently agreed to give the company 15 days advance notice before conducting any inspections for child labor safety violations.

Unhappy docs in California - The Sacramento Bee reports: "California Medical Association vow to cut back or stop treating injured workers in the wake of sweeping changes to the state workers' compensation system. While slashing costs, the historic overhaul has spawned an environment "that is hostile to physicians and often harmful to the patients they serve," according to a report released Monday by the medical association."

Aetna to pay for depression - Identifying depression as a cause of absence and a factor that exacerbates major illnesses, Aetna has agreed to cover a program to manage depression. (New York Times, free registration)

Healthcare translation - Bookmark this handy site! Rita Schwab of MSSPNexus points us to a terrific resource - Health Information Translations. There are nearly 40 million people in the U.S. who are not proficient in English, and some of them probably work for you. Three Ohio healthcare organizations provide fact sheets and health care information in 11 languages - and the service is free.

BP deaths were preventable - 15 deaths and 170 injuries could have been prevented if the refinery had installed a flare system years before, as OSHA had recommended, and heeded past warnings. Read more at Confined Space and rawblogXport.

New HR blog - Check out Ashraf Al Shafaki's AnswerOnce weblog that provides answers to many HR questions, such as "How can I manage employee retention?" and "How do I design a questionnaire?" It looks promising.

Business jargon - Look up more than 2,500 common business terms in the Dictionary of Small Business. Thanks to Dane Carlson of the always excellent Business Opportunities Weblog.

Insurance web service lacking - In the fifth study of its kind, 47 health care, life and health, and property & casualty insurer Web sites fared poorly in a study measuring the "Customer Respect Index." From the report:
The insurance industry remains the only industry sector evaluated with no Web site reaching the standard of excellent, noted the report. The insurance industry showed little or no improvement over the last study and in many key areas fell behind other industry sectors. For example, the industry failed to response to 26% of e-mail inquiries compared to an "ignore rate" of 16% for financial services. Read more about the report in Insurance Networking News.

New CEO at Ohio BWC - William Mabe, a retired Nationwide Insurance executive, has taken the helm at the beleaguered Ohio Bureau of Workers Compensation. We wish him luck - things are still in considerable disarray. Follow the money in the Toledo Blade's excellent ongoing coverage of Coingate.

A little levity - Maybe we are a tad too serious here at the Workers Comp Insider. Heck, even actuaries let their hair down now and again. So we post the following tidbits for your amusement:
Interview with an honest boss (flash and sound alert) - (via Regina Miller.) Also, if you are looking for an educational craft project to while away the late fall evenings, you might consider knitting a digestive system. Fetching! (via Kevin, MD.)

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November 2, 2005


A federal judge has ordered the Dial Corporation to pay over $3 million to resolve a sex discrimination suit brought by the Equal Employment Opportunity Commission (EEOC) against The Dial Corporation's Armour Star Meat Packing plant in Fort Madison, Iowa. Fifty two women who were rejected for entry-level production jobs because they had failed a strength test will be offered jobs at Dial and will share approximately $3,390,000. The Bureau of National Affairs (BNA) has a summary here.

The case began with a single rejected job applicant. Paula Liles had performed "heavy physical work" in the past, met the other job requirements and was given a conditional job offer pending her passing of a physical test. The test required the repeated lifting of 35 pounds to a height of 65 inches (Ms. Liles herself was only 62" tall, so she was lifting the racks 3" above her head). Despite her lack of height, she past the test, but she was still not hired because at times during the test she had to stand on her tiptoes. The company was concerned that this stretching might increase her risk of injury. (They are probably right -- our posts on rotator cuff injuries highlight the risks of working "above the shoulder.")

But failing the test does not correlate with Ms. Liles and other female applicants being unable to perform the work. That's where Armour Star went astray of the law.

A Test of Strength
The judge determined that the test discriminated against women, since fewer than 40% of female applicants passed the test, while nearly all male applicants passed. Here are three critical facts that hurt the company's case: first, prior to the testing, women had been successfully performing the jobs in the sausage making department. Second, injury rates for male and female employees doing this work were virtually identical. And finally, the test was more difficult than the job itself.

No one questions Dial's goal of reducing workplace injuries. However, testing does not occur in a vacuum. Prior to implementing the test, 46 percent of the individuals hired for the job had been women. The new test resulted in most of the women losing their jobs.

Given the disparate impact of the test on female employees, the court determined that the test violated Title VII of the 1964 Civil Rights Act. So now the company must pay.

Dialing Back
Where did an apparently well-intentioned employer go wrong? After all, implementing pre-employment testing is considered a "best practice" in reducing workplace injuries. Unfortunately, Dial's program appeared to be missing several critical elements:
- a feedback loop, where test results were analyzed to ensure that the impact was fair and equitable. The high failure rate of women should have raised flags.
- a re-engineering loop, where the work itself is examined to ensure that it is organized as efficiently and safely as possible. To my mind, the 65" lifting on a repetitive basis is an ergonomic problem that might well be solved through re-engineering.
- Finally, a common sense loop. Because many women had been performing the work safely in the past, their high failure rate should have brought the test itself into question.

This is a case where apparently well-intentioned management became too enamored of their new hiring process. They were convinced that the strength test would lower the risk of injury to workers. On a superficial level, you could certainly make this case. But the test results, with the high failure rate of women, should have brought the entire process into question. It didn't and the company has now paid the price. Let that be a fair warning to any other employers contemplating pre-placement testing to reduce the risk of injuries.

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