Heat stress rules go into effect in Washington, California
For the second year in a row, Washington is implementing an emergency heat-stress rule designed to protect outdoor workers. It took effect on June 5 and will run through October. The rule requires employers to provide outdoor workers with a quart of drinking water per hour, to educate employees about risk factors for heat-related illness, and to have some area to treat workers who exhibit heat-related symptoms, such as shade canopies or air conditioning.
The Department implemented the rule after the death of an agricultural worker from heat-related stress in 2005; in 2006, a construction worker died on the job while working in a trench, further solidifying the Department's resolve about the need for such a measure.
Unsurprisingly, the measure is unpopular with several business groups, which view the rule as both needless and an intrusive layer of bureaucracy. An additional bone of contention is that business had no input into the measure. At the end of this season, the state's Department of Labor & Industries plans to establish a permanent rule and to seek public input in the process.
California regulation was the pacesetter
Washington is not the only state with such a measure. In 2006, California became the first sate to adopt a heat stress regulation after a spike of 13 heat-related deaths in 2005. In a reminder to employers for the coming season, Cal/OSHA reviews the basic provisions:
Under the new heat illness regulation, employers are required to take four basic steps to prevent heat illness at all outdoor worksites: develop and implement written procedures on heat illness prevention; provide heat illness training to all employees; make readily available and encourage each employee to drink four 8-ounce cups of fresh water per hour; and provide immediate access to shade or any cool area out of the sun for recovery periods for at least five minutes at a time.Coming to a state near you?
Could such regulations be the beginning of a trend that will move to other states? Last year, the Centers for Disease Control and Prevention issued a report which showed that heat-related deaths are increasing, although some think that the increase can be attributed to better tracking. The report is not specific to workplaces, but if the numbers of heat-related deaths continue on an upward trend, it is possible that we may see an increase in state efforts to protect at-risk populations, including workers
Wise employers who have outdoor workers will look to control risk and prevent heat-related illness, regardless of state mandates. Any time the temperature exceeds 90 degrees, workers should be protected. In addition to providing sufficient water and access to shade, employers should be on the alert for employees with high risk factors. Acclimation to the heat is very significant - a new worker or a worker returning from vacation is at greater risk than a worker who has been acclimated to the heat over a few weeks. Many cases of heat stress occur to workers on the first day of the job. Other risk factors may include pre-existing medical conditions - obesity, diabetes, and heart, lung and kidney disease. Workers who are on medications and workers who are nursing hangovers may be at risk because they are starting work already in a dehydrated mode. OSHA has a Quick Card on Heat Stress (also in Spanish), as well as a Fact Sheet about Working Outdoors in Warm Climates(PDF) that includes prevention tips for heat stress, along with other outdoor hazards.
California - Heat related illness prevention and information
Washington - Outdoor Heat-Related Illness (Heat Stress)
OSHA Technical Manual on Heat Stress
Heat Illness in the Workplace: How You Can Control the Risk
CDC Frequently Asked Questions About Extreme Heat
Heat stress: fluid and electrolyte balance can be fatal
Unsuitable Modified Duty, Wrongful Termination and Attorneys with Cash
On September 10, 2001, just one day before this country's sense of security collapsed along with the World Trade Center towers, a smaller world collapsed around Anthony Boyle, an employee of the Weyerhauser Company in New Jersey. A 600 pound bale of waxy cardboard material fell from a conveyer belt. Boyle used his back to prop it up. He suffered two herniated discs in the accident.
Then Weyerhauser tried to do the right thing. Or did they? They sent Boyle to their doctor, who prescribed some strong medication (presumably narcotics) and released him for light duty. What happened next is a little unclear, as the two available press reports (available here and here) are not consistent. It appears that the light duty work involved operating a sweeper, which had no power steering and stressed Boyle's arms and shoulders, thus aggravating the injury to his lower back. In addition, in order to operate equipment, Boyle had to forego use of the narcotics prescribed by the company doctor. He tried to rely on aspirin to manage the excrutiating pain.
In too much pain to comfortably operate the sweeper, I'm guessing that from time to time Boyle continued to take the prescribed narcotics. At some point, he failed a company drug test. He was terminated for violating substance abuse policy.
Boyle sued for wrongful termination. A Camden jury recently awarded him $606,000, including $86,000 for lost wages, $70,000 for emotional distress and $450,000 in punitive damages. Clearly, the jury did not buy Weyerhauser's approach to modified duty: knowing that Boyle was in a lot of pain, they put him in a position that aggravated the injury and at the same time prevented him from taking prescribed medication for that pain. Their mistake was in requiring him to operate equipment in his modified duty position. A more reasonable accommodation would have involved Boyle doing lighter tasks that did not require the operation of equipment. If such a position were not available, the company should have allowed Boyle to collect indemnity until his back improved to the point where narcotics were no longer needed.
A Word to the Wealthy
Boyle is probably satisfied with the work of his attorney, Daniel Zonies. The attorney made a good case and secured a pretty substantial payment. But a word of caution to Mr. Boyle. If he googles his attorney's name, he will find Mr. Zonies in some pretty dubious company. He is listed among the New jersey attorneys who were disciplined in 2003. Zonies's problem? The Office of Attorney Ethics reprimanded him for failing to safeguard client funds, failing to deliver funds properly to clients and third parties and for record keeping violations (page 57). Zonies was ordered to submit quarterly reconciliations of his trust account for two years; unfortunately for Boyle, the order expired in 2005. Boyle, currently the manager of a hardware department for Home Depot, might be better off managing the money himself.
News roundup: health care reform, nursing safety, blog discoveries, retaliation, falls & more
Health Care Reform - Joe Paduda was blogging the Democratic candidates' positions on health care all last week. He offers a handy summary of where candidates stand on issues related to health care and offers his own prescription for the basics in health care reform. And in today's post, he tells us what voters want in health care.
Nursing safety - Massachusetts nurses are seeking stronger protection against on-the-job violence. Fifty percent of the nurses responding to a 2004 Massachusetts Nurses Association survey reported being punched at least once in the previous two years. Many say the problems are getting worse, and are looking to the state legislature to extend protections. Lawmakers are considering a bill that would require hospitals to conduct an annual violence risk assessment and violence prevention plans.
Blog discovery - We are happy to see that Claire Wilkinson of the Insurance Information Institute is blogging at Terms and Conditions. Her most recent post (as of this writing) is a notice about a carrier evaluation survey conducted by Willis on performance metrics.
And speaking of nurses as we have today, it's a good day to do a shout-out to Emergiblog, a nursing blog by Kim, a San Francisco-based nurse who deals with nursing-related issues and who often manages to infuse humor and style in her presentation. She also launched Change of Shift, a carnival for blogging nurses.
Falls in construction - rawblogXport reminds us of the heavy toll that falls take, particularly in construction. See our prior post on Falls and human fall traps: Fatalities in the construction industry.
Wrongful terminations - an in-house safety inspector was awarded $2 million in back pay, punitive damages and what the jury called "aggravation, inconvenience, humiliation, embarrassment and loss of dignity." He was formerly employed at a mine owned by Massey Energy Co. and was fired after reporting safety problems at the mine to the federal Mine Safety and Health Administration. And in New Jersey, a forklift operator for Weyerhauser Company won an award of more than $600,000 because he was fired within two months of his having been injured on the job. Most states don't take kindly to retaliatory firings. Jurors seem to like them even less.
- Specialty Insurance Blog offers some interesting links on the history of insurance.
- Thoughts from a Management Lawyer reminds us about the need to make summer jobs safe for young workers.
- Healthbolt offers a map of The State of the Union's Fat - Colorado is the leanest state, followed by Massachusetts.
There Goes the Judge
Chris Berkheimer was appointed as a judge in the New Mexico workers compensation system on May 5, 2007. Six days later, he was placed on leave from the $93,400-a-year job. What happened in the interim? He was involved in a mediation. During a break, he propositioned the injured worker (a woman), even though (unknown to the judge) the video camera was still operating. Of course, the wheels of justice grind exceedingly fine, so we will probably never know what the judge said to the woman. We will never know much of anything about this case. Berkheimer, dismissing the charges as "not true and ridiculous," has resigned.
Berkheimer stated in his letter of resignation to Governor Bill Richardson that "the best way for me to fight (the allegations) and protect my family was to resign." Read that comment three times and see if you can make any sense of it. (I thought the way to protect one's interests is to fight back - in court, no less!)
The state has agreed to pay the former judge $10,700 - 6 weeks pay - to forgo a state hearing. Berkheimer has agreed not to sue (for what?). And the critical part of the deal, of course, is that the report on the incident will not be released. The judge's inappropriate proposition, backed up by a video, have been sealed.
With any luck, the video will find its way to YouTube. In the meantime, we are left to contemplate the delicate state of trust that comprises the foundation of our legal system. Judge Roy Pearson, Jr. loses a pair of pants to a dry cleaner and sues for $54 million (it was a nice pair of pants). Judge Berkheimer lusts after a woman trying to collect workers comp. These two clowns no longer sit in judgment, but we can only hope that reasonably judicious people will take their places on the bench.
The Big Pizza Bust
Thirty two Westchester county businesses were busted today for workers comp fraud. All submitted written documentation to the state that they had no employees. The nature of the businesses indicates otherwise: the list of violators is limited to pizza parlors, delis and restaurants. While it is commendable that the state is going after companies for avoiding comp, we cannot give too much credit here: it's kind of obvious that any pizza parlor, deli or restaurant requires more than one person to operate.
Each of the business owners is charged under state workers’ compensation law and state penal law with fraudulent practices, a Class E felony; first degree offering a false instrument for filing, a Class E felony; and failing to secure Workers’ Compensation benefits for employees, a misdemeanor. The crimes are punishable by up to four years in prison.
“Workers comp fraud is a felony in New York State,” says Fraud Inspector General John H. Burgher. “We are confident that these arrests will send a clear message that we are aggressively looking for employers who don’t abide by our workers’ compensation laws.”
The Board levied a total of $550,000 in penalties among these business, which were calculated at $250 for every 10 days the employers were out of compliance prior to April 12. Following that date, a key piece of Governor Eliot Spitzer’s workers’ compensation reform initiative became effective, raising the penalty to $1,000 for every 10 days out of compliance. The employers were assessed the higher penalty for noncompliance after April 12.
Some of the fines look pretty hefty: $33,800 for Apple's Deli; $15,300 for Mount Vernon Pizza; and a whopping $62,500 for Roberto's Pizza and Pasta. Any way you look at it, that's a lot of slices. Of course, the only meaningful comparison would include the total comp premiums that these businesses avoided paying. And more important, you wonder how many employees of these companies were instructed not to report injuries, or who were fired when they got hurt. How many of these employees were undocumented and paid under the table?
This is a sorry saga, indeed, where much of the pain and suffering is well hidden. You would hope that the affluent folks in Westchester County might think twice about the cheap labor and shady business practices that help support their lifestyles. But who has time for moral niceties, when you barely have time to grab a slice with pepperoni on your way to picking up the kids at soccer practice?
Cavalcade of Risk #28
We're pleased to be hosting Cavalcade of Risk as we embark on Year 2. We have a full house today, so we'll dispense with any introductory blather and get right to the meat of the matter!
Bork Buzz - Eric Turkewitz of New York Personal Injury Law Blog looks at Robert Bork's million dollar plus trip/fall lawsuit suit against the Yale Club, a story that has the media and law blawgs buzzing. Eric files this under "risk to your reputation."
Shock waves in health care markets - Robert Laszewski of Health Care Policy and Marketplace Review examines a recent Wall Street Journal article that sent shock waves through the health insurance markets with the headline "Health Savings Plans Start to Falter." Bob posits that consumer-driven health care is a concept built on a free market foundation, a foundation proving to be pretty weak.
Another country heard from... Michael Cannon of Cato@Liberty was nonplussed when looking at the same WSJ article (see the post above) about the way consumers are viewing Health Savings Accounts. He sees some initial consumer dissatisfaction as necessary and inevitable, and thinks it should mitigate with expansion.
Money for nothing - Golbguru at Money, Matter, and More Musings wonders if free money increases risk tolerance in his post Mind Games - Guaranteed $500,000 Or A 50% Chance At $1 Million?. He points out that this is a strategy used by TV shows and gambling places to get people to take unreasonable risks.
Bridging the gap - Christina Laun of Ask the Adviser offers 17 important financial tips for women to help counter the financial disadvantages that most women face in the area of finances. Sound advice that men could benefit from, too!
How much is your life worth? - Jason Shafrin of Healthcare Economist offers a brief review of some methods economists use to measure the value of a person's life.
The sky is falling - Wenchypoo's crystal ball says that we’ve been in a cleverly-disguised recession for some time and it may bottom out into a full-blown depression. But whether it's a recession or a depression, the sky is falling on someone who is unprepared. She suggest there is a lot we can learn from our forebears who faced tough financial times before.
Heartless or pragmatic? - Which is more important, your job or a family member's health, perhaps even life? Before you answer, check out a true story posted by InsureBlog's Hank Stern. He examines a recent the case of a woman who was denied time off to donate a kidney.
Seasonal risk - David Williams of Health Business Blog looks at another type of personal risk: sun and UV exposure. He offers several resources, including the SHADE Foundation, established by Red Sox ace Curt Schilling's wife, Sondra Schilling.
Risk and compensability - Jon Coppelman of Workers Comp Insider examines the unusual case of a worker who was injured after fainting while in the john. Who foots the bill for such unexplained injuries - the employer or the employee?
Much ado about nothing - Tanta, blogging at Calculated Risk, questions whether the whole recent kerfuffle over sub-prime mortgage delinquencies is useful
Reducing the risks - The folks at Healthoma tell us that more fiber in our diets can help women reduce their risk of contracting breast cancer.
Dying to be thin - Dollymix alerts us to a new health concern. We've all heard of bulimia, but the newest concern on the disorder front is "Diabulimia;" young, female diabetics are skipping their insulin injections in the hopes of slimming down. Scary, and thus far under the radar.
Surgery as prevention - Louise at Colorado Health Insurance Insider makes the case for why health insurance companies should cover bariatric surgery.
Weighing the risks - FundsZine breaks things down in chunks in explaining one type of low risk mutual type funds: money market funds. Stay tuned, it's the first in a series on the advantages and disadvantages of various mutual fund types.
Beware the lone wolf insider - ID theft still makes news (and rightly so). Ed, writing at Operational Risk Management blog, has some disturbing information on the potential for employees to exploit lax auditing protocols.
Watching the watchers - The FDA Law Blog keeps an eye on the Federal Drug Administration, and in a recent post, alerts us to a new advisory group that the FDA is looking to set up.
Punishment and rewards - Chandler Howell, blogging at Not Bad For a Cubicle, uses the current system of prison safety as his launching pad to explain the difference between progressive risk management and regressive risk management.
Every picture tells a story - the Silicon Valley Blogger at Digerati Life uses photos and pictures to illustrate a lesson in the differences between stock market technical analysis and fundamental analysis.
Managing risk - Atlantic Canada's Small Business Blog notes that risk management is the process of identifying potential negative outcomes and managing them while realizing potential opportunities. They offer a primer on developing a risk management strategy for the small business.
Watch for our next issue - The Cavalcade of Risk's July 4th issue - will be posted on July 5th, and it's hosted by Wisdom From Wenchypoo's Mental Wastebasket - so be sure to drop by Wenchypoo's for some mental stimulation after your July 4 holiday!
Line of duty: nine firefighters killed in SC
Today brings the grim news that nine firefighters lost their lives doing battle with a fire in a sofa store in Charleston, SC. Our hearts go out to surviving family members and the community. For those of us in Massachusetts, this is sadly reminiscent of the Worcester warehouse fire that claimed six lives in 1999. Today's event joins the list of the nation's worst firefighting tragedies.
The details from this event are just emerging and will no doubt be played out over the news today and in the coming days. Apparently, a roof and shelving that collapsed caused the deaths. There were no sprinklers in the building. Ironically, this tragic event occurs during 2007 International Firefighter Safety Stand Down from June 17-23, a week dedicated to call international attention to the unacceptable numbers of line-of-duty firefighter deaths and injuries and the critical issues of firefighter safety.
Lack of adequate equipment all too often a factor in fatalities
While the investigation and analysis of the fatalities in this fire will follow, all too often, a lack of adequate equipment is a contributing factor to the fatalities. Earlier this year, MSNBC produced a special report on PASS warning device failures that resulted in 15 firefighter deaths between the time the problem was first reported to the CDC and when new standards were issued. PASS devices, or Personal Alarm Safety Systems, are worn by firefighters. They serve as a locator by emitting a beep or a chirp when activated or when a firefighter is no longer moving.
In the Worcester tragedy, as in the World Trade Center, radio failure added to the event confusion. In addition, thermal imaging equipment and fireproof rope safety lines were unavailable, equipment that might have prevented the loss of life. The FEMA report of the Worcester tragedy included several recommendations:
- Fire prevention efforts should target abandoned and even temporarily vacated building to avoid fires
- Proper permitting and on-going building inspections for construction changes within businesses can help reduce non-compliant interior finishes that contribute to combustion
- Large buildings such as warehouses and high rises require special search techniques and tools, including additional air tanks
- Better techniques must be developed to better track the movements of firefighters within a structure
- Alternative radio channels should be explored as radio channels can be overloaded at multiple alarm fires
- Thermal imaging cameras, while expensive, are invaluable equipment for all fire departments.
Firefighters will continue to put their lives on the line to save others - that's what they do. And we, their friends and neighbors, will continue to be grateful for their courage and sacrifice. The very least our communities should do is to make it a priority to provide them with the best prevention resources and technology that we can.
Unexplained Injuries at Work
Donald Delaware worked for Sunland Beef Co. in Arizona. He was in charge of processing hides. In October of 2004 the 71 year old took a bathroom break. The last thing he remembers is standing in front of a urinal. Co-workers found him bleeding on the floor. He suffered a concussion and some loss of memory. He apparently passed out and fell backward, hitting his head on the concrete floor.
Is this a compensable injury? The fundamental question is "why did he pass out?" Doctors could not pinpoint a cause. One consulting physician thought the fall was due to "micturation syncope" - a rather fancy way of saying "fainting while urinating." (Note to male readers: you can add this obscure risk to the ever-growing list of bad things that can happen to good people.) If this diagnosis were conclusive, Delaware's injury would not be compensable. Micturation syncope is not a work-related condition. However, another doctor said he could not be sure that the fall involved this specific cause. Ultimately, he stated, the cause of the fall could not be determined.
Given these facts, the administrative law judge and the appeals court ruled in Delaware's favor. (You can read the Appeals Court ruling here.) If something unexplainable happens at work and results in an injury, the injury is likely to be compensable. The benefit of the doubt always goes to the worker. The burden of proof for presenting a specific diagnosis to rule out compensability falls on the employer. Where a definitive diagnosis might force Delaware onto his own resources, an uncertain or neutral diagnosis results in concrete benefits for the injured employee.
One final thought. We have blogged with some frequency (here and here) the ramifications of an aging workforce. Mr. Delaware was 71 at the time of the fainting spell. I wonder how long he had worked at the company and how long he was planning to work. I wonder if his age had anything to do with the fainting spell. As the American workforce ages, we are likely to see a number of cases revolving around diagnostic conundrums: is it work related or is it micturation syncope?
Health Wonk Review #34
For the latest reads on health policy issues - everything from Armageddon to the uterus - head on over Health Business Blog. David Williams has done a masterful job in compiling the latest Health Wonk Review.
David's blog is always worth a read, too. We enjoyed the recent podcast and transcript of an interview with Rudy Rupak, Founder and President of Planet Hospital, one of the leading Medical Tourism companies. Rupak discusses a trip that opened his eyes to the potential for medical tourism:
"We started the company in 2002 when my fiancee and I were traveling overseas in Bangkok. I describe her as a professional patient and she got ill while we were in Bangkok and refused to go to a third-world hospital. She had visions of…you know, tents instead of buildings. And I tell her, at least get a shot of painkillers and come back to the hotel room or something. Now we go there and this hospital was just truly amazing. And, she had her own private nurse, a doctor who saw her within 20 minutes of her arrival, took ownership of the problem, and a chef to take care of her meal requirements based on the doctor’s orders. After three days stay with her medications, tests, etc., her bill was a staggering 411 dollars. And that’s when I thought there is a business here.
Also, David posts about sun exposure and UV protection - a timely issue with summer upon us -- and July is UV Safety Month. David discusses the SHADE Foundation, established by Sondra Schilling (wife of Red Sox ace Curt Schilling) and offers some resources for sun protection.
Of Wooden Legs and Wooden Lawyers
Chuck Bodine was an appliance repairman for Colorado based American Appliances, Inc. In June of 2005 he stepped out of a company truck and collapsed in a heap. (That's how drivers often are injured - getting in and out of their trucks). Bodine's artificial hip had shifted and sent him sprawling. He got a new hip, but his claim for workers comp was contested by his employer. Their attorney, Jonathan Robbins, cited an 81 year old legal precedent known as the "wooden leg" argument. Under this obscure doctrine, an accidental "injury" to a wooden leg did not qualify for workers comp. Comp covers "personal injuries" not "personal property."
Bodine argued, naturally, that his replacement hip is an integral part of his body. "This isn't something I can pop on and off."
Bodine won his case in front of an administrative law judge and at the state's Industrial Claims Appeals Panel, but for reasons unknown to the Insider, he was unable to collect a dime while attorney Robbins pursued his Quixotic appeals, all the way to the Colorado Court of Appeals. Meanwhile, unable to work, Bodine and his wife had to move in with his parents. The Court of Appeals has finally ruled in Bodine's favor. They point to changes in the state's comp law (in 1991 and 1994) which distinguish between internal and external prostheses. When the device is in your body, it's covered by comp.
After two years of inordinate delays, Bodine is finally in position to collect indemnity for his many months of inactivity. Comp will also reimburse his health plan for the cost of the hip replacement. This one looks like a no brainer. But when an attorney with a theory shows up, on behalf of an employer who appears deficient in compassion and common sense, any inventory of brains is at risk.
A Google search of "wooden legs" turned up a moving column by Beth Quinn in the Times Herald-Record about a couple of soldiers from WW II - one American, one German. Both lost legs during combat. Both suffered all their lives from recurring pain in their amputated limbs. And when they finally died, their respective governments asked that the limbs be returned. After all, these particular artificial limbs are government property. The German widow dutifully complied, but the American widow ignored the request and buried her husband with his prosthesis in place. I'm with her. If the government really wants it back, they know where to find it.
Thanks to faithful reader Jann Browning, an editor at Standard Publishing, for the heads up on this interesting case. She thought we would find it irresistible and, of course, she was right.
Pre-employment Testing: Between a Rock and a Very Hard Place
Frank Lima works for the Los Angeles Fire Department, where he oversees the screening of recruits. Back in 2004 he was supervising a training drill that involved hoisting heavy ladders against a building. A woman trainee later complained that she was singled out and harassed during the drill.
Soon after, Assistant Fire Chief Andy Fox told Lima that women have to be treated differently, in order to boost their numbers in the department. Women had to receive preferential treatment. Lima was at first suspended two days for the ladder incident. Then the suspension was rescinded and Lima received a reprimand.
Lima sued the city, alleging that he suffered heart problems and stress after the department tried to punish him and subsequently denied him certain assignments. A jury recently awarded Lima $3.75 million, including $2.96 million for pain and suffering. That seems like a lot of money under the circumstances, but this is, after all, California. And there is no doubt that Lima was put in an untenable position. In the aftermath of the lawsuit, Andy Fox, formerly in charge of the Department's disciplinary system, was reassigned. He now oversees risk management. (I will let our risk management readers figure out the logic of this particular demotion...)
In its haste to increase the number of women fire fighters - with pressure coming directly from City Hall - the department clearly put Lima in an impossible bind. He was given specific criteria for evaluating all applicants, and then told to fudge the criteria for one particular group. He was ordered to cut women some slack. The fundamental questions, of course, are what the essential functions of the job are and the degree to which women can perform them. I wonder whether moving those heavy ladders is something any and every fire fighter has to be able to do. Essential functions are not necessarily performed frequently, but in this specific job they might well involve the ability to save lives under very challenging circumstances.
The Fire Department unfairly asked Lima to compromise his standards. They should have examined the standards objectively and determined whether they were reasonable and necessary, or whether they simply created artificial barriers to women who want to fight fires. This is an organization issue, not something that should have been dumped into the lap of one individual.
Testing the Tests
Given the liabilities that accompany the decision to hire someone, employers are trying to reduce risk by learning more and more about job applicants. Some of the approaches are crude: eliminating any applicant who fails a drug test. Some are more sophisticated: the use of credit and medical histories, psychological testing and physical profiling (no obese people need apply). Ultimately, all screening techniques boil down to a single issue: who is eliminated and why?
The EEOC is looking into the whole issue of pre-employment testing and employee profiling. Clearly, this is an area with a lot of potential for discrimination and abuse. The EEOC is examining written tests, the use of criminal and credit histories as a basis for selection, medical exclusions in hiring, and employer best practices.
Firefighter Lima's lawsuit should serve as a reminder: whatever tools and standards employers use to screen applicants, they must strive for transparency. Establish reasonable criteria and apply them uniformly. If the criteria have a disproportionate impact on one segment of applicants, re-examine the criteria carefully. (We blogged just such a situation here.) Make sure that your standards are up to standard. This is not easy, nor is it static. Today's accepted standard is tomorrow's act of discrimination. Employers are being buffetted by powerful and conflicting pressures. As Lima's story clearly demonstrates, the consequences for doing the "right thing" in the wrong way are severe. His saga is a lesson for us all.
News roundup: SC, AZ, NY, energy workers, and dangerous jobs
South Carolina - Lawmakers reach deal on workers' comp overhaul. In a long-awaited move, legislators came to agreement on workers comp reforms this past Friday, but the full House and Senate will need to approve the bill when they return for a special session June 19. As expected, the Second Injury Fund will be phased out by 2013. Also, fraud penalties have been toughened - particularly for employers who potentially face stiff penalties and jail for premium fraud or for failure to carry workers comp coverage. It also makes it a requirement that employees and their physicians provide information to employers and insurance claims handlers; defines repetitive trauma; clarifies payment for shoulder or hip injuries; and offers a mechanism for employers to more broadly challenge back injury claims and permanent disability.
Arizona - The legislature has given preliminary approval to a labor-employer compromise bill that would increase benefit caps for workers' compensation. Benefits are currently capped at $2,400 and would rise to $3,000 and $3600 in 2008 and 2009 respectively, and then be adjusted annually by as much as 5 percent. Business interests came to agreement to avoid the possibility of a ballot initiative and labor in turn modified their demands and agreed to work to with business on medical cost issues.
New York - State Insurance Superintendent Eric Dinallo has unveiled a plan to reduce the time of workers' comp dispute resolution from the current 6 months to 90 days. This plan is an offshoot of the recent state reform that raised the benefit from $400 to $700 a week. Meanwhile, also in New York, Joe Paduda discusses an attempted rollback of a reform measure that would allow employers to direct workers to designated pharmacies.
Cold war workers still out in the cold - In an ongoing shameful saga, Rocky Flats nuclear workers face potential benefit denial this week as their case is considered. The nuclear workers continue to die from cancer while federal health officials and a White House Advisory board dispute the rules of a 2000 law intended to compensate energy workers in America's nuclear agencies who were exposed to damaging levels of radiation. Governor Ritter has appealed to the board to help the ailing workers and threatens to bring the matter to Congress if help is not forthcoming.
Meanwhile, a similar benefit battle is being waged by Dow Chemical workers and their survivors in Madison Illinois. This news story from the St. Louis Post-Dispatch offers an excellent overview of the history and issues facing workers in their uphill battle to get compensation. For more background, see Out in the cold; America's cold war energy workers.
Dangerous Jobs - There's a terrific photo essay on Alaskan Fishermen in the art magazine with the unflattering name of Fecal Face, which is a good follow-on to the Discovery Channel's Deadliest Catch series. The job of fishing in Alaska continues to be among the riskiest work in the nation.
"Can't Take It No More": OSHA's Hollywood Moment
In 1972, twelve years before I founded Lynch Ryan and workers' compensation entered my life in a meaningful way, after completing a rather extended, all expenses paid trip to Southeast Asia (beautiful scenery, but a bit inhospitable when I was there), I said goodbye to the armed services only to say hello to the armed services. America was in the middle of a recession and jobs were hard to come by, so I accepted an offer to become a safety trainee for the US Army at Fort Devens, Massachusetts. The safety program at Fort Devens, run by a nice fellow very close to retirement, seemed more of an afterthought than anything else, so I thought the career prospects had nowhere to go but up.
Just two years earlier President Nixon, to great fanfare, had signed into law the Occupational Safety & Health Act, which created a new federal administration called OSHA. (Actually, Nixon had fought tooth and nail to prevent OSHA’s passage, but upon realizing that this was one battle he was going to lose, he had a big signing ceremony and took credit for the whole thing – they didn’t call him “tricky Dick” for nothing.)
I entered the safety profession when OSHA was in its ascendancy. The Act gave OSHA teeth (the general duty clause, alone, was sharply fanged), and American business quickly stood up, took notice and started to make changes. It’s true that early on OSHA’s rules were confusing, its personnel inconsistent, at best, and its enforcement procedures controversial. But in August, 1972, when I found myself in the business, OSHA was getting its sea legs. The Army’s safety training program that I entered embraced OSHA, even though the ACT specifically excluded the federal government from having to follow OSHA’s rules. Three years later, when I became the Director of the Army’s safety efforts throughout New England, and would travel up and down the east coast lecturing on safety and health, it was obvious that OSHA was a big stick.
In 1979, with assistance from the AFL-CIO, OSHA produced a 27-minute movie called “Can’t Take It No More.” Narrated by Studs Terkel, it carried a powerful message, offering a history of the safety movement in America and targeting worker health. As part of our program, my training department would screen the film repeatedly over the next year and a half for soldiers and civilian employees.
In 1981, one of the first things the new Reagan administration did as it began to reverse OSHA’s aggressive thrust by ushering in "voluntary compliance," was to recall all governmental copies of “Can’t Take It No More” and forbid any organization seeking government funding for a safety program from showing the film. I recall having to box up our three copies and send them back to Washington, DC, where they were to be destroyed. That was when I knew that, for OSHA, the good times were over.
I was reminded of all this yesterday when I read a brief piece about “Can’t Take It No More” written by Jordan Barab, one of the nation’s most passionate and dedicated safety advocates. Jordan even provided a link to the film itself, and I spent 27 minutes in a virtual time machine viewing this classic. You can do the same thing here: “Can’t Take It No More” .
Cavalcade of Risk - 1st anniversary edition
There's nothing worse than throwing a party and having no one show up. Such was the case when I prematurely cracked open the champagne to celebrate the first anniversary of Cavalcade of Risk a few weeks ago and learned that the commemorative date should actually be this week. As Miss Emily Litella would say: "never mind."
So the real party is over at Hank Stern's InsureBlog today - very fitting, since Hank has been the chief cook and bottle washer since he first launched the carnival. And today's anniversary issue of Cavalcade of Risk is a good example of why I like these blog smorgasbords - they're a great way to sample a variety of blogs in a given topical area.
And don't throw away your party hats - here at Workers Comp Insider, we're next up to bat - we'll be hosting the Cavalcade for the June 20th edition.
Jeffry Armbruster: A Player in Ohio's Tammany Hall
Jeffry Armbruster runs 22 convenience stores and gas stations in Ohio. Like many business owners, he thinks he pays too much for workers compensation coverage. But unlike most business owners, as a state senator in his scandal-ridden state, he was in a position to do something about it. He initiated some informal talks with the folks at the Bureau of Workers Compensation and walked away with an 88 percent rate reduction. I'm sure his being the vice chair of a committee that dealt with the bureau's legislative needs had nothing to do with the favorable treatment. He was simply reaping the just rewards of an awesome safety program! Now the former senator (term limits, not voter nausea) is facing a conflict-of-interest investigation and possible criminal charges. When it comes to conflicts of interest, our man Armbruster is a master.
A google search reveals that back in 2002 he tried to do a favor for Gino Zomparelli, executive director of the Ohio Turnpike Authority. Armbruster tried to raise the floor for no-bid contracts to $50,000 (a 500 percent increase). Unfortunately for Zomparelli, some turnpike workers dropped a dime and an investigation followed - one that revealed that Gino and his staff were already raking in gifts from contractors, including football and baseball tickets, dining and entertainment. All these nice goodies even with very low limits for no-bid contracts in effect. Gino and a bunch of other authority administrators were forced to resign.
Armbruster was a member of a committee overseeing the turnpike authority when he filed the bill. Rather than apologizing for what appears to be a blatant disregard for his legislative role, Armbruster said that he was merely serving as "a bridge between the legislature and the commission." Some bridge!
In 2004 the ethically challenged senator had to file for bankruptcy. His gasoline supplier stopped deliveries when he fell behind to the tune of $198,722. He also owed money to the state on his 19 lottery terminals. After some hasty negotiations, Shell resumed deliveries and the state lottery commission allowed him to resume ticket sales (cutting the senator a break - now that's a shocker!). By the way, Armbruster sits on the board of the national convenience store operators association. He's also on their legislation subcommittee. His type of experience is priceless! (Well, not exactly lacking a price...)
I suspect that the road ahead for the former senator is full of concrete and steel: no, he won't be building roads or adding to his convenience store empire. He'll be joining a number of his Ohio colleagues in the slammer (most notably the infamous coin dealer Tommy Noe), where he'll have plenty of time to contemplate the sudden demise of Ohio's quid pro quo politics. And we all thought corruption on this scale disappeared with Tammany Hall ...
De-legaled Emigrants: Contractors in Iraq
In March of 2004 four contract employees of Blackwater Security Consulting were sent out into the streets of Iraq to provide an escort to a food convoy. They lacked heavy armour, they were never briefed on the nature and parameters of the job, and there was no pre-mission reconaissance. Oh, they also lacked a street map. You will remember these four men: they were ambushed and shot by insurgents, their bodies were burned, and the charred remains were hung from a bridge across the Euphrates River in Fallujah.
We know that these contract employees were covered by workers comp (see Julie Ferguson's previous blog here.) But what about employer negligence? Is Blackwater accountable in any way for these deaths? We may never know. We read in the Gulf Times, that after years of legal wrangling, the case has been sent to arbitration, where the proceedings will remain confidential and the rulings will be binding.
Prior to working, all Blackwater contract employees sign a document releasing the company from "any liability whatsoever" even if it is the result of "negligence, gross negligence, omissions or failure to guard or warn against dangerous conditions." I hardly need add that such language in a stateside employment contract would be illegal and unenforceable. But in Iraq, birthplace of the middle east's new democracy, anything goes.
Lawyers for the four workers had hoped to invalidate the contract itself: the lawsuit alleged that Blackwater broke explicit terms of its contract by sending the men off without sufficient preparation and protection. Blackwater is lucky that Iraq is beyond the reach of OSHA, where employers must provide a workplace free from unusual risk of injury. As Borat would say: "Not!"
we have been blogging the plight of undocumented workers in this country: substandard working conditions; substandard pay; marginal benefits. Despite all these problems, they may have better employment protections than contractors in Iraq. We are sending U.S. citizens into harms way with virtually no employer accountability and no protection.
Lawyers view the judge's decision in this particular case as a victory for Blackwater. Even if the company has to pay for these deaths, their approach to employment - the blanket release of employer accountability for any and all of the dangers that employees face in Iraq - remains intact.
Put enough money on the table and people will sign anything. It's only in the agony of retrospection that the consequences of a simple signature are truly understood. Nearly one thousand private contractors have died in Iraq. I wonder how their parents, widows and children view in hindsight the hefty hourly wages available in that absurdly dangerous country. Perhaps the families have a newfound appreciation for the protections offered to all workers in America, where we at least theoretically hold employers accountable for the way they train and support their employees.