February 2008 Archives

February 29, 2008

 

We came across an article in the Columbus Dispatch by a reporter with the irresistible name of Encarnacion Pyle. It's about the "novel" use of temporary modified duty at Ohio State University. With its workers' compensation costs nearing $10 million a year, OSU finally discovered the idea that has been circulating among enlightened managers for 20 years or more: "moving ill and injured workers to less-demanding jobs instead of leaving them at home while they recover."

The new modified duty program has already saved OSU $4 million -- more than double what the college had expected. That number doesn't include savings from hiring fewer temporary workers and from projected reductions in premiums for workers' compensation insurance. Lower premiums probably will produce $500,000 in savings this year and reach $1.5 million annually within five years.

"We save money, and our employees feel productive and learn new skills and make new friends," said Tori Weeks, who manages OSU's disability programs.

Since January 2007, Ohio State has reassigned 500 employees -- about 95 percent of the workers with temporary medical or psychological restrictions on what they can do. The other 5 percent are in the hospital or are hurt too badly for even light assignments, such as data entry.

I am tempted to ask OSU: "Where have you been?" Modified duty is not something that takes years to develop in a laboratory. You don't have to wait until costs are wildly out of control to implement the program. But rather than criticize OSU for being so low to respond to the problem, let's give them credit for implementing a first class program.

Healing Words
Our esteemed colleague, Dr. Jennifer Christian, CEO of Webility.md and a guru in occupational health, finds more news in the OSU program than I did. Here is her take on the article:

Two people have sent me this happy story about the financial payback of a stay at work/return to work program from an Ohio newspaper -- and it has some really good phrases that might be helpful to you in marketing these programs to employers. Selling ideas requires skill with language because the words you use are going to create a response in the gut/heart/head of the listener.

1. The first one is in the topic sentence: "moving ill and injured
workers to less-demanding jobs instead of leaving them at home while
they recover." Note this: "moving" instead of "assigning"
or "putting" sounds more benign. "Leaving them at home" is similar
enough to "leaving them alone" that it creates the feeling in the
reader that staying home is like being abandoned.

2. The second one is "We save money, and our employees feel
productive and learn new skills and make new friends." Note this:
this sentence is a list of THREE different areas of benefit to the
worker.

3. The third one is "by avoiding the workers' compensation system,
workers receive their regular pay no matter where they end up during
their reassignment." Note this: the word "avoiding" the work comp
system really emphasizes that this is protecting the working!

OK, I admit it. I am a word nut.

Jennifer has done a nice job of diagnosing the spirit and language of the OSU program that make it special. OSU has infused the return-to-work program with positive energy. OSU might have taken its sweet time to develop the program, but they have brought a subtle dimension of compassion and thoughtfulness that is instructive to those of us who have been developing these programs for decades. Thanks to OSU for doing it the right way - and thanks to Jennifer for recognizing their accomplishment.

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February 28, 2008

 

From time to time, we like to share a mixed bag of useful tools ranging from health and safety resources to productivity enhancers. Here are our latest finds:

Compliance - State labor legislation enacted in 2007 - the Monthly Labor Review's 29-page PDF offers a summary of major labor changes on a state-by-state basis, including minimum wage, immigration initiatives, child labor, worker privacy, and many other legal matters.

Trucking - Safe Stat is a safety resource for trucking, transportation and fleet safety. It's a Department of Transportation site that includes such features as SafeStat, Crash Profile, Program Measures, and Current Analysis Results.

California - PD Rater bills itself as "a free benefits calculator for California.

Georgia - Georgia Tech's OSHA 21D Consultation Program provides a free, confidential, on-site consultation service for small companies (fewer than 500 employees) in Georgia that need assistance in occupational safety and health.

Spanish - Georgia Tech's OSH program also offers construction safety information in Spanish: Seguridad en la Construcción. The program includes posters, fliers and PowerPoint presentations. Other Spanish safety programs are also available.

Annoyances - Do you ever make a quick call and find yourself stuck in a nightmare automated loop and you can't access the service you called for? Grrr. Here are two services that might help. Get Human is a company-specific database of phone numbers that will bypass the robots and get you directly to a human customer service rep. Sometimes they provide a direct number and in other cases, they give you the magic formula code numbers that will get you through. I've used this service a few times and it works. Someone also recently pointed me to an alternative service along the same lines, except it will do most of the work for you. Bringo! allows you to choose a company that you'd like to call from a list, you enter your number, and Bringo will call you back and connect you after they get through the phone tree and reach a human.

Travel productivity - If you travel a lot for work, FlightStats might be a lifesaver. The site allows you to track lights in real time, check on airport delays and wait time, and a links to a variety of other flight-related tools.

Search - Google has more search tools and web tools than you probably realized, some tucked away in various corners of Google that you may not have occasion to visit. Simply Google lets you access all Google's tools one page without having to poke around to find them.

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February 27, 2008

 

A few days ago we blogged insurance crime for amateurs: the saga of Regency Insurance, which was an insurance operation in name only. Today we deal with three big Kahunas: Marsh & McClennan, AIG and GenRe. When it comes to insurance crime, it just doesn't get any bigger than these folks.

Before we get to the particulars of the Marsh situation, we need to acknowledge the ambiguity that lies at the heart of the agent's role. In recommending the best insurance product for their clients, agents face a "perverse incentive." The lower the premiums for the client, the lower the agent's commission. The agent has a financial incentive to place the business either with a more expensive carrier, or with a carrier who pays higher commissions. The interests of the agent and the client are not always aligned.

Which leads us to the clever solution fashioned by some folks at Marsh. Bill Gilman and Ed McNemmy, former Marsh executives, solicited inflated bids from some (cooperating) carriers, so that the carrier they preferred would appear to be the lowest bidder. That's illegal, of course. Bill and Ed have been convicted of one count of bid rigging and face up to four years in prison.

Gilman's attorney, Robert Cleary, has not given up the fight. "Bill Gilman was really the client's best friend and the insurance carrier's worst enemy," he says. "We look at this as merely round one." That's an interesting statement, which goes right to the heart of the matter. Gilman was many things, but given his cosy relationship with the carriers who participated in the scheme, he certainly was not "an insurance carrier's worst enemy."

Big Names, Really Big Mistake
The second criminal act involved two insurance behemoths: AIG and GenRe. AIG has a justly deserved reputation for insuring anything that moves (and some things that don't), the bigger the better. Nothing wrong with a hearty underwriting appetite, but in embracing some pretty exotic risks, the company is vulnerable to big losses. So Christian Milton, AIG's VP for reinsurance, cooked up a deal with GenRe to hide half a billion in losses: GenRe wrote a policy to "cover" the losses, when in fact AIG was still on the hook for payment. In other words, this was risk transfer (insurance) without the risk or the transfer.

Why bother? By cooking the books, AIG artificially inflated its profitability - and the value of its stock. High losses magically disappeared from the books. Ingenious, yes, but illegal. By participating in this fraud, GenRe executives are facing serious fines and jail time. We're talking about people at the very top of the insurance food chain: Ron Ferguson, 63, former CEO of Gen Re, was found guilty on charges of conspiracy, securities fraud, false statements to the SEC, and mail fraud; Elizabeth Monrad, 51, CFO of Gen Re, was found guilty on charges of conspiracy, securities fraud, false statements to the SEC and mail fraud; Robert Graham, 58, SVP and assistant general counsel, was found guilty on charges of conspiracy, securities fraud, false statements to the SEC and mail fraud.

These former executives were mostly "boomers" - nearing undoubtedly lucrative retirements. The one exception is Liz Monrad, whose financial skills helped her break through the glass ceiling for women - only to crash back through it by her willing participation in fraud. These highly trained professionals are facing substantial jail time and fines for their cozy deal with AIG - a deal that ironically held no risk for GenRe. Ultimately, there was plenty of risk, just not the type they included in their calculations.

Why did these very well paid executives stake their careers on these ill-advised schemes? The motivation is not much different from that of the losers who concocted the Regency Insurance scam: sheer greed. There was (and is) a heck of a lot of money on the table. They did it because they could, and because they assumed with the customary arrogance of the truly powerful that they would get away with it. Which serves as a reminder to the rest of us that we all participate in ethical risk assumption and risk transfer, every day of our lives. Let's hope we do a better job of it than these (former) captains of the industry.

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February 26, 2008

 

There are various circumstances in which an injury that occurs during a recreational activity might be compensable. One exception might be if the injury occurs on company premises or at a company-sponsored event, a likelihood that approaches near certainty if participation in the event was mandatory. Another common exception is in the case of traveling employees. When employees are engaged in business travel on behalf of their employer, compensable activities may encompass a variety of activities that would likely not be compensable for a "fixed place" employee. For the purpose of workers compensation, a traveling employee is generally considered to be working continuously during the business trip unless a special deviation from business can be determined. Daily life and personal comfort activities that would not be covered at home are generally considered work: eating, sleeping, and traveling, for example, as well as some recreational activities.

Roberto Ceniceros of Business Insurance has a brief write-up of a judgment by Washington's Supreme Court that offers an excellent illustration of the traveling employee doctrine at work. Alfred Giovanelli was a skilled firebrick mason who regularly traveled the country to rebuild and fix furnaces for Saint-Gobain Corporation (formerly Ball-Foster Glass Container Company). During one assignment at one of the company's plants in Seattle, he was injured on his day off. He was headed to a park with his supervisor to investigate a concert, but on crossing the street in front of his hotel, he was struck by a vehicle and grievously injured. He applied for and was granted workers compensation. His employer continued to appeal on the basis that the Giovanelli was engaged in a recreational activity that had no business purpose. The appeal wended its way through the various strata of the court until the matter reached the Supreme Court where compensability was upheld. In his article, Ceniceros notes:

The doctrine--also known as the "commercial traveler rule" or the "continuous coverage rule" -- generally states that a traveling employee is considered to be in the course of employment during his or her entire trip, except for "a distinct departure on a personal errand," court records show.

The case document - Ball Foster Glass Container Company v. Alfred Giovanelli and the Department of Labor and Industries in the State of Washington - is worth a read. It's pretty plain-spoken and it illustrates various principles that generally apply to workers compensation. It offers a brief history of how workers comp evolved, and the adoption of the British Compensation Act's formula of an injury "arising out of and in the course of employment" - nine not-so-simple words that have spawned innumerable court challenges. The document discusses this phrase in this context and moves on to discussing the matter of whether Giovanelli fit the definition of a "traveling employee" (yes) and the meat of the case, whether Giovanelli had "left the course of employment" when he was injured. In its discussion, the court referenced a few cases when compensability for recreational activities was denied:

Although distinguishing between reasonable personal ministrations and purely personal amusement ventures may be difficult, courts have had little difficulty denying compensation for unusual or unreasonable activities. See, e.g., E. Airlines v. Rigdon, 543 So. 2d 822 (Fla. Dist. Ct. App. 1989) (denying compensation for employee injured during skiing trip at resort over 50 miles from hotel); Buczynski, 934 P.2d 1169 (hot tub injury occurring in hotel 150 miles away from convention center and days before convention not compensable).

The employer argued that Giovanelli's activity was a deviation and that crossing a thoroughfare without the right of way was an "inherently dangerous" activity. The Court disagreed, citing the personal comfort doctrine, and finding that negotiating unfamiliar streets is one of the typical risks that a traveling employee faces. In the discussion of personal comfort, the Court stated:

The scope of activities covered by the personal comfort doctrine depends on the particular circumstances of employment. A traveling employee is entitled to broader coverage than a nontraveling employee because a traveling employee is in a significantly different position of risk than a nontraveling employee. The nontraveling employee may satisfy his personal needs without leaving the comfort of home. In contrast, the traveling employee must face the perils of the street in order to satisfy basic needs, including sleeping, eating, and seeking fresh air and exercise.
In evaluating this particular activity, the Court found that Giovanelli's crossing the street did not represent a significant deviation from the course of employment.

For further discussion on these matters, see Jim Pocius' excellent discussion of Workers Compensation and Course of Employment. He looks at the issues of course of employment, fixed place versus traveling employees, and scope of employment. He also offers excellent advice to employers on how to minimize risk:

  • Make social events voluntary. An employer should not make attendance at a social event mandatory. The less control that an employer exerts over social events, the less chance there will be that an injury during a softball game, volleyball game, basketball game, etc., will be considered within the course of employment.
  • Enforce work rules. If the employer has a valid set of work rules that are enforced, such employee behavior as fighting, foul language, and wandering to restricted areas of the plant can all be considered activities which would remove the employee from the course of employment.
  • Keep traveling employees to a minimum. There are innumerable cases of traveling employees being hurt while in vehicles, hotels, and restaurants. In order to avoid this liability, traveling employees should be kept to a minimum if your business permits.
  • Do not send fixed place employees on special missions unless absolutely necessary. If your employees work at one location, the employer must try to keep casual missions by these employees to a minimum. Thus, sending an employee to obtain a form at a state office building or run other errands increases workers compensation exposure.
  • Investigate all claims. As always, good factual investigation on any questionable course of employment claims will pay dividends during litigation.

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February 25, 2008

 

The fact that a U. S. Senator has filed a bill on independent contractors is not a major news item. But the senator is Barack Obama, and the bill, S. 2044, is entitled "Independent Contractor Proper Classification Act." Obama has zeroed in on an issue of abiding interest to the Insider - and to all who deal with employment issues on a daily basis. (Search this site for our many postings.)

Obama's bill would amend the Revenue Act of 1978 in three key areas:
1. Requires employers to treat workers misclassified as independent contractors as employees for employment tax purposes;
2. Repeals a ban on Treasury regulations or revenue rulings on employee/independent contractor classification issues; and
3. Eliminates the defense of "industry practice" as a justification for misclassifying workers as independent contractors.

The bill enables workers to petition the Treasury Secretary for clarification of their status. It prohibits employer retaliation against any workers filing these petitions. Language describing the petition process would be added to required workplace postings regarding employment rights. Finally, the bill requires any employer hiring an "independent contractor" to provide the following notice to the individual:

Each employer shall notify any individual who is hired...as an independent contractor...of the Federal tax obligations of an independent contractor, the labor and employment law protections that do not apply to independent contractors, and the right of such independent contractors to seek a status determinations from the IRS.

The FedEx Factor
Obama's bill may well languish in committee. But to the degree it reveals the presidential candidate's thinking, it is significant. I imagine that FedEx is paying close attention: the embattled delivery behemoth is fighting - and losing - a state-by-state defense of its hiring practices. Those ubiquitous "independent contractor" drivers, in their cool FedEx trucks and natty FedEx uniforms, are looking more like employees every passing day. If S. 2044 becomes law, or if Obama's quest for the presidency succeeds, FedEx will probably have to throw in the towel. In the meantime, FedEx is undoubtedly writing a few hefty checks to a candidate whose name rhymes with "pain."

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February 21, 2008

 

Health Wonk Review is posted at GoozNews, a first-time host for this health policy compendium. GoozNews is the blog of Merrill Goozner, who was in the news business for 25+ years as a foreign correspondent, economics writer and investigative reporter for the Chicago Tribune. His freelance work has appeared in some of the nation's most prestigious publications. He's also been a professor, a researcher, and an author of the 2004 book, “The $800 Million Pill: The Truth Behind the Cost of New Drugs.” All in all, a welcome new voice in our wonkosphere!

Other news notes:
Judge says second-hand smoke contributed to worker’s cancer - Roberto Ceniceros of Business Insurance reports that a NJ judge ruled in favor a casino dealer's workers compensation claim that her 10-year exposure to second-hand cigarette smoke caused her lung cancer. Not only was she awarded benefits, but if she dies, her husband would be eligible for dependent benefits for life.

Why is workers comp reimbursement based on Medicare? - a good question posed by Joe Paduda who thinks states should start thinking now about a smarter way to pay docs.

Hide, Here Comes the Insurance Guy - We haven't read this book, but someone passed this link along to us and we were amused by the title. The premise of the book is that all companies have risk, but few have budgets big enough to warrant a risk manager so this is a primer for all those do-it-yourself small to mid-size businesses. Sounds like it might be worth checking out.

The Myth of the Risk Manager - as long as we are on the topic or risk managers, Robe Enderle has an article on "why the risk manager position is a dead-end job."

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February 20, 2008

 

Insurance companies handle a lot of cash: a lot of money flows in (insurance premiums); a lot of money flows out (insured losses, administrative expenses, the cost of reinsurance). For legitimate carriers, a good year results when the premium dollars collected exceed total losses combined with total expenses. By prudently investing premium dollars, you can even make money when total costs slightly exceed the premium income.

What if you could eliminate, or at least severely limit, the dollars flowing out? What if you set up a scheme where you collect premium dollars, but you eliminate the step of purchasing insurance? Perhaps you pay some small claims, to keep up appearances. But when the catastrophic losses hit, you ignore them.

As far as criminal schemes go, this one is pretty stupid. There is an inevitable - and I do mean inevitable - day of reckoning, when the unpaid claims finally catch up with you.

All of which serves as an introduction to Donald Touche, Richard Standridge and Robert Jennings, operators of a diverse group of Third Party Administrators: Don ran Stat-Care out of California; Rich ran Global Healthcare and EOSHealth out of Arizona; and Bob operated Interstate Administrative and TPAOne out of Illinois. Their primary clients were professional employer organizations (PEOs). For three years - 2000 to 2003 - they sold insurance through non-existent companies: Regency Insurance of the West Indies and TransPacific International Insurance. On February 13, 2008 the house of cards came tumbling down, when all three were convicted of mail fraud, wire fraud and money laundering by a federal jury in Jacksonville, Florida.

The boys are facing some pretty serious jail time: 100 years each plus millions of dollars in fines. Gosh, it seemed like a good idea at the time...

The owners of several PEOs testified for the government. They admitted to knowing that the insurance was fraudulant. They are also going to jail, but unlike Don, Rich, and Bob, they have a chance of getting out to enjoy their retirement years.

The most damning testimony was provided by workers with catastrophic injuries. One man had lost both legs, but was unable to obtain prosthetics. Many severely injured workers had not collected any workers comp benefits. Insurance fraud of this type is not a victimless crime.

This sorry saga comes to a formal end in May, when the sentences are handed down. We are unlikely to see these three entrepreneurs on the street ever again. Their money laundering days are over, but it's nice to imagine that their steamy days in the prison laundry have only just begun.

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February 19, 2008

 

Our colleague Peter Rousmaniere has a fascinating article on PPOs in the current issue of Risk & Insurance magazine, entitled "Has Competition Vanished?" Coventry has become the 900 pound gorilla of workers comp medical services, with 4,700 hospitals and 580,000 doctors. Through the aggressive use of acquisitions and partnerships, Coventry is approaching monopolistic status. The question, of course, is what this means for the carriers and employers using the network for workers comp. Is the Big Kahuna delivering quality services?

Coventry begins with a promise to their payers: they will secure medical services at a discount. According to one source, Coventry slashes more than 30 percent off state fee schedules. While this might be appropriate in states with inflated fee schedules (Connecticut comes to mind), it is definitely counter-productive where fee schedules are already putting the squeeze on providers. When you are dealing with as many providers as Coventry, it is tempting to grow fat off the small margin of a small margin. Unfortunately, slashing fees is no quarantee of quality. In addition, it's often an invitation for providers to rely on quantity to make for skimpy reimbursements: repeated (and unnecessary) visits become "just what the doctor ordered."

With its sophisticated understanding of the market it now dominates, Coventry is hedging its bets. They struck a deal with Aetna to sell and market the latter's innovative program, Aetna Workers Comp Access. Aetna is building a network of providers selected for good clinical outcomes and economy in treatment. They have built 27 networks so far, with more on the way. Aetna is onto something important: instead of relying on discounts, they are looking for providers who understand return-to-work philosophy. Their primary concern is the quality and effectiveness of treatment.

Aetna is moving in the right direction. I hope they offer medical providers financial incentives for speeding the return-to-work process. Rather than demanding discounts, they should offer a reimbursement scheme that rewards results: fee schedule plus, not minus.

It will be intriguing to watch the partnering ritual between humongous Coventry and willowy Aetna. In many respects they are unlikely partners, with diametrically opposed philosophies. In the struggle between cost cutting and treatment quality, something has to give (and it's usually quality). I'd like to think that Coventry will see the value of paying more for something that produces better results. If they do, we may see something truly unique: a big gorilla that really knows how to dance.

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February 14, 2008

 

Chad Hennings spent nine years as a lineman for the Dallas Cowboys. He accounted for 28 sacks, 6 fumble recoveries, 4 return yards and 1 touchdown in 107 games before retiring after the 2000 season. He also suffered permanent damage to his back. The question is whether or not his work-related back injury is compensable under the Texas workers comp system.

The Texas workers' comp law treats pro athletes as a special class. Under Texas Labor Code §406.095(a), a pro athlete "employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided" by workers' comp must make an election between the two types of benefits. At first glance, it's a no-brainer. Henning's benefit package as a player dwarfs benefits under the comp system: he earned $1.4 million in salary and benefits in his final season with the Cowboys, including $225,000 under an "injury-protection clause," $38,921.98 from the Cowboys to cover his medical costs and $87,500 in severance pay.

Reversing Field
At first, the court system threw Hennings for a loss. The 10th Court's original July 23, 2007, opinion deemed Hennings' overall contractual package of salary and medical benefits during his pro football career to be higher than benefits available under workers' comp, thus rendering Hennings ineligible for such benefits under Texas law. But in its Jan. 30 opinion, the court reversed itself and upheld a jury finding that, in Hennings' case, workers' comp was a better deal for him because of its longer duration. After re-consideration, the court separated the indemnity benefit (where comp was insignificant) from the medical (where taken over a lifetime, comp might well exceed the deal offered by the Cowboys). In other words, Hennings's medical benefit of $38,921 might well prove less than the lifetime medical charges for treating his back problems. Heck, he could blow through that in a single surgery.

Based upon the Court's ruling, a Texas-size door has been opened for all professional athletes in the state to access the robust medical benefits of the workers comp system.

The decision may not help many retired pro athletes, because it may be too late for them to seek workers' compensation; the statute of limitations may have run on their potential claims. (Most states require that claims be filed within 2 years or less of the occurrence.) Going forward, I would not be surprised to see players routinely file comp claims immediately after injuries, knowing that they will not qualify for benefits in the short run, but protecting their interests once they quit the game.

Rate Setting Dilemma
If professional athletes are increasingly successful in their efforts to win workers comp benefits, insurance carriers and regulators will face an interesting dilemma: determining an actuarially defensible rate for coverage. Right now, the Scopes classification manual offers just two classes for professional athletes:

Class code 9178 Athletic Team or Park: Non-Contact sports. Applies to players, coaches, managers or umpires and includes all players on the salary list of the insured, whether regularly played or not. Non-contact sports include baseball and basketball.

NOTE: Authors of the Manual obviously did not see the Detroit Piston "bad boys" in their prime!
Class code 9179 Athletic Team or Park: Contact Sports. Applies to players, coaches, managers or umpires...Contact sports include football, hockey and roller derbies.

As a point of reference, the current rate for class 9178 in Massachusetts is $23.11. Oddly enough, the rate for 9179 (contact sports) is slightly lower at $22.55. That is well below the rates for roofers and steel erectors.

NCCI might want to consider some serious revisions to the Scopes Manual. To begin with, separate classes are needed for coaches (relatively modest exposures) and players (huge exposures). They might even want to approach it in a manner similar to the construction industry, where the payroll is broken out by activity: field goal kickers, for example, are lower risks than lineman. Running backs are always at risk for knee injuries. And after the most recent SuperBowl, it appears that quarterbacks take their lives in their hands with every snap of the ball.

A Parallel Universe?
Professional athletes and workers comp are an odd mix. Where comp offers a combinatin of indemnity and medical benefits, for athletes the only issue is medical. With their enormous salaries, athletes will rarely have a need for indemnity benefits, which top out around $50,000 a year in even the more generous states. Medical benefits are a different matter entirely. When it comes to work-related injuries, comp provides lifetime coverage, with no co-pays, no deductibles and no time limits. Comp offers the best medical coverage of any kind, anywhere in the world. Just what a disabled athlete needs...

The permanent partial and permanent total exposures for football players are humongous: concussions, back injuries, blown out knees, torn rotator cuffs, torn biceps, nerve damage. Feed the injury data from pro football and pro baseball to an actuary and you'll generate a rate that exceeds the current top ticket professions of structural steel erectors and lumberjacks. The rate would soar well above $100 per one hundred dollars of payroll.

The optimum solution lies outside of the comp system. Workers comp indemnity is simply not crafted to protect the interests of (wildly overpaid) athletes. The players associations of the various professional sports need to sit down with management and craft a parallel universe: not the conventional workers comp system, but a combination of income protection and lifetime medical benefits that contemplate the real risks inherent in professional sports.

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February 13, 2008

 


Cavalcade of Risk #45
is now posted at I’ve Paid For This Twice Already…, a blog that intriguingly describes itself as being "From financial imprisonment to financial independence, a penny at a time. This is one family’s story." It's a good healthy issue, lots of posts covering a variety or risk-related matters.

And while we're on the topic of risk, one rather fascinating insurance-related item turned up in our mailbox this week that we can't resist sharing: Supposedly, erstwhile heartthrob Tom Jones has his chest hair insured. Despite the press coverage, we don't know if this story is fact or fiction, although it's been making the news lately. We couldn't verify, but a Google search turned up an older Risk & Insurance article entitled Insuring the flesh, a discussion with Jonathan Thomas, the man who underwrites celebrity body parts coverage for Lloyd's of London. Lloyd's is famous for being a firm with a reputation for insuring unorthodox risks. From star athletes and singers to circus performers and food critics, there are any number of celebrities who find it makes sense to insure a particular asset. In the interview, Thomas separates fact from fiction as he discusses this rather esoteric niche in risk management. Here's just a sampling: Fiction: Jennifer Lopez insures her rear end. Fact: Marlene Dietrich insured her celebrated legs.

Slate magazine also ran an article billed as a primer on body parts insurance, which notes that you don't have to be a celebrity to insure a particular body part - provided you're willing to ante up the premium. They offer examples: In the United Kingdom, the members of the Derbyshire Whiskers Club insured their beards against "fire and theft," and a soccer fan insured himself against psychic trauma if England loses this year's World's Cup.

These articles sent us scurrying to the Lloyd's Web site to look for more. While a cursory search didn't turn up much in the way of celebrity fare, we did find some interesting items that might be instructive to insurance geek and layman alike:

There are also some interesting historical articles about the Lloyd's chronology from the 1700s on - a glimpse into the early years of our industry.

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February 12, 2008

 

The Americans with Disabilities Act of 1990 attempted, among other things, to eliminate workplace discrimination against people with disabilities. No one can argue with the goal. Over the years, problems have emerged in determining who meets the ADA definition of disabled. Nearly sixteen years after full implementation of the law, this remains a murky area in need of clarification.

Under the ADA's original definition, a disability was something that limited "one or more major life activities" such as standing, walking and breathing. In the view of the U. S. Supreme Court, a person who can successfully use a mitigating device (hearing aid, corrective lenses, medication, etc.) is by definition no longer disabled. And because the person is not disabled, they are no longer protected by the ADA. Your basic "Catch 22."

By stripping away protection from at least some people who might be considered disabled, the Supreme Court appears to go against the original intent of the Act. So Congress wants to fix it. They have drafted the ADA Restoration Act, through which they intend to make the intent of the law so clear, even a Supreme Court Justice will understand it:

Sec 7. Rule of Construction
Broad Construction.-In order to ensure that this Act achieves its purpose of providing a comprehensive prohibition of discrimination on the basis of disability, the provisions of this Act shall be broadly construed to advance their remedial purpose.

In other words, when in doubt, assume a person is disabled and act accordingly.

Clarity or Confusion?
Under the Restoration Act, the definition of disability becomes much broader and all-encompassing. The "substantially limits" criterion has been dropped. Transient injuries or temporary adjustment problems appear to be covered. (The proposed bill could easily merge workers comp claims with the ADA, thereby creating a litigator's paradise.) The draft law includes impairments that are "episodic, in remission or latent." It includes "emotional illness" and "specific learning disabilities." The new definition is so broad, many of us would be eligible at one time or another.

The generous definition of disability could well have an unintended consequence: by expanding eligibility, the new law would lose its focus on the people who need protection the most - those who face persistent and profound obstacles in their effort to secure or maintain employment. Another consequence would harm employers, already burdened by the exacting procedural standards governing their behavior under the ADA. More inclusive eligibility would open the door to potentially frivolous claims.

Ironically, in the years since its implementation, the ADA may have had a negative impact on employment of the disabled: it appears that overall levels of employment for the disabled actually declined after ADA implementation in 1992. Employers avoided the problem with a "when in doubt, leave them out" approach. Rather than risk running afoul of the new law, many employers apparently turned their collective backs on all disabled applicants (and in doing so, violated the ADA!).

In the draft law's current form, "restoration" is a misnomer. The act would significantly expand the umbrella of protection to millions of people not currently covered. In solving one very real problem (a narrowing interpretation of eligibility), another has been created: blurred eligibility lines that are too inclusive for practical purposes. The reform legislation needs some reforming. Congress should keep its focus where it is needed most: on Americans with legitimate, long-term, life-altering disabilities, people whose access to productive work has been hindered by artificial barriers. The original ADA was a good beginning. The Restoration Act in its current form is a giant step in the wrong direction.

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February 11, 2008

 

We sorely miss Jordan Barab's participation in the safety blogosphere - he was a tireless crusader for workplace safety. Whenever a work tragedy occurred, such as last week's Imperial Sugar Refinery explosion that claimed the lives of 6 workers, we could always count on Jordan to offer details and expertise on the matter that couldn't be found elsewhere. So we have been pleased to note the emergence of a few new blogs that have stepped up to the plate.

OSHA Underground provides both knowledge of OSHA and technical expertise about a variety of work safety issues. It's quite obviously the blog of a frustrated insider, KANE, who is vocal about diminishing OSHA resources and lack of agency leadership at the top. On Friday, KANE blogged the refinery explosion, noting that the Chemical Board had previously identified explosive dust hazards as a safety issue that needed to be addressed by OSHA. KANE also posted a list of OSHA's comprehensive refinery inspections since March 2007, and a letter from Congressman Miller to Elaine Chao calling OSHA to task for not having enacted a standard to prevent combustible dust explosions, as recommended by the Chemical Safety Board (CSB) in November 2006. Miller notes that the CSB report identified 281 combustible dust incidents between 1980 and 2005 that killed 119 workers and injured 718.

The Pump Handle, another blog that is addressing work safety issues, also weighs in on the Imperial Refinery explosion, noting that this is the second catastrophic industrial explosion involving multiple fatalities in two months. In his post, Francis Hamilton Rammazzocchi runs through the frustrating history of the Chemical Board's recommendations to OSHA that might have prevented such tragedies: The [Chemical] Board found that "Reactive incidents are a significant chemical safety problem," but that OSHA's Process Safety Management standard "has significant gaps in coverage of reactive hazards." The Board therefore unanimously recommended that OSHA "Amend the Process Safety Management (PSM) Standard, 29 CFR 1910.119, to achieve more comprehensive control of reactive hazards that could have catastrophic consequences."

And the response since this prescient recommendation?

More than five years after the CSB's recommendation was issued, OSHA has refused to act. In typical Bush Administration fashion, instead of revising the PSM regulation, OSHA established an "Alliance" of chemical industry associations and published a reactive chemical webpage. The Alliance involved setting up booths at chemical industry conferences, occasional presentations about Alliance activities, and two actual training workshops that trained a total of 36 students. In 2004, the CSB evaluated OSHA's response and judged it "unacceptable," and the Alliance was terminated in March 2007.

Rammazzocchi also faults the media for its pallid coverage and their lack of any call for accountability. He notes that despite being "hip deep in an election year," candidates haven't been questioned in any public forums about their stance on the regulatory agencies such as OSHA and EPA and whether they will call for the agencies do the jobs that they were intended to do.

We've taken OSHA to task more than once for its recent hands-off attitude to safety regulations and enforcement. While no one likes bureaucracy, self regulation by industry insiders, or what some refer to as "the foxes guarding the hen-house" approach, clearly isn't sufficient to ensure worker - and public - safety.

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February 8, 2008

 

In conventional medicine, breast implants come in pairs: in most circumstances, you install (or replace) both at the same time. There is a compelling aesthetic symmetry in the process. In the idiosyncratic world of comp, however, symmetry is trumped by the "work-related" standard.

Penny Rumple Richardson was injured in an on-the-job car accident. Her breast implants were damaged. The North Carolina Industrial Commission determined that the damage was work-related and approved replacement of both implants. The insurance company appealed. Ms. Richardson's doctor, Greensboro plastic surgeon Dr. David Bowers, originally testified that the right implant had ruptured in the accident and the left implant showed signs of rippling, so he replaced both. But presumably when pressed by defense counsel, he conceded that the left implant most likely had rippling because it was under-filled. In other words, damage to one implant is clearly related to the accident, but damage to the other is not.

At the appeals court level, Judges Barbara Jackson and Sanford Steelman Jr. agreed that breast implants are covered in workers' compensation claims, because they are a "prosthetic device that functions as part of the body." However, they determined that only one implant was damaged as a result of the accident. They sided with the carrier in denying coverage for the "rippled" implant.

Judge James Wynn, Jr. dissented. He pointed out that Richardson needed both implants replaced to ensure that they were "symmetrical and evenly matched." Judge Wynn sought to expand comp coverage to include the rather obvious aesthetic considerations, but he failed to convince his colleagues on the bench.

The Draconian remedy, of course, would be to remove the uncompensable implant. Fortunately, that won't happen.
The case has been sent back to the workers comp commission for resolution. We hope Ms. Richardson has conventional health insurance and that it will cover half of Dr. Bowers's fee. If that doesn't work, Richardson herself will have to pay the price for maintaining essential symmetry.

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February 7, 2008

 

Health Wonk Review - David Williams of Health Business Blog is the host of this week's edition of Health Wonk Review - he includes a wide variety of posts and his concise briefs on each entry make it an easy issue to skim through. From here to the election, content should be rich as health care policy positions and debates take center stage.

Defense legal costs: a reader query - One of our readers asked if we had any reports on average costs for employer or insurer legal defense. We turned up this study: Defense Legal Costs of Oregon Workers' Compensation Insurers, 2006 (PDF). (For comparison, see Oregon's 2003 report PDF) If any of our readers can point to other reports or studies on this topic, we'd appreciate it.

Mine safety - Lawmakers are asking questions about why thousands of mine safety violations were never assessed fines. Questions were raised after an investigation by the U.S. Mine Safety and Health Administration showed that penalties had not been assessed for 4,000 citations issued by the agency between January 2000 and July 2006. And while on the topic of mining safety, documents have recently surfaced showing that owners of Crandall Canyon were aware of the mine's structural problems before the disaster. This contradicts owner Robert Murray's post-incident claim to press that, "It's the first time I've heard of this" and insistence that there was no retreat mining in Crandall Canyon.

Lifting training doesn't prevent injuries - A recent study reports that worker training in correct lifting practices doesn't necessarily prevent back injuries. "The researchers say either advocated techniques do not actually reduce the risk of back injury, or workers do not significantly change their habits enough to make any difference. They conclude that a better understanding of the relationship between work-related back stress exposure and the subsequent development of back pain is needed in order to develop new, innovative ways to prevent back pain caused by lifting."

OSHA poster scam - Jason Heilpern of Hazards Recognized alerts us to a phony OSHA poster scam. Some employers are getting mail, calls, and e-mail from scamsters warning them about the need to purchase compliance documentation. He points us to the right source for any posters, as well as contact information for reporting fraudulent solicitations.

New York rate setting change - Roberto Ceniceros of Business Insurance discusses the transition to a loss-cost system for determining New York's workers compensation rates, a move that is expected to usher in greater competition in the state.

South Carolina medical standards - In September, Governor Mark Sanford issued an executive order requiring the state's Workers' Compensation Commission to use objective standards in an effort to control benefit awards which were reported to vary "wildly" averaging 81% higher than other states. The order has faced significant opposition and the dispute is expected to hit the courts this month.

Maryland domestic workers - Some lawmakers are calling for employment contracts for domestic workers who work 20+ hours to stem abuse and mistreatment. Many immigrants work long hours in some of the wealthiest homes in America without the benefit of basic employment protections, such as workers comp, health care, minimum wage, or overtime pay. While the proposed legislation does not seem feasible, it is likely a response to recent media coverage of domestic slavery and other reports of abuse of domestic workers.

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February 6, 2008

 

We have been following the cosmic shift in the administration of workers' comp in West Virginia, where a monopolistic state has morphed into a competitive market. The future looks rosy, but there is much pain in the transition. It's one thing to tighten up eligibility requirements and build a new "return-to-work" culture; the problem comes when the new culture clashes with West Virginia's long established "culture of disability."

About a year ago we blogged the transition from state administration to Brickstreet. One of the key elements in the transition involves moving about 46,000 existing claims from state claims adjusters to third party administrators (TPAs). That's a task that makes Hercules's cleaning of the Augean stables look easy! Sedgewick now handles about 39,000 of the claims, with American Mining and Wells Fargo picking up about 4,000 each. Try to imagine all those (mostly paper) files moving out of state offices, followed by the task of picking up the narrative and developing revised strategies for each and every claim.

The state's unfunded liability for these claims is about $3 billion - a big enough number for any state, let alone a small one. Over the years, the "culture of disability" resulted in one in seventy lost time claims turning into permanent and total disability (the next closest state comes in at a rate of one in 220).

It's not hard to imagine the pain and confusion inherent in transitioning the claims from the public to the private sector. TPAs will apply new and presumably much more stringent standards in determining ongoing eligibility. There is no way they will allow one in seventy claims to drift into permanent total status.

The Pain in Change
Which brings us to the heart of the matter: the very painful price exacted in any cultural transition. In West Virginia, disability payments had become a way of life, a way of supporting workers with no other means of support. In the state's perpetually depressed economy, indemnity for workplace injury paid the bills for thousands of families. This disability culture evolved over decades; it will not change in the Brickstreet blink of an eye. The three TPAs are sorting through 46,000 narratives of pain and loss. They are confronted with an embedded expectation that the benefits are an entitlement and should go on indefinitely. (One claim stems from an injury in 1929!)

The TPAs are trying to apply standard insurance criteria to long-established claims; they are breaking apart the old culture and paving the way for a new one. It will probably take 8 to 10 years to complete the process. Let's not minimize the trauma: the transition in West Virginia is comparable to the collapse of the auto industry - with one important difference, of course: in Detroit the old culture built cars; in West Virginia, the old culture built disability narratives. No amount of retooling can (or should) preserve that inherently unproductive way of life.

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February 5, 2008

 

Workers comp in the public sector is like an iceberg: what is visible from year to year does not really tell you how big the problem is. With the budget funding cycle running fiscal year to fiscal year, there is no incentive to close out open claims. It's actually cheaper - in the short run - to keep paying on a monthly basis, as opposed to writing one big check to make the claim go away. There is no incentive for a sitting official to settle old claims.

The problem with this approach, of course, is that governments never confront the real cost of comp. The claims "ball" just keeps getting bigger and bigger - a problem, in effect, that is constantly pushed ahead to the next elected official.

Back in 2001 officials with the Department of Administrative Services in Connecticut recognized the problem and tried to do something about it. They made a deal with ACE Financial Solutions, which agreed to assume up to $150 million in potential liability from 660 workers' comp claims. By privatizing the handling of the claims, the state reduced the number of workers' compensation cases it was handling and saved $13.5 million in both 2002 and 2003. The state used a bond to raise the funds for off-loading the claims. (A bond spreads the cost over many years, as opposed to making a big hit on the "current" fiscal year.)

In return for assuming the $150 million liability, ACE was paid $80 million. Sounds like a good deal for Connecticut, doesn't it? Alas, the state failed to follow its own procurement standards and they apparently way overpaid for the privilege of handing off the claims.

Nothing in Reserve
With private insurance, it's pretty easy to determine the value of claims. You simply take, in this case, the 726 claims, add up the reserves and come up with a number. You cannot really do this in the public sector. With a "pay as you go" mentality, there are no meaningful reserves. You can project how much a claim will cost in a given year, but no one really knows how long the payments will go on and what the ultimate cost of the claim will be.

MRM Consulting,a private firm, was hired to determine the ultimate value of the claims: that's where the $150 million figure came from. Unfortunately, MRM hired untrained college students to make the estimates, at the attractive rate of $105 an hour. That's great for the students, but bad for the state. CT Attorney General Richard Blumenthal has determined that the estimated total value of the claims was grossly overstated. Over 60 of the claims included in the estimate had already closed. As a result, the state overpaid ACE and wasted taxpayers' money.

Improprieties
ACE has paid the state $40,000 to settle a lawsuit by the AG's office that alleged the company paid an illegal $50,000 commission to brokerage giant Marsh & McLennan to get the workers' compensation contract. A similar lawsuit by the state against Marsh & McLennan over the deal is pending.

The AG's bottom line assessment is pretty harsh: "Privatization spawned inefficiency, incompetence and increased costs. We must reform conditions - lack of funding and procedures - that led to this bungled deal."

The Right Way
Privatization is really a good idea. When it is done right, it can save state and local municipalities a lot of money. But you need good fundamentals in three key areas: a professional assessment of the value of the claims; an open and competitive procurement process; and strong management oversight from day one. Yes, you can privatize the handling of claims effectively, but the need for good management does not end with the awarding of the contract. Indeed, good management looks for accountability and performance every step of the way. Privatization is not an invitation to wash your hands of a problem, but to partner with a competent vendor to achieve mutual goals.

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February 4, 2008

 

When cables broke on a scaffold on the 47th floor of a New York high-rise residential building on a crisp December day, it took only about 6 seconds for the two window washers who had been on the platform to plummet 500 feet to the ground. Edgar Moreno was killed instantly but, astonishingly, his brother Alcides Moreno survived the fall.

The word "miracle" is often tossed about lightly, but in this case, Alcides Moreno's survival was part miracle, part physics, and part good medicine. As Moreno fell, he clung to the scaffolding, riding it to the ground and the platform provided wind resistance that slowed his fall. While his brother Edgar struck the ground at a probable speed of about 100 miles per hour, experts say that Alcides' descent probably slowed to about 45 miles per hour. Platform cables acting like the tail of a kite may have slowed him further.

Philip Barie, chief of critical care at New York- Presbyterian Hospital/Weill Cornell Medical Center, who has treated fall survivors before, talked about the odds:

"You get above six stories, it gets unusual,'' he said. "You get above 10 stories, it's rare. We've had two people survive 12, one person survive 14 and one person survive 19. Forty-seven stories is uncharted territory.''

Barie said he didn't know if Moreno set a record. No, he did not, at least according to the Free Fall Research Page. The record was made by a Russian airman, who survived a 22,000 foot fall in 1942 after his bomber was attacked by German planes. (There are many other fascinating fall survival tales at this site, and Moreno's story is on the front page.)

Of course, Moreno suffered grievous injuries - broken ribs, a broken arm, shattered legs and spine damage. He was in a coma for weeks and has undergone more than 16 operations. But within a few weeks, the prognosis looked good not only for his survivability, but likelihood that he would be able to walk again. In mid-January, he was dismissed from the hospital to a rehab facility.

Few miracles, many deaths
It is sadly ironic that Morena survived a 500 foot fall, but William Bracken was killed in a 19-foot fall in a scaffold collapse in Mooreville, PA about 10 days ago. And in the city of New York alone, there have been at least two more scaffolding deaths since Moreno's fall. High winds were blamed for a scaffold collapse in Brooklyn that killed Jose Palacios in a 12-story fall last week. This followed on the heels of the death of Yuriy Vanchytskyy in a 42-story fall from the top of Trump SoHo, a condominium hotel under development.

Repeat safety violations
State records show that in the Moreno incident, the scaffolding had been cited for 10 violations in June, including four that were repeat violations. According to news reports, the brothers had complained about safety issues but were told the scaffolding was safe. Neither of the brothers were wearing safety harnesses when the accident occurred.

Repeat citations are not an uncommon story. A New York Times investigation into the collapse that killed Vanchytskyy found that his employer, DeFama Concrete, had a history of safety violations, had been fined tens of thousands of dollars in penalties, and had another worker death on record - the 2004 death of an employee who perished after falling 60 feet from the platform of a crane. In that accident, OSHA found a failure to provide sufficient safety devices. These fines and citations are apparently little more than a slap on the wrist because offending contractors are still hired to work on some of the city's most prestigious new construction projects.

Worsening employment practices and the underground economy
City Limits looks at the matter of construction safety in New York, a problem that seems to be worsening:

"According to U.S. Bureau of Labor Statistics data on work fatalities, construction deaths in New York City more than doubled from 2005 to 2006, from 20 to 43. (Data for 2007 is not yet available.) Over that period, New York City also had a higher percentage of construction deaths than the U.S. overall, according to BLS: "the construction sector accounted for 43 percent of all fatalities; nationally, construction also led other sectors ... accounting for 21 percent of all job-related fatal injuries." The city's Department of Buildings (DOB), however, reported that between Jan. 1, 2007 and Oct. 31, 2007, construction-related fatalities dropped 43 percent from the same period in 2006, from 14 to 8, and injuries stayed constant - but accidents on high-rise sites increased from 23 to 42."

Part of the problem? City Limits links to and cites a recent report by the Fiscal Policy Institute (PDF) attributing much of the problem in New York construction to "worsening employment practices." City Limits summarizes this part of the report:

" ...the construction industry employs more than 200,000 workers in New York City, almost a quarter of whom work in the illegal "underground" construction industry. Not only does this lead to a half-billion-dollar annual financial loss because of unpaid payroll taxes and workers compensation premiums, according to the report, but it correlates with dangerous practices. Data from the federal Occupational Safety and Health Administration (OSHA) "indicate a strong correlation between construction fatalities and the characteristics of the underground economy: half of the deaths occurred among workers at very small construction companies, three-fourths of the workers involved worked for non-union companies, and failure to provide safety training was cited in over half of the cases."

It's a horrifying and daunting problem, but to their credit, city officials are taking action, and some improvements have occurred since 2006. A Suspended Scaffold Worker Safety Task Force was formed and several scaffolding-related laws were enacted to increase penalties. Many are also calling for an overhaul of the Department of Buildings, the regulatory body, which many fault for being slow and reactive.

Of course, all the deaths that we've discussed have occurred since these laws were enacted. The city needs to continue focusing on this issue because Alcides Moreno's story notwithstanding, the miracle plan does not make for good safety policy.

(Thanks to rawblogXport for pointers to many of the links we've cited.)

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February 1, 2008

 

As the Super Bowl looms over the weekend, our thoughts turn toward the challenge of personnel management. Most of us are periodically involved in hiring decisions: for some, it's a major responsibility, for others, an occasional task. Some applicants come across as a perfect match (and turn into a bust) while others are nervous and unimpressive, yet turn into the perfect employee. For all the psychological profiling, background checks and careful reading of the resume, it's never an exact science.

Case and point: Tom Brady, the quarterback for the New England Patriots. He was chosen by the Patriots in the sixth round of the draft, the 199th player selected. The physical skills he demonstrated at the "combine" were modest, to say the least. Quite a few quarterbacks were chosen ahead of him. Yet he has risen to the pinnacle of his sport, mentioned in the same breath with the legendary Unitas, Montana and Bradshaw.

This raises some fundamental questions about hiring: how do you distinguish among applicants? How do you ferret out the intangibles that separate a good candidate from a great one? How can you eliminate the candidate who sounds good but lacks passion and identify the one who really wants the job?

In an article in the Boston Globe, John Powers dissects the qualities that made Brady special from the moment he showed up in training camp:

"Nobody expects anything of you," Brady says. "You just show up and you're trying to make the team. You're trying to bring your playbook to the meetings and not forget it in the room. When you're a first-round pick, everybody's counting on you to come in and save the franchise." No one had any notion that Brady was special; unlike Eli Manning, his New York Giant counterpart with an impeccable bloodline and the burden of a number one selection in the draft, Brady was able to develop outside of the limelight.

Early on coach Bill Belichick noticed Brady's knack for command and control. "You could really see some of Tom's leadership taking over at that point, even though it was with other rookies. You could see him handle the team, handle the call, getting people lined up and making sure everybody knew what to do." Brady, the consummate team player, made everyone around him better.

Nobody in the locker room worked harder or studied more diligently, then or now, than Brady. He was driven, he later acknowledged, by the insecurity of the perennial backup, the kid who couldn't play on a winless high school freshman team, who began Michigan as a seventh-stringer. "You don't forget where you came from," Brady once said. "The scars that you have from those days are deep scars."

Good Managers are Hard to Find
As we watch the game this Sunday, it will be fascinating to see the two outstanding quarterbacks carry out their management roles. They represent the full hiring spectrum: the cannot miss, high profile number one versus the after-thought, the long-shot (who is no longer either). Regardless of the outcome, athletic scouts and personnel managers of businesses across the world will share a common thought: how do you find the real deals in leadership? How do you master the art of hiring?


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