July 1, 2008
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...June 20, 2008
Brendan Doyle: Return-to-Work Person of the Year
You probably have never heard of Brendan Doyle, a Rhode Island state trooper, but his story, as told by Amanda Milkovits in the Providence Journal, belongs in the hearts and minds of anyone involved in disability management. He exemplifies what great medicine, combined with ferocious determination and discipline, can accomplish. Just over a year ago, he was punched to the...June 3, 2008
Firefighters revisited: Presumption's Slippery Slope
In yesterday's blog, my colleague Julie Ferguson discussed the issue of compensible illness for firefighters. Forty states already have statutes giving the benefit of the doubt to firefighters: if they become ill from many forms of cancer or heart disease, the illness is presumed to be work related. The burden of proof (and "burden" is surely the operative term) falls...May 5, 2008
Abusive Behavior as a Disability?
Rosemary Verga worked for United Airlines as a staff representative in human resources. This seems an odd choice for a woman described by co-workers as "a difficult person to get along with" - "impolite, unpleasant" and quick to explode. In addition to being rude, inflexible, easily upset and demeaning toward others. All in all, a rather marginal member of the...April 29, 2008
Disrimination in the UK: The (Bald) Facts
James Campbell taught art classes at Denny High School in Stirlingshire, Scotland. He filed a discrimination claim under the Disability Discrimination Act (DDA), the UK's equivalent of our ADA. His disability? Baldness. He claimed that he had suffered from harassment at the hands of pupils because of his lack of hair. Judge Robert Gall (we will resist the temptation to...March 31, 2008
The Best Health Care in the World: Part Five: A recap, a few questions, a conclusion and a modest proposal
This series is meant to paint a realistic, well-sourced and objective portrait of American health care early in the 21st century as compared with that of our 29 partners in the Organization for Economic Cooperation and Development (OECD, all of us comprising the most developed democracies in the world), and to examine how workers' compensation fits into that mix. We've...March 28, 2008
Fodder for a Friday: Injured Workers and Injured Soldiers
There's a brouha brewing in England, where a civilian employee of the Ministry of Defense (MoD) has been awarded 202,000 pounds for straining his back while picking up a printer. In this country, $350K+ awards are not all that unusual for (serious) back injuries, but the British tabloid press has jumped all over this story, comparing the generous benefits to...March 12, 2008
Return to work and disabled vets
The Iraq and Afghanistan theaters of war represent the largest deployment of civilian soldiers since WWII. Of the 1.5 million troops that have served, approximately one in every four is a National Guard member or a Reservist. While the Uniformed Services Employment and Reemployment Rights Act offers legal job protections, the road back will not be an easy one for...March 5, 2008
Bullshit as Science: A Test for Malingerers
Paul Lees-Haley, PhD, is a psychologist who has come up with a 43 question test to separate the truly disabled from malingerers. Lees-Haley is either a genius or a pompous fraud right out of Mark Twain. Read on and decide for yourself. (This posting is based upon an article by David Armstrong in the Wall Street Journal, which limits access...February 14, 2008
Pro Football and Workers Comp: A Violent Collision?
Chad Hennings spent nine years as a lineman for the Dallas Cowboys. He accounted for 28 sacks, 6 fumble recoveries, 4 return yards and 1 touchdown in 107 games before retiring after the 2000 season. He also suffered permanent damage to his back. The question is whether or not his work-related back injury is compensable under the Texas workers comp...February 12, 2008
ADA Restoration Act: The Fix Needs Fixing
The Americans with Disabilities Act of 1990 attempted, among other things, to eliminate workplace discrimination against people with disabilities. No one can argue with the goal. Over the years, problems have emerged in determining who meets the ADA definition of disabled. Nearly sixteen years after full implementation of the law, this remains a murky area in need of clarification. Under...February 6, 2008
West Virginia Transition: Changing Rules, Changing Lives
We have been following the cosmic shift in the administration of workers' comp in West Virginia, where a monopolistic state has morphed into a competitive market. The future looks rosy, but there is much pain in the transition. It's one thing to tighten up eligibility requirements and build a new "return-to-work" culture; the problem comes when the new culture clashes...January 22, 2008
Morbid Obesity and the Essential Job Functions of a Cop
When Paul Soto joined the NYPD in 1993, he was 25 years old and weighed 250 pounds. Ten years later, his weight ranged well above 300 pounds. As you might expect, he was having difficulty performing the essential functions of his job. He applied for disability retirement; pending review of his application, he was placed on light duty, which kept...January 15, 2008
Kentucky: Age and Benefits Collide
The Insider continually tracks the impact of an aging workforce. There's no lack of material! Here's an interesting case from the Bluegrass state, where the issues of working past retirement age and the calculation of disability benefits collide. Charles Lickteig was a deputy sheriff in Jefferson County, Kentucky. He was eligible for retirement age at 55, but chose to continue...January 14, 2008
Hi-tech wheelchairs improve life for the disabled
If you haven't seen some of the recent progress being made in wheelchair technology, you may be in for surprise. This feature from deputydog, a "cool and interesting things" weblog, features photos, video clips and links to various hi-tech wheelchairs. While some selections fall more under the category of "personal transport systems" than wheelchairs, most are designed to offer a...December 12, 2007
Changing the way we see disability
For a seasonal heart warmer, you can't do much better than the creative animated ad campaign entitled Creature Discomforts (video, sound alert) that is running on BBC. The ads are sponsored by Leonard Cheshire Disability to raise awareness for and change attitudes towards disability. The theme cues off a popular BBC series, Creature Comforts. As is often the case, the...December 5, 2007
Age and Disability in California
We have frequently blogged the implications of an aging workforce. We are very interested in seeing how the workers comp system will handle older workers - people beyond the normal retirement age - when they are injured. Well, here is an interesting case from California. Lois Vaira was a receptionist for the California Travel and Tourism Commission. In January of...November 14, 2007
Mental Health Parity: Not in Workers Comp
There is a bill pending in the US Congress to require parity between mental and physical health benefits. The bill is a follow up to similar legislation passed in 1996, which was severely limited in scope: Employers did not have to provide any mental-health benefits. Copays and deductibles could be higher for mental-health expenses. Visits could be limited. And small...October 10, 2007
Delphi Goes Fishing - and is Harpooned by the EEOC
Delphi, the auto parts maker working its way through bankruptcy, has a new problem. The U. S. Equal Employment Opportunity Commission (EEOC) has sued the company under the ADA for making illegal inquiries about employee medical conditions and retaliating against those who refused. In 2004 Delphi implemented a policy requiring any and all workers returning from sick leave to sign...October 3, 2007
Linebacker with a Disability?
Odell Thurman plays linebacker for the Cincinnati Bengals. That is, he used to. He's currently under a one year suspension for violating the NFL's substance abuse policy: his first violation resulted in a four game suspension; that was followed by a full year off after he was arrested for DUI (blood alcohol at 0.18). He has filed suit with...September 26, 2007
Brave new world: genetic testing and workers compensation
The good news is there are new technologies that hold the promise of ending fraudulent or inappropriate disability and workers’ compensation claims. The bad news is that you'll need to get in the business of harvesting and tracking your employee's DNA to get there, venturing into relatively uncharted legal waters. Workforce Management and BBC both discuss the new technologies in...July 10, 2007
FMLA: Looking Back, Looking Forward
The Family and Medical Leave Act has been with us since 1993. In 2005 it covered about 76 million workers, with as many as 13 million making use of benefits under the act. Limited to employers with 50 or more employees, and to employees with at least one year of service, the act provides unpaid leave for birth, adoption and...May 7, 2007
California Apportionment: Pennies for your Pain?
The plaintiff bar in California is very unhappy with the state's (long overdue) reforms of 2004. One blogger calls for the abolition of comp and a return to the pre-comp days when employees sued their employers for work-related injuries. I would call that a bit emotional, counselor. To be sure, there are real problems in determining permanency benefits, and some...March 27, 2007
When - and Where - Does the Workday Begin?
Irene Muszynski is a teacher in Buffalo NY's Grover Cleveland School. Last October, she parked her car on a side street a half block from the school - the school's small lot cannot accommodate all the teachers. As she reached into the back seat of her car to retrieve some materials, Terrance Johnson, a 17 year old student at the...February 5, 2007
The Saga of Ted Johnson: Sports Medicine with a Bitter Taste
Ted Johnson was a linebacker for the New England Patriots. His specialty was stopping the run. As any viewer of the recent NFL playoffs knows, run stoppers use their heads: first, to think strategically -- where to go in the course of a given play - but then literally: torpedoing head first into the body of an opposing player. That's...December 7, 2006
The ADA's Tough Standards
We've all functioned under the ADA for long enough to know that it is a tough task master for employers. Above all, the Act requires employers to go through a specific process prior to terminating an ADA-eligible employee. Any foreshortening of the process, any jumping to conclusions, no matter how seemingly well reasoned or logical, are likely to meet with...October 19, 2006
After the Dust Settles: Liability versus Immunity in the 9/11 Clean Up
Five years after the fall of the World Trade Center towers, there are lingering issues concerning the health of the rescuers. Over 40,000 workers rushed to the site in the immediate aftermath, and then sifted debris in the following weeks. It now appears that many of these workers have suffered lung damage, much of it permanent, some of it fatal....October 12, 2006
UPS Drivers Turn a Deaf Ear...
Is good hearing an essential job requirement for drivers of UPS trucks? UPS thinks it is. They categorically disqualified from driving any applicant with a severe hearing disability. They say it's a safety issue. We read in the LA Times, in an article by Lisa Girion, that UPS failed to win the safety argument in court. The San Francisco-based U.S....October 2, 2006
"Crackberry" Addicts: One More Email for the Road...
It's only Monday, so it might be too early in the week for this. But the Insider is committed to keeping our readers informed on the latest developments in risk and human resource management. Today, we confront the physical, emotional and legal time bomb of BlackBerry addiction. We first tracked the health implications of using tiny keyboards in our "BlackBerry...September 28, 2006
Morbid Obesity: What Should Employers Do?
We recently blogged a ruling in the U. S. 6th District Court, in which the judges determined that morbid obesity is generally not a disability. The judges’s thinking in this particular case appears to have powerful implications for the ADA and for all employers with obese workers who have difficulty performing their jobs. HR professionals might be tempted to assume...September 14, 2006
Morbid Obesity and the ADA: Maybe Protected, Maybe Not
A recent ruling (PDF) by the U.S. Court of Appeals in the 6th Circuit confronts the issue of morbid obesity - specifically, whether individuals suffering from that condition are protected by the Americans with Disabilities Act (ADA). Stephen Grindle was a driver and freight handler for Watkins Motor Lines. He weighed around 400 pounds. In December 1995, he was climbing...July 17, 2006
Bi-Polar Receptionist: The welcome from hell?
Michael Mammone worked as a receptionist at Harvard University's Peabody Museum for seven years. All went well until he suffered a severe manic episode, described by the law firm of Goodwin Proctor as follows: He established a website protesting what he believed to be low wages paid by the university and began to distribute flyers advertising the website while on...June 20, 2006
Unholy Matrimony: Husband and Wife Defraud the Comp System
Rosamond, California is a sleepy town in the Mojave Desert, with a population around 15,000. It's hot, flat and quiet, except perhaps for the sonic booms originating at Edwards Air Force Base, which lies 23 miles to the east. But in a scenario right out of pulp fiction, Rosamond is the scene for an elaborate case of workers comp fraud....May 24, 2006
Preconceived notions and Mental Disablility: The Tale within a Tale
The way we react to a news item often depends upon our pre-conceived notions. We all have an innate sense of what is good and just, tasteless and outrageous (although your "outrageous" might be my "humorous"). Our fellow bloggers at "Overlawyered" scan the news for indications that our over-litigious society is out of control, with greedy lawyers in eternal pursuit...May 10, 2006
Accommodating a Mental Disability
Let's say you run a large insurance company. You sell through your own agents, one of whom has been a marginal performer for many years. You place the employee on probation several times, but he seems to be trying hard, so you continue his employment. This individual suffers from bi-polar disorder. Over the course of a decade, he goes out...April 26, 2006
The Perils of Management: When the Right Moves Go Wrong
You have a valued employee - a good producer - with a drinking problem. Ever since a traumatic divorce, his performance has suffered. He misses a meeting with a major client. You encourage him to seek help through the Employee Assistance Program. He voluntarily enters a detoxification program. He participates in Alcoholics Anonymous twice a week. He sees a counselor....April 20, 2006
Docs on Disability
The Insider has long puzzled over the decision-making process of doctors treating injured workers. Why do they rely so heavily on expensive pain killers when over-the-counter medicine might do the job just as well? Why do they choose one knee replacement part over another? Why are so many doctors quick to certify a disability, when the injured worker retains much...April 13, 2006
"My Supervisor's Dead! Praise the Lord!"
Many employees wish that their bosses would drop dead, but when it actually happens, is it OK to celebrate in the workplace? If you ascribe the death to an act of God, is your speech protected under your freedom to practice religion? We read in Suits in the Workplace about just such a case. When the supervisor of a Florida...April 11, 2006
The long tail of WTC toxic exposures
Health experts predict that the health implications for the workers involved in the World Trade Center cleanup will take more than 20 years to be fully evident. A recent article in the PhillyBurbs discusses the frustrations that sick workers and health authorities alike are having in trying to come to grips with the health ramifications of post 9-11 cleanups. The...March 31, 2006
When Normal Life becomes "Mission Impossible"
Last June during the filming of Mission Impossible 3, Steven Scott Wheatley, a Hollywood stuntman, was standing near a Chevy Suburban that was supposed to be blown up by a missile. The device planted in the vehicle detonated prematurely and Wheatley was burned over 60% of his body. He is now suing Paramount Pictures, Tom Cruise's production company (Cruise/Wagner) and...February 21, 2006
To War and Back Again
The good news from Iraq (OK, there isn't much) involves the dramatic improvement in battle-related trauma treatment. Soldiers are surviving injuries that in prior wars would have resulted in certain death. So far, over 15,000 soldiers have been injured since the fighting began in March 2003. By the time major military operations have been completed, more than two million soliders...December 5, 2005
Obese Trucker = Public Safety Hazard?
We all know that morbidly obese people are at risk for a wide variety of health problems. But do they pose inherent dangers to others? In a recent case decided in Oregon, a 550 pound trucker was suspended and eventually fired because his employer believed he posed a risk to others on the road: due to his girth, he might...September 12, 2005
Taking care of the unsung heroes
On the anniversary of 9/11, many of us took time to honor the victims of that sad day, including the many working heroes who gave their lives to try to rescue others. Last Friday, President Bush presented posthumous Medals of Valor to the families of 443 first-responders who were killed on the scene. But one sad story that is getting...July 26, 2005
Alcoholism and Work: The Devil's Brew
We begin today's blog not in the workplace, but in the home. The family basement, to be exact. According to the Detroit Free Press, Merle Rydesky wrapped a chain around his 57-year-old alcoholic brother's neck, binding the other end to a bedpost in the basement. He padlocked the chain, pocketed the only key and left for work. His was trying...July 22, 2005
Public Safety Workers Comp: Big Questions, Few Answers
Michael Forman, 39 years old, is a Suffolk County policeman with 13 years on the job. During that time, he received nine awards for exceptional police work -- and filed 12 workers comp claims. It's the last of these claims that has brought him his current notoriety. He says that he hurt his wrist in April of 2003 -- an...May 24, 2005
Pre-existing conditions and second injuries
Over the weekend, one of our regular readers left a comment in another post asking for information about work injuries that are aggravated by a pre-existing condition. At one time, most state laws had Second or Subsequent Injury Funds (SIFs) that offered some measure of recovery to employers/insurers for injuries that were exacerbated by a pre-existing condition, whether that condition...April 15, 2005
Maximizing recovery: Second injury funds
One of the nooks and crannies of workers comp that often gets short shrift is the issue of recovery. Many employers and insurers can recoup claim expenditures through second injury funds or subrogation, for example. Since this is a large area, today we'll briefly discuss second injury funds, and return to subrogation at another juncture. Second injury funds were designed...March 31, 2005
Extreme Commuting: Not Exactly the Sporting Life
There is a relatively new phenomenon for a growing number of working Americans: extreme commuting. According to Business Week, 3.4 million Americans have a commute to work that takes 90 minutes or longer each way. Fueled by outrageous inflation in housing prices, American workers find themselves “driving until they qualify” – that is, driving out from their jobs until they...February 14, 2005
A Few Thoughts on Disability Insurance
There's been a lot of publicity lately about private disability insurance. Most of it's negative, stories about insurance companies denying coverage or making claimants wait a long time to collect benefits. A typical article recently appeared in the New York Times (available by subscription only). As I think about it, writing disability insurance -- especially "own occupation" policies which cover...December 16, 2004
Top 10 backbreaking jobs
According to the American Chiropractic Association (ACA), back pain is one the most common work-related injuries in the United States, accounting annually for approximately one-quarter of all lost or unproductive workdays. What do ACA members consider to be the most backbreaking jobs? Heavy truck and tractor-trailer drivers top the list, followed by construction workers, landscapers, police officers, farmers, shingle roofers,...November 5, 2004
More on the ADA
Michael Fox from Jottings by an Employer's Lawyer points us to a useful resource from the EEOC: How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers. And if ADA compliance has slipped off your radar screen lately, you may want to read Michael's report about a recent $1.3 million jury judgment...October 20, 2004
Americans With Disabilities Act (ADA) compliance
How do you hire the right worker for the right job but avoid violating the ADA in the process? Michael at George's Employment Blawg has done stellar work in unearthing some great Web resources on the topic so we are going to pass on the fruits of his labors and offer thanks for the pointers. First and foremost, every job...September 9, 2004
How a workplace injury transformed a life
This past Monday, Sean George marched in Pittsburgh's annual Labor Day parade. While such an event may seem pedestrian, the circumstances that led to it are anything but. A steamfitter and a survivor, George shares the story of his horrific workplace injury with workers and insurers in the hopes that his experience might change the lives of others for the...August 13, 2004
When the Employer Plays Doctor
The Associated Press has a fascinating story of a lawsuit being brought against UPS by a former employee who was ordered by UPS to stop taking a legally prescribed medication for anxiety. The story reveals that the employee had completed an alcohol treatment program (and thus likely qualifies as an individual with a disability under the Americans with Disabilities Act)....July 7, 2004
Research: outcomes for injured workers
This year's NCCI Issues Report contains a report by Richard Victor of the Workers Compensation Research Institute (WCRI) of Cambridge, MA on WCRI's ongoing study of injured worker outcomes in California, Massachusetts, Pennsylvania, and Texas. The objective of the research is to measure key outcomes that are frequently at the heart of public policy decision making: recovery of healthsuccessful return...March 29, 2004
Cultural competence in healthcare and beyond
Is your workers comp provider network culturally competent? If not, you may fostering needless disability. Georgetown University's Center on an Aging Society has an excellent article on the issue of cultural competence in healthcare, and defines the concept as "the ability of providers and organizations to effectively deliver health care services that meet the social, cultural, and linguistic needs of...February 23, 2004
Hazardous duty: Earl Dotter photographs America working
You must visit the extraordinary site of photojournalist Earl Dotter. He describes his work better than I ever could: For 30 years, the camera has enabled me to do meaningful work. Starting in the Appalachian coal fields, and continuing through the years over a broad spectrum of industries and regions of the country, I have observed and documented the working...February 11, 2004
A new prescription for back pain
I have long suspected that the way this country treats back pain for work-related injuries is not only ineffective, it's actually destructive. I have seen countless back claims degenerate into permanent and total disability following surgery. We are now beginning to see data that bears this out. In an article with profound implications for employers, insurers and workers with lower...January 29, 2004
Study shows active recovery fosters return to work
A recent study on lower back pain and return to work was conducted by a Dutch research team, and the findings were unsurprising to those of us who espouse the idea of an active rather than a passive recovery whenever possible. In the study, workers with nonspecific low back pain who engaged in a graded activity program returned to regular...January 28, 2004
Worker outcomes: are some workers being marginalized?
Peter Rousmaniere has a column entitled A Voice of the Worker in Risk & Insurance that is well worth reading. He reports on the Workers Compensation Research Institute's (WCRI) study, Outcomes for Injured Workers. The research encompassed 3,000 claimants in California, Massachusetts, Pennsylvania, and Texas. It's one of the first studies from the worker perspective, assessing recovery, return to work,...September 18, 2003
