August 2011 Archives

August 31, 2011

 

We stumbled on a photo feature of 11 Cringe-Worthy OSHA violations - and as advertised, the photos are mind-boggling horrific safety violations. Darwin awards waiting to happen. (In a similar vein, the Naval Safety Center Photo of the Week has been logging such violations for a long time now - 445 weeks, to be precise. )

We have mixed reactions to these photos. This genre of "people doing stupid things" photos and videos are immensely popular on the web - whether the stupid acts occur in the workplace or elsewhere. It's the age-old slipping on a banana peel gag. Sometimes, their popularity can be attributed to simple schadenfreude. Sometimes, watching people do stupid things makes the viewer feel superior in a "ha, at least I am not that stupid" way. And sometimes, laughter is rooted in a whistling-by-the-graveyard coping mechanism. We see this frequently in police, firefighters, and other emergency workers, whose job-related black humor might be shocking to people outside the industry. We see this same type of black humor in a lot of safety professionals, too.

But while we're as fascinated as the next person by these type of photos, we admit to being a bit humor challenged. Perhaps we've just seen the flesh and blood results of workplace injuries a little too often to find photos of this nature particularly funny. Astonishing? Yes. Cringe-worthy? Yes. Instructive? Often. Fascinating? Frequently. But rarely do we find them ha ha funny. Where some see idiots, we see untrained or inexperienced workers and horrible calamities waiting to happen.

The poster says she assumes that most of these violations are taking place in countries where OSHA doesn't have jurisdiction. We don't have any way of knowing where these photos actually did take place, but while that seems a fair assumption, we would caution about too much national superiority. For all we know, these workers could be offshore employees of U.S. firms. We are pretty sure that if U.S. workers were left to fend for themselves when it comes to workplace safety, we'd see some comparably "humorous " pics. Plus, never underestimate some of the safety horrors that go on right here in OSHA-land. Here's a few examples:

Exhibit A spotted in Indiana by DemolitionX at BuildCentral.

Houston Safety offers a photo of scaffolding violations in Galveston.

Blogger Patcick McDonough points out a safety violation in Chicago.


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August 30, 2011

 

We first encountered Montana workers comp judge James Jeremiah Shea last year, when he ruled that Brock Hopkins, a pot-smoking handyman, was eligible for workers comp after being mauled by a bear at Great Bear Adventures. In his ruling, Judge Shea managed to invoke the movie, Harold and Kumar Go to White Castle, to wit:

"It is not as if this attack occurred when Hopkins inexplicably wandered into the grizzly pen while searching for the nearest White Castle. Hopkins was attacked while performing a job Kilpatrick had paid him to do - feeding grizzly bears."

In a more recent case, Judge Shea was confronted with the claim of Bruce Martin, a carpenter seeking treatment for what he insisted was a work-related back problem. While there is no reason to believe that Martin was partaking of Brock Hopkins's favorite recreational drug, he did manage to present a narrative that consistently conflicted with the perceptions of virtually everyone else involved: his employer, Jesse Chase, co-worker Barry Hollander, and claims adjuster Michele Fairclough.

Martin claimed he injured his back while stripping the plastic protective barrier off of metal siding - a relatively light-duty task. But in walking off the job that morning, he stated to his boss that his sciatica was acting up and that it was not work related. Only after going to an Urgent Care clinic did he claim that the injury happened at work. Why? We can assume that he wanted his employer to pick up the tab through workers comp.

My Aching Back
Martin's history of back problems began in the early 1990s, following a motor vehicle accident. He treated sporadically with Dr. Aumann, a chiropractor. Dr. Aumann, sympathetic to his long-term patient, thought that "on a more- probable-than-not" basis that Martin's injury was the result of the work accident he described. Unfortunately for Martin, no one else bought his story, even as the story itself changed over time.

Judge Shea wrote:

Dr. Aumann identified objective medical findings to support Martin's claim of lumbar spine problems. However, Martin has not established that this injury occurred because of a specific event on a single day or during a single shift. I did not find Martin's testimony credible. Neither Hollander, who was working alongside Martin, nor Martin's employer Chase could corroborate Martin's account of injuring his back on June 29, 2010...

It is not altogether impossible to feel a little sympathy for Martin: he has a real back problem. He is experiencing legitimate pain. He has difficulty performing physical work and is not trained to do anything else. He desperately needs income. Martin is like a lot of other American workers in these troubled times, living day-to-day on the edge of disaster. While we can understand why he would try to stretch the facts to fit the workers comp mold, we acknowledge that he was wrong to do it. As Judge Shea concluded, Martin was not injured as the result of an industrial accident. Given that definitive ruling, Martin, bad back and all, is simply on his own.

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August 24, 2011

 

Nina Kallen hosts this week's Cavalcade of Risk at Insurance Coverage Law in Massachusetts - check it out.

Other noteworthy new briefs:
Business Insurance has had a complete online overhaul - here's a guide to the new BusinessInsurance.com

HealthLawProf Blog covers the intersection of pharmaceuticals and online media in a pair of recent posts worth checking out: Social Media and Drug Promotion and Do No Evil: Googling Canadian Drug Imports.

Roberto Ceniceros: Top 20 largest workers comp insurers

Dave DePaolo: The 5 Stages of Work Comp Death

Jon Gelman: What to Do During an Earthquake

Joe Paduda: Work comp claim reserves - not good, but not too bad either

Claims Journal: "Fraud Dog" to Bring Insurance Fraud Cases to Reality TV

MEMIC Safety Blog: The Bite Stuff: Dogs not always a worker's best friend

Safety Daily Advisor: Are Your Exit Routes OSHA Compliant?

New York Times, Room for Debate: Could Farms Survive Without Illegal Labor?

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August 23, 2011

 

In this summer of weather extremes, workers comp is celebrating its 100th birthday in America. The weather forecast - along with the prognosis for workers comp - probably sound familiar: periodic storms, heavy rain, damaging winds. The National Council on Compensation Insurance (NCCI) has issued its "state of the line" report for workers comp: 2010 was a tough year and the outlook for 2011 carries a severe weather warning.

The key indicator for insurance health is the combined ratio: add up the accumulated losses and the expenses, subtract investment income and hope you end up somewhere around 1.0. The combined ratio for 2010 went up to 1.15, five points above the previous year. Despite improved returns on investment (otherwise known as the "jobless" recovery), pretax losses for the industry averaged one percent - the first such loss since 2001.

Insurers are suffering from a convergence of negative factors: poor underwriting results, a drop in premiums (due to reduced payrolls), and an increase in claims frequency, which is perhaps the most alarming trend of all. For a number of years the increase in severity (the average size of claims) has been balanced by a decrease in frequency. If frequency continues to trend upward, the warning flags for severe trouble will be flapping in a very stiff breeze.

Politics as Usual
Further complicating matters for insurers, state level politicians are single minded in their effort to keep the costs of comp insurance as low as possible. As part of their relentless struggle to stay competitive, state regulators are reluctant to increase rates. NCCI has applied for rate increases in 14 of the states which they directly manage, up from eight in the previous cycle. Any move toward higher rates may signal at least the beginning of the long-awaited end of the soft market that has endured for over a decade.

Finally, there has been a lot of turnover among the state officials who regulate workers comp: there are 24 new insurance commissioners across the country. As NCCI puts it:

The number of newly elected and appointed officials means that the industry will face a challenge in terms of education and information for next few months at least.

Time to polish up the Gucci's? The insurance industry hardly needs to crank up the lobbying apparatus - it's always operating full tilt.

Candles in the Wind
As workers comp turns 100, we note that longevity itself is not cause for celebration. Just as it's no fun to grow old, it's not much fun trying to make money in workers comp these days. Despite a decade of tightened eligibility requirements and cuts (some draconian) in benefits, we have seen a continued deterioration in the financial health of comp carriers. Perhaps it's my imagination, but I seem to detect a tone of anxiety as stakeholders gather to sing "Happy Birthday" to Workers Comp in America. The flames of the candles falter in the midst of a raging storm.

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August 19, 2011

 

Sometimes, system redress seems painfully inadequate.

Such is the case with the $7,000 OSHA penalty recently imposed for inadequate safeguards related to the case of murdered mental-health worker Stephanie Moulton. $7,000 is the maximum fine available for "a serious violation of the agency's "general duty clause" for failing to provide a workplace free from recognized hazards likely to cause serious injury or death." It's not just that the dollar amount seems paltry in light of the loss of life - it simply doesn't seem substantial enough to have any deterrent value.

And in truth, while the OSHA citation points to the employer, one could make the case that the employer is also a victim of an economic squeeze play, which has resulted in inadequate staffing and safety controls. State budget cutbacks worry mental health workers - a scenario that is no doubt playing out throughout the country - in mental health budgets, in public safety budgets, and in regulatory enforcement, just to name a few areas that affect the health and safety of workers -- and of the public.

Stephanie Moulton was working alone at one of the North Suffolk Mental Health Association's group homes in Revere when she was brutally murdered by a patient with a violent record. A week later and just miles away at the Lowell Transitional Living Center, a shelter for the homeless, a worker named Jose Roldan was also killed by person who had slipped through the cracks in the mental health system. Both these murders were discussed in-depth in stories that appeared in The New York Times: A Schizophrenic, a Slain Worker, Troubling Questions recounted Moulton's death, and Teenager's Path and a Killing Put Spotlight on Mental Care discussed the case related to Roldan's death.

An investigation into Moulton's death resulted in the issuance of a report in June: Report of the Massachusetts Department of Mental Health Task Force on Staff and Client Safety. The report found that:

  • Years of budget cuts have negatively impacted service delivery and safety issues in the following areas:
    --Inadequate numbers of, and inadequate pay for, direct-care staff
    --Inadequate numbers of clinical staff with relevant training and experience
    --Deficiencies in the overall number of acute and intermediate hospital beds and community-based services and beds
    --Decrease in the role of psychiatrists and other highly-trained professionals in the care and treatment of individuals with the most serious mental illnesses
    --Requiring some staff to work under conditions that do not provide for adequate safety
  • There is an absence of system-wide use of a well-designed risk assessment process
  • There is lack of clarity in policies and procedures for incorporating risk variables into Individualized Action Plans
  • There is lack of sufficient access to and sharing of critical safety information
  • There is lack of adequate coordination of care across different components of the service system

OSHA's citation includes recommendations the employer could take to address the workplace violence issue:

  • Creating a stand-alone written workplace violence prevention program that includes implementation of workplace controls and prevention strategies; hazard/threat/security assessments; a workplace violence policy statement outlining and emphasizing a zero tolerance policy for workplace violence; incident reporting and investigation; and periodic review of the prevention program.
  • Establishing a system to identify clients with assaultive behavior problems and train all staff to understand the system used.
  • Putting in place procedures to communicate any incident to staff so that employees without access to client charts are aware of previous violent or aggressive acts by a client.
  • Identifying the behavioral history of new or transferred clients, including conducting criminal and sexual offender records checks.
  • Conducting more extensive training so that all employees are aware of the facility's workplace violence policy and where information about it can be found, including training employees to clearly state to clients that violence is not permitted or tolerated; how to respond during a workplace violence incident; recognize when individuals are exhibiting aggressive behavior and how to de-escalate the behavior; and identify risk factors that can cause or contribute to assault.
  • Installing and positioning panic buttons, walkie-talkies, recording security camera systems and smart phone GPS applications to better monitor employee safety and increase staff communication and support; implement and maintain a buddy system on at least the second and third shifts, based on a complete hazard assessment.

Mouton's family is rallying for enactment of Stephanie's law, which would mandate panic buttons in mental health facilities. A good start and one among recommendations issued by OSHA in their Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers. But such measures may be woefully inadequate in the face of reduced staffing. In an ongoing climate of budget cuts and a strong public appetite for decreased regulatory controls, mental health workers are likely to continue being at greater risk -- along with public safety workers such as police, firefighters, and healthcare workers, who also face dire staffing shortages.

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August 16, 2011

 

Two Oklahoma teen athletes had their lives changed forever after becoming entangled in a grain bin auger while working on a farm. News reports state that 17 year old Bryce Gannon was working at a grain bin elevator when his leg was caught in the auger. In an all-too-familiar attempted rescue scenario, his co-worker 17 year-old Tyler Zander went to his aid and also became entangled. Emergency rescue personnel had to cut apart the 12-inch metal auger in order to free the young men.

Grain bin auger accidents are brutal and severe events in which body parts become entwined in spinning equipment. They are somewhat similar in nature to power take off (PTO) shaft accidents which claimed the life of baseball great Mark Fidrych. We posted about his death and the story of PTO injury survivor Kristi Ruth who was injured when her arm was pulled into a posthole digger's PTO while working on her family's farm.

A case report of a farm worker fatality from a grain bin auger entanglement offers more (gruesome) detail about how such injuries occur, along with these safety recommendations.

  • Ensure that workers do not enter grain bins while the unloading mechanism is operating
  • Establish lockout/tagout procedures and ensure workers follow them any time a worker enters a grain bin or other confined space
  • Provide employees with proper training in lockout/tagout procedures and procedures for safe entry into confined spaces, such as grain bins
  • Consider utilizing grain bin and auger designs that can help ensure safety for workers such as self-unloading or bottom-unloading bins

Last year at this time, we were reporting the suffocation deaths of two teen farmworkers in a Michigan grain bin accident. 2010 was a record year for grain bin fatalities. prompting OSHA to issue fines and to put grain bin operators on notice and to ramp up inspections on dairy farms.


Teen farm safety: new rules in limbo
Celeste Monforton of The Pump Handle discusses this accident and calls the Obama administration on the carpet for stalling on regulations that would strengthen protections for young farm workers, while at the same time giving lip service to child labor protections and transparency. She notes:

The fatality rate for young workers performing hazardous tasks----like working with a grain auger-----is two times the fatality rate for all U.S. workers. The Fair Labor Standards Act (FSLA), administered by the U.S. Department of Labor's Wage and Hour Division (W&H) stipulates dozens of work activities that are too dangerous for workers of certain ages. Individuals under age 18, for example, are prohibited from working most jobs in coal mines, from forest-fire fighting, and from operating meat slicers and cardboard balers in grocery stores. However, the safety rules governing young workers employed in agricultural jobs have not been updated for 40 years.

Elizabeth Grossman also recently posted about teen workers and farm accidents at The Pump Handle: Hazards of the harvest: Children in the fields. This post includes a recounting of a recent farm accident which resulted in the deaths of two 14-year old girls on an Illinois farm. The girls were electrocuted while detasselling corn.

Grossman notes that, "The hazards of farm work are underscored by the fatality rate for young people working on farms: 21.6 deaths per 100,000 young workers, compared to 3.6 fatalities for the same number of those working in all other industries, this according to data published in 2010."

Grain bin auger safety resources
Grain Auger Safety sheet with quiz from the Texas Department of Insurance.

Accident Extrication Procedures for Farm Families and Employees from the University of Georgia

Safety With Grain Augers from the North Dakota State University

Grain auger safety - from the University of Ilinois Extension

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August 15, 2011

 

Kevin and Bob Pickell ran KDN Lanchester Insurance Agency in Sinking Spring PA. It's not just the spring that's sunk. The not-so-kissing cousins (bad day photos here) have been convicted of diverting workers comp premium payments from area school systems into their own pockets.

As fraud goes, agents pocketing premiums is pretty dreary stuff: it's not a matter of if, but when they get caught. In this case, the carrier notified one of the schools that premiums had not been paid. In jumps the state attorney general, with the result that the Pickells are going to prison for over a year, followed by restitution and 20 years of probation.

The cousins do not appear to be planning a return to the brokerage business. They have offered the domain site (kdnins.com) for sale. Let's see. Brokers in jail, a bit of bad press. Not exactly a once-in-a-lifetime business opportunity.

Many good folks testified to the character of the defendants. They were known for their generosity in the community, along with living the lavish life style that inevitably accompanies this type of crime: big houses, fancy cars, expensive wines...

Opportunities for Fraud
Agents are just one of a number of parties in the workers comp system who see opportunities for making money the fast and not-exactly-legal way. Along with agents we have:
Employees:
• Faking injuries
• Lying about health problems that impact their ability to perform jobs safely
• Exaggerating symptoms to prolong disability (malingering)
• Being injured away from work and claiming the injury is work related
• Working a second job (usually under the table) while still collecting indemnity
Employers:
• Under-reporting payroll
• Misclassifying employees as "independent contractors"
• Misclassifying employees into lower risk - and lower premium - job classes
• Failing to report injuries
• Threatening employees who do report injuries
Doctors:
• Billing insurance companies for treatments not provided
• Exaggerating the nature of services provided
• Performing unnecessary tests
• Selling drugs (pain killers) to injured workers
• Conspiring with attorneys by faking diagnoses of compensable injuries
Attorneys:
• Helping workers exaggerate medical symptoms to secure benefits (providing unnecessary neck braces, crutches, slings, etc.)
• Coaching injured workers on malingering
• Helping workers develop a false "injury narrative"
• Stealing settlement dollars (very rare)
Claims adjusters:
• Securing kick-backs on medical or indemnity payments
• Setting up phony claims and pocketing payments
Investment companies:
• Bribing public officials to secure dollars for investment (see the "Coingate" scandal in Ohio)
• Offering (illegal) perks to decision makers who manage public dollars

Despite the myriad opportunities for fraud in the comp system, outright fraud is still relatively rare. The vast majority of transactions within the system, involving all of the above players in every state across the nation, are carried out with integrity and good faith. Nonetheless, eternal vigilance is necessary to ensure that comp dollars are spent prudently, wisely and fairly.


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August 12, 2011

 

Since it's a Friday afternoon in August , we are ending the week with a musical interlude, the ever popular Hazcom song. We even have a link to the lyrics in case you'd like to sing along. Learn them and you just might be the hit of your weekend barbecue. We commend the author for some creative rhyming!

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August 10, 2011

 

Jason Shafrin, our favorite Healthcare Economist, is hosting this week's digest of risk-related posts Cavalcade of Risk #137: Risk Grabs the Headlines. Check it out!

S&P Downgrade Robert Hartwig of the Insurance Information Institute weighs in: Understanding the U.S. Debt Downgrade: No Significant Impact on Insurers: "The nation's property/casualty insurers have very limited direct exposure to the U.S. government bond market and have collectively set aside hundreds of billions of dollars to pay unanticipated claims," said Dr. Robert Hartwig, president of the I.I.I. and an economist. "Both of these factors will enable the industry to operate effectively despite the recent downgrade of long-term U.S. bonds." Consequently, Hartwig added, "Existing policyholders, people and businesses filing claims and those seeking to purchase insurance will not experience any difficulties arising from the downgrade."

Related:


Lingering effects - 10 Years and a Diagnosis Later, 9/11 Demons Haunt Thousands - "One measure of the psychological impact of 9/11 is this: At least 10,000 firefighters, police officers and civilians exposed to the terrorist attack on the World Trade Center have been found to have post-traumatic stress disorder, and in a kind of mass grieving, many of them have yet to recover, according to figures compiled by New York City's three 9/11 health programs."

One year ago... - Last week marked the anniversary of the shooting Hartford Distributors in Manchester, Connecticut. Here is a link to our post about the event, in which we discussed some of the comp-related aspects of the case and whether employer's can take measures to inoculate against such events.

Not-so-friendly reminders department - Employers should be aware that workers' comp related retaliation can get expensive. But that is chicken scratch next to the penalties that might be imposed for things like failure to carry work comp insurance, misclassifying employees, and violating stop work orders.

OSHA tool - Planning Ahead for Hot Weather: Employer Checklist.

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August 9, 2011

 

When we last left bodybuilding firefighter Felix Arroyo, his application for disability retirement ($65K per year, tax free) had been rejected and he had been offered back his (relatively light duty) job with the Boston Fire Department. Arroyo declined to accept the job and was fired. Now we read in the Boston Globe that he is facing criminal charges in federal court for mail fraud, the result of a seemingly able-bodied individual claiming to be disabled.

The case against Arroyo is as powerful as his biceps. Two back specialists have testified that there is no objective evidence of a back problem and that Arroyo's description of the pain ("8 out of 10") was inconsistent with his mobility. Testimony was also given by Dr. John Mahoney, the doctor who originally disabled Arroyo (and whose original diagnosis we termed "Mahoney's Baloney"). Mahoney testified that he would have changed his evaluation if he had known Arroyo was a body builder.

"If someone is bodybuilding, they're playing baseball, they're doing activities...that's not compliant" with their recovery," Mahoney said.

Good for Dr. Mahoney. He owned up to his mistake and assumed responsibility for it.

Tough Defense
Arroyo's attorney, Timothy Watkins, has his work cut out, for sure. He says that Arroyo was "working through the pain." (Aren't we all?) He also noted that the doctors's interpretations of the exams are subjective and that the pain Arroyo suffered could have been the result of stress (the stress, for example, of fabricating a disability?).

Perhaps the most damaging evidence is the video of Arroyo flexing for an audience at a bodybuilding competition a few weeks after he filed for disabiility. The video shows him prancing around the stage, stretching his ripped arms and chiseled legs in all directions and flexing the formidable muscles in his back. Then again, maybe he was just having a good day.

Arroyo is by no means alone in his attempt to take advantage of a lax system. He could argue that he was only doing what many other firefighters have done. True enough, but Arroyo alone is on trial here. Testimony continues. And while no trial result is a foregone conclusion (did someone say "Casey Anthony"?), Arroyo is likely to be working out for a while in a relatively confined space.

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August 4, 2011

 

Joe Paduda has posted a steamy Health Policy Heat Wave edition of Health Wonk Review over at Managed Care Matters. He notes that "Far from the summer doldrums, activity related to the debt limit, IPAB, Medicare reform and Health Exchanges is at a late-September pace." Get in on the action, Joe always hosts a lively and informed edition.

Coming & Going - Roberto Ceniceros discusses the compensability case of a NC public school principal who was shot while driving to work. This is an interesting case because the principal was conducting phone business on a school-issued phone while commuting and he was also paid for travel expenses. He was awarded benefits, but the case is headed for appeals court. Ceniceros notes that injuries that occur during a commute generally are not compensable. He also notes that this might be some of the earliest case law on this issue. And with the brave new world of ubiquitous work enabled by mobile devices, it surely won't be the last.

Radical change - Peter Rousmaniere talks about the recent Illinois workers' comp reform and the radical change that the reform signified for workers' comp, change that he notes has largely gone unnoticed. He discusses two significant issues that surfaced in the reform: the "nuclear option," which Rousmaniere noted "freaked out almost everyone" - yet despite the dramatic language, an opt-out or non-subscribe program has long existed in Texas. The second issue that he notes is "an easy-to-overlook provision" that allows for union carve outs, which he discusses in greater detail. Peter's take on all things workers' comp is always well worth reading.

FL CFO tackles check-cashing fraud - WorkCompWire reports that the Florida CFO will be reviewing check cashing services for collusion in workers' comp fraud, which is said to be diverting more than a billion dollars from Florida's economy. According to CFO Jeff Atwater, this latest workers' compensation premium scheme is highly organized and orchestrated by individuals who know the construction and subcontracting industry and are intent on evading payment of workers' compensation premiums.

MA AG recoups millions in drug overcharges - In the latest of a series of settlements, Rite-Aid will pay $2.1 Million to resolve allegations of prescription drug overcharges. The settlement is the 5th in a series of similar settlements, the result of an investigation by Attorney General Coakley's office into prescription drug overcharges by pharmacies to public entities under the workers compensation insurance system. Settlements now total $7.9 million. Walgreens recently settled for for $2.8 million. Other pharmacies with settlements include CVS, Shaws Supermarkets, and Stop & Shop. Recouped money will be returned to cities and towns.

OH BWC publishes Facebook fraud page - If you commit workers comp fraud in Ohio, you may find your photo on Facebook. Yesterday, we posted about workers' comp and social media, so we were interested to see that the Ohio Bureau of Workers Comp has launched a special investigations Facebook page. It will include news on recent investigatory action, a most-wanted section and a link to report fraud. The page can be found at www.facebook.com/ohiobwcfraud

World's scariest job? - If not the scariest, it certainly is a contender: Chinese Road Workers. For other scary jobs, see our post on the workers on the cruise from Hell and the untethered tower workers. I'll stick with blogging, thanks.

Quick takes

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August 3, 2011

 

Are Facebook, Twitter and other social media postings fair game when conducting a workers comp fraud investigation?

We've posted on this topic previously, including a reference to a successful Facebook-related investigation conducted by New York State Insurance Department's Fraud Bureau: social networking, workers comp & the law. Now, two of the experts that we cited in that post - Professor Gregory Duhl of the William Mitchell College of Law and attorney Jaclyn Millner - have a new article that is worth your attention: Social media and insurance fraud.

In the article, they answer our opening question with a strong affirmative, making a comparison between internet searches of public social networking profiles to the more common fraud investigation tool of video surveillance of property-casualty claimants. In fact, they make the case for why insurance investigators should be spending even more company time on Facebook, suggesting that postings or photos can substantiate some other evidence found in an investigation. While privacy issues are of concern, they state:


A privacy argument is unlikely to prevail in court because a person has no reasonable expectation of privacy in whether he or she has a social networking account or in what is posted in his or her profile. Even if a claimant protects his or her social networking profile information with privacy settings, the information is available to at least some third parties, to whom the claimant gives access (the claimant's "friends").

Some courts have gone so far as to say that there is no privacy interest in information stored on the internet because even if information, such as social networking information, is protected with privacy settings, it could be accessed by certain members of the public.
The recent case of Romano v. Steelcase Inc. shows that anything posted on Facebook or any other social networking site, whether the user has privacy settings or not, is likely discoverable.

Social Media & Employment Law
The social media landscape is dynamic and the courts are grappling with many thorny issues. If it isn't one of the top issues you are tracking in employment law, it needs to be. While fraud investigation is one area of interest, there are many other significant issues: how social media is used in hiring and pre-employment screening; social media policies in and out of the workplace; monitoring employees in the workplace, and more. Here are some good resources to help you keep current with the dynamic intersection of social media and employment law:

Think Before You Click: Strategies for Managing Social Media in the Workplace is a newly released book that we can't wait to read. The book's authors and editors are among some of the legal authorities we most frequently turn to on the topic of social media - several are practicing bloggers. We would particularly cite the following two authors, who frequently blog on social media:

**Employment Law Attorney Jon Hyman: Ohio Employer's Law Blog

**Employment Law Attorney Daniel Schwartz: Connecticut Employment Law Blog

And from the plaintiff perspective, we would recognize attorneys Jon Gelman and Alan S. Pierce who paired up for a podcast on Privacy, Clients and Social Media. Gelman frequently posts about social media on his blog, Workers' Compensation (which is well worth reading on other topics, too). He also has authored articles on social media, such asFacebook Becomes a Questionable Friend of Workers' Compensation.

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August 1, 2011

 

David Little worked for B & L Ford in Ashland, Pennsylvania. He suffered a shoulder injury in October 2005. He worked light duty up until January 19, 2006, when the employer received a letter from his attorney stating he was unable to perform any manual labor. The employer advised Little to secure a note from his doctor regarding his ability - or inability - to work. His doctor gave Little a letter stating he was unable to work, but before Little had the opportunity to present the letter to B & L Ford, they sent Little a letter of their own, terminating him.

Little spent a weekend brooding over the termination. He called his wife home from her job on Monday. She found Little at the kitchen table, holding the termination letter. He stood up and then collapsed from a heart attack. Emergency workers had to pry the letter from his hand. Little died later that day at a hospital.

Was this a work-related fatality? Little's widow filed two workers comp claims, one for Temporary total benefits up until the death, and one for death/survivor benefits.

Small Victory, Big Loss
A workers comp judge awarded temporary total disability benefits up to the date of Little's death; once Little became "unavailable" for work (i.e., dead), the benefits ceased. On the issue of a work-related fatality, the judge found - and the Commonwealth Court of PA upheld - that the death was not work related, as it neither occurred "in the course and scope of employment" nor did Little's activities on that fatal day "further the interests" of the employer.

There is no question that the loss of his job was a significant, perhaps predominant, factor in Little's death. However, personnel actions (discipline, demotions and terminations) are generally excluded from workers comp coverage. The sequence of events that began with his attorney's letter culminated first in the loss of the job and then in a fatal heart attack.

Given that Little had filed a workers comp claim and the employer apparently fired him because of his injury, the widow might be able to sue for wrongful termination. But the courts have made it clear that aside from a modest indemnity payment for lost time, workers comp will provide the widow no solace and no support for the work-related loss of her husband.

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