March 2010 Archives

March 30, 2010

 
When the whistle blows each morning And I walk down in this cold dark mine, I say a prayer to my dear savior Please let me see the sunshine one more day. A Miner's Prayer

Our Google alert for safety today turned up the tragic story of 153 Chinese mine workers trapped underground in a flooded mine. China is a country that sees an annual miner death toll in the thousands:

"China's mining industry is the world's deadliest. Accidents killed "only" 2,631 coal miners last year, fewer than half the 6,995 deaths in 2002. However, many analysts doubt that the figures reflect reality, believing instead that many deaths simply go unreported."

Here in the US, some retired miners might recall a day when our coal mining fatalities were up in the quadruple digits. We experienced more than one thousand annual coal mining fatalities through 1947. It wasn't until after 1985 that fatalities dropped consistently from triple to double digits. Our worst disaster occurred in 1907, when 362 boys and men died in West Virginia's Monongah Mine disaster after an underground explosion. In fact, the plethora of mining disasters with hundreds of fatalities were a backdrop leading to the establishment of better worker protections, including a workers compensation system. One can only hope the public will call for increasing safety and reforms in China mines.

For more on this story, we went to the best and most knowledgeable mining media source we know and it did not disappoint: Ken Ward's Coal Tattoo has the latest coverage of the China tragedy, including an update which notes that warnings were ignored before mine flood. Ken reports on mining for the Charlotte Gazette. He and the people of West Virginia know quite a bit about mine disasters. Earlier this year, Ken reported that the nation experienced a record low in mining deaths last year - 34 - but he asks if that is enough. Good question. A little over a week ago, Ward reported that fewer than 1 in 10 U.S. mines have added improved communications and tracking equipment that could help miners escape an explosion or fire - a requirement after the MINER Act, a law that was prompted by a series of mining fatalities in 2006, including the Sago mine disaster.

Our sympathy goes out to the families of the China miners, who are suffering through a terrible vigil, the way so many other miners' families have suffered. We can only hope that tragedy will serve as a catalyst to better safety advancements in China. And despite the progress we've made here in the U.S. over the years, we see by the recent report about the lackadaisical measures taken to protect our own miners, our memories are short.

Prior posts on mining
Cold comfort: Crandall Canyon survivors and workers comp
A bad way to make a living - links to interesting historical exhibits on mining
The sad, quiet death of Bud Morris - father, husband, motorcycle aficionado
The feds and Phantom Miners
Sago mining disaster and workers comp: newly formed insurer to pay benefits
Sago mining deaths: a sorry way to begin the new year

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March 29, 2010

 

Performance incentive programs are a good idea - except when they aren't. The Insider has always viewed such programs with ambivalence: yes, it's a good idea to reward employees for safe performance over a given time period. The problem is that these programs can discourage employees from reporting legitimate injuries. And the employee who does report an injury - the guy or gal who breaks the string of injury-free days - may incur the resentment of fellow workers. "You blew the pizza and the draw for a TV because you cut your hand!" It can be yet another form of the great American tradition, blaming the victim.

Then there are the rogue performance incentive programs, where non-reporting of injuries is embedded in the work culture. Which brings us to California. (Is it my imagination, or does every conceivable scam bring us to California?)

At the Smurfit-Stone Container Corporation, the performance incentive program rewarded managers for not reporting workers comp claims. The company's motto is "solving it from all sides" - and it appears that one of the sides is, well, illegal.

David Polk, 53, and Douglas Tateoka, 61, pleaded no contest Wednesday to charges of concealing events related to on-the-job injuries and conspiring to deny injured workers their benefits. The two are scheduled for sentencing May 20 in Monterey County Superior Court.

Employees were discouraged from reporting workers comp claims. When injured, they were treated outside of the comp system: the employer took care of the medical bills. It's not clear whether any attempt was made to pay indemnity for lost time. I doubt it.

As is usual and customary in California, doctors figured out a way to make a few bucks in the scam: in this case, Steven Davis of Davis Chiropractic, who once worked for Surfit-Stone as a human relations manager, and Eugene Guzman, a physician's assistant at Pinnacle Urgent Care. Both are facing charges in the fraud.

Whose Incentive?
Any performance incentive program that focuses exclusively on managers is immediately suspect: a legitimate program rewards workers first, then managers, for good safety performance.

Performance incentive programs have a positive role in many workplaces, but it's crucial to align the incentives with the realities of the workplace. These programs should celebrate safe performance without penalizing or ostracizing employees who suffer injuries on the job. Beyond that, performance incentives must never trump employee rights under workers comp laws. It's one thing to reward safe performance; it's quite another to stifle claims reporting and the awarding of statutory benefits.

Managers at box manufacturer Smurfit-Stone tried thinking out of the box to lower their comp costs. Now they are on their way to a concrete box with bars on the windows. They are about to participate in a very effective performance disincentive program, one that most of us try diligently to avoid.


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March 26, 2010

 

Bryan Griffin was a pilot for Australia's Qantas Air from 1966 to 1982. In 1979 he began to have "uncontrollable urges" to switch off the engines in mid-flight in order to bring down the airplane. He would leave the flight deck and smoke a few cigarettes until he calmed down. He made no attempt to hide his problem - he talked to his colleagues about it. Qantas had him examined and treated by several doctors, but the problems continued, including the urge to "scream and cry." He routinely ignored instructions and repeatedly missed radio and altitude calls. On a flight from Singapore to Sydney, he felt his hand "being abused by the uncontrollable pull of the start levers" - which, if pulled, would kill the engines.

OK. Not exactly "pilot of the month" stuff. There are a couple of intriguing aspects to this tale.

First, Qantas made the management decision to keep Griffin on the job. While the Insider normally recommends following a "return to work/stay at work" protocol, in this case, "staying at work" for three years with severe mental illness clearly put far too many people at risk. Griffin was incapable of performing his job safely; he should have been put on indefinite leave until his mental state stabilized beyond any reasonable doubt.

Griffin continued to fly until he retired in 1982 with a diagnosis of anxiety, depression and obsessive compulsive disorder.

Indemnity for Working?
Here is the second unusual aspect to this case: Nearly 30 years after his retirement, Griffin has been awarded $208,000 by an industrial compensation commission, which ruled that his mental problems were exacerbated by his continuing to work. The Workers Compensation Commission found that the pilot's condition had been worsened by continuing to fly for Qantas until his 1982 retirement. The financial award covers "loss of earnings, medical expenses and legal costs."

While I am no expert in the intricacies of comp as it operates down under, I am confused by this award. How can you suffer a "loss of earnings" when you continue to work? How does workers comp indemnity come to play in a situation where there was no lost time? Perhaps the commission assumes that if Griffin had been grounded during his prolonged period of mental disability, he eventually would have been cured and then would have been to continue his career with Qantas beyond 1982. In other words, Griffin's premature retirement was caused by making him work while he was suicidal. If that is the reasoning, it's a bit of a stretch.

I have one additional question for the commission: why did it take nearly 30 years to reach this conclusion?

Qantas is considering an appeal on this ruling. I think they should shut up and cut the check. Any additional proceedings might further expose their amazingly reckless decision to keep Griffin in the cockpit. That is negligent entrustment at its very worst. Ironically, had Griffin succumbed to his demons and crashed the plane, we might never have known the real cause of the accident. As it is, Qantas is lucky that both Griffin and his hundreds of passengers survived. Air travel is stressful enough without having to worry about a pilot with a barely controllable urge to crash the plane.


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March 25, 2010

 

Cavalcade of Risk #101 - Andrew of Ozrisk hosts this week's edition of Cavalcade of Risk - check it out.

In other news this week, Roberto Ceniceros posts about making safety more fun than a workplace prank - a video contest sponsored by the Oregon Young Worker Health & Safety Coalition. The Coalition launched its second annual "Save a friend. Work safe" video contest, which invited Oregon high school students to submit a 45-second video about young worker safety on the job. Entries are competing for prizes ranging from $300 to $500, with matching amounts for each winner's school. There were 50 entries this year, from which 7 finalists were chosen. Help pick the winner - log in to YouTube and view and rate the 7 finalists.

We're all for creative ways to raise the issue of workplace safety with young workers. Also see Oregon's Young Employee Safety page - O[yes]. The mission of O[yes] is "...to prevent young worker injuries and fatalities. O[yes] educates its constituency of young workers, educators, employers, parents and labor and trade associations through outreach, advocacy and sharing of resources. We pool our expertise, leverage resources and recognize the diversity and knowledge of our partners and the voice of young workers. O[yes] asserts that all injuries are preventable, all workers have a right to safe work and that young workers shall be treated respectfully and fairly."

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March 24, 2010

 

We've compiled a variety of resources on the health care reform developments this week:

First stop, see Joe Paduda's excellent analysis of Health Reform's implications for workers' comp, part 1, part 2 and part 3. Joe's expertise in the inner workings of the medical side of workers comp make this a must-read.

In the National Underwriter, Arthur D. Postal gets insurer reactions to bill passage: Insurers Decry Health Bill for Lack of Cost Restrictions

Insurance Journal looks at the various suits filed by 12 state Attorneys General which challenge the constitutionality of reform: How States Are Responding to Healthcare Reform Law and Republican Attorneys General Pursue Sovereignty Claim Against Health Bill

Law Professor Mark D. Hall, J.D. offers his thoughts on the constitutionality of mandating health insurance at The Health Care Blog.

At the Washington Post, Ezra Klein explains how the exchanges work. Also see How big is the bill, really?

Jaan Sidorov at Disease Care Management Blog Has a multi-part post focusing on What the Health Reform Bill Says About Prevention, part 2

Tinker Ready does a local roundup over at Boston Health News: Health reform: How's it playing in Mass?

At Healthcare Economist, Jason Shafrin samples the international reaction.

At Gooznews, Merrill Goozner talks about the the reinvention of social progress and notes the Physician Payments Sunshine Act, which requires more transparency about payments that drug and device companies make to doctors.

For employers, Anne Freedman of Human Resource Executive suggests that uncertainty reigns. While most changes for employers won't be in effect until 2014 to 2018, she outlines some changes that go into effect this year.

Consumer Corner
The New York Times Prescription blog answers reader questions on the Health Care overhaul -

At Kaiser Health News, Phil Galewitz offers a Consumers Guide to Health Reform. Kate Steadman and Julie Appleby talk about the immediate effects of the Health Reform Bill.

The Washington Post offers a cost calculator to help consumers learn the impact on their situation: What does the health care bill mean to me? -

Specifics about the legislation - from House Speaker Nancy Pelosi's page

U.S.A. Today looks at how health care overhaul affects taxpayers.

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March 23, 2010

 

Three months ago we blogged the ongoing agony of Bath Iron Works (BIW), the people who build destroyers for the navy. You may recall that BIW self insures for workers comp, and as such must pay the "usual and customary" fees for medical services provided to injured workers. There are only two categories of payers who are stuck with usual and customary fees: self insureds and uninsureds. BIW has been waiting 18 years for Maine to come up with a fee schedule. Eighteen years! The Board in charge of developing the fee schedule is asking for...a little more time.

So what's the problem? Paul Dionne, the Chairman of the Maine Workers Comp Board - the board responsible for developing the fee schedule - is also board chairman of Central Maine Healthcare Corporation - which stands to lose a lot of money once the fee schedule is implemented. Dionne is compensated by the comp board and by Central Maine Healthcare. If he were really candid, he might admit that his idea of a fee schedule is "usual and customary" fees. Dionne claims they are really getting close to the point where they will be able to issue a draft fee schedule for public comment.

Timely Remedies?
As reported by Lindsay Tice in the Lewiston Sun Journal, BIW has filed suit, claiming that Dionne has a conflict of interest. This is their second lawsuit. Back in 2006 they sued the board for its (then) 14 year failure to implement a fee schedule. The judge sided with BIW and ordered the board to create the fee schedule. Four years later...well, you get the drift (and I do mean drift!).

Dionne has consulted with an attorney, who advised him that there was a "potential" for a conflict of interest. (Brilliant work, counsel!) Dionne is seeking a second opinion from the board's general counsel. Here's a second opinion: it's a conflict of interest!!!

Dionne claims that, if necessary, he will fully disclose his personal interests, as he has done in the past. Sure, Paul. The foxes are promising better management of the chicken coop. Foxes love chickens. They are very committed to raising the "usual and customary" chickens, fat and healthy.

Start Over?
The sheer passage of time, now approaching two full decades, has compromised the Maine fee schedule beyond recognition. It has become an embarassment. It's unlikely that any fee schedule issued by this board will be credible. Perhaps it's time to create a truly independent body to develop the fee schedule. The bad news for BIW is that this would further delay the regulatory relief they have long sought. The good news is that the fee schedule might actually lower the fees.

During this prolonged process, BIW has tumbled down the rabbit hole, Maine version, into a world where nothing is quite what it seems. BIW - in the unlikely role of Alice, meets a cheshire cat, with a grin like Paul Dionne's:

`Cheshire Puss, ...Would you tell me, please, which way I ought to go from here?'
`That depends a good deal on where you want to get to,' said the Cat.
`I don't much care where--' said Alice.
`Then it doesn't matter which way you go,' said the Cat.
`--so long as I get SOMEWHERE,' Alice added as an explanation.
`Oh, you're sure to do that,' said the Cat, `if you only walk long enough.'


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March 22, 2010

 

Last August we blogged the case of Adam Childers, a morbidly obese pizza maker in Indiana who suffered a back injury. Childers's weight was in itself a substantial obstacle to his getting better, so the court ordered the comp carrier to pay for gastric by-pass surgery. Now we find a similar case in New York, where the state supreme court requires the state fund to pay for by-pass surgery.

Salvatore Laezzo, an employee of the state Turnpike Authority, slipped and fell at work back in 2002. He suffered injuries to his head, neck, back and knees. While we might assume that Laezzo had some weight issues at the time of the injury, in the subsequent years of relative inactivity his weight increased dramatically. There was substantial evidence that Laezzo's weight gain was caused by his work injury. In effect, the New York court has set a somewhat narrower standard for compensability than the court in Indiana: had Laezzo been morbidly obese prior to the injury, the court might have ruled for the carrier.

Seeds of Compensability
New York has some interesting and rather expansive notions of compensability in workers comp. The current ruling cites a precedent involving Stephen Spyhalsky, a construction worker [Spyhalsky v. Cross Construction N.Y.S.2d 212). The court ordered the comp carrier to pay for artificial insemination of Spyhalsky's wife, after back surgery compromised the route taken by his sperm. This unusual definition of compensability leads directly to another intriguing issue: had Spyhalsky been permanently disabled, would the comp carrier be required to pay dependency benefits for the resulting child? In all likelihood, yes.
NOTE: We blogged a somewhat similar situation in Arkansas, where the wife of a deceased claimant was artificially inseminated with his frozen sperm. After a rather complex deliberation, the court rejected her claim for additional dependency benefits.)

When in Doubt, Leave Them Out?
While the logic for including gastric by-pass surgery under workers comp is certainly understandable, there is a strong potential for unintended consequences: obese job applicants, who already face myriad problems in finding employment, may encounter even more discrimination. These well-publicized court rulings place the burden of gastric by-pass surgery directly on comp insurers and employers. The latter may shy away from hiring qualified obese applicants. After all, the obese are at greater risk for injury and, once injured, their weight becomes a substantial obstacle to returning to productive employment.

It would be nice to think that the pending expansion of healthcare benefits to nearly all Americans might make this cost-shifting problem go away. Alas, the game of "pin the tail on the payer" has only just begun.

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March 19, 2010

 

Joseph Casias was the Associate of the Year in 2008 for the Walmart in Battle Creek, Michigan. He achieved this despite his ongoing struggle with sinus cancer and an inoperable brain tumor. During his five years with the organization, the 29 year old Casias went to work every day determined to be the best. To help manage the pain that accompanied his challenging illness, his doctor prescribed medical marijuana, which is legal in Michigan. Casias used the drug only at home and was never "high" when he reported for work. (See our recent post on medical marijuana here.)

Last November Casias sprained his knee at work. Walmart ran a routine drug screen following the injury. Unsurprisingly, Casias tested positive for marijuana. Despite the doctor's prescription, Walmart terminated Casias for violation of the company drug policy. Despite the legality of Casias's pot use, the company appears to be on firm ground: as with smokers in many states, companies are free to impose their own prohibitions on the use of otherwise legal products.

Casias collected unemployment insurance after his termination. Now it appears that Walmart has had second thoughts about that, too. They are contesting his UI eligibility, as he was terminated for cause. Casias has already been collecting UI for over three months, so he is likely nearing the end of the benefit. But when Walmart sees a penny on the floor, they will push old ladies aside to get it.

Company Speech, Company Soul
In a recent ruling, the U.S. Supreme Court determined that corporations have the same free speech rights as do individuals. Perhaps the court will be tempted to take it one step further and rule that corporations have souls.

One look at Walmart should convince them otherwise. In their typical tone-deaf manner, Walmart has acted within legal parameters; Casias was in technical violation of company drug policy, even though his drug use was medically necessary and presented no risk to the employee, co-workers or the public. Casias was an award-winning employee - but, I suspect, a drag on the company health plan. So Walmart seized the opportunity of a failed drug test to show Casias the door.

As usual, Walmart shoppers, there are plenty of specials today, but don't bother looking in aisle three for remnants of compassion or a company soul .


Note: We have blogged Walmart's compassion struggles many times. Just enter "Walmart" into the site search engine in the column to the right.

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March 18, 2010

 

It's Health Wonk review week, and Minna Jung serves up the March Madness of both the basketball court and the health care reform process in this week's Health Wonk Review. Visit this week's post at the Robert Wood Johnson Foundation's blog The Users' Guide to the Health Reform Galaxy.

Employer trends

  • Laura Petrecca of USA Today writes that employers are increasingly using technology to track and monitor employees. They do so for a variety of reasons, including monitoring to ensure productivity; to ensure that trade secrets are protected, and to ensure maintenance of professional and lawsuit-proof workplaces. Next month, the U.S. Supreme Court will hear a case that will explore privacy rights for employees when using employer-supplied devices. View some of the tech monitoring techniques that are being used.

  • NPR has been running a series on work-life balance and the increasing number of employers who are turning to flexible work schedules. You can read more about it at HR Web Cafe: Work-Life Balance and Flex Work.

  • Employee compensation costs - Private industry employers spent an average of $27.42 per hour worked for total employee compensation in December 2009 (PDF), according to a report issued last week by the Bureau of Labor Statistics. Wages and salaries accounted for 70.8% of these costs, while benefits accounted for 29.2%. Of the benefits, 8.2% were for the cost of legally mandated benefits.

CT crackdown - Connecticut employers take note - Attorney General Richard Blumenthal is planning a crackdown on workers that are misclassified as independent contractors. "Among the commission's recommendations: increase the penalty from $300 per violation to $300 a day per violation, strengthen criminal sanctions against misclassification and jointly investigate misclassification complaints with other state agencies."

Immigrant workers - In light of a recent Iowa Supreme Court ruling in a case involving a nonresident alien, Roberto Ceniceros posts about immigrant workers and benefit complexities. To stay current on other related issues, we refer you to Peter Rousmaniere's Working Immigrants.

Toxic chemicals - The Environment News Service writes that the Obama administration is giving mixed signals on right-to-know for toxic chemicals. On the one hand, to increase transparency, the EPA is providing free web access to the Toxic Substances Control Act Chemical Substance Inventory. This is the first time that employers will have access to thousands of industrial chemicals in the agency's database. But in a move that seems at odds with the administration's stated commitment to transparency, OSHA is proposing a reduction in the hazard warning information that chemical manufacturers must provide to workers, customers and other users. OSHA denies that it is weakening protections, and according to the article, claims that it is "merely trying to conform with global labeling rules and that manufacturers often disagree with the cancer hazard evaluations and other advisory information."

Medical marijuana - We suspect we'll be seeing more stories like this: Walmart fires Michigan man for using medical marijuana.The store fired 2008 "Associate of the Year" Joseph Casias when he failed a drug test. Casias has sinus cancer and a brain tumor and has an authorized medical marijuana card. He uses marijuana to control pain at night, but claims that he is never under the influence at work. (See our past posts on this topic: The current buzz on medical marijuana and the workplace and One toke over the line.)

Kemper runoff - Hard to believe that it's been six years, but the Kemper runoff saga is nearing conclusion, according to Business Insurance. Some call this "one of the most successful runoffs in history," but not all agree. Some are waiting for liquidation to see if they will fare better than the reported 25 cents to 50 cents on the dollar that claims are being settled at:

"A decision to wait for liquidation or settle beforehand should depend on a cost benefit analysis that includes evaluating whether state guaranty funds for workers compensation claims are likely to pay for the majority of a policyholder's claims, several experts said.
Workers comp claims account for the largest portion of Kemper's outstanding liabilities, totaling about $600 million, Ms. Veed said.
But some states have net-worth exclusions, which eliminate guaranty fund coverage for companies above certain net worth levels, which range from $10 million to $50 million depending on the state, several sources said."
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March 17, 2010

 

Mother_Jones.jpg
"I'm not a humanitarian. I'm a hell-raiser"

Top of the morning to you this St. Patrick's Day! We thought that the day might be a fitting time to commemorate the life of an Irish immigrant who was hailed as "the the grandmother of all agitators," the "Miners' Angel," "labor's Joan of Arc," and "The Most Dangerous Woman in America."

Mary Harris Jones, better known as Mother Jones, was an Irish immigrant who emerged as one of the most famous women in America. Today, her life is largely relegated to the dustbins of history - rather unfair, given her colorful life and the importance that she had to the labor movement. Born in County Cork, she and her family emigrated to Canada and then to the U.S. to escape the potato famine. She worked as a teacher and a seamstress and gave birth to four children. After losing her husband and children to yellow fever in 1867 and becoming dispossessed in 1871 by the great Chicago fire, she became a labor educator, organizer and tireless crusader for basic worker rights, for stopping the work exploitation of children, and for mine workers. She was also one of the founders of the Industrial Workers of the World (IWW), aka "the Wobblies." There's some dispute as to the date of her birth (she said 1830, others say 1837), but she lived to the age of either 93 or 100, an activist to the end of her days.

Biographer Dale Fetherling says of her:

" [she] was born . . . less than 50 years after the end of the American Revolution. Yet, she died on the eve of the New Deal. She was alive when Andrew Jackson was president, and she sometimes quoted from speeches she heard Lincoln make. As an adult she knew the Civil War, the Spanish-American War, and World War I. She rode in automobiles, and she saw the railroads link the oceans. She saw and was seen in films and came to know the everyday use of the telephone, the electric light, and the radio. She watched unions grow from secret groups of hunted men to what she feared was a complacent part of the established order.... It may have been a good time to live in America. But it also was a time in which one needed to fight very hard to survive. That she did."

As an activist, she was highly effective - particularly in an era in which women's voices were often muted. She was effective at harnessing the status of women in her organizing efforts:

"Mother Jones was notable for attracting publicity and attention from the government for the cause of workers. One of her best-known activities was leading a march of miners' wives "who routed strikebreakers with brooms and mops in the Pennsylvania coalfields in 1902." Another was leading the "children's crusade," a caravan of striking children from the textile mills of Kensington, Pennsylvania, to President Theodore Roosevelt's home in Long Island, New York, in 1903, to dramatize the case for abolishing child labor."
Biographer Elliott J. Gorn notes:
"Her fame began when, toward the end of the nineteenth century, she transformed herself from Mary Jones into Mother Jones. Her new persona was a complex one, infused with overtones of Christian martyrdom and with the suffering of Mother Mary. Perhaps it is best to think of Mother Jones as a character performed by Mary Jones. She exaggerated her age, wore old-fashioned black dresses, and alluded often to her impending demise. By 1900, she had stopped referring to herself as Mary altogether and signed all of her letters "Mother." Soon laborers, union officials, even Presidents of the United States addressed her that way, and they became her "boys."
The persona of Mother Jones freed Mary Jones. Most American women in the early twentieth century were expected to lead quiet, homebound lives for their families; few women found their way onto the public stage. Ironically, by making herself into the symbolic mother of the downtrodden, Mary Jones was able to go where she pleased and speak out on any issue that moved her. She defied social conventions and shattered the limits that confined her by embracing the very role that restricted most women."

Canny as she was in creating her own highly effective persona, she eschewed any pretense to gentility: "No matter what the fight, don't be ladylike! God almighty made women and the Rockefeller gang of thieves made the ladies."

We can't really do the woman full justice in this post - here's a list of resources that are well worth exploring to learn more about the inimitable Mother Jones:

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March 15, 2010

 

Depression is by no means a rare occurrence in the workplace, but depressions that lead to compensable claims under workers comp are very rare, indeed. The burden of proof on the claimant is substantial, generally requiring a conclusive demonstration that work is the "predominant cause" of the depression. Given all that goes on in our lives, this can be a very tough standard to meet.

Janina Guz was a factory worker until 2002, when she sustained a work-related injury and filed for workers' comp benefits. She had bilateral carpal tunnel syndrome, later amended to include a neck injury and an aggravation of a preexisting back condition. In 2007, she amended her claim to add a major depressive disorder. Her case reached the Appelate Division of New York's Supreme Court.

Shrink One, Shrink Two
The case revolved around the testimony of two psychiatrists, one hired by the insurer and one by the claimant. The two shrinks approached Guz's complaint with very different perspectives, which naturally influenced their conclusions.

Dr. Areyeh Klahr conducted independent medical examinations in 2006 and 2007. In 2006 he found Guz to be exhibiting some symptoms of depression, but in his opinion this depression did not prevent her from working. One year later, he concluded that Guz no longer suffered from an ongoing psychiatric condition and had reached maximum medical improvement. Klahr cast a sceptical eye on Guz: he found significant inconsistencies in her responses and concluded that her complaints did not correlate with his objective findings. Klahr ultimately concluded not only that Guz did not suffer a work-related psychiatric disability, but that she was not really depressed.

A claims adjuster would call this IME a "home run."

The evidence in support of Guz came from her own psychiatrist, Alina Marek, who treated Guz on five occasions beginning in January 2008 - which the court noted was more than five years after her injury. Marek diagnosed Guz as having a major depressive disorder that was causally related to the work accident. However, she she acknowledged that she had no information about the circumstances or nature of Guz's work-related injury. She was also unaware that Guz had been involved in two prior motor vehicle accidents which involved injuries to her neck and hands. Marek had to concede that such prior injuries would be important in diagnosing Guz and determining the cause of her depression. Marek further conceded that she had no information regarding Guz's daily activities or her personal life history, including the fact that she was divorced. When pressed to specify the basis for her opinion that Guz's depression was related to her workplace accident, Marek admitted that she relied entirely upon Guz's subjective account. The Board found Marek's testimony on the issue of causally related psychiatric disability to be "entirely lacking in credibility."

Objective, Subjective
It's interesting to note the radically different frames of reference used by the two psychiatrists. An independent doctor with no ongoing relationship to Guz, Dr. Klahr zeroed in on the inconsistencies in Guz's complaints. Using the "objective" standards of his profession - not always as objective as they appear - he concluded that Guz was fabricating her complaint in order to preserve her comp benefits.

In distinct contrast, Malek took Guz at her word. Guz said she was depressed and she said that the depression was related to her work. Malek did not feel the need to probe any deeper.

In the world of comp, medical opinions quickly turn into dollars: if a condition is work related, all the medical bills are paid and the claimant receives indemnity. If it's not work related, no such payments are made. While it's tempting to make a judgment about the relative quality of the two psychiatric evaluations, that might not be entirely fair. From a workers comp point of view, the court had ample reason to conclude that Guz's situation did not rise to the level of compensability. From a purely medical perspective - regardless of whether work caused the problem - Guz is in pain and in trouble. Given the court's decision, she will find no further solace in workers comp.

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March 11, 2010

 

The Brain Injury Association reminds us that March is Brain Injury Awareness Month, so it was timely to see that our colleague Peter Rousmaniere has an important piece on brain injury recovery in the current issue of Risk Management magazine: Gray Matters: The Employer's Role in Brain Injury Recovery. It is important for two reasons: it sheds light and hope on the issue of traumatic brain injuries and the improved prospects for recovery, including return to work; and it serves as an illustration of some important differences between workers compensation and group health

The article notes that each year, 50,000 Americans die of a traumatic brain injury and 235,000 are hospitalized. There really aren't good statistics to tell us the prevalence of work-related brain injuries. Although there are better statistics available for what Rousmaniere calls "the signature wound of today's wars," many think that the estimate of 320,000 war-related traumatic brain injuries may be on the low side.

The good news, as Rousmaniere documents with examples, is that with proper medical care there have been great advances for a type of injury that was once written off as lost cause: "In the past, many adults with work-related traumatic brain injury were simply warehoused. But with advances in treatment and care strategies, including an employer that is ready and willing to help in gradual return to work, many survivors of severe brain injury can regain most of their former way of life."

Part of the challenge is early identification, rapid response, and aggressive treatment early in the injury, and aggressive recovery goals. Patients who are treated in the workers comp system, where care is often managed and coordinated and where insurers and employers aggressively advocate for recovery and return to work, often have an advantage over those patients treated under group health. With workers compensation, employers/insurers have financial responsibility for the life of a claim and, therefore, more incentive to work towards maximum recovery. Rousmaniere cites a case manager who says, "You have a workers compensation brain injured patient who is in the same hospital room as a nonworkers compensation patient, and the difference in resources is like night and day."

Rousmaniere cites examples of successes, along with best practices that contributed to those successes - including the important role that the employer can play in maximizing recovery, some of the challenges that occur, and some of the best practices:

As with all successful brain injury recoveries, job coaching is a critical phase that demands employer participation. Rehab counselors often make the trip with the worker back to her or his workplace. Memory failure, a signature feature of brain injury, is sometimes best treated, in part, at the physical site of the employer. So for several months, the vocational specialist helps the worker find ways to organize the day, reinforce memory and work with others. In this way, the patient's prospects for recovery are greatly improved.

Department of Defense embarks on more aggressive brain injury screening program
Rousmaniere discusses the prevalence of war-related TBI and some of the promising medical advances. He cites the recovery of reporter Bob Woodruff, perhaps one of the cases that we are all most familiar with due to the news coverage. After returning to his job as a reporter, Woodruff became an advocate for our soldiers in the field, developing a ReMIND, a foundation to provide resources and support to injured service members, veterans and their families.

In speaking of his own recovery, Woodruff praised the quality of the care and support that he received, but saw with dismay that such treatment and recovery resources were not always available to service members with similar injuries. He saw the military culture as often stigmatizing or impeding screenings, and treatment options being limited once a vet returned home. That's why the Department of Defense's recent policy announcement is such welcome news: head-injury evaluations will be mandatory for all troops who suffer possible concussions. Moving to an incident-based response is a significant change from prior protocol, which depended on service members to self-identify with a complaint. The weakness in this approach is that service members are highly mission-focused and can shrug off complaints that can later prove to be serious problems.

America's Heroes at Work is a U.S. Department of Labor project that addresses the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and/or Post-Traumatic Stress Disorder (PTSD). The resources and links pages are particularly helpful - and a good resource for employers who are working with either vets or non-vets who are recovering from TBIs.

TBI resources
Brain Injury Association of America
Survivors' Voice
Traumatic Brain Injury Survival Guide
Brain Injury Resource Center

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March 10, 2010

 

Is the 100th time the charm? Cavalcade of Risk celebrates its centesimal issue today - that's a lot of risk coverage! Our host for this landmark issue is Russell Hutchinson of moneyblog - tip of the hat to him for a good issue. And kudos to Cavalcade founder and visionary, Hank Stern of InsureBlog.

Chronic Pain - a few weeks ago, we brought you one approach to chronic pain management. In Risk and Insurance, Peter Rousmaniere discusses the CT Workers' Compensation Trust approach to chronic pain. This self-insurance pool of 390 healthcare employers introduced a a five-pronged program in 2009, which Rousmaniere outlines. He challenges readers to "consider how many of the five you or your vendors apply."

Uncovered in Georgia - a loophole left 88 injured workers without workers' comp coverage on the recent failure of Atlanta-based workers' compensation insurer Southeastern U.S. Insurance (SEUS) Inc. Normally, the state's insolvency pool would serve as a safety net for failed insurers, but up until a law change in 2008, captive insurers were not covered by this pool. While SEUS had converted from captive to become a traditional insurer, 88 workers claims predated the conversion and are responsible for their According to the article, "Eight of those workers have catastrophic injuries and will need lifetime care. One has medical needs exceeding $45,000 a month."

"Twelve other firms that operated under rules that exempted the failed company's clients from drawing from an insolvency pool still do business in the state. And while they all now pay into that pool, 10 have claims predating the 2008 change in the law that required them to do so.

If any fail, workers with active pre-2008 claims could find themselves in a similar bind. State insurance regulators say they don't know how many people ultimately could fall in that category. But they say they don't think any of the 12 companies is in danger of failing."

Mad as a hatter - On the recent release of Tim Burton's Alice in Wonderland, the CDC reminds us that the phrase "mad as a hatter" originated from on-the-job mercury poisoning. To shape felt hats, hat makers used a solution of mercuric nitrate and, as a result, often suffered from agitation, tremors, slurred speech and other neurological symptoms - thus, "mad as a hatter." Hat manufacturers used mercury until 1941. Mercury is still used in many industries and the CDC article has some interesting statistics, as well as a page devoted to recommendations, reports, and other resources for preventing hazardous exposures to mercury on the job.

Fatal Injury mapping - via Occupational Health & Safety, we learn that OSHA has introduced a new fatal injury mapping module, which "...allows users to create customized, color-coded maps of injury-related death rates throughout the United States. It defines injury-related deaths according to intent (e.g., unintentional, homicide, suicide) and mechanism of injury (e.g., motor-vehicle traffic, fall, fire or burn, poisoning, cut)." CDC's Fatal Injury Mapping Module. Other data and statistics are also available from CDC's WISQARSTM (Web-based Injury Statistics Query and Reporting System), an interactive database system that provides customized reports of injury-related data.

NY crane deaths followup - Liz Borowski of The Pump Handle offers and update on the 2008 crane NY crane disasters. The owner of the city's largest construction crane company is expected to be indicted for manslaughter in the death of two workers in one of the incidents. She also updates status on OSHA's crane & derrick rule.

Legislator, heal thyself - More than 70% of congressional offices violate OSHA safety standards - but the good news is that violations have dropped. "The number of Occupational Safety and Health Administration (OSHA) violations found in each office has significantly decreased over the years as well -- from an average of about 8.15 violations per office in 2007 to an average of 1.75 hazards in each office this year." (via Advanced Safety and Health)

March is workplace eye wellness month - Reliable Plant offers some tips on eye and face protection. Other resources: OSHA Eye and Face Protection; NIOSH: Eye Safety; National Safety Council: Protecting Your Eyes from Injury; Healthy Vision 2010: Occupational Eye Injuries

Briefs

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March 9, 2010

 

Henri Cyr was a part-time mechanic for McDermott's, a Vermont company that transports milk from dairies to processing plants. A co-worker offered Cyr a bottle of Mountain Dew. As he was not thirsty at the time, he put the bottle in the workplace fridge. About a week later the fridge was cleaned out, so Cyr took the bottle home.

Some time later, Cyr came home after a workday, drank a couple of beers and then, feeling thirsty, he opened the bottle of Mountain Dew and took a deep swallow. Alas, the bottle contained toxic cleaning fluid. Cyr felt a severe burning sensation in his mouth, throat and stomach. He was rushed to the hospital, where blood work and urinalysis revealed that his blood alcohol level was .16, well above the legal limit for driving.

So here is the question for workers comp aficionados: is Cyr's (severe) injury compensable under workers comp?

The initial claim was denied by the Vermont Department of Labor because Cyr was intoxicated and intoxication is an "absolute bar" to benefits - even though, we might add, the intoxication did not in any way contribute to the injury.

Now the Vermont Supreme Court has ruled that Cyr may indeed have a compensable claim. They have remanded the case back for consideration as to whether the injury arose out of "the course and scope of employment." The majority wrote:

Here, we find that claimant's injury arose out of his employment when he accepted the bottle containing the caustic chemicals. That act put the mechanism of injury in motion. This is not to suggest that his injury was inevitable once he received the bottle or that no superseding, intervening factor--such as intoxication--could have prevented his injury or altered its mechanism. However, no one suggests he was intoxicated at that time. ...His injury would not have occurred had not his employment created the dangerous condition.

In his dissent, Justice Reiber returns to the language of the statute that precludes compensability for any injury "caused by or during intoxication [emphasis added]" He believes that compromising this absolute language in the statute runs contrary to legislative intent.

Whether he was technically drunk or sober, poor Henri Cyr was the victim of horrifying circumstances when he took a swig from the bottle mislabled "Mountain Dew." He would have been better off if he had resorted to the beverage transported by his employer, wholesome milk.

The lingering mystery in this sad tale is how the toxic chemicals got into the Mountain Dew bottle: who did it and why? Such questions may be beyond the technical issue of compensability, but surely they are the questions most in need of answers.


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March 8, 2010

 

As the holder of a couple hundred shares of AIG stock (your condolences are accepted), I feel compelled to track the remnants of the former empire, rather like an archeologist who finds fragments of an ancient civilization buried in a forgotten forest. The latest twist involves a lawsuit by two former female staffers in AIG's Financial Products unit - the unit at the very heart of AIG's collapse. Susan Potter, 56, and Deonna Taylor, 62, both former VPs, have filed suit alleging that Joe Cassano, the now-fabled head of the operation, favored younger staffers and ran the rogue operation like a "boy's club." Now that's a shock!

Potter and Taylor said that managers misled them about salary caps, paid younger, male employees more for similar work and fired them in retaliation for filing discrimination charges. Cassano's lawyer is disappointed by the lawsuit, because his client treated staff "fairly." This will be one fascinating discovery.

Raging Bull Management
Cassano is not actually a defendent in the lawsuit, as his employment ended prior to the firing of both women. But his over-sized personality placed a stamp as clear as a neck tatoo on the entire operation.

To get a flavor for Cassano's modus operandi, check out the fascinating August 2009 profile by Michael Lewis in Vanity Fair. Here is an example [obscenity alert]:

"One day he got me on the phone and was pissed off about a trade that had lost money," says a Connecticut trader. "He said, 'When you lose money it's my fucking money. Say it.' I said, 'What?' 'Say "Joe, it's your fucking money!"' So I said, 'It's your fucking money, Joe.'"


Here's another example of micro-management, Cassano style:

According to traders, Cassano was one of those people whose insecurities manifested themselves in a need for obedience and total control. "One day he came in and saw that someone had left the weights on the Smith machine, in the gym," says a source in Connecticut. "He was literally walking around looking for people who looked buff, trying to find the guy who did it. He was screaming, 'Who left the fucking weight on the fucking Smith machine? Who left the fucking weight on the fucking Smith machine?'" If that rings a bell it may be because you read The Caine Mutiny and recall Captain Queeg scouring the ship to find out who had stolen the strawberries. Even by the standards of Wall Street villains, whose character flaws wind up being exaggerated to fit the crime, Cassano was a cartoon despot.

Joe Cassano famously stated on an investor conference call: "It is hard for us, without being flippant, to even see a scenario within any kind of realm of reason that would see us losing $1 on any of those transactions."

Ah, the irony of that line: AIG stock was trading around $55 when Cassano spoke. After all the losses and the $182 billion government bailout, the stock is worth...about a buck.

It appears that Cassano believed his own blustery rhetoric. He was no Bernie Madoff. He was Joe Cassano, True Believer:

"When he said that he could not envision losses, that we wouldn't lose a dime, I am positive that he believed that," says one of the traders. The problem with Joe Cassano wasn't that he knew he was wrong. It was that it was too important to him that he be right. More than anything, Joe Cassano wanted to be one of Wall Street's big shots. He wound up being its perfect customer.

Serving Justice?
All of which leads me back to Susan Potter and Deonna Taylor. Their complaints are likely true, yet I am having some difficulty summoning up sympathy for them. They were part of a pirate crew. They simply wanted an equal share of ill-gotten bounty. Yes, they were forced to walk the plank (terminated) in 2008 (Potter) and 2009 (Taylor). But the entire operation is scheduled for shut down later this year.

The atmosphere in the financial products operation must have been difficult for middle-aged managers, especially women. Taylor and Potter were probably paid less than their male counterparts. But when you look at the actual work of the unit, which brought the world-wide financial system to its knees, it's difficult to feel sorry for them. Had they turned whistle blowers, had they been fired for calling attention to the house of cards being built by Joe Cassano and his pirate crew, I might feel different about their plight.

We'll let Jim Walden, Cassano's attorney, have the last word: Financial Products "had many capable women at all levels, including in senior management, who thrived under Joe's supervision, including these plaintiffs. That they would now turn around and accuse Joe of tolerating, let alone encouraging, chauvinism is disappointing indeed. Joe Cassano hired, promoted and supported employees based upon a single criteria: merit."

We can probably reduce Cassano's philosophy to a single criteria, but it would not be "merit." "Greed" is more like it, unadulterated, F-bomb greed.

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March 5, 2010

 

William Ogletree practices personal injury law in Texas. On the most recent New Year's Eve he planned to fly from Houston to Las Vegas, presumably to celebrate the new year with libation, games of chance, and, who knows, a little extra fun in the city that tells no tales. Prior to his flight, he had dinner in the airport food court. He ate a slice of pizza, if you must know, and the service was lousy. But the real bummer involved the loss of a black leather coat, Polo brand, extra large, with a plaid lining. Ogletree was very fond of the coat, but he left it behind after his dinner. We have all lost things in the course of our lives. Most of us chalk it up to inattention, punish ourselves for being forgetful and move on. But not William Ogletree, esq. Someone not named Ogletree is going to pay for the lost coat.

As we read in the Smoking Gun blog, Ogletree has notified the operator of the food court, Continental Airlines and the city of Houston that he is holding them responsible for what happened to his coveted coat. Sure, he forgot it, but as soon as he exited the food court, the three parties assumed liability for the coat. They are jointly and severally on the hook for taking control of his lost property and securing it until he was able to claim it. He is kind of pessimistic that any of the parties will be able to locate the coat: "I am looking forward to discovering how all of you deal with lost property in the airport.I suspect that your record is dismal and that employee theft runs rampant." [An image comes to mind: an underpaid waitress leaving work in an elegant coat that is three sizes too large.]

The Clock is Ticking
Ogletree has given the three parties 10 days to come up with the coat or $800 to replace it. After that, he sues. Now you might think that Ogletree has a pretty weak case and that the three parties will blow him off. Don't be so sure. If you go to his firm's website, you will find a "settlement calculator" which helps people determine just how much they are owed. Here are the elements entering into the calculation:

  • Medical Expenses $
  • Future Medical Expenses $
  • Rehabilitation $
  • Prosthetics $
  • Lost Wages $
  • Future Lost Wages $
  • Pain and Suffering $
  • Future Pain and Suffering $
  • Disability $
  • Future Disability $
  • Loss of Quality of Life $
  • Future Loss of Quality of Life $
  • Impairment $
  • Future Impairment $
  • Disfigurement $
  • Loss of Consortium $
  • Loss of Services $
I am sure that Attorney Ogletree has already plugged in his numbers and the $800 is chump change compared to the "future pain and suffering, future loss of quality of life, and future loss of consortium" directly connected to the loss of his black leather coat, Polo brand, extra large with a plaid lining. I would advise the three parties to pony up $266.66 apiece and pay the man his money. As Shakespeare meant to say, "Hell hath no fury like an attorney scorned."


Posted by Jon Coppelman


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March 4, 2010

 

Fresh HWR - Health Wonk Review, Kabuki Theater Edition is freshly posted by Brad Wright at Wright on Health. In this edition of the biweekly best of the health policy blogoshphere, Brad rounds up recaps and rounds up reactions to last week's Health Care Summit. A good edition, plus, some nice Japanese art prints!

Happening right now - On Thursday March 4 - that's today - from 9 am to 6 pm, join OSHA's live webcast, a first-ever live streamed public meeting. Over 200 people have registered to attend and more than 45 presentations will be made on to the Assistant Secretary of Labor for OSHA, Dr. David Michaels. If you can't make the event, keep up with OSHA happenings on its newly launched Twitter feed: http://twitter.com/OSHA

Google & pharma - At Health Business Blog, David Williams posts about the Google crackdown on ads for online pharmacies - only VIPPS-certified pharmacies (as selected by the National Association of Pharmacy Boards) will be allowed to post adwords. This will eliminate "rogue" pharmacies, which sounds reasonable. But it also eliminates Canadian pharmacies and some smaller outfits. Consumer protection or kowtowing to the big pharma interests? Read more about the controversy.

P&C industry: don't lump us in financial reform - have you heard about the Property & Casualty Leaders Coalition? You may yet. This is a new coalation eleven CEOs from the nation's largest property casualty insurance companies - among them State Farm Insurance, Allstate Corp., Travelers Companies Inc., Chubb Corp., ACE Group, Nationwide Insurance, Liberty Mutual, and Zurich Financial Services Group - who have banded together to urge Congress to leave them out of the financial services overhaul legislation. "There is no public policy justification for taking funds from companies in our industry, especially on a pre-event basis, to bail out other financial institutions deemed to be overexposed to failing 'systemic' companies."

How much risk is too much? - In Jobs to Die For, Yvonne Guilbert looks at people who risk their lives to work in jobs they love. One of the cases profiled is that of animal trainer Dawn Brancheau. Claims Journal features this related item: SeaWorld Death Raises Questions About Animal Entertainment Safety. And on the topic of high-risk endeavors with passionate participants, some are wondering if this year's winter Olympics went to extremes.

Director's cut - Here's a topic you won't see much about in the upcoming Oscar awards: Hollywood and risk. Fireman's Fund dishes up its annual list of the riskiest films it insures.

Other noteworthy briefs
At Comp Time, Roberto Ceniceros ponders Schwarzenegger's legacy and what comes next for California's workers comp.

Check out The Great Captive Shuffle, by Dave Lenckus of Risk and Insurance: Fresh blood courses through the captive regulatory veins in Vermont, Delaware, Arizona, Utah, Hawaii and Nevada, as new faces prepare to alter the captive landscape."

Joe Paduda always has the lowdown on the medical side of workers comp and this week, he has Texas covered in a recent pair of posts at Managed Care Matters: Texas' efforts to add science to the art of work comp medicine and Texas' efforts to control WC Rx.

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March 3, 2010

 

There are four things that are memorable about Jim Bunning's professional baseball career: First, tossing a perfect game for the Philadelphia Phillies against Trace Stallard and the New York Mets on the afternoon of 21 June 1964, lowering his ERA to 2.07 in the process (Phillies: 6 runs, 8 hits and no errors; Mets: Zip, Nada and Zilch); second, finishing second in the Cy Young voting in 1967 (Mike McCormick of the Giants won with 18 first place votes; Bunning got one, but, hey, it was good enough for the silver medal); third, from 1955 to 1963 while pitching for the Tigers, striking out Ted Williams more than any other pitcher Williams faced (and, as Jim Bouton's Memoir, Ball Four, tells it, Teddy Ballgame did not like it one bit); and fourth, entering the Hall of Fame compliments of the Veterans Committee in 1996.

About this time in Washington, DC, there are many Republican Senators, baseball fans all, who are wishing that the 6'3", 190 pound righthander had called it quits right there and retired to the backwoods of Kentucky. But, of course, he didn't. He had to go ruining it all by running for and winning a Senate seat from the blue grass state in 1998; and then he did it again in 2004! The political version of the Peter Principle.

Republicans politely call him "cantankerous" - at least that's what they say in public. Behind the scenes, they're not so nice about it. Senator Bunning marches to his own drummer, and always has.

One Pitch, Three Strikes
He's retiring this year, but not before throwing one more hard-breaking slider (his best pitch back in the day). On Monday he managed something he never could in the Big Leagues - he threw three strikes with one pitch. By preventing a vote on an emergency spending bill, Senator Bunning: first, at least temporarily, killed an extension of unemployment and COBRA subsidy benefits for more than a million long-term unemployed Americans; second, shot down a short-term extension of the Highway Trust Fund, which is a federal fund set up to pay for transportation projects nationwide, after which Transportation Secretary Ray LaHood said that up to 2,000 employees at the Transportation Department will be furloughed without pay as a result; and third, insured that Medicare would immediately reduce fees to physicians by 21.3% via the Medicare Sustainable Growth Rate Factor (SGR). Wow, a "threefor!"

Strike 3 is what concerns us here. We've written often about the steep and steadily rising costs of Medicare, and now along comes Senator Bunning saying we have to lower costs and let's do it on the backs of hard-working primary care physicians. He certainly has a point that we need to lower Medicare costs, although he expressed it in a wild pitch sort of way. Here's a chart from the Centers for Medicare and Medicaid Services (CMS) that shows what will happen to Medicare costs in the future if nothing changes. The vertical axis is percentage of GDP:

medicare-in-the-future.jpg

And here's a summary from a Congressional Budget Office (CBO) Issue Brief on the Medicare Sustainable Growth Rate Mechanism (PDF). It's from September, 2006, but is still appropriate: The Supplemental Medical Insurance program (Part B of Medicare), which will cost about $158 billion in 2006, pays for physicians' services, outpatient hospital services, durable medical equipment, physical therapy, and certain other outpatient services. About 38 percent of those expenditures are payments for services provided by physicians, which are based on a schedule of fees that specifies the amount to be paid for each type of service. Most of Medicare's payment rates are simply adjusted each year for inflation--but not those for physicians' services (emphasis added). Those rates are governed by a complex formula -- the Sustainable Growth Rate (SGR) mechanism.

The SGR is pegged against a target originally established in the 1997 Deficit Reduction Act. Its aim is to hold down Medicare costs. It's calculated every year, and every year since 2004 this complex and nearly Byzantine calculation has called for an annual reduction of physician reimbursement rates by an average of 3% to 4%.

Nonetheless, every year since 2004 Congress, yielding to the medical lobby, has voted to override it by delaying the triggering of it. The trouble is, the law is cumulative. So, what Congress has done in a typically heroic display of moral courage, is to dig itself into an ever-deepening hole by not facing up to yet another looming catastrophe. Sound familiar?

Docs Rush the Mound
The AMA is nearly apoplectic about the SGR and the prospect of Senator Bunning causing it to be finally triggered. Monday, the organization was out in force in DC making its views known. The current President, Dr. James Rohack, went on Bloomberg and, later, CNN with Larry King. President-Elect Dr. Cecil Wilson even did an hour on Washington Journal C-Span answering questions from Democrats, Republicans and Independents, and, generally making his case.

And his case was that for a while now, physicians have been abandoning the Medicare ship, because, even though their Medicare fees have remained steady due to the congressional overrides, they claim they're losing money with Medicare patients because their costs have been inexorably rising. Moreover, it's no secret that there is an ever-increasing shortage of primary care physicians, and CMS reports that, while 92% of primary care physicians participate in Medicare, only 73% are accepting new patients. If nothing changes, that will surely drop precipitously.

Case in point - the Mayo Clinic, President Obama's iconic national model of high-quality health care efficiency, lost $840 million on Medicare in 2008, and, as of January 1, 2010, stopped seeing Medicare patients at its Glendale, AZ, clinic. The Mayo claims Medicare covers only 50% of its costs every time it sees a Medicare Patient.

So, we're left with another one of those rock and hard place things. Medicare could bankrupt the nation, but physicians don't get paid enough from it.

Yesterday, Congress stole second base on Bunning by extending unemployment and COBRA benefits for another month and by delaying the 21.3% Medicare physician pay cut until the end of March, at which time we'll probably have to go through this whole thing all over again. (Yogi Berra's "déjà vu?)

Perhaps Senator Bunning's out of left field move will actually cause Congress to do something it has thus far been absolutely incapable of doing regarding our nation's health care. That is, fix it.

Right. And tomorrow 78 year old Jim Bunning will quit the Senate and to great expectations accept a $100 million free-agent contract to rejoin the Phillies as their Pitching Ace.

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March 2, 2010

 

Four years ago (time flies when you're having fun!) we blogged the saga of Thomas Noe, the power broker who parlayed his relationships with highly-place politicos into lucrative contracts with the Ohio workers comp bureau. The state invested $50 million of comp funds in his coin business. Unfortunately, Noe's inventory of coins and his tracking of the funds fell short of bookkeeping standards. He was convicted on both federal and state charges. The "Coingate" scandal brought down some heavy hitters, including the governor.

In an article in the Columbus Dispatch by Mark Niquette and Joe Hallet, Noe outlines his next moves.

"God has a plan for me, and what I'm going to do (is) I'm going to make the best of my time in Hocking {Correctional Facility]," he says. Much of his time is tied up in his appeal, which is wending its way to the Illinois Supreme Court, where he subliminally hopes the judges remember him fondly: last time around, five of the seven judges removed themselves from a previous case because they had taken campaign contributions from the ever-generous Noe.

His appeal appears to be based upon a technicality: "Believe me, I'm not sitting here saying I didn't make mistakes. I made a lot of mistakes. I'm just saying I'm not guilty, in my opinion, of what they said I'm guilty of."

To put it mildly, the prosecutors aren't buying Noe's claiming of innocence.

Assistant Lucas County Prosecutor John Weglian says: "He's a liar."

"There isn't a single embezzler in the history of embezzling, I think, who has not intended to pay the money back," Weglian said. "They all say that. ... He's a salesman; he's trying to market himself." (With all due respect, Mr. Weglian, Bernie Madoff knew all along he was never going to pay people back.)

Accentuate the Positive
For the disgraced Noe, the marketing options from a jail cell are clearly limited. But Noe prides himself on being a positive person.

"I've always said a negative thought's a down payment on failure. I'm not going to fail. I'm not going to fail on the outside. I'm not going to fail as a prisoner."

One might argue that Noe's conviction on multiple charges of corruption was a failure on the outside, and that his prospects for success from the "inside" are remote. But as Noe says, it's just part of God's plan - a plan, at the moment, that calls for another decade or so in Hocking. The former high roller used to enjoy steaks and cabernet at the best restaurants in Ohio. His current fare falls rather dramatically short of that standard, but, heck, it's free and there's no tipping.

It would be nice to think that if he ever gets another opportunity to make business decisions on the outside, Noe will have learned how to say "no way" to the Noe Way. I'm not exactly holding my breath.

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March 1, 2010

 

When is a worker disabled and unable to do his or her job? This is an issue that surfaced in a recent post about an employer that was reluctant to make workplace accommodations for employees who had been injured on the job but who wanted to return to work. This case came to mind again after viewing a presentation by record breaking athlete Aimee Mullins. In her most recent appearance at the TED conference, Aimee delivers an outstanding talk that properly redefines the word 'disabled.' The video clip is about 22 minutes, but it's guaranteed to be one of the best things you see this week. Here are a few excerpts that we liked:

"It's not just about the words, it's what we believe about people when we name them with these words - it's about the values behind the words and how we construct those values. Our language affects our thinking and how we view the world and how we view other people."

"...we have to make sure that we don't put the first brick in a wall that will actually disable someone. Perhaps the existing model of only looking at what is broken in you and how do we fix it serves to be more disabling to the individual than the pathology itself. By not treating the wholeness of a person, by not acknowledging their potency we are creating another ill on top of whatever natural struggle they may have."

More about Aimee Mullins
TED profile - with links to additional presentations she has made
Aimee Mullins website
Aimee Mullins on Wikipedia

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