June 2011 Archives

June 30, 2011

 

We are about to observe the 235th anniversary of the Declaration of Independence. As is so often the case with holidays, the ways we celebrate will not have much to do with the original events. As we indulge in a weekend of family reunions, sporting events, cookouts, libations and fireworks - along with hours sitting in traffic - we are unlikely to give much thought to the conditions that led to the promulgation of that remarkable document. So as we prepare to hit the roads, let's take a moment to acknowledge two of the remarkable risk takers who helped make this all possible.

Let's begin with John Adams. He trained at Harvard to become a minister, but chafed at being told what to believe and what to think, so he became a lawyer instead. On March 5, 1770, six years before the formal break from England, an unruly mob gathered in front of Boston's Customs House. After pelting British troops with snowballs and rocks, the crowd surged forward; the troops fired into the mob, killing five people. From the colonial viewpoint, this was the "Boston Massacre." As far as the British were concerned, it was a riot. Both views are credible.

Unpopular Cause
Captain Thomas Preston and 12 soldiers were charged with murder. No Boston lawyer would take their case, so the plea was made to John Adams, who at the time was practicing law (not all that successfully) in Quincy, about 15 miles from Boston. Adams took on the case, at considerable personal risk. His words at the time should be taken to heart by any politician seeking a vote:

"Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence."

Under Adams' skillful defense, six of the soldiers were acquitted. Two who had fired directly into the crowd were charged with murder, but were convicted only of manslaughter. Adams was paid eighteen guineas by the British soldiers, or about the cost of a pair of shoes. Beyond the fee, Adams wanted to prove to the world that American justice was balanced and fair.

Self-Evident Truths
Just six years later Thomas Jefferson wrote - and Adams helped edit - the Declaration of Independence. After ratification of the final language (which, to Jefferson's chagrin, excluded a ban on the importation of slaves), a prayer was said and in silence the delegates to the convention applied their signatures to the document.

In the entire history of risk taking, there are few events of greater magnitude. The document would be considered treason by the most powerful government in the world; should the revolution fail - and that itself must have seemed highly likely - each signer would pay with his life, .

The Perspective of Time
One month before his death, Adams wrote of the upcoming July 4, 1826, festivities:

My best wishes, in the joys, and festivities, and the solemn services of that day on which will be completed the fiftieth year from its birth, of the independence of the United States: a memorable epoch in the annals of the human race, destined in future history to form the brightest or the blackest page, according to the use or the abuse of those political institutions by which they shall, in time to come, be shaped by the human mind.

Somber thoughts from one who was there at the beginning - and who would likely be appalled by some of the subsequent uses and abuses of his work.


As most Insider readers probably know, Adams and Jefferson both died on July 4, 1826, fifty years to the day after the Declaration was issued. Adams desperately wanted to outlive Jefferson; just before he died, he said - perhaps bitterly - "Thomas Jefferson survives." Ironically, word had already gone out from Monticello that Jefferson had died earlier the same day. It is perhaps reassuring that such great souls could also be small minded and petty. There is still hope for us all.

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June 29, 2011

 

We're pleased to be hosting issue #134 of the Cavalcade of Risk. We kick off this issue with an excellent TED presentation by Bruce Schneier on The Security Mirage which talks about how the feeling of security and the reality of security don't always match. He looks at why we spend billions addressing dramatic but rare risks that make headlines while neglecting more probable risks -- and how we can break this pattern.

Schneier is a renowned security technologist and author with an excellent blog. Recently, Morgan Housel of The Motley Fool related the five cognitive biases that Scheir spoke about to lessons for investors.

Our regular roundup
This week, our blogger participants have submitted a tasty smorgasbod of entries on a variety of risk-related topics.

We start with a pair of posts by our fearless leader, Hank Stern, from InsureBlog. Have you heard about the growing practice of personal car sharing? Hank looks at the consumer risks associated with the newly expanding "peer to peer" car sharing services industry in his post Stupid Client Tricks: P & C Edition. It's a great and informative post, but we would be remiss in leaving his blog without directing you to another post entitled Bark, Screech, Yowl. You'll have to click through to see the topic but here's an inducement to click: this post includes a video of a cat driving a car.

While on the topic of insurance, we have a pair of posts that look at other aspects of your personal coverage. For your auto coverage, Philip Taylor asks what's the catch when it comes to Safe Driver Discounts in a post that examines the fine print of safe driver discounts. And do you know your financial exposure if your home should be destroyed in a disaster? At Canadian Finance Blog, Tom Drake asks if you have enough insurance on your home.

Speaking of disasters, we know that catastrophic weather events are expensive, but rain? At Risk Management Monitor, Jared Wade looks at the the high economic costs of routine weather events. And on the topic of everyday-weather-related risks, we point you to our recent post here at Workers Comp Insider on lightning and lightning strike survivors in what we call "the one in a million club you don't want to join."

Businesses & cyber exposure
At Terms + Conditions, Claire Wilkinson posts about the recent spate of cyber attacks, highlighting the exposure that many businesses face. (And we would note that you don't have to be a bank or financial institution to have exposure. Note this recent item on how employers are vulnerable to a security breach by their own employees' ignorance of phishing scams.)

Data risks are here to stay. At DePaolo's Work Comp World , the topic is the convenience and risk of electronic records. He notes that the real real issue is the ease by which sensitive information may be obtained in large quantities, then analyzed and/or utilized for malicious purposes, and underscores the above point that employees rather than hackers likely constitute the biggest risk.

Healthcare related matters
How did one hospital address the increasing risk that nursing home patients will be transferred to a hospital for their end of life care? Jason Shafrin of The Healthcare Economist explores the issue in his post about maximizing utility for end-of-life care.

David Williams of Health Business Blog demonstrates the risk of being an early adapter of online services in his post about the disappearance of Google Health. He also offers a case study in physician risk in a post dissecting a medical malpractice defense related to a paraesophageal hiatal hernia repair and Nissen Fundoplication procedures.

Does providing user-friendly, patient-centric, clear, concise and objective information about the risks, benefits and alternatives of various treatment options enable consumers to choose wisely and forgo risky, dubious and expensive options. Jaan Sidorov posts about Health Advocacy Groups, Evidence-Based Medicine & Shared Decision Making at Disease Management Care Blog .

Safe retirement planning
Variable annuities are often promoted as a risk-free way to receive consistent retirement income. Kevin Mulligan of Retirement Planning Blog looks at the truth of the matter in his post on the risk of variable annuities.

If you plan to retire before Medicare kicks in, what are your healthcare coverage options? Free Money Finance looks at various ways to get retiree health insurance before the age of 65.

Assorted terrifying perils
For our final entry, Consumer Insurance Blog poses the most important question of the day: Are you ready for the Zombie Apocalypse? Find out before it's too late.

That concludes this week's edition - thanks to all submitters!

The next issue of Cavalcade of Risk is scheduled for July 13 at the Notwithstanding Blog - see you there!

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June 28, 2011

 

In December of 2010, OSHA introduced stronger worker safeguards to prevent falls in residential construction. Under the prior directive, some employers were able to bypass fall protection requirements. The new standards for residential construction were scheduled to go into effect on June 15, but earlier this month, OSHA announced a three-month phase in to allow employers time to gear up to meet compliance requirements. During the phase in, however, employers must be fully compliant with the old directive.

OSHA estimates that 1.6 million Americans are employed in the construction industry, half of which work in residential construction. Each year, roughly 38,000 construction injuries are reported. Fatalities from falls are the number one cause of death in construction, with an average of 40 workers killed each year as a result of falls from residential roofs. These are preventable deaths.

In April, the U.S. Court of Appeals for the Seventh Circuit rejected a challenge to OSHA's directive by the National Roofing Contractors Association. The trade association was seeking to maintain a provision in an earlier directive that allowed certain residential construction employers to bypass some fall protection requirements. "With the issuance of the new directive, all residential construction employers must comply with 29 Code of Federal Regulations 1926.501(b)(13). Where residential builders can demonstrate that traditional fall protection is not feasible, 29 CFR 1926.501(b)(13) still allows for alternative means of providing protection."

OSHA says that the new directive interprets "residential construction" as construction work that satisfies both of the following elements:


  • The end-use of the structure being built must be as a home, i.e., a dwelling.

  • The structure being built must be constructed using traditional wood frame construction materials and methods. The limited use of structural steel in a predominantly wood-framed home, such as a steel I-beam to help support wood framing, does not disqualify a structure from being considered residential construction.

OSHA has provided a site that offers resources and training materials about the new directive: Residential Fall Protection.

Additional materials can be found at OSHA's OSHA's Fall Protection - Construction page.

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June 23, 2011

 

Tinker Ready posts Health Wonk Review: Hockey, hoodlums and hot rod angels at Boston Health News

There's a lot of good reading in this issue - check it out!

Health Wonkery on Twitter
If you just can't wait a few weeks to get the next update of HWR, here are links to some of the HWR bloggers who are active on Twitter:


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June 21, 2011

 

We posted earlier this week on draft guidelines for pain management issued by the Massachusetts Department of Industrial Accidents. While we found much to like in the draft, our colleague Peter Rousmaniere, proprietor of his own blog on immigration issues, finds that the guidelines leave much to be desired. He views them as somewhat of a mincing mini-step in an area where rather big strides are needed.

Here are his thoughts on ways to make pain guidelines more effective:

Workers Comp Insider alerted us on Monday to the publication of draft chronic pain guidelines by Massachusetts DIA.

Medical treatment guidelines are helpful where clinicians, payers and courts desire an authoritative third party to say if and when a treatment is appropriate. But the value of guidelines really strikes home not only in the details but in how they pick their topics. Only so much can be covered proficiently. Guidelines need to focus on pressing matters of protecting lives and husbanding scarce resources. Then even the non-clinician in workers comp can say, "I may not understand all the medical details, but I know that these guidelines speak to my top concerns, and I will respect them and promote them accordingly."

Perhaps because workers comp chronic pain treatment guidelines tend to avoid some of the most pressing issues for claims payers, they are not as useful as they could be. Perhaps also because claims payers feel free to ignore them, which they regularly do, we don't see a visible, sustained effort within the claims payer community to improve the management of chronic pain cases.

Something for the Pain
One thing the guidelines have done laudably is to alert their readers to the very important patient safety issue when opioids are prescribed. This is very important: claims payers usually don't require periodic drug tests for injured workers who have been prescribed opiates and they rarely are trained to respond when a test shows that the patient's urine has no trace of the prescribed drug.

On balance, the Massachusetts guidelines, like other chronic pain guidelines used in the workers compensation community, are rather narrowly focused to the point where their usefulness is compromised. These various guidelines focus on non-surgical treatment of patients after they reach the stage at which they can be called chronic pain cases, and before they become extended, multi-year dependents on pain medication.The proposed guidelines devote just a few summary paragraphs to a challenge of the highest importance to claims payers: knowing the specific steps physicians can take to help their extended treatment patients improve their pain experience and function.

Predicting Pain
None of the current guidelines invest any time in describing the quite rich and fertile topic of chronic pain prevention among newly injured workers. Prediction and prevention are areas in which only a few occupational medicine doctors and nurses have achieved proficiency. Claims payers should focus on the need to identify chronic pain risk and encourage doctors to intervene as early as possible, when chronic pain risk, having been identified, can be addressed before the downward cycle begins. Unfortunately, you won't learn about these best practices in these or in other state-promulgated guidelines. (I have proposed that chronic pain predictive models, matured through the wisdom of many, be placed in the public domain and inserted in treatment guidelines.)

Why these gaps? I wonder if the claims community has taken the time to communicate its concerns about chronic pain, so that guideline editors might address them? I imagine that they were back at the office, unaware of guidelines being drafted, and deeply involved in the deep stack of files that welcome them every working day.

Let's Talk!
An inconvenient truth for workers comp claims payers is the universal endorsement of counseling intervention. Virtually all the chronic pain guidelines share a high regard for the psychological dimension of non-cancer chronic pain, which surfaces in pain perceptions and beliefs, catastrophizing, poor locus of control, and other traits that can be both measured and altered. The guidelines recommend time-limited cognitive behavioral therapy, the kind used to help you, say, overcome your anxiety about elevators, re-injury, or perpetual pain. The Massachusetts guidelines contain within their relatively thin girth a full-throated endorsement of psychological intervention - and that's a good thing.

Unfortunately, most claims adjusters refuse to recognize the importance of cognitive therapy. They will have none of it and will deny treatment if the word "psychology" is attached to a request for treatment. The adjusters argue that once they allow psychological treatment, the workers comp courts will require them to pay for a lifetime of counseling intervention. I've heard this argument a lot. I wonder if the claims community and treatment guideline editors have ever had an extended discussion about psychological services and how to frame the issue to be most useful in a workers comp setting.

While the proposed pain guidelines leave a lot to be desired, I believe that an effective strategy for controlling chronic pain risk is within reach. Pain management is an essential element of any cost reduction strategy. If states can begin to draft chronic pain treatment guidelines that are more prescriptive, more specific and more focused on prediction and prevention, we would take a giant step toward bringing the costs of many large comp claims under control.

Submitted by Peter Rousmaniere

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June 21, 2011

 

A restaurant manager taking out the trash in Virginia, a tree trimmer in Ohio and an Alabama school coach sitting inside at a desk are all workers who inadvertently joined a unique club this year: lightning strike survivors. In any given year, the odds of being struck by lightning are about one in a million, but the lifetime odds (over 80 years) are 1 in 10,000. About 90% of all lightning strike victims survive. About 25% of the survivors suffer major medical after effects.

This week is Lightning Strike Awareness Week - and the National Weather Service wants to remind you to be safe. Public awareness campaigns appear to be working because lightning-related fatalities have been trending down in recent years. While there are 55 fatal lightning strikes in an average year, in 2010 there were 29 fatalities, which occurred in 19 states in 2010; in 2009, there were 34 fatalities; in 2008, there were 28 fatalities.

There have been 5 lightning-related fatalities in 2011, one each in LA, MO, MT, NC, PA. Three deaths occurred during agricultural work, one was related to tornado search-and-rescue, and one occurred during golf. While lightning strikes can occur in any month, they spike in the summer months.

When it comes to geographical risks, not all locations are equal - some states are riskier than others. Florida has often been called the "lightning capital of the world," and although NASA scientists have clarified that Rwanda actually holds this dubious title, Florida still holds the North American title. Rounding out to the top five states for lightning-related fatalities, we have Colorado, Texas, Georgia, and North Carolina.

Are lightning strikes compensable under workers comp?
The answer to that question is a clear and resounding "maybe." As with so many issues in workers comp, the devil is in the details: state law, where and when the injury occurred, and the nature of the work involved all are factors that come into play. Injuries related to lightning and other weather-related events fall under the murky area of "acts of God" or "neutral risks," which are generally not considered to be the responsibility or liability of the employer. However, if a worker is exposed to heightened risk due to the nature of their work responsibilities, an injury related to a lightning strike could be compensable.

Often, the burden is on the employee to establish a causal link between their injury and their work or to prove that their job exposed them to increased or heightened risk. Recently, however, the North Carolina Court of Appeals upheld benefits for a framer who suffered injuries related to a lightning strike that occurred while he was at work. The court established that he did not have to provide expert testimony to establish increased risk. "The court concluded that the description of the physical characteristics of the jobsite supported a finding that the framer was at an increased risk of a lightning strike."

Employers certainly can't insulate their workers from "acts of God" but there are steps that employers can take to mitigate risk. It's a good idea to review weather-related hazards with your employees seasonally to raise their awareness about safety best practices both on the job and off. And it is important to take particular care with workers who have outdoor responsibilities or work that might put them at heightened risk. Here are some tools & resources:

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June 20, 2011

 

In the world of workers comp, chronic pain is a major cost driver. When pain persists beyond expected healing times, the prognosis is grim: injured workers suffering from prolonged pain often drift into anxiety and depression and may even become addicted to powerful pain medications. In the downward spiral of relentless pain, it becomes increasingly difficult to separate physical and psychological issues. The prospect of return to work disappears, the injured worker's life disintegrates and the cost of the claim goes through the roof.

The claims adjusters who are responsible for managing chronic pain injuries usually resist any recommendations for psychological counseling; they avoid such interventions because treatment - whether individual or group therapy - cannot and should not be limited to what is "work related." Pain subsumes the worker's entire life. Yet counseling is often an essential part of what is needed: injured workers talking through their many difficulties and sharing their experience with others.

So is it possible to develop a chronic pain program that limits financial exposures, narrows the treatment options and sets reasonable time frames for completing the treatment cycle? And can pain management encompass at least some focused counseling?

A Guide for the Perplexed?
Massachusetts has taken a shot. The state's Department of Industrial Accidents(DIA) Health Care Services Board has issued draft guidelines (PDF) for managing chronic pain. Under the leadership of Dean Hashimoto, who holds both medical and legal degrees, the draft protocol tiptoes through a minefield populated with poppy plants, doctors with prescription pads and long needles, chiropractors, acupuncturists, counselors and biofeed back practitioners - not to mention the ever-present drug salespeople. The draft guidelines could well serve as a Guide for the Perplexed.

Beginning with the caveat that 10 percent of all chronic pain cases will fall outside of the protocol, Hashimoto's task force tries to set parameters for all types of treatment: the number and type of diagnostic and therapeutic injections permissible; the goal-oriented use of mental health counseling, with specified durations (6 to 12 months); "very limited" use of opioid analgesics, with referral to pain specialists, if needed, and including a detailed list of specific actions designed to avoid addiction.

A Work in Progress
The DIA is soliciting comments on these guidelines. Alas, they are unlikely to hear from the relatively small portion of stakeholders who are profiting from the current chaos: the pill-happy doctors, the attorneys who discourage injured workers from returning to work, the physical therapists and chiropractors who believe that treatment, once begun, should go on forever, and the pharma sales folk who encourage use of the most powerful opiates for what is usually short-term pain.

The draft guidelines are comprehensive and reasonable. As the final guidelines will not and cannot have the force of law, they will not eliminate the abuse that currently exists. But if they help motivated treatment practitioners to offer more effective services, and if they open the door to at least some counseling for injured workers, the guidelines will surely save both lives and careers. That in itself will validate the admirable and essential work of Hashimoto's board.

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June 15, 2011

 

Cavalcade of Risk - for the biweekly smorgasbord of risk-related news from the blogosphere, check out the new edition of Cavalcade of Risk hosted at Political Calculations.

The $17 million fraud - not chump change - Most employers and insurers get very heated on the topic of work comp fraud - as well they should. But while keeping an eye on the front door for shoplifting, some thieves are loading up the company safe from the back door. This week, four members of a California doctor mill were indicted in a $17 million workers' comp fraud. This stunning scheme bilked the city of Los Angeles and 19 insurance companies. Joe Wheeler talks more about the fraud and how it exposes a weakness in the system. He rightly notes, "That this relatively small fraud provider ring offering obscure medical procedures could make off with millions of dollars before being caught should make anyone involved in workers' comp benefits take a breath." Note to employers: it's not enough to think your insurer will manage everything - you need to take an active interest in managing and questioning claims, too.

In the line of duty - Louisiana flags are flying at half mast this week for two insurance investigators who were shot to death by an agent last week while investigating fraud. According to Insurance Times, investigators Kim Sledge and Rhett Jeansonne "...had gone to the Ville Platte office of suspended insurance agent John Melvin Lavergne to collect records. Lavergne shot the investigators and then killed himself." Louisiana is now looking into whether fraud investigators should be able to carry guns.

Is the soft market finally hardening? - Joe Paduda talks about recent reports from Towers Perrin and Fitch Ratings pointing to firming work comp premiums. No, really!

Dollars for doctors - ProPublica has been featuring an ongoing series that investigates the financial ties between the medical community and the drug and device industry. You can follow the entire series from the above link. In addition to several feature stories, there were frequent updates in made in May, several of which discuss drug industry ties to medical societies. In October, ProPublica also rolled out a searchable database of physicians who have received drug money, gleaned from public disclosures of seven large pharma companies. For a sampling, here is Massachusetts.

Ferreting out the more obscure news... - Among all the informative and useful information he posts over at Comp Time, Roberto Ceniceros also manages to ferret out some of the quirkier workers comp stories. This week, he posted about Palin's emails and the workers comp connection and last week, it was porn industry hazmat suits.

Confined space videos - WorkSafeBC produces a lot of great safety resources. Recently, a three-part video series on confined space came to our attention - worth checking them out. Part 1: Safe Yesterday, Deadly Today; Part 2: Test to Live; and Part 3: Rescue: Just Calling 911 Doesn't Cut It.

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June 13, 2011

 

DeWayne Sutton worked for Tomco Machining in Dayton, Ohio. When he hurt his back while dismantling some equipment, he followed "best practices" and reported the injury immediately to company owner Jim Tomasiak. The boss pulled a "Trump" - deviating 180 degrees from "best practices" by firing Sutton immediately. No reason was given for the termination. As you would expect, Sutton was able to collect comp benefits (termination is no bar to eligibility), but could he also sue for wrongful termination? In other words, was the termination retaliation for reporting the claim?

Under the Ohio statute, employers are prohibited from firing, demoting or taking punitive action against an employee who files a workers comp claim. The question at issue is one of timing: the claim had been reported to the employer, but not yet filed with the insurer. So did Tomasiak violate the law by firing Sutton in the interval between the injury and the report to the insurer?

Begging to Differ
In a sharply divided opinion (4-3), the Supreme Court of Ohio found in Sutton's favor, sending the case back to the lower court for reconsideration. Chief Justice Maureen O'Connor, writing for the majority, notes:

We find that the General Assembly did not intend to leave a gap in protection during which time employers are permitted to retaliate against employees who might pursue workers' compensation benefits.

The alternative interpretation - that the legislature intentionally left the gap - is at odds with the basic purpose of the anti-retaliation provision, which is "to enable employees to freely exercise their rights without fear of retribution from their employers."

The court minority noted that Sutton was able to collect comp benefits - kind of "no harm, no foul." Then, as Justice Terrence O'Donnell notes:

The majority has today expanded the public policy behind the provisions of (state law) to apply to those persons discharged before filing, instituting or pursuing a workers' compensation claim. This allowance is a legislative prerogative, and in my view, we should follow the law as written and defer to the General Assembly, instead of stretching the extent of protection to fit situations not addressed by the statute.

This is familiar territory in the world of law: liberal interpretation (the majority) versus strict construction (the minority). One vote determined the outcome.

The Biggest Loser
Business owner Tomasiak comes away with a double whammy: he is liable for the comp claim through the experience rating process; having fired Sutton, he is unable to lower the cost of the claim by bringing Sutton back to work on modified duty. Then he faces a wrongful termination lawsuit, which he is probably going to lose. The timing of his action, along with the absence of any stated rationale, reak of retaliation.

Tomasiak's impulsive response to Sutton's injury violated Rule Number One for employers: if employees are not working out, fire them before they get hurt. Once they are injured, comp laws pretty much assume that any firing would be retaliation. For Tomasiak, just trying to run his machine shop in Dayton, Ohio, this is a tough - and expensive - lesson in best practices.

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June 9, 2011

 

Health Wonk Review - John Irvine & Matthew Holt host a hefty edition of Health Wonk Review over at The Health Care Blog - lots of good health wonkery there!

Illinois work comp reform - After all the sturm und drang in the Illinois reform process, we've had a breakthrough ... a reform bill finally passed on the last day of the legislative session. In a Tale of Persuasion, AP's Zachary Colman takes you step by step through the painful process. And at Managed Care Matters, Joe Paduda offers an excellent rundown of some of the key provisions in the Illinois work comp reform bill.

In other Illinois news, the matter of $10 million in repetitive stress claims filed by Menard County prison guards has taken some new twists. The Illinois house recently passed a bill requiring the release of the related workers' comp test records in compliance with the Freedom of Information Act. A report obtained through the FOIA shows that locking and unlocking prison cells didn't injure the guards.

Missouri's second injury fund woes - Injured workers in Missouri are being left in the lurch, according to a story in stltoday.com. about the state's troubled Second Injury Fund Roberto Ceniceros posts more about Missouri's financially-ill second injury fund.

Mobile risks - Andrew Simpson writes about the increased workers comp exposure as more workers go mobile in Insurane Journal. In the past, the workplace was a clearly defined place and the hours of operation were also clearly defined, but as more and more workers go mobile, things are much less clearly defined - the lines between professional and personal life are blurring. Plus, employers are often supplying the mobile devices to workers, increasing their exposure to claims that occur when off site or off the clock. "Insurance claims professionals say claims made by workers injured while doing things where the relation to their employment is unclear are on the rise and the increasing use of mobile devices is challenging traditional notions of work-related injuries."

Workplace violence factors - The Workplace Violence Blog posts about the prevalence of workplace violence as evidenced by a Society of Human Resource Management survey, and states that "Approximately $55 billion a year is lost to litigation awards, property damage and lost productivity from workplace violence. It is estimated that productivity can drop as much as 50% in the six to eight weeks following a workplace violence incident." The post includes seven common organizational factors that contribute tow workplace violence.

Industry growth - Insurance is one industry that is poised for growth. According to a recent research report issued by IBISWorld, employment in TPAs and and claims adjusting is set to grow 5.7% annually between now and 2016. "Other industries in the IBISWorld top 10 fastest-growing for the next few years include sustainable building material manufacturers, multi-family home builders, used car dealers, remediation and environmental cleanup services."

MRSA facts from the CDC - From the CDC, MRSA and the workplace, including a list of frequently asked questions. Staph infections, including antibiotic resistant MRSA, MRSA skin infections can occur anywhere. However, the CDC notes that some settings have factors that make it easier for MRSA to be transmitted. These factors, referred to as the 5 C's, are as follows: Crowding, frequent skin-to-skin Contact, Compromised skin (i.e., cuts or abrasions), Contaminated items and surfaces, and lack of Cleanliness. Locations where the 5 C's are common include schools, dormitories, military barracks, households, correctional facilities, and daycare centers.

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June 8, 2011

 

As we noted in a blog earlier this year, the number of fatalities in grain bins reached record levels in 2010. There were 51 grain bin accidents last year, up from 38 in 2009 and the most since tracking began in 1978. Twenty-five people died, and five of them were children under age 16. The previous record for grain bin accidents was 42 in 1993. In response, OSHA has developed an explicit program to improve safety in grain bins. In doing so, they have increased the pressure on bin operators to operate safely. The stakes have been raised beyond even the robust fines that OSHA routinely hands out for violations.

As an example of the new program in action, OSHA has cited Lakeland Feed and Supply in Hamilton, Montana, for exposing workers to grain bin machine guarding and fall hazards, along with other safety and health hazards. At this point the fines total $122,500, but this might change after corrective actions and negotiations.

In detailing the serious violations, OSHA paints the picture of a hazard-filled environment that may well reflect the day-to-day operations of many grain bins across the country:

...Platforms missing guarding; no landing platform on a ladder; unguarded shafts, pulleys, chains and sprockets; the lack of an emergency evacuation plan and no fire alarm system; employees walking on grain in the bins; high levels of potentially explosive dust; the lack of a housekeeping program; not locking out augers when employees enter the bins; exposed live electrical lines; improper electrical wiring for high dust areas; and employees not trained on the hazards and chemicals associated with their work.

Not Exactly Junk Mail
As part of the grain bin initiative, OSHA has written to operators across the country, detailing specific steps to be taken to prevent accidents when workers enter storage bins. These steps include:

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 can act like 'quicksand' and 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.
Prohibit walking down grain and similar practices where an employee walks on grain to make it flow.
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.

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. 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.

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.

Ensure a permit is issued for each instance a worker enters a bin or silo, certifying that the precautions listed above have been implemented.

On Notice
Bin operators are on notice that the above safety procedures must be in place. By providing this unambiguous and highly detailed list, OSHA is saying, in effect, "these are the standards. Nothing less is acceptable."

Why does this matter? Attorneys for workers injured in storage bins will review the details of any and all accidents. Where the above standards have not been met - and they are not easy to meet! - these attorneys may aggressively pursue increased sanctions against employers. In many states, injuries due to the "wilful intent" of the employer result in higher indemnity payments. In the event of serious injuries or fatalities, attorneys may attempt to pierce the "exclusive remedy" shield of workers comp and secure substantially higher benefits due to employer "negligence".

In other words, OSHA may have raised the stakes for grain bin operators above the traditional "no fault" level. While there is nothing radically new in the required safety procedures, the fact that OSHA has presented a definitive list means that employers are accountable for each and every one of these procedures. As is customary, violations will result in heavy fines. But in addition to the fines, bin operators may be at risk for exposures well beyond the "usual and customary" comp benefits.

The working conditions in grain bins are extremely challenging. There are critical time pressures, complex mechanical issues, weather concerns and at times, a shortage of trained labor. Teenagers -all too frequently the victims in bin accidents - may or may not take safety precautions seriously. If life on the farm is difficult, life in the bins may be even harder. When it comes to safety and the protection of the people doing the work, OSHA's sympathies are with the workers. In this environment, when serious accidents occur, employers will be judged by a single criteria: did they follow the OSHA book on grain bin safety? If not, bin operators are likely to pay, pay and pay again.

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June 7, 2011

 

Every year as summer approaches and kids join the work force, many for the first time, the National Consumer League (NCL) offers its updated list of the 5 most dangerous jobs for teens, along with excellent advice for parents and teens on keeping the work experience safe. In 2011, their picks for the most dangerous teen jobs are:

  • Agriculture: Harvesting Crops and Using Machinery
  • Construction and Height Work
  • Traveling Youth Sales Crews
  • Outside Helper: Landscaping, Groundskeeping, and Lawn Service
  • Driver/Operator: Forklifts, Tractors, and ATV's

The NCL notes that the five worst jobs for teens are not ranked in order. They earn their place on the list because they all share higher than normal injury or fatality rates. If you are an employer who hires teens, a parent with working age teens, or a teen workers, please take the time to look at the excellent report that the NCL has compiled.

We've compiled some additional resources for teen safety. While many are appropriate for all groups, we've sorted them by primary relevance for employers, teens, and parents.

Resources for employers
Employers need to take particular care with young workers. It's in the teens best interest and it is in every employer's best interests as well: According to HR Daily Advisor, "A recent DOL decision assessed penalties of over $277 thousand against movie theaters for employing youths in dangerous jobs and for working them illegally long hours. Have summer hiring plans? Better review youth hiring rules." The site offers two tip sheets for employers:
Summer Hiring? Watch for Tricky Child Labor Laws and Summer Jobs for Kids--Many Restrictions on Duties and Hours

Interstate Labor Standards Association - an organization of state labor department officials. Find your state contacts and get information on Child Labor Laws.

5 Leadership Lessons: What You Need to Know about Developing Teen Leadership

OSHA: Young Workers: Employers

NIOSH: Young Worker Safety & Health

Washington's Department of Labor & Industries: Youth Job Safety Resources

National Children's Center for Rural and Agricultural Health and Safety

Iowa: Iowa Safe Youth @ Work

DOL: Yout Rules: for Employers


For teen workers
American Society of Safety Engineers: Target Teen Safety Tool Kit, including the The ASSE Interactive Zombie Game

OSHA: Young Workers - site includes a variety of safety videos for teen workers, as well as resources

OSHA Young Worker Summer Job Safety
-- Construction
--Farmwork
--Landscaping
--Lifeguarding
--Parks & Recreation
--Restaurants
--Safe Driving

DOL: Youth Rules: for Teens

Farm Safety 4 Just Kids

California: Young Workers

Canada: Passport to Safety

CCOHS: Young Workers Zone!

CDC: Are You a Working Teen? What you should know about safety and health on the job

CDC: ┬┐Eres un Joven que Trabaja? Cosas que Debes Saber sobre la Seguridad y la Salud en el Trabajo


Parents
KidsHealth: Making Sure Your Teen's Job is Safe

DOL: Youth Rules: for Parents

OSHA: Young Workers - Parents

DOL: Youth & Labor

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June 6, 2011

 

Darrell Miller worked for the Illinois Department of Transportation (IDOT) as part of a crew that maintained bridges. He worked without any problems for five years, but then encountered some difficulty with the job related to a fear of heights. In the most dramatic event, he and another crew member had to "go over the edge" of a bridge over the Mississippi River to change the navigation light bulbs directly above the river. The court describes the incident:

Miller had to climb down a ladder on the side of the bridge to reach the station that held the light fixtures. Some of the stations would have required him to stand on a bridge beam while wearing a lifeline. When Miller attempted to change a bulb that would have required him to stand on a bridge beam, he was unable to complete the task. He suffered a panic attack and was taken by ambulance to a hospital. That was the first, last, and only time Miller was unable to complete an assigned task because of his fear of heights.

Subsequent to treatment for this panic attack, Miller was diagnosed with acrophobia, a fear of heights. Following a series of incidents where his requests for accommodation were rejected, he was fired.

Given the bare outline of what took place, it would appear that the employer was within its rights to terminate Miller. He could not perform some "essential" job functions. In fact, a lower court dismissed Miller's claim of discrimination, granting summary judgment for the IDOT. However, the 7th Federal District Court took the time to examine not just Darrell Miller, but the crew of which he was part. Their thoughtful and detailed ruling, from which we quote at some length, leads to an interesting and perhaps counter-intuitive conclusion.

The Devil in the Details
The Court noted that not all of the tasks associated with the job involved heights:

As a highway maintainer assigned to a bridge crew, Miller was responsible for a variety of tasks, many of which could be performed from the ground. Those tasks included operating and repairing maintenance vehicles and equipment, including trucks, pavement marking equipment, tractors, mowers, snow plows, and jack hammers; maintaining large culverts, abutments, guardrails, and drainage installations; spreading salt, sand, gravel, and asphalt; directing traffic during maintenance operations; cutting grass, weeds, and brush; repairing signs and digging post holes; cleaning and maintaining the crew's headquarters; disposing of trash and highway debris; and record-keeping.

In addition, Miller was able to perform most, if not all, of the job:

From the outset of his employment, Miller had occasional difficulty working from heights, particularly when he worked in an unsecured environment. When he began work he had not been formally diagnosed with acrophobia, but Miller informed IDOT and the lead worker of his bridge team, Steve Maurizio, that he had a fear of some heights and that there were a few tasks that he would not be able to do. Specifically, he informed Maurizio that he would not be able to "walk a bridge beam." In spite of his fear, Miller was able to perform work in an elevated, hydraulically lifted "snooper bucket" at heights of up to 80 feet, and he was able to crawl on the arch of a bridge on a catwalk. He estimated that his fear would be triggered and he would have problems with less than three percent of his job description, but even then he was able to complete his assigned tasks on all but one occasion.

Finally, the court observed that there were a variety of "reasonable accommodations" afforded different members of the crew:

Until early 2006, IDOT informally accommodated Miller by allowing other members of his team to handle those tasks for him, just as other team members' conditions or limitations were accommodated. For example, Maurizio was unable to weld. Another co-worker refused to ride in the snooper bucket, was not required to climb the arches of an interstate bridge linking Illinois to Kentucky, was unable to spray bridges because of his allergies, was not required to mow the yard, and was not required to rake patching debris. Other crew members would swap assignments as needed to enable the crew to complete those tasks. In short, the evidence would allow a jury to find that the team worked effectively as a team, taking advantage of each member's abilities and accommodating each member's limitations.

Essential Functions, Reasonable Accommodations
Then the court examined the crux of the case: was Miller able to perform the essential functions of the job, with or without accommodation:

We are confident that some high work in exposed or extreme positions is an essential function of the bridge crew as a whole. IDOT would have us take that point a step further to find that any individual assigned to the bridge crew had to be able to perform each and every task of the entire bridge crew. That would require finding that every task required of the bridge crew as a whole was an essential task of each bridge crew member. On this record, we cannot make that finding as a matter of law. Plaintiff has come forward with substantial evidence showing that his bridge crew did not actually work that way. The bridge crew worked as a team. No one person was assigned permanently to any one task. Although individual members of the team did various tasks as needed, there was no requirement that the bridge crew members rotate from task to task in an organized, routine fashion, such that it was necessary for any one member of the bridge crew to be able to do every task of the bridge crew as a whole.

In a footnote, the court tackles the unlikely possibility that an entire crew might suffer from acrophobia:

We recognize that if most or all members of a bridge crew had acrophobia like Miller's, the crew could not perform all of its essential duties. If and when such an extreme case might arise, we are confident that the law would accommodate an employer's need to get its work done. In this case, however, the evidence showing that plaintiff had actually been accommodated as he requested shows that the employer is not entitled to summary judgment on this theory.

The 7th District Court's reasoning is at once both compelling and intriguing. Miller, as a member of the crew, was able to do enough of the job to allow the team to proceed unhindered and unimpeded. They accommodated Miller - and his co-workers - routinely in the course of determining which crew members were assigned to specific tasks. Reasonable accommodation for everyone was an ongoing part of the job. Thus, when confronted with a diagnosis that appears to preclude bridge work, the court concluded that accommodating Miller was not only reasonable, but that IDOT had been doing it all along.

The purpose of the ADA is to welcome and sustain people with disabilities in the workplace. Conventional thinking all too often concludes that people who appear to be disabled, or who actually are disabled, cannot do the job. Can a person with a fear of heights work on bridges? In these specific circumstances, yes, he can.

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June 2, 2011

 

Governor Rick Scott has issued Executive Order Number 11-58 compelling all state agencies under his control to implement a comprehensive drug testing program: all job applicants must undergo pre-employment testing. All current employees - regardless of what they do - must be randomly tested every quarter. Because drugs stay in the body for hours and even days after they are used, the governor is attempting to control every waking minute of the state workforce. Not even commercial drivers are subject to such stringent monitoring.

There is no question that drug testing can play an important role in a comprehensive safety program. For workers whose jobs put themselves or others at risk, random testing can be smart policy. For employers struggling with a rampant drug culture, drug testing often makes sense. [I remember discussing this issue at a workers comp seminar some years ago. The owner of a roofing company said, "I could never implement drug testing. Half my guys would fail!" (I made an immediate note to alert the underwriting team.)]

Even as we acknowledge that drug testing is appropriate under certain circumstances, we must recognize its limitations. Testing science itself, while significantly more effective than it was a decade ago, is not 100 percent reliable. The producing and subsequent custody of urine samples is at best embarrassing and at worst an invasion of privacy. Drug testing does send a message, but there are times and circumstances - such as now in Florida state government - when this message is demoralizing and counter-productive.

Within weeks of the issuance of the executive order, the ACLU sued to put a stop to the program.

Ideology and Policy
The testing of all employees, without even considering job function or safety exposure, crosses the line between best practice and rigid ideology. This policy does not stem from "business necessity" nor does it take into account individual freedom and the right to privacy. Using the governor's logic, you could argue that everyone in America should, for one reason or another, be tested for illegal drugs. This is bad policy and, to put it bluntly, unAmerican. Here's hoping the courts toss out this executive order and restore some light to the Sunshine state.


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June 1, 2011

 

Happy birthday, Cavalcade of Risk! - Russell Chatswood hosts the Fifth Anniversary Edition of Cavalcade of Risk - check it out. Russell is a New Zealander and among the Cavalcade's posts is an update on the Christchurch earthquake claims from a report issued by New Zealand's Investment Savings and Insurance Association (ISI).

New to our blogroll - DePaolo's Work Comp Blog - by industry veteran Dave DePaolo, founder and CEO of WorkCompCentral.

When the bears win - In a post at Comp Time today, Roberto Ceniceros reports on a Utah appeals court ruling that upheld benefits for a light-duty employee who was fired for sending porno to colleagues via email. In citing the ruling, Ceniceros quotes The Stranger in the The Big Lebowski who said, "Sometimes you eat the bear, and sometimes, well, he eats you." That is our nomination for our motto of the week.

Zombie style at the CDC - Have trouble getting your message heard by employers and employees? Maybe you need a new, attention-getting spin. Consumer Insurance Blog posts about how the CDC highlighted the importance of disaster and emergency planning by repackaging it as Preparedness 101: Zombie Apocalypse. With this packaging, they went from a few thousand page views for normal posts to more than 1.2 million over the course a few days.

Cell phones & brain cancer - In reaction to the recent World Health Organization warnings about cancer and cell phones, Merril Goozner posts about the role that conflicted science plays. Also see Gary Schwitzer's post: News release precedes release of evidence on new cell phone/brain cancer warning.

ADA Amendments Act - The final regulations issued by the EEOC to implement the ADA Amendments Act of 2008 became effective on May 24. The new regulations feature 9 "Rules of Construction" to help employers determine whether an impairment substantially limits a major life activity. HR Daily Advisor offers a pair of posts to help employers plan for the changes: ADAAA Effective Tomorrow--Ready for Its 9 Rules of Construction? and ADAAA Effective Today--Steps Employers Should Take.

Cool tool - Objects falling from a height are a serious safety hazard - that's why anyone working at a height should secure their tools. Tethers are a good way to do this. Hammerhead Industries offers a one page reference sheet: Tool Tether Guide (PDF)

Bus safety - At Risk Management Monitor, Jared Wade brings the news of another fatal bus crash which claimed the lives of 4 and injured more than 50. Driver fatigue is cited as the cause of the crash. Wade cites this as another instance highlighting the industry's lack of oversight, and posts about other recent coverage on bus safety. He notes that there have been two stalled-in-Congress bills that have attempted to impose greater regulations: the Motor Coach Enhanced Safety Act and the Bus Uniform Standards and Enhanced Safety (BUSES) Act.

OSHA fines - from The Safety Blog, the Top 10 fines for construction companies. "In total in the 2010 fiscal year OSHA inspected 16,473 small construction companies and handed out 50,630 citations. These citations cost employers more than $46 million or an average of about $900 a citation."

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