August 2008 Archives

August 29, 2008

 

Insider readers contemplating a Labor Day weekend retreat are probably performing the doomed calculus of traffic risk assessment: should I leave early, should I use contrarian logic and head into the middle of the maelstrom, or should I leave late? Given the price of gas, maybe I should just bag it and stay home. How do the risks -sitting in endless traffic - compare to the rewards: waking up in a nice place?

We cannot advise you on how to make these truly momentous decisions, but we can offer a few moments of entertaining and educational diversion: the latest edition of Cavalcade of Risk, hosted by John Leppard of Healthcare Manumission, is up. Lots of goodies, but no answers when it comes to traffic. As with so many decisions involving risk, you are pretty much on your own.

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August 28, 2008

 

Yesterday, at Managed Care Matters, our good friend Joe Paduda published an excellent "how-to primer" for starting a workers' compensation medical network. Essentially, Joe's advice for would-be network creators is:

  • Bring the right physicians into the network - board-certified occupational health specialists, for example, as well as primary care and specialist physicians who understand workers' compensation;
  • Exclude physicians who don't know anything about the subject;
  • Pay the physicians a reasonable rate; and,
  • Support the network physicians by sending them patients.
If the network is formed in that way it should be of gold standard caliber. But that's easier said than done.

We're all familiar with the super-large networks that include anyone with a medical degree - as long as "anyone" agrees to see network patients for a discounted fee, which the network can then tout as "savings" for employers regardless of the quality of care. Most of these networks and the doctors in them came from the group health arena where modified duty, transitional duty, early return to work, the buzzwords of workers' compensation professionals, are foreign concepts. And why should that be surprising? After all, workers' compensation is only one, tiny room in the American health care house that Jack built.

What workers' compensation professionals sometimes forget is that most doctors, whether in or out of these networks, went to medical school because they wanted to devote their lives to healing the sick, not to becoming some company's external medical personnel director. Many, perhaps most, physicians in networks that have physician directories the size of New York City's phone book understand "injuries," but not workers' compensation, and that is not their fault. It is ours. We have not educated them sufficiently regarding workers' compensation, nor have we cohesively partnered with them to help injured workers transition at the right pace back to full duty, which, in my 25-year Lynch Ryan experience, is where injured workers really want to be.

Consider this. Most doctors have small practices that turn them into small business owners. I've never met one who liked that, the business end of medicine. Most are not technologically facile, and workers' compensation injuries comprise a minor share of their "business." Their responsibility focuses totally on their patients and what's wrong with them. They don't see a real need to be overly interested in the workplace; in fact, they most often don't even know what or where that is. On the assembly line that has become American health care, where insurers force physicians to cycle through patients in fifteen minute intervals, who has time to probe deeply about the workplace and what goes on there? When some claims adjuster or nurse case manager wants to pin them down about physical restrictions or a date when their patient can return to work, they err on the side of humongous caution in order, in their minds, to "do no harm." This leaves workers' compensation professionals and employers befuddled, scratching their heads and wondering what is wrong with the doctor. They think, "Why can't the doctor see what's really going on here?" They don't understand the doctors and the doctors don't understand them.

That's the scenario in which workers' compensation professionals very often find themselves. At Lynch Ryan, the only way we have ever found to deal with it successfully is one doctor at a time, sitting face to face and finding common ground. Occupational health specialist or not, an educated physician is a powerful weapon for good in the little world of workers' compensation.

In my next post I'll describe the step-by-step process my colleagues and I went through to build the first workers' compensation medical network in Massachusetts once upon a time. Here's a teaser: It was a thing of beauty, profoundly successful for everyone involved, and would not be legal today.

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August 25, 2008

 

It was only a matter of time before the perfect storm hit state employee healthcare. It happened this week, on August 20, in, of all places, Alabama.

By 2011, Alabama employees who are obese, hypertensive, or have high cholesterol or high blood glucose will have to pay $25 more each month for their state health insurance. In 2010, they’ll pay $25 more if they haven’t enrolled in wellness programs to address their health risks.

Alabama has 37,555 active state agency employees covered by the State Employee Insurance Board. In the last ten years state health care costs for these workers have risen 172%. As yet untouched by the new rules are the 222,445 active duty and retired teachers covered by a separate system – the Public Education Employees Health Insurance Plan, but one suspects their time will come. After all, their health care costs have risen 200% in the same period.

To put this in perspective, consider this. Since 1999, Alabama health care and pension costs for all employees, including active and retired teachers, have risen 241%. But state revenues have risen only 67%. When one factors into the mix that:

  • Only two states in the nation have more overweight people than Alabama, and that
  • 43% of Alabama’s state employees are overweight, and that
  • 19% are extremely overweight with body mass index greater than 35, and that
  • Medical costs for the extremely overweight are $1,700 a year higher than for employees of normal weight (body mass index less than 25), and that
  • Current economic indicators do not suggest a rapid rise in state revenues over the next few years, but that
  • Health care annual costs are expected to continue increasing at double digit rates, then
  • It doesn’t take much of a genius to conclude that as time goes by the situation becomes more and more untenable, hence,
  • The unveiling and rapid descent of the economic Hammer of Thor.
You may ask why smokers are not included. Well, they are. Alabama employees who smoke are already charged an extra $22 per month for their health insurance.

Notwithstanding that, obesity is the big killer. As I wrote in a monograph on The Best Health Care in the World that debuted here in the Insider as a 5-part series in March of this year:

Unfortunately, obesity has been shown to be a greater driver of health care and health care spending than alcohol consumption or smoking – "the effects of obesity are similar to 20 years of aging." According to Thorpe, et al, 27% of the per capita increase in US health care spending between 1987 and 2001 was attributable to obesity. There is a direct correlation between obesity and Type 2 diabetes, obesity and hypertension and obesity and heart disease (the trends in obesity accounted for more than 38% of the increase of diabetes spending and more than 41% of the increase in spending on heart disease since 1987).
It is as yet unknown whether Alabama will assist its 7,100 extremely overweight employees currently at risk for the higher health insurance charges by defraying some or all of the cost of the wellness programs toward which it is now herding them. Also unknown is if and when this surcharge program will be extended to all those teachers, who now pay $134 per month for their share of family coverage, compared to a nationwide average of $273 per month according to a survey by The Kaiser Family Foundation and The Health Research an Educational Trust.

Although one can hardly say that Alabama is noted for leading the national way, one has to ask, "As Alabama goes, can the nation be far behind?"

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August 21, 2008

 

beach blogging This year, Americans are leaving 460 million vacation days on the table - and based on the volume of submissions to this week's Health Wonk Review, I am estimating that health policy wonks make up about 10 percent of that total since they are obviously hard at work. Either that, or our contributors have just gotten very, very good at beach blogging. Let's hope that's the case, because too much work and too little vacation can be very deleterious to one's overall health and well-being, and if there's one thing we don't need, it's a lot of unhealthy wonkers putting more pressure on our already overtaxed health care system.

This week, we have a quite an extensive range of topics and posts for your perusal. In the interests of maximizing my own beach time, I present them to you without further ado.

What are Obama and McCain saying about health care? Jason Shafrin of Healthcare Economist offers a rundown on the candidates' policy positions with a handy side-by-side comparison on various issues.

And while we're talking politics, few of our regular contributors have posted about the return of the infamous Harry and Louise duo. And as blogger Louise of Colorado Health Insurance Insider (no relation!) notes, their return just happens to coincide with next week's convention in Denver. In What A Difference Fifteen Years Makes, she observes that where they once talked about the evils of rationed health care in a government run system and how "having choices we don't like is no choice at all," now they're talking about people without health insurance "falling through the cracks."

Brian Klepper has also noted the chastened and more sober return of Harry and Louise. He identifies the five prominent sponsors of the ad series and discusses their various motivations beyond their common goal of getting the next President and Congress to focus on meaningful health care solutions. He notes that unless the nation's most influential power brokers mobilize to make changes in policy, it's not likely to happen.

David Williams of Health Business Blog has been keeping a wary eye on his favorite newspaper, The Wall Street Journal watching for any sign of deterioration in the Rupert Murdoch era. Instead, he finds much to praise in the state of its journalism as evidenced by the WSJ's recent analysis of Boston Scientific's Liberte stent study.

The recent Black Hat conference revealed significant Internet security holes opening questions about issues related to electronic health records (EHRs) and patient health records (PHRs). HealthBlawger David Harlow looks at some of the cost-benefit ratios and concludes that EHRs and PHRs ought to be used to provide better health care and the security issues can be tolerated.

Bob Laszewski of Health Care Policy and Marketplace Review takes a look at a recent ruling by the British National Health Service's National Institute for Health and Clinical Excellence (NICE), which found that four expensive cancer drugs aren't effective enough to pay for. Bob thinks that the next time any of us suggest that making better cost/quality decisions is an obvious next step to take, we should remember this example of a real cost/quality decision.

Roy Poses of Health Care Renewal gives us the scoop on a recent medical school tobacco funding controversy that resulted in the early retirement of the president of Virginia Commonwealth University. It seems there was a little matter of secret research contracts with tobacco company Philip Morris, which afforded PM control over the results. Roy suggests that the change might prompt VCU leadership's to reconsider its close relationship with a company whose products are the antithesis of the universities' health mission.

Could a slightly deranged researcher kill five people and terrorize the nation single-handedly? And if so, doesn't this raise important public policy questions regarding the entire multi-billion-dollar biodefense effort? Merril Goozner of GoozNews recently spoke with Dr. Richard Ebright of Rutgers University about the government's "lone madman" theory and the real bioterror threat.

Len Nichols of New America Blogs hopes that the media will play a substantive role in ensuring that the candidates' health policy positions don't get consumed by day-to-day campaign politics. He suggests that journalists should focus more effort on furthering the employer tax exclusion debate.

In his post Privacy, please, Neil Versel of Healthcare IT Blog provides highlights of the recent HIPAA Summit, with particular attention to debates on privacy issues and enforcement/lack of enforcement by the Office of Civil Rights. Interesting to learn that not a single civil monetary penalty has been assessed in the five years the rules have been in effect.

It does not necessarily follow that facilitating access to health care will substantially improve population health. Daniel Goldberg of Medical Humanities Blog cites the abject failure of HIV policy in the U.S. as an example: AIDS has already killed more Americans than the combined total of combat deaths in World War I, World War II, Korea, and Vietnam.

And what's a post on naked kids doing in the family-friendly HWR? InsureBlog's Bob Vineyard explains how trying to cover uninsured children has some unexpected, and unwelcome, consequences.

Brian Schwartz of Patient Power suggests that the best defense of Health Savings Accounts is not that they promote wise spending and bring costs down but that they are a step toward a more ethical tax policy.

We tend to be U.S.-centric here at HWR, so we welcome news from our northern neighbor. Sam Solomon of Canadian Medicine conducts an interview with Dr. Brian Day, Canadian Medical Association's outgoing president who advocated a greater role for private insurance in healthcare in Canada, on what he was able to accomplish in his tenure.

Jaan Sidorov of Disease Management Care Blog notes the recent good news about the Physician Group Practice Demo, and wonders if participants weren't really using programs similar to disease management? This question and others inspired Jaan to pen some alternate lyrics for a popular Led Zepplin song. He invites readers to take a break from all this wonky seriousness and sing along.

At Health Access Weblog, Anthony Wright posts about a recent study on increased ER overcrowding which finds an increase in ER use by the *insured,* and points to a solution: ensuring health plans offer adequate networks and timely access to care.

Joe Paduda of Managed Care Matters looks at the reasons why people are uninsured and considers at what price people will buy health insurance.

The folks posting at The Health Care Blog have web 2.0 on their minds. In Gaming for health, James Cooley explores the ways that modern interactive video and gaming content might fit in with some of the new health information and fitness promotion tools being pondered as part of Health 2.0. And Greg Pawelski offers an example of how Web 2.0 is playing out in a transparent cancer clinical trial where patients are treated in real time.

Shahid Shah, The Healthcare IT Guy has updated his review of the PhreesiaPad, one of the first consumer devices created specifically to check in patients, and likes it even more today than when we first saw it back in late 2005.

Here at Workers Comp Insider, we took a look at the issue of suicide and compensability under workers comp in the light of a recent Nevada Supreme Court ruling.

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August 20, 2008

 

New York Trusts In the latest development in the continuing saga of the New York trust fund, Liberty Mutual is now suing New York, contending that new provisions in the workers comp law unfairly target insurers. It protests that having to make lump sum deposits to the state's Aggregate Trust Fund for permanent partial disability claims - a new wrinkle - is unfair to insurers since these deposits are not required from self-insured employers or from the state's largest insurer, the state-owned New York State Insurance Fund.

New Hampshire contractor misclassification - In New Hampshire, compliant employers are speaking up about the competitive edge that fraudulent employers have when they intentionally misclassifying workers as independent contractors. In response, five state agencies are gearing up to investigate contractors throughout the state and penalize those who are improperly classifying their workers.

Risk management wiki - RIMS has revamped its website, and one of the features we find interesting and useful is the new RiskWiki Glossary - an online glossary of Risk Management Terms, edited by members for members.

Violence - Domestic violence is a leading cause of death for women ages 15-44, according to the Centers for Disease Control - and much of it occurs in the workplace. In fact, it's one of the top causes of workplace fatalities for women. We've recently discovered a blog that addresses this topic: Domestic Violence and the Workplace, authored by Kim Wells, the Executive Director of the Corporate Alliance to End Partner Violence (CAEPV).

Firefighter safety - We recently blogged about firefighter fatalities so were interested to learn that the Public Entity Risk Institute (PERI) will be sponsoring a free online symposium on Reducing Firefighter Deaths and Injuries: Changes in Concept, Policy, and Practice from September 22 to October 3. It looks like a substantive offering - more than 20 noted experts will be contributing.

Safety managers social network - Online Safety Community is a new, free social network created for safety managers, foremen, safety engineers, factory and construction workers and anyone else who is concerned with workplace safety. The site is sponsored and created by Ansell Limited as a free service intended to provide a forum that will allow better networking and information sharing among safety professionals, who often work alone in an organization.

Prescriptions and privacy - If you feel like someone has been peeking in your medicine cabinet, you may be right. Business Week recently featured an article on how insurance companies use huge, commercially available prescription databases to learn about applicants' prescriptions and deny coverage based on that information. The obstacle primarily confronts people seeking individual health insurance, not those covered under an employer's plan.

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August 18, 2008

 

OK, we ended last week on a bit of a light note and we are going to start this week off in a similar vein. After all, if you are reading this, you are one of about one hundred twenty people who is not on vacation this week.

We chanced upon this video clip of an actuarial type (Gene from Humana?) channeling Marvin Gaye in a catchy ditty called Actuarial Healing - a command performance, I think you will agree.

And if you are nerdy enough to have found that hilarious (as I did), you might be tickled by this musical group of mathematical students -- The Klein Group Four -- singing Finite Simple Group (of Order Two), a clever a Capella number written in mathematical theorems.

And while we're on the singing math geeks vein, we can't overlook I Will Derive - no doubt destined to be a hit. And here's a pretty clever four year old who seems to be on a scientific path rather than a mathematical path (styled after Tom Lehrer's classic song), but the kid displays enough nerdy obsession that we should try to divert him to our industry.

Lastly, we have no idea what's going on with the Australian actuaries, but their biannual meetings look fascinating.

We've featured actuarial humor once or twice before here on Workers' Comp Insider, but let's get serious. In the interests of doing our part to clear up any negative stereotypes about actuaries that might be out there, we quote a press release issued by the Society of Actuaries a few years ago in response to the film "About Schmidt" in which Jack Nicholson portrayed a math-obsessed, socially disconnected retired actuary with a bad comb-over:

"While highly humorous, the perception of actuaries -- based on the character portrayed by Jack Nicholson in the film -- is incorrect ... to be more to the point (literally), the perception that actuaries are math-obsessed is 94.00632% incorrect, the perception that actuaries are socially disconnected is 98.34343% incorrect, and - most shockingly of all - the perception that actuaries tend to favor bad comb-overs is 99.67893% erroneous."

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August 14, 2008

 

Joe Paduda is hosting Cavalcade of Risk this week - a sampling from some of the best risk blogs. Check it out over at Managed Care Matters.

And from the lighter side, a video clip recap of a startling new study: Most children strongly opposed to children's healthcare.

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August 13, 2008

 

In a recently issued study entitled On-Duty Firefighter Fatalities in the United States in 2007 (3.0 mb PDF), the United States Fire Administration (USFA) reported that there were 115 on-duty firefighter fatalities in the United States in 2007. This was an 11% increase from the 106 fatalities in 2006. As in prior years, heart attacks were the most frequent cause of death, accounting for about 45% of the fatalities. Vehicle-related incidents were the second highest cause of death, accounting for 27 fatalities. Firefighters lives were lost in 33 states and Washington, DC. South Carolina experienced the highest number of fatalities (11) while Pennsylvania, New York, North Carolina, and California each suffered more than 5 on-duty losses. Some other key statistics in the report include:

  • 68 volunteer firefighters and 50 career firefighters died while on duty
  • There were 7 firefighter fatality incidents where 2 or more firefighters were killed, claiming a total of 21 firefighters' lives
  • 11 firefighters were killed during activities involving brush, grass, or wildland firefighting, the lowest in over a decade
  • Activities related to emergency incidents resulted in the deaths of 76 firefighters
  • 38 firefighters died while engaging in activities at the scene of a fire
  • 26 firefighters died while responding to or returning from emergency incidents
  • 11 firefighters died while they were engaged in training activities
  • 15 firefighters died after the conclusion of their on-duty activity
  • Heart attacks were the most frequent cause of death for 2007, with 52 firefighter deaths
  • 27 firefighters were killed as a result of vehicle crashes

One of the objectives of the report is to analyze the circumstances surrounding the fatalities. This is intended to help identify approaches that could reduce the number of firefighter deaths in future years.

Additional resources
An abbreviated summary of the 2007 fatality report is also available.

Recognizing the need to do more to prevent line-of-duty deaths and injuries, the National Fallen Firefighters Foundation launched a national initiative to bring prevention to the forefront. Everyone Goes Home offers online resources, tool boxes, a learning center, and a calendar of various life-safety initiatives and activities.

Firefighter Fatality Retrospective Study 1990-2000 (PDF)

Annual Firefighter Fatality Reports

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August 11, 2008

 

Is a suicide compensable? In certain circumstances it is, according to a recent ruling by the Nevada Supreme Court in Sharon Vredenburg v. Sedgwick CMA and Flamingo Hilton-Laughlin. While Nevada state law prohibits benefits if a worker's death occurs due to a "willful intention to injure himself," this does not apply if a "sufficient chain of causation is established." Roberto Ceniceros of Business Insurance noted that, "To establish such a chain, claimants must demonstrate that the employee suffered an industrial injury that in turn caused a psychological injury severe enough to override rational judgment. Claimants must then establish that the psychological injury caused the employee to commit suicide, the court said.

Dan Vredenburg was a bartender for the Flamingo Hilton in Laughlin. He suffered back injuries in a fall down stairs while working and was compensated for his injuries. According to the ReviewJournal.com, he suffered relentless pain. He couldn't keep food down and spent his life in bed. Nealy three years after this accident, he killed himself. Under the state's "willful intention" clause, his widow was denied benefits several times until the matter reached the Supreme Court and the precedent-setting determination was made.

Other workers comp-suicide rulings: MA, WY, ND
There have been other cases involving suicide where workers comp has been awarded to surviving spouses. This past November, we covered a suicide that was deemed compensable in Massachusetts. In that case, Gilbert Dube injured his back at work. When he tried to return to work on light duty, he was terminated. He then grew depressed and commit suicide a few weeks later. The insurer made the case that his termination was an independent, intervening event that broke the chain of causation. At the hearing, the claimant's attorney introduced medical evidence that the employee's back injury caused him to become clinically depressed, and that the termination exacerbated his depression to a degree that he was acting irrationally when he commit suicide. The justices concluded that the injury and termination were inextricably connected.

In the 1992 case of State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, an Appeals Court upheld benefits for a decedent's widow using the chain of causation test as the predominating principle in its decision.

Steven R. Ramsey was receiving workers compensation benefits after suffering a severe 1988 industrial accident that left him unable to resume work. In 1990, about 5 weeks after his pain medication was mostly discontinued, his pain increased, he became depressed, and he killed himself. In determining to continue benefits, the Court agreed with his widow:

"The circumstances of this case are clear. Steve Ramsey would not have committed suicide if not for his work place injuries. There were no pre-existing conditions that caused him to be susceptible or prone to suicide, there were not intervening conditions or situations that occurred between the time of his work place injury and his death, and Steve Ramsey continued to do all those things necessary to try and get well. But for the injury at the Wydak Power Plant, Steve Ramsey would not have committed suicide."
In the same year, a North Dakota Appeals Court denied benefits to the widow of Richard L. Kackman in the wake of his suicide, finding no cause and effect relationship between Richard's work injuries and his suicide. In this case, two doctors presented conflicting testimony. One doctor concluded that Richard's work injuries caused chronic illness, which caused depression, which in turn caused him to take his life. The other physician stated that Richard had a prior history of interpersonal problems, delusions, and a paranoid disorder before any work injuries occurred, and those preexisting conditions were what caused Richard to commit suicide. The Court agreed and denied benefits.

These cases show the importance of addressing pain and depression in recovery plans, particularly those involving life-altering injuries. Suicides in workers comp will likely continue to be outliers, but state courts have shown sympathy to the idea that pain and depression can pierce a "willful intention" defense by the insurer. The courts seem consistent from state-to-state in requiring a chain of causation. But despite the precedent-setting nature, we note Jane Ann Morrison's observation in the Nevada ruling: "None of the lawyers I spoke to thought there would be a rash of suicides by injured workers as a result of this ruling."

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August 7, 2008

 

Do MDs make good business people? Should more hospital CEOs be physicians? Should there be licensing requirements for hospital executives? Read about these and other health policy questions in this week's edition of Health Wonk Review. Bob Laszewski of Health Care Policy and Marketplace Review is this week's host. While over at Bob's blog, check out his recent post on the likelihood of meaningful heath care reform in the next year or two.

Teen worker safety - How safe is your summer job? That's a question Bill Whittemore is putting to teens and the parents of teen workers as he tries to increase awareness about the importance of on-the-job safety for teens. Whittemore learned this lesson the hard way. Last year, his 17-year-old son James Whittemore was working at his family's construction company when he was electrocuted and died in his Dad's arms. Also see: Lost Youth: the stories of four teens injured at work

Politics trumping safety in NV? - The Los Angeles Times covers the matter of the many Las Vegas' construction deaths, questioning why the state has dropped or sharply reduced penalties that had been proposed by investigators.

Windfall for Ohio's BWC - Good news as a follow-up to Coingate. Ohio's Bureau of Workers' Comp will recoup more than $50 million. The money comes from the sale of coins and collectibles in the liquidation of assets of an investment fund managed by coin dealer Thomas Noe. Noe is currently imprisoned for 18 years for theft and other crimes, a scandal that had enormous ramifications on the BWC as well as on the state's political infrastructure. (For more on this scandal, see the Toledo Blade's archive or see Wikipedia's recap).

Motivational waterboarding suit - for the bizarre case of the week, see recent developments in the case of the Utah employee who was waterboarded by his boss as part of a motivational training exercise. My colleague Jon discussed this case in his May post on Waterboarding for sales.

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August 6, 2008

 

Lawyers wrote the Americans with Disabilities Act, so it's no surprise that would-be lawyers constantly try to raise the bar on accommodations within the legal profession. Case in point, Shannon Kelly, a 2003 graduate of Barry University School of Law in Orlando, Florida. Last year Kelly took the bar exam in West Virginia. In response to his stated disability, the Board printed his exam in eighteen point type, let him take the test in a private room and allowed him an extra day to finish. Nonetheless, Kelly failed the test.

He wants to try again, but this time he wants an additional accommodation. He has sued to be given all of the above accommodations, plus an additional day to finish the test. While in law school, his Barry U professors gave him twice the normal time to finish his exams. Twice the normal time for the West Virginia bar would be four days.

Kelly's lawyer, Edward McDevitt, says that the Board has violated Kelly's rights as a disabled person under the ADA.

"He has invested enormous time, money and energy to reach the threshold of the profession," explained McDevitt. "But he has severe deficits in processing speed, cognitive fluency and rapid naming."

Essential Functions
Kelly's suit raises some interesting issues. The accommodations he requires for the exam might well be needed for his practice: briefs written in 18 point type; extension of the normal deadlines for filing court papers; perhaps even extra time to present his arguments. The fundamental question is whether Kelly can perform the essential functions of the legal profession. Most lawyers have to be able to read small type, respond to numerous deadlines and present their cases under extreme pressure. As a reward for their proficiency, they are (often) paid substantial hourly fees. Would Kelly command the same hourly rates, despite the fact that it might take him twice as long to complete the work? Would it be ethical to charge clients double for Kelly's work? (On second thought, the subject being lawyers, let's keep ethics off the table.)

If Kelly succeeds in passing the bar, I would recommend that he seek work as a government lawyer. He could take his sweet time finishing a task; he could let all his phone calls drift into his voicemail and call back when he felt like it; and he'd draw a salary, so his relative lack of output would be less of an issue. Heck, if he can pass the (illegal) political litmus test recently in vogue, he might be an ideal candidate for the Department of Justice.

At this point the case is in the hands of U.S. District Judge David Faber, who has temporarily denied Kelly's demand for enhanced accommodation. Judge Faber will soon make a final disposition on the lawsuit. When Faber finishes this case, he might be ready to tackle reasonable accommodation for surgeons. I'm really looking forward to that one.

Follow up Note (8/9/08)
In re-reading my suggestion that Kelly become a government lawyer, I unintentionally crossed the line between well-intentioned satire and bad taste. Most government lawyers in my personal experience are extremely knowledgeable, quick to answer the phones and highly responsive to public inquiry. What I meant to say was that Kelly might find an appropriate place among the highly partisan, marginally skilled ideologues hired by the Department of Justice in the last five or so years.

As should be evident by now, I try to hold all professions accountable, including my own (consulting). So in the spirit of fair play, here are some tasteless jokes about consultants. Enjoy.

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August 4, 2008

 

This summer, risk managers in Florida, Georgia, and Louisiana have a new concern to add to their checklist of health, safety and prevention issues: guns at work. These three states have recently enacted legislation that will allow employees to keep guns in locked cars at the work site. These laws not only overrule any existing company policies which forbid guns on company property, they mean that it is now illegal for employers to prohibit employees from keeping loaded guns in their cars during work hours.

The three states are the latest in a series of states that have passed such legislation. Other states with similar laws include Alaska, Kansas, Kentucky, Minnesota, Mississippi, and Nebraska. At least 13 other states have rejected similar laws; Oklahoma passed similar statute, but it was struck down in October 2007 on the grounds that the law conflicts with federal law, specifically, the 1970 Occupational Health and Safety Act. OSHA requires employers to reduce any any workplace risks that could lead to death or serious bodily harm. OSHA also encourages employers to prevent gun-related workplace injuries.

While each law varies in its particulars, there are some restrictions. In most cases, the laws apply to to licensed gun holders, for example, and some types of businesses may be exempt. In Florida, these include aerospace companies, nuclear power plants, hospitals, schools, prisons, and manufacturers that use combustible materials. Most laws offer employers some limited protection from any liability that should occur as the result of the laws, but this would likely not protect an employer from such things as business interruption, loss of business, or qualifying employee workers compensation or disability claims, to name a few matters.

Employer challenges
In Florida and Georgia, several large employers are keeping bans in place. Disney, Universal Studios, a Georgia Pacific paper plant, and Atlanta's Hartsfield-Jackson International Airport are maintaining gun prohibitions and facing NRA-financed lawsuits from gun owners. States are struggling to clarify the laws on questions such as which employers should qualify for an exemption and exactly who does and doesn't the law apply to? Right now, employers may not restrict employees from keeping a gun in a locked car, but vendors and visitors may be restricted.

Both sides claim rights. Gun owners claim their right to have guns, although the recent Supreme Court ruling suggested this right is not without some restrictions. Employers claim such laws are a a violation of the private property rights provided by the Constitution and an imposition on their violence prevention measures, which they must take to be in compliance with OSHA. Employers cite the five fatalities at an Atlantis Plastics in Henderson, Kentucky as an example of what could go wrong. In that case, a disgruntled worker retrieved a .45 caliber pistol from his car shortly after being escorted out of the workplace, returning to shoot his supervisor and four co-workers. This type of incident is unfortunately not rare. The Bureau of Labor Statistics data reveals 787 weapon "assaults and other violent acts" in workplaces in 2006. There were 439 workplace homicides by gunfire.

The recent spate of legislation is hardly the last we will hear on the matter of guns at work. Buoyed by the recent Supreme Court decision which struck down the 1976 Washington D.C. handgun ban, the NRA is stepping up its challenges to existing state gun control laws. If this issue hasn't surfaced in your state yet, rest assured, it will.

Prior posts on this topic
Guns at work - coming to a neighborhood near you?
Workers with guns
Guns at work

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