Lynch Ryan's weblog about workers' compensation, risk management, business insurance, workplace health & safety, occupational medicine, injured workers, insurance webtools & technology and related topics

July 26, 2004

Top 10 reasons injured workers retain attorneys

The Public Entity Risk Institute (PERI) has a wealth of resources on its site so we'll be adding it to our sidebar under "organizations." In digging through the site we came upon a symposium topic that was presented last December by Massachusetts plaintiff attorney Alan S. Pierce entitled Top Ten List as to Why Injured Workers Retain Attorneys. (pdf) The article presents a good overview of practices that are fairly guaranteed to drive an injured worker into the arms of an attorney - all from the perspective of an attorney who has seen his share of worker grievances. It's instructive reading in how not to treat an employee who has been injured on the job. You can read his full remarks in the linked article, but here's an overview of his top ten reasons:

1. Claim is denied
2. No contact by employer or insurer
3. Overbearing or intrusive contact by the employer
4. Bills unpaid, prescriptions unreimbursed
5. Lawyer advertising/solicitation
6. Advice of friends, family, or medical provider
7. Lack of modified duty work/employer harassment after return to work
8. Worker/employer dissatisfaction
9. Loss of health insurance; other benefits
10. The accident that never should have happened

PERI offers access to a wealth of other risk management articles and papers by industry experts from past symposiums, and while some are geared to topics that are specific to the needs of its member organizations, (e.g., fire departments) many cover general employer-related issues.

Posted by Julie Ferguson at 10:53 AM Link to, Comment (0), or E-mail this post
July 22, 2004

Weblog roundup: subrogation, TB in DC & VA, CFO survey, PBMs, robots, & more

Construction site injury - can someone other than a comp carrier be liable? - subrogation case law from Michigan Comp Law.

A few recent offerings from Jordan Barab at Confined Space: TB Control in DC and VA and Immigrant Worker Fatalities - the Facts

Duke University CFO Survey - Duke University�s Fuqua School of Business polls the CFOs of both public and private companies in the U.S. representing a broad range of industries, geographic areas and revenues. (via Synergy Fest)

10 Questions That Benefits Managers Should Ask Their PBM - "Pharmaceutical Benefits Managers are often known simply as �PBMs.� While they are largely unrecognized by most employees -- and even by many benefits managers -- they have a tremendous impact on US health care decision-making because they influence more than 80 percent of prescription drug coverage. ... So how can you, as a benefits manager, make the best pharmacy decision for your employees?"(via Benefitsblog)

When good robots go bad - Industrial robotics provide unforeseen risks to humans. "In many of the reported cases, the injured workers were frequently found to have been inside the robot's safeguarded or restricted space during its automatic operation. In all cases the robot was following its programmed path; it was not behaving in an erratic or unexpected fashion. Finally, the injured workers were performing foreseeable tasks, such as repair or maintenance work, or were attempting to free up some kind of jam or problem."
(Via rawblogXport)


Cases Hold Date of Injury in Cumulative Trauma Case is Last Day of Work
- recent case law in PA from PAWC.

And two more legal resources to add to our sidebar: California Labor & Employment Law - A legal weblog (blawg) dedicated to news & issues surrounding labor & employment law in California. (via Inter Alia) and Lawyer News (via Ernie the Attorney).

Posted by Julie Ferguson at 9:49 AM Link to, Comment (0), or E-mail this post
July 19, 2004

Driving and Talking: Are headsets the answer?

If you want to talk on a cell phone and operate a motor vehicle in Washington DC, New York or New Jersey, you have to use a head set. A number of other states are contemplating requiring these head sets. But a July 19, 2004,article in the Wall Street Journal questions whether these headsets really make talking safer. Written by Jesse Drucker and Karen Lundegaard, the article raises some very interesting concerns about the headsets. (NOTE: Journal articles are available only via paid subscription, so we are not providing a link.)

Citing number of sources including the National Highway Traffic Safety Administration, the article points out that using headsets might actually increase the risks for drivers. Some studies show that drivers with headsets spend more time talking on the phone. More time on the phone translates into more time at risk. As it is, American drivers spend one billion minutes a day on cell phones, 40% of total cell phone minutes. That's an amazing number! In addition, some research indicates that drivers with head sets tend to drive faster, which obviously increases the risk. And even with a headset, the driver is still likely to fumble with key pads to dial the next call or check voicemail -- all of which places the driver at increased risk.

Many researchers feel that talking on a cell phone while driving is a always a distraction, whether or not a headset is used. Have you ever noticed how people on the phone tend to look up and away while maintaining the flow of conversation?

Safe driving is a bottom line issue: Your eyes are either on the road or not. Your focus is either on what other drivers are doing, or it is somewhere else. Any distraction from the issues of the road -- whether it's talking to a hot business prospect, changing CDs or switching channels on the radio -- contains the potential for tragic results. As for trying to take notes while driving, that is truly "over-the-top" risky behavior.

LynchRyan cautions employers to establish written policies on cell phone use. If a company encourages employees to conduct work while driving, the company may be liable for the driving mistakes that employees make while chatting away. Encourage employees to do any serious and detailed phone work at a rest stop.

We are a long way from fully understanding the risks of cell phone use while driving. But good managers will take steps to alleviate the exposures now, before an accident forces a re-examination of all your "on-the-road" policies.

Posted by Jon Coppelman at 4:04 PM Link to, Comment (0), or E-mail this post
July 17, 2004

Lightning strike prevention and survivor resources

A recent news story about a 42-year old Bradenton, Florida carpenter who was killed by lightening is sad a reminder that this is the prime season to be on alert for electrical storms. Every year, workers, account for about one third of the total number of people struck by lightening.

Lightning strikes are most likely to occur between 2 pm and 6 pm from June to August. While lightning strikes can occur anywhere, this lightning fatality distribution map demonstrates that there is a greater risk in southern and midwestern states. According to the National Lightning Safety Institute, "eighty five percent of lightning victims are children and young men ages 10-35 engaged in recreation or work. Twenty percent of strike victims die and 70% of survivors suffer serious long-term after effects.

Outdoor workers (or anyone outdoors, for that matter) should take precautions at the early onset of an electrical storm (pdf). These include seeking appropriate shelter and knowing the steps to take as last resort safety measures when in immediate peril.

Workers who spend time outdoors should be trained in prevention. Employers should include lightning safety policies and procedures as part of their overall prevention program, and should review these policies seasonally.

Roofers, construction workers, road crews, and farm workers are examples of jobs at risk, but risk managers should be aware of the risks for inside workers and those in vehicles, too...every year, people are injured or killed by lightning traveling through telephone lines.

According to the National Weather Service, about 20% to 30% of the strikes result in fatalities. The medical conditions resulting from strikes can be complex and sometimes rather mysterious, differing markedly from voltage shocks. In an article entitled Disability, Not Death, Is the Main Problem With Lightning Injury (pdf), Dr. Mary Ann Cooper discusses some of the medical complexities that can plague those recovering from the aftermath of a strike. Lightning Strike & Electrical Shock Survivors International, Inc. (LS&ESSI) is a nonprofit support group for survivors and their families.

More lightning resources
Hazard alert - lightning protection - from the Electronic Library of Construction Occupational Safety & Health (In English and Spanish)
Human Voltage - What Happens When People and Lightning Converge - from Science @ NASA
Lightning's Social and Economic Costs and other extensive resources from the
National Lightning Safety Institute - an organization that consults and trains in lightning safety and lightning engineering issues.
Lightning survivor stories and lightening photos - from the National Weather Service

Posted by Julie Ferguson at 8:57 PM Link to, Comment (0), or E-mail this post
July 16, 2004

Ohio getting tough on premium compliance

Employers in Ohio would do well to ensure that they keep their workers' compensation premium payments up to date. The Ohio Bureau of Workers Compensation (BWC) recently issued a press release naming employers who have lapsed premium payments.

Ohio is one of five states where a state fund is the exclusive provider of workers insurance. The other states are North Dakota, Washington, Wyoming, and West Virginia.

According to the release, more than 1,710 Ohio businesses are breaking the law by letting their premium reach a lapsed status of more than $1,000. The BWC takes efforts to bring employers into compliance, but when unsuccessful, the Attorney General pursues legal action. By publicizing the top 150 noncompliant Ohio employers, the state fund is enlisting the help of the public.

"Businesses that do not pay their premiums have an unfair advantage," [James] Conrad [administrator and CEO] said. "In competitive bidding situations, Ohio employers that do not pay into the workers' compensation system can undercut competition and unfairly win a job. By stealing from BWC and Ohio, these companies are also stealing work they normally might not win, and it's imperative the bureau, along with state's employers and taxpayers, put a stop to this type of activity."

As part of the push to secure compliance, BWC has added an employer coverage look-up tool to its website. BWC suggests the following scenarios where the tool might be useful:

  • Ohio homeowners who have recently hired a contractor for their services;
  • Ohio employers who are curious about those with whom they do business;
  • Ohio contractors who want to check on the coverage status of subcontractors.

With some few exceptions, failure by employers to secure workers compensation coverage for their employees is illegal in most states, and considered as fraud. Other types of premium fraud include under-reporting the number of employees or payroll, misclassifying employee occupations, or any other scheme to avoid or underpay premium. Many states encourage employees to report any suspected employer fraud to either their state insurance authority or the states attorney general's office.

Posted by Julie Ferguson at 8:39 AM Link to, Comment (0), or E-mail this post
July 14, 2004

California's woes continue

Things remain interesting in California.

Shortly after the legislature passed Gov. Arnold Schwarzenegger's sweeping reforms, Insurance Commissioner John Garamendi, announced that his office had calculated that those reforms, when combined with other, more minor reforms passed into law at the tail end of 2003, would translate to a reduction in total premiums statewide of nearly 21%. Well, here we are three months later. Insurers have filed their new rates, and the California Commissioner is not happy.

Correct that - he's happy with the two national carriers, Liberty Mutual and Republic Indemnity, which filed for reductions of 17.54% and 20.48%, respectively. Of course, those two giants only write a shade more than 4% of the state's premiums.

The overall reductions filed by all companies writing in the state, however, are only 10.38%, or half of what Garamendi wanted. Moreover, the behemoth State Compensation Insurance Fund (SCIF), which currently writes more than 53% of all premium, filed for only a 9.7% reduction in rates. (A separate issue, the ice we can't see under the water, is the very real concern for the solvency of the SCIF. The Department of Insurance will release a much-anticipated report on SCIF reserve adequacy in August, 2004. We should learn a lot from that report.)

With premiums in the state having soared to well over $20 billion, the Governor wanted to cut California's rates in half over time. That would nearly approach where rates were five years ago, before everything blew up. Unfortunately, what we see to this point won't even get him 20% of the way there.

No matter how the politicians in Sacramento spin it, employers in California continue to face business-breaking costs in workers' compensation.

Posted by Tom Lynch at 3:24 PM Link to, Comment (3), or E-mail this post
July 13, 2004

Company Outings -- Compensable fun?

The business section of the New York Times features a light-hearted look at the problem of misbehaving at the company picnic. While this article focuses on controlling damage to your career, LynchRyan has traditionally focused on keeping injuries at social events off of workers compensation loss runs.

This is the season for company outings -- picnics, golfing, perhaps even an Outward Bound experience. Depending upon how the events are structured, employees who are injured might be able to file workers compensation claims. For example, if your company sponsors a golf tournament, and if you ask employees to staff the booths and provide support, they are in effect "working" and any injuries (slip and fall, lifting a box of beverages) would likely be compensable. The exposure may go a step further. For example, an employee out golfing with valued clients who tears his rotator cuff swinging a 7 iron could reasonably claim that the injury occurred "in the course and scope of employment."

Generally, to fall under workers compensation the employee must be engaged in an activity that explicitly furthers the interests of the company. Another important criteria is whether or not the activity is voluntary. If employees are compelled -- or strongly encouraged -- to attend and participate, any injuries are more likely to be considered work related. So put up the volley ball net, but never tease people into participating.

Are we recommending that companies avoid sponsored recreation and the entertaining of clients? Not at all. But as with all risks, we think it's important to keep your eyes open. Make sure the event is safely structured. Don't ask normally sedentary employees to take on physically demanding tasks. And above all, make sure any alcoholic beverages are dispensed by a licensed and fully insured professional. Have fun, but be careful.

Posted by Jon Coppelman at 1:26 PM Link to, Comment (0), or E-mail this post
July 9, 2004

Weblog roundup: exit interviews, settlements, tort reform, & disease prevention

George Lenard reminds us that exit interviews are important and points us to this sample exit interview from Workforce.

Ronald Ryan tells us how workers compensation settlements are calculated in Michigan.

Are personal injury lawyers in Pennsylvania looking to workers comp after tort reform? A cap on non-economic damages in medical malpractice liability cases seems to have attorneys looking for other sources of income. Thanks to Judge Robert Vonada at PAWC for the article.

The Harvard Center for Disease Prevention features a series of online medical risk assessment tests that help you determine your risk for the big 5 - cancer, heart disease, diabetes, osteoporosis, and stroke. We found this via Research Buzz, an excellent site by Tara Calishain that covers the world of Internet research.

Posted by Julie Ferguson at 8:45 AM Link to, Comment (0), or E-mail this post
July 7, 2004

Research: outcomes for injured workers

This year's NCCI Issues Report contains a report by Richard Victor of the Workers Compensation Research Institute (WCRI) of Cambridge, MA on WCRI's ongoing study of injured worker outcomes in California, Massachusetts, Pennsylvania, and Texas. The objective of the research is to measure key outcomes that are frequently at the heart of public policy decision making:

  • recovery of health
  • successful return to work
  • injured worker access to healthcare
  • injured worker satisfaction with healthcare

Most interestingly, the highest per-claim medical expenditures and the highest frequency of visits do not necessarily yield the highest satisfaction by workers or the best outcomes.

"For example, workers in Massachusetts and Pennsylvania report better outcomes after their injuries, on average, than do workers in California and Texas. This includes better perceived recovery of physical health and functioning; more frequent, faster, and more sustainable returns to work; greater access to desired providers and services; and higher levels of satisfaction with their healthcare.

Better outcomes occur in Massachusetts and Pennsylvania even though workers in California and Texas receive more medical services, on average, that generate more medical expenses for employers compared with workers in the other states. Further, this occurs despite the fact that workers from each of the four states report, on average, similar perceived severity of injuries."

One of the specific examples that the report cites is that Massachusetts, a state with some of the best outcomes, also has the lowest medical prices of the four states at $4,937; in contrast, Texas has one of the poorest worker outcomes, yet it has one of the highest medical prices of the four states at $11,617.

It's a report worth your time to read. This is one of the first major studies to measure injured worker satisfaction and outcomes, and to measure them against a multi-state backdrop so that system variables can be compared and contrasted.

The annual Issues Report available at NCCI is always worth checking out. Also, we keep a link to WCRI in the sidebar - it's a good practice to periodically visit the WCRI - What's New page to keep abreast of their current research and reports.

Posted by Julie Ferguson at 10:11 AM Link to, Comment (0), or E-mail this post
July 2, 2004

Weblog roundup - "concierge medicine," trench deaths, and other news

Asking us if we have lost our capacity for outrage, Tom Mayo reports on the disturbing trend of concierge medicine in a post at HealthLawBlog. The nub of the story is that a class of medicine is emerging where those who can afford it essentially pay an additional premium - or "a bribe," as some have called it - to ensure quality care. Read his post and the source article from Newsday entitled Good health care: for rich people only?.

Just in time for the 4th of July, OSHA announces and Alliance with the American Pyrotechnics Association to promote fireworks safety. Via rawblogXport.

Perhaps OSHA should be putting more efforts into enforcement and less into Alliances? Jordan Barab reports on another infuriatingly preventable trench death. If you follow Confined Space, this is a sad litany you will find over and over again in his posts. Yet as Jordan reports, compliance with OSHA standards could prevent trench deaths.

Workforce Insights is an online resource for HR practitioners that covers news about emerging labor trends and issues. It's sponsored by a Fidelity staffing company, Veritude. Thanks to Benefitsblog for the pointer.

Last week, we wrote about workers comp coverage for contract workers in Iraq. For more information on the topic of contract workers in Iraq, Workforce Management currently features an article about contract workers entitled Dangerous Business. Also, the Washington Post has a report about an underclass of foreign workers who are being recruited - often unwittingly - to work in Iraq. These workers get less pay, poor food and shelter, and inadequate safety measures in comparison to U.S. counterparts.

Have you visited KivaCom yet? We've pointed it out before, and it is among the resources in our sidebar. It's a great resource that culls some of the most significant national and regional (Ohio) news stories on workers comp, health care, legal, labor and safety issues...well worth a regular visit.

Over & out - have a happy and safe holiday weekend, people!

Posted by Julie Ferguson at 9:36 AM Link to, Comment (0), or E-mail this post
July 1, 2004

Workers compensation jurisdiction: injury in one state, employment in another

If a worker is employed in one state but suffers an on-the-job injury in another state, under which state would benefits be paid? This is a question that frequently surfaces, particularly with today's often-mobile work force. As with many things in workers comp, it can be confusing for employers and injured workers alike, and the difference in benefits from state to state can be significant.

Remember, there is no one national law for workers comp - state law prevails. Each state has a different level of benefits. Maximum weekly benefits for temporary total disability range from a scanty $331 a week in Mississippi to a high of $1,103 in Iowa. Federal employees who are covered under the Federal Employee's Compensation Act may be entitled to up to $1596 a week in wage replacement. (Source: DOL)

The vagaries in benefits from one state to another don't stop at wage replacement. Other issues might include whether the employee or the employer can choose the physician, the length of the waiting period before benefits kick in, whether vocational rehabilitation is covered, how long benefits will be paid, survivor benefits in cases of fatalities, etc. The jurisdiction may also have an effect on an employer's immunity from tort action or rights of recovery through subrogation.

Each state treats jurisdictional issues differently. In his September 2000 article for the International Risk Management Institute, Jurisdiction in Workers Compensation Cases, Jim Pocius presents an overview of the topic. Generally, the state where an injury occurred will have jurisdiction; most states will also assume jurisdiction if an employment contract was initiated in that state or when a state is the principal place of employment. In conflicting scenarios, an employee might select the state to file a claim, although the employer might dispute this. In some cases there might be dual jurisdiction with benefits partially paid by each state. (In such cases, there would not be full benefits from each state.)

The claims that resulted from the September 11, 2001 events illustrate many of the jurisdictional complexities that can exist. Many of the deceased or injured workers lived in New Jersey but were employed in New York; other workers were employed by multi-state or multi-global firms. Dual jurisdictional issues were rife. John Gelman and Lewis Heller discuss these issues in some depth in an article entitled World Trade Center Tragedy Creates Complex Workers' Compensation Issues

"Recognizing that employment relationships are becoming more geographically complex as a result of interstate and international relationships, the courts have become increasingly challenged with problems of choice of law. Sometimes the courts have to go beyond the traditional tests (site of injury, site of contract, or site of employment) in order to determine which forums law should be applied. The courts have considered fairness to claimants in selecting an applicable law. Two major considerations in NJ are the public policy demand that the injured employee be cared for adequately within the State of NJ and the mandatory nature of workers compensation in NJ.

In the case of a work injury with jurisdictional issues, both the injured worker and the employer would do well to examine the relevant states' statutes to review how the law treats jurisdiction, and to review benefits, rights, and responsibilities. Insurance companies do not decide jurisdictional issues. The state authorities that have responsibility for workers compensation issues are the arbiters in matters of jurisdiction, and most governing bodies would heavily weigh issues of fairness to the worker, a principal that is at the heart of all workers compensation statutes.

The Pocius article cited above offers some risk management recommendations for employers and a 1997 article in Rough Notes by LeRoy Utschig discusses extraterritoriality -- coverage of workers who are temporarily employed in other states -- and how this issue should be treated in the declarations page of your policy. (While some of the state particulars in the article may be dated, most of the issues remain the same.) Of course, the best risk management of all would be to ensure that any traveling workers are trained in job safety issues and well versed in any company safety policies and practices.

Posted by Julie Ferguson at 12:42 PM Link to, Comment (0), or E-mail this post