The current buzz on medical marijuana and the workplace
In our news roundup Wednesday, we cited a few items about medical marijuana, the most interesting to our purposes being the recent California court ruling about whether marijuana should be covered as a workers' comp medical benefit. In his posting on the topic, Roberto Ceniceros notes that there is a growing likelihood that medical marijuana will become a comp issue at some point, particularly since NJ just became the 14th state to allow medical marijuana use.
Now honestly, we hadn't given a great deal of thought to these laws previously, but if 14 states have enacted such legislation, it seems to be nearing critical mass so we went Googling to see what we could learn. Not only did we find a good resource that offers an overview of the 14 legal medical marijuana states, we also learned that there are an additional 12 states with pending legislation to legalize medical marijuana. The site is a great resource for tracking legislation, and it provides summaries with links to relevant state laws and to state sites. Did you ever think you'd see the day when states were posting marijuana FAQs?
Medical marijuana and employment issues
Clearly, medical marijuana is an issue that requires attention from any employers who have employees in affected states. And judging by the trend, it's something all employers may want to think about, starting now. Above and beyond complex issues such as workers comp, there are some immediate employment issues that come to mind: Can employers refuse to hire someone who is authorized by the state to use medical marijuana? Can an authorized medical marijuana user be fired for flunking a drug test? And if fired, can an employee file a discrimination suit under ADA? How do drug testing programs handle positive results for authorized users? And if marijuana is not considered an illicit substance due to medical authorization, how do zero tolerance programs need to adjust for this? How do employers authenticate those who are authorized to use marijuana versus those who are not authorized? And it's not just employers who have questions - authorized users of medical marijuana have employment questions too.
At Law.com, Tresa Baldas looks at many of these issues: Employers in a Haze Over Medical Marijuana Use. Citing Danielle Urban of the Denver office of Atlanta's Fisher & Phillips:
" ... under federal law, employers are not prohibited from taking adverse actions against someone who tests positive for marijuana. But Colorado permits medical marijuana, and another state law says it's illegal for an employer to fire someone for engaging in legal, off-duty behavior.
And then there's the Americans With Disabilities Act to consider. Under the ADA, an employee fired for using pot for health reasons could file a discrimination lawsuit.
"It's a gray area to know what you can do," Urban said. "But I think it's still risky to just fire someone for using it."
At least in Colorado, the caution seems well placed. According to Renee McGaw writing in the Denver Business Journal, the state has two conflicting laws: one that says that employers don’t have to accommodate medical marijuana use in the workplace while another prohibits firing employees for engaging in legal activities during nonworking hours.
On the heels of New Jersey's recent law legalizing medical marijuana, Amy Komoroski Wiwi and Nicole P. Crifo of the law firm Lowenstein Sandler PC also examine some of these issues in the unintended Impact of New Jersey's New Medical Marijuana Law on the Workplace.
The authors note that "The Act states that a qualifying patient "shall not be subject to any civil or administrative penalty, or denied any right or privilege" related to the medical use of marijuana, but it also explicitly provides that employers are not required "to accommodate the medical use of marijuana in any workplace.'" This is similar verbiage to some other state laws. (Colorado: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place." Rhode Island: "...employers are not required to make accommodations for employees who use medical marijuana." Montana: "Nothing ... may be construed to require an employer to accommodate the medical use of marijuana in any workplace." )
As for the issue of drug testing, the authors suggest caution when medical marijuana is cited as a defense in a positive drug test result. First, there is the matter of whether the user is authorized or not; and if so, an employer must consider whether it could be subject to liability under laws prohibiting disability discrimination for taking any adverse action against an authorized and registered user.
It's still uncertain ground. Courts in California and Montana have upheld employers that terminated employees who failed company drug tests, but each state law is different and issues haven't been fully tested in the courts. In its FAQs, when asked "What should I tell my employer if I am subjected to a drug test?," the state of Montana responds: "The law is silent on this issue."
Wiwi and Crifo offer some good tips to employers:
- Review the company’s policies and other documents addressing drug use and testing (including drug testing consent forms) and update them as necessary to state your position on medical marijuana use by job applicants and employees.
- Ensure that all Human Resources and drug testing personnel are aware of the company’s policy regarding medical marijuana.
- Adopt appropriate measures for maintaining the confidentiality of employees' and applicants' registry status.
- Maintain uniformity in the enforcement of any drug testing policy and response to positive test results.
Cavalcade of Risk and an assortment of workers' comp news briefs
It's Cavalcade of Risk day - visit the bi-weekly roundup of posts about risk, graciously hosted this week at Wenchy's Place - check out this week's edition and wish the hostess a happy birthday while there.
In other workers' comp-related news:
Medical costs and WC - Joe Paduda explains why you should expect work comp medical costs to be heading up over at Managed Care Matters. He points to one of the primary problems: "Misaligned incentives for work comp managed care programs, and payers' increased reliance on managed care program revenue and profits."
Moving violations - U.S. bans truckers, bus drivers from texting. The National Safety Council estimates that at least 1.6 million crashes are caused each year by drivers using cell phones and texting. The NSC has called for a total ban all cell phone use and texting while driving. Here's a good site to bookmark since cell phone and texting laws have been changing frequently in response to safety reports: State cell phone and texting while driving laws. It's maintained by the Governors Highway Safety Association.
More on marijuana - Should pot provided as a work comp medical benefit? Roberto Ceniceros talks about a California
marijuana ruling at Comp Time. Meanwhile, the CA Supreme Court nixed limits on medical marijuana and the Los Angeles City Council voted to close hundreds of dispensaries that have sprung up.
Global risk - Before you open that branch office in Somalia, you may want to take a look at Emily Holbrook's posting on Risk Monitor: the most hazardous countries for business.
P/C Forecast - What's in store for the property-casualty industry in 2010? Ernst & Young offer a 2010 U.S. industry outlook. (PDF)
Comp Case Law Over at LexisNexis WC Law Blog, Larson's Case Law Developments offers their picks for The Top 10 Workers' Compensation Cases of 2009.
Union census - Workplace Prof Blog reports on a Department of Labor report which shows that the union density rate was essentially unchanged in 2009 - 12.3% vs 12.4% in 2008. Among private sector employees, the rate dropped to 7.2% from the 2008 rate of 7.6%. Also of note from the report: "The data also show the median usual weekly earnings of full-time wage and salary union members were $908 per week, compared to $710 for workers not represented by unions. Union members earn 28 percent more than their non-union counterparts."
Instant Message, Instant Catastrophe
Robert Sanchez operated Metrolink trains in the Los Angeles area. By all accounts, he was a personable fellow. You might say, nice to a fault. He occasionally invited young passengers to take control of the train. He stayed in touch with train enthusiasts and friends via texting. Cool!
On September 12, 2008, he was operating a train near the end of an 11 hour shift. He was also sending and receiving text messages - 57 in all while on duty that day. Sanchez missed a red light signal and plowed without braking into a freight train heading in the opposite direction on the same track. Twenty five people died (Sanchez included); 135 were injured, many critically. For dozens of the survivors, life will never be the same. (You can attach faces to the numbers here.)
The National Transportation Safety Board (NTSB) has issued its final report. While criticizing the long shifts and the lack of automatic crash controls, the board has placed the blame squarely on the shoulders of the late Mr. Sanchez. Distracted by his texting activity, he failed to notice yellow and red signals, which should have alerted him to trouble ahead. As one board member put it, "his head was not in the game." That's an odd but apt metaphor for a tragedy on this scale, with losses totalling about $12 million, not to mention the random destruction of human life.
We live in a world where distraction is deeply embedded in our way of life. As the poet T.S. Eliot put it in his poem "Burnt Norton," we are "distracted from distraction by distraction." From moment to moment, one thing or another tempts us. Don't like the music? Change the station. Wondering what a friend is up to? Fire off a text. No need to be bored when there are so many ways to engage our flighty minds. It's deceptively easy to multi-task your way out of the doldrums. It worked for Sanchez - up to a very specific point in time.
Eliot's poem ends with what might be an epitaph for the victims of this terrible incident, Sanchez included, who surely never intended any harm:
Ridiculous the sad waste time
stretching before and after.
Ridiculous and sad, indeed.
Health Wonk Review and other news briefs
It's Health Wonk Review week and our host is Jaan Sidorov at Disease Management Care Blog. He's just posted the "Tree of Blogs": An Avatar Movie Inspired Health Wonk Review. Jaan must be of the "spoonful of sugar makes the medicine go down" philosophy because he always manages to post the HWR news in an entertaining format. Needless to say, with the recent Massachusetts' election, health care reform will be a hot potato in this and in upcoming issues. Get the scoop from the web's smartest wonks.
For whom the bell tolls - And speaking of the Massachusetts' election this week, Joe Paduda of Managed Care Matters is right out of the gate. He takes a hard look at the state of health care reform in a pair of grim posts: An epitaph for health reform and Why health reform is dead.
Haiti relief Clair Wilkinson of the Insurance Information Institute's blog posts about the insurance industry's charitable response to Haiti so if you or your organization would like to make donations in conjunction with others in our industry, she's got the scoop. Joanne Wojcik of Business Insurance reports on some of the early insurance industry funds pledged for Haiti. Also of note: Hesperian, a non-profit publisher, is also making emergency health materials in Hatian Creole available free.
New NCCI report NCCI has just issued a new research report on Medicare and Workers Compensation Medical Cost Containment. The report looks at how how Medicare reimbursement rates influence prices paid for workers' comp medical care. Among the findings, NCCI notes that, "The proportion of workers compensation medical costs that are subject to physician fee schedules is declining, with proportionally more billings by facilities. To maintain the effectiveness of medical fee schedules, workers compensation might consider using Medicare billing approaches for hospital stays (DRG) and ambulatory services (APC), but in doing so should adapt Medicare models to workers compensation priorities."
Sleep deprivation - Roberto Ceniceros of Comp Time posts about shift work and sleep-related accidents related to workers comp in light of a recent court decision denying workers comp to a nurse who was in an accident while driving home after a 16-hour shift. (See our posts on sleepy doctors and the link etween shift work and cancer for other sleep-deprivation matters related to workers' comp.)
Still a buyer's market out there - The rumors of an impending soft market may be greatly exaggerated, at least according to the folks in the trenches. In the RIMS benchmark survey, risk managers report there is still no softening in sight. In fact, prices continue dropping, with workers comp being at the head of the pack: "Workers’ compensation and general liability saw the largest decreases, with average declines in renewal premiums of 5.5 percent and 5 percent, respectively. Average D&O premium fell 2.8 percent, and property was essentially unchanged, falling less than half of a percentage point."
EEOC reports high claims - The EEOC reports that 2009 was the second highest year for workplace bias claims. The most frequently filed discrimination allegations in 2009 were based on race (36%), retaliation (36%), and gender (30%), which the EEOC said followed recent trends.
Florida steps up fraud efforts - The state of Florida has been aggressive in its efforts to chase down employers who commit fraud by premium avoidance. Now, under a fraud pilot program, employees who swindle workers' compensation insurance companies will be targeted aggressively, too. A streamlined state bureau of workers' comp fraud investigators, assisted by an assigned prosecuter and and a team of detectives in South Florida, hopes to double arrests this year.
West Virginia Workers Compensation Insurer BrickStreet Approved in Illinois
OSHA issues new booklet on hexavalent chromium standards (PDF)
Avatars in the Workplace: A Legal and Ethical Minefield?
LinkedIn's Workers' Compensation Forum
Does OSHA Inspect Employers with 10 or Fewer Employees?
In Search of a Good Cup of Joe
We recently blogged a "to and fro" case involving a meandering motorcycle ride back to work from a conference. The cycle crashed and the employee filed for workers comp. The court in Wyoming determined that the accident took place during a deviation from the direct route home and thus was not compensable. Some readers commented that the employee was following his supervisor's lead, so the injury should have been compensable. "To and fro" often raises issues in the gray zone. Here's another gray area: coffee breaks.
Jesse Cooper, master plumber and foreman, needed to consult with someone at the union hall in Winslow Township, New Jersey. His contact was teaching a class, so Jesse decided to take a coffee break. He preferred the coffee at a deli some five miles down the road. On his way to a good cuppa, he was involved in a serious accident, breaking his arm and both legs.
Personal Comfort or Personal Errand?
Cooper's employer, Bernickel Enterprises, argued that the coffee break was a personal errand. Workers comp judge Bradley Henson determined that a coffee break was part of the working day and that Cooper was under the "coming and going" rule while on his way to a somewhat distant cup of joe*. He found the injuries to be compensable.
Henson describes Winslow Township as a "rural area", so the options for coffee are somewhat limited. In his summary of the case, New Jersey comp guru John Geaney notes that there were other coffee options closer than the deli; the judge, however, "accepted as credible that petitioner knew the deli had good coffee."
This ruling certainly stretches the parameters of the "personal comfort" doctrine to its outer limits. One wonders when that hypothetical line between work and personal might actually be crossed: if I have a sudden craving for a Caramel Brulee Latte (not likely, mind you) and the nearest Starbuck's is 15 miles out of the way, am I still "working" when I head in that direction?
The Driving Hazard
These two cases share one important characteristic: both involve accidents while driving, statistically the most dangerous part of the working day. As risk managers contemplate enhancements to safety programs, they would do well to put safe driving near the top of the list.
* Why do they call it a "cup of Joe"? Check this link for a possible if not entirely plausible answer involving a former Secretary of the Navy.
Older Workers and Comp: Low Risk and A Few Surprises
NCCI has issued its latest report (PDF) on the status of older workers in the comp system, with a particular focus on workers 65 and up. If nothing else, the study reinforces the notion that older workers are safety conscious and a relative bargain. For employers worried about workers comp costs, older workers are not a significant problem.
In 1988 eleven percent of workers 65+ participated in the workforce; now 17 percent of these older workers are still working. That percentage will likely increase as the long-term effects of the financial collapse continue to resonate through the damaged economy. Some people continue working because they want to; many more continue because they have no choice.
The frequency rate for older workers varies by occupation: in construction, older workers appear to be safer than younger workers - they are injured at a 4 percent rate, compared to 12 percent for their younger colleagues. The results are flipped in retail/sales: older workers are injured at a 23 percent rate, compared to 15 percent for all others.
As you might expect, the leading cause of injuries for 65+ workers are slips, falls and trips - 47 percent of all injuries for this cohort. (Younger workers suffer these injuries at a 24 percent rate). For strains and sprains - the overall leading cost-driver for workers comp - the results are reversed: the frequency for older workers is 23 percent, compared to a whopping 38 percent for all others.
It does take longer for older workers to recover from injuries: they have a median days-away-from-work rate of 16, compared to 12 days for workers in the 55 to 64 group and 10 days for workers 45-54. Despite this higher rate, overall indemnity costs are lower. Why? Because older workers make substantially less on average than younger ones. Wages peak in the mid-50s and then fall off dramatically after age 65, down to the same level as the entry level 20 to 24 group. So much for the notion of paying for experience!
The only red flags in the study involve the retail trade and service/hospitality industries, where older workers are showing higher-than-average costs for comp. These jobs probably offer ample opportunity for slips, trips and falls, the number one cause of injuries for these workers, .
It will be fascinating to watch NCCI's study evolve over the next decade. The percentage of workforce participation for the 65+ group is going to increase steadily. With this growth, the risks will be enhanced. There is likely to be an upward trend in both frequency and severity, but perhaps not as much as feared. Certainly, the NCCI study reinforces the argument that older workers are safe, reliable and motivated. There is no reason to discriminate against them. If anything, you could make a good case for preferring an older worker to a younger one. Fodder for further thought, indeed.
NOTE: Special thanks to reader Soon Yong Choi for spotting an error in an earlier version of this post (see comments). Given my checkered track record with numbers, I can only hope that Choi and similarly adept readers continue to cast a critical eye on any of my postings where statistics are involved.
New blog discoveries for our blogroll
We're in the process of updating our blogroll to add some blogs that we've been following, as well as to delete some old favorites that have become inactive. Here are a few of the blogs we've added - check them out:
Work Comp Complex Care Blog - affiliated with Total Medical Solutions, a FL-based firm that focuses on home health care and complex care products and services for the workers' comp industry.
Lexis Nexis Workers Comp Law Blogs - this is a news feed of various law bloggers who post on workers' comp legal matters.
MEMIC Safety Blog - safety & loss control consultants from Maine's largest workers' compensation insurer post about workplace safety issues.
Advanced Safety & Health Blog - safety & prevention news sponsored by a company of the same name.
Coal Tattoo - investigative reporter Ken ward Jr. of The Charleston Gazette blogs about West Virginia mining, mining safety, mining-related public health issues, and more.
Today's Workplace - a blog from workplacefairness.org, a non-profit organization that provides information, education, and assistance to individual workers and their advocates nationwide and promotes public policies that advance employee rights.
MassDevice Blog - This blog is associated with Massachusetts Medical Devices Journal, an online journal of the New England medical devices industry, with coverage of emerging trends, technology and devices that save lives.
Medgadget - this long-time favorite bills itself as the internet journal for emerging medical technologies.
WSJ Health Blog - Wall Street Journal's blog on health and the business of health.
Want to Avoid Alzheimer's? Just Keep Talking
In the interests of keeping Insider readers mentally alert for as long as possible, we present the results of a study that appeared in the Journal of Alzheimer's Disease (and is summarized in the Wall Street Journal). The study found that long-term cell phone use appears to protect against and even reverse Alzheimer's-like symptoms in mice. Here is the Journal's description of the study:
Mice genetically engineered to develop brain impairments similar to Alzheimer's in humans were divided into two groups. One group was exposed twice daily to hour-long electromagnetic fields akin to those created during cellphone use. Mice in the other group were not exposed to the radiation. After seven months, young mice in the first group fared significantly better on cognitive tests than their unexposed littermates. Older mice, which had already developed symptoms of Alzheimer's, exposed to the radiation for eight months in a subsequent experiment also performed better than older nonexposed mice. Mice, younger and older, not engineered to develop Alzheimer's also appeared to benefit from the radiation. Biopsies suggested such exposure might fight Alzheimer's by inhibiting the buildup of certain protein plaques in the brain, the researchers said.
Given that exposure to radiation is considered a plus here, head set devices cannot be used. If your goal is Alzheimer's prevention, you have to keep that cell phone clamped against your ear.
Before you start dialing up everyone on your call list, you might want to take note of a few caveats: first, what is true for mice is not necessarily true for humans. Further studies involving larger numbers of mice would be needed, and even then there would be no definitive correlation with humans.
There are also a couple of potential safety issues connected with cell phones: use of cell phones while driving is a widely-recognized hazard. In some states, use of cell phones without a head set is illegal. After being pulled over, you could try the line: "but officer, I cannot use a headset because I'm trying to avoid Alzheimer's." You'll get a chuckle...and a ticket.
Beyond the safe driving issue, there are some inconclusive but alarming indications that heavy use of cell phones might result in brain tumors.
So there you have it: talking on your cell phone might help prevent Alzheimers, but it might also cause a motor vehicle accident or even a brain tumor. Personal risk management at its ambiguous best. It's all so confusing, I'm going to take a coffee break. Caffeine, they say, is really good for you. Except when it isn't.
As the world watches in horror and hopelessness, the people of Haiti are trying to extricate themselves from one of the great natural disasters of our lifetime. As I write, thousands of people are still alive, trapped beneath the rubble of what was once Port-Au-Prince. Very soon, most of these people will die, along with scores of the relatively unscathed who have no food, no water and no shelter. Faced with formidable logistical obstacles, the rescuers will not be able to reach most of the trapped people in time and the trickle of essential supplies may be too late for many others.
Our thoughts are with everyone who is suffering in this unimaginable disaster.
As the roads are cleared and supplies finally make their way into what is left of Haiti's capital, rescuers will face enormous hazards. Unstable buildings may collapse at any moment. Further aftershocks are likely. Everyone in the devastated landscape is breathing air contaminated with toxins. There is even a danger of mob violence, as victims become increasingly frustrated by the lack of effective response.
Among the many issues that need confronting at this time, workers comp coverage for the rescuers is probably at the bottom of the list. Yet we know from the World Trade Center experience that many first responders will be exposed to life-threatening injury and illness in the coming days and weeks. Given the magnitude of human suffering in front of them, these responders are not about to raise the issue of their own disability coverage. But the day will come when the extent and nature of that protection is paramount, when the as-yet undiscussed benefits will be an absolute necessity for individual rescuers and their families.
We blogged recently about the personal risk management in which we all engage on a daily basis. We make our choices, moment to moment, in the expectation that nothing really bad will happen. If our luck holds, we live to face the micro challenges of another day.
For the poor people of Haiti and the brave souls trying desperately to help them, the time for micro management is over. The challenge of a lifetime confronts them with savage force. May all who suffer find peace and may all who are trying to alleviate the suffering return home safely.
See a post at HR Web Cafe on Haiti earthquake resources, which includes links for:
- Finding missing loved ones
- Ways that you can help
- Avoiding scams
- News resources
- Twitter feeds
Cavalcade of Risk and other news briefs
The first Cavalcade of Risk of the new decade has been posted by Louise of Colorado Health Insurance Insider - check it out. And while you're visiting the Cavalcade, why not check out the rest of the entries on the C.H.I.I. blog? We don't live in Colorado, but if we did, we'd definitely be doing business with Jay and Louise Norris.
The importance of the right doctor - Roberto Ceniceros of Comp Time posts about a new John Hopkins study published in the Journal of Occupational and Environmental Medicine that shows that 3.7% of doctors accounted for 72% of claim costs in a study of claims data from Louisiana Workers' Comp Corporation from 1998 to 2002. He notes that one of the researchers commented, "...it makes sense to analyze how practice patterns drive costs before instituting sweeping reform."
Sandy Blunt and the goings on in North Dakota - Good for Peter Rousmaniere and Joe Paduda for shedding light on the travesty of a prosecution related to Sandy Blunt, former CEO of North Dakota's Workforce Safety and Insurance. I met Sandy Blunt at a conference in DC a number of years ago and had been following the turn-around he was effecting in North Dakota's system. He struck me as progressive, innovative, and very sharp - it seemed a real coup for North Dakota to have his services. Then came a series of surprising charges resulting in his ouster. In following the case, it appears that most of these charges were minor, trumped up administrative issues, such as spending a few hundred dollars on lunches and gift certificates to motivate staff - practices that were not uncommon in other state departments. Other more serious charges were dismissed or shown to be erroneous. Blunt has appealed his conviction to the state's Supreme Court and we hope he will prevail.
Insurance Fraud - Emily Holbrook of Risk Monitor posts about a spike in insurance fraud as indicated by a recent report from the Coalition of Insurance Fraud: "Overall, the economy in 2009 appears to have had a significant impact on the incidence of fraud. On average, fraud bureaus reported the number of referrals received and cases opened increased in all 15 categories of fraud included in the survey." Unsurprisingly, the biggest number of fraud cases occurred in the category of bogus health insurance.
Popcorn flavorings vs public and worker health - Celeste Monforton of The Pump Handle provides an update on a public health issue of concern to workers and consumers alike: butter flavorings in popcorn. After a public outcry about diacetyl flavorings, which were causing worker and consumer health problems, the industry began substituting a product labeled as "no diacetyl." Preliminary reports from NIOSH indicate that these chemical changes do not translate into less health risk to exposed workers and consumers.
EEOC report - Workplace Prof Blog posts about Equal Employment Opportunity Commission enforcement statistics, which were recently issued for fiscal year 2009. A sampling from the EEOC press release: "The FY 2009 data show that private sector job bias charges (which include those filed against state and local governments) alleging discrimination based on disability, religion and/or national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever. Continuing a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing."
Work violence - Does the economy play a role in workplace violence? That's a question posed by the Christian Science Monitor in the light of a recent shooting rampage by a disgruntled worker of manufacturer ABB Group in St. Louis that left three dead and several wounded. One factor that the article did not reference is the stress that many people feel post holidays. This story brought to mind a post-holiday workplace shooting rampage in Massachusetts a number of years ago involving another disgruntled employee.
To and a Meandering Fro
Richard Selest worked for the state of Wyoming Department of Transportation. He was asked to attend a training session 100 miles away from his office. Given the nice June weather, Richard, his supervisor and a co-worker decided to ride their motorcycles. (This surely would not have been an option in January!) On the way back to the home office, they discussed taking a scenic route, but no final decision was made. When they arrived at the intersection for the scenic road, the supervisor, riding in front, turned off. Richard and the co-worker followed. In the course of the ride, Richard lost control of his motorcycle and suffered serious injuries. Compensable under comp?
Richard's claim was initially denied on the theory that the scenic route - 50 miles longer - was a deviation from the road back to the office and thus not compensable. Richard countered that his supervisor approved the deviation and that he was not on any specific "personal errand." He merely was going back to his office, albeit in a meandering fashion.
The case, like the scenic road, wended up to the Wyoming Supreme Court, where Richard once again lost. The court found that the choice of a scenic road was purely personal and a clear deviation from the "course and scope" of employment. Even though Richard had no specific goal in taking the longer road, and even though he was in fact heading back to the office, the deviation in route was substantial, thus taking him outside of comp's protective umbrella.
One justice dissented, but I think the majority acted appropriately. Despite the fact that Richard was paid for the entire trip (which took one hour longer than the direct road) and despite the fact that he followed his supervisor's lead, the deviation had nothing whatsoever to do with work. As all good claims adjusters know, this is a matter of reading a map: the presumptive route to the office is a (relatively) straight line. Richard and his co-workers were seduced by the curvy call of nature, for which poor Richard has had to pay a very steep price.
From Hedge Funds to Comp Board: A Welcome to Jeffrey Fenster
Back in June we blogged the resignation of Zach Weiss from one of the more difficult jobs in America: head of New York's workers comp board. Weiss had been appointed by former governor Elliot Spitzer (whose libidinous indiscretions, we note in passing, were relatively modest, at least when judged by the new standard set by Tiger Woods). After two years mired in New York's deeply adversarial system, Weiss quit to become an administrative law judge.
Governor David Patterson, who stepped in when Spitzer stepped down, has announced the appointment of Jeffrey Fenster as the new director of the board. Today is Fenster's first day on the job. Fenster is a lawyer who once worked for WR Group Holdings, a hedge fund group based in Connecticut. The company website features a picture of the Connecticut shore with a lighthouse in the distance. The sea is absolutely calm - not exactly indicative of the world of hedge funds, or the world of workers comp, for that matter.
If nothing else, Fenster's experience in hedge funds prepares him for the complex risks involved in his new position. He now manages one of the most expensive, frictional, cumbersome, and ineffective comp systems in America. Despite recent reforms, rates are still too high, benefits are too low, fraud is rampant and virtually all stakeholders are miserable. The Empire state is a mess. I have no idea what Governor Patterson promised Fenster for taking the job, but it probably wasn't enough. Fenster is likely to look back on his presumably hectic hedge fund days as the calm before the storm, which is not exactly high praise for his new job. Good luck to him and to all who labor in New York's challenged and challenging comp system.
A Toke In Time
Six years ago Robin Hove was working as a security guard. The Saskatchewan resident became entangled with a shoplifter. In the course of the struggle, an open cut in the shoplifter's mouth bled onto Hove: "The blood came pouring out of his mouth, into my eyes and into my mouth and I was just drowning in it." Ugh.
Hove, suffering from post-traumatic stress, has not worked since the incident. For five years, his doctor prescribed conventional anxiety medications. None worked. Then his doctor prescribed medical marijuana. Bingo. Hove began to enjoy life again. While still incapable of working, he was able to get out of the house and function somewhat normally. A few tokes and he was as good as new.
Unfortunately for Hove, the Saskatchewan Workers Compensation Board does not recognize medical marijuana as a legitimate medication; marijuana is not listed in the catalogue of approved pharmaceuticals. Hove has to pay for the pot himself. It's running a whopping $600 per month (and they used to refer to "nickel bags"!).
Hove is appealing the board's denial of his request that his marijuana expenses be reimbursed. My advice to Hove: don't hold your breath. The board is unlikely to budge.
Hove found himself in the news recently. He was enjoying a coffee at a local restaurant when a robber armed with a machete tried to rob a nearby gas station. Hove reacted instinctively and heroically, helping to subdue the man. He received a commendation from the mayor for his selfless actions.
Hove's heroism does raise a couple of questions: what is the relationship between his post-traumatic stress and his ability to intervene in a dangerous situation? Was he "stoned" (sorry about that) or unmedicated when he took action? And finally, if he is capable of heroic acts, why can't he go back to work?
If Hove's ability to act is directly related to his consumption of pot, he is probably not employable. No employer would or could tolerate an employee constantly functioning under the influence of marijuana. Thus in all likelihood, Hove will continue his spacy path as an individual with a disability. He will find comfort in his drug of choice, but it will take a third of his limited disability income to pay for the medication. There's a lot of anxiety in the situation, but relief is just a toke away.
Special Edition of Health Wonk Review & other news briefs
At The Health Care Blog, Brian Klepper has posted a Special Edition of Health Wonk Review: American Health Care Reform: Observations From Health Care Analysts. If you want to know what's going on with health care reform, this is a thoughtful and selective compendium from experts that deserves your attention.
Catching up on other carnivals we missed: if, like us, you missed the last Cavalcade of Risk for the last decade at Jaan Sidorov's Disease Management Care Blog, it's worth checking out.
More news briefs
- New NCCI study: Narcotics represent nearly a quarter of all prescription drug costs. Narcotics are used mostly for back injuries.
- Attorney Robert G. Rassp fields the question: Does a Bankruptcy Affect Workers’ Compensation Benefits?
- The WSJ Health Blog reports on a recent JAMA study showing that some popular antidepressents are no more effective than placebos.
- A graphic example of when low bid = high risk from a newly-discovered safety blog by Circle Safety & Health Consultants.
- From NIOSH: Personal Protective Equipment for Health Care Workers Who Work with Hazardous Drugs
- From David Williams, we learn about important protections for a worker niche group that we have previously left unaddressed: tarantula handlers. Visit David's Twitter feed @HealthBizBlog
Emerging technologies: Freedom legs, bionic fingers, gastric condoms
It's been some time since we've made a foray into one of our favorite topics: emerging health technology, particularly in the area of rehabilitative and assistive technologies. We've compiled a few stories that we found fascinating and promising. If you enjoy them and and would like to read more, we point you to the following excellent sources: Always: Medgadget and MassDevice. Sometimes: Wired and Gizmodo.
Throw out those crutches
Crutches are an awkward and uncomfortable so we are delighted to learn about the Freedom-Leg, an "off-loading prosthetic," which allows users greater mobility. The device allows a user to avoid putting any weight on the injured foot, ankle or knee, but keeps the strength in the upper muscles of the injured leg.
If you are advancing in years as I am, you will remember TV's popular Six-Million Dollar Man and The Bionic Woman. Yesterday's fantasy is today's reality, giving powerful new potential to amputees. Prodigits is a prostehetic device for partial-hand amputees who are missing one or more fingers. Bionic or self-contained fingers that are individually powered allow users to bend, touch, grasp, and point.
Gastric "condom" for obesity, diabetes treatment
A recurring topic here on the blog is the debilitating impact of comorbidities such as obesity and diabetes on the recovery process. Obesity is frequently also a contributing factor to a work-related injury. Recently, we've seen some controversial court decisions mandating that employers foot the bill for gastric by-pass surgery for workers who are recovering from work-related injuries.
A new temporary device, the EndoBarrier Gastric Bypass, holds promise for helping with weight loss. The device is implanted endoscopically via the mouth, creating a chamber in the stomach which limits the amount of food a patient can digest. A prior story showed the device had positive results in clinical trials.
Donning and Doffing Quashed
Way back in November 2005 we blogged the interesting issue of donning and doffing: whether the time meatpackers spend at the beginning of work putting on protective gear and taking it off at the end of the shift is time on task and compensable. The 2005 ruling of the U.S. Supreme Court went in favor of the workers, but other courts have split on the issue. Now 4th U.S. Circuit Court of Appeals in Richmond has once again ruled against the workers.
The court held that putting on and taking off the gear is “changing clothes” and thus is not necessarily compensable under the Federal Labor Standards Act.
“This sort of fact-intensive determination has classically been grist for the mill of collective bargaining, and Congress ensured that employers and unions could keep it that way by enacting Section 203 (o),” Judge J. Harvie Wilkinson III wrote for the three-judge panel. We assume that the salaried Judge Wilkinson was amply paid during the time he donned his robes to issue the ruling.
Clothes Make the Man
The district court has a rather expansive view of what comprises clothing: workers, members of United Food & Commercial Workers Local 27, each must wear steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a “bump cap,” a hair net, rubber gloves, mesh sleeves and arm shields to do the work, which includes the hanging, eviscerating and de-boning of chickens.
“Because many work clothes are protective to some extent, the distinction urged upon us by the employees would be difficult, if not impossible, for courts to administer in a consistent and coherent manner,” the judge wrote, before also rejecting the plaintiffs’ argument about the definition of “changing.”
What is at stake here is fifteen minutes of pay twice each shift, presumably at or near minimum wage. Call it four bucks per shift per worker. With 250 workers involved in the class action suit, that's a total of about $1,000 per workforce shift. Having lost the suit, the workers will be paid only for their gruesome "time on task."
As most of the workers are non-English speaking, the union stewards will have to translate the court's ruling into their native tongue(s). I trust that the workers will be dressed for the occasion in street clothes: it's pretty difficult to understand the court's subtle distinctions when you are encased in steel-toe shoes, a smock, a plastic apron, safety glasses, ear plugs, a “bump cap,” a hair net, rubber gloves, mesh sleeves and arm shields. Then again, perhaps their attorney should have made his case in court while dressed in full slaughterhouse regalia: the visual evidence distinguishing ordinary clothing from personal protective equipment might have been compelling enough for even a judge to understand.