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Raymond Letellier co-founded a steel fabrication company in New Hampshire called Steelelements. The company suffered a major fire in March of 2007. They rebuilt, although the cost of the rebuilding, managed by Letellier's partner, exceeded the budget. In October 2009 the company went out of business. Throughout the long, downward spiral, Letellier suffered from stress, hypertension and depression. Soon after the company's failure, he filed for personal and business bankruptcy. At the same time, he applied for workers comp benefits.

Letellier's claim was initially denied, then accepted for the medical costs only, and then denied again. Eventually the claim reached the New Hampshire Supreme Court, where a deeply divided court (3 to 2) ruled against Letellier. The court reasoned that the failure of the company was akin to a personnel action: workers comp does not cover such employer actions as discipline, termination and lay off. In closing the business, Letellier subjected himself - and everyone else - to a lay off. - a non-compensable personnel action.

Work-Related Stress?
Two dissenting judges pointed out that the majority focused almost exclusively on the ultimate failure of the company, the lay off itself. But the extraordinary and relentless stressors in Letellier's life began with the fire and continued throughout the struggle to keep the over-leveraged company in business. This is not the stress of a single event, but the cumulation of stress over months and years. The dissenters noted that Letellier's commute to the factory was 100 miles, so he often slept in his office, where ever-pending doom haunted his every waking moment and his troubled dreams. They opined that his multiple health issues were predominantly caused by work.

Letellier, once the proud owner of a successful business, finds himself in the same situation as laid off workers across America. He is on his own and out of luck.

We will set aside for the moment what may be Letellier's biggest mistake: instead of trying to make things that people can actually use, he should have pursued a career in finance, where he could have sold worthless mortgages, watched his company flounder, and then be rescued by tax-payer bailout, all the while preserving a superbly inflated salary. That's an All-American story of a different sort, albeit fodder for another day.

From time to time, we like to take a look at the wizardry that is under development in rehabilitative and assistive technologies. What used to be on the order of Flash Gordon type fantasy is now reality within reach. In out first clip, Toyota Unveils Quartet of Healthcare Robots. MedGadget says these four robots are expected to be production ready in 2013. Three are walking assist and balance training robots that would help in patient rehab. The fourth is a patient transfer assist - something we see as very valuable in helping to prevent health care worker injuries.

And while on the topic of lifting aids, we'd be remiss if we didn't include RIBA, a versatile if somewhat surreal patient care robot.

Finally, we have a Robotic Man's Best Friend to Guide the Blind. Yes, it may cost a bit more, but think of the savings in dog food. All joking aside, it's exciting to see these technological advances moving closer to the practical reality of helping people to overcome injuries and disabilities.

Today we examine two court cases that trouble the dreams of claims adjusters: workers with severe injuries whose use of pain medication leads to their deaths. In one case, the accidental overdose is deemed compensable; in the other, the claim is denied. The devil, of course, is in the details.

Compensable Death In Tennessee
In November 2008, Charles Kilburn was severely injured in an auto accident while in the course and scope of employment. Fractures to his back and neck resulted in permanent total disability. Following surgeries, he still experienced severe pain. A pain specialist prescribed oxycodone. Fourteen months after the accident, Kilburn died of an accidental overdose. His widow filed for death benefits.

Kilburn's employer believed that the death was the result of negligence, which would break the chain of causality with the original injury. Kilburn had ignored his doctor's cautions to limit his intake of oxycontin to a specific maximum dose. The Supreme Court of Tennessee determined that the severe pain experienced by Kilburn might result in diminished faculties, which in turn might lead to taking more medicine than was prescribed. In their view, the chain of causality remained intact at Kilburn's death and thus his widow was entitled to benefits.

Denial in Ohio
In Parker v Honda of America, the initial circumstances are similar, but the apparent "diminished faculties" lead to a very different result. John Parker suffered a severe back injury at work in 1988. He was prescribed OxyContin in March 1999. He eventually became addicted to the drug, along with cocaine, percocet and heroin. In March of 2006 he was found dead, a syringe in his arm, a spoon with a lethal dose of melted OxyContin at his side. In this case, the Ohio Court of Appeals found that his melting and injecting the drug, combined with his documented abuse of street drugs, broke the chain of causation linking the death to the workplace injury.

The court rejected his widow's argument that the drug abuse was the result of a "severe disturbance of mind" and thus unintentional. It's worth noting that if Parker had deliberately overdosed as an explicit act of suicide, the death may have been deemed compensable. But because the overdose was an acccident, workers comp benefits were denied.

The Big (and Not-So-Pretty) Picture
Pain is a constant factor in work-related injuries. The control of pain is a complex and widely misunderstood aspect of claims management. Because we live in a culture that relies heavily on powerful medications to control pain, and because the prescribing of these powerful drugs is neither well managed nor well monitored, we will see more and more cases of drug overdoses wending their way through the workers comp system. Some cases will be compensable, others will not. One thing is certain: the challenges of managing these situations will continue to haunt key players in the comp system: the doctors who prescribe the drugs, the adjusters who authorize bill payment, the families who suffer the consequences of loved ones in severe discomfort, and above all, the injured workers, whose every waking moment is compromised and consumed by a pain that just won't go away.

When the category 5 hurricane hit Joplin, Missouri on May 22 this year, Mark Lindquist was perched on a mattress which covered his clients, three mentally disabled adults. Lindquist, a social worker for Community Support Services, was following the tornado protocol in a town where basements are virtually non-existent. Unfortunately, the protocol proved utterly ineffective in the wake of 200 mile per hour winds. Lindquist was plucked from his perch and hurled a block away. He was impaled on debris, with every rib broken, his shoulder destroyed and most of his teeth knocked out. He was put into a coma for about two months, nearly dying from Zyomycosis, a rare fungal infection that killed 5 other victims. And to top things off, his three clients perished in the storm.

Lindquist's survival is well beyond the expectations of his doctors. His right arm remains in a sling, but he has use of the hand. An eye that was temporarily blinded has full sight. He moves slowly and has short-term memory loss, but is able to speak clearly.

A Hole in the Safety Net?
Lindquist assumed that workers comp insurance would cover his medical costs (a whopping $2.5 million), pay for his 12 daily meds and provide indemnity for his lost wages. (As a low wage worker, Linquist could not afford health insurance.) His assumption of coverage has proved naive. He certainly was "in the course and scope of employment." However, under Missouri law, Acts of God are only covered by workers comp if work exposes the individual to unusual risk. If, on the other hand, there was no greater risk for Lindquist than that facing the general public at the time of the tornado, the injury is not compensable. Lindquist was working - heroically - but the work itself did not cause the injuries. His claim has been denied.

End of story? Not quite. Certainly a case can and will be made that by lying on top of a mattress, in that particular location, Lindquist was more exposed to harm than the general public. He will be able to show that had he not been working, he might have been able to drive his van out of harm's way. Given the high profile of his claim, he is likely to prevail at some point in the process.

It's worth noting that of 132 comp claims filed in the tornado's aftermath, only 8 have been denied. It may have been an Act of God, but somewhere along the line there will be an act of mercy to help a courageous worker rebuild his shattered life from the ground up.

Thanks to Mark Walls and his Workers Comp Analysis Group for the heads up on this story.

For 36 years Rodolfo Meza worked for Aerol Corporation in Rancho Diminguez CA as a metal worker making cast iron and aluminum molds. He was about 48 when he began working; he was about 84 when he was terminated while on medical leave for a knee operation. Rodolfo sued, claiming age discrimination, raising the question: how old is too old to work?

In the course of his trial and subsequent appeal, Rodolfo noted that his immediate supervisor commented frequently about his being "too old to work." Despite operations for a hernia and a knee replacement (the court rulings do not indicate whether these were covered by workers comp), Rodolfo had every intention of continuing to work. When his normal job became a bit difficult for him to perform, he requested a transfer to the engineering department, where he often had performed work. His supervisor responded "no, Rudy I can't [transfer you]. You are too old to move to engineering."

When he was terminated in 2009, his 24 year old son (conceived when Rodolfo was 60!) noted that he became sad and depressed.

Age Has Its Benefits
A jury awarded Rodolfo $100,000 for future economic loss: based upon his annual earnings, that's a little over three additional years of employment, bringing Rodolfo to age 87. In addition, they awarded $300,000 for past non-economic damages (presumably, the ongoing agist comments of his supervisor). That's a lot of money for an individual nearly 20 years past the conventional retirement age.

Aerol appealed and lost. The CA Court of Appeals found a pattern of discrimination, along with a legal technicality that prevented Aerol from contesting the award for the future earnings: Aerol failed to raise the issue in a timely manner during the initial the trial.

Expensive Lessons in Human Resource Management
Is the court saying that employers must continue to employ workers into their 80s, with no recourse available to force retirement? Can workers work as long as they like?

Not really.

Aerol - through the actions of Rodolfo's supervisor - made a number of critical mistakes in managing this situation. The supervisor made repeated comments about Rodolfo's age; the supervisor should have been warned to cease this behavior and disciplined if he continued. Rodolfo had an exemplary record of employment; there was no (written) indication that his performance had deteriorated. When Rodolfo felt less capable of doing his regular job and requested a transfer, he was denied the opportunity based solely upon his age. When he requested time off for the knee surgery, it was granted; there was no indication that his job would be eliminated during his absence, but that's exactly how Aerol proceeded.

A Word to the Wise on Aging
Savvy employers would do well to learn from Aerol's mistakes:
- Never assume that based solely upon age a worker is "too old"
- Focus on the essential job requirements: employees must be able to safely perform jobs as specified (some accommodation based upon age should be considered)
- Document any problems in performance
- Train supervisors in managing older workers (along with women, minorities, disabled workers and any other protected classes)
- Above all, keep lines of communication open.

Rodolfo gave 36 years to Aerol. He deserved consideration as he grew older, but he was not guaranteed a job. If and when any issues of his job performance arose, his supervisor should have sat down with him to discuss them openly. Ironically, there are no real winners in this situation: Aerol (or its insurer) took a big hit economically. They also lost a loyal employee who was still capable of making a positive contribution to the company. Rodolfo lost the job he loved and lived for. To be sure, he now has a nice nest egg for retirement, but that is not what he wanted most. He was one older worker who just wanted to keep on working.

We first encountered Montana workers comp judge James Jeremiah Shea last year, when he ruled that Brock Hopkins, a pot-smoking handyman, was eligible for workers comp after being mauled by a bear at Great Bear Adventures. In his ruling, Judge Shea managed to invoke the movie, Harold and Kumar Go to White Castle, to wit:

"It is not as if this attack occurred when Hopkins inexplicably wandered into the grizzly pen while searching for the nearest White Castle. Hopkins was attacked while performing a job Kilpatrick had paid him to do - feeding grizzly bears."

In a more recent case, Judge Shea was confronted with the claim of Bruce Martin, a carpenter seeking treatment for what he insisted was a work-related back problem. While there is no reason to believe that Martin was partaking of Brock Hopkins's favorite recreational drug, he did manage to present a narrative that consistently conflicted with the perceptions of virtually everyone else involved: his employer, Jesse Chase, co-worker Barry Hollander, and claims adjuster Michele Fairclough.

Martin claimed he injured his back while stripping the plastic protective barrier off of metal siding - a relatively light-duty task. But in walking off the job that morning, he stated to his boss that his sciatica was acting up and that it was not work related. Only after going to an Urgent Care clinic did he claim that the injury happened at work. Why? We can assume that he wanted his employer to pick up the tab through workers comp.

My Aching Back
Martin's history of back problems began in the early 1990s, following a motor vehicle accident. He treated sporadically with Dr. Aumann, a chiropractor. Dr. Aumann, sympathetic to his long-term patient, thought that "on a more- probable-than-not" basis that Martin's injury was the result of the work accident he described. Unfortunately for Martin, no one else bought his story, even as the story itself changed over time.

Judge Shea wrote:

Dr. Aumann identified objective medical findings to support Martin's claim of lumbar spine problems. However, Martin has not established that this injury occurred because of a specific event on a single day or during a single shift. I did not find Martin's testimony credible. Neither Hollander, who was working alongside Martin, nor Martin's employer Chase could corroborate Martin's account of injuring his back on June 29, 2010...

It is not altogether impossible to feel a little sympathy for Martin: he has a real back problem. He is experiencing legitimate pain. He has difficulty performing physical work and is not trained to do anything else. He desperately needs income. Martin is like a lot of other American workers in these troubled times, living day-to-day on the edge of disaster. While we can understand why he would try to stretch the facts to fit the workers comp mold, we acknowledge that he was wrong to do it. As Judge Shea concluded, Martin was not injured as the result of an industrial accident. Given that definitive ruling, Martin, bad back and all, is simply on his own.

When we last left bodybuilding firefighter Felix Arroyo, his application for disability retirement ($65K per year, tax free) had been rejected and he had been offered back his (relatively light duty) job with the Boston Fire Department. Arroyo declined to accept the job and was fired. Now we read in the Boston Globe that he is facing criminal charges in federal court for mail fraud, the result of a seemingly able-bodied individual claiming to be disabled.

The case against Arroyo is as powerful as his biceps. Two back specialists have testified that there is no objective evidence of a back problem and that Arroyo's description of the pain ("8 out of 10") was inconsistent with his mobility. Testimony was also given by Dr. John Mahoney, the doctor who originally disabled Arroyo (and whose original diagnosis we termed "Mahoney's Baloney"). Mahoney testified that he would have changed his evaluation if he had known Arroyo was a body builder.

"If someone is bodybuilding, they're playing baseball, they're doing activities...that's not compliant" with their recovery," Mahoney said.

Good for Dr. Mahoney. He owned up to his mistake and assumed responsibility for it.

Tough Defense
Arroyo's attorney, Timothy Watkins, has his work cut out, for sure. He says that Arroyo was "working through the pain." (Aren't we all?) He also noted that the doctors's interpretations of the exams are subjective and that the pain Arroyo suffered could have been the result of stress (the stress, for example, of fabricating a disability?).

Perhaps the most damaging evidence is the video of Arroyo flexing for an audience at a bodybuilding competition a few weeks after he filed for disabiility. The video shows him prancing around the stage, stretching his ripped arms and chiseled legs in all directions and flexing the formidable muscles in his back. Then again, maybe he was just having a good day.

Arroyo is by no means alone in his attempt to take advantage of a lax system. He could argue that he was only doing what many other firefighters have done. True enough, but Arroyo alone is on trial here. Testimony continues. And while no trial result is a foregone conclusion (did someone say "Casey Anthony"?), Arroyo is likely to be working out for a while in a relatively confined space.

David Little worked for B & L Ford in Ashland, Pennsylvania. He suffered a shoulder injury in October 2005. He worked light duty up until January 19, 2006, when the employer received a letter from his attorney stating he was unable to perform any manual labor. The employer advised Little to secure a note from his doctor regarding his ability - or inability - to work. His doctor gave Little a letter stating he was unable to work, but before Little had the opportunity to present the letter to B & L Ford, they sent Little a letter of their own, terminating him.

Little spent a weekend brooding over the termination. He called his wife home from her job on Monday. She found Little at the kitchen table, holding the termination letter. He stood up and then collapsed from a heart attack. Emergency workers had to pry the letter from his hand. Little died later that day at a hospital.

Was this a work-related fatality? Little's widow filed two workers comp claims, one for Temporary total benefits up until the death, and one for death/survivor benefits.

Small Victory, Big Loss
A workers comp judge awarded temporary total disability benefits up to the date of Little's death; once Little became "unavailable" for work (i.e., dead), the benefits ceased. On the issue of a work-related fatality, the judge found - and the Commonwealth Court of PA upheld - that the death was not work related, as it neither occurred "in the course and scope of employment" nor did Little's activities on that fatal day "further the interests" of the employer.

There is no question that the loss of his job was a significant, perhaps predominant, factor in Little's death. However, personnel actions (discipline, demotions and terminations) are generally excluded from workers comp coverage. The sequence of events that began with his attorney's letter culminated first in the loss of the job and then in a fatal heart attack.

Given that Little had filed a workers comp claim and the employer apparently fired him because of his injury, the widow might be able to sue for wrongful termination. But the courts have made it clear that aside from a modest indemnity payment for lost time, workers comp will provide the widow no solace and no support for the work-related loss of her husband.

Dr. Jean Zannoni, 77, runs a family practice in Parma, Ohio. It would be a mistake to assume that by specializing in families, she is not interested in treating injured workers. She treats them all right - to pill after pill after pill. She was recently sentenced to two years probation and ordered to pay more than $7,500 in fines and restitution after pleading guilty to theft, attempted workers' compensation fraud and telecommunications fraud.

According to authorities, two Ohio Bureau of Workers Compensation (BWC) undercover agents were provided narcotic medications without proper medical examinations and BWC was billed improperly for the office visit.

Dr. Zannoni instructed her staff (in writing!) to bill all injured workers under the same code and charge BWC $75, regardless of the circumstances of the visit. She also manipulated "pain" ratings to ensure that patients qualified for narcotics. And she continued to prescribe narcotics to patients who were known doctor shoppers, even after receiving warnings from pharmacies, parents, spouses, social service agencies and police departments. Some family, some practice.

A Microcosm
In the scheme of things, Dr. Zannoni is a bit player. But when you try to figure out how narcotics became such a major cost driver in workers comp, you have to take into account doctors like Zannoni, who parlay a little pain into big profits.

Given the scale of her crimes - she overbilled WBC by $65,000 - the penalties in this case (small fine plus probation) seem a bit modest. On the other hand, the (Feel)Good doctor, at 77, is probably nearing the end of her practice, which may well have played into the decision to let her off relatively lightly.

Ironically, if you Google her name, Zannoni's patient ratings are uniformly high (pun intended). One anonymous patient even commented on an article describing her conviction as follows:

This is one of the sweetest most nieve (sic) people on ths planet. I know her personally and she has no idea what goes on. All she knows is how to do is practice medicine and nothing about finances at all. God bless her and I hope everything works out for her sake.

We'll let that stand as written. And one thing is certain: those seeking pills in Parma may not be able to count on Dr. Zannoni any longer, but surely they will find other sources to make their pain go away, to get a little buzzed, and, who knows, make a little money on the side.

In the world of workers comp, chronic pain is a major cost driver. When pain persists beyond expected healing times, the prognosis is grim: injured workers suffering from prolonged pain often drift into anxiety and depression and may even become addicted to powerful pain medications. In the downward spiral of relentless pain, it becomes increasingly difficult to separate physical and psychological issues. The prospect of return to work disappears, the injured worker's life disintegrates and the cost of the claim goes through the roof.

The claims adjusters who are responsible for managing chronic pain injuries usually resist any recommendations for psychological counseling; they avoid such interventions because treatment - whether individual or group therapy - cannot and should not be limited to what is "work related." Pain subsumes the worker's entire life. Yet counseling is often an essential part of what is needed: injured workers talking through their many difficulties and sharing their experience with others.

So is it possible to develop a chronic pain program that limits financial exposures, narrows the treatment options and sets reasonable time frames for completing the treatment cycle? And can pain management encompass at least some focused counseling?

A Guide for the Perplexed?
Massachusetts has taken a shot. The state's Department of Industrial Accidents(DIA) Health Care Services Board has issued draft guidelines (PDF) for managing chronic pain. Under the leadership of Dean Hashimoto, who holds both medical and legal degrees, the draft protocol tiptoes through a minefield populated with poppy plants, doctors with prescription pads and long needles, chiropractors, acupuncturists, counselors and biofeed back practitioners - not to mention the ever-present drug salespeople. The draft guidelines could well serve as a Guide for the Perplexed.

Beginning with the caveat that 10 percent of all chronic pain cases will fall outside of the protocol, Hashimoto's task force tries to set parameters for all types of treatment: the number and type of diagnostic and therapeutic injections permissible; the goal-oriented use of mental health counseling, with specified durations (6 to 12 months); "very limited" use of opioid analgesics, with referral to pain specialists, if needed, and including a detailed list of specific actions designed to avoid addiction.

A Work in Progress
The DIA is soliciting comments on these guidelines. Alas, they are unlikely to hear from the relatively small portion of stakeholders who are profiting from the current chaos: the pill-happy doctors, the attorneys who discourage injured workers from returning to work, the physical therapists and chiropractors who believe that treatment, once begun, should go on forever, and the pharma sales folk who encourage use of the most powerful opiates for what is usually short-term pain.

The draft guidelines are comprehensive and reasonable. As the final guidelines will not and cannot have the force of law, they will not eliminate the abuse that currently exists. But if they help motivated treatment practitioners to offer more effective services, and if they open the door to at least some counseling for injured workers, the guidelines will surely save both lives and careers. That in itself will validate the admirable and essential work of Hashimoto's board.

Darrell Miller worked for the Illinois Department of Transportation (IDOT) as part of a crew that maintained bridges. He worked without any problems for five years, but then encountered some difficulty with the job related to a fear of heights. In the most dramatic event, he and another crew member had to "go over the edge" of a bridge over the Mississippi River to change the navigation light bulbs directly above the river. The court describes the incident:

Miller had to climb down a ladder on the side of the bridge to reach the station that held the light fixtures. Some of the stations would have required him to stand on a bridge beam while wearing a lifeline. When Miller attempted to change a bulb that would have required him to stand on a bridge beam, he was unable to complete the task. He suffered a panic attack and was taken by ambulance to a hospital. That was the first, last, and only time Miller was unable to complete an assigned task because of his fear of heights.

Subsequent to treatment for this panic attack, Miller was diagnosed with acrophobia, a fear of heights. Following a series of incidents where his requests for accommodation were rejected, he was fired.

Given the bare outline of what took place, it would appear that the employer was within its rights to terminate Miller. He could not perform some "essential" job functions. In fact, a lower court dismissed Miller's claim of discrimination, granting summary judgment for the IDOT. However, the 7th Federal District Court took the time to examine not just Darrell Miller, but the crew of which he was part. Their thoughtful and detailed ruling, from which we quote at some length, leads to an interesting and perhaps counter-intuitive conclusion.

The Devil in the Details
The Court noted that not all of the tasks associated with the job involved heights:

As a highway maintainer assigned to a bridge crew, Miller was responsible for a variety of tasks, many of which could be performed from the ground. Those tasks included operating and repairing maintenance vehicles and equipment, including trucks, pavement marking equipment, tractors, mowers, snow plows, and jack hammers; maintaining large culverts, abutments, guardrails, and drainage installations; spreading salt, sand, gravel, and asphalt; directing traffic during maintenance operations; cutting grass, weeds, and brush; repairing signs and digging post holes; cleaning and maintaining the crew's headquarters; disposing of trash and highway debris; and record-keeping.

In addition, Miller was able to perform most, if not all, of the job:

From the outset of his employment, Miller had occasional difficulty working from heights, particularly when he worked in an unsecured environment. When he began work he had not been formally diagnosed with acrophobia, but Miller informed IDOT and the lead worker of his bridge team, Steve Maurizio, that he had a fear of some heights and that there were a few tasks that he would not be able to do. Specifically, he informed Maurizio that he would not be able to "walk a bridge beam." In spite of his fear, Miller was able to perform work in an elevated, hydraulically lifted "snooper bucket" at heights of up to 80 feet, and he was able to crawl on the arch of a bridge on a catwalk. He estimated that his fear would be triggered and he would have problems with less than three percent of his job description, but even then he was able to complete his assigned tasks on all but one occasion.

Finally, the court observed that there were a variety of "reasonable accommodations" afforded different members of the crew:

Until early 2006, IDOT informally accommodated Miller by allowing other members of his team to handle those tasks for him, just as other team members' conditions or limitations were accommodated. For example, Maurizio was unable to weld. Another co-worker refused to ride in the snooper bucket, was not required to climb the arches of an interstate bridge linking Illinois to Kentucky, was unable to spray bridges because of his allergies, was not required to mow the yard, and was not required to rake patching debris. Other crew members would swap assignments as needed to enable the crew to complete those tasks. In short, the evidence would allow a jury to find that the team worked effectively as a team, taking advantage of each member's abilities and accommodating each member's limitations.

Essential Functions, Reasonable Accommodations
Then the court examined the crux of the case: was Miller able to perform the essential functions of the job, with or without accommodation:

We are confident that some high work in exposed or extreme positions is an essential function of the bridge crew as a whole. IDOT would have us take that point a step further to find that any individual assigned to the bridge crew had to be able to perform each and every task of the entire bridge crew. That would require finding that every task required of the bridge crew as a whole was an essential task of each bridge crew member. On this record, we cannot make that finding as a matter of law. Plaintiff has come forward with substantial evidence showing that his bridge crew did not actually work that way. The bridge crew worked as a team. No one person was assigned permanently to any one task. Although individual members of the team did various tasks as needed, there was no requirement that the bridge crew members rotate from task to task in an organized, routine fashion, such that it was necessary for any one member of the bridge crew to be able to do every task of the bridge crew as a whole.

In a footnote, the court tackles the unlikely possibility that an entire crew might suffer from acrophobia:

We recognize that if most or all members of a bridge crew had acrophobia like Miller's, the crew could not perform all of its essential duties. If and when such an extreme case might arise, we are confident that the law would accommodate an employer's need to get its work done. In this case, however, the evidence showing that plaintiff had actually been accommodated as he requested shows that the employer is not entitled to summary judgment on this theory.

The 7th District Court's reasoning is at once both compelling and intriguing. Miller, as a member of the crew, was able to do enough of the job to allow the team to proceed unhindered and unimpeded. They accommodated Miller - and his co-workers - routinely in the course of determining which crew members were assigned to specific tasks. Reasonable accommodation for everyone was an ongoing part of the job. Thus, when confronted with a diagnosis that appears to preclude bridge work, the court concluded that accommodating Miller was not only reasonable, but that IDOT had been doing it all along.

The purpose of the ADA is to welcome and sustain people with disabilities in the workplace. Conventional thinking all too often concludes that people who appear to be disabled, or who actually are disabled, cannot do the job. Can a person with a fear of heights work on bridges? In these specific circumstances, yes, he can.

Last month we blogged the suicide of Dave Duerson, a former NFL star who killed himself at the age of 50. In order to preserve his brain for study, he took the unusual step of shooting himself in the chest. He suspected - and the subsequent autopsy confirmed - that he suffered from chronic traumatic encephalopathy, a degenerative and incurable disease that is linked to memory loss, depression and dementia. A definitive diagnosis is available only through an autopsy.

Among the many ironies surrounding this sad tale is the fact that Duerson sat on the six person NFL committee that reviewed claims for medical benefits submitted by retired players. Duerson was known for his harsh line on these claims, apparently voting to deny benefits in many cases (the votes of individual committee members were not recorded). He even testified before a Senate subcommittee in 2007, supporting the NFL's position that there was no definitive relationship between repeated concussions and subsequent dementia.

The days of denial appear to be over. Dr. Ira Casson, who represented the "prove it" mentality of the NFL, is no longer actively involved. The medical evidence is accumulating; while some refuse to connect the dots, it's increasingly clear that repeated brain trauma (concussion) is often directly related to a precipitous decline in brain function in the post-gridiron years.

Old Game, New Order
The NFL is trying to improve the safety of its players. The new rules limiting return to the playing field after a concussion are taking root. Helmet to helmet hits are being penalized with increasing financial severity. But even as the league tries to limit future exposures, the fate of retired players looms large. There will be increasing numbers of claims for disability, including workers comp where applicable, by players who face a substantially diminished burden of proof to connect dementia to playing field ("workplace") exposures.

It is painful to contemplate the agony of Dave Duerson's final days. Confronted with the incontrovertible evidence of his own demise, he must have realized how wrong he had been in taking the company line on dementia. He knew what his own autopsy would reveal: a brain damaged by chronic traumatic encephalopathy, caused by repeated trauma. His choosing to shoot himself in the chest was a farewell gesture, not only to his own life, but to the beliefs that had led him to take a hard line with his former colleagues. A loyal member of the "old guard," he ended his life with the unmistakable and moving embrace of the new order.

In a move stunning for its contrariness, Vermont is moving toward a single payer health care system. In the course of the debate, the inevitable issue of whether to include workers comp has come up. At this point, a committee will make recommendations on whether to "integrate or align" workers comp with the state's radical reconfiguration of the health care system. (Further details are available at WorkCompCentral - subscription required.)

The Vermont approach would completely separate indemnity from medical benefits. Employers would continue to pay for the indemnity portion, but are unlikely to have any input into treatment plans. The Insider has pointed out - ad nauseum, some might say - that the relatively miniscule comp system is quite different from the behemoth health delivery system. In the interests of saving the Vermont committee a little time, here are a few of the conundrums confronting anyone trying to merge the two systems:

: Comp is paid solely by employers. Injured workers pay nothing (no co-pays, not deductibles, ever).
: Consumers pay quite a bit for conventional health coverage: a portion of premiums along with co-pays and deductibles for treatment and for medications
: Comp has very narrowly defined eligibility requirements, while conventional health has virtually none
: The goal of comp is to provide medical treatment for injured workers and, if possible, return them to work; if return to work is not possible, comp pays lost wage benefits and injury-related medical bills virtually forever.
: The goal of the conventional health system is to take care of people, regardless of the employment implications
: Comp provides indemnity, temporary or permanent, for those unable to work. No such wage replacements exist in the conventional health system
: Perhaps most important, medical services under comp have an occupational focus, with the explicit goal of returning people to their jobs. In the conventional health system, any occupational focus would be subordinate to the goals of the consumer.

Should Vermont achieve its ambitious goal of universal coverage, the presumption is that everyone would have a primary care physician, who would serve as gatekeeper for all medical services. (Let's set aside, for a moment, where the Green Mountain state will be able to find these primary care doctors.) In a unified system, injured workers would go to their primary care physicians for work-related injuries. These primary care docs may or may not focus on returning their patients to work. Many people hate their jobs and might welcome a few weeks or months of indemnity-supported leave. The primary care physician might be quite sympathetic to their cause.

This brings us to the great divide between conventional health care and workers comp: conventional health care may or may not embrace the need for return to work. Indeed, if the work is hazardous - as much work is - the doctor may want to discourage his patient from returning to it. The doctor's goal is to "do no harm" - so why send someone back into harm's way? If the patient suffers from lower back problems and has a job involving material handling, what is the right thing for the doctor to do?

Who Pays?
In the current system, workers comp pays doctors for eligible medical services. Whether or not they like the comp fee schedules, doctors are acutely aware that comp is paying for the services of a particular individual. Often, treatment is provided by occupational specialists, who bring a unique "return-to-work" focus to the treatment plan. These occ docs are often in communication with employers seeking to return injured workers to productive employment. The occ docs specify the restrictions so that employers can design appropriate modified duty jobs. The employers have a sense of urgency, as they are losing the productivity of the individual who is out of work - and of course, they are paying all of the costs associated with the injury.

Under the proposed Vermont system, all bills will be paid the same way. Comp disappears from the doctor's view. Employers may have little input into the choice of doctors or specific treatment plans. The role of occupational doctors is unclear, to say the least. Given that primary care physicians generally lack an occupational focus, return to work may become secondary to the comfort and personal inclinations of the patient. As a result, there is a risk of substantial increases in indemnity costs.

When contemplating change on the scale of Vermont's single payer system, it is tempting to brush aside the implications for something as small as the workers comp system. That would be a big mistake. The system might be small, but the costs to the state's employers are already substantial and have the potential for going much higher. The comp system plays an unique and long-established role in protecting both workers and employers. As they take steps to transform healthcare in Vermont, lawmakers need to remember that workers comp itself is worthy of their protection.

We have been following the sad saga of Joseph Casias, a former Walmart employee in Battle Creek, Michigan. Casias, 29, suffers from a sinus cancer and an inoperable brain tumor. (He looks so much older than his years.) After 5 unusually successful years as a Walmart employee, he injured his knee on the job, after which he underwent a mandatory drug test. Casias has a prescription for medical marijuana (legal in Michigan). Inevitably, he failed the drug test. Walmart fired him.

He sued for wrongful termination in federal court. He lost.

Judge Robert Jonker found that while Casias's use of marijuana was legal, Walmart was within its rights to terminate him. Nothing in the Michigan statute legalizing pot regulates private employment. As we pointed out in a recent blog, the issue of legal drugs in the workplace is a gray zone of formidable dimensions. Employers will usually err on the side of caution, as the exposures for negligent retention appear to outweigh the pressure to accommodate disabled employees. Hence, Walmart wins.

What is lost in the standard personnel procedures that identified Casias as a (legal) drug user and terminated his employment is a simple fact that may or may not concern Walmart. Casias was a highly motivated and valued employee. His work was exemplary. Workers like Casias are not easy to find, especially when the pay is marginal. It's worth a little extra effort to hold on to them. By following their own rules to the letter, Walmart wins in court but loses on the selling floor.

Legally Disemployed
Even though states are showing some flexibility in their approaches to marijuana, legalization is no help to workers who have a prescription for the drug. These folks will routinely fail post-accident drug tests. As a result, any injury to a worker using medical marijuana will result in a termination. Zero tolerance, zero employment.

We are not suggesting that states attempt to preempt the rights of employers in statutes that legalize marijuana. With so much at stake, with so many complex risk factors at play, employers must have the final say in who works and who is let go. We can only hope that employers use their powers - dare I say it? - compassionately.

Did Walmart have an alternative? With his serious illness, Joseph Casias appears to meet the ADA's definition of disabled. Walmart could have approached the dilemma through the ADA accommodation process. After Casias failed the drug test, they could have determined: first, that the drug was prescribed; second, that the drug use was not a factor in his injury; and third, that there have been no indications that his drug use has impacted his performance on the job. Having passed this three-pronged test, Walmart could have decided to "accommodate" Casias's disability by waiving the drug test results and retaining him as an employee.

Alas, in the world of huge corporations, the fate of one man just isn't worth that much effort. Why bother being flexible when it's so much easier - and perfectly legal - to show employees the door?

You know the Walmart motto: Save money. Live better. Nothing in there about doing the right thing for the likes of Joe Casias.

Dr. Trang Nguyen has some serious doubts about the effectiveness of spinal fusions, especially in workers comp. In his study of 1,450 cases of chronic lower back pain in the Ohio comp system, Dr. Nguyen focused on an outcome near and dear to the hearts of all comp practitioners: the number of injured workers returning to the workplace after surgery. The results of his compelling (if less than purely scientific) study, published in Spine Magazine, are cause for alarm.

Dr. Nugyen looked at cases involving chronic back pain that were at least two years old, divided equally among workers who had spinal fusions and those who did not. Among those with fusions, only 25% returned to work, compared to 66% among those who received conservative (non-invasive) treatment such as physical therapy.

That is a huge differential. In addition, 27% of the fused workers had to undergo a second surgery, and as any claims adjuster can tell you, doubling up on spinal surgery places workers on a downward slope toward failed back syndrome: permanent total disability. Among the fused workers, 11% were permanently disabled, compared to only 2% among those who avoided surgery. Finally, most of the workers who underwent fusions were still on strong opiates two years after the treatment. In other words, they still suffered from the pain that led them to treatment in the first place.

While this is not a definitive study, the findings surely offer a cautionary tale not only for workers who suffer from back pain, but for their families and employers as well. It is no great mystery why fusions have become the treatment of preference for so many medical specialists. One doctor used the analogy of giving out hammers: people with hammers - surgeons who can do fusions - look for nails (people who might need the treatment).

Something for the Pain
We are an impatient culture. When in pain, we want immediate relief. Given time, appropriate medications and the skilled hands of physical therapists and chiropractors, the pain usually goes away, or at least reaches more tolerable levels. To be sure, there are severe injuries when fusion is the necessary option; however, pain alone is not an indicator of such severity. The problem with fusion is that it creates rigidity in a part of the body that is designed for flexibility. A rigid spine is an open invitation to lifelong pain and despair.

From the comp perspective, we should remain aggressively sceptical of most proposed spinal fusions. Claims adjusters should routinely require a disciplined utilization review, an objective second opinion and an independent medical exam. Place a strong burden of proof on any doctor proposing fusion for an injured worker. Fusion should be the treatment of last resort.

These are not merely delaying tactics. Rather, they are essential strategies for buying precious time, time for the natural healing process to take place and time to avoid what often becomes a path to oblivion. If, as this study shows, the odds for return to work are more than double for workers receiving conservative treatment, then it is in everyone's best interest to avoid fusion surgery. Refuse to Fuse. That's a motto worth posting over the desk of every comp adjuster in America.

We have been tracking the hazardous effort to integrate medical marijuana into the workplace. It's not an easy fit. The burden falls on legislators, who write the laws, and on judges, who interpret these laws. The testing ground is often California, where fantasy and reality are so intertwined, it's getting more and more difficult to separate them.

We read in WorkCompCentral (subscription required) that a state senator named Mark Leno (any relation to Jay?) has introduced a bill to clarify the rights of medical marijuana users in the workplace. Senate Bill 129 gives workers a right to "damages, injunctive relief, reasonable attorney's fees and costs..." if employment decisions are based upon their medical use of marijuana. Then Governor Schwarzenegger vetoed the bill in 2008. Senator Leno is guessing he might have better luck with Governor Brown (AKA Governor Moonbeam).

Joe Elford, chief counsel for Americans for Safe Access, believes that legislation in necessary in order to assure equal rights for medical marijuana users who are not technically disabled: employers have an obligation to accommodate the disabled, but they may not view others the same way. "Under SB 129 you don't have to be disabled, you simply have to be a medical marijuana patient."

He goes on to say that Proposition 215 was not intended just for the unemployed: its protections must include workers in the workplace.

Ah, there's the rub. How do you draw the line between drug free workplaces and medically approved use of marijuana (and, for that matter, opiates and other pain killers)?

Locked Out, Tagged Out, Zoned Out
SB 129 tries to have it both ways. On the one hand, it states: "Nothing in this article shall require any accommodation of any medical use of marijuana on the property or premises of any place of employment or during the hours of employment." Any employee who is under the influence of marijuana at work can be terminated.

On the other hand, the bill tries to protect the rights of at least some employees at work who might in fact be somewhat impaired by their use of pot. While the bill does not provide protection for workers in "safety sensitive" positions, it does protect everyone else. It defines "safety sensitive" as "a job that has greater than normal level of trust, responsibility for or impact on the health and safety of others or where errors in judgment, inattentiveness or diminished coordination could put others in danger."

Hmm, what have these guys been smoking? How many jobs can you think of where "errors in judgment, inattentiveness or diminished coordination" would not be a serious if not immediate problem? Would this legislation actually protect employers from "negligent retention" claims where their (somewhat) stoned workers make marijuana-induced mistakes? "Sure, he messed up the calculation of your benefits. But you'll have to cut him some slack. He was on (medically approved) medication."

I have the greatest sympathy for legislators struggling to balance the rights of workers in need of specific medications with the rights of everyone else. But in this case, they appear to be straddling the Grand Canyon. Is there any job where inattentiveness and diminished coordination would be acceptable? Consulting? Actuaries? (just kidding). I would suggest that the legislators create a specific list of any such jobs. That would make for interesting hearings, at the very least, and the applications for these positions would increase exponentially.

You have a problem with how I'm doing my job? Dude, I'm locked out. Try me a little later.

John T. Dibble is an arbitrator in Illinois. He was very active in the cases for carpal tunnel syndrome filed by 230 guards at the Menard Correctional Center. The guards alleged that their injuries were due primarily to the constant turning of keys in antiquated and rather sticky locks. No diddler, Mr. Dibble approved over half of the repetitive trauma cases filed by the guards, who collected nearly $10 million in a three year period. The repetitive filings for repetitive motion have caught the eye of Illinois Governor Pat Quinn, who has appointed a lawyer to investigate. NOTE to lawyer: WD 40 can do wonders for sticky locks.

It turns out that Mr. Dibble's sympathies run deep. In fact, he has some shared experience with the prison guards who come before him. On November 12, 2009, Mr. Dibble fell on the steps at a hearing office in Herrin. He filed a claim for "post-traumatic carpal tunnel" [whatever that may be], claiming injuries to "both knees, both hands, both elbows and (his) left little finger." That would be the finger he holds up in the air when partaking of his post-hearing tea, I suppose.

Mr. Dibble settled his case for $48,790. The payment included a 17.5% loss of function for each hand and a 7.5% loss of function in his little finger. The check was cut based upon a form signed by three parties: the office of the attorney general, a Central Management Services official and Dibble himself. Mysteriously, the award was not listed in the comp commisioner's online data base. The actual case file has disappeared - and I'm guessing that the medical records have disappeared as well. It would be fascinating to read the doctor's report that resulted in Mr. Dibble's rather generous loss of function awards.

The job of arbitrator in Illinois is hazardous, indeed. Seven of the state's 32 arbitrators either filed for or received a workers comp payment, including three for repetitive trauma. You know what happens: you listen, day in and day out, to the prison guards's tales of woe, and eventually your fingers start to tingle and your wrist aches a bit. It's the price you pay - and perhaps the reward you reap - for lending a sympathetic ear.

Kudos to reporters George Pawlaczyk and Beth Hundsdorfer of the Belleview News Democrat for their coverage of this story.

NCCI has published an interesting study on the relationship between obesity and the cost of workers compensation claims. To no one's surprise, the study concludes that medical costs for the same injury are 3 times higher among obese claimants in the first year, rising to five times higher at 60 months. In addition, claims for the non-obese are much more likely to be medical only; obese workers, when injured, tend to lose time and collect indemnity. For the same injury and all else being equal, the range of medical treatment, the costs and the duration of the claim are consistently greater for obese employees.

The study cites CDC data on the incidence of obesity in the general population. In 1990 10 states had incidence rates of obesity under 10% and none were above 15%. By 2009, 33 states had incidence rates equal to or above 25% and nine (mostly deep south) states had rates at 30% or higher.

The study is based upon 27,000 claims, of which 7,000 carried a specific diagnosis for obesity as a co-morbidity. Data wonks will duly note that there must have been a significant number of obese claimants outside the "obese" group, due to the fact that treating doctors would not consistently list obesity under the diagnosis.

Underwriting the Overweight
I feel a great deal of sympathy these days for the challenges facing comp underwriters and actuaries. Their customary approach of using the rear view mirror as the major indicator of future risk is increasingly ineffective. Now you can add the issue of obesity to mostly hidden factors that can seriously skew loss ratios.

The CDC data clearly indicates an alarming upward trend in obesity. Many of the obese are in the workforce. Indeed, companies might hire a person within the normal weight range and then see this individual gain substantial weight during the course of employment. Many of these burgeoning employees are performing physically demanding tasks. When they suffer from back strains, for example, the medical costs associated with treatment are more than double those of the non-obese. (On the other hand, the cost for the medical treatment of carpal tunnel injuries is virtually the same for the obese and non-obese.)

Fire the Big People?
With this data in hand, it may be tempting for employers to avoid hiring the obese and find ways of terminating current employees who tip the scale in the wrong direction. This would eliminate some very productive people. In addition, it raises the specter of discrimination. The Americans with Disabilities Act protects those with disabilities that impact "one or more major life activities." That might - but does necessarily - include the morbidly obese.

The NCCI study raises the issue of higher costs for injuries involving the obese. There is a more proactive way to look at the issue. Employers could focus on incentives to promote wellness. Employees who stay fit could receive enhanced benefits. We have drug-free and smoke-free workplaces. Perhaps it's time for snack-free workplaces - or healthy snacks. Out with soda machines and in with the vitamin water.

It's interesting to note that when opening comp claims, insurers generally do not collect data on height and weight . They really should. Where the data indicates that weight will be a significant factor in recovery, steps could be taken to encourage weight loss as part of the treatment plan. (For an example of court-ordered weight reduction, see our blog on the obese pizza maker here.)

Ultimately, the effort of employers to control losses will come up against the freedom of people to act as they choose. It's one thing to provide incentives for losing weight, it's quite another - especially in the deep south - to take away the Coca Colas. For many strong advocates of the American way, them's fighting words, indeed.

For nearly 15 years, beginning in 1990, Bradley Clark was a baggage handler for United Airlines. He started at age 33, and by the time he was unable to perform the work, he was nearly 50. Ten years in, he began experiencing pain in his thumb joints. In 2004 he banged his hand against a cart and was diagnosed with bilateral carpal tunnel, for which he had surgery. Unfortunately, the surgery did not stop the pain. (NOTE to claims adjusters: This is yet another example of unnecessary surgery, based upon the wrong diagnosis.)

With pain continuing after the surgery, Clark sought treatment from a hand specialist. He treated with Dr. Charles T. Woolley, who performed surgical fusions on both thumbs. Coverage of this surgery was denied, as a succession of five physicians concluded that Clark's problem was osteoarthritis, which is hereditary and unrelated to work. The opinions included an IME performed by two doctors, who concurred with the other doctors that the condition was not work related.

Slam dunk for the employer, right?

Making the Case
In his choice of a hand surgeon, Bradley Clark stumbled upon a stubborn and determined physician, one more than willing to disagree with his colleagues. Dr. Woolley diagnosed bilateral trapeziometacarpal joint arthritis and insisted that it was work related. Among his impressively detailed findings:
- Clark was too young to develop osteoarthritis, as he was only 43 years old when the pain first developed.
- He found no genetic pre-disposition to developing osteoarthritis, as none of the other joints in Clark's hands, such as his fingers, revealed osteoarthritis. There was no osteoarthritis in any other part of his body.
- Osteoarthritis in the thumbs is typically seen in women, in particular post-menopausal women. Clark rather obviously did not fall within this category.
- Clark performed significant lifting for 16 years, which required repetitive pinching of his thumbs. This kind of grabbing/pinching activity places significant loading on the thumbs and ultimately leads to a wear and tear of the thumb joints. Wear and tear over time led to instability of his joints causing the osteoarthritis. His TMC or thumb joints became unstable over time because of the repetitive grabbing/pinching use. Over time with continued use, his cartilage in his thumbs wore off due to the repetitive friction from the pinching/grabbing.
- Contusions/strains, such as the work injury he sustained in November 2004, also contributed to the osteoarthritis, because they cause damage to the cartilage which leads to instability of the ligament. Jamming one's thumb also contributes to the development of osteoarthritis because it damages the ligament causing instability and then osteoarthritis.
- The thumb basal joint (where the thumb meets the wrist) is exposed to very high stresses with grabbing activities and the forces felt at the tip of the thumb are multiplied twelve times in their effect on the thumb base, thus predisposing this joint to wear and tear. Clark's work activities as a ramp serviceman are the exact kind of activities to cause wear and tear to the thumb joint because of the grabbing involved; this wear and tear led directly to the osteoarthritis in his thumbs.

Deep Knowledge
While there were five doctors lined up against him, Woolley was the only hand specialist among them. The duelling docs bolstered their differing cases through articles in medical journals. The Oregon Court of Appeals was faced with a choice: side with the majority or side with the expert.

Ultimately, Dr. Woolley's opinion prevailed. His compelling testimony, combined with his intimate knowledge of hands, won the day. So let's have a little hand for Dr. Woolley, who could have taken the easy way out and deferred to his colleagues, but instead fought the good fight for a hard-working man who could no longer do his job.

(For the record, we duly note that Clark retired from his job long before the onerous baggage fees went into effect, at which time many of us lost a bit of sympathy for these harried and ultimately blameless workers.)

Up until recently, Peter Orszag was the director of the White House Office of Management and Budget. As he leaves this job for a presumably more lucrative position with Citibank (no comment), he offers a final op ed piece in the New York Times on the subject of disability: specifically, the sharp rise in applications for SSDI benefits that has accompanied the collapse of the economy. Discouraged job seekers, many with obsolete or atrophied skills, try to qualify for a program that will take them out of the job market forever.

Currently, about 750,000 people apply for disability benefits every quarter, a rate 50 percent higher than that of four years ago. Orszag fears the consequences of burgeoning disability rolls: it's not only expensive, it's counter-productive. Once on disability, people rarely return to the workforce, even when jobs become plentiful. They "qualify" for benefits by proving themselves incapable of productive employment.

The fundamental question for SSDI is similar to the one faced by workers comp practitioners: once an individual qualifies for permanent benefits - usually a long, drawn out process - is there any way to encourage a return to work? Or is eligibility for disability, by definition, a self-fulfilling acknowledgement that employment is no longer a possibility?

The Digital Divide
Orszag speculates that the problem may lie in the rigid determination of disability: once disabled, always disabled. There is no middle ground where an individual's limitations might be re-assessed periodically, where incentives for taking a job might encourage less dependence upon disability payments.

Orszag believes that we need some kind of interim program, less absolute in its determination of disability and less of a drag on public resources. He recommends privately funded, interim disability protection for non-work related disabilty (which would run parallel to the benefits already available through workers comp). The new program would last up to two years, during which both the employer and the worker would have strong incentives to return the disabled worker to productive employment. For workers who remain disabled at the end of the two years, application for SSDI would probably be in order. Under this model, the digital switch is made analog, with options and incentives all along the way. The cost? He estimates a relatively modest $250 per worker per year, assuming, of course, that all workers are included in the program.

Conundrum
Disability is indeed a conundrum: it requires people to prove that they are incapable of productive employment. The stage for this determination is strewn with detritus: the perverse incentive to prove one's lack of ability; the ever-changing economy, which casually discards workers with obsolete skills without a hint of compassion; the notion that disability is a permanent state, which, once entered, precludes the possibility of growth and change.

All too often, disability intersects with the law of unintended consequences. By seeking to protect those who cannot protect themselves, we place people in the awkward position of proving their inability to function in the working world. There is very little incentive to do otherwise. We set disability up as a locked room, with no exit. We need to think of disabiility as a bridge, arcing out of the darkness toward new possibilities. While most who are disabled may never be able to cross this bridge, those who can must be given every opportunity to make the journey.

The GAO has issued an interesting report on the implications for increasing the retirement age. As the American workforce ages (the Insider is all over that one), and as the pressures on retirement funding increase, the various payers are all looking for ways to shift the costs to someone else. Who are the payers? Social Security, SSDI, the states, private insurers and self-insured employers. As the feds tinker with the retirement age, they are very much in the solve one problem, create another mode.

At first glance, it seems pretty simple: to reduce pressure on the social security retirement system, make people work longer. But it's one thing for a white-collar bureaucrat (or consultant!) to work into his or her late 60s, it's something else altogether for modestly educated workers with physically demanding jobs. As the feds slam the door on social security, the door on SSDI flies open. The GAO notes that about 2/3 of those who work report having a job that is physically demanding. In addition, disability rates increase with age, with the result that workers who postpone retirement face the increasing likelihood of becoming disabled. Thus the ever-aging workforce, unable to perform the physically demanding work, may be forced to apply for disability retirement - which, after all, pays better than ordinary social security.

The State of the States
This federal-level debate is taking place parallel to what is happening at the state level, where workers comp systems designed to accommodate retirement at 65 or sooner are confronted with older and older workers. How should workers comp estimate the working life of an older worker? To the degree that state systems curtail benefits of these aging workers, the pressure will build on the federal social security and SSDI systems.

One thing is certain: every payer sits in an isolated silo, doing their best to make someone else cut the checks. Every successful shift in cost creates pressure somewhere else. And at the center of this developing storm sit the aging workers themselves: not necessarily wanting to work, not necessarily wanting to qualify for disability, but suffering the slings and arrows of time, with nothing much saved for retirement and an increasingly ominous future close at hand.

When a laborer is unable to perform physical work, the options are limited, not only for the worker, but for the workers comp system as well. Meet Pennsylvania's Sam Muzzicato. He came to America from his native Italy in 1969. He had only four years of schooling in Italy. He immediately went to work in America and continued working until January 2007, when he injured his back while employed as a laborer for Strow's Plumbing and Heating Company.

Strow's insurer hired a vocational expert to determine Sam's earning power. The expert came up with five possible jobs in the immediate labor market:
- Cashier at a Jiffy Lube
- Teller at a local casino
- Dispatcher for a trucking company
- A customer sales rep
- Front desk clerk in a hotel

Do you see a common denominator in all of these jobs? Some degree of computer literacy is needed. The Administrative Law Judge dismissed the first four jobs as not within Sam's capabilities, but for unknown reasons determined that he could perform the desk clerk position. With this theoretical job available, the ALJ approved a reduction in Sam's weekly indemnity benefit.

Here is the theory in PA law behind the wage reduction:

"[A]n employer may seek modification of a claimant's benefits by either offering the claimant a specific job that it has available that he is capable of performing or establishing earning power through expert opinion evidence."

Sam appealed to the Commonwealth Court, where the judges determined that the inclusion of the single job by the ALJ was capricious, and that Sam was incapable of performing any of the jobs recommended by the voc expert. Sam, in other words, has few, if any, transferable skills. When his body broke down, he had nothing to bring to the marketplace. As a result, his full indemnity will continue.

Broken Bodies
Sam's story is by no means unique. Many of the immigrants who came to this country to find work had limited education in their native lands. Once here, they were too busy or too indifferent to pursue educational goals. They gained a foothold through hard work, perhaps shifting educational goals onto their children. Now as they enter the waning years of employment, their bodies break down. Where once they recovered quickly from workplace injuries, now the pain lingers, eroding their capacity to work. And once out of work, there is literally no place to go.

What lies ahead for the Sam Muzzicatos of the world? While it sounds odd to say it, Sam is lucky that he was injured at work. His back problems will be treated through the comp system for the foreseeable future. He will collect roughly 2/3 of his average weekly wage, tax free, at least until his eligibility for temporary total benefits runs out. After that, he will probably qualify for some form of permanent partial award. Sam, in other words, will transition rather smoothly into retirement through the generosity of the workers comp system.

Strow's Plumbing and Heating will foot the bill through the experience rating process for three years. After that, the insurer will be on the hook for whatever is owed to Sam. Is this fair? Does it make sense? Is Sam being rewarded for his failure over the years to improve his skills through education? Ironically, if Sam did have transferable skills, his benefits would have been reduced, despite the fact that he might not be able to find work in this troubled economy. Would that have been fair? Indeed, in the world of workers comp, as judges parse the letter of the law and and employers struggle to pay the bills and injured workers battle to survive, is fairness even an issue under consideration?

Obesity as a health problem is not going away, nor is the issue of whether obese people are considered disabled under the Americans with Disabilities Act (ADA). The latest iteration of this saga involves the late Lisa Harrison, a morbidly obese employee of Resources for Human Development (RHD) in New Orleans. Harrison, an intervention prevention/specialist, worked with the children of mothers undergoing treatment for addiction. By all accounts, she performed her job well, but RHD viewed her as limited in a number of major life activities, including walking, so they fired her. Harrison died before the EEOC filed suit, but the lawsuit lives on.

Keith Hill, the field director of the EEOC's New Orleans office, stated, "This is a classic case of disability bias, based on myths and stereotypes. The evidence shows that Ms. Harrison was a good and dedicated employee who did not deserve to be fired. All covered employers, whether for-profit or non-profit, must abide by the ADA's provisions."

It's important to note that the EEOC is not basing the lawsuit on obesity itself, but rather on the idea that RHD perceived Harrison to be disabled. That's why they fired her. The larger issue - so to speak - is whether morbid obesity in itself is a disability. This particular case will not attempt to resolve that condundrum. Thus far, the courts have resisted the idea that any and all obesity is a disability. They look for physiological causes for the obesity, including thyroid disorders and genetics. If there is no specific medical cause for the weight problem, obese people are generally not considered to be disabled.

It all comes down - as it usually does - to the ability to perform the essential functions of the job. Harrison did not seek any accommodation based upon a disability. She simply did her job and apparently did it well. It will be interesting to see whether the RHD defense raises the issue of risk: whether Harrison's morbid obesity placed her or her young charges at immediate risk of harm - not hypothetical, but imminent - a difficult standard to prove.

Related posts:
If you search the Insider for "obesity" you will find three pages of postings. Here are a couple of highlights:
The story of Adam Childers, the obese pizza maker whose stomach stapling operation was covered by workers comp.
The federal case involving Stephen Grindle, whose job loss due to obesity was not covered by the ADA.

There is no doubt that Ronald Babin, an electrician in Louisiana, was injured at work. He was in the bucket of a truck, working on a transformer, when the bucket mechanism malfunctioned, crushing the bucket into the transformer for several minutes. Babin huddled in the bottom of the bucket until co-workers were able to gain control of the mechanism. He hurt his back.

This sounds like a straight-forward workers comp case, but Babin ran into a complication. This was not the first time he had hurt his back.He had four prior back injuries involving two herniated discs. At one point he was out of work for nearly two years with back problems.

When he applied for the job with Ernest Breux Electric, he filled out several pre-employment questionnaires. One asked if he had any "current or prior back injuries" (this question could well be illegal, but that's an issue for another day). He answered "no." On another form, he admitted to having a "back strain" - but again, did not mention serious disc problems.

Thus, Babin misrepresented his medical history. His employer relied upon that misrepresentation in hiring him. And his subsequent injury was directly related to the condition he failed to disclose. Bottom line for Babin: his claim was denied.

Rock and a Hard Place
One can sympathize with Babin. He probably felt that full disclosure would have resulted in his not getting the job. It is possible, of course, that Breux Electric would have taken the information into consideration and hired him anyway. With clear documentation on the prior injuries, Breux would likely have had access to Louisiana's second injury fund:
- The applicant had a permanent partial disability
- The employer would have hired him with knowledge of that disability
- The new injury merged with the old injury to produce a claim for the second injury fund

By hiding the truth, Babin essentially was working without a safety net. This might not have mattered if the injury had not aggravated the pre-existing condition. But as soon as his aching back became involved, Babin lost access to the protections of the comp system.

Abolish Second Injury Funds?
Speaking of second injury funds, our colleague Peter Rousmaniere has recommended that they all be abolished. He makes a compelling case. The money in second injury funds is derived from fees paid by all insureds. However, the primary beneficiaries of these funds has not been the employers, who took the risk in hiring disabled workers, but the insurance companies, who generally pocket the payments from the funds. They are not obligated to recalculate experience modifications and return premium dollars to the insureds. Some are diligent about doing this, others are not.

Second Injury funds may not be the most effective means of encouraging employers to hire partially disabled workers. And it's clear from this particular story that these workers should not try to lie their way into a job. In the best of all possible worlds, disabled workers would not be penalized for their candor in disclosing disabilities and employers would not be penalized for the additional risk of hiring them. But in case you have not noticed, this is hardly the best of all possible worlds.

Special thanks to Work Comp Central (subscription required) for their heads up on this and many other interesting cases.

Every time I see a marginal car with a pizza delivery sign slapped onto the roof, I think about the driver. How old? How experienced? How desperate to make a few bucks in a tough economy? And from the employer's viewpoint: how competent is the driver? Just how far must an employer go before they entrust a driver with the plastic logo and the insulated bag for delivering pizza to those of us who want dinner delivered in a box?

These thoughts congeal like day-old pizza in the sad case of Nicole Fisk, an 18 year old driver who worked (briefly) for Pizza Hut. Nicole only had her license for 3 months when hired by Pizza Hut in Clairemont CA. She was delivering pizza in November 2008 when she blacked out and drifted across the solid line into oncoming traffic. She slammed into a car operated by Shari Novak, 62, who suffered permanent brain damage and can no longer take care of herself. Shari's mother, Olena, suffered a broken neck.

Who Pays?
The Novaks sued Pizza Hut, arguing that the company was responsible for the collision because they hired Fisk, a relatively inexperienced driver, who had a history of suffering blackout spells. Ah, there's the rub. What did the employer know about Nicole Fisk? Only what she told them. She had a clean record, she carried the necessary insurance and her references were fine. She was not diagnosed with epilepsy until after the crash. Pizza Hut called it an "unforeseeable medical emergency" - which can be used as a defense to a negligence lawsuit.

Jurors rejected the defense, awarding Shari Novak $8.6 million and her mother $2.2 million. As one juror put it, "Fisk should have known she could have a blackout episode because of her medical history."

Here's where it gets interesting and where the issue of employer accountability comes to the fore. A consultant attorney points out that Nicole lied continuously about her health problems. When she first experienced blackouts, she was put on medication for acid reflux (a seemingly bizarre diagnosis, but perhaps based upon the limited information she provided her doctors). She apparently under-reported subsequent problems to these doctors. When she applied for a driver's license, she failed to disclose her medical condition to the Registry. And when she applied for a job at Pizza Hut, she once again lied about her condition and its potential impact on her ability to perform the job safely.

It's not difficult to feel some sympathy for Nicole. She is only 18. Her medical condition frightens her - she probably prefers not to think about it. Like any 18 year old, she wants to drive like her friends and earn a few bucks. In her own mind, she was not endangering herself or anyone else.

Impossible Standard?
While it's important to note that the jury did not find Pizza Hut guilty of negligent hiring, it did conclude that the company is responsible for damages because Fisk was their employee at the time of the accident. John Gomez, the attorney for the Novaks, said that the verdict should send a signal to other companies "to be a little more careful when hiring professional drivers." This is a bit disingenuous. Surely, the attorney is not suggesting that employers (illegally) research medical records on every potential hire. In this case, Pizza Hut followed its own reasonable procedures. Other than hiring a relatively inexperienced driver, they did nothing wrong.

Nicole Fisk was initially named in the personal-injury lawsuit but was later dropped from the case. Not because she was innocent - she is responsible for the tragic events on that November day - but because she had no assets of the magnitude sought - and secured - by the Novak attorneys.

There are few lessons to be learned here. Employers are routinely held accountable for many things which they do not control. It's not so much a matter of accountability as the crass ability to pay. In a case of this scale, with damages this severe, someone must pay. That someone, obviously, is the corporate entity that was unfortunate enough to hire Nicole Fisk.

Most of us associate a determination of disability with the inability to perform some or all aspects of a job. But most us do not work in Bell, California.

When former Bell police chief Randy Adams agreed to leave his job as chief in Glendale and run the department in Bell, he entered into an unusual agreement with city administrator Robert Rizzo. The agreement stipulated that Adams was disabled, suffering from the lingering effects of back, knee and neck injuries sustained in his prior public safety jobs. His attorney, Mark Pachowicz, said the agreement was designed to ensure that his client would not have to fight Bell for a medical pension.

Lest you think that Bell simply had an aggressive "hire the handicapped" program, it appears that Adams was able to perform all the duties of his job, with no accommodation required. In other words, this "disabled" hire was indistinguishable from able-bodied applicants for the job. There was a single stipulation of "no heavy lifting" - for a job which required no heavy lifting.

An Offer He Could Not Refuse
Rizzo considered Adams so capable, he hired him into two positions: police chief and special police counsel. Bell was so anxious to secure Adams's services, they offered him $457,000 a year, double his prior salary. The hiring agreement qualified Adams for a tax-free disability benefit of $205,000 per year. Oh, did I mention that the hiring agreement also provided lifetime health insurance for Adams and his dependents, with no vesting period? Sure, that sounds like a pretty generous package, but Rizzo himself was pulling down $787,000 for taking on the burdens of managing the relatively small (pop. 40,000) working class town.

During his prior employment, Adams settled a workers comp claim for $45,000, following back surgery. He returned to work after a two week absence - which makes the amount of settlement appear rather generous. The comp settlement, however, is chump change compared to the irrestible benefits of working for Bell.

Fortunately for the beleagured Bell (and California) tax payers, this entire corrupt edifice came crashing down with the arrest of Rizzo and his numerous co-conspirators. (Adams has not been charged.) The status of Adams's questionable hiring agreement with the city remains unresolved. As spokesperson for the California Public Employee's Retirement System Ed Fong put it: "You're only supposed to receive a disability retirement if you are disabled and unable to perform the normal duties of your job. If that is not the case, it would be fraud."

In Bell they called it "standard operating procedure." It was lucrative while it lasted. But the bell has tolled, bringing to an abrupt end a corruption scheme of All-American proportions.

Matt Mitchell was an Illinois state trooper. On November 23, 2007, he was bombing along Interstate 64 at 126 miles per hour, on his way to an accident scene. He was chatting with his girlfriend and sending text messages. The road was somewhat clogged with holiday travelers. His speeding was not necessary, as help had already arrived at the accident scene. The distracted trooper crossed over the median and hit a car head on. Two sisters, Kelli and Jessica Uhl, were killed instantly. Two other occupants of the car were injured. Trooper Mitchell suffered severe leg injuries.

Speeding for no reason. Texting and talking unrelated to his job. Reckless. Negligent. And, it appears, compensable.

Mitchell pleaded guilty to reckless homicide and reckless driving and was sentenced to 30 months probation. He resigned his position with the state police. He has filed a claim for workers comp benefits, which is likely to be awarded because Mitchell was in the course and scope of employment. In the stipulation during a civil suit filed by the parents of the Uhl sisters, the Illinois attorney general agreed that, despite the criminal negligence, Mitchell was acting in his capacity as a state trooper when the accident occurred. Yes, the speeding was gratuitous, the texting irresponsible, the girl friend chats unrelated to work. But Mitchell was heading to the scene of an accident. He was a jerk and a menace, but he was working.

On the Hook
Illinois taxpayers face an interesting double jeopardy. They are on the hook for the deaths of the Uhl sisters. And they will soon be on the hook for Mitchell's loss of function payments and possibly for permanent total benefits.

It's worth noting that just three days after pleading guilty to the criminal charges, Mitchell testified in a claims hearing that he was not responsible for the crash.

If Mitchell had not been heading for an accident scene, if he was speeding simply because he wore a uniform that allowed him to get away with it, perhaps his claim would be denied under the concept of "wilful intent." We are reminded once again of comp's cornerstone principle of "no fault." There's plenty of fault in this sorry saga, but it does not - alas, it cannot - matter one bit.

Today we examine one of the great conundrums in workers comp claims: the old injury that may or may not be defined as a new injury.

In 2006 David Poulton worked for Martec Industries in Rochester, New York, as a laborer. Poulton had a bad back, having already filed workers comp claims in 1998 and 2000. When he visited his treating physician in June 2006, he had the same old complaint: his back hurt, as it had virtually every day since his first injury in 1998. He told his doctor that he re-injured his back at work the prior day while lifting materials. At this appointment, a discouraged Poulton told his doctor he wanted to quit working.

In consideration of Poulton's long-established problem, apparently compounded by the prior day's incident, the doctor disabled him from work. He cited "old injuries and his continued decline." He characterized the situation as involving "episodic increases in pain" that had troubled Poulton for several years. The doctor, in fact, had been encouraging Poulton to stop working prior to this particular visit.

An independent medical exam determined that Poulton suffered from degenerative disc disease and that his disability was caused primarily by preexisting problems.

So is this a new injury, as reported by Poulton, or simply the recurrence of an old one?

Who Pays?
An administrative law judge found in Poulton's favor, determining that the lifting incident at Martec aggravated the pre-existing condition. However, this ruling was reversed by the appelate division of the NY supreme court, which found no evidence of a new injury and remanded the case for further consideration.

Poulton may yet succeed in re-establishing his workers comp claim, but it will draw upon the resources of the carrier for his prior employer, not the carrier for Martec. As is usually the case in workers comp, the narrative is driven by the evidence. In this case, the history of pain and suffering is so unrelenting and consistent, the "new injury" theory goes up in smoke. With his working days apparently at an end, Poulton probably does not care who pays for his troubles. He has suffered for a long time.The remaining question, of course, is who pays and how much.

The Insider scans the world of risk in a risky world. We try to zero in on hazards that might be overlooked in the rush of daily commerce. In that spirit we bring you the distasteful but necessary tale from the New York Times involving bus drivers in New York City, a number of whom have suffered prolonged disability due to the unsanitary habits of riders.

Unhappy riders may express their displeasure in any number of ways, including the unfortunate choice of spitting on the bus driver. I am sure we all sympathize with these uniformed public servants who are simply doing their jobs. You cannot please everyone all the time, especially in the Big Apple.

It's what happens after these incidents that is really puzzling. One third of all the assaults that prompted a bus operator to take paid leave in 2009 involved spitting, 51 in all. The MTA defines these "spat upon" incidents as assaults. The 51 drivers who went on paid leave after a spitting incident took, on average, 64 days off work -- the equivalent of three months with pay. One driver spent 191 days on paid leave.

Before we jump to conclusions like irate citizens running after a bus, let's listen to John Samuelson, president of the transit union:

"Being spat upon -- having a passenger spit in your face, spit in your mouth, spit in your eye -- is a physically and psychologically traumatic experience. If transit workers are assaulted, they are going to take off whatever amount of time they are going to take off to recuperate." [Emphasis added.]

Mr. Samuelson has given us one of the most compelling definitions of disability I have ever encountered: workers are going to "take off whatever amount of time they are going to take off to recuperate." It's not a matter of medically (or psychologically) necessary time away from work, but the amount of time the worker deems necessary. Who needs a doctor when the drivers are empowered to determine the extent of their own disabilities?

Tough Times, Not-So-Tough Drivers
The MTA is facing a budget shortfall of $400 million. It's tempting to conclude that tightening up a bit on eligibility for "Post Traumatic Spitting Syndrome" (PTSS - you first read about it here!) might help reduce that deficit. Heck, it might even make the riding public a bit more sympathetic to bus operators.

Nancy Shevell, the chairwoman of the transit authority's bus committee, questions whether three months' off is a bit excessive.

"You have to wonder if you can go home and shower off, take a nap, take off the rest of the day and maybe the next day," she said. "When it gets strung out for months, you start to wonder."

As we peruse the annals disability - mostly real and painful, occasionally trumped up - we do indeed begin to wonder who is in control in New York, just who is driving - in this case, not driving - the bus.

We like to keep our eye on advances in rehabilitative and assistive tehnologies, so we were delighted to find one of our favorite inventors and entrepreneurs Dean Kamen showcasing another of his awe-inspiring inventions in a TED talk. Kamen is perhaps most known for the invention of the Segway. We were particularly smitten by his iBOT, a revolutionary stair-climbing wheelchair that allowed the user to raise up on two wheels to be eye level to a standing person. Unfortunately, these went off the market due to cost but you can see the iBOT in action here.

Kamen's recent invention is the DEKA Arm (or the "Luke Arm"), a highly advanced prosthetic arm which he created for veterans who lost limbs in the war. He tells the fascinating story of the development and shows some of the capabilities in the following TED video. Inspiring and exciting! (You can also view his recent appearance on the Colbert Report and you can read about it at Dean Kamen's "Luke Arm" Prosthesis Readies for Clinical Trials.)

Bryan Griffin was a pilot for Australia's Qantas Air from 1966 to 1982. In 1979 he began to have "uncontrollable urges" to switch off the engines in mid-flight in order to bring down the airplane. He would leave the flight deck and smoke a few cigarettes until he calmed down. He made no attempt to hide his problem - he talked to his colleagues about it. Qantas had him examined and treated by several doctors, but the problems continued, including the urge to "scream and cry." He routinely ignored instructions and repeatedly missed radio and altitude calls. On a flight from Singapore to Sydney, he felt his hand "being abused by the uncontrollable pull of the start levers" - which, if pulled, would kill the engines.

OK. Not exactly "pilot of the month" stuff. There are a couple of intriguing aspects to this tale.

First, Qantas made the management decision to keep Griffin on the job. While the Insider normally recommends following a "return to work/stay at work" protocol, in this case, "staying at work" for three years with severe mental illness clearly put far too many people at risk. Griffin was incapable of performing his job safely; he should have been put on indefinite leave until his mental state stabilized beyond any reasonable doubt.

Griffin continued to fly until he retired in 1982 with a diagnosis of anxiety, depression and obsessive compulsive disorder.

Indemnity for Working?
Here is the second unusual aspect to this case: Nearly 30 years after his retirement, Griffin has been awarded $208,000 by an industrial compensation commission, which ruled that his mental problems were exacerbated by his continuing to work. The Workers Compensation Commission found that the pilot's condition had been worsened by continuing to fly for Qantas until his 1982 retirement. The financial award covers "loss of earnings, medical expenses and legal costs."

While I am no expert in the intricacies of comp as it operates down under, I am confused by this award. How can you suffer a "loss of earnings" when you continue to work? How does workers comp indemnity come to play in a situation where there was no lost time? Perhaps the commission assumes that if Griffin had been grounded during his prolonged period of mental disability, he eventually would have been cured and then would have been to continue his career with Qantas beyond 1982. In other words, Griffin's premature retirement was caused by making him work while he was suicidal. If that is the reasoning, it's a bit of a stretch.

I have one additional question for the commission: why did it take nearly 30 years to reach this conclusion?

Qantas is considering an appeal on this ruling. I think they should shut up and cut the check. Any additional proceedings might further expose their amazingly reckless decision to keep Griffin in the cockpit. That is negligent entrustment at its very worst. Ironically, had Griffin succumbed to his demons and crashed the plane, we might never have known the real cause of the accident. As it is, Qantas is lucky that both Griffin and his hundreds of passengers survived. Air travel is stressful enough without having to worry about a pilot with a barely controllable urge to crash the plane.

Depression is by no means a rare occurrence in the workplace, but depressions that lead to compensable claims under workers comp are very rare, indeed. The burden of proof on the claimant is substantial, generally requiring a conclusive demonstration that work is the "predominant cause" of the depression. Given all that goes on in our lives, this can be a very tough standard to meet.

Janina Guz was a factory worker until 2002, when she sustained a work-related injury and filed for workers' comp benefits. She had bilateral carpal tunnel syndrome, later amended to include a neck injury and an aggravation of a preexisting back condition. In 2007, she amended her claim to add a major depressive disorder. Her case reached the Appelate Division of New York's Supreme Court.

Shrink One, Shrink Two
The case revolved around the testimony of two psychiatrists, one hired by the insurer and one by the claimant. The two shrinks approached Guz's complaint with very different perspectives, which naturally influenced their conclusions.

Dr. Areyeh Klahr conducted independent medical examinations in 2006 and 2007. In 2006 he found Guz to be exhibiting some symptoms of depression, but in his opinion this depression did not prevent her from working. One year later, he concluded that Guz no longer suffered from an ongoing psychiatric condition and had reached maximum medical improvement. Klahr cast a sceptical eye on Guz: he found significant inconsistencies in her responses and concluded that her complaints did not correlate with his objective findings. Klahr ultimately concluded not only that Guz did not suffer a work-related psychiatric disability, but that she was not really depressed.

A claims adjuster would call this IME a "home run."

The evidence in support of Guz came from her own psychiatrist, Alina Marek, who treated Guz on five occasions beginning in January 2008 - which the court noted was more than five years after her injury. Marek diagnosed Guz as having a major depressive disorder that was causally related to the work accident. However, she she acknowledged that she had no information about the circumstances or nature of Guz's work-related injury. She was also unaware that Guz had been involved in two prior motor vehicle accidents which involved injuries to her neck and hands. Marek had to concede that such prior injuries would be important in diagnosing Guz and determining the cause of her depression. Marek further conceded that she had no information regarding Guz's daily activities or her personal life history, including the fact that she was divorced. When pressed to specify the basis for her opinion that Guz's depression was related to her workplace accident, Marek admitted that she relied entirely upon Guz's subjective account. The Board found Marek's testimony on the issue of causally related psychiatric disability to be "entirely lacking in credibility."

Objective, Subjective
It's interesting to note the radically different frames of reference used by the two psychiatrists. An independent doctor with no ongoing relationship to Guz, Dr. Klahr zeroed in on the inconsistencies in Guz's complaints. Using the "objective" standards of his profession - not always as objective as they appear - he concluded that Guz was fabricating her complaint in order to preserve her comp benefits.

In distinct contrast, Malek took Guz at her word. Guz said she was depressed and she said that the depression was related to her work. Malek did not feel the need to probe any deeper.

In the world of comp, medical opinions quickly turn into dollars: if a condition is work related, all the medical bills are paid and the claimant receives indemnity. If it's not work related, no such payments are made. While it's tempting to make a judgment about the relative quality of the two psychiatric evaluations, that might not be entirely fair. From a workers comp point of view, the court had ample reason to conclude that Guz's situation did not rise to the level of compensability. From a purely medical perspective - regardless of whether work caused the problem - Guz is in pain and in trouble. Given the court's decision, she will find no further solace in workers comp.

The Brain Injury Association reminds us that March is Brain Injury Awareness Month, so it was timely to see that our colleague Peter Rousmaniere has an important piece on brain injury recovery in the current issue of Risk Management magazine: Gray Matters: The Employer's Role in Brain Injury Recovery. It is important for two reasons: it sheds light and hope on the issue of traumatic brain injuries and the improved prospects for recovery, including return to work; and it serves as an illustration of some important differences between workers compensation and group health

The article notes that each year, 50,000 Americans die of a traumatic brain injury and 235,000 are hospitalized. There really aren't good statistics to tell us the prevalence of work-related brain injuries. Although there are better statistics available for what Rousmaniere calls "the signature wound of today's wars," many think that the estimate of 320,000 war-related traumatic brain injuries may be on the low side.

The good news, as Rousmaniere documents with examples, is that with proper medical care there have been great advances for a type of injury that was once written off as lost cause: "In the past, many adults with work-related traumatic brain injury were simply warehoused. But with advances in treatment and care strategies, including an employer that is ready and willing to help in gradual return to work, many survivors of severe brain injury can regain most of their former way of life."

Part of the challenge is early identification, rapid response, and aggressive treatment early in the injury, and aggressive recovery goals. Patients who are treated in the workers comp system, where care is often managed and coordinated and where insurers and employers aggressively advocate for recovery and return to work, often have an advantage over those patients treated under group health. With workers compensation, employers/insurers have financial responsibility for the life of a claim and, therefore, more incentive to work towards maximum recovery. Rousmaniere cites a case manager who says, "You have a workers compensation brain injured patient who is in the same hospital room as a nonworkers compensation patient, and the difference in resources is like night and day."

Rousmaniere cites examples of successes, along with best practices that contributed to those successes - including the important role that the employer can play in maximizing recovery, some of the challenges that occur, and some of the best practices:

As with all successful brain injury recoveries, job coaching is a critical phase that demands employer participation. Rehab counselors often make the trip with the worker back to her or his workplace. Memory failure, a signature feature of brain injury, is sometimes best treated, in part, at the physical site of the employer. So for several months, the vocational specialist helps the worker find ways to organize the day, reinforce memory and work with others. In this way, the patient's prospects for recovery are greatly improved.

In speaking of his own recovery, Woodruff praised the quality of the care and support that he received, but saw with dismay that such treatment and recovery resources were not always available to service members with similar injuries. He saw the military culture as often stigmatizing or impeding screenings, and treatment options being limited once a vet returned home. That's why the Department of Defense's recent policy announcement is such welcome news: head-injury evaluations will be mandatory for all troops who suffer possible concussions. Moving to an incident-based response is a significant change from prior protocol, which depended on service members to self-identify with a complaint. The weakness in this approach is that service members are highly mission-focused and can shrug off complaints that can later prove to be serious problems.

America's Heroes at Work is a U.S. Department of Labor project that addresses the employment challenges of returning service members living with Traumatic Brain Injury (TBI) and/or Post-Traumatic Stress Disorder (PTSD). The resources and links pages are particularly helpful - and a good resource for employers who are working with either vets or non-vets who are recovering from TBIs.

TBI resources
Brain Injury Association of America
Survivors' Voice
Traumatic Brain Injury Survival Guide
Brain Injury Resource Center

When is a worker disabled and unable to do his or her job? This is an issue that surfaced in a recent post about an employer that was reluctant to make workplace accommodations for employees who had been injured on the job but who wanted to return to work. This case came to mind again after viewing a presentation by record breaking athlete Aimee Mullins. In her most recent appearance at the TED conference, Aimee delivers an outstanding talk that properly redefines the word 'disabled.' The video clip is about 22 minutes, but it's guaranteed to be one of the best things you see this week. Here are a few excerpts that we liked:

"It's not just about the words, it's what we believe about people when we name them with these words - it's about the values behind the words and how we construct those values. Our language affects our thinking and how we view the world and how we view other people."

"...we have to make sure that we don't put the first brick in a wall that will actually disable someone. Perhaps the existing model of only looking at what is broken in you and how do we fix it serves to be more disabling to the individual than the pathology itself. By not treating the wholeness of a person, by not acknowledging their potency we are creating another ill on top of whatever natural struggle they may have."

More about Aimee Mullins
TED profile - with links to additional presentations she has made
Aimee Mullins website
Aimee Mullins on Wikipedia

In December we blogged the horrendous case of Carla Nash, a lovely woman who was mauled by a chimpanzee owned by Sandra Herold, a friend. The 200 pound chimp literally ripped her face apart. Nash, who lacks health insurance, has been hospitalized for over a year at the Cleveland Clinic. The attack destroyed her vision and rendered her face unrecognizable (and unviewable). Doctors have determined that she is not ready for a facial transplant. She has sued Herold for $50 million. Her medical bills will easily run to 7 figures; who will pay has yet to be determined.In our prior blog, we noted that Herold was trying to limit the exposure to her workers comp policy.

A little lost in Nash's tragedy is the fate of Frank Chiafari, the Stamford, Connecticut police officer who came to Nash's aid. The raging, blood-covered chimp approached Chiafari's cruiser, tore off the mirror, ripped open the door and tried to attack the policeman. Chiafari shot and killed the chimp.

In the weeks and months following the incident, Chiafari suffered from post-traumatic stress disorder (PTSD); he experienced anxiety, flashbacks, mood swings and nightmares. He underwent counseling. (It's not clear how much time, if any, he was away from work.) Chiafari's workers comp claim was denied: under Connecticut law, public safety officers are eligible for PTSD benefits only when they shoot people - not animals.

Compensating for the Uncompensated
The good news is that Stamford has been covering Chiafari's medical bills, although they did require him to switch to a therapist of the city's choosing. The even better news is that Chiafari has literally been working his way through this work-related nightmare. He is still on the job.

There is movement in the Connecticut legislature to amend the workers comp statute so that public safety officers are covered for PTSD resulting from the use of deadly force involving animals. As is so often the case, the law will be adjusted long after the incident that exposed the gap in coverage. Fortunately for officer Chiafari, the city, despite the comp denial, recognized the legitimacy of his claim and paid for the needed counseling. They did the right thing for an officer who did the right thing. Nothing will erase the horrible images from that fateful day last February. But life for Chiafari can go on in all its ordinary splendor - more than we can say, alas, for the ill-fated Carla Nash.

Robert Friedman went to his local Starbucks in Boca Raton and ordered a coffee. He sat at a table and began swearing loudly while punching the wall with his fist. Alarmed by this behavior, the baristas called the cops and had Friedman removed. They asked that he not return to the store or he would be arrested for trespassing. End of story?

Not quite. Friedman suffers from Tourette's Syndrome, which leads to uncontrollable actions in his body and, on rare occasions, a stream of obscenities. Friedman, in other words, suffers from a recognized disability.

In its initial review of the case, the Florida Commission on Discrimination ruled in Starbuck's favor, determining that the baristas had no way of knowing that Friedman was disabled. The commission's own lawyer, however, over-ruled the investigators and found that Friedman had been a regular customer and was thus known to the baristas as a disabled person. As his behavior did not constitute an immediate threat to Starbucks staff or customers, the store had an obligation to accommodate him.

Ah, there's the rub. How exactly do you accommodate an individual who is swearing loudly and smashing walls with his fist? The commission wanted Starbucks to at least ask Friedman to stop behaving in an unruly manner before calling the cops. The commission noted that Friedman did offer an apology at the time of incident, before the police removed him from the premises.

Starbucks disagrees with the commission's findings and believes that its personnel took appropriate action to remove a disruptive customer from the store.

Outside the Comfort Zone
It is easy, perhaps too easy, to side with Starbucks in this situation. It's difficult enough to run a coffee house without worrying about accommodating unruly customers. But before you allow your distaste for bad behavior to slam the door in Friedman's tormented face, take a moment to view this video of children who suffer from Tourette's. They are victims of a cruel and random process that robs them of their dignity and compromises their ability to function in a challenging world. They deserve our sympathy.

As for Friedman, it is admittedly difficult to empathize with an adult who appears simply to behave badly. If we met him as a stranger, we would distance ourselves immediately. But once we know the source of his disruptive actions, he deserves at least a chance to re-establish his tenuous equilibrium. Tourette's puts us all outside our comfort zones - not necessarily a bad place to be. Friedman has to live with this problem every waking moment of his life; he has few, if any, comfort zones. We can accommodate Friedman for a few random moments, while enloying our lattes or going about the many tasks that comprise our hectic days. If nothing else, Friedman's situation reminds us that it is a great gift to be masters of our movements and of our words.

My colleague Julie Ferguson raised some fascinating issues relating to the growing movement to approve marijuana as a medication. As is so often the case, the implications for workers comp diverge substantially from general health issues. A toke may be just what the doctor ordered for pain management, but in the context of the workplace, any such prescriptions are likely to preclude actually reporting to work.

Here are just a few reasons why the use of medical marijuana is incompatible with the workplace:
- I cannot think of any job suitable for a person who is experiencing a marijuana high (actuaries? Just kidding)
- You cannot operate a motor vehicle or any piece of equipment safely while under the infuence of marijuana
- Imagine the impact on co-workers when a fellow employee lights up a joint. ("Note from a doctor. Yeah, right! By the way, who is your doctor?")
- Smoking is prohibited by law in virtually all indoor workplaces. "Accommodating" a marijuana smoker by allowing him/her to light up outside of the building raises issues for co-workers and the general public, not to mention the police.

It will be very interesting to see how strongly state legislatures step in to protect medical marijuana users. As Julie pointed out, no state is currently requiring that employers offer "reasonable accommodation" in this situation; it is unlikely that any will do so. The day may come when marijuana makes the list of approved medications in the workers comp system, but prescriptions for weed are unlikely to be accompanied by a return-to-work release from the doctor.

Medical marijuana, along with alcoholic beverages and prescribed opiates, may be legal substances, but employees under their influence do not belong in the workplace. Employers should place the burden of proof squarely on the shoulders of the treating doctor, who must be able to certify in writing that the prescribed use of pot does not put the employee, co-workers and the public at risk for injury. Quite frankly, unless someone works from home, I don't see how this burden of proof can be met. When it comes to performing a job safely, any toke is a toke over the line.

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.

Bionic fingers
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.

How would you like a job that pays $12,000 a year, where 1 percent of the workforce is killed annually and hundreds of others are seriously maimed? I didn't think so. You would probably take a pass on working for Titan Corporation (now part of L-3) as an interpreter for the U.S. armed forces in Iraq. The L-3 website promises that "as a member of the L-3 Communications team, you will be exposed to the most exciting career adventures situated on the cutting edge of technology." Alas, it's not just the technology that is cutting edge. The roadside bombs cut pretty deeply, too.

We read in the Los Angeles Times about the sad fate of translators in Iraq. There are about 8,000 in all. Over the five year period from 2003 to 2008, 360 were killed. Those who were lucky enough to survive were often shipped to Jordan for treatment. The workers comp benefits fell under the Defense Base Act and were administered by AIG, among others. (See our previous blog here.) According to some of the wounded, they were offered a stark choice: accept a proposed settlement (which absolved the insurer of any future costs) or be shipped back to Iraq, where retaliation and death awaited former employees of the U.S.

The Times article describes the life of Malek Hadi, an Iraqi national who lost a leg and several fingers in a roadside bombing. He now struggles to survive in Arlington, Texas. At first, he was unable to collect any benefits:

Internal AIG documents indicate that a claims examiner withheld Hadi's benefits in an effort to force him to accept the lump sum. Hadi was "clearly entitled" to benefits, a different AIG examiner wrote in a memo dated August 2008. The company had not paid because the previous examiner "was trying to get the claimant to decide whether to settle his claim," the memo said.

Malik now receives the maximum monthly disability benefit - a whopping $612 per month. He has been diagnosed with post-traumatic stress syndrome, but AIG has refused to cover any treatments. Perhaps they are waiting for a second opinion from the company shrink? Meanwhile, Malik will just have to deal with it!

Former insiders at AIG describe how the game is played:

"If you're missing one piece of documentation, you got denied," said Colleen Driscoll, who oversaw the handling of interpreters' insurance claims for L-3. "These guys get murdered coming and going to work, and AIG turns them down because they don't have a letter from the insurgents."

Driscoll, a former United Nations refugee official, left L-3 in 2007. She said the cause was a dispute with company executives over treatment of injured interpreters.

She and another former L-3 official, Jennifer Armstrong, said their experience suggested that 10% to 20% of the company's Iraqi workers who should have received benefits were denied.

AIG stock is currently trading at the equivalent of about $1.40 a share. It would be nice to think that this was the market's judgment on the way things are being handled in Iraq, but that, of course, has nothing to do with it. The market, not exactly known for its humanitarian concerns, is punishing AIG for financial - not ethical - sins. Indeed, the market might well approve of the way the injured, the maimed and the dead are being squeezed in this mockery of a benefits program. After all, indemnity and medical expenditures are being kept as low as possible and that can only help support AIG's battered bottom line.

Kenya Madden was hired as a police dispatcher for the Village of Hillsboro, Illinois, in July 2007. During the 10 week training period, she informed the trainer that she had narcolepsy, a disorder which causes people to fall asleep at unplanned moments. Some weeks later, she also informed her supervisor of her condition. The supervisor reacted with alarm. He had visions of Madden falling asleep in the middle of an urgent dispatch. He asked for Madden's resignation. When she refused, he terminated her.

Madden filed suit under the ADA, alleging discrimination based upon (the perception) of a disability. This week, the case settled out of court for $10,001. Interesting number, interesting case.

There is no question that Madden's supervisor mishandled the situation. With visions of disaster spinning in his head like demonic sugarplum fairies, he hastily put an end to the employment relationship. He did not ask for any details about the condition: how long she had experienced it; the degree to which medication controlled it; the last time she had an episode. He did not request permission to speak to Madden's doctor. He reacted out of a fear totally out of proportion to the situation.

But Madden is not without fault. If her condition was under control, why did she feel obligated to disclose it twice (to the trainer and the supervisor)? If no accommodation was needed - and none was - then why did she bring up the issue?

We can read several things into the modest settlement: while the Village of Hillsboro mishandled the situation and violated the ADA, their actions appear to based upon the limited information provided by Madden: she could have attempted to reassure her supervisor by explaining the successful medical treatment she was receiving. She apparently was silent on the issue. A more gratuitous termination would have resulted in a six or seven figure settlement. Instead, Madden receives $10,000 for her trouble, with an extra dollar tossed in for good measure. That's a pretty clear indication that while Madden was wronged, she may have had some responsibility for the situation.

This case illustrates a common problem in the way people perceive disability. We tend to jump to conclusions. "Narcolepsy" in a dispatcher sounds like an invitation to catastrophe.But it ain't necessarily so. Try asking a few questions to determine just how big the risk is. Talk is cheap and talk, in situations like this, is definitely the way to go.

Christopher Robin Briejer used to be a carpenter. He suffered a back injury in 2000 and was disabled from work. Except that he apparently kept on working. In 2003 he hurt his back again while working without comp coverage. He claimed the new injury was a recurrence of the 2000 incident. The claim was re-opened and he began collecting benefits. Between January 2004 and April 2008, Briejer received 121 state checks totaling $258,995 for time-loss compensation, $75,295 in medical services and $31,651 in vocational retraining – for a total of nearly $366,000.

The state of Washington recently indicted Breijer for comp fraud, alleging that the 2003 injury was not a recurrence, but a new injury. Someone dropped a dime on him.

Breijer states: “I have a permanent back injury with permanent damage to my spine.”

For a man collecting disability payments, Breijer maintains a very active life style. He likes to "rock crawl" and last year he climbed Mount Ranier.

“It doesn’t take a back to climb a mountain, it takes legs,” he said. [Think about that for a moment.] “I’m an active injured person. Even though I’m injured, I take care of my body. My doctors are 100 percent in favor of me hiking.” Hmm. I wonder if his doctors are 100 percent in favor of him working...

A Famous Bear of LIttle Brain
Breijer appears to have been named after Christopher Robin, the boy who appears in the Winnie the Pooh books written by A.A. Milne. (I refer to the books, not to an abomination of the same name from the Disney folks.) It seems that Breijer took to heart one of the Pooh bear's famous quotes: "A bear, however hard he tries, grows tubby without exercise." No bear belly for Breijer!

I'm guessing that Breijer might resent being named after a character in a children's book. Well, the original Christopher Robin resented it, too. Christopher Robin was based upon Milne's own son, Christopher Robin Milne, who in later life became unhappy with the use of his name. "It seemed to me almost that my father had got where he was by climbing on my infant shoulders, that he had filched from me my good name and left me nothing but empty fame". Children can be so harsh!

Well, as Pooh himself famously said: "People who don't Think probably don't have Brains; rather, they have grey fluff that's blown into their heads by mistake.” And again: "If the person you are talking to doesn't appear to be listening, be patient. It may simply be that he has a small piece of fluff in his ear."

I wonder if the prodigiously active Christopher Robin Breijer might have just gotten a little confused, Pooh-bear style, between right and wrong, between being truly disabled and being able to work. Such confusion is rampant in these morally compromised times. It's a bit like distinguishing one hand from another, which Pooh himself found to be quite difficult:

Pooh looked at his two paws. He knew that one of them was the right, and he knew that when you had decided which one of them was the right, then the other was the left, but he never could remember how to begin.

When it comes to confronting moral hazards, it's really important to remember how to begin.

You might not think that the H1N1 virus, commonly know as swine flu, has anything to do with the ADA. Well, you clearly have not been reading Nation's Restaurant News. Lisa Jennings writes a complex and cautionary tale for restaurant managers, warning them to back off from asking obviously sick employees whether they have the swine flu. Somehow, this advice does not sit well with me - or with anyone else who might sit down for a meal in a restaurant.

Attorneys with nothing else to do have raised the issue that swine flu may be a disability under the ADA. After all, we have all been warned of a potential pandemic and there have been a relatively small number of fatalities associated with the virus. But does that mean that every case of swine flu is a disability? Is the ADA's recent recognition of shorter term disabilities meant to include a week of sore throats, coughing and fever?

Jennings quotes Virginia attorney Jonathan Mook, who notes that the ADA sets limits for when and how employers may inquire about medical conditions. He concedes that swine flu may not technically be a disability, but "it could be perceived as disabling because of the myths about it. If an employer asks specifically about swine flu, for example, and later is perceived as not wanting to work near the employee, even after the worker is no longer contagious, there may be grounds for a discrimination complaint."

Are employers really supposed to worry about that?

Fortunately, the article recommends that employers focus on symptoms:

In communities where an outbreak occurs, it is a good idea to include in every preshift meeting questions about specific symptoms related to the flu. It’s also OK for employers to ask whether employees have fevers, sore throats, coughs or intestinal ills, so long as they don’t ask for a diagnosis [emphasis added].

In addition, attorneys say, employers are permitted to send employees home if they’re showing symptoms of the flu and are allowed to ask them to stay home for three to seven days, as recommended by the CDC in Atlanta—or as long as necessary to complete treatment, such as antiviral medication.

So the attorneys say that it's ok to send people home for flu-like symptoms, as long as you don't suggest that you are doing so because you think they have swine flu.

A Note from the Doctor and FMLA
To complicate matters even further, a specific diagnosis of swine flu is unlikely, as most people with flu-like symptoms are instructed to stay home and employ the usual remedies. We are not to go to hospitals and clinics unless symptoms are unusually severe. The CDC does not want to overwhelm emergency rooms and local clinics with needless requests for documentation.

On the other hand, if there is a formal diagnosis of swine flu, the employee may be eligible for FMLA leave, as this particular flu would be considered a "serious medical condition" - as opposed to regular flu, which might also kill you but is not viewed as a part of a world-wide pandemic. Go figure.

I hope that a fear of (preposterous) litigation does not result in employers keeping sick people at work. No one with flu-like symptoms belongs in the workplace. I have never sued anyone, but if my scrambled eggs are delivered by a waitperson with a runny nose, flushed skin, an expectorant cough and a raspy voice, I won't eat a thing. And if there happens to be a lawyer in the next booth, I surely would be tempted to strike up a conversation.

Postscript: A note of thanks to my esteemed colleague Jennifer Christian, CEO of Webility, who somehow finds the time to read National Restaurant News.

The Defense Base Act (DBA) was enacted in 1941, to cover the injuries to civilian employees - primarily a few hundred engineers - during the second world war. The act might have worked then, but it certainly is not working now, nearly 70 years later. As we have blogged in the past, the DBA is a boondoggle, generating huge profits for a small number of insurance carriers and routinely devastating both the civilian workers wounded or killed in war zones and their families. There are over 10,000 claims filed each year: the medical only claims are usually paid; the indemnity claims are dissected, inspected, detected, and ultimately, rejected. A handful of insurers (AIG, CNA among others) are making big bucks at the expense of the wounded and the dead.
NOTE: As bad as the situation is for U.S. citizens wounded and killed in Iraq, it is far worse for foreign nationals.

The Domestic Policy Subcommittee of the House Oversight and Government Reform Committee held a hearing last week on the DBA. The title of the hearing betrays an (understandable) prejudice: "After Injury, the Battle Begins: Evaluating Workers' Compensation for Civilian Contractors in War Zones." The hearing focused on the handling of workers' compensation insurance for federal contractors working overseas, specifically on the inordinate delays in compensation running parallel to the enormous profits for insurers. Among those testifying were Deputy Labor Secretary Seth Harris; Timothy Newman, Kevin Smith and John Woodson, former civilian contractors in Iraq; Kristian Moor, president of AIU Holdings, Inc., a division of AIG; George Fay, executive vice president for Worldwide P&C Claims, CNA Financial; and Gary Pitts of Pitts and Mills Attorneys at-Law.

Kristian Moore defended AIG's decisions and motives, pointing the finger at a lack of Labor Department oversight and a system overtaxed with cases. "We are doing everything we can do," suggested Charles Schader, senior vice president and chief claims officer for AIU Holdings. Yeah, everything you can do to make money.

At the conclusion of the hearing, Dennis Kucinich (D-Ohio) warned AIG executives that he plans to demand copies of internal memos and documents that will link claims denials to the company's profits. Most of us do not get terribly excited by the prospect of reading claim files, but these will undoubtedly provide some compelling reading. While I doubt that the subcommittee will find a direct, written link between denials and profits, the rationale for the individual claim denials - in the face of compelling evidence of compensability - should prove riveting. Was it incompetence or was it greed? Something cruel, heartless and cynical took place in the back rooms of carriers with responsibility for civilian claims. If you like Edgar Alan Poe, you'll love the claims files of AIG and CNA.

Risky Job, Risky Work
Seth Harris, the new deputy secretary at the U.S. Department of Labor, is in charge of this mess for the government. He's been on the job for 3½ weeks. Congratulations on the new job, Seth! (You might want to keep your resume circulating.) Seth has been working less than a month, but he has already figured out that the system is in need of fundamental change.

The work of insurers usually involves risk transfer. Under the perverse incentives of the DBA, the risk is absorbed by taxpayers, the pain falls on civilian workers and their families, and the profits - running from 37 to 50 percent of premiums - are pocketed by the carriers. Risk without transfer. It's amazing that AIG can generate this level of profit in one division and still only trade at $1.40 a share. I guess that they have been looking for risk in all the wrong places.

Alan Rosenbaum is a revered professor of art at Virginia Commonwealth University (VCU). He shows students how to work with clay - at least, he used to, until he was disabled by silicosis. Rosenbaum was exposed to silica dust in the clay mixing room and ceramic studios of the university. The state Workers Compensation Commission last year found that the professor's silicosis was caused by his exposure to hazardous dust and awarded him permanent disability benefits totaling $211,800.

Silica is a common mineral found in clay, sand and rock. The dust in the VCU's Fine Arts Building came from the powder that students and staff mixed with water to make clay, as well as from scraping kilns clean of bits of clay and glaze after firing. There are intake vents directly above the five mixing machines, designed to take in dusty air and run it through a filter before releasing it outside the building. However,the vents failed to function properly, because for five years university staff members taped plastic bags over them, apparently to keep the dust from spreading elsewhere in the building. (There were complaints from woodworking and other shops that the dust migrated from the intake vents into work areas.) By blocking the vents, all the dust was contained in the ceramics area.

In addition to the vents being blocked, janitors swept the floors daily, causing the dust to fill the air for thirty minutes or more.

The Hazards of Sand
Ironically, VCU art classes included instruction on the hazards of silica in clay. (Here is a fascinating, if somwhat bizarre MSDS sheet on sand. It might make you think twice about heading for the beach...) It is hardly surprising to learn that students and teachers ignored the warnings.

Air-quality tests conducted by VCU staff after Rosenbaum's diagnosis found dust levels were 98 percent below hazardous levels -- but VCU did the testing after removing plastic bags that blocked the ventilation vents. In addition to activating the vents, janitorial staff began using sweeping compound to capture fine particles before they were released in the air. In other words, mitigation of the risk was readily available, but such measures were not implemented until Professor Rosenbaum became ill.

As in Julie Ferguson's post last week on laboratory hazards, this situation in the art studio of a major university reminds us that education is not without risk. A little learning can quickly become dangerous. The budding artist working with clay and the mason cutting a cinderblock face essentially the same hazard. Dust is dust. If we are not careful, dust can speed our return to the dust from which we all come. That's one lesson that Professor Rosenbaum is unlikely to forget.

Over the past year, we blogged about a couple firefighters who abused the workers comp system. First there was the muscular Albert Arroyo, a Boston firefighter who participated in body building competitions, while collecting comp for a work-related disability. (Due to adverse publicity, he eventually lost both his job and his disability pension.) Then there was triathlete Christina Jijjawi, who parlayed a thumb injury into temporary total disability, during which she swam, cycled and ran for glory. Yes, I know, she was simply having an exceptionally good day.

Albert and Christina give firefighters a bad name. So it's a pleasure to introduce you to Scott Miller, an apparatus operator with the LA fire department. He not only restores the good name to firefighters; he is an inspiration to any and all who believe in returning injured workers to productive employment.

Answering the Call
Seventeen years ago, in the middle of the Rodney King riots, Scott was racing toward a fire when a vehicle pulled along side his hook and ladder truck and fired a handgun. A bullet entered Miller's cheek angled down through his body and severed a carotid artery in his neck. Given the quick response of his fellow firefighters, doctors were able to save his life, but a blood clot on the brain had left him paralyzed on the left side and unable to speak. (By the way, the shooter got 16 years - a bargain, considering that Miller "got" life.)

Miller was in rehab for over a year. He overcame the speech and many of the mobility problems, but never recovered fine motor skills in his left hand. He knew he could never do the physically demanding work of fighting fires, but he was determined to make it back to work. So he joined the Fire Prevention Bureau, where he eventually became a captain in charge of a crew that inspects commercial buildings.

He says of his prevention role: "It's an area of work that I've come to respect. I realized that I had to move on and refocus on the more important things of life, that I can't drag my dream with me until it becomes a nightmare ruining other positive things in my life."

One of the ironies of this story circles back to Albert Arroyo. He, too, worked in the prevention bureau, but he used the excuse of a questionable injury to go out on disability, so he could pursue his dream of winning a body-building competition. Scott Miller's dream was a little simpler and much more moving: he just wanted to be a firefighter again.

AIG has been in the news mostly for its ingenious method of losing money: insuring the riskiest possible financial transactions and tanking after these risks go bad. But give the biggest insurance company in the world some credit. They still know how to make money the old fashioned way: collecting premiums and denying claims. To be sure, this strategy is not easy to do in the states, where public scrutiny is never more than a phone call away. But it works rather effectively in Iraq.

T. Christian Miller from Propublica and Doug Smith from the LA Times have described in great detail how AIG transformed Iraq into a business opportunity with an enormous upside. AIG is the predominant workers comp carrier in the war-torn country, insuring civilian workers. When these workers are injured - and the injuries can be devastating - AIG has routinely denied their claims for basic medical care, artificial limbs and desparately needed counseling for post-traumatic stress syndrome. More than 1,400 civilian workers have died and 31,000 have been wounded or injured in the two war zones.

Insurers have collected more than $1.5 billion in premiums paid by U.S. taxpayers and have earned nearly $600 million in profit, according to congressional investigators. That's nearly 40 percent profit after expenses - an unheard of loss ratio in the states.

Collect and Deny
The AIG strategy is deceptively simple: first, charge exorbitant fees for premiums, roughly 100 percent of a worker's pay. (Don't feel sorry for the companies paying these premiums; they are fully reimbursed by taxpayers.) Then, accept all the small claims and fight almost any claim involving lost time (more than four days of disability). Delay, delay, delay. Never make a payment until ordered to do so by a court.

The denial rate on serious claims is pretty astonishing: about 44 percent. How could you argue that any injury - let alone a serious one - is not work-related, as civilian employees are in Iraq for one purpose, supporting the war effort? In addition, fully half the claims for PTSD are denied. All this in the context of a war where catastrophic injuries are all too common and legitimate PTSD is as prevalent as cuts in a glass factory. How many state-side workers have watched co-workers blown to pieces by roadside bombs? Do you think that such incidents might qualify as PTSD?

AIG used the argument of extremely high-risk working conditions to boost the premiums. Then they turned around and used the strategy of denial to boost profits. Who says capitalism is dead?

I suppose you could argue that this reporting is just piling on poor AIG.The behemoth just cannot catch a PR break. Oh, well, dear reader, don't waste too much energy feeling sorry for AIG. After all, you are paying for AIG big time: in the bailout that exceeds $200 billion; in the war-based premiums that generate profits nearing 40 percent; and in all likelihood, in the social costs of caring for devastated civilian employees, who have so much difficulty accessing the comp benefits to which they are entitled.

AIG may not know diddly about the risk in risky financial vehicles, but they certainly know how to make money in conventional comp insurance. Of course, it helps that the injured workers are so invisible, like obscure figures in a desert sand storm, struggling blindly to find some kind of shelter in a harsh and unsympathetic world.

Historically, the tendency has been for employers to segment potential employee health and disability issues into two discrete silos: occupational safety, prevention, and other issues related to workers comp are most often managed by risk managers and safety staff. General employee health issues are usually tucked under an organization's benefits and human resources department as part of group health - or under a wellness program, if one exists. But increasingly, data shows that the two are often inextricably linked and it makes good sense to address health issues with a more holistic approach. This seems an area rife for attention given the recent multi-year trend of decreased claim frequency and increased claim severity in workers comp. It's also a critical issue given the aging work force. Employers need to recognize the effect that co-morbid conditions such as obesity, diabetes, and high blood pressure can have on disability recovery and medical costs - and to get more upfront about preventing and addressing these health conditions.

Roberto Cencineros, writing for Business Insurance notes that NCCI has released preliminary findings on an upcoming report on obesity which shows that workers comp medical claims open for one year cost three times as much when the injured employee is obese, and claims that are open for five years are five times more costly when involving an obese claimant. For smaller claims, the study will show that the cost differential can be even greater.

This should not be eye-opening news - there have been numerous other studies linking obesity to high medical costs and longer duration of lost time. One 2007 study documenting the cost link between obesity and workers comp by researchers at Duke University found that obese workers filed twice the number of workers' compensation claims, had seven times higher medical costs from those claims and lost 13 times more days of work from work injury or work illness than non-obese workers.

Ceniceros notes that the workers comp industry has focused on treating specific injured body parts while overlooking so-called co-morbidity factors, such as obesity, that increase claims duration and costs. Comorbidities not only can lengthen the recovery period, they may also be a precipitating factor in claims. According to the article, "...some employers even have begun collecting obesity data to help fend off future claims that may not be work-related, particularly those involving police and firefighters who must take pre-employment physicals and whose heart attacks and other ailments often are presumed to be work-related, said Glenn Backus, senior vice president for Alternative Service Concepts L.L.C., a Reno, Nev.- based claims administrator."

For more on the dawning awareness that workers comp programs should not be divorced from overall employee health issues, see the Bill Thorness article in the 2008 NCCI Issues Report, Wellness Comp, (PDF) where he addresses the issue of whether there is a place for health promotion programs in workers comp. "The bottom line is that workers compensation specialists should at least be at the table for discussions on how to make the workforce healthier. Health and productivity shifts the basic value proposition, according to AON, into the question of "How can [healthcare] plans be modified to incent employees to adopt healthy behaviors, moderate cost increases, and minimize absenteeism and presenteeism?"

Dr. Scott Haig, an orthopedic surgeon, has a thought-provoking article in Time Magazine on returning to work after surgery. As those of us involved in workers comp know all too well, returning to productive employment is not simply a matter of healing. Motivation is obviously a huge factor, as is the lurking sense of entitlement that may accompany a work-related injury.

Haig cites a study conducted back in 1995, involving 103 patients who underwent rotator cuff surgery. The study focused on the type of insurance coverage. Where the injuries were work related and covered by workers comp, only 42% of the patients felt better and returned to work in the medically necessary time frame; by contrast, fully 94% of those covered by conventional insurance felt better and returned to work in a timely manner.

These differing results have little, if anything, to do with the quality of the surgery. It's a matter of motivation: people covered by conventional insurance are not making money during recovery; they need to get back to work to pay their bills, or back to whatever life requires them to do. By contrast, people on comp are being paid not to work. They may prefer life on comp to the working grind. They may not approach the return-to-work process with the same sense of urgency that others usually feel.

Chester's Pain
Haig goes on to tell the story of a cop named Chester. Haig performed rotator cuff surgery on Chester, who healed well and seemed ready for a return to light duty, which was readily available. Haig was scrupulous in cultivating a good relationship with Chester; he was confident of optimum results. But well into the recover process, Chester, accompanied by his aggressive mom, complained that light duty wasn't fair. "My sergeant had the same operation and he got six months off...[and by the way],I'm in constant pain."

Alas, despite the availability of appropriate light duty (answering phones), Haig realized that his return-to-work plan was doomed. "I knew the mess I was in. You can't argue with the complaint of pain. I could imagine the grimaces I would see when I examined his shoulder..."

Ultimately, Chester went back to work in four months and stayed on light duty for two more months. In other words, he got his six months, just like his sergeant.

As Haig concludes, the type of insurance coverage goes a long way to determine how much pain you feel. For those who qualify for comp with work-related injuries and illnesses, the pain just might reach the level where work of any kind is simply not not an option. At that point the pain is shared by the employer, who loses a productive employee for a longer period than is medically necessary, and faces increased cost of insurance through the experience rating process. When it comes to comp, there is plenty of pain all around, for sure.

Nadya Suleman recently gave birth to octuplets, six boys and two girls. These newborns join the six other children that were also conceived through in-vitro fertilization. Suleman is a single mother of 14 young children, living at home with her (distressed?) parents. As the father of two teenage daughters, I certainly appreciate the joys (and challenges) of parenting. But this is ridiculous.

Workers comp has played an interesting role in enabling Suleman to become the media's latest and greatest fertility symbol. Back in 1999, Suleman worked the graveyard shift as a psychiatric technician at the Metropolitan State Hospital in California. She was injured in a mini-riot, when a patient threw a desk at her, injuring her spine. The back injury was clearly visible on her MRI and obviously compensable. She was disabled from work and collected workers comp. We don't know how hard the hospital tried to bring Suleman back to work.

In 2001 she was on her way to a treatment session, when she was involved in an auto accident, injuring her back, shoulders and neck. She filed a claim for continued benefits based upon these new injuries. Her employer objected, but Suleman prevailed at a hearing. (I would have thought that going to a scheduled appointment, like "to and fro" in going to work, would not in itself be "in the course and scope" of employment - but obviously, the judge disagreed.) As a result of her continued indemnity payments, Suleman was supported by workers comp during her extensive and remarkably successful attempts to have children.

Pregnancy and a Bad Back
Suleman admitted that her back injury was exacerbated by her pregnancies. At the most recent hearing, in August 2008, Dr. Steven Nagelberg attributed 90 percent of her injury to the work incident and 10 percent to her pregnancy. (Obviously, Dr. Nagelberg has never been pregnant!)

In any event, Suleman has collected about $165,000 on her workers comp claim. Here is the key point: Suleman claimed to love her job, but her employer was unwilling or unable to bring her back to work. Given her attitudes toward life, marriage and children, she was undoubtedly a handful. Nonetheless, an aggressive attempt to return her to productive work might have saved the state a lot of money. As it was, comp became Suleman's primary means of support as she pursued her dream of having a family. Some dream!

In a recent interview on the Today show, Suleman says she had six embryos implanted in her fertility procedure — far more than industry guidelines recommend — and was well aware that multiple births could result. Indeed, during the very early stages of the pregnancy, the six became eight. (Hmm. I wonder if the infertility doctor consulted his/her local medical ethicist when agreeing to do this procedure.)

"I wanted them all transferred. Those are my children, and that's what was available and I used them. So, I took a risk. It's a gamble. It always is."

"It turned out perfectly," Suleman added.

Perfection is not the word that comes to my mind. This is a failure of mind-boggling dimensions, with profound implications for 14 innocent children. It is ironic that workers comp, the safety net for injured workers, has played a relatively small, but definitive role in this sorry saga.

Ed Abney is 53 year old tool-and-die worker with Parkinson's disease. For over 20 years, he was literally up to his elbows in drums of the powerful solvent, trichloroethylene (TCE). He worked for the now defunct Dresser Industries in Kentucky. As we read in Felicity Barringer's excellent article in the New York Times, Abney's illness was probably caused by work, but in the world of workers comp, "probable" does not meet the standard for compensability. Even with compelling research by the University of Kentucky suggesting that exposure to TCE increases the risk for Parkinson's, Abner is unable to access workers comp benefits.

The Kentucky study focused on Ed and his co-workers at Dresser. Researchers sent surveys to 134 former employees; 65 responded. The research found 27 workers with Parkinson's symptoms or with impaired motor skills. That's 42 percent of respondants and 20 percent of the total surveyed. Statistically significant, to be sure. Nonetheless, the medical researchers were unwilling and unable to certify that the onset of Parkinson's was caused by workplace hazards.

As Dr. Don Gash, one of the researchers, put it: "Was it the [TCE]? It could have been. But it could have been other things, too," including a genetic predisposition to the disease. Unfortunately for Abney and thousands of workers like him, the world of workers comp operates on a rather simplistic model of cause and effect: if you can prove that the injury or illness is work related, it is compensable. In cases of occupational disease, there is almost always grounds for doubt. You simply cannot prove definitively that chemical exposure caused the illness - even though there is compelling anecdotal evidence that it did.

Fighting Fire with Politics
Which leads us back to the world of firefighters. As we discussed in a June 2008 posting , 40 states have created a presumption of compensability for heart disease and cancers occurring in firefighters. Like Ed Abney, firefighters are exposed to cancer causing substances in the performance of their work. But unlike Abney, firefighters are much more likely to receive disability benefits based upon this exposure. There is little if any burden of proof on the firefighter to demonstrate that the illness is work-related.

Where firefighters get the benefit of the doubt, ordinary workers just get the doubt. Ed Abney and thousands of other industrial workers suffering from debilitating and often fatal occupational illnesses face virtually insurmountable obstacles in collecting workers comp. As Dwight Lovan, Kentucky's commissioner of workers comp, puts it: "We are dependent upon the scientific and medical communities for the element of causality." Well, yes and no. Ultimately, compensability is a political issue: state legislatures have blown open the causality issue for firefighters. They could do the same for ordinary workers, but in all likelihood, they will not. Everyone supports public safety, but when it comes to the ordinary Joes and Josephines, Eds and Ednas, who do their jobs and come home reeking of toxic solvents, sympathy quickly evaporates under the guise of keeping employer costs to a minimum. In their struggles to treat their illnesses and support their families, these plain folks from Main Street are pretty much on their own.

There is a fascinating article in today's Wall Street Journal (subscription required) that raises interesting implications for workers compensation. Melinda Beck writes that warning labels on medications can actually stimulate symptoms, especially when stress is involved. In other words, when an injured employee reads a warning label - "this medicine may cause vomiting, headaches, drowsiness, etc" - he or she is more likely to have these symptoms. The label itself creates a self-fulfilling expectation. Doctors call this the "nocebo" effect, a phenomenon parallel to placebos.

"People's expectations play a very important role in how they react to medications," says Richard Kradin, a physician and psychoanalyst at MGH in Boston. He notes that 25% of patients who get completely inert placebos in clinical trials complain of the listed side effects - usually headaches, drowsiness and dizziness.

The implications for workers comp are profound: experiments have shown that telling patients they may feel pain triggers the release of neuropeptide cholecystokinin (CKK), which heightens pain sensations. Because work-related injury almost always involves pain, the expectation of pain can make the pain felt by the patient even worse.

This phenomenon may help explain the inordinate dependence upon strong narcotics in the workers comp system (a frequent Insider focus). We all dread pain. Injured workers have a heightened awareness of pain relating to their injuries. They bring this awareness to the examination table. In their efforts to alleviate (real and imagined) pain, doctors tend to reach for stronger-than-necessary medications in order to provide the relief their patients demand.

Stress is a key factor in the nocebo effect. Stress drives the anticipation of pain and the over-reaction to medication warnings. It is present in virtually all workers comp situations, so we can project that the nocebo effect is a fairly constant factor in the treatment of work-related injuries.

Calming the Waters
The article points out the importance of good communication between doctors and patients. Doctors need to focus not just on information ("this medicine might really make you sick") but on the need to maintain contact: "If you have any problems or concerns, don't hesitate to call me." Reassurance from a doctor can literally reduce the amount of pain and stress experienced by the patient.

The nocebo effect may be indicative of the need to shift the focus of western medicine beyond symptom and treatment to encompass the whole being of the patient, with a particular focus on stress reduction. If injured workers received some help in eastern stress reduction techniques (e.g., meditation), their craving for stronger medications might subside. They would also recover faster. (Will insurance carriers pay for stress reduction interventions? Of course not!)

Daniel Moerman, a professor of anthropology at the University of Michigan says that "physician communication with patients is the closest thing to magic. It gets communicated in incredibly subtle ways - a flash in the eye, a smile, a spring in the step." Doctors, in other words, are shamans. Their ability to heal is not limited to the medications and treatments they prescribe. They can heal just by conveying a strong belief in their ability to heal.

APOLITICAL FOOTNOTE: Let's take the nocebo concept one step further. The election of Barrack Obama as president may have as much to do with his calm presence as his politics. He has a reasurring coolness in a time of transcendent stress. His body language communicates a confidence in his ability to solve problems. His Marcus Welby-esque manner conveys the notion that our imploding economy can indeed be fixed and our wounded world can eventually be healed.

There must be something in the smoke: a few months ago we blogged the tale of Albert Arroyo, a Boston firefighter who participated in a body building contest while collecting workers comp for an alleged disability. Well, to demonstrate that we harbor neither geographic nor gender prejudices, we tell the tale of Christina Hijjawi, a 37 year-old firefighter from San Francisco. Christina had two work-related problems: an injury to her right shoulder fighting a blaze in December 1998, which left her either off work or assigned to desk duty. Then two years ago, Hijjawi reported suffering a second injury - this one to her right thumb. The thumb problem apparently precluded the performance of her light duty assignment and put her completely out of work.

Unlike Mr. Arroyo, who turned to bodybuilding as part of his rehab effort, Christina became an endurance athlete.

From 2001 to 2006, according to records on the Web site Athlinks, Hijjawi ran in no fewer than a dozen marathons. And her biography on another site shows she was taking on even bigger challenges, including the Canada 2005 Ultraman super triathlon competition - in which competitors swim 6.2 miles, ride a bike for 170 miles and run 52 miles, twice the distance of a marathon. Yikes. It took more than than 33 hours to complete the Ultraman.

In June 2006, she took part in the 50-kilometer Mount Diablo summer trail run, where participants go from the base to the summit of the 3,800-foot Contra Costa landmark and back - and then do it again. Athlinks says she clocked in at eight hours and 31 minutes. Heck, her thumb might be bothering her, but you'd have to rate her aerobic capacity as somewhat above average.

Hijjawi's attorney, Christopher Shea, cautions us from jumping to conclusions. "There's a big difference between competing in a triathlon and running into a burning building with a 150-pound hose." Good point. Just because she can run up a mountain- twice - doesn't mean she can perform the essential functions of a firefighter (including sitting at a desk on light duty).

Paging Dr. Feelgood
Lurking in the shadows of these two dubious disability claims lies the medical profession: somewhere along the line a doctor certified - and recertified - that Hijjawi was unable to perform even light-duty work. This diagnosis was blindly accepted by Christina's employer, the San Francisco fire department, which failed to manage her back to productive employment.

So let's apportion blame where it belongs: to employees with impressive physical capacities who simply don't like their jobs; to doctors who fail to look closely at the medical evidence right before their eyes; to unions who protect and coddle unscrupulous members; and to employers who drop the ball as soon as an employee becomes "disabled."

Taxpayers foot the (substantial) bills for the unproductive lifestyles favored by Arroyo and Hijjawi. In these trying times, we need a much higher level of accountability - starting with the President of the United States and moving down to the public servants who patrol our streets, collect our trash, respond to emergencies and teach our children. They are all our employees and we need to make sure they are performing their jobs to the highest standards.

Last month we blogged the emerging scandal involving the Long Island Railroad, where over 90 percent of employees (management included) retire on disability. Walt Bodanich and Duff Wilson of the New York Times have a follow up article that goes into some of the deails. It's not surprising to find that workers were coached in the best way to apply for disability, including a select list of doctors and paying for their disability exams in cash.

One detail of the new report caught the Insider's eye. Two private sector insurers wrote coverage for railroad workers: Transamerica and Aflac. Transamerica has walked away from the (unprofitable) business. Aflac, on the other hand, has approached the scandal in a rather circumspect and casual manner.

Wlliam Capps, manager of Aflac's special investigations unit, testified at a hearing convened by New York AG Andrew Cuomo that since 2003 his company had paid out $4.1 million to LIRR employees holding short-term disability policies. He says that Aflac did not realize anything was amiss until this year. (Perhaps they read about it in the papers while enjoying their morning commute?).

Capps's investigation focused on three areas: the close proximity betweeen retirement and the submission of claims; the similarity of ailments; and the use of the same three doctors by most of the employees. Under questioning, Capps said that about a quarter of LIRR policyholders had cashed in on the coverage.

Twenty five percent! In this era of data mining and performance management, you would think that such a high level of disability claims would raise a few red flags. Private insurers are accountable for results on a quarterly/annual basis. There is no way they could make money on a disability program with such a high percentage of those covered drawing down benefits. You have to wonder whether the Aflac sales department ever gets feedback from claims, or whether anyone actual reads the performance data.

I can just see Aflac's ubiquitous duck in a new ad campaign: the duck is strapped across a railroad tie, with the LIRR commuter train heading straight for it. The duck quacks in alarm and scatters feathers in a desparate effort to escape. That's more than can be said for Aflac itself, which lay down on the tracks, closed its eyes and took a nap, while the 5:02 hurtled down the track on its scheduled rounds.

We are totally fascinated with some of the assistive technologies that hold promise for the disabled to regain powers of mobility. We've previously discussed exciting developments in high tech wheelchairs and in July, we posted about a truly exciting development: an exoskeleton device from Israel called ReWalk, a light, wearable brace that holds promise for helping those paralyzed by spinal chord injuries to actually walk again. Quite astounding.

More recently, thanks to Medgadget, one of our favorite reads, we learned about another promising development in assistive mobility technology: HAL, the robot suit. HAL, which stands for Hybrid Assistive Limb, is currently being marketed in Japan in one- and two-legged models. These braces help people to walk by detecting electrical signals on the skin that are sent from the brain to the muscles, which then provide robotic assistance to people as they walk. You can learn more about HAL at the web site of the developer, Cyberdyne or check out this video issued as it was being developed - it looks like something out of a science fiction film.

Robotic suits or exoskeletons are an interesting area of technology to keep an eye in in terms of potential applications for the disabled. Unsurprisingly, much of the research in this area focuses on military applications so we may be seeing armies of cyborg-like soldiers with super-human strength. Ironically, warfare is often the spark for many developments in medical technologies.

The Long Island Railroad has an excellent safety record. They move millions of commuters safely to their destinations every year. You might assume, therefore, that railroad workers are relatively free from disabling workplace injuries. Well, yes and no.

According to a compelling piece in the New York Times by Walt Bogdanich, something terrible happens to L.I.R.R. workers once they retire (beginning at age 50). They become disabled after their working days are over - at an astonishing rate of 97 percent. Now before you pull out your dimes to call OSHA (as if that would do any good), I hasten to add that the vast majority of the disability awards appear to be bogus. Workers simply present evidence of a health problem. They use their own doctors. The ailment does not have to be work related. There are no Independent Medical Exams. (By the time we reach 50+, something is ailing most of us - and that something is grounds for a RR disability payment on top of regular retirement pay.)

Disability applications are reviewed by the federal Railroad Retirement Board, an obscure, depression era entity in Chicago. Applications are almost never rejected (unless the application itself is incomplete). The disability payments, which supplement regular retirement payments, come from federal (ie. taxpayer) coffers. Lest you think that only line workers participate in this windfall, white collar workers enjoy the same benefits. These include the former deputy general counsel, employment manager, claims manager and director of government and community affairs, all of whom assert that they are incapable of performing any work, due to their work-related disabilities. As usual, the fish rots from the head down...

So how much do the former engineers and conductors make? Given the byzantine work rules, they can make as much as $2,000 a day (!) while they are working and can retire on as much as $200,000 or more a year. Oh, as "disabled" retirees, they can play free golf (on their "good days") on certain New York courses. "All Aboard!"

The Times article has gotten the attention of New York's governor. As with the financial markets, changes are inevitable. Going forward, who knows, they might even inject a little accountability into the system. Meanwhile, hundreds of retirees soothe the pain of their "disabilities" by playing golf and fishing in Florida. This scandal shows that it's not just the Wall Street fat cats who live off the rest of us.

Perhaps riders of the L.I.R.R. felt sorry for the conductor punching their tickets, dressed in an ill-fitting uniform and wearing a silly hat. The jokes on all of us: the conductor is looking forward to a retirement that dwarfs the benefits most of us will see. That's some ticket, indeed!

Lawyers wrote the Americans with Disabilities Act, so it's no surprise that would-be lawyers constantly try to raise the bar on accommodations within the legal profession. Case in point, Shannon Kelly, a 2003 graduate of Barry University School of Law in Orlando, Florida. Last year Kelly took the bar exam in West Virginia. In response to his stated disability, the Board printed his exam in eighteen point type, let him take the test in a private room and allowed him an extra day to finish. Nonetheless, Kelly failed the test.

He wants to try again, but this time he wants an additional accommodation. He has sued to be given all of the above accommodations, plus an additional day to finish the test. While in law school, his Barry U professors gave him twice the normal time to finish his exams. Twice the normal time for the West Virginia bar would be four days.

Kelly's lawyer, Edward McDevitt, says that the Board has violated Kelly's rights as a disabled person under the ADA.

"He has invested enormous time, money and energy to reach the threshold of the profession," explained McDevitt. "But he has severe deficits in processing speed, cognitive fluency and rapid naming."

Essential Functions
Kelly's suit raises some interesting issues. The accommodations he requires for the exam might well be needed for his practice: briefs written in 18 point type; extension of the normal deadlines for filing court papers; perhaps even extra time to present his arguments. The fundamental question is whether Kelly can perform the essential functions of the legal profession. Most lawyers have to be able to read small type, respond to numerous deadlines and present their cases under extreme pressure. As a reward for their proficiency, they are (often) paid substantial hourly fees. Would Kelly command the same hourly rates, despite the fact that it might take him twice as long to complete the work? Would it be ethical to charge clients double for Kelly's work? (On second thought, the subject being lawyers, let's keep ethics off the table.)

If Kelly succeeds in passing the bar, I would recommend that he seek work as a government lawyer. He could take his sweet time finishing a task; he could let all his phone calls drift into his voicemail and call back when he felt like it; and he'd draw a salary, so his relative lack of output would be less of an issue. Heck, if he can pass the (illegal) political litmus test recently in vogue, he might be an ideal candidate for the Department of Justice.

At this point the case is in the hands of U.S. District Judge David Faber, who has temporarily denied Kelly's demand for enhanced accommodation. Judge Faber will soon make a final disposition on the lawsuit. When Faber finishes this case, he might be ready to tackle reasonable accommodation for surgeons. I'm really looking forward to that one.

Follow up Note (8/9/08)
In re-reading my suggestion that Kelly become a government lawyer, I unintentionally crossed the line between well-intentioned satire and bad taste. Most government lawyers in my personal experience are extremely knowledgeable, quick to answer the phones and highly responsive to public inquiry. What I meant to say was that Kelly might find an appropriate place among the highly partisan, marginally skilled ideologues hired by the Department of Justice in the last five or so years.

As should be evident by now, I try to hold all professions accountable, including my own (consulting). So in the spirit of fair play, here are some tasteless jokes about consultants. Enjoy.

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.

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.

Culture Problem
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.

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.

Corrupt Medicine?
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.

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.

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.

Formidable Support
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.

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 ground by a low life named James Proulx, hitting his head on the pavement. His injuries were so severe, doctors discussed organ donation with his family. He was comatose, hooked up to a respirator, his skull shattered.

But he held on. Eventually, he was moved to Spaulding Rehabilitation Center in Boston, where doctors dismissed any notion that he would be able to return to work. He was paralyzed on his right side and suffered from double vision. But by the fall of last year, after doctors reattached a piece of his skull, Doyle noticed that his fine motor skills started to return. The double vision disappeared and he regained feeling and mobility in his right side.

Against All Odds
By this past spring, Doyle said he wanted to return to his job as a trooper: not a modified duty, desk job in the back of some precinct, but full duty. His supervisors, who supported him from day one, put him through rigorous retraining in firearms, pursuit driving, use of force techniques and through "shoot - don't shoot" scenarios to test his reaction times. He endured the standard three week course of 13 hour days in the police academy. He passed every test with flying colors, even earning a master pin for firearms.

So against all odds, with no small element of luck, Brendan Doyle is back on the job. From the beginning of his ordeal, this was his one goal. By all rights he should have become permanently and totally disabled, drawing 100 percent of his trooper pay tax free for the rest of his life. No one would have questioned it. But Doyle refused to bow to this fate. In doing so, he exemplifies what the human spirit can accomplish despite ridiculous odds.

I would like to see a picture of Doyle, with his humble smile and crescent moon-shaped scar, posted over the desk of every ER and occupational doctor, every nurse case manager and claims adjuster - and every employer - to remind us that the goal of treatment for injured workers is return to full duty. Forget the odds. Look beyond the trauma of the incident itself and the dire prognosis. Anyone seeing Doyle in the days and weeks following his injury would have scoffed at the notion that he would ever be in uniform again. But that is exactly where he is today.

I hope never to meet Trooper Brendan Doyle: to do so would probably mean I was involved in an accident or going a little too fast on I-95 outside of Providence. Nevertheless, I will try to keep his image in mind. For all of us who work in risk management, cost control and safety, who focus on doing the right thing for injured workers, Trooper Doyle embodies the spirit and goal of our work. He is the Insider's Return-to-Work Person of the Year.

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 to the municipality to prove that the illness is not work related. Nevada has taken it a step further: in the police department, any heart attack is considered work related, with no consideration of personal habits (smoking, overweight, high fat diet) or family history. That is a very generous - and potentially expensive - public policy.

As with any medical issues, you have to examine the evidence. Where it can be demonstrated that specific occupational exposures lead to specific illnesses, a basis for presumption is established. That is a fundamental of evidence based medicine. But as a matter of public policy, it is extremely hazardous to build presumption into the comp statutes. There are many forms of cancer. There are many risk factors for heart disease. By establishing a presumption that virtually any illness related to these dreaded diseases is work related, state and local governments are exposed to an enormous - and open-ended - liability. To be sure, there is always a risk that a deserving firefighter might have to undergo lengthy litigation to prove his or her illness is work related. But that process - universal in the comp system - is the necessary price we pay for participating in comp's unique disability coverage. As much as I admire the public service contributions of police and fire personnel, I believe that they should operate under the the same rules that cover all employees: their illnesses are compensable if they are demonstrably work related. In most instances, this requires a case by case review.

Follow the Money
The issue here is not medical treatment: these illnesses, if determined to be unrelated to work, would be covered under conventional health insurance. (To be sure, it's cheaper for the claimant to be treated under the comp system, as there are never any co-pays or deductibles.) As is often the case with comp, the real issue is indemnity. For firefighters, that usually means wage replacement that is 100% of their usual pay, tax free. In other words, a firefighter on workers comp makes more than one on active duty. When you combine a presumption of compensability with an already generous indemnity benefit, you have created a bitter and expensive cocktail (with state and local taxpayers picking up the tab).

Virtually all municipalities operate under a "zero sum" budget, where increased expenditures in one area (expanded coverage for illnesses under comp) become a net subtraction in another (municipal services, public safety, schools, water supplies, etc.). It may seem politically expedient to speed compensability for some of our most valued local employees (police and fire), but governments do this at great risk to the bottom line, not to mention reducing all other valued municipal employees (city workers, teachers, public works) to second class citizens.

In a word, a presumption of compensibility is a slippery slope toward budget chaos. We have an obligation to protect our public protectors. But offering presumptive comp coverage for virtually any illness is an invitation to fiscal ruin.

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 HR team!

After a group of employees had a carefully structured opportunity to confront her bad behavior in the summer of 2000, Verga sought help from the Employee Assistance Program. The company doctor treated her, authorizing a brief medical leave and then cleared her for return to work. She sought treatment with her own physician, Dr. Ho (no comment), who authorized an indefinite medical leave in 2000. She has not worked since.

Verga filed a workers comp claim for psychological stress, claiming the disdainful actions of her peers caused her mental disability. Even conceding that her own actions may have contributed to this disdain, she argued that because workers comp is no fault, it didn't matter. She was entitled to compensation for work-related stress.

California's labor code (S3208.3,(B)(1) states that "In order to establish that a psychiatric injury is compensable, an employee shall demonstrate by a preponderance of the evidence that actual events of employment were predominant as to all causes combined of the psychiatric injury." At her initial hearing, the workers comp board ruled that the disdain expressed by her fellow employees was not an event of employment, but something brought on by Verga's own (consistently obnoxious) actions. They denied the claim. The Court of Appeals has now upheld the denial.

Shrink Wraps
The role of psychiatrists in this case is instructive. Dr. Perry Segal, a Qualified Medical Examiner (QME) offered the opinion that Verga suffered from "adjustment disorder with mixed anxiety and depressed mood, resulting from cumulative trauma caused by negative interactions with her co-workers and her supervisor." Dr. Perry based this rather dubious diagnosis solely on Verga's version of the events. A second QME, performed by Edward Duncan, PhD, diagnosed Verga with an adjustment disorder and mild depressive symtoms, but he did not find her psychiatrically disabled from work. Duncan observed that statements of co-workers and Verga's employment records reveal ongoing problems in her relations with co-workers and customers going back 20 years. Prior to working in HR, Verga had served as a customer service rep for United (now there's a great job for someone with a short fuse!).

So the court has determined that Verga's "harassment" by fellow workers was caused by her own harassment of fellow workers. Her disability is the cause - not the result - of workplace stress. With her low frustration level, Verga abused co-workers when they did not meet her expectations. Verga was the aggressor. She created the negative work atmosphere which she claimed (unsuccessfully) caused her psychological injuries. Her supervisors tried to counsel her that rudeness and inflexibility were counterproductive. She ignored their advice and continued to belittle her co-workers. Needless to add, Ms. "Gloom and Doom" has not been missed during her prolonged absence from work.

ADA Remedy?
One final note. It does seem clear that Verga has psychological issues. Can she sue United to get her old job back, claiming that they must make "reasonable accommodation" for her under the Americans with Disabilities Act? Does her anxiety and depression qualify as an ADA disability? I doubt it. It is not at all clear that her mental disability "signficantly limits" one or more major life activities. Then again, you might well view her inability to establish friendships and collegiality as a disability. I am inclined to. But I still would not encourage United to take Verga back. She has proven unwilling to make her own accommodations for others and as such would be a huge liability anywhere in the company. After all, being "nice" is really an essential job requirement, one well beyond Verga's reach. With all their current problems, United has no need for an intractable, inflexible and embittered worker.

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 play with his name) determined that baldness was not an impairment and thus was not covered by the DDA. "If baldness was to be regarded as an impairment then perhaps a physical feature such as a big nose, big ears or being smaller than average height might of themselves be regarded as an impairment..."

Policy makers in the UK are struggling with the same issues facing the courts in this country: when does an individual qualify as disabled? Where do you draw the line? (We recently blogged the US Congress's attempt to expand the ADA's definition of disability.)

The DDA, originally passed in 1995, has recently undergone a major revision. The revised law provides immediate protection to anyone diagnosed with multiple sclerosis, HIV and cancer. Where the ADA would cover these illnesses only if they limited "one or more major life activities," the DDA protection begins at the point of diagnosis. This is a very generous (and for employers, a potentially onerous) definition. The revised DDA also dropped a prior requirement that only mental illness which is "clinically well recognized" be covered. Thus employers confronting untreated stress or anxiety disorders may be subject to suits under the DDA. As difficult as it is to operate under the ADA, the DDA appears to offer even greater challenges.

The definition of "disability" is a moving target in all western countries. Employers who make facile assumptions about what may or may not be covered are vulnerable to prolonged litigation. For the moment, at least, there is a virtually universal assumption that baldness is not a disability. James Campbell was ruthlessly teased by his students. They may have aimed an occasional spitball at his shiny pate. Such actions definitely involved harassment. They should surely be universally condemned. But this harassment was not an act of discrimination. Campbell apparently was weak, but he was not disabled.

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 done a lot of the former and some of the latter. Now it's time to finish the job.

First, a bullet-point recap. In Parts One through Four we saw that:

• American per capita health care spending is two and a half times the average in the OECD and 25% higher than our closest competitor, Switzerland.
• American per capita health care spending on pharmaceuticals is double that of the average in the OECD.
• We perform more sophisticated testing and surgeries than any other country.
• Our physicians earn double the compensation of their OECD counterparts.
• Our hospital stays are 25% shorter and our doctor visits 42% fewer than other OECD citizens.
• Despite all the spending, we don't live longer and are no healthier than the average among OECD countries.
• There has been explosive growth in the incidence of Type 2 Diabetes, much of it caused by an epidemic of obesity, and 27% of the per capita increase in our spending on health care since 1987 is attributable to obesity.
• At nearly 31%, the percentage of obese adults in the US is the highest in the OECD and 25% higher than Mexico, the country that wins obesity's OECD silver medal, yet we been unable either to halt or reverse the growth of obesity in America.
• Thirty-one percent of our total health care expenditures go toward insurance administrative costs, far more than any other OECD country.

• Since 1996, worker' compensation medical treatment costs, representing only 3% - 4% of total US spending on health care, have been rising at twice the rate of those sharply and steadily rising group health costs.
• We spend significantly more to treat worker injuries than similar injuries in group health, principally because of over-utilization of medical services.
• Pharmaceutical costs, representing 18% of total incurred losses at the fifth service year, are a large chunk of the ice beneath the water line, the costs that are often hidden and unknowable (When have you ever seen prescription drugs itemized on a loss run?). If you are an employer, ask yourself these questions: Do you have any idea of the prescription drugs your injured workers are taking? Do you have any idea of the extent to which your injured workers are being prescribed narcotics, such as OxyContin, Actiq, Fentora, Duragesic, even Vicodin? If not, you need to have an immediate talk with your insurer and your Pharmacy Benefit Manager. It's that important.

At the end of this five-part series, here is a conclusion and a modest proposal, which to many will seem trite, even pedestrian, but 24 years working with more than 4,000 clients guarantees it works:

Conclusion: medical costs grow as indemnity costs grow, because injured workers stay out of work longer than is medically necessary.

The modest proposal: A caring, aggressive, systemic, performance-oriented and measured program that focuses on a) preventing injuries from occurring in the first place and b) if injuries do occur despite your best efforts, bringing injured employees back to work in some medically approved capacity of temporary modified duty as quickly as possible. This early return to work will keep injured workers connected to the workplace and the ingrained routine of getting up, getting dressed and going to work every day. Absent that, the injured worker will stay at home where he or she will create a new routine of staying out of work and making up his or her own, stay-at-home modified duty program. If I were injured and could not go to work because my employer had nothing for me to do, that’s what I would do, and so would you. And that does not have to happen.

It's a lot of work, but it's as simple as that.

I’ve enjoyed writing this series. I hope it’s given you something to think about.

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 those awarded seriously injured soldiers returning from the Iraq war.

The Telegraph cites Pvt. Jamie Cooper, who was just 18 when hit by mortar rounds in Basra in November of 2006. (He is the youngest British soldier to be injured in Iraq.) He suffered internal injuries, a shattered pelvis, his leg was damaged and he lost the use of a hand. Payment for his troubles? About 57,000 pounds.

Jamie's father, Phil, does not mince his words: "It is disgraceful. This faceless bureaucrat picks up a printer and gets 202,000 pounds and my son picks up two mortar blasts and gets 57,000. It says it all."

A spokesperson for MoD points out that Cooper received not just the lump sum award, but also a "guaranteed tax-free, 9,000 pound a year for life - 60 percent of his final salary." True enough, but the "salary" of a soldier is rather piddling when compared to jobs in the open market.

Two Different Worlds
It is ultimately futile to compare the world of ordinary work with war. Were the actuaries to calculate a workers comp rate for an infantryman in Iraq, the numbers would dwarf those for our most dangerous occupations - ironworkers, lumberjacks and fishermen. In the ordinary working world, steps can be taken to control risk. In war, risk is rampant and beyond control. Your goal is simply to survive the day.

In a way, it's like looking at the world through binoculars: the first time, you get a magnified image: the suffering of an individual really seems to matter. If you turn the glasses around, everything is suddenly diminished. War has a way of making the pain and suffering of individuals fade away to nothing.

When we read that an RAF typist who injured her thumb was awarded 484,000 pounds, or another civilian employee was awarded 217,000 pounds for chronic fatigue syndrome and depression, we shrug. That's just the disability system operating in its usual and customary fashion. But when you compare these generous benefits to those given to the shattered veterans returning from war, shrugging is insufficient. It is an outrage. It makes you shake your head with a combination of wonder and dismay, even as you stir in a bit of honey to sweeten your morning tea.

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 many veterans. Many have suffered profound and life-changing physical injuries; many also face less obvious wounds - Iraq and Afghanistan Veterans of America estimate that about one in three Iraq veterans will face a serious psychological injury, such as depression, anxiety, or PTSD:

These psychological injuries exact a severe toll on military families. Rates of marital stress, substance abuse, and suicide have all increased. Twenty percent of married troops in Iraq say they are planning a divorce. Tens of thousands of Iraq and Afghanistan veterans have been treated for drug or alcohol abuse. And the current Army suicide rate is the highest it has been in 26 years. One of the goals of any disability program is to help the injured party to recover and to return to their normal lives, including return to work. This is true whether the injury occurred in the workplace, at home, or on the battlefield. Work is not only vital for economic security, for most of us it is also a core part of our identity, an integral part of our lives. A good return to work program can be restorative on a financial, emotional, and psychological plane. Both in the short term and over the longer term, employers will play a vital role in helping veterans readjust to civilian life. This requires that employers have awareness of the many challenges that veterans face and the willingness to provide the resources to support a successful transition.

Enter the Workplace Warrior Think Tank, a coming together of The Disability Management Employer Coalition, several of the nation's premier insurers, employers, and military and veteran participants with the purpose of helping veterans to ease the transition from the war to the workplace. The group examined challenges and opportunities facing returning employees and identified employer-based resources and strategies. The end product is a useful guide for employers, Workplace Warriors: The Corporate Response to Deployment and Reintegration Highlighting Best Practices in Human Resources and Disability Management (PDF). The guide includes a list of best practice recommendations to help returning vets reintegrate in the workplace. These include such things as celebrating the employee's return to the workplace, recapping changes that occurred while he/she was gone, and training supervisors to be aware of certain red flags that might indicate a problem. The group also emphasizes that the availability of effective EAP services can be critical to successfully helping veterans to face the many psychological problems that are common in the aftermath of war service.

It's great to hear about the efforts of the think tank and their recommendations for employers - please help to distribute the guide and raise the issue because as the report notes, "Repercussions and delayed effects of the war experience will be felt in the workplace for decades to come." Hopefully, this will be the first step in many by leaders in our industry to dedicate resources and attention to this important issue.

For more information and resources:
The Corporate Response to Deployment and Reintegration - this is the full report from Workplace Warriors, available through DMEC.

Wounded Warriors is a blog that collects veterans coverage from the McClatchy Washington Bureau, McClatchy Newspapers, and other sources. It's a good source of news for items that affect returning vets and their families.

Resources for returning veterans and their families - from the Substance Abuse and Mental Health Administration.

Veterans and Military Health - from MedlinePlus

Iraq and Afghanistan Veterans of America - since 2004, the nation's first and largest group dedicated to the Troops and Veterans of the wars in Iraq and Afghanistan, and the civilian supporters of those Troops and Veterans.

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 to subscribers.)

Lees-Haley studied the Minnesota Multiphasic Personality Inventory (MMPI), a standard tool for determining personality characteristics. He isolated 43 questions that he believes, taken together, clearly separate the truly disabled from malingerers and frauds. Lees-Haley's brainchild, dubbed the "Fake Bad Scale" test, was developed in 1991 and is finding its way into courtrooms around the country. Lees-Haley is available to testify in person on behalf of insurance companies as an expert witness. He charges $3,500 to evaluate a claimant and $600 per hour for depositions and testimony. Worth every penny, I'm sure, if his testimony results in the denial of benefits to a claimant.

Testing the Test
Below you will find a sample of questions from the test, requiring a "True" or False" response. A "T" before the question indicates a "true" response is indicative of malingering. Likewise for "false."
F My sex life is satisfactory.
T I have nightmares every few nights.
F I have very few headaches.
F I have few or no pains.
T I have more trouble concentrating than others seem to have.
T I feel tired a good deal of the time.
F I am not feeling much pressure or stress these days.

You don't need a PhD in psychology to identify the ambiguity and unfairness in these questions, which are typical of the test as a whole. In the aftermath of an injury, someone might well feel stressed out, have difficulty concentrating, be tired much of the time and have frequent headaches. These responses do not necessarily indicate malingering. They can just as easily be valid indicators of post-traumatic response to injury. The "Fake Bad Scale" fails to account for anything that might have happened in the real world. Using this corrupt measure, every survivor of the 9/11 attacks would be deemed a "malingerer."

Fortunately, the validity of the test has come under fire. A number of courts have thrown it out. That's the good news. The bad news is that untold numbers of people who have answered these questions honestly have ended up being labeled (and libeled) as "malingerers." Shame on the attorneys who rely on this phony science, and shame on the insurance carriers who retain them. And double shame to the originators of the MMPI, who have formally given their stamp of approval to this inept tool. To be sure, we all know that there are malingerers out there: but the "Fake Bad Scale" is no help whatsoever in singling them out.

Revised March 10, 2008.

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 system.

The Texas workers' comp law treats pro athletes as a special class. Under Texas Labor Code §406.095(a), a pro athlete "employed under a contract for hire or a collective bargaining agreement who is entitled to benefits for medical care and weekly benefits that are equal to or greater than the benefits provided" by workers' comp must make an election between the two types of benefits. At first glance, it's a no-brainer. Henning's benefit package as a player dwarfs benefits under the comp system: he earned $1.4 million in salary and benefits in his final season with the Cowboys, including $225,000 under an "injury-protection clause," $38,921.98 from the Cowboys to cover his medical costs and $87,500 in severance pay.

Reversing Field
At first, the court system threw Hennings for a loss. The 10th Court's original July 23, 2007, opinion deemed Hennings' overall contractual package of salary and medical benefits during his pro football career to be higher than benefits available under workers' comp, thus rendering Hennings ineligible for such benefits under Texas law. But in its Jan. 30 opinion, the court reversed itself and upheld a jury finding that, in Hennings' case, workers' comp was a better deal for him because of its longer duration. After re-consideration, the court separated the indemnity benefit (where comp was insignificant) from the medical (where taken over a lifetime, comp might well exceed the deal offered by the Cowboys). In other words, Hennings's medical benefit of $38,921 might well prove less than the lifetime medical charges for treating his back problems. Heck, he could blow through that in a single surgery.

Based upon the Court's ruling, a Texas-size door has been opened for all professional athletes in the state to access the robust medical benefits of the workers comp system.

The decision may not help many retired pro athletes, because it may be too late for them to seek workers' compensation; the statute of limitations may have run on their potential claims. (Most states require that claims be filed within 2 years or less of the occurrence.) Going forward, I would not be surprised to see players routinely file comp claims immediately after injuries, knowing that they will not qualify for benefits in the short run, but protecting their interests once they quit the game.

Rate Setting Dilemma
If professional athletes are increasingly successful in their efforts to win workers comp benefits, insurance carriers and regulators will face an interesting dilemma: determining an actuarially defensible rate for coverage. Right now, the Scopes classification manual offers just two classes for professional athletes:

Class code 9178 Athletic Team or Park: Non-Contact sports. Applies to players, coaches, managers or umpires and includes all players on the salary list of the insured, whether regularly played or not. Non-contact sports include baseball and basketball.

Class code 9179 Athletic Team or Park: Contact Sports. Applies to players, coaches, managers or umpires...Contact sports include football, hockey and roller derbies.

As a point of reference, the current rate for class 9178 in Massachusetts is $23.11. Oddly enough, the rate for 9179 (contact sports) is slightly lower at $22.55. That is well below the rates for roofers and steel erectors.

NCCI might want to consider some serious revisions to the Scopes Manual. To begin with, separate classes are needed for coaches (relatively modest exposures) and players (huge exposures). They might even want to approach it in a manner similar to the construction industry, where the payroll is broken out by activity: field goal kickers, for example, are lower risks than lineman. Running backs are always at risk for knee injuries. And after the most recent SuperBowl, it appears that quarterbacks take their lives in their hands with every snap of the ball.

A Parallel Universe?
Professional athletes and workers comp are an odd mix. Where comp offers a combinatin of indemnity and medical benefits, for athletes the only issue is medical. With their enormous salaries, athletes will rarely have a need for indemnity benefits, which top out around $50,000 a year in even the more generous states. Medical benefits are a different matter entirely. When it comes to work-related injuries, comp provides lifetime coverage, with no co-pays, no deductibles and no time limits. Comp offers the best medical coverage of any kind, anywhere in the world. Just what a disabled athlete needs...

The permanent partial and permanent total exposures for football players are humongous: concussions, back injuries, blown out knees, torn rotator cuffs, torn biceps, nerve damage. Feed the injury data from pro football and pro baseball to an actuary and you'll generate a rate that exceeds the current top ticket professions of structural steel erectors and lumberjacks. The rate would soar well above $100 per one hundred dollars of payroll.

The optimum solution lies outside of the comp system. Workers comp indemnity is simply not crafted to protect the interests of (wildly overpaid) athletes. The players associations of the various professional sports need to sit down with management and craft a parallel universe: not the conventional workers comp system, but a combination of income protection and lifetime medical benefits that contemplate the real risks inherent in professional sports.

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 the ADA's original definition, a disability was something that limited "one or more major life activities" such as standing, walking and breathing. In the view of the U. S. Supreme Court, a person who can successfully use a mitigating device (hearing aid, corrective lenses, medication, etc.) is by definition no longer disabled. And because the person is not disabled, they are no longer protected by the ADA. Your basic "Catch 22."

By stripping away protection from at least some people who might be considered disabled, the Supreme Court appears to go against the original intent of the Act. So Congress wants to fix it. They have drafted the ADA Restoration Act, through which they intend to make the intent of the law so clear, even a Supreme Court Justice will understand it:

Sec 7. Rule of Construction
Broad Construction.-In order to ensure that this Act achieves its purpose of providing a comprehensive prohibition of discrimination on the basis of disability, the provisions of this Act shall be broadly construed to advance their remedial purpose.

In other words, when in doubt, assume a person is disabled and act accordingly.

Clarity or Confusion?
Under the Restoration Act, the definition of disability becomes much broader and all-encompassing. The "substantially limits" criterion has been dropped. Transient injuries or temporary adjustment problems appear to be covered. (The proposed bill could easily merge workers comp claims with the ADA, thereby creating a litigator's paradise.) The draft law includes impairments that are "episodic, in remission or latent." It includes "emotional illness" and "specific learning disabilities." The new definition is so broad, many of us would be eligible at one time or another.

The generous definition of disability could well have an unintended consequence: by expanding eligibility, the new law would lose its focus on the people who need protection the most - those who face persistent and profound obstacles in their effort to secure or maintain employment. Another consequence would harm employers, already burdened by the exacting procedural standards governing their behavior under the ADA. More inclusive eligibility would open the door to potentially frivolous claims.

Ironically, in the years since its implementation, the ADA may have had a negative impact on employment of the disabled: it appears that overall levels of employment for the disabled actually declined after ADA implementation in 1992. Employers avoided the problem with a "when in doubt, leave them out" approach. Rather than risk running afoul of the new law, many employers apparently turned their collective backs on all disabled applicants (and in doing so, violated the ADA!).

In the draft law's current form, "restoration" is a misnomer. The act would significantly expand the umbrella of protection to millions of people not currently covered. In solving one very real problem (a narrowing interpretation of eligibility), another has been created: blurred eligibility lines that are too inclusive for practical purposes. The reform legislation needs some reforming. Congress should keep its focus where it is needed most: on Americans with legitimate, long-term, life-altering disabilities, people whose access to productive work has been hindered by artificial barriers. The original ADA was a good beginning. The Restoration Act in its current form is a giant step in the wrong direction.

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 with West Virginia's long established "culture of disability."

About a year ago we blogged the transition from state administration to Brickstreet. One of the key elements in the transition involves moving about 46,000 existing claims from state claims adjusters to third party administrators (TPAs). That's a task that makes Hercules's cleaning of the Augean stables look easy! Sedgewick now handles about 39,000 of the claims, with American Mining and Wells Fargo picking up about 4,000 each. Try to imagine all those (mostly paper) files moving out of state offices, followed by the task of picking up the narrative and developing revised strategies for each and every claim.

The state's unfunded liability for these claims is about $3 billion - a big enough number for any state, let alone a small one. Over the years, the "culture of disability" resulted in one in seventy lost time claims turning into permanent and total disability (the next closest state comes in at a rate of one in 220).

It's not hard to imagine the pain and confusion inherent in transitioning the claims from the public to the private sector. TPAs will apply new and presumably much more stringent standards in determining ongoing eligibility. There is no way they will allow one in seventy claims to drift into permanent total status.

The Pain in Change
Which brings us to the heart of the matter: the very painful price exacted in any cultural transition. In West Virginia, disability payments had become a way of life, a way of supporting workers with no other means of support. In the state's perpetually depressed economy, indemnity for workplace injury paid the bills for thousands of families. This disability culture evolved over decades; it will not change in the Brickstreet blink of an eye. The three TPAs are sorting through 46,000 narratives of pain and loss. They are confronted with an embedded expectation that the benefits are an entitlement and should go on indefinitely. (One claim stems from an injury in 1929!)

The TPAs are trying to apply standard insurance criteria to long-established claims; they are breaking apart the old culture and paving the way for a new one. It will probably take 8 to 10 years to complete the process. Let's not minimize the trauma: the transition in West Virginia is comparable to the collapse of the auto industry - with one important difference, of course: in Detroit the old culture built cars; in West Virginia, the old culture built disability narratives. No amount of retooling can (or should) preserve that inherently unproductive way of life.

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 him in the precinct house on desk duty. During the year his application was under consideration, he tripped and fell on the way to his ortho specialist, injuring his knee to the point where he no longer could work at all.

The issue here is not Soto's eligibility for disability benefits. At age 40, he is collecting half his pay, taxable. Soto contends that because he was working at the time of his fall, he should be able to collect job-related accidential disability benefits, which are higher than ordinary disability: he claimed that his fall on the way to the doctor was a work-related accident, because it occurred while he was on light duty. His case reached the NY Supreme Court, where Justice Judith Gische upheld the pension board's rejection of the request. The justice ruled that the fall was due to morbid obesity and not to Soto's functioning as a cop. Had Soto prevailed, his benefits would have increased to 75 percent of his former pay and would not have been taxable. There was a lot of money on the table.

The unfortunate Mr. Soto, who now weighs in at 500+ pounds, has been the subject of ridicule in the media. He inspired one of David Letterman's Lists: Top Ten Signs a Police Officer is Too Fat. (The not-very-funny list can be found here.)

Essential Job Functions
The over-riding issue is one of functional capacity. Unlike firefighters, NY cops are not required to pass periodic physical exams. They are tested as job applicants, but once in, there are essentially in forever. Police administrators, like everyone else, operate in the shadow of the Americans with Disabilities Act. In addition, police unions severely constrain any actions taken against veteran cops. Too bad. When you take into account the public safety dimension, it's pretty clear that some objective physical (and mental) standards for cops are needed - at the time of hire and throughout their careers.

As for Paul Soto, once he was unable to perform his job duties, he should have been given an ultimatum: lose weight or lose your job. Every reasonable effort to help him lose weight should have been made. Unless you accept the argument that his weight gain was something totally beyond his control, he should have been held accountable for his conditioning. That would have been better for the NYPD and ultimately, better for Soto himself. The system that now pays him to do nothing has done a disservice to the taxpayers and to a once productive citizen.

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 working, in order to better support his school-aged children. At age 61 he was unable to continue, due to a deteriorating vertebra, arthritis, nerve damage, and Parkinson's disease. (His disability is apparently not directly related to the law enforcement work he carried out for 18 years.) He filed for the special disability retirement benefits available to public employees engaged in "high hazard" work. Kentucky Retirement Systems denied his request for disability retirement, granting him instead the retirement benefits available to workers engaged in ordinary work. Under the state system, only workers under 55 are eligible for disability retirement benefits.

Lickteig's Attorneys brought his case to the EEOC, arguing that the Kentucky plan violates the Age Discrimination in Employment Act (ADEA) of 1967. Under the Kentucky approach, the benefits for employees who become disabled would vary by age: two employees, each with the same total time of service but of different ages, would receive different benefits. A worker below the age of 55 would always receive benefits at least equal to and in most cases greater than those granted to workers over 55.

The District Court and a panel of the Sixth Circuit at first concluded that the Kentucky plan did not violate the ADEA. While the approach took age into account to determine benefits, it did not attach any stigma to age itself. The Sixth Circuit reheard the case en banc and reversed, holding that the simple act of treating younger disabled retirees better than older ones was sufficient to make out a prima facie ADEA violation. (Four of 12 judges dissented.)

At this point, Kentucky has been ordered to revisit the calculation of Lickteig's benefits and to remove the traces of age discrimination from its retirement system. Kentucky has appealed, asserting that the EEOC and Court rulings violate state sovereignty. Now the case moves to the U.S. Supreme Court, which will sort out the territorial and age issues. (The EEOC brief can be found here.) As with every issue reaching this particular court, it will be fascinating to see how they rule.

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 better experience for disabled persons in various ways:

• Better mobility - affording the user access to uneven terrain and non-paved surfaces, as well as the ability to maneuver curbs and stairs
• Smaller footprint - reducing the size of wheelchairs to make them easier to navigate through normal doors and and fit better in public spaces
• Better balance - improving stability and allowing users to be more agile in navigating turns
• Better ergonomics - allowing a user to switch heights to experience the world at eye level, or to lower seat height to fit under standard tables and desks

One of the most exciting developments is the iBOT Mobility System based on the same technology as the Segway. Its development came about as a partnership between Dean Kamen's research firm and Johnson and Johnson's Independence Technology division. It is a four-wheeled chair, but it can convert to and operate on two-wheels. We've seen this chair being demonstrated at industry trade shows and an immediate sense of empowerment is conveyed when a user switches from normal use to two-wheeled eye-level use - it's quite remarkable. The iBOT can also maneuver curbs and stairs. Sensors and gyroscopes give the chair stability and balance. If you haven't see these in operation, you might enjoy some of the videos showing the iBOT in operation.

Medgadget (which, incidentally is a very cool weblog to visit every now and again for the latest in medical technology) recently reported on the NOA wheelchair from Tekniker-Ik4, which features " ...additional functions which go beyond the mere transport of users and aimed at facilitating the activities of their daily lives." One of the goals was to design a chair that would function as a single purpose chair since many users have two chairs designed to meet the differing needs of internal and external use. The design also allows expanded vertical positioning, giving the user the ability to reach high or low objects, to converse at various heights, and to facilitate transfers at different heights.

There is even hope on the horizon that may revolutionize life for some of the profoundly disabled who have been largely immobile. Wired reports on the development of a wheelchair that reads your mind, a thought-controlled robotic wheelchair for disabled patients who suffer from disease or injury that leave them unable to move. This initiative is being developed in Spain and the first working prototype is expected in 2008 or early 2009. Here's more information on how thought-controlled wheelchairs work.

With the number of disabled veterans returning from war, there is, unfortunately, a growing market for assistive technologies so we can expect to see advances in wheelchairs, prosthetics, and other device designed to help the disabled lead a more functional life.

The Job Accommodation Network has an accommodation and compliance guide for employers for Employees Who Use Wheelchairs (PDF), as well as an accomodation process flow chart (PDF). Also, the The Wheelchair User's Work Environment has some practical tips for improving wheelchair access at work.

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 story behind the story is also interesting. The voiceovers for each of the animated characters in the spots are actual disabled persons. Flash the Sausage Dog is a man named Alex who has been disabled for 25 years since an on-the-job fall that damaged his spine. You can get a fascinating behind-the-scenes glimpse (part 2) of the making of these spots and learn more about the participants.

In workers comp, we spend a lot of time trying to prevent disability. We also focus a lot of effort on recovery and return to work programs, with a focus on "ability" rather than "disability." It wasn't always this way. Years ago, most employers refused to take someone back to work until they were fully recovered - even when the person was willing and could do most of the job without any problems. Early return to work was a difficult concept to sell to many employers, who were often reluctant to make temporary accommodations to ease a person back to work. Yet without an active recovery, depression and disability syndrome can often occur. For most people, income, identity and feelings of self-worth are tied to work and productivity. Today, most employers understand that helping injured workers get back to their normal lives, including work, is an important part of recovery. This is true whether an injury or illness occurs on the job or off.

To ensure success for a stay-at-work or return-to-work program, it can be helpful to get buy in from all employees. This is often best done by explaining the organization's philosophy and policies in an orientation program or as part of other human resource communications rather than as a reactive measure when the need arises. Co-workers need to understand the importance of their support and the role they play in helping recovering and disabled colleagues in the workplace. The Creature Discomfort campaign might be useful tools to open talks or discussions about attitudes and practices related to disability.

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 2003 she was 73 years old. She bent over to pick up some travel brochures that fell off a shelf and injured her back. She suffered a compound fracture at T12 on her spinal column and was totally disabled from work. The medical examiner concluded that Vaira's age and preexisting osteoporosis contributed to her disability. He apportioned 40 percent of the disability to the preexisting conditions and 60 percent to the industrial injury. Vaira was awarded $51,152 in permanent disability benefits.

There have been three appeals, along with three reconsiderations. Vaira contends that the comp board erred in apportioning part of her disability to her age and her osteoporosis, thereby reducing the amount of the final award.

Permanent Disability and Apportionment
First, the appeals court defines permanent disability: "...the irreversible residual of an injury." The court goes on to state that "a permanent disability is one which causes impairment of earning capacity, impairment of the normal use of a member, or a competitive handicap in the open labor market." In other words, permanent disability payments compensate workers for two distinct losses: the physical loss and the loss of earning capacity.

The long-overdue comp reforms contained in CA Senate Bill No. 899 (2003) redefined apportionment as follows:

A physician shall make an apportionment determination by finding what approximate percentage of the permanent disability was caused by the direct result of injury arising out of and occurring in the course of employment and what approximate percentage...was caused by other factors both before and subsequent to the industrial injury.

Let's paraphrase this: the new approach to apportionment is to look at the current disability and parcel out its causative sources - nonindustrial, prior industrial, current industrial - and isolate the amount directly caused by the current disabling injury.

Vaira claimed that age and osteoporosis were unrelated to the disability caused by her work-related injury. The fact that age and osteoporosis made her more susceptible to a spinal injury is irrelavent. Employers must accept people "as they are." Apportionment is appropriate only if these conditions contributed directly to the disabling injury - which Vaira says they did not.

Here is what the medical examiner had to say:

It was my opinion that, you know, her age predisposed her to the injury, the presence of osteoporosis, and possibly other factors of which, you know, in the physical examination may have shown up.

The court zooms in on this statement. To the extent that the examiner based his apportionment of 40 percent of disability on Vaira's age, he violated the statute prohibiting age discrimination. You cannot reduce benefits simply because Vaira is older (a lot older) than other workers doing similar work.

Back to Square One
Ultimately, the appeals court could not determine how much of the apportionment was based upon age. If osteoporosis becomes more acute with age (it surely does), and if this deteriorating condition contributes directly to the disability, then some degree of apportionment is appropriate. But the medical examiner failed to explain how he came up with his numbers. As a result, the appeals court remands the case back to the comp bureau for further consideration.

I can only wonder how the medical examiner is going to tackle his new task. How do you assign a specific percentage to such open-ended factors as age and preexisting conditions? Doctors are expected to come up with a precise number, but they are only making educated guesses. Their medical training does not prepare them for this work. This is not about healing, it's about indemnity benefits.

Ironically, as American workers continue in the workforce well beyond the age of 65, this type of assessment is going to become increasingly important. Lois Vaira does not think of herself as a pioneer and pace-setter for the comp system, but she is. Her struggle to secure benefits for her retirement will be re-enacted in courtrooms across the country.

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 businesses and self-insured employers which cover healthcare costs directly were entirely exempt. Not exactly my understanding of the word "parity."

Full Parity for Mental Illnesses expands the Mental Health Parity Act of 1996 (MHPA) to prohibit a group health plan from imposing treatment limitations or financial requirements on the coverage of mental health benefits unless comparable limitations are imposed on medical and surgical benefits.

Here is a summary of the pending bill prepared by the National Alliance for the Mentally Ill:
[The proposed legislation] provides full parity for all categories of mental disorders, including schizophrenia, bipolar disorder, major depression, obsessive-compulsive disorder, and severe anxiety disorders. Coverage is also contingent on the mental illness being included in an authorized treatment plan, the treatment plan is in accordance with standard protocols and the treatment plan meets medical necessity determination criteria.
Defines "treatment limitations" as limits on the frequency of treatment, the number of visits, the number of covered hospital days, or other limits on the scope and duration of treatment and defines "financial requirements" to include deductibles, coinsurance, co-payments, and catastrophic maximums.
Eliminates the September30, 2001 sunset provision in the MHPA. Like the MHPA, the bill does not require plans to provide coverage for benefits relating to alcohol and drug abuse. There is a small business exemption for companies with 25 or fewer employees.

No Parity in Comp
Parity is an important concept, but one that simply does not exist in the workers comp system. Comp carriers habitually reject any claims for benefits based upon work-related mental disability (post traumatic stress syndrome, stress in general, depression, etc.). The insurer strategy is usually "Deny, Deny, Deny" until a judge orders otherwise.

There are a number of reasons for this virtually universal aversion to accepting mental disability claims:
: The standards for eligibility in most states are very high: work must be the predominant cause of the disability. Most of us have plenty of stress in our lives away from work.
NOTE: Long gone are the days when in order for a claim to be compensable under comp, California required a mere 10 percent of the stress to be work related!
: Comp benefits tend to be very open ended. Once the carrier accepts a (mental health-based) claim, they are likely to own it forever. As a result, they usually start by rejecting the claim.
: Unlike physical injuries, where objective criteria for treatment and recovery are often (but not always) straight-forward, the end-point for a mental disability can be very elusive.
: managed care can limit treatment for open-ended physical problems (requiring, for example, limited physical therapy, chiropractic visits, etc). Similar limits on mental health treatment (up to and including hospitalization) are more difficult - but not necessarily impossible - to impose.

It's unfortunate that comp turns its back on the mental aspects of injury. Over the years we have seen many claims where a little counseling after the injury could significantly speed recovery. Well-structured groups could provide support to workers recovering from injuries at a very modest cost. As a culture, we have no problem treating physical disabilities, but when it comes to issues of mental health, we balk. Ironically, as often as not the mental barriers to recovery trump the physical. Out-of-work employees often succomb to depression - and once that happens, full recovery and return to productive employment are much less likely to occur.

Ultimately, it's a matter of who pays, how much and when. The enormous cost of losing a productive worker is seldom factored into the equation. While Congress is about to force the parity issue on employers and insurers for conventional health coverage, no such pressure is pending - or is even foreseeable - for the workers comp system.

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 releases permitting the company to access their medical records. While we can sympathize with the company's desire to ensure that employees are fit for work, this policy goes way beyond any such concerns. Apparently, the company required employees to sign this release, even if they only missed a day or two. If employees refused to sign, they were terminated.

"The ADA prohibits employers from making inquiries as to whether an employee is an individual with a disability unless the inquiry is shown to be job-related and consistent with business necessity," the EEOC stated in the complaint.

The application of the ADA in this situation is a bit of a stretch. Perhaps the EEOC could not find any statute that really fit the circumstances. (HIPAA does not quite fit, either.) Delphi is not discriminating against the disabled - they are inappropriately perusing medical records, under the dubious reasoning that a short absence from work inherently involves high risk in returning to work.

The Need to Communicate
There are a number of circumstances following sick leave where an employer might need to talk to the employee's doctor. For example, an employee might be prescribed a medication that impacts alertness and the ability to operate machinery. Or an employee with a non-work related injury might not be able to perform his or her regular job safely without some accommodation. Delphi's mistake - and it's a big one - is to require every employee taking sick leave for any reason to sign a medical release. This is not job and employee specific: it's the kind of fishing expedition that confidentiality requirements explicitly prohibit.

Employers can and should secure an informed "release for full duty" from the treating physician when the need arises. When the circumstances require it, employers should communicate with doctors to ensure that the employee and co-workers are safe. Employers can and should require employees to disclose any medical conditions or prescriptions that directly impact the ability to perform the work safely (so that reasonable accommodations can be provided). But that is a long way from assuming that any and every absence is cause for examining medical records. That's not business necessity; it's an invasion of privacy. Whether filed under HIPAA, the ADA or some other statute, it's one business practice that needs to stop immediately. If Delphi has any business savvy, they already will have taken steps to end this blatantly inappopropriate practice.

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 the EEOC claiming that the NFL has discriminated against him, based upon a disability.

Thurman claims that the league's actions prove that he is either an alcoholic or the league perceives him to be one - either way, he might be protected by the ADA. However, Thurman has some formidable obstacles to overcome to win his case. As a professional football player, he operates under the rules of the NFL and its collective bargaining agreement. If you read the league's substance abuse policy (over 20 pages long), you will see oh-so-carefully crafted wording governing drug and alcohol testing, first strike sanctions, second strike sanctions, complete with rules for determining how much of the signing bonus has to be returned after violations. The league appears to have followed its own procedures to the letter in suspending Thurman.

Under the ADA, active drinking is not protected. The ADA's own guidance for employers states:

While people with alcoholism may be individuals with disabilities, the ADA still allows employers to hold them to the same performance and conduct standards as all other employees, including rules prohibiting drinking on the job.

The NFL's collective bargaining agreement gives the commissioner considerable leeway in determining punishment. Thurman's case is presumably based on the fact that he is no longer drinking. He has probably completed some kind of treatment program, and thus might possibly qualify under the ADA definition of an individual with a disability: assuming, of course, that he is an alcoholic or the league believes him to be one (this is not at all clear) and assuming he is now under the ADA's protection. That's a lot of assuming. Somehow, it's hard to imagine a 235 pound man who can bench-press over 400 pounds and who can shed the block of a 300 pound behemoth, and who presumably shows up sober for practice and for game day is, well, an individual with a disability, who cannnot perform "one or more major life activities" such as standing, breathing, walking, etc.

Even if Thurman can meet the ADA definition, he is still a long way from strapping on the pads. He would have to prove that the collective bargaining agreement itself discriminates against "disabled " NFLers who are able to play (an oxymoron if there ever was one!). Many employers simply terminate individuals who violate substance abuse policies; such terminations do not violate the ADA, even if the individual is an alcoholic. Thurman certainly violated "company" policy, twice. He was suspended according to the league's rules. He now claims his suspension must end because he has "recovered." I don't think so. His suspension is simply policy, bargained by his union and enforced equally on all players, whether technically "disabled" or not. The EEOC is unlikely to invalidate the players's agreement (unless, of course, the judge is a Cincinnati Bengals fan).

I'm not without sympathy for Thurman. His mom died in an auto accident in 1993. His dad died in 2003 of liver and kidney failure (substance abuse involved?). He grew up in rural Georgia in his paternal grandmother's household with 17 other people. He has had a tough life, which in turn has made him a very tough man. He is surely disadvantaged, but that does not mean he is disabled.

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 DNA Technology May Curb Bogus Disability Claims and DNA test hope over damages claims. According to the Workforce article:

Developed by the Cytokine Institute, a research and consulting firm affiliated with the University of Illinois College of Medicine at Chicago, the technology uses DNA to determine a link between exposure to a toxin and a serious illness. It does so by identifying a toxin’s unique DNA signature on a person’s affected cells.

The technology, launched in June, has already been used in two dozen civil lawsuits between workers and insurance companies to verify the connection between exposure to toxins and a serious illness, says CEO Bruce Gillis, a doctor specializing in medical toxicology.

“It will get rid of all the nuisance and frivolous lawsuits once and for all,” Gillis says.

Exercise caution when jumping in the gene pool
Before you get too excited, you might check in with your lawyers, many of whom are likely to advise caution due to potential problems with privacy and discrimination issues. While there are no federal prohibitions against genetic testing, at least 30 states have laws that may say otherwise. HR Hero sheds light on the status of federal legislation putting limits on genetic testing in Lifeguard on duty: Congress patrols the gene pool, excerpted from Arizona Employment Law Letter. While many of the legal prohibitions deal with matters related to hiring discrimination and insurance denial rather than work injuries, attorneys advise a conservative approach in matters dealing with employees' genetic information.

Genetic testing is already a hot button employment issue. Its application to workers' compensation and other disability matters is an issue that bears watching. For a handy reference guide, the National Conference of State Legislatures offers a chart on State Genetics Employment Laws.

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 serious health conditions of the employee or an immediate family member. Employers essentially had to hold the job open for three months and continue to pay the employer portion of health insurance. If employees were absent for more than three months, the employer could move ahead with termination (provided, of course, they followed their own personnel procedures).

The U.S. Department of Labor recently issued a detailed analysis of FMLA (the executive summary can be found here). The Department finds that, in general, the law is working as it was designed to work. As with any human attempt to engineer the working world, there have been unintended consequences and quite a bit of ambiguity. Indeed, in this detailed report, DOL seems to be establishing an agenda for future legislative and regulatory adjustments.

No Retroactive Notice
One of the most controversial aspects of the law was the requirement that employers explicitly designate exactly when an employee was using the alloted three months of annual FMLA eligibility. The regulations stipulated that the designation could not be retroactive. In our workers compensation consulting, we frequently found that employers had failed to designate time lost due to workplace injury as "FMLA Leave." Even if an employee had been out for three or four months, failure to make a designation at the time of the injury meant that three additional months of eligibility had to be tacked onto the time already lost. This was a painful lesson in reading the fine print in federal regulations.

This onerous regulation made it all the way to the U.S. Supreme Court, where it was struck down (Ragsdale v. Wolverine). Ragsdale had been out of work due to cancer for 30 weeks. Because her (generous and accommodating) employer had failed to designate her 30 week leave as FMLA eligible, she sought an additional three months protection. The Supremes decided otherwise. "We hold that the regulation is contrary to the Act and beyond the Secretary of Labor’s authority."

Fine Tuning or Retooling?
DOL has zeroed in on seven areas of FMLA ambiguity. It's a compelling list:
- How serious is "serious"? (Which medical conditions reach the level of "serious" and which do not?)
- what does "intermittant" leave mean and how long should it go on? (Employers are required to track leave intervals as small as one hour. This can be extremely disruptive of scheduling; for example, an employee may request several hours off, several times a week for a doctor's appointment. This absence wreaks havoc in production lines and in time sensitive industries such as transportation.)
- What are the rules surrounding unforeseeable leave? (Employees must provide prior notice to the employer of any "foreseeable" need for leave. Sometimes the employer receives no notice at all. Where does "foreseeable" end and "unforeseeable" begin?)
- How much information can an employer require before approving leave? (It's hard to determine if a condition is "serious" if the employer's questions violate the confidentiality requirements of HIPAA.)
- What are an employee's responsibilities under FMLA?
- What workplace rules may an employer actually enforce?
- How does FMLA interact with the ADA?

Interesting questions, for sure. Given Washington's hyper-political atmosphere, it will be fascinating to see how hard DOL pushes for legislative adjustments to the original act - especially with a Democratic controlled Congress. As the administration seeks to help employers by softening some of FMLA's hard edges, there will be a countervailing pressure from the left to make the act even edgier: there is talk of dropping the threshold of covered employers from 50 employees down to 25 and requiring that employees be paid while on eligible leave. In case you haven't noticed, we live in interesting times.

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 adjustments in the current system are undoubtedly needed, but the issues are not so big that the solution is doing away with the entire system. Do you really want to go back to the days of the fellow servant rule, contributory negligence and the assumption of risk - the potent defenses that resulted in an 80 percent win rate for employers? I don't think so!

While criticizing the payouts for permanent partial injuries, the plaintiff attorneys point to unusually high profits for comp insurers. These profits are the inevitable result of the delay between implementing reforms and adjusting the premiums. They are also the result of long overdue reforms that have significantly reduced losses in the state's humongous comp system. Eventually, the bottom is going to fall out of the currently inflated premiums. Meanwhile, it's a great time to write comp insurance in the California (see our prior blog here). And perhaps not such a great time to be a member of the plaintiff bar.

Addition by Subtraction
The state Supreme Court recently issued a ruling on a number of related cases involving the apportionment of permanency benefits. The court addressed this issue: when an employee who received a prior permanency rating and benefits for a work-related injury is subsequently re-injured, how do you determine the benefits?

Let's take a specific case - emotionally charged, to say the least - involving Ken Welcher's amputation. In 1990 Welcher was pulled into a conveyer belt, injuring his knee. He was awarded a 62.5 percent disability rating. Under CA law, he received a cash payment of four weeks of benefits for every point of disability: you multiply 4 times 62.5, plug in the wage, and you arrive at a settlement number.

Welcher eventually returned to work as a laborer. He suffered a work-related injury to the same right knee. This time the damaged leg had to be amputated. Under the state schedule, an amputation is calculated as a 71 percent permanent disability.

So how should Welcher be paid? Should you treat the injury as something new, by using the full 71 percent factor? Or should you subtract the original payment (62.5 percent) from the 71 percent, resulting in a new payment of about 8 percent? The court, citing precedent under the pre-2004 reforms, opted for the subtraction method. In terms of dollars, Welcher receives only $3,360 for his amputated leg. Yes, it sounds like chump change for an amputation, but the payment has to be viewed in the context of his substantial prior benefit.

The court cited a compelling argument for using the subtraction approach: if the most recent employer becomes liable for the full disability rating, employers would be very reluctant to hire anyone with a handicap. In effect, the court has limited the exposure of the most recent employer to the increment in disability. No double dipping. No multiple big-cash pay outs. (And no repeat pay days for the plaintiff attorneys.)

So the formula becomes a kind of addition by subtraction: by limiting the exposure of the current employer, the court opens the door to employment for thousands of workers who might otherwise be rejected. The dollar numbers of Welcher's most recent settlement do seem trivial compared to his suffering, but the reduced amount may ultimately serve the greater good. Ironically, some future employer might look at the disabled Welcher not as unemployable, but as a worker carrying a 71 percent warranty.

Workers comp isn't perfect, it may not be completely fair, but on the whole there is no better system for balancing the interests of employers and injured workers. Comp may always be in need of reform, but there is no reason at all to abolish it.

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 school, clobbered her with a board and continued to hit her as she fled up the street. He finally left her lying on the ground, bleeding, and drove off in her car.

Muszynski filed a workers comp claim, which came before Judge Arthur Cooper. As Peter Simon writes in the Buffalo News, the judge ruled against Musznyski. Judge Cooper determined the following:
- "The claimant parked in a public street in an area over which the employer had no control."
- "The claimant was going to work when the assault occurred and this trip is considered commuting and not considered part of the employment."
- The attack was not work-related because there is no evidence that Johnson assaulted her because she is a teacher.

While there is often a lot of ambiguity when "public" thoroughfares are involved in determining compensability, I think the judge got most of this decision wrong. If Muszynski had been assaulted in the school's small parking lot, she would have had a compensable claim. She would have been "at work." The judge fails to note that the parking lot was not an option for the teacher - the lot was already filled. So it is no great stretch to assume that the parameters of coverage extend beyond the inaccessible lot, down the public street to the spot where Muszynski actually parked. I would argue that she was "at work" as soon as she stopped the engine of her car.

The judge is correct, however, in stating that the attack was not related to her work as a teacher. Johnson was a student and Muszynski was a teacher, but the assault was not based upon these specific roles. Johnson acted as a thug, not as a student, and Muszynski was a random victim, not someone functioning as a teacher. As a result, she is unlikely to have access to the provision in the Buffalo teachers's contract that makes a teacher injured in a "school-related" assault eligible for full pay for up to five years, as long as the teacher is medically unable to work.

Returning to the Classroom
I suspect that Muszynski may prevail on appeal. The judge's narrow reading of commuting is certainly subject to question. But the bottom line here is getting a dedicated teacher back into the classroom. Muszynski is currently at home, burning up her sick leave. She says she is still afraid. "I'm a little nervous and apprehensive. You're just so concerned that something else will happen. I'm always going to be looking over my shoulder."

Physically, Muszynski appears ready to return to work. Here's a suggestion that won't cost the school administration a dime, yet will help speed Muszynski's return to to the classroom. Give her an assigned space in the little parking lot attached to the school. The union would probably find this small accommodation acceptable. And it would take away at least some of the anxiety in coming back to work.

Right now the situation is not doing anyone any good: Muszynski cannot teach and the schools are down one teacher. Instead of getting lost in the fog of compensability, let's focus on the essentials and get Muszynski back to work.

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 how you "stop the run." The result? All too often what football practitioners call "dings" and what the rest of us call concussions.

Ted Johnson has three superbowl rings, a broken marriage, a life in tatters and, it appears, a broken brain. At age 34, he has incipient Alzheimers. His persistent depression has led him to abuse medications. The brain damage he suffered in football appears to be permanent, placing him on an inexorable downward path (see our recent blog on permanent brain damage and depression among football players here).

Johnson thinks he knows exactly when the brain damage occurred. In 2002, he suffered a concussion in a game. In middle of the following week, he was given a "no contact" jersey for practice, which legendary coach Bill Belichick converted for unknown reasons to "full contact." In a subsequent drill, Johnson suffered another concussion. He eventually returned to full action, again, suffering countless "dings" over the course of three more seasons in the NFL. We may never know whether the two successive incidents were the cause of his current problems, but there is little question that he has suffered permanent brain damage.

All of which brings us to the issue of sports medicine and the concept of returning to work as quickly as possible.

Modified Duty in the Working World
Workers comp practitioners understand that injured workers recover quicker if they are able to return to the workplace and perform some or all of their pre-injury duties. Treating doctors determine what the employee can and cannot do. Employers match the restrictions with available work. For some employees with extensive restrictions, that might mean performing job functions totally unrelated to the original job. Any work can be performed, as long as it is valuable to the employer and within the capacities of the recovering employee. The important part of modified duty is getting dressed and going to work: the worker feels productive and feels like part of the team.

The whole system falls apart if two conditions are not met: the doctor must accurately specify the restrictions necessitated by the injury, along with appropriate time frames; and the employer must make sure that the employee follows those restrictions carefully, never exceeding the doctor's limits. If any ambiguity or doubt arises, the employer communicates with the doctor to clarify which work activities are acceptable and which are not.

Modified Duty in the NFL?
Now let's return to the violent world of the NFL. There is a lot of money at stake. The pressure to win from week to week is intense. Indeed, winning is the only way the entire league measures performance. As Vince Lombardi said, "If winning isn't everything, why do they keep score?"

With all this focus on winning, it's not surprising that the league itself does not know how to handle concussions. There is no explicit protocal for treatment and no required period for "time away from work." (With high profile cases of brain damage such as Johnson's, maybe that will change.) At the same time, there really is no "light duty" available for injured players. Whenever a player takes the field, it's all full duty - full duty with a vengeance. The opposing side shows no mercy. If they can exploit the injury to their advantage, they will do it. Players whose injuries prevent them from returning to the playing field indefinitely are placed on "injured reserve." Once on this dreaded list, they are ineligible for the remainder of the season.

In Ted Johnson's case, the doctor apparently restricted his activity for a few days following the initial concussion. The trainer set him up for limited duty. For reasons that may never be clear, the coach ordered him to participate in full contact drills. Johnson did not object. As one teammate said of him, "Teddy was one of those guys who...played by the code. He played hurt. He played tough, he played physical and he never let his teammates down. He was there for you every play.’’ Despite all of his recent problems, despite his bitterness directed at his former coach, he talked about returning to the Patriots as an active player just a few months ago.

Ted Johnson has become a symbol of all that is ambiguous about professional football. His precipitous demise reminds us that sports medicine analogies have their limits. The pressures of our working world - the need to get valued employees back to "full duty" as quickly as possible - must always be tempered by the needs of the worker and the time frame of the healing process itself. Life, fortunately, is not a football game. We have many ways to measure success and accomplishment, only one of which involves the final score.

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 failure in the courts.

How would you handle these situations:

Case One: You have an equipment operator who has a history of epilepsy. One day he experiences an "aura" prior to work - a strong indication of a pending seizure. Instead of reporting the aura to his supervisor, he goes about his regular job. He has a seizure while driving a pick up truck. Fortunately, he is driving slowly. A passenger is able to gain control of the vehicle.
Do you fire him for cause? Do you fire him because he is a danger to himself and others?
Or do you try to accommodate his seizure disability?

Case Two: You hire a service technician to install telephone lines in residential homes. On his application, he denies any criminal history. Three months into the job, you discover that 15 years ago, he was acquitted of attempted murder by reason of insanity. He spent two and a half years in a mental hospital.
Do you terminate him immediately for misrepresenting his history and out of concern for your customers? Or should you allow him to continue working?

Seizure of the Day
Let's begin with the equipment operator suffering from epilepsy: Dark v. Curry County. After the incident, the county referred the employee to a neurologist, who determined that the uncontrolled epilepsy comprised an immediate threat of harm to the employee and others. So the county terminated him. He was fired not for his wilful misconduct (failing to report the aura), but for the future risk inherent in his disability.

Therein lies the rub. Because the reason for the termination was the disability itself, the county had an obligation to go through the ADA accommodation process:
Can the employee perform the essential functions of the job with reasonable accommodation?
If not, can he be accommodated by taking on other functions for which he is qualified (and which do not entail the operation of heavy equipment)?
If not, how about accommodating him with medical leave, so that he has time to resolve the medication issues that resulted in a seizure?

By failing to follow the ADA procedure, the county violated the employee's rights under the ADA. Even if they had terminated him solely for his wilful misconduct, it's likely that some accommodation process would have been required. Judge O'Scannlain points out that "conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for the termination." In other words, if you want to terminate someone because of their disability, you must first explore any and all "reasonable accommodations." The judge remanded the case back to a lower court for reconsideration.
NOTE: We discuss another ADA case involving a mental disability here.

A Troubled Past
Our other case comes from last year: Joshua Liam Josephs v. Pacific Bell. Josephs was hired in 1997. On his job application, he denied any criminal history. After three months on the job, he had the full support of his immediate supervisor, even after a criminal background check revealed the "not guilty by reason of insanity" plea and the subsequent hospitalization. His supervisor saw no reason for firing him. Nonetheless, higher-up managers at Pac Bell decided to terminate Josephs. They feared that given his history of a mental disability, he might assault one of their customers.

A jury found that the company had discriminated against Josephs and the appeals court upheld the verdict (not without a stinging dissent by one judge who focuses on the potential liability for the employer). With over a decade of relative stability between the troubled past and his Pac Bell employment, Josephs was well beyond the "immediate threat" standard of the ADA. He even submitted as evidence an autobiography written during his hospitalization, in which he confronted the demons of his illness and documented his efforts to move on. By ADA standards, he proved his case.

The Rock and the Hard Place
The ADA is a formidable piece of legislation designed to end discrimination for