A Cautionary Tale on Hiring: Finish the Interview!
We are all familiar with the recommended procedures for dealing with job applicants. Have a standard list of questions. Ask open-ended questions that invite expansive responses. Be careful - very careful - with any disclosures about medical conditions or prior injuries. Here is a case in point where an interviewer stopped the interview at exactly the wrong moment.
"John Doe" suffers from paranoid schizophrenia and was hospitalized or lived in group homes from 1995 through 2005. In 2005 he began working with Cordell DeGraw, a vocational job developer. DeGraw accompanied him to a job interview at the Salvation Army, where he applied for a driver position.
Charles Snider, the Salvation Army supervisor, explained that the part-time job required three eight hour days per week. Doe responded that he could not work on Fridays because "[he] had to see [his] doctor and pick up [his] medicine." Snider asked (inappropriately) "what kind of medication?" Doe responded, "psychotropic medicine."
According to Doe, at that point Snider "stopped the interview and said that his insurance would not cover me." Doe offered to obtain a letter from his doctor, but Snider refused to reconsider - another big mistake.
Snider testified that he ended the interview saying, "[w]hat I'll have to do is have this checked out," meaning apparently that he wanted to determine whether his commercial vehicle insurance would cover a driver using psychotropic medication. He never actually pursued this with his carrier and even if he did, it was the wrong question for the wrong party. Only a doctor could determine whether Doe was able to operate a motor vehicle.
The Summary Judgment Judged
Doe filed a complaint in district court, alleging a violation of the Rehabilitation Act of 1973. He claimed that the Salvation Army asked a "prohibited pre-employment inquiry" and denied him employment based upon his answer. Astoundingly, the district court granted the Salvation Army's motion for summary judgment, holding that Doe failed to establish the elements for a prima facie disability discrimination case. The district court apparently relied upon evidence of Doe's present abilities and determined that he was no longer disabled.
Ah, but the law also protects individuals with a record of an impairment and those regarded as having an impairment. Somehow, the district court failed to apply these criteria - both of which applied to Doe. The US Court of Appeals for the 6th circuit has reversed the district court's summary judment and remanded the case for further proceedings.
Follow the Book
In this situation, Snider should have followed his own procedures: first, handle Doe's disclosure about medications with kid gloves. He could have asked, "does your medication impact your ability to perform the essential functions of this job?" He really cannot go beyond that point. Once Doe responded, Snider should have moved on to his other questions and completed the interview. It would have been appropriate as a follow up to ask Doe for a letter from his doctor, indicating that he was able to drive and that his condition did not present any immediate risk of harm to Doe or others.
As is so often the issue in discrimination cases, the employer's prejudice got in the way of a sound business decision. No matter how Snider felt about Doe and his troubled history, his job is to determine whether Doe can do the work safely. Indeed, the fact that he works for the Salvation Army makes the need for open and unprejudiced evaluation all the more important. Snider certainly should have required an expert medical opinion before making his final decision. If after completing the interview and reviewing the doctor's recommendations, Snider still had doubts about Doe's ability to perform the work safely, he could have chosen another, "more qualified" candidate. As it is, he responded with his gut and that response was clearly an act of discrimination.
Cavalcade of Risk is awaiting your perusal
Richard Eskow of Sentinel Effect hosts this week's Cavalcade of Risk. It's a real smorgasbord, featuring such far-reaching topics as as watermelons, beer, fish, phishing, the housing market, hedge funds and health care.
While you're in the neighborhood, check out some of Richard's other posts. Here's a few we found interesting:
-- Long-Term Thinking About Health: Seven Trends That Should Concern Us
-- 'Pro-Business" Isn’t Always What You Think. Take Health Reform, For Example
-- Congress Rips AIG, Other Carriers Over Comp Costs In a War Zone
-- Med Mal: Sometimes The Best Defense Is … No Defense
Accident investigation slide shows
WorkSafeBC offers a variety of prevention resources which we've featured previously, most recently the videos of teens talking about how they were injured on the job. They offer an excellent library of safety materials - while laws may vary from here in the U.S., good safety practices don't change over the border.
Recently, we've discovered WorkSafeBC's library of accident investigation slide shows. These feature actual investigations conducted by WorkSafeBC investigators in the wake of fatal or serious work accidents. Each presentation includes an audio track of the investigator narrating the conditions that led to the accident, illustrated by photos, diagrams, and animations of the actual accident scene and conditions. The cause of each accident is identified and links to related prevention resources are made available. We think they're pretty compelling because they reflect real-life events. They are brief and would be a good resource for safety training or a springboard for discussions. Hopefully, WorkSafeBC will continue to expand the library, which currently includes incidents involving construction, machinery, falls, forklifts and various other scenarios. In addition to the accident investigations, there are also a few slide shows on general prevention topics, such as housekeeping, violence prevention in retail settings, disease prevention, and machine guarding. Also, see the lift / lower calculator.
We're always interested in free, quality safety & prevention resources that we can share with readers. If you know of other good prevention resources or libraries that are publicly available, let us know. (Please note: the operative word is "free" - we regularly delete comments promoting products or services that must be purchased.)
Real Injuries, Phony Claims
When it comes to fraud in workers comp, we usually look to employers, doctors and lawyers. They go after the big bucks. While there are opportunities for ordinary workers to exploit the system, most decline to do it. Today we examine two claims, both involving real injuries and both involving fraud. Coincidentally, it's a bi-coastal story.
Let's begin in the east, in Gardner, Massachusetts, where Erik Teong managed a Shell Station. On October 28, 2006, Teong reported to Gardner police that he had been assaulted and robbed while taking cash receipts to the bank. He sported a bruised face and injured eye.
The police did not buy his story. He eventually confessed to stealing the $7,000 deposit. In February 2007 he was charged with larceny and making a false report of a crime. In April, he pled guilty to both charges and was sentenced to one year of probation. He also must pay the insurance company $7,900 (to repay the "stolen" payroll).
The injury to his eye? Teong told police that he had a friend give him a hard punch to the face, to make his story more credible. The hapless Teong has permanently damaged his vision. And because the injury appeared to occur in the course of employment, Teong filed a comp claim. AIG, the comp insurer (with a few problems of their own!), paid his $16,000 medical fees and $3,000 indemnity. Now AIG wants its money back. They referred the matter to the fraud bureau, which led to Teong's indictment by a Worcester County grand jury.
So Teong has earned himself a place in the Hall of Fame for Incompetent Criminals. He botched the fake robbery. His friend all-too-convincingly smashed him in the face. He has to repay the medical expenses and ill-gotten indemnity. And to top it off, given his permanently impaired vision, he may have trouble reading the charges against him.
Now let's hop across the continent to the Lake Tahoe, where Nicholas Jason Beaver resides. Nick worked for the Sierra-at-Tahoe resort, but busy as a Beaver he was not: the resort told him they would not rehire him for the following season. One night, after a few beers with his buddies, Nick decided to get even. He decided get himself injured on the job.
On April 9, 2004 Nick jumped up and down on a snow bridge that covered the top of percolation test hole. After three or four jumps, he broke through the bridge and fell into the 5 foot deep hole, injuring his knee. He collected comp (the injured knee required surgery) and then decided to sue the resort: he wanted to pierce comp's "exclusive remedy" shield due to the resort's "extreme negligence" in allowing an "unprotected" hole to exist on their grounds. (Nick's story belongs in the burgeoning archives defining the word "chutzpah.") The resort spent $40,000 defending itself and over $42,000 in medical bills on Nick's injured knee. They offered Nick $110,000 to make the case go away.
Nick refused to accept the chump change. He apparently told his buddies that he wanted really big bucks. At that point, one of the (disgusted) friends who witnessed the incident dropped a dime on him. His friends were given immunity from prosecution; while technically co-conspirators, they did not benefit financially from the fraud. Nick was convicted of stealing more than $65,000 and now faces up to four years in prison.
Benefit of the Doubt?
Erik and Nick were both injured on the job, but their injuries were part of a conscious effort to defraud the employer and insurer. Their stories demonstrate how the comp system defaults toward accepting a reported claim: Erik and Nick both were successful in accessing comp benefits for their injuries. The wheels of justice in these cases ground a bit slowly, but they did grind exceedingly fine. The pain of the actual injuries, with the exception of Erik's impaired vision, has already faded. But the pain of lives ruined by impulsive greed will linger for a long, long time.
Health Wonk Review, help for paraplegics, crane safety, PBM shakeups and more
Health Wonk Review - David Williams has a snappy new edition of Health Wonk Review posted over at Health Business Blog. Because HWR took a little summer hiatus last week, this issue is packed - and it's all organized in a great format that allows for quick and easy scanning. David's witty summaries are fun - check it out, it's a good edition.
Cool development in assistive technology for paraplegics - Radi Kioff is a 40-year-old Israeli who spent the last 20 years in a wheelchair after being shot in the back while serving in the Israel Defense Forces. The video in this post shows him walking and climbing stairs with the help of a light wearable brace called ReWalk, a system designed to help paraplegics regain mobility. The system is undergoing clinical trials in Israel and scheduled to begin US trials in November. It's great to see such a promising development for those who have suffered spinal chord injuries. (Thanks to Medgadget for the pointer.)
Crane fatalities - rawblogXport points us to the story of an eyewitness account from one of the workers who escaped in last week's LyondellBasell's crane collapse that killed 4 workers and injured 7. The article's sidebar recounts the number of crane accidents so far this year. Celeste Monforton posts more on this and other crane fatalities at The Pump Handle.
Disgruntled claimant on trial for murder - When you've worked in insurance for awhile, you know that a lot of anger and tension can surface around money matters, even more so when things reach a litigation stage. And many a claims manager can cite a litany of stories about angry calls or threats from disgruntled claimants who feel they'd had a raw deal. A story from California today reports on the trial of a claimant who shot and killed his own attorney two years ago. Angus McIntyre was very angry at his workers compensation settlement. He had reportedly threatened and harassed his claims adjuster in e-mails and voice mails on numerous occasions and apparently also held his attorney responsible. One evening he walked into that attorneys office and shot him in the head. Terrible story, and a sad reminder that violent threats must never be taken lightly.
Provider jailed for fraud - It's 12 months jail time for a New York social worker who double-billed insurance companies to the tune of $102,000 for health care services. A health care provider may bill two insurance companies for the same treatment, but is obligate to disclose the double billing and cannot keep amount beyond 100 percent of the cost of the service. The conviction is not surprising, but I can't recall too many insurance fraud cases that result in jail time. It's also a reminder that fraud comes in many flavors - it is not synonymous with "employee."
Fall protection - Brooks Schuelke posts an overview of fall protection systems at InjuryBoard.com. Falls are one of the most common source of injury and death in construction work. (Related: our prior post on human fall traps)
Semi Pro, Semi Screwed: the Saga of Tarrence Rhodes
Unless you are an aficionado of marginal sports, you do not follow arena football, which has taken a classic outdoor sport of considerable violence and transposed it to an indoor setting, with little if any reduction in the violence. The main difference between outdoor and indoor football? Money.
Our focus today is Tarrence Rhodes, a defensive back for the Huntington (WV) Heroes. (Any Heroes fanatics out there?) Rhodes played his first game with the Heroes on April 11, 2008. During the game he tore his right ACL. He was placed in "pre-hab," which is rehabilitation before surgical repair of his torn ACL.
It's safe to say that arena football was not what Rhodes had in mind when he played college ball at Missouri Valley. He was under consideration by NFL teams during the 2006 draft, but apparently did not make the grade. He played briefly for the Florida Firecats (another arena team) and then signed with the Heroes, where his career came to an abrupt end.
Fat Cats and Ordinary Joes
We are all used to the absurdly inflated salaries of professional athletes; a good defensive back often pulls down several million dollars a year. Rhodes, alas, signed a contract that paid him $250 per game (!) with a whopping $50 bonus if the team happened to win. His contract apparently stated he was covered by workers compensation, but when Rhodes filed a claim for his knee injury, Brickstreet (WV's sole insurer at the time) denied it, saying there was no policy in place for the team.
So now Rhodes has filed suit in Cabell Circuit Court against the team and its owner, Barbie Moody-Wood. Rhodes claims he is unable to have his surgery because of BrickStreet's denial. He has no other insurance to cover the cost of his surgery and subsequent rehabilitation.
Rhodes also claims he was not paid his $300 (the Heroes won!) when it was due, and did not receive it until the end of April.
In the three-count suit, Rhodes seeks compensatory and punitive damages, as well as liquidated damages of $900, plus attorney fees.
Professional athletes remain an outlying conundrum in workers comp. With their inflated salaries, they don't usually care about indemnity - it's the lifetime medical benefits they want, to cover all-too-frequent permanent partial impairments. Tarrence Rhodes, who once dreamed of playing in the NFL, now shares a fate with ordinary workers whose employers neglected to secure comp coverage. There is nothing special or glamorous about his situation. Rhodes would like to see some wage replacement, modest though it may be, and he would like his former team to cover the cost of his surgery.
Football careers can be brutal and short, with that of the unfortunate Rhodes being shorter than most. Here's hoping he took some courses at Missouri Valley to prepare him for life after football.
Lightning! Safety precautions for work and home
This week here in Massachusetts, ten people were struck by lightning when a flash storm suddenly disrupted a soccer game. At this writing, one victim is fighting for his life and four others are in intensive care. Just a few days before and about 80 miles to the northwest, two people in Maine who stepped outside to chase a dog that had run off with a pair of eyeglasses were killed by a lightning strike. At least 17 people have been struck by lightning so far this month, and seven of those people have died.
Over the last 30 years the U.S. has averaged 62 reported lightning fatalities per year. But only about 10% of those who are struck by lightning die from the incident - about 90% survive, often with serious injuries and after effects that continue for years. NASA has produced an interesting page entitled Human Voltage that discusses what happens when people and lightning converge. It includes a list of typical medical disorders associated with lightning strikes.
NOAA estimates that your odds of being struck by lightning in any given year range from 1 in 400,000 to 1 in 700,000. Your lifetime risk is about 1 in 5,000. The chance that a lightning strike will affect someone you know is about 1 in 500. Men are struck by lightning four times more often than women. Lightning strikes are most likely to occur between 2 pm and 6 pm from June to August. About one third of all injuries occur during work, another third occur in recreational activities, and the remaining occur in a variety of life activities.
Is lightning safety a part of your organization's safety plan?
Industries with a preponerance of outdoor workers, such as construction and farm workers, often have safety policies and procedures dealing with work during electrical storms, and some distribute lightning safety safety materials to workers. But it's a safety topic that should concern all organizations, regardless of the nature of the work.
While NOAA issues recommendations for lightning safety on the job (PDF) the best and most current advice for both work and home safety during electrical storms is encapsulated in Five Levels of Lightning Safety (PDF). The fundamental principle is that no place outside within six miles of a thunderstorm is safe:
1 Schedule outdoor activities to avoid lightning
2 ’30-30 Rule’ (If less than 30 seconds between lightning and thunder, go inside. While inside, stay away from corded telephones, electrical appliances and wiring, and plumbing. Stay inside until 30 min after last thunder.)
3 Avoid dangerous locations/activities (elevated places, open areas, tall isolated objects, water activities).
Do NOT go under trees to keep dry in thunderstorms!
4 Lightning Crouch (desperate last resort)
5 First Aid: Call 9-1-1. CPR or rescue breathing, as appropriate.
More lightning resources
- Top 10 Myths of Lightning Safety
- Lightning Fatality Distribution Map
- Interactive and Personalized Weather Alerting Engine
- Lightning Risk Reduction Outdoors
- Lightning Injury Facts: Myths, Miracles, and Mirages
- Lightning Strike Prevention and Survivor Resources
- Lightning Strike and Electrical Shock Survivors Resources
- Lightning Survivor Stories
Dr. Mahoney's Baloney
Last week we blogged the suspicious "total and permanent" disability of Boston firefighter Albert Arroyo, who celebrated his profound disability rating by placing 8th in 2008 Pro Natural Body Building Championship. Yeah, I know, he was just having a good day.
Not having a very good day is Arroyo's doctor, John Mahoney, a neurologist at Caritas Carney Hospital. Dr. Mahoney claims that Arroyo did remove his shirt during the most recent exam (which resulted in the permanent and total disability rating), Mahoney noted that Arroyo "had lost some weight and was working hard on his physical therapy and being fit." Mahoney goes on: "If someone is doing bodybuilding and doesn't tell me, how the hell would I know?" Excellent question, Doc. For starters, you might put your hands on his (rock hard) body and ask him to try a few push ups.
Mahoney concedes that his diagnosis is not looking too brilliant in the light of Arroyo's recent triumph. "I knew my practice would be destroyed. I accepted that. I am prepared to get [expletive]. I am [expletive] and it was in the stars." Which I amend (via Shakespeare): "the fault, dear Brutus, lies not in the stars, but in ourselves..."
Mahoney goes on to say that were it not for the restrictions imposed on him by the doctor-patient relationship, people would understand that his diagnosis was legitimate. Here's hoping that some well-timed indictments lift those restrictions. I would love to know just what evidence Mahoney used to reach his dubious conclusions.
As the Boston Globe's Walter Robinson points out, this is not an isolated case of fraud. Boston firefighters retire on disability at a rate three times higher than those in other cities. Many of the "disabled" include high ranking chiefs - and therein lies the crux of the problem. As chiefs go, so go the line workers. Boston has a deeply rooted culture of disability among its firefighters. As we saw in the parking department of Philadelphia, disability cultures run from top to bottom. Chiefs on the take are hardly in a position to discipline line workers who want a piece of the action.
I am pleased to report that Albert Arroyo has been ordered back to his regular job as an inspector (no heavy lifting!). Meanwhile, the retirement board may want to take a closer look at the 25 firefighters whom Dr. Mahoney has rated as totally disabled since 2001. While there may not be any more bodybuilders in this group, I would not be shocked to find a few on boats in Florida, gamely working to overcome their disabilities by reeling in 200 pound sportfish. It's not easy, but it sure beats putting out fires.
Cavalcade of Risk and a news roundup
Michael Cannon is hosting Cavalcade of Risk this week and he's posted a diverse collection of risk-related links at The Cato Institute blog - good end of week reading.
Insurance reform - Is insurance due for a regulatory overhaul? The move to an Optional Federal Charter appears to be gathering steam. To help you stay informed on the topic of insurance reform, Networks Financial Institute at Indiana State University has recently launched an online Insurance Regulatory Modernization resource. It is designed to serve as a clearinghouse for resources relevant to insurance regulation and reform.
Health care debate - Kaiser Family Foundation has compiled Viewpoints: The Health Care Debate. This is a series of interviews with leaders of organizations representing health care providers, insurers, policymakers, employers, labor unions and consumers sharing their views on shortcomings in the nation's health care system and how it could be improved. Interviews are available in video, podcast or transcript formats.
Prescription promos - Merrill Goozner notes that the pharmaceutical industry is trying to eliminate the practice of showering physicians with gifts and trinkets emblazoned with drug brand names. (We've previously discussed promotional efforts based on dining and pom poms.) Goozner suggests the voluntary ban should be broader, and notes that it doesn't get to the most significant ways that drug companies influence doctors. He suggests additional practices that should be banned.
Kudos to Jottings By an Employer's Lawyer - Michael W. Fox just celebrated his 6 year blogoversary yesterday - his informative and excellent law blog is one of our regular reads - we're happy he keeps on keeping on. Congrats, Michael!
Physician humor - although we don't think it is a medical specialty often called upon for work-related injuries, we can't resist posting the Colorectal Surgeon Song (video). It's a silly but amusing ditty performed by popular Canadian comic duo Bowser & Blue.
New York: Trust not in Trusts
We have been following the saga of the busted trusts in New York (here and here). Twelve workers comp trusts, all administered by Compensation Risk Management (CRM), have apparently failed. The workers comp board has decided to hit up the remaining trusts for the shortfall. These latter trusts are all solvent, and all are administered by someone other than CRM. The healthy trusts have been asked to cough up $11 million to pay for the sins of others, a mere 8,000 percent increase in their monthly assessments. That's joint and several liability on a New York scale, indeed.
The solvent trusts cried foul and took their case to the New York Supreme Court, where they won the skirmish and most certainly will lose the war. Acting Supreme Court Justice Kimberly O'Connor has put a temporary halt to the assessments, not because they are illegal, but because the comp board has not proven that the failing trusts are in fact insolvent.
"Insolvency must be real and actual prior to imposing the assessment, not prospective or speculative," she wrote.
Attorney for the solvent trusts, Rich Honen, has declared victory. "Annulled and vacated is what we asked for. The petition was granted."
That's like scoring two runs in the top of the first inning and claiming victory. This reprieve is not likely to last. In her ruling, Justice O'Oconnor has (somewhat reluctantly) upheld the board's right to assess healthy trusts. Board chair Zachary Weiss is semi-thrilled: he surely does not like the delay, but he is "pleased...that this decision will allow us to collect the money needed to pay the claims of injured workers."
Assuming the board's auditors can work their way through the CRM mess in a timely manner, the assessments will be in the mail before long. That's a tough pill to swallow: the healthy trusts played by the rules, paid actuarially sound premiums and confronted reasonably accurate reserves on their claims - none of which can be said of CRM's accounts. In this case, the good guys pay the price for the scoundrels. It isn't fair, but after all, this is New York.
What could be more horrifying than the idea of being buried alive? It's the stuff of nightmares. novels, and scary movies, tapping into one of our most primal fears. Yet unfortunately, buried alive is not just the stuff of fiction. Every year, it's the same old story - collapsing trenches kill workers at both commercial and residential work sites. Deaths are sometimes caused by asphyxiation or drowning when trenches fill with soil or water. It's also quite common for workers to die from being crushed by the sheer weight of the soil - which can exert pressure of more than two tons per cubic foot of dirt. Sometimes, workers are alive and talking while they are being rescued only to die during or shortly after the rescue, succumbing to injuries from the sheer pressure of the weight, which compresses the chest and cuts off oxygen to muscles and extremities.
News reports often focus on desperate rescue efforts with co-workers and emergency crews frantically digging to free a trapped colleague - yet many of the deaths happen when workers jump in an unsecured trench to try to save a colleague and a secondary collapse occurs. Trench rescues require speed and expertise - trained rescue workers understand the risks to both the endangered worker and to rescue workers. Before a rescue can safely occur, the site must be secured - something that should have happened before the collapse. Time is critical because even when a worker's head or upper torso is visible, irreversible crushing injuries can occur in less than 10 minutes.
These are immensely frustrating deaths because they are preventable with proper safety precautions - but all too often, time and budget trump safety. Breathless news coverage often refers to the accidents as freak events but that implies that the event couldn't have been anticipated or prevented. Unfortunately, there is nothing unusual about the collapse of an unsecured trench - without proper safety precautions, any excavation over 5 feet which is deeper than it is wide is a problem waiting to happen.
Workplace trench safety: Related resources and postings
OSHA - Trenching and Excavation
NIOSH Trench Safety Awareness Training
OSHA Trench Safety Quick Card (PDF)
OSHA Confined Spaces
Trench safety glossary
Excavations: A guide to safe work practices - 20 minute video clip from WorkSafeBC
Trench safety publications and information
Construction Safety - Trench Collapse - recent post by Megan Roth of InjuryBoard Des Moines
Manslaughter Charge in Trench Death
Call Before You Dig - resources for nonprofessionals
In addition to being at risk for trench collapses, the do-it-yourself who tackles home improvement projects may face electrocution and other risks when digging is involved. A new, federally-mandated national Call Before You Dig 811 number was created to help protect homeowners from unintentionally hitting underground utility lines while working on digging projects. In addition, each state has
different rules and regulations governing digging, some stricter than others. This map provides information on state-specific dig requirements.
Disability Fraud Closer to Home
Last week we blogged the widespread abuse of "disability" pensions for able-bodied members of Zimbabwe's ruling elite. Several cabinet members sported 100% impairment ratings - "quadraplegics" - even as they routinely tootled around the capital in their armored Mercedes and ran up a marbled staircase to greet their esteemed leader, Robert Mugabe.
Veteran reporter Walter Robinson of the Boston Globe brings the story of bogus disability a lot closer to home: Boston firefighter Albert Arroyo claimed to have fallen in the firehouse on March 21. His application for disability retirement states that "while descending the stairwell Engine 28's quarters's (sic), I tripped on a loose staircase casing (sic) me to slipped." Literary talent aside, Arroyo suffered such a severe back injury that his (unnamed) doctor rated him as "totally and permanently" disabled and eligible for a generous, tax free disability retirement.
On May 3 Arroyo felt a lot better. He finished eighth in a men's body-building competition, the 2008 Pro Natural American Championships. (If still available, you can see some adorable videos of Arroyo prancing and posing at Boston.com.) Arroyo's lawyer (yes, he will need counsel) has said that "bodybuilding helped him cope, emotionally and physically, with the travails and rigors of working as a firefighter." Heck, I recommend bodybuilding to every person who is permanently and totally disabled. It will do wonders for their self-esteem.
This sorry tale highlights the role of doctors in establishing permanent disability. You don't get a disability pension based upon a note from mom. In this case, Arroyo's unnamed doctor said he had been seeing Arroyo for back problems since 2000. He attested to the severity of the injury, but when contacted recently by the Retirement Board, he claimed that he was unaware of the bodybuilding history. On June 21 he wrote: "This information was not known to me until your letter and I will therefore proceed accordingly when evaluating Firefighter Arroyo in follow up." You have to wonder whether the prodigiously muscled Arroyo ever took his shirt off in the doctor's office.
And by the way. Arroyo, a firefighter since 1986, does not have to carry people from burning buildings. He is assigned to the Fire Prevention Division - which makes his inability to perform his job all the more suspect.
Robinson's article highlights widespread abuse of disability retirements in the Boston Fire Departement. Senior commanders routinely retire on inflated pay: district chiefs "fill in" for Deputy Chiefs. If disabled while filling in, they retire on the salary of the Deputy. John Ellard, a district chief, suffered a "career-ending back injury" during a fire while filling in for a deputy. Fifteen days later, he went to Ireland on a long-planned vacation. He is now collecting $89,532 tax free for the rest of his life.
No one begrudges the disability pensions awarded to truly disabled firefighters. It's obvious, however, that some of the folks retiring on disability in Boston are no more impaired than the cabinet members in Zimbabwe. Shame on the firefighters, along with the doctors and unions who enable them. As for Mr. Arroyo, the next time he sees his doctor, he should take off his shirt and do some posing. That will be the end of his disability rating.
Disability Ratings with a Heart of Darkness
Imagine that you are a doctor participating in a compensation review board for wounded veterans. You are responsible for signing off on pensions that have been recommended by a politically connected doctor. Frequently, the diagnosis is "polyarthritis" and the disability rating is 85%. At first, your review committee is fully staffed, but the pressure to endorse the blatantly bogus claims is intense. Soon, only two doctors remain. You and your colleague sit together for long hours, re-examining "wounded" veterans and challenging hundreds of claims. As you reject one phony applicant after another, the doctor signing off on the original applications threatens you with bodily harm.
You cannot turn to the government for support, because senior members of the ruling party are collecting disability payments. The doctor determining the absurd ratings heads the War Veterans Association and has given himself a rating of 85% for "polyarthritis." He is so well connected, the country's president has invited him into the Cabinet (where a number of his fellow cabinet members, moving with no evident difficulty, have been classified as quadriplegics with disability ratings of 100%).
Where are we? What nightmare of a country operates in this fashion? We are in the tragic land of Zimbabwe, formerly Rhodesia. The doctor is writer Peter Godwin's mother, who has spent much of her life in Africa, struggling heroically to provide medical care to her impoverished patients. Her colleague, up until her retirement from the review board, was Dr. Edwin Mhazo. Alas, he died very suddenly, under mysterious circumstances.
The head of the veterans association and cabinet member who leads the corrupt drive for phony pensions is Dr. Chenjerai "Hitler" Hunzvi, who sat out the war for independence in Poland, well out of harm's way, but who returned after Robert Mugabe assumed (total) power. In 1997, when the government ran out of money to pay wounded veterans (some truly disabled, many not), Hunzvi led street demonstrations. Mugabe caved to the protesters, offering huge lump sum settlements and generous monthly payments to 50,000 war vets. The Zimbabwe dollar collapsed, never to recover.
NOTE: Godwin's fascinating memoir, When a Crocodile Eats the Sun, is available in paperback. Highly recommended.
The Politics of Disability
The thousands of practitioners who work in disability-related fields in this country take a lot for granted. The vast majority work with integrity and genuine compassion. We all recognize the importance of accurate disability ratings. When there are disagreements between insurance companies and claimants, the courts offer a complex but reasonably consistent "due process" to ferret out the truth. The system is not always fair and the outcomes on individual cases can be truly bizarre, but on the whole the results are within reasonable parameters.
What we see in Zimbabwe is a parody of the process: a totally corrupted means of securing wealth for people who do not deserve it. It is a compelling reminder that all social interaction is based upon good faith. When that faith is stripped away, when hearts of darkness prevail, good people and the values they embody are very much at risk.
Heat stress: rules, reports, and resources
Here in the Boston area, we approach another 90+ degree day and the air is thick and muggy, prompting air quality alerts. But that's nothing compared to the heat in California where outdoor workers struggle in 104 degree temperatures, with things are even worse for the firefighters who battle to control rampaging fires. Triple digit temperatures have triggered the state's heat emergency plan. California is one of two states - Oregon being the other - that has issued mandatory heat stress rules to protect outdoor workers. According to California's Division of Occupational Safety and Health, employers were fined $828,440 last year for failing to comply with these rules.
CDC report: heat fatalities in crop workers
The CDC recently released an important report on Heat-Related Deaths Among U.S. Crop Workers, 1992--2006. During this 15-year period, 423 workers in agricultural and nonagricultural industries were reported to have died from exposure to environmental heat. The heat-related average annual death rate for these crop workers was 20 times higher than for other workers, or 0.39 per 100,000 workers, compared with 0.02 for all U.S. civilian workers. The majority of these deaths were in adults aged 20 to 54 years, a population not typically considered to be at high risk for heat illnesses. And in the dubious distinction department, North Carolina leads the nation in heat-related crop worker deaths.
Employer best practices
The following are best practices for employers with outdoor workers:
- Train employees and supervisors in heat illness prevention, as well as how to recognize the symptoms of heat-related illness and what to do if someone exhibits symptoms
- On days when temperatures require preventive measures, increase the volume of water available to employees. California suggests one quart per hour. It is not enough to simply provide it - workers must be encouraged to drink the water.
- Have shade available for outdoor workers and allow frequent breaks - at least 5 minutes of rest when an employee believes they need a preventative recovery period.
- Have the ability to appropriately respond to any employee with symptoms of illness
- Allow gradual acclimation for workers unaccustomed to working outside - it can take 4 to 14 days
- Know where the nearest hospital is and directions to your work site in case emergency medical attention is needed
- Heat Illness - materials in multiple languages
- CDC Extreme Heat
- National Weather Service warnings - or search by state
- Heat Stress Control and Heat Casualty Management (PDF) guidance from the Department of the Army and Air Force
- OSHA Technical Manual on Heat Stress
- CDC Frequently Asked Questions (FAQ) About Extreme Heat
- Heat Stress: Fluid and Electrolite Imbalance Can Be Fatal
- Heat-Related Illness Prevention - California Division of Occupational Safety and Health
- Outdoor Heat Exposure - Washington State Department of Labor and Industries
- NIOSH: Working in Hot Environments
Of Wage-Earning Capacity and Human Wreckage
Ronnie Ramroop was an employee of Flexo-Craft Printing in New York. In March of 1995 he caught his hand in a press, crushing four fingers. After seven surgeries, two fingers were amputated. It goes without saying that this is a work-related injury; workers compensation paid the medical bills, loss of function benefits (Ronnie lost 75% of the use of his hand), along with indemnity for lost wages. Ronnie received benefits through January 2000, at which point his eligibility ended.
Ronnie then applied for the "additional benefits" available under New York law. To receive these benefits, Ronnie had to prove that the impairment to his wage-earning capacity was due solely to the work-related injury. That's where Ronnie's claim hit a big snag: Ronnie is an undocumented worker. Yes, his inability to work is connected to his rather severe injury, but it is also related to the fact that he is not qualified to work in this country. As the court put it, Ronnie's appeal puts into clear focus the tension between the statute's voc rehab objective to return an injured worker to the marketplace and the re-employment of a worker who is not allowed to work. Some tension, indeed!
The NY Court of Appeals, in a 5 to 1 vote, has denied Ronnie's claim for additional benefits. They concluded that it was not the Legislature's intent to "restore to re-employment" a worker who cannot be lawfully employed.
The Lone Dissent
The dissent by Justice Ciparick raises an interesting issue. The judge quotes Chief Judge Cardozo, who emphasized the humanitarian purposes of the comp statute, with its goal of ensuring that injured employees "might be saved from becoming one of the derelicts of society, a fragment of human wreckage." Judge Cipatrick believes that the right to full benefits should be considered an absolute, unrelated in any way to a worker's immigration status. For this (dissenting) judge, there are no tiered benefits. All workers are entitled to all the benefits.
Virtually all the comp statutes in the US were drafted before the issue of undocumented workers became visible. A number of states have begun to step into the documentation and enforcement void created by a paralyzed Congress: they are drafting punitive laws on the hiring of undocumented workers (and thus giving rise to great concerns among American businesses). Some of these same states are toying with the idea of curtailing comp benefits for undocumented workers. This would be the final step in the creation of a truly third-class workforce, with sub-standard working conditions, wages and protections. We will have come full circle, with the fears of Judge Cardozo fully realized: millions of essential jobs performed by a marginalized workforce - derelicts of society, fragments of human wreckage.
Cavalcade of Risk; WC and hospital profits; poultry industry expose
It's Cavalcade of Risk day, and Louise Norris has an Independence day edition posted at Colorado Health Insurance Insider. Louise and her husband Jay have an interesting story about how they came to the field of health insurance: literally, through the school of hard knocks after intersecting with the health care industry through personal experience, a series of sports-related injuries. Today, as a locally-owned Colorado brokerage, they are respected health insurance consultants. One nice thing about the web is how an informative site such as theirs can serve as a great equalizer for smaller entrepreneurial firms - if you live in Colorado, they sound like great people to do business with.
Meanwhile, check out today's edition. There's a lot of good reading material linked - be sure to catch Nancy Germond's entry on writing a workplace incident report and Joe Paduda's entry on the horrors of universal coverage. And while over at Joe's place, also see his post on workers comp - the hospital profit engine - it's a real eye opener. Here's a teaser: "The entire US hospital industry generated profits of roughly $25 billion, workers’ compensation – which you will remember represents only about 1.5% of total hospital revenues – accounts for approximately 16 percent of all the profits for US hospitals." He follows this post with another on DRGs, Medicare, hospitals, and workers comp, where he delves into further explanation for the costs. If you work in workers comp or managed care, these are must-read posts.
Bill Moyers on the poultry industry and worker safety - We've blogged several times about the appalling state of safety in the poultry and meat packing industries. This year, there has been a concerted focus on the poultry industry, largely thanks to the excellent investigative journalism in the Charlotte Observer's The Cruelest Cuts, a six-part multimedia series - well worth exploration if you missed it first time around. Now, Bill Moyers has picked up the ball, covering the topic in a 22 minute investigative report of the poultry industry (video clip), which shows how official statistics showing a drop in workplace injuries may have been the result of deceptive reporting. See much more information on poultry worker safety at Bill Moyers' Journal on PBS.
ADA: The Fix is Fixed
Back in February we blogged a rather drastic proposal to "restore" the Americans with Disabilities Act (ADA) by expanding eligibility to just about anyone. We feared that blurring the lines between transient conditions and impairments that "substantially limit" major life activities would paralyze American business, clog the courts with trivial cases and divert attention away from the truly disabled, who desperately need ADA protection.
Well, it appears that the "restoration" has been restored and the "fix" has been fixed. Proposed reforms would expand coverage where the U.S. Supreme Court had curtailed it: individuals whose disabilities can be treated - with medication, with prosthetic devices, with assistive technology - would still be considered disabled. In other words, their ADA protection would not end simply because their disability is mitigated through some form of treatment. (Got that, Justice Thomas?)
The fix also addresses the paradox of "regarded as" disability. This involves situations where an individual is discriminated against because he or she is perceived to have an impairment: "Jack looks like an alcoholic." These people do not require accommodation (they are not really disabled), but the ADA will ensure that they are not discriminated against based upon a false perception.
While disagreement on the nature of disabilities will continue, substantial agreement has been reached on language for the revised ADA statute. Here are some of the organizations that have signed off on the proposed revisions:
- American Association of People with Disabilities
- American Diabetes Association
- Bazelon Center for Mental Health Law
- Epilepsy Foundation
No surprises there. But check out some of the mainstream business organizations that are also on board:
- National Association of Manufacturers
- National Restaurant Association
- US Chamber of Commerce
With such diverse and powerful backing, the ADA fix appears to be headed for passage. That's all well and good. But as we pointed out in February, there is a sad paradox in the ADA itself: since the law was enacted in 1992, overall levels of employment for the disabled have declined. Employers, intimidated by the law's many requirements, apparently take the path of least resistance and avoid hiring qualified disabled applicants. So in some respects the ADA "fix" compounds the problem. The real fix goes beyond the language of this or any other law: it involves transcending stereotypes and embracing people for who they really are and recognizing what they are truly capable of doing.