May 2008 Archives

May 29, 2008


Hank Stern has posted the latest edition of Health Wonk Review. Essential for wonks, a nice option for the rest of us. Check it out here.

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May 28, 2008


The Group Insurance Commission (GIC) in Massachusetts came up with a nifty idea: let's grade physicians based upon efficiency and competence; we'll reward those with high marks and penalize those who are (relative) failures. (The GIC administers health plans for public sector employees.) The GIC worked with the MA Medical Society (MMS) and a number of insurance carriers to come up with a reasonable methodology and metrics for grading doctors. After four years of planning, the GIC rolled out the program. Unfortunately, the MMS rolled out the lawyers: they are suing GIC and a number of health plans for defamation, interference, breach of contract, bad faith and violation of due process. Other than that, Mrs. Lincoln, what did you think of the play?

The suit claims doctors have been capriciously ranked into tiers, from 1 through 3, based upon a faulty analysis of billings. The tiers assigned to a given doctor result in progressively higher co-payments for their patients. For example, the Tufts Health plan has established the following co-pays for doctor visits:
Tier 1 doctor = $15 co-pay
Tier 2 doctor = $25 co-pay
Tier 3 doctor = $35 co-pay

The MMS claims, first, that the tiering system is based upon faulty data. For example, one doctor who specializes in treating severe cases of multiple sclerosis has an inflated "cost per patient" due to her inter-disciplinary approach. She has a tier 3 ranking. But this low score does not take into account the severity of her patients's conditions or her success in treating them. In another example, one doctor simply examined medical records and provided an interpretation: he was held accountable for the ultimate treatment provided to patients he never actually saw.

With low rankings based upon incomplete and often inaccurate data, the MMS concluded that good doctors have been defamed.

In addition, MMS claims that patients have been defrauded, by being directed toward certain doctors for no particular reason. They pay less for tier 1 visits, even though they may not be getting the best available services; conversely, they have to pay substantially more for tier 3 visits, even though the quality may well exceed that of tier 1 doctors.

Dr. Bruce S. Auerbach, president of the MMS, said efforts to improve the tiering program have failed.

"There is a right way to do this, and a wrong way - and the Clinical Performance Improvement initiative is definitely not the right way."

"We have worked with the GIC for four years to improve its program, and the agency has made changes in some limited areas. However, the GIC has refused to correct the CPI's most glaring problem, which is its ranking of individual physicians using inaccurate, unreliable, and invalid tools and data."

Not Close Enough
We all know that there are physicians whose services are mediocre and at times, dangerous. But the problem is in the data: how do you determine the quality of services? How do you distinguish between prudent and outrageous treatment? Data is data, but behind the numbers are stories of lives saved and lives ruined. Number crunching computers cannot tell the difference.

Unless the parties settle prior to trial, the discovery process will expose GIC's methodology for grading doctors as clearly as an MRI. Based upon the MMA's lawsuit, the GIC's metrics appear to be fairly crude. The good news is that a number of mediocre doctors have been exposed. Unfortunately, the broad net cast by the tiering system has tainted the reputations of some very competent and compassionate physicians. In this particular endeavor, "reasonably close" assessments are not sufficient. The margin of error - where the reputation of a doctor is at stake - is very small indeed.

Medicine is both a science and an art. With the livelihoods of medical practitioners at risk, any methodologies for evaluating the quality and effectiveness of services must be precise and accurate to the nth degree. If your methodology cannot distinguish between incompetence and art, if it cannot place virtually every outstanding physician in the top tier, then the metrics are pretty worthless. At first glance, GIC's admirable effort to triage the docs fails to pass muster. In all likelihood, the pending clash in court will send all the parties back to the proverbial drawing board.

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May 27, 2008


In a few weeks, millions of teens will be joining the work force, many for the first time. For most, nothing out of the ordinary will occur, but for about 70, their jobs will be lethal. About every three minutes, a teen is injured on the job. Worksafe BC has compiled the true stories of four ordinary kids whose first jobs proved devastating. In this series of short, compelling video clips, each teen tells the story of their injury, how it happened, and how it has affected their lives. The teens' parents also talk about things from their perspective. The clips are graphic, frightening, and real, and demonstrate just how quickly something can go wrong. They should be mandatory viewing for employers who hire teens, for teen workers, and for parents of working teens.

John's story - how 16-year old John Higgins broke his back in a forklift accident.
Jennifer's story - how 19-year old Jennifer Fourchalk lost three fingers, which were caught in dough-making equipment in a pizzeria.
Michael's story - how 18-year old Michael Lovett lost a leg when sucked into machinery in a sawmill.
Nick's story - (raw language alert) - how 19-year old Nick Perry became paralyzed when crushed by lumber in a lumberyard.

Some of the common themes in the stories:

  • Enthusiasm. These kids badly wanted to please and impress bosses and co-workers and to do a good job. The teens didn't want to ask for help or to appear unwilling to do what was asked of them - they wanted to be mature and good work contributors.
  • Inexperience. The teens seemed unaware of the power of equipment they were using and the potential for injuries. Jennifer didn't realize how powerful the kitchen equipment was. Michael seemed unaware that he could refuse to engage in unsafe behaviors, like jumping off dangerous equipment. They appear to assume that dangers were just an inevitable condition of the work.
  • Lack of training. None of these teens had been properly trained in the equipment they were using nor had they received basic safety practices and procedures, such as lock out/tag out. All of these injuries might have been prevented had the workers been trained and had machine safeguards been in place. John actually emulated unsafe practices he had observed other workers doing.
  • Working alone. In most of these examples, the teens were not being supervised when the injuries occurred.
  • Regretful parents. Parents assumed employers would look out for their kids. Several parents expressed initial misgivings about the jobs their kids had taken. Many expressed regret that they hadn't looked into the work conditions more.

Resources for keeping teen workers safe
Tips for teens: Stay safe on the job
Employers: 10 tips to keep teen workers safe
Tips for parents: How safe are your favorite kids on their new jobs?

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May 23, 2008


vlingo is a Cambridge MA firm specializing in voice recognition software. They have completed a study of driving habits, specifically, the prevalence of driving while texting (DWT) across the US. The results, in the context of the upcoming Memorial Day weekend, are nothing less than terrifying. In a survey of nearly 5,000 consumers, fully 28 percent of drivers (mostly under 30) admitted to texting while driving. Twenty eight percent!

The problem seems greatest in the south, with South Carolina ranking a dubious number one. ("Hw yal dun?") The New England states appear to be a bit slower to adopt this radically unsafe practice. Massachusetts ranked 23rd in the study, with Maine, Vermont, and New Hampshire ranking near the bottom.

Memorial Day Warning?
The Insider has already blogged the first two recorded deaths attributed to DWT: Lucas Rolin in the United States and Marni Triggs in Tackley, England. Apparently, "Lucas" and "Marni" are just the first of many names to be carved onto a cell phone shaped monument.

In Massachusetts, we have long assumed that the "nut behind the (other) wheel" is full of aggressive tendencies. Apparently, we don't know the half of it. As we barrel down the highway at 72 miles per hour, we might be next to some whackjob channel surfing his radio, fiddling with the GPS and exchanging text messages with a distant buddy. Yikes!

Fully 85% of survey respondents said they would not DWT if it were illegal. While it might seem like legislative overkill, that might just be the way to go.

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May 22, 2008


What do Bank of America, Citigroup, Merrill Lynch, J.P. Morgan Chase and Morgan Stanley have in common? If you said they all have lost billions in absurdly risky loans, you would be right, but that's not the answer we are looking for. We learn in the latest edition of Cavalcade of Risk, ably hosted by Jason Shafrin of Healthcare Economist, that these companies have all filled new positions entitled Chief Risk Officer (CRO). In fact, you will find that many of the companies involved in the great mortgage fiasco of 2008 are trying to mitigate future risks by hiring into these positions. It would be interesting to read the job descriptions. Being a Risk Manager is one thing; Chief Risk Officer sounds a bit more, well, exposed.

Good management teams empower everyone to focus on risk. Will CROs be able to do this? Or is the CRO just another way for senior managers to toss someone else under the bus? Only time will tell.

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May 21, 2008


Rhode Island may be small, but when it comes to tackling the problem of undocumented workers, they think big. Last month, Governor Donald Carcieri issued an executive order encouraging law enforcement officials - from state police to local cops - to determine the immigration status of anyone taken into custody and take immediate steps to deport those who are here illegally. Rhode Island has basically concluded that the federal government is not going to enforce the law, so they will take on the burden themselves.

For the record, the scale of the undocumented worker problem in Rhode Island is relatively small: the governor estimates that there are between 20,000 and 40,000 such workers in the state. What is not clear from the executive order is just how proactive the governor wants law enforcement to be: it's one thing to check people's status after they become involved in the criminal justice system; it's quite another to go out looking for immigration violators. Do you check for citizenship after a motor vehicle citation? After a domestic disturbance? When you hear people speaking Spanish?

The Workers Comp Perspective
The RI Workers Compensation Court has its own view view of the rights of undocumented workers, one which appears to be in conflict with the Governor's. Chief Judge George Healy recently told community advocates: "Believe me when I tell you, we do not inquire about the employees' documentation. That is not an issue that the court concerns itself with."

Earlier this year we blogged the story of Edgar Valasquez, an undocumented worker who was seriously injured in an accident involving a chain saw. His employer dropped a dime on Edgar, who was arrested and deported while on his way to a workers comp hearing. Eventually, Valasquez was able to collect his benefits (he currently is back home in Mexico).

Despite the assurances of Judge Healy, there is no way for the workers comp system to ensure the rights of injured illegal workers. The latter can pursue statutory benefits, but they do so in the shadow of the governor's new enforcement effort. Judge Healy cannot prevent law enforcement from arresting comp claimants outside his courtroom.

The governor has taken an additional step to disenfranchise undocumented workers: he has proposed a bill that would explicitly exclude them from workers comp coverage. This is a draconian approach to an increasingly unstable situation. Undocumented workers are already operating in a twilight zone of unfair labor practices and unsafe working conditions. If they lose their access to workers comp, they will be at the mercy of their marginal employers. Once hurt, these workers would have no access to benefits of any kind. They would have to disappear and try to make their way back home. (Cynics may think this acceptable, but it is unfair and unAmerican.)

Donald Carcieri invokes the authority vested in him as governor of the "State of Rhode Island and Providence Plantations." It appears that he takes the "plantation" part of his title seriously. He is creating a segment of the workforce with few more rights than slaves.

We all agree that there is a problem here that desparately needs fixing. Despite the continuing inability of the Congress to fashion a coherent legislative approach, this is no time for individual states to jerry-rig their own solutions. A little patience is required. In this key policy area, the "Ocean State" will soon be lost at sea.

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May 20, 2008


Time for a blogroll and sidebar update! We're always looking for new resources to keep things fresh - we've been told we have the best compilation of workers' comp link resources on the web - we hope it's useful to you.

Noteworthy blogs
The Safety Blog - this blog is sponsored by Safety Services Company. Since December, they've been offering news and tips for safety professionals. There's really substantive information posted - a good addition to the health & safety blogosphere.

Health Blog - WSJ - reporter Jacob Goldstein spearheads this Wall Street Journal blog that focuses on health and the business of health. Scott Hensley an erstwhile WSJ reporter on the drug industry is also a frequent contributor.

GoozNews - We've linked to Merrill Goozner's site through Health Wonk Review before, but hadn't added him to the sidebar. "Gooz" is an author and former journalist for some of the nation's premier news publications - in the area of health policy, he always has something interesting to say.

GotSafety Blog - This appears to be more of a safety news aggregator than a blog, culling excerpts and links from various places around the Web.

Does this Workers Compensation settlement require a Medicare approval or set-aside? (PDF) - this handy flow chart offers guidelines on when and where Medicare Set-Aside are required.

An Unhealthy America - "the economic burden of chronic disease" - Over 162 million cases of seven common chronic diseases — cancers, diabetes, heart disease, hypertension, stroke, mental disorders, and pulmonary conditions — were reported in the U.S. in 2003. A clickable map shows how states compare based on the prevalence of these diseases.

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May 19, 2008


Postville Iowa is a one traffic light town with a population of 2,300 people. Last Monday, as we read in the Washington Post, 17 percent of the town's residents were arrested in a raid coordinated by the Immigration and Customs Enforcement (ICE). All were employees of AgriProcessors, the nation's largest producer of kosher meats.

The unusual story goes back to 1987, when Aaron Rubashkin and other members of a Lubavitch Hasidic sect moved from Brooklyn to (mostly Lutheran) Postville. That would have been a culture shock (on both sides) worth observing. In the years since, AgriProcessors has established itself as the town's main employer. The company has also become notable for dubious workplace practices: routine violations of fair employment laws, hiring underaged workers, falsifying documents on workers, wastewater pollution problems and inhumane slaughtering of animals.

So once again (remember New Bedford?) we have one of those highly ambiguous situations: the feds raid an employer who is exploiting undocumented labor. Federal actions have a veneer of concern for the workers, but these quickly evaporate in the context of ICE's primary function: arresting and deporting illegal workers. Some of these undocumented workers have been with the company from the beginning. As Eduardo Santos, 27, a worker who lost two fingers in the plant put it: "The raid was fair...but it's bad for everybody. There's no work."

Eduardo, if you will forgive the pun, has put his finger on the crux of the matter. These are jobs few are willing to take. The working conditions are abominable. The company owners may invoke a "higher law" in attempting to follow kosher rules, but they are demonstrably deficient in their application of the more mundane laws which govern the way we work.

Big Fish, Little Fish
There is a sense in all of this that the workers may not be the primary target of the raid.(See an excellent summary by Debra Nussbaum Cohen in the Jewish Weekly.) To be sure, the workers face very difficult times, leading inevitably to deportation for most. The feds, however, have positioned themselves to go after AgriProcessors's owners. Rabbi Sholom Rubashkin, the plant operator, finds himself accountable to rather formidable authorities of the conventional sort.

There are no clear winners here. The workers have been freed from jobs which they willingly embraced; they are about to be thrown out of their adopted community. Jewish consumers have lost their primary source of kosher meats. The town of Postville has lost its primary employer and will soon see the evisceration of its tax base.

The Postville saga is indicative of the overall undocumented worker dilemma: workers of last resort tolerate intolerable conditions because they are not supposed to be here in the first place. They take jobs no one else will take. Their pay and conditions fail to meet our basic standards, but are still far superior to what is generally available in Guatamala and Mexico, where most of these particular workers came from.

The ICE raids put a temporary halt to unacceptable working conditions in one small town. A handful of undocumented workers will be sent home. Some managers might end up in jail. It's not even a drop in the proverbial bucket. It's a drop in the ocean. Nonetheless, if members of Congress pay attention to the single drop hitting the water, they might remember it. They might actually try to do something about it.

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May 16, 2008


Norma Perez is a psychologist who leads the post-traumatic stress disorder (PTSD) program at a medical facility for veterans in Temple, Texas. As we read in the Washington Post, she is pretty busy with claims. Given that veterans with a PTSD diagnosis are eligible for up to $2,527 a month in disability benefits, she came up with a great way to reduce caseloads and save money: stop making the diagnosis.

In an email to mental health specialists and social workers at the facility, she recommended that they consider using a diagnosis of "Adjustment Disorder" (which does not involve a disability payment). She added that they "really don't have time to do the extensive testing that should be done to determine PTSD." An interesting concept, given that Perez was in charge of a PTSD unit.

Unfortunately for Perez, the email was leaked to veteran advocacy groups and all hell broke loose. John Soltz, chairman of and an Iraq war veteran stated that "many veterans believe that the government just doesn't want to pay out the disability that comes along with a PTSD diagnosis, and this revelation will not allay their concerns."

Melanie Slaon, executive director of Citizens for Responsibility and Ethics in Washington (an oxymoron, perhaps), was more blunt: "It is outrageous that the VA is calling on its employees to deliberately misdiagnose returning veterans in an effort to cut costs. Those who have risked their lives serving our country deserve far better."

Stressed Out Norma
The VA has tossed Perez under the bus. Veteran Affairs Secretary James Peake issued a statement calling Perez's email "inappropriate" and incompatible with VA policy. The Perez doctrine "has been repudiated at the highest level of our health care organization." Peake went on to state that Perez has been "counseled" and is "extremely apologetic." She remains in her job.

Let's face it. Perez has been under a lot of stress lately. She could probably find a shrink to put her out of work for a few weeks, but she should not count on workers comp to pick up the tab. Stress claims are rarely compensable. Norma's stress is both work-related and self-induced. When it comes to benefit entitlements, she is on her own.

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May 15, 2008


Jason Shafrin of Healthcare Economist hosts this week's edition of Health Wonk Review in newspaper style - it's lean and clean, and packed with interesting pointers to the latest news.

NCCI conference - Peter Rousmaniere attended the annual NCCI Conference this year and reports back on his findings, posted at Joe's place.

When less is more - Joe Paduda of Managed Care Matters beats a drum that needs beating. Why do buyers use unit cost reductions rather than total cost reductions as a metric of savings in measuring network performance? It's a perverse incentive that encourages utilization.

You-Don't-Say Department - a recent survey of small businesses shows that many are spending work comp dollars without knowing what they're buying. About one out of every seven couldn't name their insurer and don't understand their coverage. In a related survey, almost one in five respondents who had just switched to a new insurer weren't able to name that insurer. Our experience has been that small employers often learn about workers comp the hard way - it would be great if as an industry, we did a better job communicating what workers' comp is and how it benefits both employers and employees.

Missouri gets tough - Missouri employers who try to cut corners by not carrying workers comp should think twice - the Supreme Court recently upheld a felony conviction for an employer that failed to carry workers comp coverage for his employees. The conviction includes one year in prison and $30,000 in fines and penalties. (More about the Court's proceedings.)

Useful resource - 101 little known scholarship sources for nurses - a good reference list for both undergraduates and graduates.

And the winner is... - In an interesting bit of insurance trivia, Fireman's Fund Insurance names the riskiest film of 2007.

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May 14, 2008


Are we in or headed to a recession? Each of us might have our own opinions based on the industry we work in, the number of times we have to fill our gas tank during the week, and the area of the country where we live. According to the economic cognoscenti, the jury is still out - some industry insiders say yes while others disagree. At least some industries say they are in a recession and in a recent survey, nearly 80% of affluent Americans believe a recession has already hit the U.S.

What would a recession mean for workers compensation? A few weeks ago, Insurance Journal looked at the issue of recession and its impact on insurance as viewed by independent agents in various sections of the country, who offer commentary on both actual and anticipated effects. Some note that it is somewhat unusual to have a recession occurring in conjunction with a soft market. There isn't much mention in the way of workers comp, except in terms of noting that declining payrolls lead to lower workers comp premiums. Some agents note that significant business curtailment has been in evidence in the housing and construction industry.

The past may be the best predictor of the the future. The Minnesota Department of Labor & Industry compiled a 2002 report on the effects of recession on workers comp as evidenced by various state studies.

Conventional wisdom points to a preliminary spike in claim frequency as employers reduce ranks - there is some anecdotal discussion about an increase in fraud, although most data doesn't support that. Overall, during a recession the number of claims tends to decline - there are fewer workers, and those workers may be more timorous about filing claims, fearing job loss.

While frequency drops, severity tends to increase. Researchers in MA suggested this might be because businesses find it more difficult to provide light-duty work; also, due to the fact that because more experienced workers are retained, the average injury will be more severe. A California study also noted that recessions may add to claim severity by increasing the time it takes for a worker to find a job.

In a six-state study, researchers noted that "...recessions increase back-end cost drivers (i.e., increase the cost per claim) to a greater extent than they increase front-end cost drivers (i.e., increase the number of claims). They state that recessions are 'characterized by increased use of the system, longer duration claims, and more frequent and larger lump-sum settlements.'"

Minnesota also reported in some detail on their own state's experience with a workers comp during a recession, a report which our colleague Joe Paduda discussed at some length.

During a recession, employers should be doing what they should always be doing: preventing injuries from occurring, tightly managing any injuries that do occur, and helping injured workers to recover and return to work as expeditiously as possible. While there is always cause to keep an eye on things during any sudden shift in employment, the stories about an increase in fraud may be overblown. As the researchers in the Minnesota report note, boom times pose a greater risk for a rise in frequency as organizations experience a sudden influx of inexperienced workers.

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May 13, 2008


As if Fed Ex did not have enough problems, the company with the unusual staffing model is now being sued by some shareholders. Given that the suit has been filed by Local 51 of the Plumbers and Pipefitters Pension Fund, it's no surprise to find that the suit attacks the business model of hiring "independent contractors" to carry out the core activities of the company. FedEx has hired over 15,000 of these "contractors" to deliver the goods: in FedEx uniforms and FedEx trucks, along company assigned routes, with company approved hair styles ...and no white socks!

FedEx dismisses the suit as "frivolous." Company spokesman Maury Lane asserts that "FedEx has a long record of providing outstanding shareholder value and is led by a board of successful and experienced directors..." To which Dan Newman, attorney for the disgruntled stockholders, replies: "There's nothing frivolous about illegally exploiting workers and cheating on taxes -- it's gross mismanagement and a grave breach of fiduciary duty." Ouch!

The lawsuit includes a chart of compensation for FedEx directors, which has risen from a minimum of $48,000 in 2002 to the current minimum of $160,000. For most directors, the annual pay is $220,000. Not bad for independent board members (who don't have to wear uniforms, who wear any color socks they like and who can drive any vehicle, the fancier the better).

Despite a series of losses in state courts and with the IRS, the company continues to defend the fundamental business model. They say that drivers can buy multiple routes and hire people to work those routes for them, thus making the route owners "entrepreneurs." True enough. But the key word is "can." Most can't and most don't. The vast majority of the 15,000 drivers have no employees and are not entrepreneurs. They are by any reasonable standard employees of FedEx, carrying out the basic work of the company.

At some point, sooner or later, FedEx will probably have to throw in the towel. Then they will face a huge bill for retroactive benefits (including workers comp) owed to their employees. The stock will surely take a big hit. I'd like to think that the directors who have managed this dubious experiment in outsourcing might actually be held accountable. But FedEx's team of seasoned (and I do mean seasoned) litigators will make sure that never happens.

NOTE: Type "FedEx" in the search box to access our numerous blogs on this topic.

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May 12, 2008


Bill Thorness has written an interesting article for NCCI on the relationship of wellness programs to workers comp costs. In some respects, it involves a "duh" thesis: wellness programs can significantly lower comp costs, because healthy workers are less prone to injury and, once injured, recover more quickly than their out-of-shape co-workers. Conversely, obese and out-of-shape workers are more at risk for strains and sprains, because the additional weight they carry compounds the impact of day-to-day workplace functioning.

There is even an overlap between wellness and one of the Insider's favorite topics, the aging workforce. Older workers are more at risk for serious (and expensive) injuries such as rotator cuff tears. A relatively healthy, well conditioned, non-smoking older worker is more likely to avoid these injuries and again, once injured, more likely to shorten the normally extended recovery time.

With all of the compelling logic underscoring the benefits of a healthy workforce, it might be natural to assume that workers comp would jump at the opportunity to provide incentives for wellness programs - dare we say, even pay for them. Perhaps we could find examples among the national carriers, where workers comp safety programs include wellness training. Unfortunately, for the most part wellness remains an afterthought in the comp system. Aside from conventional safety programs, which focus on injury prevention, comp coverage tends to sleep like a hibernating bear, roaring into action only after injuries occur. Even then, wellness is a marginal issue: if, for example, obesity hinders recovery, carriers are unlikely to pick up the cost of a weight-reduction program, because the obesity is not work related.

Who Owns It?
The ultimate cost of most injuries is directly related to the health and conditioning of the injured worker. Logic says comp carriers should embrace wellness programs in both injury prevention and post-injury treatment. But as is often the case, it comes down to a question of who owns it, who benefits and who pays. Wellness is a proven concept, but comp carriers are unwilling to own it and very reluctant to pay. They are, nonetheless, more than happy to reap the substantial benefits.

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May 8, 2008


Cavalcade of Risk is being hosted by Spencer Hill at Hill's Personal Finance Blog. He's got a good roundup of posts on a variety or risk-related matters from business to personal exposures - check it out!

Kudos - Congratulations to Michael Fitzgibbon for his five year "blogiversary" at Thoughts From a Management Lawyer, a blawg (or law blog) that offers discussion and commentary on Canadian labour and employment law matters. Michael is one of the pioneer law blogs who saw the value in blogging before most did. We've always found his blog to be a good read and an inspiration, to boot. Now if only we could get him to spell "labour" correctly - that's not in our spell check!

Perverse incentives - Nick Avgerinos of discusses the matter of when safety incentive programs are a disincentive to timely claims reporting. When coworkers are eager to claim a record or earn a prize for the most consecutive injury-free days, it can result in negative peer pressure for an injured worker. As an employer, it's always in your best interest to have any injuries reported as soon as possible - make sure you don't have any programs that conflict with that goal.

Legal nooks and crannies - At The Buckley-Brown Blog, Catherine Dellinger Buckley looks at the workers compensation complexities in a Georgia case where a woman was shot and killed by a co-worker during her lunch hour. If a spurned spouse or a random stranger who walked in off the street had shot the employee, it would not be likely to be compensable, as Ms. Buckley notes - at least not without some mitigating factors. But this scenario is one with a lot of potential legal hooks: it involved a co-worker (albeit a temporary worker) and it occurred on company property during lunch. In some states, injuries that occur on operating premises hold great weight; under some laws, lunch might fall under the personal comfort doctrine; or if the deceased employee was engaged in some business pursuit during her lunch or was in any way furthering the employer's business, her death may be compensable.

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May 6, 2008


If today is an average day, more than 2,000 people will have an eye injury at work. And tomorrow, the risk is even greater because the Bureau of Labor Statistics (BLS) says that more eye injuries occur on Wednesdays than any other day of the week. While many eye injuries will be relatively minor, about 5 percent will be debilitating enough to interfere with work on a short or a long-term basis. According to BLS, more than 36,000 eye injuries require time off from work. Yet with proper eyewear, it is estimated that 90% of these injuries could be prevented. Approximately 3 out of 5 of the injured workers were either wearing no eye protection whatsoever or were wearing the wrong type of eye protection.

This month is a good time to redouble your eye safety efforts since May is Healthy Vision month. Most eye injuries were surface wounds, injuries resulting from being struck by foreign matter such as splinters or chips. The second most common type of injuries are abrasions and scratches, and the third most common are chemical burns. A 2002 BLS report on Nonfatal Occupational Injuries Involving the Eyes offers more detail on the nature of work eye injuries and the types of professions where injuries are most prevalent.

Special worker populations and eye safety
When you audit your workplace for eye safety, don't forget eye protection for outdoor and seasonal workers, such as groundskeepers. Outside work can involve dust and flying objects, such as chips from mowers and clippers. Exposure to UV rays is another hazard, and one that requires head coverings with a visor and eyewear that limits UV rays.

Another group of workers that are often overlooked for eye safety are computer users. The National Institute for Occupational Safety and Health reports that 75% of computer users surveyed report occasional aching or burning eyes at work. The Lighting Blog offers a good list of 22 ways to reduce eye strain at your computer.

Eye safety resources
Eye protection in the workplace - from OSHA
Eye safety - from NIOSH
Types of eye protection - illustrated examples - from the CDC
First aid - from the CDC
Wise Owl Program - from Prevent Blindness
Workplace Eye Safety - from Prevent Blindness
Ten Ways to Prevent Eye Injuries at Work - from Prevent Blindness
Eye Safety for emergency response and disaster recovery - from the CDC

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May 5, 2008


Rosemary Verga worked for United Airlines as a staff representative in human resources. This seems an odd choice for a woman described by co-workers as "a difficult person to get along with" - "impolite, unpleasant" and quick to explode. In addition to being rude, inflexible, easily upset and demeaning toward others. All in all, a rather marginal member of the HR team!

After a group of employees had a carefully structured opportunity to confront her bad behavior in the summer of 2000, Verga sought help from the Employee Assistance Program. The company doctor treated her, authorizing a brief medical leave and then cleared her for return to work. She sought treatment with her own physician, Dr. Ho (no comment), who authorized an indefinite medical leave in 2000. She has not worked since.

Verga filed a workers comp claim for psychological stress, claiming the disdainful actions of her peers caused her mental disability. Even conceding that her own actions may have contributed to this disdain, she argued that because workers comp is no fault, it didn't matter. She was entitled to compensation for work-related stress.

California's labor code (S3208.3,(B)(1) states that "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." At her initial hearing, the workers comp board ruled that the disdain expressed by her fellow employees was not an event of employment, but something brought on by Verga's own (consistently obnoxious) actions. They denied the claim. The Court of Appeals has now upheld the denial.

Shrink Wraps
The role of psychiatrists in this case is instructive. Dr. Perry Segal, a Qualified Medical Examiner (QME) offered the opinion that Verga suffered from "adjustment disorder with mixed anxiety and depressed mood, resulting from cumulative trauma caused by negative interactions with her co-workers and her supervisor." Dr. Perry based this rather dubious diagnosis solely on Verga's version of the events. A second QME, performed by Edward Duncan, PhD, diagnosed Verga with an adjustment disorder and mild depressive symtoms, but he did not find her psychiatrically disabled from work. Duncan observed that statements of co-workers and Verga's employment records reveal ongoing problems in her relations with co-workers and customers going back 20 years. Prior to working in HR, Verga had served as a customer service rep for United (now there's a great job for someone with a short fuse!).

So the court has determined that Verga's "harassment" by fellow workers was caused by her own harassment of fellow workers. Her disability is the cause - not the result - of workplace stress. With her low frustration level, Verga abused co-workers when they did not meet her expectations. Verga was the aggressor. She created the negative work atmosphere which she claimed (unsuccessfully) caused her psychological injuries. Her supervisors tried to counsel her that rudeness and inflexibility were counterproductive. She ignored their advice and continued to belittle her co-workers. Needless to add, Ms. "Gloom and Doom" has not been missed during her prolonged absence from work.

ADA Remedy?
One final note. It does seem clear that Verga has psychological issues. Can she sue United to get her old job back, claiming that they must make "reasonable accommodation" for her under the Americans with Disabilities Act? Does her anxiety and depression qualify as an ADA disability? I doubt it. It is not at all clear that her mental disability "signficantly limits" one or more major life activities. Then again, you might well view her inability to establish friendships and collegiality as a disability. I am inclined to. But I still would not encourage United to take Verga back. She has proven unwilling to make her own accommodations for others and as such would be a huge liability anywhere in the company. After all, being "nice" is really an essential job requirement, one well beyond Verga's reach. With all their current problems, United has no need for an intractable, inflexible and embittered worker.

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May 2, 2008


Joshua Christopherson is a supervisor of sales for Prosper, Inc., a Utah company that peddles on-line training and motivation courses. The courses range in price from $3,000 to $15,000. By most accounts Christopherson is a decent enough guy, albeit a bit obsessed with the performance of his sales team. He apparently read about an incident involving the ancient Greek philosopher Socrates, who plunged a student's head under water and then told him that his yearning for learning must equal his (underwater) yearning for air. Like any good manager looking for an edge, Christopherson decided to bring this aggressive "Socratic method" to his team.

Chad Hudgens, a member of the under-performing sales group, made the mistake of volunteering for the "team-building exercise." In a park outside Prosper's offices, he lay on his back with his head downhill. Co-workers knelt on either side and pinned his arms. Christopherson proceeded to pour water from a jug over his nose and mouth.

"So they held me down," Hudgens reports. "...I can't scream because the water's going down my throat...Toward the end, I'm starting to black out. I think I am drowning."

After finishing with Hudgens, Christopherson told the assembled sales team:"You saw how hard Chad fought for air right there. I want you to go back inside and fight that hard to make sales." Let's give Christopherson some credit: that is one sales lesson no one is likely to forget!

Ignorance or Evil?
I assume you may share my puzzlement at the thought process that led Christopherson to his training plan. Perhaps we find a clue in the May newsletter from Prosper, which offers the following message:

In business and in life, we are often inspired in some way or another to do the things we do. Each of us has something that inspires us, be it a friend, a goal, a dream, or even a Mother. As many of us reflect this time of year on the inspiration that comes from our Mothers, the focus of the newsletter this month is inspiration.

So maybe Christopherson's mother inspired him to do it? In any event, and no surprise here, Hudgens is suing his (former) employer for torturing him. Prosper Inc. maintains that what Christopherson did was unauthorized, overzealous and misguided, but it falls short of torture.

"We are not the mean waterboarding company that people think we are," says the aptly named George Brunt, general counsel for the company. He adds that Christopherson is a "nice, sensitive guy."

Hudgens claims that the harassment was not limited to the water boarding. If the 10-person sales team went a day without a sale, members had to work the next day standing up - Christopherson removed all the chairs.

Management Philosophy 101
The original Socrates was a very interesting fellow, one who might well be confused by what passes for society these days. In the dialogue Meno, Socrates tries to determine whether virtue is inherent in us or whether it can be taught. This leads to an investigation of the nature of virtue itself. Although his direct answer is that virtue is unteachable, Socrates does propose the doctrine of recollection to explain why we nevertheless are in possession of significant knowledge about such matters. He argues that knowledge and virtue are so closely related that no human ever knowingly does evil: we all invariably do what we believe to be best.

Given the hindsight of a couple of thousand years, I'd say Socrates was spot off on this one. But he may have a point with the hapless Christopherson. He was doing what he thought to be best. He was trying to make a point. The fact that his method demonstrated an alarming lack of compassion and common sense is probably more a symptom of ignorance than sheer evil. As far as the victim is concerned, however, that is a distinction without a difference.

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May 1, 2008


Daniel Goldberg has posted an excellent new edition of Health Wonk Review at his Medical Humanities Blog. This week's roundup from the brainiacs of health wonkery encompasses everything from the usual health policy debates to alcopops, including a handful of posts on legal matters and new legislation.

RIMS - Joe Paduda of Managed Care Matters has been blogging his observations from RIMS this past week. He's posted news from the pharmacy sector, notes an emphasis on outcomes, and discusses innovation.

Emergency responders - In response to a recent reader inquiry about injury rates among police, we unearthed a 2004 Rand report on Emergency Responder Injuries and Fatalities focusing on U.S. firefighting, law enforcement, and emergency medical services personnel. While a little dated, it's still worth a read. The report notes that while data for firefighter injuries are readily available, there are significant gaps in available data for police and EMT injuries. Line-of-duty fatalities are tracked, data on the frequency, type, and duration of injuries can be harder to come by. We'd welcome any pointers to data sources from readers.

Minnesota pork plant workers to be compensated - At least 18 workers at the Quality Pork Processors plant of Austin have come down with strange, debilitating neurological illnesses. Those affected worked at or near the "head table" where compressed air was used to blow brains out of pig skulls. The brain matter turned into a fine mist, and health authorities believe that the workers' exposure to this mist led to progressive inflammatory neuropathy, or PIN. The workers were initially denied workers compensation, but at least one worker has been notified that her claim will be honored so it sounds as though the insurer rethought matters, perhaps in light of some pending lawsuits.
Workers compensation is relatively clear cut when it involves injuries, but illnesses can pose numerous complexities and employees bear the burden of proof for demonstrating the work relatedness of the illness. With many illnesses, such as cancer, there can be delayed onset and it is difficult to prove that work and not some outside factor was the precipitating cause. In this ghastly case, medical authorities are still puzzled but have observed cases of the illness among pork workers in other states, all of whom were engaged in similar work at the "head table." All plants have now discontinued this practice.

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