March 2009 Archives

March 31, 2009

 

Back in September we blogged a lawsuit filed by three former wrestlers of World Wrestling Entertainment (WWE), the colorful circus of flying bodies managed by Vince McMahon. The wrestlers claimed that they were not independent contractors, but employees of WWE and entitled to all the benefits of employment. We guessed that Vince would be crushed in court. Well, we guessed wrong.

Judge Peter Dorsey of the U. S. District in Connecticut has dismissed all the charges against the formidably muscled McMahon. The judge found no merit in the three fundamental assertions of the plaintiffs:
: that WWE failed to withhold taxes (no harm to the individuals, the judge said)
: that the three grapplers were denied the "rights and benefits" of employment (no specifics in the filing, so the judge ruled against them)
: That WWE benefitted from "unjust enrichment" (again, the judge found no basis in law for this assertion)

One thing puzzles me about the findings. Nowhere does Judge Dorsey consider the fundamental test for independent contractors: who controls the work? Here's what the IRS has to say about the issue:

The general rule is that an individual is an independent contractor if you, the person for whom the services are performed, have the right to control or direct only the result of the work and not the means and methods of accomplishing the result.

Despite the fact that every match is scripted from introductions to outcome ("means and methods"), despite the fact that these "independent contractors" have no control whatsoever over their work: when to show up, how to perform the job, whether or not to lose the match...Despite these compelling indications that they are indeed employees, the judge has determined that they are not.

I believe the plaintiffs dropped the proverbial ball when they failed to mention at least one benefit near and dear to the Insider: workers comp. WWE offered a workplace full of unusual hazards. (Ever try cracking a folding chair over the head of a co-worker without hurting him?) Despite the fixed outcomes, injuries are commonplace in this high-risk field of endeavor. Yet these three wrestlers - along with their fellow independent contractor colleagues - are on their own for the inevitable injuries that occur in the course and scope of their work.

Hope for FedEx?
While the judge dismissed this particular lawsuit on technicalities, I wonder how he would view the contracts between FedEx and its "independent contractor" drivers. Perhaps he would stick to the letter of the written agreements and, once again, ignore the core issue of who controls the work. So there may be hope for FedEx's battered business model, at least in one U.S. District court.

In the meantime, when your channel surfing brings you to the scripted mayhem of the WWE, pause for a moment and consider the fate of the behemoths pummeling each other with abandon. They may appear to be working in a collaborative - if cartoon-violent - manner; they may appear to be following a script written by others, but don't be fooled. As far as the law is concerned, WWE performers are independent contractors, answerable to no one but themselves. I suppose that makes wrestling matches real. Now if they could just get those comically incompetent refs to do their jobs...

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March 30, 2009

 

Julie Ferguson's gut-wrenching post from Thursday morning, "It's Spring...and the Start of Trench Death Season," made me think of a truly remarkable gentleman that I met a few months ago in North Carolina - Bob Synnett. Mr. Synnett, or Safety Bob, as he's known in the Carolinas, is a great big bundle of charismatic energy. I've been meaning to write about him for a while, and Julie's post kicked my feeble brain into gear.

I met Safety Bob when I visited my friend Charlie Tagman, CEO of CIC, the Carolinas AGC Insurance Company, in Charlotte, NC. One of the smartest people I know in the world of workers' compensation, Charlie created TPA Associates in 1992 and sold the company to Meadowbrook Insurance Group in 1999. Following that, everyone expected him to fold his tents, steal off into the night and rest on his laurels. But if you know anything about entrepreneurs, you know that's pathologically impossible. So Charley started helping out the CAGC Self-Insurance Trusts in North and South Carolina as a consultant. One thing led to another, and as he became more deeply involved, the CAGC leadership realized that the best thing for everyone would be to ask Charlie to take over the whole workers' compensation operation as CEO. He did that, and in short order converted the Trusts into a domestic insurance carrier.

Charlie had asked me to visit, take a look at the CIC operation and tell him what I thought. So after spending a couple of days in his relatively new, but extremely well run, insurance company, the best I could come up with, after 35 years in this business, was to suggest that perhaps he ought to move his desk about six inches to the right!

Anyway, one of the very smart moves Charlie had made was to contract with Bob Synnett (you were wondering when I would get back to Safety Bob, weren't you?) to provide safety and loss control services for his insureds in South Carolina.

Bob Synnett is a Carolinian through and through. A graduate of the University of South Carolina, he played football on some pretty good Gamecock squads of the early 1980s under Coach Jim Carlen. A big guy, but never a starter, he told me that the high water mark of his college football career was being expected to tackle George Washington Rogers every afternoon at practice. Wincing slightly, he described some eye-popping bruises earned the hard way as he tried to get in front of the human locomotive who outpointed Hugh Green, of Pittsburgh, and Herschel Walker, of Georgia, to win the Heisman Trophy in 1980. Mr. Rogers was the irresistible force to Mr. Synnett's very moveable object.

Safety Bob knows his OSHA up and down, back and forth. But what he really excels in is training. He's created a safety orientation DVD for employees in the construction industry that had me hooked within the first five minutes. Although the DVD is aimed at new employees, it's a superb refresher course for everyone. Here's a link to some excerpts.

The excerpt on excavation and trenching is well done and truly memorable, and makes Julie's post of 26 March hit home even harder.

At the Insider, we have a rule about remaining objective and independent. We also don't usually recommend or hype commercial products. But for today only, I'm bending that rule a little bit by suggesting that, if you have anything to do with the construction industry, you could do a lot worse than checking out Bob Synnett's new employee indoctrination video. Lynch Ryan staff has shown this video to about 300 contractor employers during training seminars. Viewers have been universally impressed. I'm betting that will be your reaction, as well. By the way, the DVD comes in both English and Spanish versions.

Finally, in the department of full disclosure, neither Lynch Ryan nor Workers Comp Insider has any commercial of financial relationship with either Safety Bob or any other provider of loss control services.

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March 27, 2009

 

Just a short post we though you might enjoy - At Work, a beautiful portfolio of photos of people's work lives from around the world.

This appeared in The Boston Globe's wonderful feature called The Big Picture - if you aren't familiar with it, check out a few of the other topical or news-related photo essays, which are posted every few days - they are always worth a look.

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March 26, 2009

 

Almost with the predictability of the swallows returning to Capistrano, the spring ushers in a season of frustratingly preventable trench deaths. Earlier this week, a Baltimore worker narrowly escaped death after spending 6 hours buried up to his chest in dirt. He had been digging in a 10 foot trench that was apparently unsecured. Firefighters who were on the scene talk about the hazards of a trench collapse rescue. All too often, others die trying to rescue a trapped co-worker- secondary collapses are common. That's what happened last September when three co-workers jumped into a ditch to try to save a buried colleague - four fatalities ensued.

"It is so sickening that they weren't in that much dirt, but it was so heavy that it crushed them," Mahon said. "The dirt was so heavy, it crumbled them forward into a ball."

Mahon said the trench was about as wide as a pickup truck. The men were buried in an area whose size he compared to a queen-sized bed.

One of the men was buried on top of another, he said, and right next to them the two other men were stacked on top of each other.

"The dirt there is incredibly heavy, sticky," Mahon said. "Like gumbo, that's what everyone calls it up here -- gumbo. It's a heavy, heavy clay soil."

Earlier this month, OSHA issued a $200,000 fine to the employer, John Prouty Construction Inc., O'Neill, Neb., for "alleged" willful and serious violations. Of the citation, Charles Adkins, OSHA's regional administrator in Kansas City, Mo. commented, "There is no excuse for this accident and these workers did not need to lose their lives. It is appalling to realize there are companies that would allow, or even require, their employees to enter excavations without having cave-in protection..."

These are needless and preventable deaths - authorities sometimes call them manslaughter. Effective trench control methods exist and are well documented. All trenches over five feet deep are required by OSHA to be protected by sloping, shoring, or employing a steel cage or trench shield. We've compiled several good resources on prevention and worker training - if you work in road crews or construction, please take a few minutes to read our post from last July, Buried Alive.

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March 24, 2009

 

Barry Estabrook of Gourmet takes a look at the tomato harvesting industry in Florida and it's not pretty. In Politics of the Plate: The Price of Tomatoes he suggests that if you've eaten a tomato this winter, it's likely that it was picked by a virtual slave. He focuses on Immokalee county, which a chief assistant U.S. attorney based in Fort Myers terms as "ground zero for modern slavery." Estabrook paints a dismal portrait of immigrant workers who are exploited, cheated, threatened, injured, and abused - some literally being locked up or chained to prevent escape. Estabrook notes that since 1997, law-enforcement officials have freed more than 1,000 men and women in seven different cases ... and those are only the instances that resulted in convictions. Given the illegal status of most of the victims, many are intimidated or reluctant to press charges.

We've covered the issue of modern day slavery in Florida before - same issues, but this time with oranges. Our posting covered the Palm Beach Post's stunning three-part special report on how Florida's famous orange juice comes with hidden costs.

Most people have a tendency to think of slavery as happening elsewhere but in reality, it exists right here in the land of the free. The Baltimore Sun recently featured an expose on slavery in America citing reports that "thousands [are] annually trafficked in America in over 90 cities; around 17,000 by some estimates and up to 50,000 according to the CIA, either from abroad or affecting US citizens or residents as forced labor or sexual servitude." According to a 2004 U.C. Berkeley study, these people can be found working in:

  • prostitution and sex services - 46%
  • domestic service - 27%
  • agriculture - 10%
  • sweatshops or factories - 5%
  • restaurant and hotel work - 4%
  • the remainder coming from: sexual exploitation of children, entertainment, and mail-order brides

The article goes on to discuss each of these "employment" sectors, citing other studies and reports and summarizing the scope of the problem. In terms of farmworkers, it cites a 2004 Oxfam America report that found nearly two million farmworkers living in "sub-poverty misery, without benefits, without the right to overtime," without a living wage, or other job protections, including for children. The Oxfam report noted that most state laws perpetuate inequality, especially Florida and North Carolina.

This issue is largely but not exclusively one of immigrant workers. We've talked about the issue of illegal immigrant workers many times before as the issue relates to workers comp - or lack of it. There are many hardliners who feel that if a worker has illegally entered this country to work, well the heck with them - they get what they deserve. We strongly disagree. We believe that employers everywhere at minimum owe workers a safe workplace, good working conditions, fair pay, dignity, and basic fairness. Worker exploitation diminishes us all. In many industries, state and federal laws protect workers. But legal protections for some industries such as farmworkers and domestic workers are weak, fall under the radar.

In Estabrook's Gourmet article, he ends on a somewhat hopeful note in discussing how wholesale buyers - large supermarket chains and fast food restaurants - could make an enormous difference in the situation by refusing to deal with exploitative growers. So far, several fast food chains - Yum! Brands, owner of Taco Bell, Pizza Hut, KFC, Long John Silver's, and A&W; McDonald's, Burger King and Subway, and only one grocery chain, Whole Foods, have all signed on to the Campaign for Fair Food, an initiative of the Coalition of Immokalee Workers, a grass roots worker organization that is fighting for: "a fair wage for the work we do, more respect on the part of our bosses and the industries where we work, better and cheaper housing, stronger laws and stronger enforcement against those who would violate workers' rights, the right to organize on our jobs without fear of retaliation, and an end to indentured servitude in the fields."

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March 23, 2009

 

The Mercury News offers some potentially bad news for California employers. After four years of comp reform, with rates dropping a staggering 63 percent, the trend is now headed - perhaps precipitously - in the other direction. The Workers' Compensation Insurance Rating Bureau is requesting an increase of 24.4 percent, due mostly to sharp increases in medical costs. The gist of the editorial is simple: we need health care reform in order to tame workers comp costs in California (and, presumably, the nation).

Most people would agree that reform of conventional health insurance is needed. There are millions of people without coverage across the states and the number is growing by the minute. But the relationship of any such reform to the cost of workers compensation is by no means linear. As we saw during the aborted attempt at health care reform during the Clinton administration, solving one problem (access to health care) might well create others (soaring costs for workers comp).

The Deciders
In conventional health insurance, treatment decisions are made primarily by doctors and patients, along with the patient's family. Insurance carriers review the decisions to make sure they are within treatment guidelines. There are two fundamental sticking points: insurer approval for exotic, untested treatments (lots of push back here) and insurer approval for expensive drugs/treatment protocols (push back here as well).

The decision process in workers comp has one additional over-riding factor and one additional party: the factor is the goal of return to work (which may or may not be the goal of conventional healthcare); the additional party is the employer, who is paying the bills (either as a self-insured or through the experience rating process for comp premiums).

The Mercury News assumes that solving the health care problem will naturally solve the comp problem at the same time. This may not be the case. The medical portion of workers comp has a unique and relentless focus: returning injured workers to productive employment as quickly as possible. Under conventional health care, this goal might seem simplistic or even counter-productive: the workplace might aggravate the health problem, in the form of repetitive movements, physically demanding tasks, toxic exposures or even stress. In some circumstances, caring physicians will hesitate sending their patients back into these compromising situations. Where occupational medicine assumes that return to work is almost always a positive goal, family medicine may differ.

Comp Is DIfferent
The medical portion of workers comp is only 2 or 3 percent of total health care costs, so it will be tempting to ignore the comp factor as new national health policies are developed. This would be a mistake. Unless policy makers are prepared to undo nearly 100 years of workers comp protection, they must take into account comp's unique benefit structure, which includes lower cost of treatment for workers, the involvement of the employer in decision-making, and indemnity payments during the period of disabilty. For injured workers and their families treatment under comp is always cheaper than treatment under conventional health plans, because there are no co-pays and no deductibles in comp. In addition, treatment decisions for work-related injuries include input from the employer, who is generally not a participant in conventional health care decisions. Finally, comp offers a virtually universal indemnity plan for injured American workers; they are paid during the period they are unable to work.

Comp requires a special focus. Even if policy makers succeed in achieving universal health care for all Americans, they will not necessarily solve - indeed, they may aggravate - the problem of rising costs for workers comp.

As Washington tackles the problem of health care for Americans, the Insider will continue to focus on the policy implications for workers comp. It's a small piece of the puzzle, to be sure, but one of paramount importance to us.

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March 20, 2009

 

Visit the "spring has nearly sprung" edition of Health Wonk Review at David Harlow's HealthBlawg - it's an eclectic issue covering posts on health reform, prescription drugs, how social media is reshaping health care, medical tourism, technology, and more. David also invites you to follow his tweets on his twitter feed.

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March 19, 2009

 
Our guest blogger is colleague Peter Rousmaniere, a columnist for Risk & Insurance magazine and blogger on the immigrant workforce. Beginning with the sudden and unexpected death of actress Natasha Richardson, Peter explores the murky issue of brain injuries, where what appears to be minor may suddenly morph in to a life-threatening - indeed, life ending - catastrophe.

The actress Natasha Richardson's death was emblematic of the frightening uncertainties surrounding brain injury. She died from what appeared at the outset to be a trivial incident on the slopes of Mont Tremblant, Quebec.

The NY Times reported: "Ms. Richardson, who was not wearing a helmet, had fallen during a beginner's skiing lesson, a resort spokeswoman, Lyne Lortie, said Tuesday. "It was a normal fall; she didn't hit anyone or anything," Ms. Lortie said. "She didn't show any signs of injury. She was talking and she seemed all right." Within two days, she was dead. She joins 50,000 others who die in the U.S. each year from brain injury.

Here are some lessons from this tragedy.

First, brain injuries are far more frequent than we assume.

One million athletes a year sustain brain injuries, the vast majority being "mild" traumatic brain injuries, or MTBI in medical jargon. Rand Corporation estimates that 19% of American troops in Iraq and Afghanistan sustain a brain injury, once again mostly MTBIs.

Second, prevention is improving. Sports helmets are less onerous to wear (though Richardson, a novice on the slopes, declined to wear one). In the military, Humvees are better designed to deflect IED blasts. One important step in secondary prevention and in avoiding re-injury is to remove from activity for about a week anyone who sustains a concussion, until subtle imbalance problems from the initial incident resolve. (We are beginning to see a much more cautious approach to managing athletes with concussions.)

Third, is it increasingly evident that the quality of medical and rehab care greatly matters in TBI outcomes. We in workers comp are focused, appropriately, on vocational outcomes, where the variance in return-to work outcomes for TBI survivors is much wider than it is for burn and spinal cord injury survivors.

I recently interviewed TBI experts working for Paradigm Corporation, including its chief medical officer, Nathan Cope, MD. This firm's specialty is taking over the management and financial responsibility for medical care of catastrophic work injuries. The firm's thoughts on TBI treatment is useful because a Milliman study showed that Paradigm's TBI patients return to work 40% of the time versus a workers comp industry average of only 8%. I asked Paradigm to explain this wide variance of outcomes in light of the Richardson tragedy.

According to the company, the immediate initial care can be deemed adequate as long as the TBI is diagnosed upon initial intake. Treatment has to begin very quickly after injury. In Richardson's situation, the symptoms began to occur a couple of hours after the incident, when the actress experienced a headache.

Problems are usually indicated by a combination of two factors: physical complications (such as headaches) and behavioral (such as depression). Supervisors and managers need to look for these symptoms in any worker suffering a head injury.

For the brain injured who survive the immediate aftermath of trauma, there is another layer of risk, involving low expectations for recovery: there is a cultural (and perhaps even medical) tendency to assume that once the brain is damaged, recovery automatically becomes a remote possibility. This is not necessarily the case.

Unfortunately, in workers comp few managed care people really understand TBIs. For them, brain injured workers disappear into a black box, with virtually no prospect for returning to productive employment. Such pessimism is often misplaced and usually results in substantial costs to both the injured worker and the employer.

Peter Rousmaniere

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March 18, 2009

 

Marcellus, a character in Shakespeare's Hamlet, muses that there is "something rotten in the state of Denmark." To the contrary, there is a spirit of generosity in Denmark that is increasingly rare in this troubled world. We are dealing here with the issue of compensability of cancers that may or may not be work related. As we have discussed in previous blogs, in the states, unless cancer-suffering workers are firefighters, they are unlikely to receive comp benefits for any forms of cancer. Most doctors are reluctant to establish a definitive link between workplace exposures and cancers, even when there is compelling evidence of a connection.

Denmark has a different take on the matter.

Thirty-seven women in Denmark have won the right to compensation after claiming that their breast cancer was linked to their long-term (20 plus years) of night shift work. (We have blogged the possible link between shift work and cancer here.) The state-run disability agency received 75 applications for compensation in 2008. They awarded benefits in 37 cases, as they could find no other significant factors that might explain the development of breast cancer.

Denmark might even take this one step further: they are considering whether to establish the presumption that breast cancer is an occupational illness. In other words, just as many firefighters with cancer in America are presumed to have a work-related condition, women workers with breast cancer in Denmark may benefit from a similar presumption. (It's safe to say that no such presumptions are likely to take root in our comp system.)

Denmark is in the vanguard of worker-friendly governments. Here is just a sampling:

Some of the latest collective bargaining decisions have been an increase of the annual holiday from five to six weeks at some workplaces, an increased proportion of the wages set aside for pensions and increased access to further education. In the new agreements in 2007, many industries introduced three weeks' paternity leave on full pay. Woman already have four weeks' pregnancy leave and 20 weeks' maternity leave.

I know that some of our readers will chastise the Danes for operating a welfare state. Certainly, the Danish tax structure reflects the costs of providing robust benefits for all workers. But Denmark has a total population of only 5.5 million - one metropolitan area in the states. The scale of their social engineering is tiny by American standards.

In these days of market turmoil, where scoundrels cash out huge bonuses and ordinary workers struggle to support their families, we might take a few moments to question the efficiency and fairness of unbridled markets. In times like these, a case can be made for a strong government presence, and, perhaps, for generosity itself. As Hamlet reminds us, "there is nothing either good or bad, but thinking makes it so." Given the state of the economy, we have a lot of thinking to do.

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March 17, 2009

 

Labor leaders and business leaders are in agreement that the new administration will mean a more activist OSHA, with more targeted investigations and tougher penalties for hiding workplace injuries. Some predict that there will be an increase in standards - although that shouldn't be a tough record to beat since there was only one standard issued under the Bush administration for Hexavalent Chromium and that occurred under court order. Others think that employer penalties for willful violation of safety standards that result in injuries or deaths could also become a reality. Health and safety advocates and labor leaders are hoping that the new administration will undo some of the backsliding in terms of safety regulations and standards that occurred during the prior administration.

Among the campaign promises he made, Barrack Obama's platform included a pledge to increase worker safety. So far he appears to be making good on that promise. OSHA got a 6% increase for 2009, or an additional $27 million, to bring the agency's total budget for the year to $513. The Bureau of Labor Statistics also was increased by $52 million, some of which is for tracking injury and illness statistics. He has also proposed raising discretionary funding for the Department of Labor by $1.5 billion by 2010, with a sizable portion to go to OSHA.

At her recent swearing in ceremony, U.S. Secretary of Labor Hilda L. Solis put employers who are subjecting employees to dangerous working conditions or are shorting employee pay on notice: "Let me be clear, there is a new sheriff in town," she stated, emphasizing her intention to use tough enforcement, transparency, cooperation and balance to protect workers. On the health and safety front, Solis has already taken action to expedite a standard to protect workers from bronchiolitis obliterans, a serious and potentially fatal lung disease associated with exposure to food flavorings containing diacetyl, or the so-called popcorn lung. Many think that progress will also be made on ergonomics and tuberculosis standards, as well as strengthened standards for crane safety.

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March 16, 2009

 

We continue to be amazed at the ongoing saga of AIG. We learn in Sunday's New York Times that 400 employees of the financial products unit (yes, the geniuses who destroyed the company) are receiving bonuses ranging from $1,000 (the hard-working and relatively innocent) to $6.5 million (the brains behind the fiasco). Commitments to pay these bonuses were made in the spring, after the troubles began, but before the proverbial all hell broke loose. Outside counsel (presumably paid at their usual and customary rates - and no doubt in advance) confirmed that the promised bonuses must be paid.

AIG's current CEO, Ed Liddy, expained to Treasury Secretary Tim Geithner that the bonuses were needed to keep the most skilled executives. "We cannot attract and retain the best the brightest talent [unfortunate choice of words, Ed] to lead and staff the AIG businesses - which are now being operated principally on behalf of American taxpayers - if employees believe their compensation is subject to continued and arbitrary [arbitrary?] adjustment by the U.S. Treasury."

So the bonuses are being paid with taxpayer dollars: had AIG been allowed to fail, there would be no money to pay these obligations. We surmise that the checks were cashed immediately, before the feds had an opportunity to figure out a way to shut this scam down.

As a tax-paying owner of AIG, you will be delighted to know that the top 25 executives of the financial products unit - all of whom needed the incentive of huge bonuses to stay on the job - have agreed to reduce their salaries for the remainder of the year to one measly dollar. Their pay is finally aligned with their performance. And for the record, that annual salary won't buy them a cup of coffee, but it will cover more than one share of AIG stock.

If AIG survives this current crisis, the company will be on the hook to repay the bonuses to taxpayers. Don't hold your breath. The company that is too big to fail probably should fail, precisely because it is too big.

Is there a moral to this sordid saga? Perhaps. The Bhagavad Gita, India's great spiritual document, describes three gates to hell: lust, anger and greed. Perhaps I am hallucinating, but I believe the logo inscribed over the third gate is that of its most recent corporate sponsor, AIG.


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March 12, 2009

 

Jason Shafrin of Healthcare Economist hosts this week's great edition of Cavalcade of Risk, and he precedes it with a Surgeon General's warning about possible side effects that might ensue from use of this product. Given that we are living in "interesting times," there is no shortage of good risk reading. Jason is also looking for volunteers to take a 50-question economic survey, par to his dissertation research. We think he's a very smart guy and encourage any efforts to make him even smarter. And if you participate before March 20, you may win a $25 Amazon gift certificate.

Quick takes
Safety Modifications Important for Aging Workforce

Prosecutor: Mine collapse was 'perfect' disaster

The Case of the Exploding Solvent Can

Poor Image Hindering Insurers When Recruiting Best & Brightest For Claims

Gearing Up for OSHA's Crane Hearing

5 Distractions That Cause Workplace Hazards

Could Actuaries Have Prevented the Banking Crisis?

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March 11, 2009

 

I have a few shares of AIG stock, which is currently trading at 35 cents a share. I do not like to dwell on the pathetic disappearance of this particular asset, so it's an opportune time to seek comfort in history. This is not the first collapse of a financial empire, nor will it be the last.

The financial products division that brought down AIG rented space at One Curzon Street , a tony part of London. The building, owned by the Abu Dhabi royal family, features elegant curves, polished white stone, sweeping windows and a panoramic atrium. On the street it's known as the hedge fund hotel. Its tenants include GLG Partners, a once high-flying fund that has fallen on hard times, the struggling Swiss bank UBS, and on the fifth floor, its most famous tenant, AIG.

Nice digs for Joe Cassano and his crew. A great place to gamble with other people's money and pocket nearly $300 million in personal swag. If you are going to lose half a trillion dollars, you may as well do it in style. The bad news is that tax payers have already ponied up over $200 billion to cover Cassano's bad bets. The really bad news is that we may eventually be on for more than double that amount!

The Fall of Empires
Joe Cassano, the son of New York City cop, became a financial moghul, hanging his hat in the fanciest building on Curzon street. The street was named, of course, for Lord Curzon, one of the great figures of the Victorian age. Curzon's fame derived mostly from his time as Viceroy of India. He shot tigers from the backs of elephants, took his afternoon tea on the veranda, and made policy for India's millions. Like most of the British administrators who ran India, he came away with a substantial personal fortune.

In 1899, India suffered from a terrible famine. The death toll was six to nine million people, give or take a couple million. Among other administrative actions taken during the crisis, Curzon cut back on rations, which he characterized as "dangerously high" and tightened relief eligibility requirements. You know: stiff upper lip and all that. Even as Curzon ruled India with an arrogant hand, a dimunitive Indian national named Mohandas K. Ghandi was organizing fellow Indians in South Africa. Ghandi would eventually lead the movement toward self rule for India, and in doing so, would bring a formal end to the British Empire.

Curzon was born at Kedleston Hall, built on the site where his family, who were of Norman ancestry, had lived since the twelfth century. While at Oxford, he was the inspiration for a piece of doggerel which stuck with him in later life:

My name is George Nathaniel Curzon,
I am a most superior person.
My cheeks are pink, my hair is sleek,
I dine at Blenheim twice a week.

Joe Cassano cannot match Curzon's pedigree, but he surely lost more money than Curzon ever dreamed of. Joe did his thing and brought down the biggest insurance company in the world. One hundred years from now, other folks, consumed by a similar raw greed, will bring down some corporate entity beyond our current imagining. But one thing is certain. The street where the debacle takes place will not be named Cassano Way.

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March 10, 2009

 

Historically, the tendency has been for employers to segment potential employee health and disability issues into two discrete silos: occupational safety, prevention, and other issues related to workers comp are most often managed by risk managers and safety staff. General employee health issues are usually tucked under an organization's benefits and human resources department as part of group health - or under a wellness program, if one exists. But increasingly, data shows that the two are often inextricably linked and it makes good sense to address health issues with a more holistic approach. This seems an area rife for attention given the recent multi-year trend of decreased claim frequency and increased claim severity in workers comp. It's also a critical issue given the aging work force. Employers need to recognize the effect that co-morbid conditions such as obesity, diabetes, and high blood pressure can have on disability recovery and medical costs - and to get more upfront about preventing and addressing these health conditions.

Roberto Cencineros, writing for Business Insurance notes that NCCI has released preliminary findings on an upcoming report on obesity which shows that workers comp medical claims open for one year cost three times as much when the injured employee is obese, and claims that are open for five years are five times more costly when involving an obese claimant. For smaller claims, the study will show that the cost differential can be even greater.

This should not be eye-opening news - there have been numerous other studies linking obesity to high medical costs and longer duration of lost time. One 2007 study documenting the cost link between obesity and workers comp by researchers at Duke University found that obese workers filed twice the number of workers' compensation claims, had seven times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than non-obese workers.

Ceniceros notes that the workers comp industry has focused on treating specific injured body parts while overlooking so-called co-morbidity factors, such as obesity, that increase claims duration and costs. Comorbidities not only can lengthen the recovery period, they may also be a precipitating factor in claims. According to the article, "...some employers even have begun collecting obesity data to help fend off future claims that may not be work-related, particularly those involving police and firefighters who must take pre-employment physicals and whose heart attacks and other ailments often are presumed to be work-related, said Glenn Backus, senior vice president for Alternative Service Concepts L.L.C., a Reno, Nev.- based claims administrator."

For more on the dawning awareness that workers comp programs should not be divorced from overall employee health issues, see the Bill Thorness article in the 2008 NCCI Issues Report, Wellness Comp, (PDF) where he addresses the issue of whether there is a place for health promotion programs in workers comp. "The bottom line is that workers compensation specialists should at least be at the table for discussions on how to make the workforce healthier. Health and productivity shifts the basic value proposition, according to AON, into the question of "How can [healthcare] plans be modified to incent employees to adopt healthy behaviors, moderate cost increases, and minimize absenteeism and presenteeism?"

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March 5, 2009

 

Brady Augustine of MedicaidFrontPage is this week's host of Health Wonk Review - the Watchman Edition - catch up on this week's buzz among health policy wonks.

In other news...

Economic stimulus & insurance - Robert Hartwig of the Insurance Information Institute discusses the potential impact of the economic stimulus plan on the insurance industry. He states that workers' comp is the most likely beneficiary - the administration’s target of 3.5 million jobs would translate into $1.1 billion in private workers’ compensation premiums. He notes that any effects would not be likely to be seen until late 2010.

AIG - Our friend and colleague Joe Paduda has a post on The AIG breakup - implications for workers comp. Having previously been a manager at AIG, Joe has been in the media spotlight for commentary lately - check out some of his recent appearances on Fox news and his commentary in a New York Times article on AIG.

Quality over quantity - For workers' comp medical networks, "less is more" is the operative rule. Peter Rousmaniere offers a seven-step process for selecting quality physicians for your medical provider network in his column in .

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March 4, 2009

 

Back in December we blogged the sad story of Taneka Talley, who was stabbed to death while working as a clerk for Dollar Tree. Her assailant, Tommy Joe Thompson, singled her out simply and solely because she was black. At first, Dollar Tree denied the claim, under the theory that Talley's race - not her employment - was the cause of the attack. After public outcry, Dollar Tree's insurer decided to pay death benefits to Talley's 11 year old son.

This case generated a lot of comment from Insider readers, who were divided on the whether the incident should have been compensable under workers comp. Now a California assemblywoman, Mariko Yamada (D-Davis), has filed a bill to address the ambiguities of this case. AB 1093 would forbid the denial of a comp claim where the motivation for the injury or death was related to an "immutable" personal characteristic - such as race, age or gender.

Here is the proposed language to amend Section 3600 of Labor Code:

(c) No workers’ compensation claim shall be denied solely because the motivation behind what caused the employee’s injury or death was related to an immutable personal characteristic of that employee.

"By introducing 'Taneka's Law,' I hope that no other family in California will ever have to endure the unspeakable pain that the Talley family experienced," Yamada stated.

Chain of Ambiguities
The proposed language raises an interesting issue: what exactly is an "immutable" personal characteristic? Would this include mental disabilities (such as "intermittant rage disorder") or would such diagnoses be considered mutable? In terms of physical disabilities, where is the line between "permanent" (immutable) and "temporary" (mutable). Does anyone at maximum medical improvement (MMI) by definition have an "immutable" charateristic?

This bill is designed to close a loop hole in workers comp coverage. Should it become law, it will be interesting to track the inevitable loop holes that the new statutory language (inadvertantly) creates.


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March 3, 2009

 

In most states, owner/officers of a company can opt out of workers comp coverage. So would it surprise you to learn that the scammers have parlayed this exemption into a scheme to avoid comp premiums? I didn't think so. (On the scale running from naive to cynical, Insider readers inevitably tend toward the latter.)

Contractors Asset Protection Association (ConAPA), a company based in California, helps companies avoid comp premiums by designating employees in high rate occupations as stock-owning corporate officers. (The company website - no surpise - is down.) The California exemption applies to company officers who are also the sole shareholders of a corporation. So the folks at ConAPA don't just have employers give workers inflated titles, they also issue these workers worthless shares of stock.

ConAPA focused on industries with high injury rates and expensive comp costs: housekeepers, security guards, roofers, maintenance and cooks. Thus, a housekeeper might become a "senior vice president, facilities." A roofer becomes "VP for environmental protection."

Jerry Brown (yes, that Jerry Brown), California's attorney general, sued a similar operation called PacifiStaff in 2007. One of their clients, the now defunct Pic-A-Bagel, refused to pay the claim of a baker who carried the impressive title "Senior Vice President of Dough Making" (sounds more like a CFO). The denial fell apart on the employee's testimony: he was never asked if he wanted to become a company officer and was not aware of any ownership in the corporation. That kind of ignorance is usually reserved for former presidents of brokerage houses or AIG, folks who never seem to have any idea how we got into the current mess. At least the poor bagel maker knows how the flour got onto the kitchen floor...

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March 2, 2009

 

Cavalcade of Risk went international last week with the Cavalcade of Risk, Downunder edition posted by New Zealand blogger Russell Hutchinson of the Chatswood Consulting blog.

Sorry for the brief hiatus last week - we have lots of news items to catch up on.

McDonald's good Samaritan, part 2 - My colleague's post on the McDonald's employee who was denied workers comp for an injury sustained while playing good Samaritan elicited a lot of commentary both on our posting and beyond. Now, in a follow-on story by Fox16, the worker Nigel Haskett speaks about the incident and store owner Ray Nosler has stated that he expects McDonalds will support the claim, but states that "As a safeguard, if for some reason his claim is denied, and other insurance options are unavailable, I intend to cover the cost of his medical expenses. I'm doing this because it's the right thing to do for Nigel." The story includes surveillance video of the event.

Market conditions - Daniel Hays of National Underwriter reports that the much-anticipated hard market in property-casualty insurance is proving elusive, with average rates declining by 9% in January, according to MarketScout. Workers' comp rates saw an average decline of 7%.

Florida - The Florida Supreme Court's November decision in the Murray v. Mariners Health/ACE USA case has been viewed by many as an unraveling of one of the major components in the 2003 reform. More recently, legislation has been introduced to try to clarify and restore these reforms in terms of attorney fees.

California - From our "if it seems too good to be true" department: Marc Lifsher of The L.A. Times reports that Attorney General Jerry Brown is suing Contractors Asset Protection Assn. Inc. of Rancho Santa Fe and its founder-president, Eugene J. Magre over a workers' comp avoidance scheme. The firm was allegedly advising small companies to avoid the cost of workers' comp insurance by turning employees into stock-owning corporate officers.

Safety - Insurance Journal reports that President Obama's proposed budget would boost funding for workplace safety programs by 4.7%.

Compliance - EHS Today features a helpful article by Kenneth Cybart on the electrical safety questions OSHA will ask during an investigation, with advice for employers on how to be prepared.

Data security - A recent survey of 1,945 people who were laid off, fired or quit their jobs in the past 12 months found conducted by the Ponemon Institute revealed that 59 percent stole company data when they departed and 67 percent used confidential information to help secure a new job. Twenty percent of those surveyed had worked in the financial services industry, which included the insurance sector. "Ponemon said its study revealed that companies are doing a very poor job at preventing former employees from stealing data, with only 15 percent of respondents' companies reviewing or performing an audit of the paper and/or electronic documents employees are taking."

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