January 2011 Archives

January 31, 2011

 

John T. Dibble is an arbitrator in Illinois. He was very active in the cases for carpal tunnel syndrome filed by 230 guards at the Menard Correctional Center. The guards alleged that their injuries were due primarily to the constant turning of keys in antiquated and rather sticky locks. No diddler, Mr. Dibble approved over half of the repetitive trauma cases filed by the guards, who collected nearly $10 million in a three year period. The repetitive filings for repetitive motion have caught the eye of Illinois Governor Pat Quinn, who has appointed a lawyer to investigate. NOTE to lawyer: WD 40 can do wonders for sticky locks.

It turns out that Mr. Dibble's sympathies run deep. In fact, he has some shared experience with the prison guards who come before him. On November 12, 2009, Mr. Dibble fell on the steps at a hearing office in Herrin. He filed a claim for "post-traumatic carpal tunnel" [whatever that may be], claiming injuries to "both knees, both hands, both elbows and (his) left little finger." That would be the finger he holds up in the air when partaking of his post-hearing tea, I suppose.

Mr. Dibble settled his case for $48,790. The payment included a 17.5% loss of function for each hand and a 7.5% loss of function in his little finger. The check was cut based upon a form signed by three parties: the office of the attorney general, a Central Management Services official and Dibble himself. Mysteriously, the award was not listed in the comp commisioner's online data base. The actual case file has disappeared - and I'm guessing that the medical records have disappeared as well. It would be fascinating to read the doctor's report that resulted in Mr. Dibble's rather generous loss of function awards.

The job of arbitrator in Illinois is hazardous, indeed. Seven of the state's 32 arbitrators either filed for or received a workers comp payment, including three for repetitive trauma. You know what happens: you listen, day in and day out, to the prison guards's tales of woe, and eventually your fingers start to tingle and your wrist aches a bit. It's the price you pay - and perhaps the reward you reap - for lending a sympathetic ear.

Kudos to reporters George Pawlaczyk and Beth Hundsdorfer of the Belleview News Democrat for their coverage of this story.

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January 26, 2011

 

Get your biweekly fix of risk: Cavalcade of Risk #123: High-Yield Edition is now posted at The Notwithstanding Blog. There's an eclectic roundup of posts and you might take the time to visit the host blog too - our blogger is a Canadian med student studying here in the U.S., and posts "tales from medical school, health policy analysis, critiques of the academic medical zeitgeist, and the occasional bonus Canadiana."

Misclassification in Maine - analysts in the Maine Labor Department estimate that tax losses to the state resulting from misclassification could be as high as $36 million a year. As in many other states, lawmakers had been looking at establishing guidelines and rules for independent contractors. Newly elected Governor Paul LePage abolished the state's misclassification task force that had been working on this initiative, stating that he would be introducing legislation based on the federal definition.

Union Demographics - Jeffrey Hirsch of Workplace Prof Blog gives us the latest report on union density for 2010: "Overall union density went down from 12.3% to 11.9%; in the private sector, union density went down from 7.2% to 6.9%, and in the public sector, it went from 37.4% to 36.2%." See more detail at his post.

Vote for Workers' Comp Notable People - Lexis Nexis announced the finalists in its Workers' Comp Notable People 2010 - check it out and vote for your favorites. Voters can select two individuals from each of the three categories. The voting period runs from January 23, 2011 through February 4, 2011. Click here to join and vote in the LinkedIn Work Comp Analysis Group.

Food industry - WorkersCompensation.com features an in-depth federal report on Injuries, Illnesses, And Fatalities In Food Manufacturing In 2008, which notes that "Workers in food manufacturing are more likely to be fatally injured and experience nonfatal injuries and illnesses than workers in private industry as a whole. Food manufacturing workers are also much more likely to suffer an injury requiring job transfer or restriction than one that requires days away from work."

Underwriters - After reading an article on disappearing jobs, Jared Wade of Risk Management Monitor considers whether insurance underwriters are an endangered species now that technology can crunch the numbers.

Sign of changing times? - Roberto Ceniceros discusses how some of the large carriers are letting business walk rather than price it too low. With the combined ratio moving up, many industry analysts have stated that underwriting will make the difference between profit and loss and it appears that some insurers are taking heed.

Technology - Some workers comp insurers are adopting self-reporting options for payroll reporting for employers.

Quick takes

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January 25, 2011

 

Two years ago we blogged the sad story of Arthur Pierce, a commercial driver in Virginia who suffered a traumatic brain injury and eventually died from a fall on the job. Pierce's death was deemed non-compensable due to a cruel and rather peculiar glitch in the Virginia comp statute. Under the law, if a worker suffers a brain injury that is not witnessed by others, and the worker is unable to provide details on the injury (Pierce was found in a coma from which he never emerged), the incident is not compensable. There is no room for judicial discretion: no testimony, no benefits.

We also blogged a more recent incident, where Dan Casey, a cable installer, fell off a roof. Again, there were no witnesses and again, in the days and weeks following the incident, Casey had no memory of what happened. Fortunately for him and his family, he eventually was able to remember some of the details. With some reluctance, the insurer settled the case.

The problem, obviously, lies in the Virginia comp statute. Rather than allow the comp system the normal latitude in determining compensability, the law rigidly lays out a harsh standard: if there are no witnesses, the employee must provide the narrative. In the absence of a narrative, there can be no compensability. In the above rare but compelling circumstances, seriously injured workers were unable to provide details on exactly what happened.

The Fix is In?
There is finally some movement toward amending the faulty statute. Here is the language of a bill which recently made its way out of committee, onto the floor of the Virginia House:

Workers' compensation; presumption that injury arises out of employment. Creates a presumption that a workplace injury results from an accident arising out of employment for purposes of the Workers' Compensation Act if the employee is found dead or to have incurred a brain injury resulting from external mechanical force that impairs the employee's brain function to such an extent that the employee is incapable of recalling the relevant circumstances of the accident. A judicially created presumption currently exists when an employee is found dead as the result of an accident at his place of work and there is no evidence offered to show what caused the death or to show that he was not engaged in his employer's business at the time.

Note that the brain injury must be the result of "external mechanical force" - no aneuryisms need apply. This revision would crack open the door to compensability just enough for a grievously injured Arthur Pierce or Dan Casey to slip through.

Pierce's widow has been lobbying the legislature to address this gaping hole in coverage for Virginia workers. She has nothing to gain, as the changes will not be retroactive. But it would be comforting to think that workers who suffer severe brain injuries on the job in the Old Dominion State will have recourse to the protections that are virtually universal for all workers. That would be a sanity clause, indeed.

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January 20, 2011

 

It's deja vu all over again at Managed Care Matters, where Joe Paduda hosts commentary on the rematch of the healthcare reform debate in this week's Health Wonk Review: Repeal, replace, renew, revise, revisit - what the bloggers say. It's a great issue with good contributions and diverse opinions on the matter. Check it out!

The skinny on fat - As a follow-on to my colleague's post on the not-so-hidden-cost of obesity earlier in the week, we offer this visualization - the obesity map from the CDC, which shows the dramatic rise in obesity rates from 1985 through 2009. You can also see a state-by-state breakdown of obesity rates.

Underwriting front and center - Dan Reynolds of Risk & Insurance does a great job of outlining just how much of an underwriter's nightmare workers comp has become and looking at how much worse it could get - and why. Chad Hemenway of PropertyCasualty360 (formerly known as National Underwriter) reports on a recent presentation by Insurance Information Institute's Bob Hartwig who says that the industry is at a tipping point, and underwriting will be the driving force in profit or loss for 2011.

Horseplay ruling At Business Insurance, Roberto Ceniceros reports on a recent Virginia high court ruling which allocated benefits to a worker injured during horseplay. The injured employee was a victim, not the perpetrator, of the horseplay. "The state high court also relied on a theory of recovery, which has found that joking actions of co-workers are a risk of employment because humans are playful and from time to time engage in pranks, which can be dangerous."

Aging & Workers Comp - Working Safer or Just Working Longer? - new study by California's Commission on Health and Safety and Workers' Compensation. The report contains a lot of interesting information and notes that "Interestingly, despite the large increases in the fraction of workers 55+, the impact of the aging workforce on expected workers' compensation costs is modest. Frequency and duration effects partially offset each other and older workers still represent a minority of all workers. The aging workforce will increase workers' compensation costs only about 2% as of 2030 above the cost if the distribution of workers by age had remained the same as 2000."

And about those seniors... - Jon Gelman posts about a push to put a cap on workers comp for federal workers based on age. According to Senator Susan Collins, "At the U.S. Postal Service, for example, 1,000 employees currently receiving federal workers' compensation benefits are 80 years or older. Incredibly, 132 of these individuals are 90 and older and there are three who are 98." Gelman's post includes links to states and counties who are also looking at this issue.

OSHA - OSHA's Top 10 Safety Violations for 2010 - In 2010 OSHA issued over 94,000 safety-related citations for violations. OSHA stated that nearly half of the total violations were accounted for by the top 10 safety violations.

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January 19, 2011

 

A website called 11foot8 videos chronicles "the good, the bad and the ugly" of low clearance truck accidents at a single Durham NC trestle bridge. While one might think this is the purview of inexperienced drivers and rental trucks, the videos don't lie: professionals have had their share of accidents, too.

When professionals make a mistake, the results can turn deadly. In September, four people were killed when a bus crashed into a railroad bridge in Syracuse after deviating from the normal route. And even non-fatal incidents wreak havoc in terms of injuries, property losses, hazards to pedestrians and other drivers, and costly traffic tie ups. Here are photos of four serious nonfatal truck and bridge collisions

Prevention tips
Prevention might seem obvious to some, but approximately 5,000 bridge-truck collisions per year say otherwise. Here are some pointers we gleaned from the pros:

  • Plan route in advance and stay on route
  • Check atlas and or gps systems in advance
  • Keep atlases and gps systems up to date
  • Check with any state or major city DOTs (examples: NYC; TX); they often provide good information about the local area
  • Be religious about watching for and heeding signage
  • If on an unfamiliar route, check with other drivers about hazards
  • Talk to shippers and receivers on your route about nearby low clearance
  • When in doubt, don't risk it

Additional Resources
America's Independent Truckers Association (AITA) offers an online database of low clearance bridges with heights broken down by state.

For situations that might require escorts, AITA maintains a truck escort referral listing

This trucker forum discusses low clearance solutions.

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January 18, 2011

 

NCCI has published an interesting study on the relationship between obesity and the cost of workers compensation claims. To no one's surprise, the study concludes that medical costs for the same injury are 3 times higher among obese claimants in the first year, rising to five times higher at 60 months. In addition, claims for the non-obese are much more likely to be medical only; obese workers, when injured, tend to lose time and collect indemnity. For the same injury and all else being equal, the range of medical treatment, the costs and the duration of the claim are consistently greater for obese employees.

The study cites CDC data on the incidence of obesity in the general population. In 1990 10 states had incidence rates of obesity under 10% and none were above 15%. By 2009, 33 states had incidence rates equal to or above 25% and nine (mostly deep south) states had rates at 30% or higher.

The study is based upon 27,000 claims, of which 7,000 carried a specific diagnosis for obesity as a co-morbidity. Data wonks will duly note that there must have been a significant number of obese claimants outside the "obese" group, due to the fact that treating doctors would not consistently list obesity under the diagnosis.

Underwriting the Overweight
I feel a great deal of sympathy these days for the challenges facing comp underwriters and actuaries. Their customary approach of using the rear view mirror as the major indicator of future risk is increasingly ineffective. Now you can add the issue of obesity to mostly hidden factors that can seriously skew loss ratios.

The CDC data clearly indicates an alarming upward trend in obesity. Many of the obese are in the workforce. Indeed, companies might hire a person within the normal weight range and then see this individual gain substantial weight during the course of employment. Many of these burgeoning employees are performing physically demanding tasks. When they suffer from back strains, for example, the medical costs associated with treatment are more than double those of the non-obese. (On the other hand, the cost for the medical treatment of carpal tunnel injuries is virtually the same for the obese and non-obese.)

Fire the Big People?
With this data in hand, it may be tempting for employers to avoid hiring the obese and find ways of terminating current employees who tip the scale in the wrong direction. This would eliminate some very productive people. In addition, it raises the specter of discrimination. The Americans with Disabilities Act protects those with disabilities that impact "one or more major life activities." That might - but does necessarily - include the morbidly obese.

The NCCI study raises the issue of higher costs for injuries involving the obese. There is a more proactive way to look at the issue. Employers could focus on incentives to promote wellness. Employees who stay fit could receive enhanced benefits. We have drug-free and smoke-free workplaces. Perhaps it's time for snack-free workplaces - or healthy snacks. Out with soda machines and in with the vitamin water.

It's interesting to note that when opening comp claims, insurers generally do not collect data on height and weight . They really should. Where the data indicates that weight will be a significant factor in recovery, steps could be taken to encourage weight loss as part of the treatment plan. (For an example of court-ordered weight reduction, see our blog on the obese pizza maker here.)

Ultimately, the effort of employers to control losses will come up against the freedom of people to act as they choose. It's one thing to provide incentives for losing weight, it's quite another - especially in the deep south - to take away the Coca Colas. For many strong advocates of the American way, them's fighting words, indeed.

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January 12, 2011

 

It's Cavalcade of Risk week and issue #122 is hosted by our friend David Williams at Health Business Blog - check it out!

Industry pulse - Good news. Robert Hartwig of the Insurance Information Institute takes the pulse of the property casualty industry and sees signs of life: Insurance Industry On The Mend. "Mr. Hartwig said in comparison to all of 2009, the industry's 2010 third-quarter results are close to all of the prior years. While the industry is not back to where it was prior to the economic downturn in 2007 when it reported property and casualty net income of $62.5 billion, it is performing significantly better than the worst of the downturn in 2008 when p&c income came in at slightly more than $3 billion."

That's good news, but it's not time to break out the champagne yet. A.M. Best forecasts downward rating pressure for the commercial market and two new reports indicate that reinsurance prices should remain soft in 2011.

Physician dispensed drugs - If you are an employer or an insurer and this topic isn't yet on your radar, it needs to be. Joe Paduda posts about recent NCCI report on physician-dispensed drugs in workers comp, a significant growth area that NCCI says is putting upward pressure on WC costs. California took steps to regulate the practice a few years ago after learning that repackaged costs were two to twelve times higher than the fee schedule.

Labor - The New York Times reports that cash-strapped states are looking to curb labor unions. Expect a flurry of legislative initiatives to limit the power of labor unions representing government employees. While both parties are wrestling with ways to keep state budgets in line, the article notes:

"But in some cases -- mostly in states with Republican governors and Republican statehouse majorities -- officials are seeking more far-reaching, structural changes that would weaken the bargaining power and political influence of unions, including private sector ones."

Prevention works - A concerted campaign to reduce textile service worker injuries is working, according to the recently released annual TRSA Textile Services Industry Safety Report. Recordable injuries and illnesses dropped by 17 percent from 2008 to the 2009, and have dropped by 50% since 2005. Sandy Smith reports on SafeTRSA, an industry-wide safety initiative to improve worker safety through awareness, education and training.

Breast cancer & comp - At Comp Time, Roberto Ceniceros discusses City of Las Vegas v. Lawson. The Nevada Supreme Court ruled that a firefighter is entitled to a presumption that her breast cancer arose from her on-the-job exposure to benzene. His post also discusses male breast cancer.

Dramatic Australia flood footage - Office workers catch footage of a modest creek turning into a raging torrent sweeping cars away. More news and dramatic videos of the cataclysmic Australian flooding is available on MSNBC. At least 16 people are reported dead and more than 90 missing in what has been likened to an inland tsunami. Brisbane is under siege. You can follow breaking news on Twitter at #Brisbane.

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January 11, 2011

 

A deranged man with a high-powered handgun in Tucson, Arizona, has killed six people and wounded many others. We will never really understand what drives an individual to plan and execute this kind of action, just as we cannot fathom why a man (or woman) would in the name of religion strap explosives to their bodies and kill themselves and as many innocent victims as possible. Belief systems are powerful motivators; demented beliefs can bring about appalling results. In these trying times, as the poet Yeats put it, "everywhere the ceremony of innocence is drowned."

Today we limit our meditation to the role of workers compensation in this incidence of mayhem. Congresswoman Gabrielle Giffords (D-AZ) was holding an informal "Congress on the Corner" gathering outside an ironically named Safeway Supermarket, when Jared Loughner walked up behind her and shot her in the head at point blank range. Somehow, she has survived to this point. One of her aides, Gabe Zimmerman, was killed. For what it's worth, both are covered by workers comp, as they were "in the course and scope of employment." A number of Giffords's volunteers were also injured: their medical bills will likely be covered by comp, but they probably will not receive any indemnity benefits. Innocent bystanders are on their own: whether employed or not, their jobs did not bring them to that fateful location.

Federal Judge John Roll, who was killed, is a special case. The justice department will try to prove that his attendance at the event was an official act: that rather than just casually dropping by to see his friend, Rep. Giffords, he was "in the course and scope of employment" when he left his nearby office to attend the meeting. Why? It is surely not workers comp that concerns the feds; they want to include the murder of Judge Roll in the federal charges against Loughner and can only do so if the judge was technically on the job at the time he was assassinated. (Ironically, the judge had received death threats due to recent rulings.)

The Politics of Mayhem
Some have drawn a direct link between Loughner's actions and the inflammatory rhetoric of recent political campaigns. When politicians talk of "second amendment solutions" to ideological differences, they are referencing guns. By placing a cross-hair image over an opponent's photo, they raise the specter of assassination. Based upon the limited evidence of Loughner's web postings, his actions are likely the result of internal demons. His links to the real world were tenuous at best. He may have thought his actions were political, but like his brethren the suicide bombers, any intended political message is subsumed and ultimately obliterated by sheer madness.

This is by no means the first time that humanity has been confronted with such images of meaningless depravity. Yeats published "The Second Coming" in 1920, just a couple of years after the end of the first world war - the "war to end all wars."

Things fall apart; the center cannot hold;

Mere anarchy is loosed upon the world.

There was much anarchy then, much anarchy to follow in the dark days of the second world war and, alas, much anarchy in our time.

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January 6, 2011

 

As long as we're on the topic of healthcare today, it seems to be an opportune time to share a moving video clip that we bookmarked over the holidays. Marty Ratermann, a Missouri a craftsman and furniture maker, relates his story as a cancer patient at the 2010 Health Literacy Missouri Summit. He was diagnosed with Stage 4 rectal cancer in 2008. After a grueling recovery process, he has been in remission for more than a year. He details how his situation could have been prevented with better communication between him and his doctors.

His story illustrates the difficult path that a person faces navigating the complex healthcare system and making critical choices at a point when he or she is particularly vulnerable. His prescription at the end of the clip is a simple one: take the time and make it a priority to communicate.

I couldn't help but think of the parallels in the healing process for workers who have experienced a serious injury. Many a claim has spiraled out of control for want of good, clear communication and a simple human-to-human moment of concern. So often, we see workplace injuries that are treated as financial transactions when, in reality, they are fundamentally human events: someone is injured, often through no fault of their own. The complexity of the system a worker may find themselves suddenly thrust into, the unfamiliar insurance jargon, the impersonality - all occurring at a point where the worker may be feeling fear and anxiety about their future physical and financial well being. Our prescription: Less thinking about the injured worker as a claimant and more thinking about them as a person. In our experience, that's what leads to the best financial outcomes in the long run.

A Patient's Story from Health Literacy Missouri on Vimeo.

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January 6, 2011

 

It's Health Wonk Review day - the first issue of the new year after a holiday hiatus. Avik Roy of the Apothecary hosts "Health Wonk Review: Should Auld Acquaintance Be Forgot?" edition. With the healthcare debate again front and center, it's a timely issue highlighting many of the controversies. Check it out.

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January 4, 2011

 

For nearly 15 years, beginning in 1990, Bradley Clark was a baggage handler for United Airlines. He started at age 33, and by the time he was unable to perform the work, he was nearly 50. Ten years in, he began experiencing pain in his thumb joints. In 2004 he banged his hand against a cart and was diagnosed with bilateral carpal tunnel, for which he had surgery. Unfortunately, the surgery did not stop the pain. (NOTE to claims adjusters: This is yet another example of unnecessary surgery, based upon the wrong diagnosis.)

With pain continuing after the surgery, Clark sought treatment from a hand specialist. He treated with Dr. Charles T. Woolley, who performed surgical fusions on both thumbs. Coverage of this surgery was denied, as a succession of five physicians concluded that Clark's problem was osteoarthritis, which is hereditary and unrelated to work. The opinions included an IME performed by two doctors, who concurred with the other doctors that the condition was not work related.

Slam dunk for the employer, right?

Making the Case
In his choice of a hand surgeon, Bradley Clark stumbled upon a stubborn and determined physician, one more than willing to disagree with his colleagues. Dr. Woolley diagnosed bilateral trapeziometacarpal joint arthritis and insisted that it was work related. Among his impressively detailed findings:
- Clark was too young to develop osteoarthritis, as he was only 43 years old when the pain first developed.
- He found no genetic pre-disposition to developing osteoarthritis, as none of the other joints in Clark's hands, such as his fingers, revealed osteoarthritis. There was no osteoarthritis in any other part of his body.
- Osteoarthritis in the thumbs is typically seen in women, in particular post-menopausal women. Clark rather obviously did not fall within this category.
- Clark performed significant lifting for 16 years, which required repetitive pinching of his thumbs. This kind of grabbing/pinching activity places significant loading on the thumbs and ultimately leads to a wear and tear of the thumb joints. Wear and tear over time led to instability of his joints causing the osteoarthritis. His TMC or thumb joints became unstable over time because of the repetitive grabbing/pinching use. Over time with continued use, his cartilage in his thumbs wore off due to the repetitive friction from the pinching/grabbing.
- Contusions/strains, such as the work injury he sustained in November 2004, also contributed to the osteoarthritis, because they cause damage to the cartilage which leads to instability of the ligament. Jamming one's thumb also contributes to the development of osteoarthritis because it damages the ligament causing instability and then osteoarthritis.
- The thumb basal joint (where the thumb meets the wrist) is exposed to very high stresses with grabbing activities and the forces felt at the tip of the thumb are multiplied twelve times in their effect on the thumb base, thus predisposing this joint to wear and tear. Clark's work activities as a ramp serviceman are the exact kind of activities to cause wear and tear to the thumb joint because of the grabbing involved; this wear and tear led directly to the osteoarthritis in his thumbs.

Deep Knowledge
While there were five doctors lined up against him, Woolley was the only hand specialist among them. The duelling docs bolstered their differing cases through articles in medical journals. The Oregon Court of Appeals was faced with a choice: side with the majority or side with the expert.

Ultimately, Dr. Woolley's opinion prevailed. His compelling testimony, combined with his intimate knowledge of hands, won the day. So let's have a little hand for Dr. Woolley, who could have taken the easy way out and deferred to his colleagues, but instead fought the good fight for a hard-working man who could no longer do his job.

(For the record, we duly note that Clark retired from his job long before the onerous baggage fees went into effect, at which time many of us lost a bit of sympathy for these harried and ultimately blameless workers.)

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January 3, 2011

 

Here's a compilation of top news stories in 2010, encompassing workers comp, insurance, risk, general business, and more:


And here are some predictions for the year to come:

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