August 2010 Archives

August 31, 2010

 

Today we examine an interesting case where the ADA runs up against OSHA's general duty clause, where the individual's right to "reasonable accommodation" collides with the need to ensure the safety of the general public.

In 1999 Oscar Brownfield became a policemen in Yakima, Washington. By all accounts, he was a good cop. In 2000 he suffered a head injury in a non-work-related car accident. He returned to work about 6 months later. In 2005 the troubles began: he (wrongfully) accused a co-worker of malfeasance. He was short-tempered, storming out of a disciplinary hearing with a superior. He described moments of intense anxiety when he was not sure he could control himself. And he made alarming comments about how meaningless life had become.

Fearful of Brownfield's mental state, his employer sent him for a Fitness for Duty Exam (FFDE). He was diagnosed with a mood disorder and disabled from work due to his "emotional volatility, poor judgment and irritibility." The disability was considered permanent.

Then Brownfield had another auto accident. His treating physician, Dr. Gondo, released him for work: that is, he wrote that Brownfield could carry out the "physical requirements" of the job. When pressed on the issue of Brownfield's mental state, Dr. Gondo did not back down, but he did not respond either. He simply remained silent. As a result, the Yakima police department sent Brownfield for a second FFDE, with the same result as the first. Brownfield was terminated from his job.

Claiming an ADA disability (he does appear eligible), Brownfield sued for a violation of the ADA, violation of his first amendment rights of free speech (his apparently groundless accusations against a fellow cop) and violation of the FMLA (which limits the ability of employers to require multiple FFDEs). Brownfield's case was dismissed on summary judgment by the district court, a decision subsequently upheld by the 9th circuit court of appeals.

A Tool in the Toolbox
Employers often balk at requiring Fitness for Duty exams. They fear a violation of the employee's rights. This case clearly indicates that those rights can and should be tempered by a clear-headed vision of business necessity. If the employee's mental or physical condition undermines his ability to perform essential job functions safely, a fitness for duty exam is not only allowable, it is necessary. To be sure, the exam comes with a high standard: the need must be work related and it must derive from business necessity. But where these standards are met, employers must act. If the employer takes the path of least resistance and does nothing, they could easily be charged with negligent retention when and if something bad happens.

Management continuously walks a fine line between employee rights and the obligation to operate a safe workplace. Yakima took a chance in terminating Brownfield's employment, but it appears that they did what had to be done and they did it legally. Brownfield was unable to perform his job safely. His mental state comprised a risk to himself and to the public he was oath-bound to protect. It is never easy confronting an unruly, agitated and volatile employee, but it must be done - and done in a timely manner.

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August 30, 2010

 

If you haven't discovered the gem that is the Boston Globe's "Big Picture" yet, you are missing a wonderful feature. Billed as "news stories in photographs" it is a themed news essay curated by Alan Taylor. From the BP oil disaster to the floods in Pakistan, the photos add a visual narrative to breaking stories of the day.

This past week, as in many media outlets, the focus was on Katrina. With a human toll of more than 1,800 dead and an economic toll exceeding $80 billion, the 5-year anniversary merits our attention.

For many of us, the anniversary is a look back, but for many of those who experienced it first hand, Katrina is a continuing nightmare. News reports point to ongoing health problems, from mental health issues to general health problems, such as skin infections and respiratory illnesses: "A recent study published in a special issue of Environmental Toxicology and Chemistry found elevated concentrations of lead, arsenic and other toxic chemicals were present throughout New Orleans, particularly in the poorer areas of the city. It suggested that widespread cleanup efforts and demolition had stirred up airborne toxins known to cause adverse health effects."

Many residents, particularly children, are still still experiencing severe emotional and psychological disturbances. The National Center for Disaster Preparedness at Columbia University's Mailman School of Public Health has been conducting studies on Gulf coast residents, and recently issued a white paper in coordination with the Children's Health Fund:

"Together, these documents indicate that although considerable progress has been made in rebuilding the local economy and infrastructure, there is still an alarming level of psychological distress and housing instability. Investigators believe that housing and community instability and the uncertainty of recovery undermine family resilience and the emotional health of children. These factors characterize what researchers are calling a failed recovery for the Gulf region's most vulnerable population: economically disadvantaged children whose families remain displaced."
Looking back to look ahead
It's no mystery why FEMA would designate September as National Preparedness Month. Between the man-made disaster of 9-11 and nature's twin-wallop of Katrina and Rita, it's certainly been a month fraught with peril, at least in terms of the last decade. In particular, FEMA is calling on businesses to be ready with disaster plans, and offers resources for that purpose.


A crisis by its very nature is unpredictable and random. But from a risk management point of view, it's important for businesses to examine past events so that lessons learned can become part of planning for future crises with an eye to minimizing losses and disruption.

Perhaps one of the best articles we've seen on this theme is Crisis Management of Human Resources: Lessons From Hurricanes Katrina and Rita. This article discusses the three phases of crisis management: planning and preparation; immediate event response; and post crisis, or recovery. It cites specific companies and the way they problem-solved aspects of the Katrina crisis, and points to the importance of putting some plans in place: having and circulating an alternative emergency communication systems plan; keeping contact information and next-of-kin data current; maintaining communications with employees during an emergency; having updated policies and procedures for compensation and benefit continuation; making resources such as EAP services available to employees; and having flexible and alternative work arrangements.

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August 26, 2010

 

Massachusetts has been in the forefront of the independent contractor issue. The state has narrowed the definition of "independent contractor" to the point where almost anybody can be defined as an employee. But how do you enforce this? Where is the leverage to confront employers who are avoiding comp premiums by misclassifying their employees as independent contractors?

Under the direct influence of labor unions, the Commonwealth has empowered "any 3 persons" to take action against suspected comp fraud. Governor Deval Patrick recently signed a law that allows any 3 people to file suit against an employer who fails to comply with the workers comp statute. If that sounds pretty broad, well, it is. Here is first section of the new law:

Whenever facts exist showing that an employer has failed to comply with this chapter, then any 3 persons may bring a civil action and that civil action shall be deemed a private attorneys general action....Plaintiffs shall prove a violation of this chapter by a preponderance of the evidence.

I do wonder what those "facts" and the supporting evidence might look like. Beyond that, this language invites lawsuits for any violation of the workers comp statute, a very wide parameter of possibilities, indeed. The focus, however, will be on premium fraud: deliberate misclassification of employees; paying people under the table; and failing to carry workers comp insurance altogether. The plaintiffs can collect up to $25,000 in unpaid premiums and an additional $25,000 in damages, plus "costs and reasonable attorneys fees."

These suits must be filed no sooner than 90 days after a policy ends (how would the "3 persons" know this date?). Then the process will take an additional 90 days. So six months after the policy ends, all hell breaks loose.

Bitter Remedy
Where are the "3 persons" likely to come from? I'm guessing that disappointed bidders on (increasingly rare) construction projects are likely to team up with disgruntled (former) employees of the successful bidder to form a merry band of 3. You might find three laid off employees/independent contractors jumping in to get back at their former bosses. Heck, the standard of "3 persons" is so low, this game is not much more difficult than playing the state lottery.

It will be fascinating to watch this new statute roll out. Simmering rivalries are going to boil over. The frictional cost of doing business in the Bay State is about to go up. The ultimate question, of course, is how effective this new weapon against premium fraud will be. To the extent it exposes unfair business practices, it will help level the playing field for all Massachusetts employers. But given the broad and ultimately vague language of the enabling statute, there is plenty of opportunity for abuse in this cure for abuse. From a blogger's perspective, of course, it's just about perfect.

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August 25, 2010

 

The Notwithstanding Blog puts a medical spin on things in hosting Cavalcade of Risk #112: Medical School Edition. This is an excellent showing for a new host and a relatively new blogger, self described as an "economics-trained fledgling first-year medical student." After you've perused this week's edition, why not poke around his blog a bit to kick the tires?

Workplace fatalities drop dramatically - In 2009, 4,340 workers died on the job, according to the preliminary Census of Fatal Occupational Injuries 2009, which was recently issued by the Bureau of Labor Statistics (BLS). This is the lowest number on record since data began being collected in 1992, and represents a dramatic drop from the 5,214 deaths in 2008. In terms of 100,000 full-time equivalent workers (FTEs), it is a drop from 3.7% to 3.3%. Transportation-related injuries accounted for the highest number of fatalities (39%), followed by assaults and violent acts (18%), contact with objects (17%), falls (14%), exposure to harmful substances/environments(9%), and fires/explosions (3%).

In explaining the decrease, BLS points to economic factors. In 2009, total hours worked dropped by 6%, following a 1% drop in 2008. The drop was particularly pronounced in dangerous professions, such as the construction industry, which historically account for a large percentage of fatalities. Plus, officials say that 2009 numbers are preliminary, and that some data may be delayed by the fiscal constraints experienced by reporting agencies.

Ohio's workers comp system - Insurance Information Institute's Bob Hartwig told a gathering of Ohio state officials that the state should privatize it's workers compensation system. He made the case that moving Ohio from a monopolistic state fund to a competitive market would afford more choice to employers. Ohio is the largest of the four states in which the state is the exclusive provider of workers compensation coverage. The other three states are Washington, North Dakota, Wyoming. West Virginia is the most recent state to make the transition from a monopolistic system to a competitive market.

OSHA cites SeaWorld - Last February, Tilikum, a 12,000-pound orca, attacked and dragged whale trainer Dawn Brancheau to her death. After investigating the circumstances surrounding the death, OSHA cited SeaWorld for three violations. "OSHA's investigation revealed that this animal was one of three killer whales involved in the death of an animal trainer in 1991 at Sea Land of the Pacific in Vancouver, British Columbia, Canada. SeaWorld had forbidden trainers from swimming with this whale because of his dangerous past behavior, but allowed trainers to interact with the whale, including touching him, while lying on the pool edge in shallow water." SeaWorld's former health-and-safety director turned whistleblower is also speaking up, calling her former employer's practices questionable and dangerous. Linda Simons was fired by SeaWorld, allegedly for speaking up during the investigations.

Disability - The 2010 Survey of Americans with Disabilities, conducted by the Kessler Foundation in conjunction with the National Organization on Disability, reports on the gaps between people with and without disabilities. The survey found that employment represents the largest gap: "Of all working-age people with disabilities, only 21% say that they are employed, compared to 59% of people without disabilities - a gap of 38 percentage points. People with disabilities are still much more likely to be living in poverty." Indicators are tracked over time, and this is the sixth time the survey has been conducted in 24 years.

Obesity and Disability - Obesity is linked to higher health care costs than smoking or drinking, and plays a major role in disability at all ages, according to Rand Corporation researchers, who have been conducting a series of studies analyzing obesity trends and estimating their effects on future health care costs. "More than one in five U.S. adults are now classified as obese based on self-reported weight, and almost one in three based on objectively measured weight." Researchers also found that the fastest-growing group of obese Americans consists of people who are at least 100 pounds overweight.

Quick takes
Caveat emptor - Joe Paduda at Managed Care Matters offers a buyer checklist of issues when evaluating work comp savings on medical bill review.

Fraud fighting - at Comp Time, Roberto Ceniceros relates the story of some creative investigation tactics used to prove workers comp fraud on the part of a Florida mail carrier.

RIMS - check out the RIMS website, which has just been overhauled. In addition to improved navigation, it includes more accessible news feeds on the front page.

Legal brief - When is a deviation not a deviation? The Arkansas Court of Appeals ruled in favor of truck driver whose injury occurred off-route.

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August 19, 2010

 

Joe Paduda is the man of the moment. His Managed Care Matters blog is worth a regular perusal for the informed commentary he offers about the medical side of workers comp. Today, there's twice as much reason to visit because he's the host of this week's Health Wonk Review, in which the focus is on implementing health care reform. Check out this biweekly best of the health policy blogosphere!

Violence on the job - This week, The Hartford Courant posts that the total work comp payout for the shooting at Hartford Distributors could set a record. The company's workers' compensation insurer is The Hanover Insurance Group. Reporter Matthew Sturdevant notes that families of deceased and injured workers have one year from the Aug. 3 shooting to file workers' compensation claims and discusses state benefit levels. (See our related posting from last week about the aftermath of the shooting in Connecticut. )

In another corner of the world, other workers were homicide victims. The New York Times offers a tribute to 10 medical workers who were killed while on a mission to provide aid to remote Afghanistan villages that generally don't have access to medical care. Workers included 6 U.S. medical personnel and humanitarian workers, one German, one Briton and two Afghans.

Volunteer firefighter case - The Chicago Tribune reports on a recent Iowa court finding in a dispute between two insurers which ruled that a volunteer firefighter must be officially summoned to duty to be covered by workers' comp. Justin Fauer died while trying to rescue his boss from a manure pit. In addition to being a farm worker at the farm where he died, Fauer was also a volunteer firefighter. According to the report, "The farm's insurance company, Grinnell Mutual Reinsurance Company, paid the claim but sought for it to be shared by the fire department's company, Traveler's Insurance Company, claiming Fauer also responded as a firefighter." The Iowa Supreme Court upheld a district court decision that "...a volunteer firefighter cannot be summoned to duty by circumstances, but can only be summoned by the fire department or some other official channel."

Deadline reminder to 9-11 recovery workers - Ground Zero workers must register by September 13 of this year to be eligible for future worker's compensation benefits if they are sick or should become sick as a result of 9/11 exposure. Less than half the estimated 100,000 volunteers and workers who are eligible to register have done so. Authorities urge workers to register as a precaution. Joel Shufro of the New York Committee for Occupational Safety and Health says that ""You don't have to experience symptoms to file for this ...You may never use it. We are seeing so many workers now developing symptoms and some are getting worse. So this is a very protective measure, safety net, so people who do get sick in the future will have protection."

Popcorn Lung - Richard Bales of Workplace Prof Blog posts that an Illinois jury has awarded $30.4 million to a plant worker suffering severe lung disease from diacetyl. See more from on the popcorn lung case from the Joplin Globe.

BP agrees to pay for safety violations at Texas City refinery -
Liz Borowski of The Pump Handle reminds us that before BP became synonymous with the Gulf oil disaster, it's prior "claim to fame" was the 2005 Texas City refinery disaster that killed 15 workers. When OSHA conducted a 2009 follow-up investigation, it issued $50.6 million in failure-to-abate citations, plus $30.7 million for 439 new willful violations it identified. BP had disputed these violations, but last week, agreed to pay the entire $50.6 million.

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August 16, 2010

 

Farm work is hazardous business. Recently, we focused on the deaths of two Michigan teen farmworkers who were killed while working in a silo. Last week, we learned about the recent deaths of two more young workers who died in an Illinois grain bin which is owned by Haasbach, LLC. Wyatt Whitebread was 14 years old and Alex Pacas was 19 years old. Officials put the cause of death at "traumatic asphyxiation, due to being engulfed in corn."

According to reports, the boys were standing in corn as an unloading system operated. Wyatt began sinking in the corn and became trapped. As is so often the case in such incidents, coworkers rush to rescue their trapped coworker. Alex Pacas and Will Piper, 20, tried to help Whitebread but they also became trapped. Pacas' efforts resulted in his death; Piper was rescued and hospitalized. Reports indicate that one or two other teens were also in the bin but managed to escape and call for help.

Preliminary OSHA investigations indicate that these deaths were preventable. The three workers were not wearing safety harnesses and were not equipped with life lines. In addition, reports say there was not a spotter in place who could shut down the system if there was a problem. Also, it is illegal for teens under age 16 to work in grain storage bins.

Liz Borowski of The Pump Handle reports that OSHA is taking action in light of recent grain bin deaths. It has proposed or levied fines against two other grain facilities for recent entrapments and deaths. In addition, OSHA issued letters to all grain elevator operators reminding them of their safety obligations. The OSHA letter states that employers have legal obligation to protect and train workers, and warns that they will aggressively pursue cases "use our enforcement authority to the fullest extent possible" when employers fail to fulfill their legal obligations.

According to OSHA, employer safety precautions include:

When workers enter storage bins, employers must (among other things):
1. Turn off and lock out all powered equipment associated with the bin, including augers used to help move the grain, so that the grain is not being emptied or moving out or into the bin. Standing on moving grain is deadly; the grain acts like 'quicksand' and can bury a worker in seconds. Moving grain out of a bin while a worker is in the bin creates a suction that can pull the workers into the grain in seconds.
2. Prohibit walking down grain and similar practices where an employee walks on grain to make it flow.
3. Provide all employees a body harness with a lifeline, or a boatswains chair, and ensure that it is secured prior to the employee entering the bin.
4. Provide an observer stationed outside the bin or silo being entered by an employee. Ensure the observer is equipped to provide assistance and that their only task is to continuously track the employee in the bin
5. Prohibit workers from entry into bins or silos underneath a bridging condition, or where a build-up of grain products on the sides could fall and bury them.
6. Test the air within a bin or silo prior to entry for the presence of combustible and toxic gases, and to determine if there is sufficient oxygen.
7. Ensure a permit is issued for each instance a worker enters a bin or silo, certifying that the precautions listed above have been implemented.

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August 13, 2010

 

Friday afternoon in August - who wants to be too serious? We think it's the perfect time to deploy the secret stash of medical-humor related videos we've been collecting,

The first is a feel-good clip performed by staff at Providence St. Vincent Medical Center in Portland, Oregon to raise awareness for breast cancer.

The next clip is a Gilbert & Sullivan parody created by the Neuroscience Education Institute to be a little video played at the beginning of lectures presented by Dr. Stephen Stahl.

The Model of a Psychopharmacologist

The third clip is performed by the Laryngospasms, a group of practicing Certified Registered Nurse Anesthetists who create and perform medical parodies for audiences throughout the United States.

Other gems
The Colorectal Surgeon Song - OK, this is not performed by actual medical folk, but well worth a listen anyway!

UAB Emergency Room Tap - created by ER nurses for a National Nurses' Week contest and celebration. UAB nurses and other staff members are featured in the video.

Breathe - another ditty by the Laryngospasms. More can be found at www.Laryngospasms.com

Footloose: Nursing School Style - Baylor Louis Herrington School of Nursing cuts footloose.

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August 11, 2010

 
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August 10, 2010

 

Yesterday was a day of remembrance for the victims of last week's horrifying shootings at Hartford Distributors in Connecticut - our hearts go out to the family, friends, and coworkers of the deceased. Their lives will be forever changed and imprinted by this terrible event.

In chilling testimony minutes before death by his own hand, we hear the shooter in the deadly rampage calmly relaying his motive to a police dispatcher: "This place right here is a racist place...They're treating me bad over here. And treat all other black employees bad over here, too. So I took it to my own hands and handled the problem. I wish I could have got more of the people."

Omar Thornton's murderous acts left eight coworkers dead and two grievously wounded. The horrifying massacre brought to mind another racially-motivated workplace-based mass murder, the 2003 shooting at a Lockheed Martin plant in Meridian, Miss., which left 6 dead and 8 wounded. Unlike last week's shooting for which there were few if any advance clues or hints, the killer in Meridian had left a trail of violent threats and behaviors. Many who knew or had worked with Doug Williams feared and even predicted that his threats would culminate in some terrible event.

Whether racism was a trigger in the Connecticut case or not seems a moot point. Even if it were true that racism occurred, as alleged by the family of the shooter, that would not justify such a heinous and wildly disproportionate reaction. Company and union officials deny the allegations of racism and say that no such grievances had been filed or were on record. Yet Thornton's call and the allegations will likely play a factor as lawyers for the victims seek damages. If victims seek any redress beyond workers compensation, they will face a high hurdle. When litigation is successful at piercing the exclusive remedy shield, it often involves employer misconduct that is highly egregious.

In 2005 and again in 2008, courts barred tort claims for Lockheed victims and upheld workers compensation as the exclusive remedy. Plaintiffs felt they had a strong case and sued Lockheed on the basis of having been deprived of civil rights. They cited a 2004 EEOC report, which stated: "(Lockheed) was aware of the severity and extent of the racially charged and hostile environment created by Mr. Williams, which included threats to kill African-American employees," the determination by the EEOC's Jackson office said. "(Lockheed's) reaction to those threats against African-American employees was inadequate and permitted the racially charged atmosphere to grow in intensity, culminating in the shooting of 14 individuals."

We noted then and note again now that, while often an imperfect and unsatisfying system, workers comp generally holds up as the exclusive remedy in such cases.

Can employers inoculate against such events?
While most workplace risk can be managed and risk mitigation strategies can be adopted to eliminate or minimize hazards, when it comes to the human heart and mind, preventive strategies can be less certain. There are certainly best practices that can be put in place, predictive profiles and warning indicators that can be consulted, and good hiring and supervisory practices that can be enacted.

Connecticut attorney Daniel Schwartz has been following this event and others on his blog. He recalled another terrible CT event on the 10 year anniversary of the 1998 Lottery headquarters shooting, which claimed the lives of four supervisors. Schwatz has revisited the topic of workplace violence on more than one occasion, offering best practice tips and resources for employer vigilance. In light of the recent tragedy, he asks if there are any lessons to be learned from evil. He concludes:

"Despite all the guidance and advice that can be given, the awful truth is that there really is no way to prevent tragedies like this from ever occurring. An employer can do everything "right" and yet still a rampage ensues by someone committed to carrying out a terrible crime.

That's not to say that employers should ignore the issue; they shouldn't. But we also should be careful not to draw conclusions from an incident like this too.

Indeed, as we look for answers from this tragedy, perhaps its best to acknowledge that we can never truly understand what brings people to commit evil and that despite whatever efforts we might make, something like this will sadly happen again."


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August 5, 2010

 

Jaan Sidorov has an air travel themed Health Wonk Review posted over at Disease Management Care Blog, which he calls "frequent flyer miles for your brain." There's a roundup of assorted news on the health care policy front ranging from a post on the growth of MinuteClinics to a look at hospital quality surveys. Get your dose of the news from some of the brightest braniacs in the health policy blogosphere.

Here are a few other health-care related news items we noted in our travels: Katharine Van Tassel of HealthLawProfBlog posts the disturbing news revealed via a survey that 36% of responding physicians don't believe in reporting impaired colleagues. And at Managed Care Matters, Joe Paduda talks about the results of a Kaiser Health Tracking Poll that demonstrates the power of mis-information: "Half of seniors (50%) say the [heathcare reform] law will cut benefits that were previously provided to all people on Medicare, and more than a third (36%) incorrectly believe the law will "allow a government panel to make decisions about end-of-life care for people on Medicare."

The Weekly Toll - If you haven't visited in awhile, stop by The Weekly Toll to read about US workers who died on the job this past week. Many seasonal hazards are represented with a high toll of tractor and farming-related fatalities and construction-related deaths in this week's grim list. And the list does not include the 8 employees of Hartford Distributors who were killed by a coworker.

Whistleblowers - Michael Fox of Jottings By An Employer's Lawyer tell us that the difference between cloth and leather gloves is just over $1 million in his post about a Maine court's ruling in favor of a whistleblower who was terminated after making complaints about safety and working conditions. Maine courts aren't the only ones who are taking a dim view of retaliation against employees who report safety problems: at Today's Workplace, Mike Hall posts that OSHA takes whistleblowers seriously and has established a website to offer a Whistleblower Protection Program.

Teen workers - Elizabeth Cooney writes about young employees who face injury or even death on the job in an article in the Boston Globe. Teens often are employed in some of the most dangerous jobs and have little in the way of training, as evidenced by the fact that the nonfatal injury rate for 15- to 17-year-olds in the United States was 5.2 per 100 full-time equivalent workers per year, double the rate for adults 25 and older. She discusses research from the state's Teens at Work initiative, which revealed that of "208 teens under age 18 who had been injured at work from 2003 through 2007, about half said they had no safety training. About 15 percent said there was no supervisor on site when they were hurt. Almost a quarter said they had no work permit."

Remarkable story - Chrissy gets a new face from Work Comp Complex Care: "...her story of recovery is incredible on several levels - for the medical technology involved; for the reminder that dedicated health care professionals have the power to make a huge difference in a patient's quality of life; and for the grace and attitude of the woman who suffered a devastating, life-changing injury and did not let it defeat her."

Protecting football players - In Hitless or Witless?, Skip Rozin of WSJ.com discusses new NFL safeguards to protect football players from serious head injuries. Long overdue, and more is needed. The biggest hurdle will be overcoming the culture. As Rozin puts it "One of the biggest obstacles here is the athletes' code of playing hurt."

Nursing shifts - A new study from the University of Maryland-Baltimore reveals that long shifts pose health hazards for nurses - and may increase the risk to patients, as well. Study authors said that "the most common problems with an overemphasis on 12-hour shifts are needle-stick injuries, musculoskeletal disorders, drowsy driving, and other health breakdowns related to sleep deprivation."

Legal briefs - In South Carolina, the court ruled that free living quarters offered as inducement for employment are considered wages. In a case involving horseplay, an Iowa court ruled in favor of a butt-shaking employee on appeal. A Washington court found that a fitness for duty test did not violate the ADA.

OSHA - Dwayne Towles of Advanced Safety Health News Blog warns employers that OSHA is scrutinizing safety incentive programs and may be asking for any written policies or details of any contests or promotions. They are looking for programs that might discourage employees from reporting injuries. Towles offers his thoughts for how to handle matters should OSHA come calling. And while on the topic of OSHA visits, SafetyNewsAlert offers additional suggestions in prepping for an inspection: top 10 dos and don'ts for OSHA inspections from 2 OSHA inspectors.


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August 2, 2010

 

Erie County (NY) executive Chris Collins was frustrated by an annual outlay of about $11 million for workers comp. So the county implemented a policy requiring workers collecting indemnity (about 300 in all) to pick up the checks in person from the supervisor. Collins hoped that this face to face contact might lead to quicker return to work for employees capable of performing light duty.

Not surprisingly, the state comp board had serious concerns with the new "return to work" program.

"It places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace." Oh, by the way, it's also illegal.

The Collins administration fired back, saying that the board lacks the authority to halt Erie County's new policy and that it will continue, at least for workers with temporary injuries.

Erie spokesman Grant Loomis blasted the comp board: "We were not surprised that a board full of Albany bureaucrats would raise objections to getting municipal workers back to work as soon as possible." (With his demonstrated talent for distortion, Loomis may have a future in politics.)

Loomis said Collins wants to revise the program to call in only the recently injured who might have substantially recovered and can perform light tasks, currently about two dozen people. Collins wants workers to receive their checks directly from their supervisors, who then would ask whether they could return to work in some capacity.

Compounded Errors
The Erie folks are making a couple of basic mistakes: first, they issue a blanket policy covering 300 people, even though they only want to target about two dozen. Then they ask supervisors to do things they are not qualified to do: determine whether injured workers can perform light duty tasks and, while they are at it, distribute checks. All in all, not a very good idea.

The missing piece is obvious: no one is talking to the treating physicians. Only doctors can determine the medically necessary restrictions - what the injured worker can and cannot do - and whether temporary light duty would be appropriate.

Now before Erie County implements a policy requiring doctors to show up in person for their checks, here is an alternative: establish lines of communication with the treating doctors. Track medical visits and ask doctors to update restrictions each time the employee sees the doctor. Supervisors should be kept in the loop, especially in regard to available light duty tasks, many of which are seasonal, but they should not be asked to manage the entire process. That is a job for county administrators. Heck, even Grant Loomis could help out, provided, of course, he takes a class in diplomacy. Angry rhetoric might work for politicians stirring up the masses, but it is usually counterproductive in the challenging world of workers comp.

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