December 2005 Archives

December 29, 2005

 

We are catching up on blog reading after an erratic holiday schedule, and offer this grab bag of interesting posts from our fellow bloggers.

Legal matters - Michael Fox of Jottings by an Employer's Lawyer has recently posted on suits involving workers comp issues. The first is a recent $15 million judgment involving a safety incentive program run amuck. This was a bad faith suit filed against the employer. Bad faith suits generally involve claims handling on the part of the insurer, such as nonpayment of claims, mass denials of claims, and the like. This South Dakota case involved a construction company that had a goal of less than one day of lost time due to injury for every 100 employees. The firm offered substantial cash bonuses to supervisors for achieving that goal, resulting in the suppression and underreporting of legitimate claims. This is the second South Dakota bad faith suit involving incentive programs that has come to our attention. See our prior post on exclusive remedy, "bad faith" claims, and the $12 million lawsuit.

The second item is about the upcoming Supreme Court review of case involving an employer's RICO liability for hiring of illegal workers. The 11th Circuit court offers this summary of the case:

"The plaintiffs filed this class-action complaint alleging that Mohawk’s widespread and knowing employment and harboring of illegal workers allowed Mohawk to reduce labor costs by depressing wages for its legal hourly employees and discourage worker’s-compensation claims, in violation of federal and state RICO statutes. The plaintiffs also alleged that Mohawk was unjustly enriched by the lower wages it paid, as well as the reduced number of worker’s compensation claims it paid."

TX networks and industry performance - Joe Paduda of Managed Care Matters offers a rundown on the new rules governing Texas workers comp networks. He also points to and comments on John Burton's discussion of industry performance in 2004. He notes there are indications that the market is softening, the key being what happens with reinsurance rates and availability.

Medical matters - For a good smorgasbord of notable recent posts from medical and health care bloggers, visit Grand Rounds, hosted this week by Matthew Holt at The Health Care Blog.

What were they thinking? - Thanks to Workplace Prof Blog for pointing us to Challenger & Gray's compilation of The Most Unbelievable Workplace Events of 2005 (pdf). According to the release, these are stories that are likely to make you ask, “What was that person/company thinking?” or “Can a company actually do that?”

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December 27, 2005

 

In the early 1990s, when most states were sweating out urgent reforms in their workers compensation systems, South Carolina basked in the warm southern sun. They were ranked #2 for low costs at that time and their good fortune continued up to the year 2000. Now the state is struggling with increasing costs. Rates went up by 17.3% in 2003 and again by 11.4% in 2004. Even with these raises, the recommended rate increase for 2006 is a whopping 33%.

When costs go up, the reactions are predictable. The business community argues that any increase in the rates will drive business out of the state. So they recommend cutting benefits for injured workers. The insurance carriers say that they are losing money. Without a rate increase, they will leave the state. So they say, you have to raise the rates. And the lawyers, while never threatening to leave the state, argue that the insurers are just cooking the books. Current benefits can be preserved with no rate increases, regardless of what anyone else says.

Reforms: Who Pays?
A draft report for workers comp reform in South Carolina was recently presented to Governor Sanford. The report contains an interesting and by no means unique assortment of recommendations, including some significant reductions in benefits. These include:
Criminal penalties for premium fraud, including fines and jail terms.
Elimination of the Second Injury Fund.
Limits to how much employers must pay for prior injuries (but in the absence of a second injury fund, who would pay?)
Requiring treatment within an employer-chosen medical panel (but what, if any, are the standards for treatment?)
Raising the bar for stress-related claims by requiring that more than half of the stress in the claimant's life be work related (this would be in keeping with the standards in many other states)
Perhaps most significant for injured workers, the report recommends the denial of claims for repetitive trauma unless the injury can be tied to a specific event on a specific day. They are trying to eliminate injuries tied to "normal activities of day to day living" - although they cast a very wide net that would include, for example, legitimate rotator cuff injuries to carpenters and dry wall workers, carpal tunnel for office and factory workers, and loss of hearing for workers in heavy industry. Should this recommendation become law, South Carolina workers would have to learn how to tie any repetitive motion problems to a specific incident.

LynchRyan's Perspective
We think it's important for every state to revisit the comp statute periodically. When costs go up, as is happening in South Carolina, it's important not to shift into panic mode. Any reforms -- specifically, any proposed cost-savings -- should involve a shared burden. It's too easy to ask injured workers to bear the full brunt of reform. While it might be tempting to redefine repetitive motion injuries so that many are not compensable, it isn't fair. In the search for equilibrium, state legislatures need to align the incentives. We think it's possible to increase indemnity and related benefits and still lower costs. To do so, you have to make sure that the system focuses relentlessly in one direction: a rapid return to productive employment for every injured worker. The key player in this is the employer. They must know how to respond to injured employees, how to secure first rate medical services, and how to speed recovery through the appropriate use of temporary modified duty. It isn't rocket science, but the vast majority of employers just don't get it. If South Carolina builds some employer education into the reforms, they'd be on track to fix the problem in a lasting way. We wish them the best of luck.

A Little Procrastination?
This is my favorite time of year, when I can look at the pile of unfinished work on my desk and tell myself, it can wait until next year. So as we enjoy this brief seasonal respite, the Insider wishes all of our readers a happy, productive and safe New Year.

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December 23, 2005

 

Forbes seems to think Santa is a bad employer. In their recent feature on "The Forbes Fictional 15," Santa led the roster of their picks for some of the world's wealthiest fictional characters. In the case of our jolly friend, they level some damning charges:

"At issue is Claus’ treatment of his large elvish work force, which annually produces some 700 million toys with a market value in excess of $14 billion. Critics claim that the elves work long hours for low pay under hazardous conditions. Particularly at issue is Claus ' adamant refusal to give the elves any sort of health insurance and his stubborn insistence on keeping his manufacturing operations at the North Pole, where governmental oversight is nonexistent."

While I would guess that Santa's good works in other areas might be mitigating factors, nevertheless, Santa should remember that charity begins at home. And it should be noted that Santa is not the only boss with seasonal failings included on the list - curmudgeonly Ebenezer Scrooge comes in at number 12.

And while we are on the topic of Santa, a story in today's Insurance Journal has some good news for homeowners about a liability waiver that promises to shield Americans from Santa's fat suits. That's one less worry!

All of us at Lynch Ryan extend best wishes to our readers for a happy, safe, and healthy holiday season … and special thanks to all those of you who will be working on Christmas Eve and Christmas Day to keep things humming for the rest of us!

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December 22, 2005

 

About a year ago the Insider cautioned people to view snow shoveling as a risk-laden form of heavy lifting. Recently New England experienced a storm of surprising ferocity. I shoveled once, I shoveled twice, and then, all dressed and showered and heading out for a Christmas party, I found that municipal plows had once again closed up the end of my driveway. So resplendant in jacket and tie, I grabbed a shovel, muttered a few curses and furiously attacked the four foot wall of heavy snow.

A few days later, I could not get out of bed. In all, I spent two days literally crawling around the house, sleeping fitfully on the sofa. The pain was severe. My personal physician recommended 600 mg of ibuprofen three times a day. In doing so, he was working within the first line of defense for pain: anti-inflammatory medications -- drugs that reduce redness, swelling, and pain. These drugs are NSAIDs -- Non-Steroidal Anti-Inflammatory Drugs.

Here's a little history on NSAIDS from the Pain Foundation's very useful website:

In 1899, Friedrich Bayer and Company began marketing the first NSAID (Bayer® aspirin) in Europe. Although it is now over 100 years old, Bayer® aspirin is still sold today as a popular NSAID, because it can reduce fever, pain, and symptoms of inflammation. NSAIDs are considered to be inexpensive and are also easily accessible to patients when traveling in virtually every country. They are available for everyone’s use at the local drug store, and some are available by a prescription from your doctor. NSAID medications include aspirin, ibuprofen, naprosyn, ketoprofen, relafen, and many others.

As I began taking my ibuprofen, which I hasten to add was not all that effective or consistent in reducing the pain, I found myself thinking about stronger medications -- narcotics -- which, we all know, are the most powerful means of blocking pain. And therein I found the answer to a question I've raised a few times in this blog: Why do doctors treating work-related injuries frequently prescribe high-risk narcotics (oxycontin, for example)? Where prior speculations focused on the doctors's brains/stomachs (free lunches sponsored by drug companies) and even genitals (hottie cheerleaders promoting the drugs), my own acute pain led me to conclude that doctors often follow their hearts. They are, in a word, sympathetic to the extreme discomfort of their patients. They reach for the prescription pad to (temporarily) alleviate the pain, while at the same time creating significant potential for lasting problems of a different kind.

My own doctor made no move toward narcotics, nor did I request any. I knew from my own research on back strains that the pain usually resolved itself in a couple of days and that narcotics should be considered a last resort. True to form, the pain lessened significantly after two days. I was moving cautiously by day three and reasonably mobile after five days.

Pain
Pain creates a world of its own. When pain is acute, it becomes the single, overarching focus of your life. When this acute pain becomes chronic, patients are at risk for extended disability. Workers comp claims adjusters are often reluctant to approve pain interventions. But help with chronic pain is often a key factor in returning injured workers to the job. Pain specialists help people understand and cope. They teach patients essential skills and strategies to help manage pain while dealing with day-to-day life. These strategies include breathing and stretching exercises or relaxation and pacing techniques. Pain intervention helps people:

1. Examine their thoughts and beliefs about pain that may inhibit or interfere with optimal functioning.

2. Review emotions, behaviors, beliefs, or relationships that could be contributing to their pain.

3. Recognize that they have control over how an experience will affect them and their loved ones.

A patient’s perception of pain is one of the biggest determinants in a successful outcome for pain management. This perception in turn may determine the structure, nature and quality of the patient’s life -- including whether the individual is able to resume his or her place in the workforce.

I consider myself lucky to be back to work in less than a week. I am at full duty, if not quite fully recovered. I find myself looking at the long-term forecasts, trying to anticipate the next big storm. Once again, I will be confronted with the need to clear snow from the driveway. I am resolved to stay calm. I might even put in a last minute request to Santa for a snowblower.

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December 20, 2005

 

The Insider has been researching the intersection of illegal immigrants and workers compensation. In most states, attempts to preclude illegal workers from securing comp benefits have failed. But now we read of a case in Nebraska (Isaac Ortiz v. Cement Products) where an illegal immigrant is cut off from vocational rehabilitation, which is normally an essential part of comp benefits for workers who cannot return to their pre-injury jobs.

Ortiz came to the United States illegally in 1990. He has a sixth grade education and does not speak, read or write English. He has worked as a laborer for a number of employers, even though he lacks proper documentation. He applied for a job with Cement Products, with a friend filling out the application (a common strategy for people lacking literacy). He provided a false social security number on his application and on his employment eligibility verification form.

In July 2001 a large bucket of cement fell on Ortiz's leg. His medical bills were paid and he collected indemnity under workers comp. With his employer unable to accommodate his restrictions, he sought re-training under vocational rehab. The court determined that Ortiz could not participate in voc rehab, because he was not legally authorized to work in the United States.

At trial, Ortiz testified that he will not be returning to Mexico, but, rather, intended to remain in this country, where he may not be lawfully employed because of his illegal status. The court determined that awarding Ortiz vocational rehabilitation services in light of his avowed intent to remain an unauthorized worker in this country would be contrary to the statutory purpose of returning Ortiz to suitable employment. He cannot work, therefore, he is not entitled to training that would allow him to work.

2nd Class Benefits for 2nd Class Workers
This case has some truly staggering implications. For example, even if Ortiz's employer had been able to accommodate his restrictions, they could not have done so. Because his illegal status was exposed during the workers comp process, he no longer could work. As an illegal immigrant, he was precluded from returning to his prior job. It appears that illegal workers collecting workers comp, once exposed, only have the option of collecting indemnity payments for an ongoing disability. They cannot return to their old jobs (modified or full duty) and they cannot retrain for new jobs. Once their claims have revealed their status, their working days are over. So they either remain on disability (with the employer footing the bill) or they slip beneath the radar screen to the underground, cash-only economy.

With all the debate on the status of illegal workers, a few things are clear:
There are millions of illegal workers in the United States.
They drive cars, but are unable to obtain legitimate licenses (and insurance) because they cannot meet federal identification requirements.
They are working some of the least desirable and most hazardous jobs.
They are not protected by conventional American labor standards. (Do you think illegal workers are able to collect the overtime to which they are entitled?)
They are not well trained and they lack proper safety equipment.
The Insider suspects that they suffer serious and fatal injuries at higher rates than other workers.
They live in constant fear of exposure and are frequently exploited.

Return-to-Work is Not an Option
While many states have (rightfully) opened the door for illegal workers to participate in the comp system, the Nebraska case highlights the dramatic contradictions that arise when the door is only half open. Most injured employees can collaborate with their doctors and their employers to achieve the mutually satisfying goal of returning to productive employment. The careers of illegal workers, by contrast, come to an abrupt halt as soon as comp claims are filed. Illegal immigrants are confronted with a very difficult choice: trying to prolong their disabilities as their only legitimate source of income, or disappearing into the underground economy. It's neither productive nor prudent to force workers into this conundrum, regardless of the immigration status. We will keep an eye on this problem, with its myriad policy implications, as it plays out from state to state in the coming months.

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December 19, 2005

 

In a Christmas present to the nation's insurers, legislators voted to extend the Terrorism Risk and Insurance Act for two more years. The bill, which was set to expire December 31, is now awaiting a presidential signature. While it is not what some in the industry hoped for, it averts the immediate crisis that expiration would have triggered. Many in the industry were hoping for a more long-term solution rather than having to revisit the issue in two years.

According to the Business Insurance article:

"In 2006, the backstop would be triggered by losses from insured events greater than $50 million, and $100 million in 2007. The backstop also would be somewhat narrower in scope. Among the insurance lines excluded from TRIA coverage are group life, commercial auto, surety and professional liability. Property and general liability would be included under the backstop, but property policies would not be required cover nuclear, biological, radiological or chemical attacks."

Insurance Journal reports that the bill was a result of a last minute compromise this past Friday. The story offers this initial industry reaction:

"PIA is very pleased that Congress renewed TRIA," said National Association of Professional Insurance Agents Executive Vice President & CEO Len Brevik. "Passage of this legislation is good news for businesses across the country, for insurance agents, for our economy and for America."
"At the same time, we share some of the concerns expressed by House Financial Services Committee Chairman Michael Oxley that the bill that was passed falls short of what was needed in some key aspects," Brevik said."
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December 16, 2005

 

Our friend Joe Paduda sent us a link to a new report issued by Harvard Medical School stating that carpal tunnel syndrome is not caused by computer use. The report disputes the conventional wisdom that carpal tunnel syndrome is a repetitive stress injury, stating that it is often incorrectly described as one. Rather, it is a compression of the median nerve in the wrist that affects about 2 to 3 percent of the population.

This reinforces a Danish study on keyboards and carpal tunnel syndrome that Ergonomics Today reported on in 2003. In that study, researchers stated that keyboards are not an "occupational risk for developing carpal tunnel syndrome." But note:

"While the researchers indicated that keyboard usage probably is not linked to CTS, they did find an association between using a mouse for more than 20 hours each week and a slightly elevated risk of developing CTS. They also noted that evidence existed that linked 'forceful industrial work' to the development of CTS."

For more information, see the Mayo Clinic's pages on carpal tunnel syndrome. Among the occupational risk factors they list: "Power tools - such as chippers, grinders, chain saws or jackhammers - and heavy assembly line work, such as occurs in a meatpacking plant. Although repetitive computer use is commonly assumed to cause carpal tunnel syndrome, the scientific evidence for this association is weak."

That�s not to say that there are not other muscular maladies that may be associated with heavy computer use and poor workstation design, or that CTS isn't aggravated by heavy computer use. But it would seem to indicate that computer use is not a precipitating factor, and that much of what is commonly thought to be CTS may be mislabled.

Related posts:
Ergo tips - workstation ergonomic design
Laptop ergonomic woes

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December 15, 2005

 

We've been up and running for a few years now so we thought it might be good to go into the New Year with a clean new look. What do you think? We still have a little housekeeping to tend to. We'll also be upgrading the blog software over the next week or two, and although we think this will be painless, we have our collective fingers crossed. Browsers and user experiences vary - give us a shout if you are experiencing any problems!

Kudos to our behind-the-scenes colleagues -- Chris, Jess, and Sue -- for the new look and the upgrades!

One other note: we love to hear from you and appreciate your comments. We don't get flooded with comments, but we are delighted by the depth of knowledge and insight that our readers often add to a topic. But like many bloggers, we are plagued by comment spams, often some fairly vile stuff. Policing for spam is a daily duty, and lest we be overrun, we are forced to close past threads to comments. Too bad! To combat this, we are thinking of moving to a system where people would either have to register once before being able to post comments, or comments would be moderated to screen spam. Any thoughts? Would a one-time pre-registration deter you from making a comment?

Let us know if you have any other thoughts about the blog while we're in our New Year's resolutions mode!


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December 14, 2005

 

The holiday season can be a dangerous time. Fatigue, stress, drinking, and the many distractions of the season can increase the likelihood of an accident both on the job and off. Driving fatalities increase, particularly those related to alcohol impairment. Home fires spike. Topping things off, harsh weather can exacerbate the hazards, resulting in an increase in slips and falls, roadway accidents, heart attacks from shoveling, and frostbite and exposure injuries. Here's a roundup of some seasonal tips to keep your holiday safe.

The U.S. Fire Administration has issued a disturbing real time video clip demonstrating how quickly a holiday tree can turn into a fire bomb (QuickTime). But trees aren't the only source of holiday fires - candles and electrical wiring also pose hazards. USFA offers a page of holiday fire safety tips. And as you decorate your home or office, the Laborers' Health and Safety Fund of North America offers some ladder and electrical safety tips that might be helpful.

The US Department of Labor offers Nine Tips for Office Celebrations. For more resources on safe office celebrations, see our post from last year 'Tis the season - alcohol and holiday festivities. How safe are the highways in your state? Check to see if your state is one of the
15 deadliest states for drunk driving.

Why not add some safety-related gifts to your shopping list this year? The American Red Cross offers Tips for Holiday Safety and Gifts that Give Back. The New Year is also a good time to check and replenish your home and office First Aid kits.

For weather-related hazards, OSHA has a fact sheet for protecting workers in cold environments as well as information on cold stress. The Laborers' Health and Safety Fund of North America suggests tips for dressing in layers and what materials to use to offer protection from the cold. FEMA offers winter driving tips. The Canadian Center for Occupational Health & Safety also offers some good winter driving advice.

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December 12, 2005

 

Our colleague Peter Rousmaniere, a regular contributor to Risk & Insurance Magazine, raises an interesting issue in a recent column. How do you establish productive lines of communication with the employee's own doctor, especially when you meet with resistance? Peter presents the recommendations of Joseph Fortuna, an occupational physician working for (pension-troubled) auto-parts manufacturer Delphi.

One of the most challenging aspects of communication is simply getting the employee's doctor on the phone. Fortuna advises talking first to the key administrative person in that doctor's office. Provide the office with the information they really need. This means faxing them the job description, along with possible accommodations that can be made for any medically necessary restrictions. If the employer is well known in the community (as Delphi certainly is), use this as part of your leverage. But even the names of lesser known employers who are motivated to bring people back to work would be helpful. The medical provider really needs to know that the employer is connected to the recovery process -- a call from an insurance adjuster carries less weight than one from an occupational doctor or the employer.

The Right Questions
Fortuna aptly points the occupational doctor -- and the employer -- toward asking the right question. All too often, a question is phrased in a way that produces an unsatisfactory response. For example:

Don't ask: "Can Mr. Jones return to work?"
Ask: "Have you specifically instructed Mr. Jones to stay out of work?"

Wrong question: "When can Mr. Jones return to work?"
Right question: "Can Mr. Jones return to work on Monday?"

Wrong question: "What are Mr. Jones's restrictions?"
Right question: "Can Mr. Jones return to work with a ten-pound lifting restriction?" (If the doctor answers "no," follow it up: "How about a five pound lifting restriction?")

Organized Persistance
In his role as an occupational medicine specialist, Fortuna often has to make calls to a treating physician. If he doesn't hear back promptly, he works through an orderly sequence of calls that increases the likelihood of a call back. Because his approach would work both for doctors and employers, I have added in parentheses some variations of his questions targeted for employers.

Day one: "Please ask Dr. X to call Dr. Y concerning Mr. Jones."
(If the employer is calling: "Please ask Dr. X to call us concerning our [valued] employee, Mr. Jones.")

Day three: "I am Dr. Y, an occupational-medicine physician in city A. I need to speak with Dr. X concerning patient Jones's work restrictions. I have a signed medical-information release from him. I need to speak to Dr. X by (day six) so that Mr. Jones's benefits will not be interrupted."
(If the employer is calling: "We need to speak to Dr. X concerning our employee, Mr. Jones. We have a signed medical release from him. We need to speak to Dr. X by (day six) so that we can get Mr. Jones back to work. Mr. Jones is an important member of the team."

Day five: "This is Dr. Y. I am still trying to reach Dr. X about Mr. Jones. I left messages on (day one) and (day three), but have not received a call back. Please ask Dr. X to call me as soon as possible."
(If the employer is calling: "This is Mr. Jones's employer calling again. We left messages on (day one) and (day three), but have not received a call back. We are very anxious to bring Mr. Jones back to work, so please have Dr. X call us by (day 6).")

You can see that Fortuna's questions attempt to build a line of communication where there is resistance. I particularly like the proactive slant built into the questions. It's less a matter of assuming the doctor has the answer than of guiding the doctor to the answer you (and the employee) really need. Savvy advice - well worth a try when the employee's doctor is reluctant to participate in the return-to-work process.

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December 8, 2005

 

One of the most important questions confronting disability managers is how long a disability should last. During Lynch Ryan's 20+ years in the business, we have seen the loss of a finger tip turn into a permanent total disability, while the loss of three fingers resulted in only a month of lost time. One employee injures his back and is gone forever; another with a more serious back strain is back to work on modified duty within a week. What accounts for the differences? How many days of disability are medically necessary?

What are Disability Duration Guidelines?
If you study a lot of injuries, over a long period of time, you can develop a strong sense of how long a disability should last, ranging from no time lost to years and years of disability. The data can encompass many diagnoses and can take into account the occupation of the individual (sedentary to physically demanding) as well as co-morbidities (health problems that may impact the speed of recovery). The data can reveal optimum results (minimal time away from work), average and mean durations (the middle of the bell curve) and the outlyers on the wrong side (many months of what is often medically unnecessary disability). This type of data should be very useful for claims adjusters, nurse case managers, sophisticated employers and insurers in general for setting goals in returning disabled individuals to fully productive lives. There are a number of these data bases available; the Reed Group has one that is both comprehensive and user-friendly.

Like managed care, disability duration guidelines are a hot topic, one of the new buzz words in the world of cost control. A lot of people are now using these guidelines - but are they using them effectively? I doubt it. Our esteemed colleague, Dr. Jennifer Christian, head of Webility MD, has done a great job of listing the uses and misuses of disability duration guidelines in one of her "Ask Dr. J" columns, available here in PDF format.

What not to do!
Jennifer notes that people often simply match the guideline numbers with the current length of disability for a given situation. The adjuster tends to feel that there is no need to do anything until the mid-point has been reached. And of course, the red flags really start blowing in the wind once the claim approaches the maximum durations. As happens all too often in the world of insurance, this approach results in too little being done too late. You are shutting the barn door long after the horse has wandered into the field.

Aligning Incentives
Jennifer suggests that people focus on the optimal side of the distribution. Adjusters should set a goal of beating the best: returning disabled people to work faster than is normally expected for the given disability. In doing this, you ensure that the proper resources are directed with a laser-like focus on the situation. In Lynch Ryan's experience, you have to treat every disability with a sense of urgency from day one. Too many things can and often do go wrong if you sit back and wait for a situation to resolve itself.

Jennifer acknowledges that the "worst case" number might be useful for setting reserves, but absolutely not for setting the agenda. She suggests that adjusters be rewarded for taking risks early on - for drawing upon the full range of options before the claim drifts toward long-term duration. With this strategy, you are likely to find yourself spending a little more in the short run and much less in the long run.

Jennifer's column contains a lot of interesting detail. It's well thought out and very comprehensive. If you are interested not just in using disability guidelines, but in using them well, this would be a good place to begin.


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December 7, 2005

 

After our recent post on Missouri, one of our regular readers asked for a summary of reform provisions in the Texas law enacted in June. Here's what we came up with - we invite Texas readers to add any comments and clarifications - we'd welcome the input!

  • TWCC was eliminated; workers compensation is now managed by the TX Department of Insurance through the Division of Workers Compensation (DWC). The intent is to streamline & reduce bureaucracy.
  • Office of Injured Employee Counsel (OIEC) is formed to advocate for and help injured workers.
  • Employers can designate a medical provider network (MPN) which employees will be required to use for workers compensation medical care. This is optional, employers can choose a network or not. This is a major new provision, rather complex, and still in the works since rules were to be adopted by Dec. 1, 2005. Essentially, networks will designate treating doctors, and injured workers must choose a treating doctor from the network list. For several years, the number of docs in the system had been decreasing, and the hopes are that these changes will help attract more quality MDs back into the system, and afford employers more control; the employee still has choice, but for those employers with certified networks, the employee must choose a doctor in the network. (However, they can redirect for a second visit).
  • Employee benefits will increase after 10/1/06 (according to AON, by about 15%) and the waiting period for payment of Temporary Income Benefits is reduced from 4 to 2 weeks.
  • Exclusive remedy is bolstered to encompass some claims that were previously denied, such as horseplay. While these were meant to exclude employees who were at fault, the end result was that denied employees were free to sue for damages.
  • A fee schedule for prescription drugs has been added.
  • The Supplemental Income Benefits eligibility has been tightened in terms of work-search requirements
  • The Hazardous Employer Program will be eliminated. This was a program that identified employers with injury rates substantially higher than those anticipated for their industries. Once identified as Hazardous, these employers were mandated to hire a consultant approved by the Division.

Resources
Texas Department of Insurance page on the new law
Key provisions and frequently asked questions about the new law broken into separate sections for employees, for employers, for health care providers, and for insurers; also, House Bill 7 Frequently Asked Questions for Employers and Insurance Carriers.

Changes in Texas Workers� Compensation (pdf)
An excellent summary and analysis of the changes by AON, September 2005.

Texas Enacts Workers� Compensation Reform Featuring MPNs, Administrative Reforms
A brief summary of the reform by Sedgwick June 3, 2005.

Texas Workers� Compensation 2005 Reform (HB7) Overview (pdf)
A brief summary of the changes in the law by St Paul Travelers.

Texas Reforms Its Workers' Compensation System
Summary of the new law by law firm Littler Mendelson.

The complete text of the law
The text shows additions and deletions from the prior law.

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December 5, 2005

 

We all know that morbidly obese people are at risk for a wide variety of health problems. But do they pose inherent dangers to others? In a recent case decided in Oregon, a 550 pound trucker was suspended and eventually fired because his employer believed he posed a risk to others on the road: due to his girth, he might have trouble turning the steering wheel, which was pressed by his stomach. A jury begged to differ.

Driving Versus Lifting
This was not a simple case. The issue first arose when the driver, John McDuffy, was given a smaller-than-usual vehicle. The steering wheel adjustment mechanism was broken, so he could not fit in the cab. When he reported the problem, he was suspended.

"I could see them suspending me if I did something wrong, or if I couldn't do my job," he said. "But I'd been there 14 months. I'd always done my job..."

Before allowing McDuffy to return to work, they subjected him to a physical capacities exam, where they videotaped him climbing in and out of the truck. (I would be interested to know whether such an exam was in itself an act of discrimination, as McDuffy was singled out to take it due to his size.) The video tape became an important piece of evidence in the trial.

The treating doctor stated that driving was not a problem for McDuffy, but he was not released to handle freight. What is not clear from this article -- and what may be the most important point of all - is whether handling freight was an essential part of the job. If freight handling was essential, then McDuffy was not able to perform the work and could have been safely terminated (after options for accommodating him had been thoroughly explored). However, the employer did not focus on the issue of handling freight, but on a more general concern for public safety relating to the operation of the vehicle.

Warn's Warning
McDuffy's defense quoted an internal memo from the company's risk manager, aptly named Tammy Warn, who observed about another obese driver at the company: the man's excessive girth was a problem because "his protruding belly gets in the way of the steering wheel."

Within a week of this memo's writing, McDuffy was suspended.

McDuffy returned to work in some capacity (the article is not clear about the circumstances). While working, he bent to pick up something off the trailer floor and pulled a muscle in his back. He went out on workers comp for several months. During his prolonged disability, he was fired. So he sued. In November of this year, a jury found that the employer had discriminated against McDuffy and awarded him $109,000.

Lessons
McDuffy's employer made at least three fundamental mistakes. First, the employer failed to focus on the essential requirements of the job, which appeared to include elements of handling freight which McDuffy could not perform. Second, the employer was unable to demonstrate that McDuffy's obesity directly impaired his ability to drive. Finally, the employer resorted to a blanket defense that tried to cast all obese drivers in a common light.

LynchRyan reminds employers to focus relentlessly on the essential elements of the job. Every disability law empowers employers to define the nature of the job and how it is to be done (while requiring accommodations in certain circumstances). Had McDuffy's employer done this, they could probably have avoided the court case.

Obese Truckers
We learn from a trucking website that obesity is not uncommon in the trucking industry. In a 2004 survey, researchers found that the average OOIDA member was 5�10� tall and weighed 216 pounds � a 31 percent body mass index (BMI) number, or 1 percent over what the Centers for Disease Control and Prevention considers obese. In an earlier 2001 survey, the OOIDA Foundation found that roughly 87 percent of truckers polled were either overweight or obese.

While it's true that obesity may place these drivers at greater risk for injury, there is no evidence that there are increased risks to the general public. Driving, by definition, involves a lot of sitting - the kind of inactivity that leads directly to weight gain. Savvy transportation companies might do well to encourage their drivers to participate in wellness programs. There's no discimination in that -- and in the long run there would likely be significant reductions in costs, along with an increase in productivity.

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December 1, 2005

 

This past July, Missouri's Governor Blunt signed legislation overhauling the state's workers compensation statute, swinging the pendulum much more heavily in favor of the employer. (In a prior post, my colleague Jon Coppelman commented on some of these changes while they were still under review.) Yesterday, more than 70 labor groups filed suit to challenge the constitutionality of the new law. The suit charges that:

"The workers' compensation system was created as a way to resolve injury claims through administrative proceedings rather than the courts. But the lawsuit contends the "drastically altered" law diminishes workers' rights to the point that the administrative system no longer is an adequate substitute for suing in court.

It alleges multiple due process violations of the state and federal constitutions, as well as equal rights violations for allegedly discriminating against older workers and others. The lawsuit claims that new drug testing policies violate rights against unreasonable searches. And it claims new legislative and executive branch control over administrative law judges who hear workers' compensation cases violates the constitutional separation of powers."

Major provisions of the new law
The new law involves many changes. Some of the most significant changes tighten the definition of compensable injuries. An injured worker must now demonstrate that work was the prevailing factor or primary cause of an injury. Previously, the standard was that the work had to be a substantial factor; also, the new law redefines an accident to be "an unexpected traumatic event or unusual strain identifiable by time and place of occurrence and caused by a "specific event' during a 'single work shift,' " notably striking the words "with or without human fault."

The law adds a mechanism allowing for a 25% to 50% reduction in benefits if the injured worker failed to use a safety device or was not following safety rules. Significantly, this failure does not have to be willful. We find it troubling that coupled with this change is the provision that employers now only need to make a "reasonable effort" rather than the previous "diligent effort" to get employees to use safety devices and to follow safety rules. This effectively shifts the burden of safety from the employer to the employee. It's hard to understand what the thinking was behind any provision that would weaken safety standards in any way.

There are many other changes - for a more in-depth view, Administrative law judge Carl Mueller produced a 20 page review of the new Missouri law (pdf) comparing it to the old law; or see The Employer's Guide to Understanding the New Missouri Workers' Compensation Statues (pdf) by J. Scott Gordon of Long, Luder & Gordon.

Be careful what you wish for?
We wouldn't venture any predictions about whether this particular challenge by labor will succeed or fail, but we would lay money on the fact that if it fails, the matter won't be put to bed. While reform may have been needed, some provisions in the new law mark an overall shift away from the no-fault pact that has been at the very core of exclusive remedy. Any significant erosion of that pact will inevitably lead to an increase in court challenges. To succeed, workers compensation needs to be a delicate balancing act between the rights and responsibilities of both the employer and the employee. Any swing of the pendulum that shifts the balance too heavily in favor of the employer will drive aggrieved workers to the courts, the very thing that workers compensation laws were designed to protect employers from. Time and the courts will tell whether Governor Blunt's reform will prove to be too blunt an instrument.

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