April 2012 Archives

April 30, 2012


According to the U.S. Bureau of Labor Statistics, nursing and residential care facilities experienced some of the highest rates of lost workdays due to injuries and illnesses. In response to this, OSHA has announced a new National Emphasis Program for Nursing and Residential Care Facilities to protect workers from serious safety and health hazards that are common in medical industries. These hazards include exposure to blood and other potentially infectious material; exposure to other communicable diseases such as tuberculosis; ergonomic stressors related to lifting patients; workplace violence; slips, trips and falls, and exposure to hazardous chemicals and drugs. See OSHA's complete directive PDF).

Safe Lifting
Injuries resulting from patient transfer and patient lifting are a particular area of concern. According to OSHA:

"The incidence rate for cases involving days away from work in the nursing and residential care sector was 2.3 times higher than that of all private industry as a whole, despite the availability of feasible controls to address hazards. The data further indicate that an overwhelming proportion of the injuries within this sector were attributed to overexertion as well as to slips, trips and falls. Taken together, these two categories accounted for 62.5 percent of cases involving days away from work within this industry in 2010. For this NEP, OSHA will target facilities with a days-away-from-work rate of 10 or higher per 100 full-time workers."

According to the American Nurses Association, 12% of nurses leave the profession due to back pain. Nursing is one of the top 10 most hazardous jobs for injuries to muscles and joints. Many heavy labor industrial jobs have weight lifting limits of 50 pounds, yet nurses routinely bear many times that weight when transferring, repositioning or lifting patients. Nursing home workers in particular are at higher risk of injury than underground coal miners, construction workers, and tire manufacturers. Of the 16 million US workers employed in health care and social assistance, more than 3 million are employed in US nursing and residential care facilities.

NCCI study on safe lifting programs for long-term care facilities
A few years ago, an important NIOSH study on nursing home lifting equipment demonstrated that the benefits outweigh the costs. In addition to recapping the equipment investment in less than three years, NIOSH found a 61% reduction in resident-handling workers' compensation injury rates; a 66% drop in lost workday rates; and a 38% decline in restricted workdays. Plus, the rate of post-intervention assaults during resident transfers dropped by 72%. Study authors found that the initial investment in equipment was recovered in less than three years based on post-intervention savings in workers' compensation costs

More recently, further evidence was released via a study by NCCI: Safe Lifting Programs at Long-Term Care Facilities and Their Impact on Workers Compensation Costs (PDF). The study was a collaborative effort with the University of Maryland School of Medicine. It was limited to facilities that have had safe lift programs in place for more than three years. Originally, researches intended to compare the experience of facilities with and without such programs, but during the course of the research, the rate of adoption of safe lifting devices was so great that close to 95% of facilities had them and about 80% of those used them regularly.

NCCI summarizes the study results:

"After controlling for ownership structure and differences in workers compensation systems across states, the statistical analysis performed as part of this study shows that an increased emphasis on safe lift programs at long-term care facilities is associated with fewer workplace injuries and lower workers compensation costs. More precisely, higher values of the safe lift index are associated with lower values for both frequency and total costs. The safe lift index captures information on the policies, training, preferences, and barriers surrounding the use of powered mechanical lifts. The institution's commitment to effectively implementing a safe lift program appears to be the key to success."

According to the earlier NIOSH study, training alone is ineffective as a prevention strategy because "lifting the weight of adult patients is intrinsically unsafe." It's also important to note that the equipment alone won't do it - workers also need to be trained how to use the equipment and management must implement and enforce a "zero lifting" policy.

Many states have safe patient handling laws
In recent years, a number of states have enacted legislation mandating safe patient lifting - and that no doubt has contributed to the rapid adoption rate noted by NCCI researchers. According to the American Nursing Association, a strong advocate for such legislation, 10 states have implemented safe patient handling laws. These include California, Illinois, Maryland, Minnesota, New Jersey, New York, Ohio, Rhode Island, Texas, and Washington, with a resolution from Hawaii. In addition, they are tracking 6 states with pending legislation currently: California, Illinois, Maine, Massachusetts, Missouri and Vermont.

Tools & Resources

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April 26, 2012


Health Wonk Review - Jennifer Salopek and Sarah Sonies have posted Health Wonk Review: Shiny Happy (Mostly) Edition, an excellent hosting debut at Wing of Zock, a blog sponsored by the Association of American Medical Colleges for practitioners of academic medicine. Make sure you click through to learn the origins of the fanciful name of the blog.

April 28 is Worker Memorial Day - an event dedicated to remembering those who died on the job from workplace injuries and diseases. It's also a time to commit to doing better, to renew efforts for safe workplaces. The National Council for Occupational Safety & Health has a list of Workers Memorial Day events throughout the country, as well as fact sheets and resources in both English and Spanish.

Oklahoma decides against "alternative workers comp" - Last week, the Oklahoma Senate gave the nod to a bill that would allow some employers to opt out of workers comp system by offering a comparable alternative, but the OK House rejected the opt-out measure. Last week, Senator Harry Coates had issued an editorial discussing the opposition viewpoint: Be careful what you ask for. See Dave DePaolo's take on OK's non-subscription model and the recent Walmart opt out in Texas.

Is it OK to discriminate against obese people? - In what may be a first among hospital hiring restrictions, Victoria Hospital in Texas has stated they won't hire very obese workers. HR pro Suzanne Lucas (also known as "Evil HR Lady") asks if it is okay to discriminate against obese people, offering 5 reasons why she feels it is a bad policy. In addition to potential illegality, another issue she raises is that many health professionals consider the BMI or Body Mass Index a faulty indicator of health. The first link quotes a physician as noting that "A professional football player might have a body mass index of 32, which is technically obese, but only have 7 percent body fat." (Be sure to check out the Flickr gallery of real people and their BMIs that Lucas links.) Now whether or not this is the wrong "solution," the fact that obesity is a workplace problem is not at issue. A new Cornell study says that obesity accounts for almost 21% of U.S. healthcare costs, and "An obese person incurs medical costs that are $2,741 higher (in 2005 dollars) than if they were not obese."

Usual and customary? - How much will an appendectomy cost you in a California hospital? It might depend on your insurance coverage. In one hospital, the cheapest procedure was $7,504 and the highest cost in the same hospital was $171,696. See more in Merrill Goozner's post on the Anatomy of A Walletectomy.

Jail time for scofflaws/ - Jon Gelman notes that North Carolina is raising the stakes for employers that don't carry workers comp - "the first contempt hearing is scheduled for May 22 when 125 uninsured employers have been noticed to appear in court." The state says pay up or go to jail.

Sex, workers comp & horseplay - Joe Paduda posts about compensable sex on the road, an Australia case where a worker was injured while in flagrante delicto. My colleague discussed this case previously in his post Compensable Sex, Down Under? We don't get to talk about sex very often on this blog, although there was a spanking incident a number of years ago (sadly the link to the news item appears broken.) The spanking post dealt with an instance of horseplay - an issue that Cassandra Roberts poss about at LexisNexis in her post A Roll In the Hay: Delaware's Horseplay Defense and Australia's Sex Romp Case Revisited, where she lists an array of quirky cases in which the horseplay defense failed.

More Noteworthy News

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April 25, 2012


We thought we had heard the last of the bizarre Virginia workers comp statute that denied benefits to workers who suffered brain injuries: under the old statute, if a worker survived an accident but was unable to testify about the incident, no benefits were to be paid. We blogged two cases where the injuries were clearly work related, but where the testimony of the worker was not available. The claims were denied.

Last year the legislature revised the statute to read in part:

In any claim for compensation where the employee is physically or mentally unable to testify as confirmed by competent medical evidence and where there is unrebutted prima facie evidence that indicates the injury was work-related, it should be presumed in the absence of a preponderance of evidence to the contrary that the injury was work related.

Reporter Dan Casey of the Roanoke News is on the case again: With the new statute's protections in place, a roofer named Herman Blair fell from a ladder and suffered multiple skull fractures. He filed a claim for indemnity and $350K in medical benefits. When he appeared for his workers comp hearing, he had no memory of the incident, but he was able to state his name and talk about other aspects of his life. On the basis of his ability to talk, Deputy Commissioner Phillip Burchett ruled that the injury was not compensable. Despite testimony from a co-worker, who heard a noise and saw Blair fall, Blair's ability to speak nullified the presumption in the revised statute. Burchett writes:

The only thing we can determine is that the claimant was on the roof some several feet above the ground and he fell; however, that in and of itself does not establish that the fall arose out of the employment.

Commissioner Burchett has set a very high standard, indeed. The man is on a roof installing tile. He gets onto a ladder to descend, and ends up on the ground. What does Burchett think he was doing - texting? surfing the net? In the commissioner's interpretation, if Blair had ended up in a coma, he would have had a compensable claim. But because he was conscious and able to talk, the claim had to be denied. [Burchett's nitpicking ruling can be found at WorkCompCentral, subscription required.]

The Fix is Not Quite In
There was an effort to amend the statute to include a presumption for workers able to testify about some things but not "about the circumstances of the accident," but the usual suspects (business and insurance advocates) pushed back by saying that this might open the door to abuse, with workers deliberately falling silent on the circumstances of their injuries. This, of course, is reminiscent of the original fear that workers would fake brain injuries. Sigh.

At some point Virginia will get this right and Herman Blair, having suffered insult after injury, will eventually collect his benefits. This fiasco illustrates how hard it is to get the language of a statute just right. You fix one problem and another arises. The only thing lacking in all of this is common sense and a little dignity: it should not require a legislative committee to determine that Herman Blair was injured on the job and is entitled to the life-enhancing benefits of the workers comp system.

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April 23, 2012


When looking for cutting edge activities in workers comp abuse, it's a good idea to start in California, where key stakeholders occasionally function like pirates in the Gulf of Aden. We have frequently focused on the burgeoning costs of opioids in the workers comp system. As we learned at the Workers Comp Research Institute conference last November, too many doctors who prescribe opioids have no idea what they are doing, no idea how to manage opioid-based treatment and no clue about the potential for harm.

In the entrepreneurial free-for-all that is California, we see the latest trend in opioid abuse: turning the "best practice" of drug testing into an opportunity to milk the system. (The details are available in Greg Jones's article at WorkComp Central - subscription required.)

Here's how it works: doctors who tend to over-prescribe opioids are jumping on the drug testing bandwagon: either through their own testing, or through contracted services, they are able to parlay a simple $200 drug test into a bill for $1,700 or even $3,000. The labs are playing with billing codes, performing the less expensive qualitative tests but charging for the more expensive quantitative tests. It's a clever scam: first over-prescribe, then drug test and over-bill.

The WorkCompCentral article quotes Howard Appel, president of Millennium Laboratories of San Diego: "I'm offended when workers' comp is paying $3,000 for a drug test that cost $200." Appel's company operates under a "responsibility pledge" where explicit ethical standards are used for drug testing and billing.

Genuine Best Practices
We remind Insider readers of the best practices that should accompany virtually any prescription for opioids:

1. Above all, use opioids sparingly; most prescriptions for opioids in the comp system are unnecessary, ill-advised and poorly managed.
2. Virtually all injured workers prescribed opioids should be evaluated for dependency issues prior to beginning an opioid regimen, drug tested prior to receiving opioids and throughout the course of treatment. Without these pre-conditions, opioid use is full of uncertainty and fraught with danger.
3. Ideally, opioids should come with a written contract and a User's Manual. Workers should be tested on their knowledge of the benefits and the risks.

Note that drug testing is a necessary component of the treatment protocol. The problem in California - and probably elsewhere - is that drug testing is of little value where opioids have been mis-prescribed in the first place. Under best practices, opioids are a last resort, rarely used and carefully managed. Under California scheming, they are over-prescribed, over-monitored and over-billed. All of which goes to show that you don't need a fishing boat and a few automatic rifles to become a pirate. A nice white coat and a plastic cup can work just as well.

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April 20, 2012


In an era when one death per million dollars spent on bridge construction was axiomatic, chief engineer of the Golden Gate Bridge Joseph Strauss decided his project would be different. He refused to accept the conventional wisdom that worker deaths were just a normal cost of doing business and introduced a series of safety innovations - you can see an overview in this brief video clip:

More on his commitment to safety during construction is presented in the PBS American Experience documentary "Golden Gate Bridge." Perhaps the innovation that was most touted was the introduction of a safety net, "... similar to a circus net -- suspended under the bridge. The safety net extended ten feet wider than the bridge's width and fifteen feet further than the roadway's length." While there was one deadly accident when a scaffold platform fell and broke through the net resulting in 10 fatalities, there is no doubt the net saved many other lives. Nineteen survivors whose falls were stopped by the net became de facto members of "The Halfway to Hell Club."

Strauss employed many other fascinating safety innovations, ranging from sauerkraut juice "cures" for men suffering from hangovers to special hand and face cream to protect against winds. But next to safety nets, the other noteworthy safety practice that emerged during the bridge's construction was the reliance on hard hats. The hard hats of the era were called "hard-boiled hats," and were made of leather and canvas. You can read more about the history of the hard hat at the Bullard site. Edward W. Bullard first introduced the hats in 1919, based on a doughboy hat he had worn in WWI. His hats were originally created to protect miners. The Bullard history says:

America's first designated "Hard Hat Area" was set up at the San Francisco Golden Gate Bridge construction site. "The project's chief engineer, Joseph B. Strauss, shared a vision with my grandfather that the workplace could be a safer environment for the worker. One problem the bridge project faced was falling rivets, which could cause serious injury," said Bullard. "My grandfather transformed the mining helmet into a durable industrial hard hat."

We would be remiss if we did not note that the status of being "the first official hard-hat area" is under some dispute - some contest that the Hoover Dam construction was the first work site to mandate hard hats:

The Bullard Company asserts that the first official "Hard Hat Area" was the Golden Gate Bridge project in San Francisco. The project's chief engineer, Joseph B. Strauss, beginning on January 5, 1933, directed all the workers to wear hard hats to protect themselves from falling rivets and other materials. However, the Six Companies constructing Hoover Dam first required all its workers to wear hard hats by November 1931.

Here's a picture of the vintage "Bollard hard boiled hats" of the era, courtesy of Hal's Lamp Post, a site with an excellent and very interesting collection of mining artifacts.

Original image source

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April 19, 2012


We've long held that safety starts in the corner office. Many safety and health programs are little more than window dressing - lots of banners and lip service, but scant in managerial support. A recent study demonstrates that employers who prioritize workplace health and safety in a meaningful way by creating a safety culture can yield positive results and reduce losses. The study showed that "workers who believe they work in a safe environment experience 32% fewer injuries."

David Shadovitz of Human Resource Executive reports on the study conducted by researchers at the University of Georgia's College of Public Health in his article The Value of Safety Climates. As opposed to focusing on one industry or occupation, this study used data from the 2002 General Social survey and the NIOSH Quality of Work Life module, encompassing "a broad spectrum of employment situations."

One of the survey authors says that the findings "...put hard numbers behind a long-held perception: that there's a correlation between safety climate and workplace injuries."

One other interesting factor that the study revealed is that work/life issues matter: "In situations in which work interfered with family life or family demands affected job performance, the researchers find that the risk for injury increased 37 percent."

Study authors say that the findings point to the need for efforts to be more closely coordinated between Human Resources and health & safety, and to break down the barriers that so often exist in organizations. Study authors call for a "a more comprehensive and integrated approach to safety."

What is a "Safety Culture"?
At its very essence, a safety culture is a pervasive core, shared organizational value. Here are two definitions that we like:

Safety Culture is the way safety is perceived, valued and prioritised in an organisation. It reflects the real commitment to safety at all levels in the organisation. It has also been described as "how an organisation behaves when no one is watching". (Source: Skybrary).
The enduring value and priority placed on worker and public safety by everyone in every group at every level of an organization. It refers to the extent to which individuals and groups will commit to personal responsibility for safety; act to preserve, enhance and communicate safety concerns; strive to actively learn, adapt and modify (both individual and organizational) behavior based on lessons learned from mistakes; and be rewarded in a manner consistent with these values. (Source: Safety Culture: A Concept in Chaos).

For a more in-depth analysis, we point you to the Conference Board's research report, Driving to "0": Best Practices in Corporate Safety & Health (PDF), which conducted a study on how leading companies develop safety cultures.

Key Components of a Safety Culture
In the original article cited in this post, one of the study authors said, ""If you talk to people who do safety inspections, they will often tell you that the first impression they get when they walk into a factory or construction site -- how neat it is and whether employees seem to be actively engaged -- tells them whether or not a worksite is safe or not." We've had the same experience - the truly excellent companies stand out: safety is a pervasive value that you notice from the minute you walk in the door until you leave. Based on our experiences with thousands of employers, we've compiled some of the best practices that we've observed among organizations that do things right:

  • Does health & safety commitment start at the top? Here's one quick check: Is health & safety included in your organization's mission statement? Does the President/CEO articulate the health & safety vision? Everyone knows that what the head honcho wants done is what gets done. If it isn't on his or her radar as a top-tier priority, it won't be on the radar for managers either. "Captain Sully" Sullenbeger speaks about how values start at the top and require "authentic action."
  • Are sufficient resources allocated? Management must back the corporate commitment with dedicated budgets, staff, and resources commensurate with the goals. This includes maintaining equipment and facilities and allocating training resources.
  • Are there written policies and procedures? Are essential functions and physical demands of each job documented? Management should also capture the company's commitment to safety in a written policy that is distributed to all employees and regularly reinforced.
  • Are health & safety goals on the "managerial dashboard"? The old adage about "what gets measured gets done" has more than just a grain of truth to it. Is health & safety included in annual business plans and goals? Are health & safety goals addressed and progress measured in concrete metrics? Does health & safety get reported on in business reviews the way any other critical business process would be addressed?
  • Is there accountability? You won't be able to take a bite out of losses without teeth in your program. Health & safety goals should be a part of every job description and every performance review at every level of the organization.
  • Are comprehensive inspections for hazards and behaviors conducted regularly? Do senior managers participate in walk-throughs and inspections? Does the CEO?
  • Do managers and supervisors "walk the walk"? In all-too-many many organizations, safety is just something expected of the line staff. Do managers and supervisors keep the rules themselves? Are visitors and vendors indoctrinated to safety rules at the onset of any visits?
  • Is health & safety addressed in a meaningful way in employee orientation? Studies show that new hires are at greater risk of injury than experienced workers. Is job safety training the first thing addressed in any new hire training? Does the worker have hands-on training in not just how to do the job, but how to do it safely? Is particular care taken with workers who pose risk challenges, such as young workers and workers who don't have strong command of the English language? Peer-to-peer buddy systems that monitor new employees for safety can be particularly effective.
  • Is safety training and communication ongoing process? In good organizations, training is not a "once and done" affair and safety value communication isn't relegated to an annual speech. Employees are retrained, processes are re-evaluated, and expertise is shared on a continual basis via team meetings, newsletters, company intranets, formal training sessions, and more. Remember to offer training when employees change jobs or get assigned new responsibilities. And don't forget to "train up": Many middle and senior managers don't know the real day-to-day hazards inherent in their own business or appreciate the role they play in fostering - or perhaps sabotaging - a safe work environment.

  • Is there strong employee involvement? At minimum, employees should be involved in in safety committees, inspections, and shaping corrective measures for eliminating hazards. Good organizations help to imbue a sense of ownership in employees at all organizational levels and encourage workers to share ideas that eliminate unsafe acts and working conditions for themselves and others. Employers need to create a climate that allows frank and open feedback from employees and must work to overcome the perception that giving safety-related feedback creates interpersonal conflict.
  • Is there a process for analyzing all accidents and near misses? We favor the term "analysis" over "investigation" to emphasize that the exercise is not about assigning blame but getting to the root cause of the breakdown, to understand where things broke down to learn from errors, incidents, and accidents. Immediate remedial actions should be taken.
  • Is progress recognized and acknowledged? - Mark safety milestones and progress to goals. Recognition can be simple - congratulating a work team in a meeting, free donuts in the morning or a pizza lunch to show employees that their efforts are valued. Employees sincerely appreciate recognition, which in turn increases motivation and commitment to work safely.

Additional Resources
OSHA: Safety & Health Management Systems eTool

OSHA: Creating a Safety Culture

For an abstract and a link to purchase the full study cited, see Occupational Injury in America: An analysis of risk factors using data from the General Social Survey)

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April 18, 2012


Jaan Sidorov has an excellent edition of Cavalcade of Risk #155 posted at his Disease Management Care Blog. Jaan describes the Cavalcade well - "think of it as a linked collection of the latest observations from a variety of blog authors on the broad topics of insurance and business risk." Check it out!

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April 18, 2012


We have been following the fate of self insurance groups (SIGs) in New York, where the innocent pay for the sins of the guilty and where what is legal is by no means fair. We read in WorkCompCentral (subscription required) that an appeal to over-rule the onerous assessments imposed on the trusts who played by the rules, to cover the liabilities of trusts who did not, has been rejected by the U.S. Supreme Court. [The Insider is quoted at length in the article.] Had employers known just how expansive the risks of SIG participation were, they would likely have chosen to purchase conventional insurance.

The appellate court wrote that "a fair reading of [comp law] within the context of the related provisions and the legislative history, leads to the conclusion that group self insurers were intended to be included among those to be assessed to provide the funds to cover the defaults of all private self-insurers, including groups."

The court went on to say that the liability of individual employers "is proportional to their role as self-insurers within the workers' compensation system."

The New York appellate court has expanded the concept of joint and several liability way beyond the members of a given trust, including not only all those who participate in self insurance groups, but virtually every self insurer in the state. There is no way a company can reasonably assess the scope of this risk. Why would anyone put their trust in trusts?

The Law of Small Numbers
The problem for the dwindling number of employers who participate in New York SIGs is the inverse of the law of large numbers: because their numbers are relatively small (compared to the total number of employers and comp premium in the state), they own a disproportionately large share of the open-ended liabilities generated by the failed trusts. Given the now-established legality of the assessments, and given the impossibility of verifying the viability of every self-insured risk, New York has basically eliminated self insurance as an option. That's too bad, especially in the context of the state's relatively high costs for comp.

Perhaps the state's 800,000 employers could push for fundamental changes in the way workers compensation is managed: they could argue that the system is too complex and too costly for employers, even as the benefits for injured workers are way too low. As a group, they would have the law of large numbers in their favor, which is certainly more than can be said for the hapless remnants of the state's self insurance groups.

NOTE: For access to the Insider's numerous blogs in this issue, enter "New York trusts" in the search box.

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April 12, 2012


Brad Wright of Wright on Health tees up all the health wonkery this week as he hosts Health Wonk Review: A Masterful Edition.

Texas - Texas does things differently and their work comp program is true to course. Employers are not mandated to have workers comp insurance - they can opt out. According to a 2010 survey, 15% of businesses with 500+ employees choose to opt out. And now Walmart is opting out of work comp in Texas. See more on this at PropertyCasualyt360, including a graph of market share for the top 10 insurers comparing 2010 to 2011: Concerns Arise over Texas Workers' Comp. State System After Walmart Drops Out

Mississippi reform - Mississippi is working on workers comp reform and we note that one provision about "medical proof" establishes a pretty high bar to hurdle for some injuries; for example, a back injury: "It also would require a worker to provide the employer with medical proof that an injury or illness is a direct result of the job if the worker's claim is contested."

Dirty Business - Is workers' comp dirty? Some people seem to think so and Dave DePaolo considers whether there's more to the frequent use of the term than coincidence. See Work Comp and Dirt - Do They Have to be Synonymous?

Florida drug wars - Tampa Bay Times says that drugstores are the new focus of painkiller investigations. From the article: "The U.S. Drug Enforcement Administration says that in 2009 no Walgreens retail pharmacies were listed among the DEA's top 100 Florida purchasers of oxycodone -- a key ingredient in OxyContin, Percocet and Percodan. / By 2011, 38 Walgreens made the list. By February, the total reached 53 of the top 100. So says a warrant filed last week in U.S. District Court for the Middle District of Florida. / In Fort Myers, the DEA says one Walgreens pharmacy sold more than 2.1 million oxycodone pills in 2011. That's more than 22 times the oxycodone sales at the same pharmacy two years earlier."

Healthcare's 1% - Who are the chronically costly? The costliest 1% of patients consume one-fifth of all health care spending in the U.S., according to federal data. Doug Trapp of amednews digs into the data to profile the most costly patients and where so much of the medical spend goes.

From the courts - Fred Hosier of SafetyNewsAlert has an interesting post about whether workers comp will be on the hook for prescribed drug's side effects. He cites a case related to a West Palm Beach police officer who has filed for additional workers' comp benefits for the treatment of his gynecomastia, an excess growth of breast tissue, a side effect of medication he was prescribed to treat a work-related injury. Initially denied, an appeals court has reopened his claim for review by an expert medical advisor.

Occupational Medicine - It's been a bit since we visited the American College of Occupational and Environmental Medicine (ACOEM) site. ACOEM offers up a few new guides, and a revision of an older guide - Fatigue Risk Management in the Workplace (PDF), Guidance to Prevent Occupational Noise-Induced Hearing Loss and Guidance for the Chronic Use of Opioids.

Affordable Care Act - At Health Care Policy and Marketplace Review, Bob Laszewski looks at what individual health insurance might cost if the court strikes the mandate down and still requires insurers to cover everyone. Hint: a lot.


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April 10, 2012


Here's a grab bag of apps for health & safety, human resources, insurance news - and even for ADA job accommodations.

EH&S Apps for All Seasons - Occupational Health & Safety compiled apps that have particular relevance to safety, health, and environmental professionals - and risk managers too, we might add. These range from weather and traffic alerts to tools for chemical safety, first aid and emergency response.

Top 5 Risk Management Apps - apps for insurance terminology, insurance publications and a mobile flood map.

Apps for ADA Accommodations - HR Daily Adisor offers a variety of suggestions from the Job Accommodation Network for apps that address speech, hearing and visual impairment.

10 Apps That Can Save a Patient's Life - Emergency Monthly scoured the MedGadget archives to compile the top 10 smartphone applications that can save a patient's life ... before they get to the emergency department. The 10 apps presented have been grouped into the four primary categories: workflow, emergency response, vitals, and diagnosis.

10 Mobile Apps That Promote Safety - SocialTimes offers a roundup of apps covering emergency preparedness, driving safety, alerts, first aid, and medical diagnostics for communications between patients and physicians.

In HR? There's an App for That - a roundup of apps from SHRM for recruiting, analytics, time-and-attendance tracking, performance feedback and more.

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April 9, 2012


Clayton Osbon, 49, served as a pilot for Jet Blue Airlines for 12 years. On March 27 during Flight 191 from New York to Las Vegas, he suddenly began raving about terrorists and started pushing buttons and flipping switches in the cockpit, all the while telling air traffic controllers to shut up. His co-pilot had the presence of mind to suggest Osbon, the flight captain, go to the bathroom. When Osbon did, the co-pilot and another JetBlue pilot on board locked him out of the cockpit. Osbon started banging on the door and had to be subdued by passengers on the flight.

Osbon is now charged with interfering with a flight crew - an intriguing conundrum, as he was head of the flight crew with which he interfered. Osbon had passed a physical a few months prior to the incident, although it is unlikely that a detailed mental health evaluation was part of that physical.

Osbon's friends have stated that he has no history of mental illness and had exhibited no symptoms that would have foretold the bizarre behavior on flight 191. It appears that with no warning signs, Osbon simply snapped, putting the passengers and crew at immediate risk.

(Mental) Fitness for Duty
This incident raises important issues about mental health and fitness for duty, especially in jobs which involve not just the well-being of a single worker, but the general public as well. A couple of years ago we blogged the saga of Bryan Griffin, a pilot for Quantas Airlines who had "uncontrollable urges" to crash airplanes. While he never actually followed through on his death wish, he continued to fly for about three years, while suffering from this obvious mental health problem. Quantas chose to risk disaster rather than remove Griffin from his pilot duties. Ironically, thirty years later he was awarded over $200K in disability pay for the stress of flying while he was mentally vulnerable, a ruling which left Quantas - and the rest of us - shaking our heads in disbelief.

In the months ahead we will learn more about Osbon's sudden breakdown, including whether there were subtle indications that something was wrong. But at the heart of this story is the mystery of mental illness itself. While significant advances have been made in both the diagnosis and treatment of mental disabilities, much remains unknown. The Federal Aviation Authority has issued guidance on the use of anti-depressants for pilots, even while admitting that the science is tentative and subject to change. Pilots who are placed on anti-depressants are not allowed to fly for one year; it is reasonable to assume that Osbon will not return to the cockpit for at least a year, perhaps more.

The Paradox of Mental Illness
Even as unprecedented advances have been made in the treatment of mental illness, pervasive prejudice still remains. Individuals seeking care are often stigmatized; there is considerable public pressure for individuals to suppress symptoms and avoid treatment. Insurance coverage for treatment may be spotty, and for those without insurance, the emergency room is usually the only treatment option. In the above referenced guidance, the FAA estimates that about ten percent of the population suffers from depression, with the majority of these people working, raising families, driving motor vehicles and even flying airplanes.

Osbon's case illustrates the difficulty in trying to establish viable policies on mental fitness for duty. As my southern friends would say, it's like trying to nail Jello to a tree. We are reminded that just getting out of bed and heading off to work - let alone boarding an airplane - is an act of faith. We trust other drivers on the road to stay in their lanes, just as we assume that the pilot of our aircraft is rational, detail-oriented and totally focused on the job at hand. We as individuals may be a bit distracted, but everyone else is locked into what they are supposed to be doing. That's not just a leap of faith, that's an Evel Knievel rocket across the Snake River Canyon.

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April 5, 2012


Under the general heading of whistleblowing protection, OSHA has raised concerns about a number of common industry practices designed to lower the cost of workers compensation. Policies such as employees reporting (or not reporting) injuries, disciplinary actions taken against workers filing comp claims, and even safety incentive programs, may discriminate against employees who have been injured. And if discrimination can be proven, employers are at risk for major penalties.

Richard Fairfax, Deputy Assistant Secretary for OSHA, has distributed a memo alerting his regional staff to potential discrimation against injured employees. Now that his staff has been alerted, employers would do well to educate themselves about the issues.

Fairfax's memo identifies four potential areas of discrimination. We'll analyze them one at a time:

Taking disciplinary action against injured employees might involve discrimination
Fairfax points out that an employee's reporting of a claim is a protected act. If injured employees are disciplined every time an injury is reported, this would be a clear case of discrimination. If, on the other hand, the discipline was triggered by specific violation of safety rules, employers could and should document the violation; keep in mind that this type of documentation must be done in all situations, not just where an employee is injured. It is also worth noting that comp, being a no-fault system, would in most instances still pay benefits to injured employees despite the safety violation.

Penalizing injured employees for late reporting of an injury might involve discrimination
LynchRyan encourages employers to require prompt reporting of all injuries; the existence of this type of policy is not in itself discriminatory. However, OSHA will review the application of disciplinary actions on a case-by-case basis, considering such factors as whether the employee's deviation from the procedure was minor or extensive, inadvertent or deliberate, whether the employee acted reasonably, and whether the discipline imposed is proportionate to the violation. In this and other related matters, one shoe does not fit all!

Penalizing injured workers who violate safety rules might involve discrimination
OSHA recognizes the need to enforce legitimate workplace safety rules. However, these rules need to be specific and they need to be enforced and documented on a regular basis, not just when someone reports an injury. For example, safety rules that employees "maintain situational awareness" or "work carefully" are inherently vague and offer the potential for abuse. Employers must be prepared to document that injured workers are not singled out for attention in this area.

Some performance incentive programs might involve discrimination
Many employers reward their workers for injury-free workdays. For example, if no injuries are reported for a 30 day period, workers might be eligible for a raffle or might enjoy a pizza lunch. OSHA implies that these practices might by their very nature stifle the reporting of injuries and thus violate OSHA standards. For example, an injured worker might decide not to report an injury in order to keep the clean record intact. Because the reporting of an injury is a protected act, the employer is vulnerable to charges of discrimination, even though the employee made the decision not to report the incident.

OSHA recommends that safety incentive programs focus not on reported injuries but on safety initiatives: for example, rewarding a crew for completing a safety training program or for identifying and correcting workplace hazards.

Best Practices
In view of OSHA's stance in the area of safety incentive and disincentive programs, employers need to make sure their policies do not discriminate. That means:
1. Be careful to document specific safety violations involving injured workers
2. Before disciplining an injured worker for a late report, examine the circumstances carefully
3. In disciplining an injured worker for violating safety rules, be very specific and document the violations in writing
4. Review any safety incentive programs for the unintended effect of stifling the reporting of injuries; if your program operates in this manner, consider revising it to address OSHA's concerns

Prompt reporting, discipline for safety violations and incentive programs can be useful tools in a comprehensive approach to a safe workplace. Like all tools, they can be misused and abused. OSHA has made it quite clear that the rules themselves might not be sufficient and, in some cases, they might be illegal. Claimant attorneys will surely file the Fairfax memo in their tool box for pursuing claims against employers. Prudent managers should take their own notes and adjust current programs accordingly.

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April 4, 2012


Ken Faulkenberry of AAAMP Blog hosts the latest risk-related roundup: Cavalcade of Risk #154 - Healthcare Mandate Edition. Check it out!

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April 3, 2012


vintage photo of ambulance and injured worker

We're happy to bring you this 12-minute, must-watch video commemorating the 100th Anniversary of Workers Comp. The video highlights progress in worker safety, treatment of injured workers and risk management in the past 100 years. In addition to telling the history of comp, it also features three visionary women who were instrumental in furthering health and safety of workers...one of whom witnessed the Triangle Shirtwaist fire. Until this clip, I did not realize the strong role that women played in this history.

Kudos go to Sedgwick as well as to our colleague and friend Peter Rousmaniere. who wrote the script.

Here's some additional information about the women highlighted in the video clip:
Crystal Eastman
Frances Perkins
Alice Hamilton MD

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April 2, 2012


In the 2010 Oregon rankings for the cost of comp insurance, New York comes in 13th, with an average rate of $2.34 per $100 of payroll. That does not sound too bad, until you factor in the extraordinary 20.2 percent assessment that is tacked onto premiums. ** This assessment is double that of the nearest state (Minnesota at 8.9 percent) and nearly five times the average among states. When you combine the already high rates for coverage with the assessment, New York ends up near top of high cost states.

Quoting research from the Workers Comp Policy Institute (WCPI), Risk & Insurance Magazine identifies three major components in the assessment:
- the Second Injury Fund, accounting for half the total
- the Reopened Case Fund that covers claims reopened after more than 7 years
- the Workers Compensation Board, which oversees comp in NY

Recent reforms may eventually reduce the impact of the first two cost drivers, but there is no end in sight for the third. New York operates a huge - and largely redundant - bureaucracy to administer comp claims. Where other states empower insurance companies to make decisions on individual claims, with the state involved only in disputes, New York is involved in every step of every claim. The Board has over 300,000 hearings per year, overseen by 97 judges. The system generates 31 million forms annually, all of which are scanned and saved! Stenographers document every proceeding: a well-intentioned effort to pilot the cost-saving use of video recording devices met with ferocious opposition in the state legislature. The Board employs over 1,300 people; as a point of reference, the Massachusetts DIA, in a state with one third the number of workers, has only 167 employees.

The high cost of insurance might be more tolerable if injured workers were the primary beneficiaries, but this is not the case. The maximum weekly benefit in New York is only $740, which might support a frugal worker in upstate New York, but it will not buy much in the five boroughs. By comparison, Illinois - ranked number 3 for cost - has a maximum wage benefit of $1,288, while MA, ranked 46th, pays up to $1,136.00.

New York is stuck in an archaic system that is fiercely defended by the stakeholders who benefit from its inefficiencies. If only this same energy and commitment were devoted to the protection of disabled workers in the Empire State. Surely, that would be a system worth emulating.

**We heard from our friends involved with the Oregon ranking study, who provided the following clarification:

The Oregon WC Rate Ranking study does include state assessment rates in our index rate computation. We ask our state respondents to provide the rates that are assessed as a percentage of premiums. The NY rating bureau provided us that information in 2010, and there was a 14.2% factor included in the study index rate for NY. Apparently the rate has increased since that time, and the 2012 index rates would incorporate that information in our next study, due out this fall.

Unfortunately assessments are an area that does not lend itself to straightforward comparison. States use different terminology (assessment , surcharge, tax, etc), have different bases for assessment, and fund different functions through this mechanism. So there is plenty of room for different interpretations when looking at the data, depending on where the lines are drawn for inclusion or exclusion.

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