February 2013 Archives

February 28, 2013

 

Health wonkery - Dr. Jaan Sidorov presents the February Edition of the Health Wonk Review: Insightful Nuggets From the Best Health Policy Blogs at his Disease Management Care Blog. He's organized the posts by topic: "Obamacare's key reforms, various health economists' latest divinations on health care costs, hospitals, Medicaid, the internet, California, medical education and some British humor." Check it out!

FMLA - Update your info - By March 8, employers need to update policies and replace FMLA posters with a newer version that reflects recent updates to the law related to military family leave, military caregiver leave and eligibility standards for airline flight crew members and flight attendants. You can get a copy of the updated FMLA poster and more information about the changes.

State-by-state barometers - Joe Paduda posts about medical care variation among states as reflected in the latest Dartmouth Atlas of healthcare, presented in yesterday's WCRI Annual Meeting. Joe looks at some of the findings and questions that the report raises. And in another state-by-state comparative indicator, the Robert Wood Johnson Foundation issued an interactive map that charts death rates and how states rank in 10 key indicators, such as drunk driving, prescription drugs, domestic partner abuse, and seat-belt use. It's a pretty interesting tool - but we'd encourage them to add on-the-job deaths to the list.

Terrorism risk insurance - the current Terrorism Risk Insurance Program Reauthorization Act of 2007 will expire at the end of 2014 and some are already looking at the need for renewal. Brokers say the backstop coverage is still needed and while it may seem early to be looking at something that will expire in 2014, it is not - the article notes that "...any delay past the end of this year causes problems for 12-month insurance contracts and the stress that comes with uncertainty of the program's future."

Opioid sausage making - You know the old quote about how laws are like sausages - it's better not to see them being made... Marc Gavin of Evidence Based thinks that the there has been an abject failure on the part of IAIABC on dealing with the opioid crisis after the executive committee of IAIABC sidelined and he is not alone in his opinions. The blogosphere has been abuzz about the curious backtracking - people were anticipating leadership with the issuance of model rules and legislation on opioid use in the workers' compensation industry. Gavin tells us there is some hope in that the National Conference of Insurance Legislators (NCOIL) is taking up the cause at its spring meeting.

Ergonomics - What is early intervention in the context of preventing musculoskeletal disorders (MSD)? ErgonomicsPlus offers a checklist and tips.

Disease Detectives - We haven't tried it yet but note with interest that the CDC offers a Solve the Outbreak i-Phone app. The descriptive copy says: "Get clues, analyze data, solve the case, and save lives! In this fun app, you get to be the Disease Detective. Do you quarantine the village? Talk to people who are sick? Ask for more lab results? The better your answers, the higher your score - and the more quickly you'll save lives. You'll start out as a Trainee and can earn badges by solving cases, with the goal of earning the top rank: Disease Detective."

Noteworthy News

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February 25, 2013

 

We have long noted how the generous benefit structure in California encourages professional athletes to file claims long after their careers are over. These athletes need not play for teams based in California: just playing a few games in the state over the course of their careers opens the door for generous lump sum payouts and, more important, lifetime medical benefits. There is indeed "gold in them thar hills."

Marc Lifsher of the Los Angeles Times does a great job summarizing the impact of California comp law on professional athletes. Since the 1980s, $747 million has been paid out to 4,500 players. That is apparently just what's been paid - the $3/4 billion may not reflect what's been reserved for future medical payments.

California's statute is uniquely generous. It allows anyone injured while working in California to file a claim in the state. Even if the worker has been paid under another state's comp system, the door remains open. Professional athletes may settle out claims for a few hundred thousand dollars, but they may also secure lifetime medical benefits: given the concussed brains and frequent musculoskeletal injuries that are a routine part of professional athletics, the lifetime medical bills may be enormous. Finally, California has a worker-friendly definition of cumulative trauma, so a professional athlete need not prove a specific body part was injured during a game in that state.

Athletic Attorneys
A number of the lawyers specializing in these claims are former athletes. Mel Owens, a former Los Angeles Rams line backer, represents a number of out-of-state athletes filing claims. "California is a last resort for a lot of these guys because they've already been cut off in the other states," he says.

Lifsher describes the situation of journeyman tight end Ernie Conwell, who played for two out-of-state teams, including the New Orleans Saints. During his 11 year career, he underwent 18 surgeries, including 11 knee operations. He filed for comp benefits in Louisiana and received $181,000 to cover career-ending knee surgery in 2006. He also received $195,000 in injury-related benefits as part of the players's collective bargaining agreement. But the claim in Lousiana only covered his knee injury. So he filed a claim in California to deal with ongoing health problems that affect his arms, legs, muscles, bones and head. A California judge awarded him $161,000 plus future medical benefits. The payer in this case, the New Orleans Saints, has appealed.

Wrong Solution to a Real Problem
There is little question that retired players face formidable physical and mental challenges resulting directly from their athletic careers. But the question on the table is whether California is an appropriate forum for delivering extended benefits for professional athletes. Part of the rationale for continuing this gratuitously generous program is the fact that athletes pay state taxes on their incomes for contests in California. But given the fact that income taxes have nothing whatsoever to do with comp, this is a specious argument. The taxes paid do not support California's workers comp system.

Ultimately, the solution to the problem of long-term injuries to professional athletes must be removed from California and relocated to where it belongs: in the labor agreements between professional sport teams and their athletes. The first step in this process requires an act by the California legislature to shut off the spigot, so that out-of-state athletes are no longer allowed to file comp cases in the Golden State. Immediately following this, the players will have to put the issue of life-long benefits for retired players on the bargaining table. This may seem obvious to those of us on the outside, but there is a reason why it may not happen: collective bargaining tends to focus on the needs (and greeds?) of today's players. Once out of the game, players - other than those joining a broadcast network - simply disappear.

As is so often the case, it's all about the money: money the owners want to preserve as profits; money the current players want in their own pockets. While management and labor are undoubtedly sympathetic to the former players, the latter are out of the limelight, struggling day by day to function with compromised bodies and brains. They paid the price. Someone should step up and negotiate a reasonable settlement. It's time for this particular form of California scheming to come to an end.


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February 22, 2013

 

From the "what not to do" school of safety, we have this amusing video tutorial by Mehdi Sadaghadar on Electrostatic Discharge. And once you've learned what not to do from the helpful Mr. Sadaghader, you can visit the Mr. Static page, which includes info on charging, ionization, explosions, and other ESD-related topics. You can also obtain very helpful information from the Electrostatic Discharge Association - including some ESD Compliance Posters. Most of the danger revolves around the potential for ignition or damage to expensive or sensitive technology equipment. An ESD ignition in an explosive environment could cause a fire or explosion, so the potential for injuries to humans does exist.


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February 20, 2013

 

The severe injuries to a utility lineman in Tennessee delineate the fine line where "no fault" ends and "willful intent" begins. In January 2009, Troy Mitchell and his crew were replacing a forty-foot power pole with a new pole forty-five feet in height. Mitchell was in a bucket lift near the top of the new pole preparing to attach a lightning arrestor when a copper ground wire that he held in his bare hands came into contact with a transformer on the older, charged pole some five feet below. Mitchell received an electrical shock of approximately 7,200 volts. He suffered severe burns and injuries to both hands. Clearly, Mitchell was in the course and scope of employment, but he had removed the safety gloves that would have prevented the injury. So is this a case of no fault coverage or willful disregard of safety rules? Are Mitchell's injuries compensable?

There is no doubt about the severity of the injuries. Mitchell underwent eight surgeries--five on the left hand and three on the right. Procedures included cleaning the wounds, cutting away dead tissue, and removing healthy skin from Mitchell's forearms and upper arm to suture into the hands. Following these surgeries, he underwent physical and occupational therapy for ten-months in an effort to reduce the swelling in his hands and increase strength and flexibility. He was also treated for burn injuries to his side. Just over one year after the accident, Mitchell was able to return to work in the same position he held at the time of the accident.

Before considering the compensability issues, let's take a moment to applaud Mitchell for his gritty recovery and his fierce determination to get back to work. You could hardly ask for a more motivated worker.

An Initial Determination of Compensability
A trial court found the injuries to be compensable. They awarded Mitchell a vocational disability rating of 39% permanent partial disability to the body as a whole--one and one-half times the 26% medical impairment rating to the body as a whole. The court noted that Mitchell is "apparently a tough guy. He's back at work. He and the doctor worked together to make sure there were no restrictions. This is a profound injury. He has deformity on both of the hands. It's quite visible."

In addition to an award of $117,312.00 for permanent partial disability, the trial court granted $23,462.40 in attorney's fees and $1,669.20 in discretionary costs. (As much as we would like to explore the concept of "permanent partial disability" ratings for people who are able to perform their original jobs, we must set that aside for another day.)

The Appeal
Mitchell's employer appealed the compensability determination. In Tennessee - as in most states - there is a four-pronged test for willful intent. No one questioned that the first three tests had been met: (1) at the time of the injury the employer had in effect a policy requiring the employee's use of a particular safety appliance; (2) the employer carried out strict, continuous and bona fide enforcement of the policy; (3) the employee had actual knowledge of the policy, including a knowledge of the danger involved in its violation, through training provided by the employer.

The crux of the matter arises in the fourth test: (4) the employee willfully and intentionally failed or refused to follow the established policy requiring use of the safety appliance. In other words, the sole issue was whether Mitchell's removal of his gloves while in the performance of his duties was a willful disregard of safety policy.

Mitchell testified that he had worn his protective gloves when lifted in the bucket and when he covered the "hot" lines on the lower pole with rubber blankets and hosing. Having done that, he believed that he was in a "safe zone" and "clear" of the danger five feet below. He then took off his gloves to hammer a metal staple, which was to secure a lightning arrestor into the crossarm of the new, taller pole. Mitchell explained that it was easier to hammer without the gloves and, further, that he "didn't want to puncture a hole" in the gloves. After removing the gloves, he remembered being struck by a "ball of fire." He later realized later that the copper ground wire he was handling at the time must have come into contact with the transformer on the lower pole. He further testified that because he had removed his gloves under similar circumstances on previous occasions, he did not believe that he was exposing himself to danger.

On cross-examination, Mitchell acknowledged that the employer's policy was that "any time from cradle to cradle, which is when the bucket closes, you have to wear your rubber gloves if you're around anything hot․" He admitted that when he was "around" the hot wires, the rule required him to wear his gloves for safety reasons. He further understood that the employer's policy required leather gloves as an additional covering to guard against puncturing the rubber gloves. He agreed that his gloves were in perfect condition and that he should have kept them on as he attached the staple. Mitchell conceded that his failure to do so violated the safety rules. When asked whether he could hammer the staples with the gloves on, he responded, "Yes, but it's hard."

The cost of replacement gloves was not an issue: the company's safety coordinator confirmed the gloves were provided by the employer and were immediately replaced when punctured or worn out. As a result, it appears that Mitchell was just trying to save his employer a few bucks by not ruining the gloves!

The Supreme Court of Tennessee determined that Mitchell had indeed willfully disregarded company safety policy and thus was not eligible for benefits under workers compensation.

A Compelling Dissent
Justice Holder dissented from the majority opinion. She noted that Mitchell believed he was in a "safe zone" and was not in danger of electrocution when he removed his rubber gloves. Holder quotes the trial court: "it is plausible that [Mr. Mitchell] believed the pole he was working on was not hot." Holder goes on to note that although Mitchell's conduct in this case may rise to the level of negligence or recklessness, the removal of his gloves when he assumed he was in a safe zone should not be deemed willful misconduct.

Mitchell, an experienced lineman, made a judgment that he had protected himself from potential harm by covering the lower power lines with insulated blankets. He removed the gloves to more easily complete the installation process. He made a mistake, he was certainly at fault, but the action, in the opinion of Justice Holder, did not rise to the level of willful misconduct.

This case falls within the perpetual gray zone in which most disputes on compensability are argued. While the majority was technically correct in their determination, and while the law does not discriminate between worthy and unworthy employees, it is difficult not to side with Justice Holder in her dissent: Mitchell is in so many respects an exemplary worker. If the rules of comp could be made to bend toward justice, perhaps they would bend in the direction of this stoic and stalwart man. Unfortunately, that's not the way this system works.

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February 19, 2013

 

Last week, WorkersCompensation.com published a blog post by John D'Alusio entitled, "The Responsibility of Policyholder Education." In it, Mr. D'Alusio talks about a friend's troubling, frustrating and painful experience after a work injury, a torn finger tendon. The friend works for a self-insured Florida city whose claims are managed by an unnamed TPA. According to Mr. D'Alusio's friend, the TPA, slow off the mark, delayed necessary treatment, dueling physicians traded opinions (slowly) and the employer, the city, was uninvolved, uneducated and unhelpful. In a word, clueless.

Mr. D'Alusio's overarching question in all of this is, "Who's responsible for educating the employer and employee about the workers comp system?" In other words, who is responsible for teaching workers comp best practices to employers who are all legally required to comply with workers comp statutes?

Here at Workers Comp Insider, we don't usually talk about ourselves, but Mr. D'Alusio's question prompts me to step outside that box for a moment, because his question is the same one I faced nearly 30 years ago.

I was an entrepreneur looking to start a business, and friends in the insurance industry suggested looking at workers comp, because costs around the country were raging like a California wildfire, and nobody seemed to have any answers that worked.

Knowing nothing about the subject, I at least had fresh eyes. And what I saw was that, even though workers comp insurers, agents, TPAs, et al, claimed to provide employer education, no one was actually doing it. The only thing employers knew about workers comp was that they had to buy it, and if employees were injured, the insurer was supposed to take care of it. Employers lived in a workers comp wasteland.

That insight was why we created Lynch Ryan with the mission to educate employers that the workplace is the best place to control and manage workers compensation. We were successful in that, and we grew into a substantial and influential management consulting company, and in 1991 Travelers Insurance made us an offer we couldn't refuse, because they needed help. Heady stuff.

Yet, today, while large, enterprise organizations (many of them our clients), have sophisticated systems in place, systems that start with an unrelenting focus on safety, that provide immediate and excellent care for injured workers when safety fails, that return them to meaningful transitional work along a programmed path back to full duty, and that, consequently, keep costs to an absolute minimum, the other 80% of American business does not have the resources or the training to do the same, as Mr. D'Alusio's Florida example illustrates. Why? Because traditional training is expensive, and a $7,000 premium (add a zero, if you'd like) doesn't justify it, so everything is always unplanned and reactive. Moreover, many insurers, TPAs and agents have neither the time nor the inclination to provide meaningful training for the folks who pay the bills.

So, I'm back to my 30-year old question. We have millions of employers in America, call them all students. Who teaches, and how do they do it?

The answer? Technology and eLearning. That's our new sandbox. What's yours?

If you'd like to see what we're doing, here's a 1-minute tease. Contact Lynch Ryan if you'd like to know more - email me directly or connect with me on LinkedIn.

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February 14, 2013

 

Peggy Salvatore posts a sweet Health Wonk Review - Valentine's Day Edition: Here's Your Heart! at Healthcare Talent Transformation blog. The compendium of posts from some of the brightest minds in the health policy blogsphere is a good way to take a biweekly pulse of healthcare policy developments if the topic isn't on your radar every day!

Valentine's Day - As long as romance is in the air today ....Taking the pulse about workplace romance on Valentine's Day and 5 Tips To Avoid Legal Fallout From Workplace Romance. Also, February is heart health for women month: Check out (and circulate) the Mayo Clinic's Heart disease in women: Understand symptoms and risk factors. And on the silly side, see Cupid urges you to Insure Your Love

You may be older than you think - Kevin Ring of PropertyCasualty360 offers the first installment of a two part series discussing NCCI's recent reasearch on aging: For Older Workers, The Game Has Changed: Part 1. One of the interesting points is that at least in terms of claim costs, the research suggests that redefining "older" as workers over aged 35 makes more sense.

The business case for safety - Drew Greenblatt, president of Marlin Steel, offers this advice to employers: Stop thinking of safety as an obligation. The rewards are greater than you think. Marlin Steel, a U.S.-based manufacturer of wire baskets and sheet-metal fabrications that has grown 25% over the past three years, just passed 1,500 consecutive days without a safety accident. Related: Calculating the ROI of corporate social responsibility

If your RTW program is broken, check these common mistakes - EBN has features a good slideshow that covers 10 costly return-to-work mistakes - it encompasses everying from failing to account for the effect of comorbidities to failing to understand the requirements of FMLA, ADA and other laws. See if your program measures up.

OSHA leadership - Wondering if there will be any OSHA leadership changes at OSHA in President Obama's second term? Not according to Jordan Barab, deputy assistant secretary, who recently said that he and David Michaels will stay in place. No successor has been named for uutgoing Labor Secretary Hilda Solis yet. (Hat tip to Tammy Miser of The Weekly Toll).

Rise in "questionable claims" - The National Insurance Crime Bureau (NICB) recently released its 2012 questionable claims report. Over the period from 2010 to 2012, NICB saw a 26.7% percent overall increase in referred questionable claims, and a 15.7% increase from 2011 to 2012. Questionable claims are those claims that NICB member insurance companies refer to NICB for closer review and investigation based on one or more indicators of possible fraud. Here is the full Analysis of National Insurance Crime Bureau 2010, 2011, 2012 Questionable Claim Referrals (PDF) or view the executive summary via press release.

Noteworthy News

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February 12, 2013

 

Temporary worker Lawrence Daquan Davis was 21 years old - just a few months over the legal drinking age in Florida when he began working at the Bacardi Rum bottling plant in Jacksonville. Sadly, he had a very short career. It began on August 16, 2012 and ended shortly before 5 pm on the same day after he was crushed and killed by a palletizer machine. Davis was an employee of Remedy Intelligent Staffing, a temporary staffing agency that was contracted by Bacardi Bottling.

According to OSHA, which issued $192,000 in penalties to Bacardi this week for a dozen willful and serious violations, the company had failed to train temporary employees on lockout-tagout procedures and failed to ensure its own employees used such procedures. Lockout-tagout is an industry standard designed to ensure that dangerous machines are properly shut off during maintenance so they can't be started up until completion. There's a locking device that renders the machine inoperable, and a tag to alert others that the machine is shut shut down.

In speaking of this death, Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels issued the phrase that is the title of our post. He also said:

"We are seeing untrained workers - many of them temporary workers - killed very soon after starting a new job. This must stop," said Michaels. "Employers must train all employees, including temporary workers, on the hazards specific to that workplace - before they start working. Had Bacardi done so, this tragic loss of life could have been prevented."

The Texas Mutual Insurance Company Blog has a post about The ABCs of New Employee Safety. The post offers some good tips on tips on safety education for new employees, along with these statistics about the high rate of injuries to new workers:

"Approximately 27 percent of job-related fatalities involve employees who have been on a new job for less than 90 days, according to a recent Texas Mutual claim analysis. Similarly, the Occupational Safety and Health Administration (OSHA) Office of Statistics says 40 percent of employees injured at work have been on the job less than one year. New employees need to be made aware of how serious safety training is from their first day at a new job."

New workers - particularly young workers - are often inexperienced and unaware of the hazards in a new workplace. They are also often eager to please, to keep the job. We've written about the importance of training and safeguarding young workers many times.

The on-the-job death of a young worker is a terrible way for a company to "get religion" about safety.

Related:
OSHA's Lockout-Tagout Interactive Training

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February 7, 2013

 

The Insider is very much looking forward to the Workers Compensation Research Institute (WCRI) annual conference, taking place on February 27-28 in the virtual epicenter of wonkiness, Cambridge MA. There is always much food for thought in these annual gatherings of insurance execs, state officials, policy makers, attorneys, medical specialists, employers and safety/loss control practitioners.

This year's agenda has zeroed in on the fundamental medicine-related conundrums facing workers comp systems across the country. All of us in workers comp long for insights into the following:
- Unnecessary medical care and its impact on treatment guidelines. (Back surgery, anyone?)
- Medical price regulation: what are the essential elements of an effective fee schedule? (Beware of the state where the doctors love comp...did someone mention "Connecticut"?)
- The Opioid epidemic: treatment protocols involving the generous and prolonged distribution of opioids are destroying lives across the country. Why are so many doctors so clueless about the proper use of pain killers? Whatever happened to "do no harm"?

WCRI's head honcho, Dr. Richard Victor, will host a discussion on health care policy involving (the presumably liberal) Howard Dean and (the assuredly conservative) Greg Judd. The dialogue might not equal the fireworks of July 4th on the Esplanade, but it might come close. The Insider will be listening closely for any indications of that rarest of phenomena: a common ground.

From Gorilla to ?
Last year, Dr. Victor concluded the conference with a discussion of the "gorilla in the room": the enormous and perhaps insoluble problem of structural unemployment among the 20 million people who lost jobs in the recent recession. For many of these people, especially those in their 50s and 60s, there is little prospect of returning to jobs with anywhere near the same rate of pay as before. Many will find themselves lost in the new economy, cobbling together part-time employment without benefits, while struggling to hold onto housing where mortgages exceed the value of the home. Tough times and, so far, not much in the way of effective solutions.

This year Dr. Victor will have to find some other animal analogy to glean lessons from history: Giraffe in the closet? Rhino in the den? He tells us that the lesson might have something to do with the first century Ephesians, toward whom St. Paul addressed some rather famous snail mail. While some might find such a teaser a bit obscure and full of religious overtones, the Insider looks forward to the story. Indeed, we look forward to this year's entire conference with great anticipation. There are few things better for policy wonks - our people! - than listening to the latest research from WCRI. Diligent note-taking will be in order.

If you count yourself among those with wonkish tendencies and you haven't signed up yet, you'd best jump on it immediately. If you have any questions about the conference, contact Andrew Kenneally at WCRI: 617-661-9274.

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February 6, 2013

 

Study-Palooza - Joe Paduda offers his analysis of work comp hospital costs as reported in WCRI's recently released 20-state study on outpatient hospital costs. And Joe is really letting his nerd side show with a report on two other workcomp-related research studies, one dealing with back surgery outcomes and the other, the use and cost of compound medications.

Health data - While on the topic of research, you may want to bookmark the Pew Research Center's Health research page. It offers excellent insight as to how people are using the Internet to access health-related information. A recent study shows that seven in ten (69%) U.S. adults track a health indicator for themselves or a loved one and many say this activity has changed their overall approach to health.

20 Years Today - Today is the 20th anniversary of the Family Medical Leave Act (FMLA). Occupational Health & Safety features a story on a survey conducted by the Department of Labor to learn how the law has affected employees and employers. The survey showed 16 percent of workers took FMLA leave within the last year, 56% of whom were women. More than half took leave for their own illness (57%), for new child-related reasons (22%) or to care for a family member with a serious health condition (19%). While the law is praised as "the first step in creating a more family-friendly American workplace" by many and hailed as a boon to families, there are some employees who would not agree. Plus, many employers would cite abuse, problems and confusion in implementing and complying with the law. Noncompliance can be costly - see Failing to Train Supervisors in FMLA: $1.2 Million Loss to Employer. One of the best resources we have found for keeping up with FMLA emerging issues, case law and changes is employment law attorney Jeff Nowak's FMLA Insights. Jeff has comments about the FMLA anniversary and the DOL survey results, which he calls "curious."

Terminations - Sharon Lauby hosts a blog delightfully name blog, HR Bartender, well worth keeping on your radar. She recently posted about How to fire an employee. This week, she followed up with Terminating Employees: How To Fire Right, which includes a valuable guide from employment law attorney Mark Neuberger, which you can download at no cost, and with no registration required. The first line in this guide gives a reason why you should go there and download it now: "Every termination decision should be based on the assumption that it will be challenged before an administrative agency, a court or both."

Out-of-This-World Twitter posts - Some people's work environments are a little more interesting than yours and mine. Canadian astronaut Chris Hadfield stunning images taken from the international space station. You can follow his Twitter feed for more: @Cmdr_Hadfield.

News Briefs


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February 6, 2013

 

This week's risky roundup is posted at Dennis Wall's Insurance Claims & Issues blog. Check out Cavalcade of Risk #176: Healthy Risks, Risky Health.

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February 1, 2013

 

Maggie Mahar has posted a fresh edition of health policy wonkery in the Health Wonk Review: Waste, Warnings and the Future edition at Steve Anderson's HealthInsurance.org Blog.

As many Workers' Comp Insider readers are aware, "carnivals" are a roving compendium of posts on a given theme - in this case, health policy issues. Our friend and colleague Joe Paduda founded Health Wonk Review - we were happy to help him launch and have been an active participant since. (We also participate in Hank Stern's Cavalcade of Risk.) Health Wonk Review is hosted at a different blog biweekly and includes some of the best bloggers on the topic of health policy, from physicians and consultants to insurance agents and academics, all of whom bring their particular spin to the posts they host. As a financial journalist and author of the book Money-Driven Medicine: The Real Reason Health Care Costs So Much, Maggie is a savvy commentator on the healthcare scene.

Check out past issues of Health Wonk Review.


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