October 2012 Archives

October 31, 2012

 

At the recent National Safety Council Congress and Expo in Florida, Eric Guigere shared the gripping account of how 10 minutes in the bottom of a trench changed his life. In 2002, he was 27 years old and newly married - and perhaps in a bit of a hurry because he was scheduled to fly to a Caribbean honeymoon after work. But all that changed in an instant when he found himself buried in a trench collapse. He describes the harrowing experience before he blacked out - one of mankind's most deep-seated and primal fears becoming a reality. His coworkers pulled his lifeless body from the trench about 10 minutes later. At the time, his survival was in doubt, but he not only lived, he walked out of the hospital within about a week.

But that was not the end of things, by any means. Guigere talks about the lingering effects that the trauma had on his life - night terrors, lack of sleep, stress, and general PTSD experiences that eventually led to the break-up of his marriage. He also talks about the terrible effects that the experience had on his coworkers.

Guigere takes full responsibility for his own actions. His message is to the workers: "Don't take shortcuts. Respect safety requirements. Don't make a choice that could put yourself, your coworkers and your family in life-altering situations."

We aren't as inclined to let the employer off the hook as lightly as he does. The employer had six prior OSHA citations for safety violations and deceitfully tried to cover up their lack of compliance after the accident. The employer incurred a $54,000 wilful violation from this offense. While we're big believers in behavior-based safety, we think that all parties have responsibilities in creating an injury-free workplace. James Loud raises this point in his essay Too much emphasis on behavior-based safety? We agree with his assertion that "safety is a line management responsibility" and his prescription of management walkarounds, which he describes as "routine manager/employee safety interactions." He offers a roster of best practice "rules" for safety walkarounds gleaned from his 20 years of studying such programs at large organizations.

Eric Guigere now makes his living as a safety motivational speaker - you can see a brief clip below. If you're looking for a motivational speaker to talk to your employees, his story appears compelling.

Related prior posts:


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October 30, 2012

 

As we begin to survey the damage from Hurricane Sandy, a symptom of the global warming that has been religiously ignored in the course of the presidential debates, our thoughts turn toward the impact of trauma: Sandy's trauma involves man's influence on nature, but in war we have trauma that is purely the result of mankind's inability to live in peace.

About 2.4 million soldiers have cycled through the wars in Iraq and Afganistan. One third or more of those returning from battlefields suffer from post-traumatic stress disorders (PTSD) or depression. Suicide has overtaken combat as the leading cause of death in the Army. [That stark statement is worth a second read.] To date, treatment of PTSD has centered primarily on cognitive processing therapy (CPT), a labor-intensive approach that places veterans in a one-to-one relationship with a therapist. But only 40 percent who enroll actually benefit from the therapy, and even if it were more effective, the vast numbers of soldiers in need would require thousands of additional psychologists.

Tina Rosenberg writes in the New York Times of new approaches to treatment. Instead of using the one-to-one model, these new therapies work in groups. And instead of rehashing the images that gave rise to PTSD, these therapies focus on the present moment, long after the trauma has occurred. The Washington-based Center for Mind-Body Medicine has designed a course that involves conscious breathing, meditation, mindfulness, guided visual imagery and biofeedback. Other therapies include acupuncture and yoga. The Center has a proven track record, working with Kosovo high school students and Gaza residents. The techniques appear to work: following the ten-week program, participants in Kosovo had significantly lower symptoms of PTSD than non-participants.

In Gaza, center staff trained over 400 group leaders, who were able to provide therapeutic interventions with 50,000 people. Because of its group approach and relatively short training cycle, large numbers of people can be reached quickly and at very low cost. And retention levels within the training are much higher than those for individual counseling.

Life Skills
In comparison to CPT therapy, the group approach stresses practical coping skills. While there may still be some social stigma attached to participation in individual therapy, there is no such negativity associated with group work - aside, perhaps, from its New Age aura. Most important, the tools being taught are universal: we all experience stress and some degree of trauma and we all need practical techniques to help us adjust to the pace of modern life. Teaching life skills such as mindfulness and meditation does not isolate PTSD sufferers from everyone else; to the contrary, the fundamental lesson is that we all experience suffering and we are all in this together.

Surely these same group techniques would be helpful to devastated citizens recovering from this week's unprecedented natural disaster.

Teach Politicians to Breath?
I often wonder what would happen if our politicians were taught a few mindfulness exercises. Perhaps there would be more compassion in the world. Perhaps law and policy makers would pause a minute before they spoke, before they ridiculed their opponents or declared war on another country. Perhaps the elected officials who find life sacred at the moment of conception but insignificant once birth occurs would empathize with the plight of women compelled to carry a rapist's child.

These are agitating thoughts, indeed. Time to take a deep breath, sit still for a moment, and just say "om."


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October 29, 2012

 

Maggie Mahar posts The Pre-Election Edition of Health Wonk Review: Fact vs. Fiction at her blog, Health Beat. In this weighty issue, she offers her in depth-analysis and opinions of the issues that were raised in submissions she received.

Prepping for Sandy
Batten down the hatches - authorities say that Hurricane Sandy could affect 50 million people on the East Coast. Keep up with Advisories on Hurricane Sandy from the National Hurricane Center. It's getting a little late, but here are some hurricane-related tips to prepare your workplace and protect your technology. And from the National Association of Insurance Commissioners, a Disaster Planning for Small Businesses

State Offices of Emergency Management :

Yes, we are on to this week's disaster, but if you are curious about last week's news, see Claire Wilkinson's overview of the Maine earthquake that rattled New England.

News Briefs
If you're home bound waiting out the hurricane, or even if you're not, here are some links to catch up on your work comp reading:

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October 23, 2012

 

TopBlogs2012.jpg

We were delighted to learn that we were named as an honoree in the 2012 LexisNexis Top 25 Blogs for Workers' Compensation and Workplace Issues, That's terrific and we appreciate the recognition! In their gracious acknowledgement, they note that Workers' Comp Insider is in its 10th year, and my goodness, that's true - how time flies!

The insurance blog scene was a barren landscape when we launched, a lonely place indeed! Plus, it was months and months before we were able to scare up much of a readership beyond our family members, closest colleagues and a handful of clients. The general reaction was "What the heck is a blog?" or "Who would want to read a diary about workers comp?" But eventually, someone found us - over the last 2,000 days, we've had more than 1.2 million visitors representing 209 countries from Afghanistan to Zimbabwe! Who'da thunk workers comp would have that much appeal?

One of the things that we find particularly gratifying is to see such a robust list of honorees on the LexisNexis list - we are happy to think we had a hand in inspiring that. Congratulations to the other 24 blogs that have also been named. As regular readers know, we're big fans of Joe Paduda and Roberto Ceniceros, who we cite frequently. There are many other blogs on the list that are among our favorites - you will see them in our blogroll in the right-hand sidebar. We're also delighted to find many new-to-us blogs listed that will be fun to explore. We encourage you to visit them all.

We should all feel good that workers comp has such a thriving blog scene -- and we'd be remiss not to point out the important role that the LexisNexis awards have played in fostering and promoting this. If the LexisNexis Workers Compensation Law center isn't in your "favorites" list, it needs to be! A tip of the hat to Robin E. Kobayashi and Ted Zwayer.

And last but not least, a tip of the hat, to you, our readers. You are our raison d'etre and our driving force. Whether you're praising us or panning us, we appreciate it all. Thanks for stopping by, thanks for coming back - group hugs all around! !

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October 22, 2012

 

Jimmy Walters worked for the Florida Department of Corrections. In December 2009, he came down with a cold, but continued to work for a week. He suffered from chills and nausea on his days off and then experienced chest pain. He went to a hospital, where he was treated for "heart symptoms" and subsequently diagnosed with myopericarditis and cardiomyopathy. He was hospitalized for several days. He filed a workers comp claim, under the Sec 112.18, the "firefighter's presumption" which creates a rebuttable presumption of occupational causation for disabling heart disease.

For most workers, there would be no conceivable issue of compensability for flu-caused heart problems, but most workers do not work in the public safety arena and most workers are not protected by presumption laws. The facts of the case were not in dispute: there was a direct causal relationship between Walters's stomach flu and subsequent heart problems. His initial claim was denied by the state of Florida and by a judge on appeal, who ruled that Walters had not proven that his viral gastroenteritis was an occupational disease or that the exposure was traceable to the workplace.

The District Court of Appeal overturned the ruling and awarded benefits for the treatment of heart disease. The judges noted that the presumption statute shifts the burden of proof from the claimant to the employer: "The state had the burden to prove he did not get the virus at work, and failed to carry its burden." Some burden! The chain of causality is stark and rather crude: for public safety employees, any heart ailment caused by illness is compensable, unless the employer can trace the exposure to specific, non-work conditions. Where the cause/exposure is unknown - as in most cases - there can be no outcome other than the awarding of benefits.

By facilitating benefits to firefighters and police who may develop cancers or heart desease related to employment, law makers acknowledge the unique exposures for the people who protect us.[Back in 2008, my colleague Julie Ferguson provided the background for presumption laws.] But the generous language of these statutes may open the door to compensability far wider than any prudent legislature would intend.

The Politics of Presumption
In practice, presumption laws may create as many problems as they solve. For stressed taxpayers who ultimately foot the bills, cases of questionable compensability can be shocking: the firefighter with lung cancer who smokes two packs a day, the obese cop with heart disease, and now, the corrections officer with a flu-caused heart problem. Are these truly work related? For most people, the answer would be "no way." For the public safety employees covered by presumption laws, compensability is a given. Their safety net is woven of much finer cloth than that which protects most people in the working world.

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October 22, 2012

 

We're a bit on the tardy side in getting up a link to Cavalcade of Risk #168 - Jacob or My Personal Finance Journey hosted this edition. Check it out!

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October 17, 2012

 

Today we examine two states, side by side on the map, going in opposite directions in their workers comp rates: Connecticut, which has the dubious distinction of being the second most expensive state (only Alaska is higher) and Massachusetts, ranked 44th for overall costs, with rates so low the market is beginning to implode. These states may be headed in opposite directions, but each faces a pending crisis.

Messing with the Miracle
We begin with Massachusetts, which my colleague Tom Lynch summarized brilliantly a few weeks ago. After nearly two decades of rate reductions, MA employers are now paying about the same rates as existed in the early 1980s. Compared to the other New England states, MA rates are consistently lower, some times one fourth that of their neighbors. So it is hardly surprising that the Workers Compensation Rating and Inspection Bureau (WCRIB) sought an increase in the rates: they initially requested 18 percent, with the realistic hope of ending up somewhere in the vicinity of 6 to 8 percent. A rate increase of this magnitude would maintain the state's position as the lowest among the major industrial states, still far below its New England neighbors.

The response of the state's Division of Insurance is, in its methodology and ultimate result, a public work that might make the infamous Big Dig seem prudent and reasonable. The Division dismantles the entire application, demeaning and ultimately dismissing virtually every data element supporting the rate increase. While it is true that some of the data was inconsistent - due largely to the idiosyncracies of insurer submissions - the report's conclusion that no rate increase was merited defies common sense. Indeed, when the attorney general opines that higher rates "would greatly increase the cost of doing business in Massachusetts and have a deleterious effect on the overall employment level," one can only wonder what they have been smoking - perhaps the substance on the ballot up for legalization next month.

One the mainstays of the Division's argument is the fact that insurance carriers continue to offer rate deviations: proof, in the Division's eyes, that the rates must be high enough. Perhaps it is time to remind the bureaucrats who administer this program that insurers always think they can defy the odds and find the optimum risks. Insurers sell insurance to the people and organizations least likely to use it - or so they hope. As Tom Lynch likes to say, "insurance companies are prone to eating their young." Nonetheless, a glance across state lines and across the country reveals that Massachusetts is about to cook the golden goose: with the current unabated rate suppression, the assigned risk pool will continue to grow and savvy carriers will scale back their participation in the workers comp market.

Asleep at the Wheel
While Massachusetts's inaction on rates jeopardizes the most successful comp reform program in the country, Connecticut meanders toward economic disaster. As recently as 2008, the state was ranked 20th for overall costs in the invaluable Oregon Rate Study. But in 2010 they rose to 6th, and the state now sits in the number two spot, ahead of such reliably high cost states as New York, California and Florida. The median cost of comp in CT has risen to $2.99, compared to the nation-wide average of $1.88. (MA comes in at a paltry $1.37.) CT suffers from a toxic combination of very high medical costs (doctors love it) and a worker-centric system that is extremely generous with benefits. To add insult to injury, NCCI is requesting an additional 7.1 percent increase in the already bloated rates. Costs are out of control and regulators are asleep at the wheel.

Surely it is time for business advocates in Connecticut to raise the red flag. The cost of comp has reached unacceptable levels. When business owners can move their operations to New York to lower the cost of workers comp, you are in deep, deep trouble.

Across the Rate Divide
MA and CT provide compelling examples of enigma variations: in the perpetual search for comp rates that are fair to both carriers and businesses alike, these states have drifted too far from the middle ground. How they reached this point may be an enigma, but what they need to do is clear: take immediate steps to extricate themselves from rate cycles that simply are not working. It will take leadership, vision, and courage to confront these reverse-image crises.

In MA, regulators must stop playing political games - no easy task in a hyper-political state - and allow rates to begin a long overdue, moderated rise.
In CT, regulators must confront entrenched stake holders and begin to exert control over runaway costs.

With rates either much too low or much too high, state leaders and regulators are mired in swamps of their own making. If the current inertia is allowed to continue, the two states may eventually end up in the same place: with dysfunctional comp systems incapable of serving the needs of injured workers and employers alike.

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October 14, 2012

 

It would be pretty hard to avoid the news about sugar: it's bad for us. Diets high in sugar contribute mightily to the nation's burgeoning problems of obesity and diabetes and may even be a factor in dementia. But sugar in its crop form is also proving to be deadly. The cause and effect, however, is as murky as a cloudy day in the rainforest.

Will Shorr has written a remarkable, hands-on article in the Guardian, examining the high rates of chronic kidney disease (CKD) among the workers who grow and harvest sugar cane in Central America. CKD is the second leading killer of men in El Salvador.

Why are sugar cane workers succumbing to kidney disease? Is it the working conditions? Is it the pesticides? Is it the diet of the workers? Fingers are pointing in a number of directions, and by the time the truth is sorted out, we may well find a toxic trail that includes of all three factors.

Dehydration
Nicaragua Sugar Estates, one of Central America's largest plantations, has conducted its own internal studies, one of which identified one potential factor in the disease: "strenuous labour with exposure to high environmental temperatures without an adequate hydration program." .Nonetheless, a company spokesman denies the connection: "We're convinced that we have nothing to do with kidney disease. Our productive practices do not generate and are not causal factors for CKD."

But researchers in the US have connected CKD to heat stress and dehydration. A standard day for an El Salvadorian sugar worker lasts between four and five hours, with double shifts during the summer planting season, when temperatures top out at 104 degrees.

Shorr quotes Héctor García, a 33 year old with stage-two kidney failure: "It's very hot; we suffer. People sometimes collapse. More often they vomit, especially when the heat is worse. They do two shifts to earn more money." Another worker, 40 years old and close to death with stage five CKD, reported the same symptoms, compounded by the limited resources in his home: "When I come home, I feel surrendered. Sick. Headache. I can't shower because the water [from the roof-mounted tank] is too hot." The image of the hand-rigged shower, full of very hot water, epitomizes the wretched living conditions of the workers.

Compounding the problem, most CKD sufferers do not even know they are ill: the disease is asymptomatic until its last, most deadly stages. Even when they feel unwell, many workers go into denial - they feel helpless, as they cannot afford the medication or the recommended diet of fresh vegetables and chicken breast. Dialysis - the last hope of the ill - is often avoided, because most of the workers who go on it end up dead anyway, so it appears to their co-workers that dialysis causes the death.

Chemicals
Researchers have found rates of CKD in cane cutters and seed cutters - the most strenuous jobs - to be higher than in pesticide applicators, who have greater exposure to agrochemicals. This seems to indicate that the pesticides are not a significant factor. But this conclusion may be premature.

Five chemicals are used in the cultivation of sugar cane: amine, terbutryn, pendimethalin, 2,4-D and atrazine. Shorr sent the chemical recipe for the yellow potion he observed being sprayed on the crops to Professor Andrew Watterson of the University of Stirling - an authority on agrochemicals and health. They were all herbicides, he noted. Watterson came up with a litany of potential problems:

Atrazine can cause kidney damage at high levels; acute exposure to 2.4-D can cause chronic kidney damage; pendimethalin is "harmful through skin contact and inhalation"; in lab tests, long-term feeding of terbutryn to rats caused kidney damage. None of them are acutely toxic, but this combination, plus the tropical climate, could worsen their effects.

On the prevention side, sprayers are supposed to avoid contact with skin; to wear face shields, respiratory protection, rubber boots and specialist coveralls. We can only surmise that such protective equipment, while technically useful, would be difficult to use in 100 degree weather. On the other hand, assuming the sprayers are protected, other workers do not wear protection and may thus experience greater exposures to the chemicals.

Sugar in the Diet?
Shorr concludes his article with a shocking new study that points in yet another direction. Richard Johnson, of the University of Colorado's Division of Renal Diseases and Hypertension, thinks the problem might have its genesis in a mechanism that his team discovered in rats. Johnson speculates that if dehydrated workers with already sugary kidneys are rehydrating with soft drinks or fruit juice, they may experience a potentially explosive fructose load. He adds that "it's not proven, so we don't want to get ahead of the gun here [rather unfortunate metaphor]." The research has not as-yet been published. But Johnson goes on to say that the experimental data is quite compelling, and it "could explain what's going on."

It would truly be ironic if the cane field workers were dying from kidney failure in part because they use sugary soft drinks to rehydrate. "Buy the world a Coke" indeed!

Collateral Damage?
While it is too early to draw definitive conclusions, the Guardian article identifies at least three converging factors in the high CKD rates among field workers: extremely high heat compounded by hydration problems; a mix of potentially harmful pesticides; and an unhealthy diet too full of sweetened beverages. Add the impoverished living conditions of the workers - and marginal medical care - and you have all the makings of an abbreviated lifespan.

The US gets 23% of the its raw sugar from Central America; the European Union spends more than €4.7m on this import. Sugar is El Salvador's second-biggest export. This is big business. With so much money at stake, the dying workers are little more than collateral damage. It appears that what they really need is an ample supply of clear, cool water, but such a simple remedy, alas, is nowhere in sight.

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October 11, 2012

 

Health Wonkery - David Williams hosts the October Surprise Edition of Health Wonk Review at Health Business Blog - and as might be expected in a pre-election climate, it's a good one - with many submitters weighing in on the debates or other campaign related issues.

State premium rankings - The Oregon Department of Consumer & Business Services announces the availability of the 2012 Oregon Workers' Compensation Premium Rate Ranking Summary (PDF). National premium rate indices range from a low of $1.01 in North Dakota to a high of $3.01 in Alaska. The 2012 median value is $1.88, which is a drop of 8 percent from the $2.04 median in the 2010 study. The authors of the study - Jay Dotter and Mike Manley - say: "One notable trend nationally is that the distribution of state index rates in our study continues to compress--there is less variation between the highest and lowest states, and there are 20 states within plus or minus 10 percent of the study median. This makes the rank values more volatile from one study to the next. I would recommend that states look also to their "Percent of study median" figure for comparisons over time."
See Background information and historical state rankings since 1995. See also: Dave DePaolo on the Oregon study.

Paduda Earns IAIABC Award - At their recent 98th Annual Convention, the International Association of Industrial Accident Boards and Commissions (IAIABC) recognized Joe Paduda, Principal of Health Strategy Associates with the IAIABC Presidents Award for his efforts in raising awareness about opioid abuse in workers' compensation. IAIABC noted that, "Through his weblog, during speeches, and in the course of his ongoing work with workers' compensation stakeholders, Mr. Paduda has urged discussion and action on the growing use of opioids in the treatment of work injury. " Kudos to Joe, who has clearly been a leader on this issue - as well as a driving force in raising awareness about the pricing abuses associated with physician dispensing and drug repackaging. See: IAIABC Award Recipients Uphold a Tradition of Excellence and Dedication.
Kudos also to seven other individuals who were recognized for their contributions and leadership. These include: Glenn Shor, California Division of Workers' Compensation; Dr. Kathryn Mueller, Colorado Division of Workers' Compensation; Ken Eichler of Reed Group; Christine Siekierski of the Wisconsin Compensation Rating Bureau; Gregg Lutz of NCCI; Terry Bogyo of WorkSafeBC; and Mike Manley of the Oregon Department of Consumer and Business Services.
Related: Joe Paduda has good things to say about IAIABC: Mutual Admiration Society.

Breast Cancer Screenings - October is National Breast Cancer Awareness Month - a good time to remind employees about screenings. The CDC's National Breast and Cervical Cancer Early Detection Program make breast and cervical cancer screenings and diagnostic services available to low-income, uninsured, and underinsured women across the United States. Search for free and low-cost screenings in your state. The American Cancer Society offers good resources on dealing with a coworker who has cancer, including helpful tips for supervisors.

Nursing Homes - The Washington State Department of Labor & Industries has introduced a page of resources addressing Nursing and Residential Care Facilities. 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, OSHA has introduced a National Emphasis Program, and Washington's resources gather some helpful tools. See Washington's A-Z list of Safety & Health Topics.

Risky Business - Risk Scenarios are an interesting and noteworthy ongoing interactive feature by editors of Risk and Insurance. A Risk Scenario consists of two parts -- The Scenario, a hypothetical situations that showcases an emerging risk, and The Analysis, which offers a summary of themes, as well as access to relevant articles and resources. They are interactive features that allow readers to decide how they would handle a situation and learn how peers and other industry experts would handle the situation. They cover a range of risks from data breaches and gas explosions to MRSA exposure and complex claims. Browse an archive of Risk Scenarios.

Other items of note from around the web


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October 9, 2012

 

The alarming crisis precipitated by contaminated steroids has implications for the workers comp system. In Framingham, MA, two towns over from where I write, the New England Compounding Center has been shut down, but not before it shipped over 17,000 vials of methylprednisolone acetate, each potentially contaminated by fungal meningitis. Across 23 states, eight people have died and over 100 others have been sickened. As Denise Gray writes in the New York Times, the incubation period appears to be between a few days and a month; the last doses of the tainted medications were administered on September 17, so there are literally thousands of people at risk for a potentially fatal illness.

Because the steroid is used for the treatment of back pain, this crisis intersects with the workers comp system. Lower back injuries are among the most prevalent in workers comp; across the country, injured workers are receiving all forms of treatment, ranging from physical therapy to surgery to injections. An unknown portion of those sickened by the tainted drugs will have been treated for work-related injuries. These unlucky few will require lengthy and costly treatment, along with extensive hospitalization. They will be eligible for long-term indemnity payments, including support for any qualified dependents. These claims will total hundreds of thousands of dollars. Should an injured worker suffer a stroke - one of the many side effects of the disease - the claim is likely to become a permanent total disability.
[NOTE to comp attorneys: New England Compounding is out of business. The prospects for subrogation are remote.]

Exposure: Limited But Deadly
The good news, if indeed there is any, is that the source of the contamination is highly specific: it involves only drugs shipped by New England Compounding. Thus any injured workers receiving lumbar injections over the past few months can know for sure whether they are at risk. But that - and the fact that most people exposed to the drug will not become ill - is the extent of the good news.

Anyone exposed to the fungus is advised to seek medical help immediately if they experience any of the following symptoms: severe headache, fever, stiff neck, dizziness, weakness, sensitivity to light or loss of balance. For those who have received tainted injections, just reading that list would probably give rise to real or imagined symptoms.

Early treatment is essential and might save a patient's life. The untreated fungus can cause strokes. So logic might indicate that everyone exposed should receive preventive treatment. Unfortunately, the life-saving treatment itself carries risk: antifungal drugs must be administered for months and they can have serious side effects, including kidney damage. Thus those anxiously awaiting the first signs of illness can only watch the days tick by until they are beyond the incubation period. (Even if they do not become ill, individuals exposed to the risk might be tempted to pursue claims for PTSD, given the magnitude of the stress they are experiencing.)

Manufacture Versus Assembly
The Wall Street Journal points out that a 2002 Supreme Court ruling placed limits on any federal role in the oversight of drug compounding:

[The FDA] has been stymied by, among other factors, a 2002 Supreme Court decision. In the majority opinion, written by Justice Sandra Day O'Connor, the court struck down as unconstitutional the portion of a 1997 law setting out how the FDA would decide which compounding pharmacies it would regulate
.

The compounding - as opposed to manufacturing - of drugs is considered a pharmaceutical procedure, so the only oversight comes from the states. And given limited resources, states are not in a position to do the job thoroughly or consistently. As Representative Ed Markey (D-MA) put it, "compounding pharmacies currently fall into a regulatory black hole."

Most of the people receiving the tainted medication will soon be able to resume their normal lives. For the relatively small number who become ill, or even die, the promise of relief from back pain has been transformed by a scandalously unregulated industry into a broken promise of life-altering proportions. For those wondering what role, if any, government should play in free markets, this surely is an example of a place where government belongs.


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October 3, 2012

 

When risk managers scan the virtually infinite horizon of risk, they often overlook the single greatest exposure in the working world: driving cars and trucks on the roads of America. Today we approach the issue through the back door, wherein an individual killed in an accident was deemed not be in the course and scope of employment. It might be the backdoor, but it still leads to the same conclusion.

Linda Gadbois was a cook for the California prison system. She suffered a work-related injury and was sent to a doctor. When this doctor proved unsatisfactory, she was allowed to choose another medical provider from a list. After completing her appointment in May of 2008, she headed back to work. She was involved in an accident: Gadbois was killed; the other driver, Kenneth Fields, was seriously injured. Under the theory that Gadbois was "in the course and scope" of employment, Fields sued Gadbois and the state of California, her employer. No need to ask why: the state's pockets were significantly deeper than those of the late Gadbois.

Going to Work
Field's case rested on the interpretation of the "coming and going" rule: was Gadbois, leaving a medical facility after work-related treatment, inside or outside of employment? The court noted that she had requested the second treatment on her own. Her employer did not require her to drive to the appointment, nor was she required to drive as part of her employment. As a prison cook, the essential job functions were limited to her cooking: how she got to work was not her employer's concern.

As a result, the fifth district appeals court concluded that the state was not liable for any injuries Gadbois caused while on her way to work. Field's suit against the state was dismissed; the status of his suit against Gadbois is not known, though presumably he collected up to the limits of her personal auto insurance policy.

It is worth noting that Gadbois's death was not compensable under workers comp. Gadbois was paid for the day of her death in accordance with a death benefit policy that covers all workers who die on a regular work day, whether at work, on the way to work, or on paid vacation or leave. Gadbois received her full salary for the day of the accident, but received nothing from workers' comp. Had she received death benefits under comp, Fields would have had a stronger case.

Drivers: Good, Bad and Indifferent
While the specific circumstances proved Gadbois to be the exception, many people do drive in the course and scope of employment: obvious examples would be tradesmen, salespeople on the road and people whose customers are visited in their homes. But the circle of drivers must be expanded to include any and all employees who run errands or perform any aspect of their jobs in company cars or in personal vehicles.

Some employees do this company-related driving on a regular basis; others only sporadically. But any employee driving "in the course and scope" of employment is a representative of the employer. Whether consciously or not, the employer has endorsed the driving skills of employees whose work involves driving. Even if the employee is in a personal vehicle, the employer has, in effect, entrusted them with the keys. This "entrustment" may well comprise the riskiest part of the working day.

Basic Management
How should employers manage this risk? It's really quite simple. Any and all employees who drive - or who might possibly drive - while working should be required to submit annual copies of their driving records. If there is a cost in obtaining the records, the employee should be reimbursed. The employer should review the records carefully and place restrictions on any employees with marginal or poor driving records. Indeed, the employer may well find that some employees who drive while working do not hold valid licenses. If these unlicensed drivers have accidents while working, the employer is on the hook for anything that happens.

In addition, employees should be required to report any moving violations, on or off the job. A speeding violation on the weekend might not preclude an employee from driving during work, but a formal warning would be appropriate.

Finally, prudent employers should have written policies on limiting the use of cell phones while driving and, needless to add, prohibiting texting. These policies should be enforced, with appropriate documentation and disciplinary action for any violations.

The risks of driving permeate our lives. When we drive in the course of work, the risks are shared by employee and employer alike, even if the latter is oblivious to the exposure. For the savvy manager, a well organized approach to the risks of driving goes a long way toward containing the ever-present perils of the open road.

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October 3, 2012

 

Risk roundup - Our Down-Under friend Russell Hutchinson of Chatswood moneyblog posts this week's Cavalcade of Risk, with a global roundup of posts. Check it out.

Costs for Employees - Insurance Journal reports on the latest Bureau of Labor Statistics report on the cost of U.S. employees, noting that the nationwide average cost for private industry employers was $28.80 per hour worked in June 2012. "The costs ranged within each region, with total compensation costs of $24.44 in the East South Central division to $33.47 in New England." The article offers more detail on the report, noting that costs were collected from a sample of 47,400 occupations from about 9,500 establishments in private industry. Data excludes self-employed and farm and private household workers.

Physician Dispensing - Joe Paduda looks at potential conflict of interest issues in a post about ABRY Partners, he asks, "How is it that an investment firm owns stakes in a TPA, MSA company, subrogation firm - and a physician dispensing and billing company?" Is one company cleaning up a mess that another company makes? In other repackaging news, he notes that Miami-Dade Schools has taken a stand on physician-dispensed repackaged drugs - they are refusing to pay the markups, a move that saved more than half a million dollars. Employers take note: Is this a potential area of savings in your comp program.

Narcotics Studies - Rita M. Ayers reports on a recent study by Accident Fund Holdings and Johns Hopkins University that links opioid use to an escalation in overall claim cost in the Tower MSA Blog. She notes that the study reveals that 55% to 85% of injured workers receive narcotics for chronic pain. She says that the study, "...examined the interrelationship between the utilization of short- and long-acting opioid medications and the likelihood of claim cost escalating to a catastrophic level (> $100,000). Analyzing 12,000 workers' compensation claims in Michigan during a four-year period, the study focused on whether the presence of opioids alone accounted for the cost increase or whether costs increased because opioids were associated with known cost-drivers, such as legal involvement and injury severity." Related: WCRI: Nearly 1 in 12 Injured Workers Who Started Narcotics Still Using 3-6 Months Later.

Worst States for Lawsuits - "Lawsuit Climate 2012″ is a study evaluating how fair and reasonable states' tort liability systems are perceived by businesses in the U.S. It was conducted by the U.S. Chamber Institute for Legal Reform. According to those surveyed, Delaware has the best legal climate for businesses.See respondents' picks for the Top 10 Worst States for Lawsuits, along with more on the study's results.

High Costs for Police Dept. - The LA Daily News reports that Los Angeles spends more on LAPD workers' comp claims than for all others combined - some $65 million in 2010-2011 alone. The department averages 250 claims a month. Authorities say that it is "...one of four drivers of the city budget deficit. Others include the costs of salaries, pensions and health care."

News Briefs

Addendum As a follow-on to yesterday's post about Shackleton's Medical Kit, we found more information and a photo of Shackleton's medical kit at The Science Museum of London, and a related post from NPR's Health Blog: 'Cocaine For Snowblindness': What Polar Explorers Packed For First Aid.

shackleton-medical-kit.JPG

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October 2, 2012

 
"Men wanted for hazardous journey. Low wages, bitter cold, long hours of complete darkness. Safe return doubtful. Honour and recognition in event of success."

That is the ad that was allegedly posted to attract crew to Sir Ernest Shackelton's Arctic Expedition on the Nimrod in 1907-09. There's been a lot written about this adventure to one of the then-most remote corners of the earth. It is still among the most remote wilderness locations today - contemporary workers who agree to stint at Antarctic bases have to prepare for a long haul since some locations only afford a two to three month window when bases are reachable.

A few years ago, when Gavin Francis accepted the position as a medical doctor 'wintering' at Halley Base, a profoundly isolated research station on the Caird Coast of Antarctica, he had to plan accordingly since the base is unreachable for ten months of the year. He's written a pretty fascinating article in Granta magazine comparing the preparations he took in terms of supplying a medical kit with the list of supplies in Shackleton's Medical Kit.

"In the well-stocked polar section of the little base library I unearthed the packing list for Shackleton's medical kit - the drugs and dressings he took on the sledge trips of his Nimrod Expedition of 1907, the one that turned back only ninety-seven miles from the South Pole. It added up to a weight of about three kilos, less than a sixth of the modern kit, and to my technomedical mind read more like a witch's grimoire than the best medical advice of just a century ago."

It's a pretty fascinating read, one that we think might tickle the fancy of occupational physicians. We enjoyed the author's observations about how the practice of medicine has changed, particularly in regards to the challenges of caring for a workforce in a remote location.

Chances are, no matter how remote your workplace, planning for employee health and safety program doesn't have quite the same extremes in parameters. But one thing remains true: advance planning can still mean the difference between life and death; knowing how to respond quickly can be the difference between a relatively minor event and a life-changing tragedy.

What's the status of your workplace first aid kit?
In Fundamentals of a Workplace First-Aid Program (PDF), OSHA suggests:

"Employers should make an effort to obtain estimates of EMS response times for all permanent and temporary locations and for all times of the day and night at which they have workers on duty, and they should use that information when planning their first-aid program. When developing a workplace first-aid program, consultation with the local fire and rescue service or emergency medical professionals may be helpful for response time information and other program issues."
The booklet outlines OSHA Requirements, recommended First-Aid Supplies, including Automated External Defibrillators, guidance on First-Aid Courses and Elements of a First-Aid Training Program. In addition to evaluating their own organization's risk factors, employers should be aware of any state laws governing workplace first aid.


ANSI/ISEA Z308.1-2009 is the current minimum performance requirements for first aid kits and their supplies that are intended for use in various work environments. You can purchase these through the American National Standards Institute (ANSI) or the International Safety Equipment Association (ISEA). If you want to save a few dollars, you may be able to find a free copy, such as the one we found minimum contents list from the Minnesota Department of Labor and Industry.

Automated external defibrillators (AEDs) programs are an increasingly common component in a workplace health and safety program to address sudden cardiac arrest. These programs require some medical guidance and training to put in place.

Arguably, one of the most parts of your emergency planning should be to prepare your employees and your supervisors about what to do in the case of a medical emergency. Put your policies and protocols writing and communicate them to your employees frequently. Don't forget to include solitary and remote workers in your emergency planning.

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October 1, 2012

 

Over eight years ago, my colleague Julie Ferguson blogged on the issue of workplace heart attacks: compensable or not? (Workers Comp Insider just passed its ninth birthday, but we've been too busy to celebrate.) Heart attacks present a unique challenge to the courts overseeing workers comp. The general standard requires that something unusually stressful happened at work in the moments leading up to the incident; if people are doing their usual work in the usual manner, the heart attack does not arise "out of" employment. If, on the other hand, the demands of work are unusually stressful and beyond the ordinary, the incident might well be compensable.

Today's case raises the isse of whether anything that happens on Super Bowl Sunday can be ordinary. Colleen Robert's husband (no first name given in the court documents) normally worked as a receiver for Waldbaum's Supermarkets in New York. While the 2010 superbowl did not involve any New York teams - the contest featured the Indianapolis Colts versus the New Orleans Saints - Super Bowl Sundays are always busy for super markets. Roberts was asked to manage the store during the unusually busy day. At one point, he engaged in a verbal altercation with a customer (which in itself may not be unusual for those working in New York). Later that same day, while still at work, Roberts suffered a myocardial infarction and died.

The case was first deemed compensable, then denied by an administrative law judge, and then finally adjudicated by the Appelate Division of the New York Supreme Court. The judges noted that any death at work is presumed to be work related, but they also looked for a causal connection between the fatal attack and the work being performed. The autopsy revealed that Roberts suffered from extensive cardiovascular disease and thus was a good candidate for a myocardial infarction. In arguing against compensability, the defense pointed to the lapse of time between the verbal altercation with a customer and the attack itself. However, the judges noted that the entire day was full of stress and excitement for Roberts, who was not performing his usual job in the usual manner. They determined that the fatal heart attack was compensable.

Best Practices
In a similar case involving a supermarket in Massachusetts, a 70 year-old man with a pacemaker collapsed and died on his break. Because he had a known heart condition, and because of his age, the market assumed the fatality was not work related and failed to report it to their insurer. Months later, the widow filed for comp benefits. Due to the absence of timely interviews with co-workers and supervisors, and due to the "death at work" presumption, the case was deemed compensable.

The lesson for employers is both simple and straight-forward: report any and all incidents of heart problems immediately. Regardless of the state jurisdiction, the courts are likely to apply the same standards as in New York. And if a heart attack occurs on Super Bowl Sunday, defense may have a tough time proving it was just another working day.


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