Category: Workers Compensation
Risk Roundup – Emily Holbrook hosts Cavalcade of Risk #152 at Risk Management Monitor
Florida’s pill war – Timothy Martin and Arian-Campo Flores of the Wall St Journal take in the Florida landscape after the pill mill crackdown in New Front Opens in the Florida Pill War. They note that, “One former hot spot in Broward’s Oakland Park now has just two pain clinics, compared with 26 a few years ago, said Lt. Pisanti. “It changed almost overnight,” he said.”
However, the addicts haven’t gone away. The authors note that, ” … drug users and dealers adapt to the changing landscape and pill demand shifts to retail pharmacies and other establishments that appear to have been set up to skirt the new restrictions.” The article talks about the pressure pharmacists are facing and an increase in forged prescriptions.
Pill pushing docs, take note – My colleague recently posted about the prosecution of Ohio’s Dr. Paul Volkman, the single most prolific prescriber of Oxycodone and related opioids in the entire country. (Four life sentences) Individual states and the feds are starting to get tough about cracking down on this stuff. Joe Paduda talks about the prosecution of drug-dealing docs in CA, FL, CO and other states. Also see Roberto Ceniceros’ blog post on the race to stop opioid abuse.
“Odd Lot” Doctrine – Dave DePaolo talks about the psychology of disability and the inter-relatedness of disability and mental health as illustrated by a case of a injured Wyoming worker. After his claim wended its way through the courts, the worker was granted permanent total disability benefits under the “odd lot” doctrine.
Is obesity getting a bum rap? – Maggie Mahar challenges assumptions about obesity in her post Obesity: Fact vs. Fiction at Reforming Health blog. As with everything Maggie writes, it’s worth a read!
ADA and Veterans – The Equal Employment Opportunity Commission recently released a new Guide for Employers on Veterans and the Americans with Disabilities Act (ADA). EEOC says that, “The revised guides … make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.” Related:
Guide for Wounded Veterans, which answers questions disabled vets may have about the protections and rights when returning to their former job or looking for civilian jobs.
Market Pulse – Clair Wilkinson of Terms + Conditions posts about more evidence of a slowly turning market citing new reports and studies.
Quick takes
- Cameras at company sponsored events
- Cash-Based Performance Bonuses May Be Hazardous To Your Company’s Health
- Hair, Formaldehyde, and Industrial Hygiene
- The ergonomics of dual computer monitors
- Supervisors and Employees Identify Major Obstacles to Workplace Safety
- Wellness Focus for March: National Workplace Blindness Prevention
- Retaliation: Most Common Charge And Still the Stupidest
According to a recent NCCI Report on Violence (summary) (Full Report, PDF), “the majority of workplace assaults are committed by healthcare patients.” While there is good news in the fact that workplace homicides and assaults are on the decline, the NCCI report says this:
“The decline in the rate of workplace assaults has lagged the steady decline in the rate for all lost work-time injuries and illnesses. This reflects a notable change in the composition of the US workforce and, in particular, the ongoing increase in the share of healthcare workers, who experience remarkably high rates of injuries due to assaults by patients. This is especially common in nursing homes and other long-term care facilities. In fact, 61% of all workplace assaults are committed by healthcare patients. For assaults, coworkers make up just 7%, and someone other than a healthcare patient or coworker comprises 23%. The remainder is unspecified.”
In a post last year on healthcare workers and on-the-job violence, we talked about some of the perpetrators:
“While many assaults are by patients, friend and family members of patients also can commit the assaults. There are also rapists or muggers who are targeting healthcare settings or solitary workers; drug addicts and robbers, who are looking for medications; and domestic violence brought into the workplace. And it’s unclear why violence is on the rise. Many point to staff shortages. Others see the preponderance of alcohol, drugs, and ready access to weapons as contributing factors; others think that hospital administrators do too little in the area of prevention.”
In the list above, we overlooked a huge and growing segment: elderly patients, patients with Alzheimer’s, and people suffering from mental illness.
Prevention Tools
OSHA: Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers. See also the slide show overview version
The Emergency Nurses’ Association has issued a good Workplace Violence Toolkit.
We also found that WorkSafeBC has put together a series of excellent short video clips for various health care settings.
Image via WikipediaWifredo A. Ferrer, United States Attorney for the Southern District of Florida, John V. Gillies, Special Agent in Charge, Federal Bureau of Investigation (FBI), Miami Field Office, and Dan Anderson, Director, Department of Financial Services, Division of Insurance Fraud, announce yesterday’s sentencing of defendant Carl Dale Fuller, 52, of Wake Forest, North Carolina. U.S. District Court Judge Donald L. Graham, sitting in Ft. Pierce, Florida, sentenced Fuller to five years in prison, to be followed by three years of supervised release. In addition, Fuller was ordered to pay , 859,067 in mandatory restitution.
Fuller previously pled guilty to mail fraud in connection with a scheme to defraud National Employees Services (NES) of more than .8 million in what the company believed were insurance premiums for workers compensation insurance. NES, a Florida Corporation located in Avon Park, Florida, is a provider of cost-effective services for businesses that out-source employee insurance, including workers compensation insurance.
To execute his scheme, Fuller used the name David Walters in e-mails and phone calls and held himself out to NES as an insurance broker. Fuller falsely claimed that he would obtain workers compensation insurance policies for NES and the companies they represented. Instead, Fuller kept the payments and never provided insurance coverage.
From mid-2005 through September 2008, Fuller received more than million of NES premium payments, which he used to fund his extravagant lifestyle in Wake Forest and Pinehurst, North Carolina. NES sent the premiums to Fuller under the name of Southeast Services, a company created and controlled by Fuller. The checks were deposited into numerous accounts all controlled by Fuller.
Mr. Ferrer commended the investigative efforts of the FBI and the Department of Financial Services, Division of Insurance Fraud. This case is being prosecuted by Assistant U.S. Attorneys Adrienne Rabinowitz, Emalyn Webber and Ellen Cohen.
Our colleague Joe Paduda has posted the latest and greatest edition of Health Wonk Review at Managed Care Matters, and it’s a good one. If you haven’t checked it out lately, you should – there are some really high quality participants and regulars – including a few newcomers like Wing of Zock, a blog with a name that makes us feel like our blog name is pretty pedestrian.
Joe featured a link to our post about the criminal probe related to the Upper Big Branch Mine Disaster and he added an editorial update via link to a new story posted today: UBB disaster: Ex-mine security chief gets 3 years in prison.
You can see more on this conviction and the judge’s reasoning about sentencing over at our go-to blog on all mining-related matters – Ken Ward’s Coal Tattoo.
Image via Wikipedia
A large number of disabled workers suffer from Chronic Obstructive Lung Disease (COPD). This compensable workers’ compensation condition has now been recognized as the third leading cause of death in the US.
See Chronic Obstructive Pulmonary Disease and Associated Health-Care Resource Use — North Carolina, 2007 and 2009 MMWR 61(08)
For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
The US Supreme Court ruled yesterday in Kurns v. Railroad Friction Products Corp.that a claim can not be brought under state law for either design-defect for failure-to-warm because they are preempted under Federal law (Locomotive Inspection Act). The plaintiff, George Corson, contracted mesothelioma after working as a welder repairing asbestos brakes for the railroad.
See: Supreme Court Rules State Tort Law Claims Preempted by Federal Locomotive Statute (Justica.com)
“Justice Elena Kagan, in her concurring opinion, concluded that the design-defect and failure-to-warn claims were preempted by the LIA because “Napier recognized the federal agency’s delegated authority over “the design, the construction and the material of every part of the locomotive.”" Justice Sonia Sotomayor concurred in part and dissented in part, and was joined by Justices Stephen Breyer and Ruth Bader Ginsburg. Though they agreed that the design-defect claim was preempted by the LIA, they concluded that the failure-to-warn claim was not preempted because the field defined in Napier differently today because recent cases have regularly rejected the field preemption doctrine when statutory language does not contain an express preemption clause.”
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For over 3 decades the Law Offices of Jon L. Gelman1.973.696.7900 jon@gelmans.com have been representing injured workers and their families who have suffered work related accident and injuries.
In March, UCLA chemistry professor Patrick Harran and the UC Board of Regents will be facing an ordeal they likely never anticipated: a court arraignment on felony charges related to a 2008 laboratory fire that killed Sheri Sangji. They face three counts each of willfully violating occupational health and safety standards. According to the Los Angeles Times, the charges are thought to be the first stemming from an academic lab accident in the United States.
By way of background: In December 2008, Sheri Sangji was working with t-butyl lithium, a substance that ignites on contact with air. A drop spilled on her clothing causing an instant conflagration. She suffered second and third degree burns over 40% of her body, and died 18 days after the fire. In the wake of this accident, Cal/OSHA imposed a ,875 penalty, citing safety lapses and lack of training. (Chemjobber has followed this case diligently . See all his posts on the Sheri Sangji case, with the most recent at the top.)
UCLA officials call the recent criminal charges outrageous, saying this was a tragic accident and Sangji had been trained to do the dangerous work she was doing. But a 95-page Cal-OSHA investigative report contradicts that defense, saying Sangji was neither experienced nor well trained, terming the risk “foreseeable,” and stating that the death was preventable had Sangji worn appropriate clothing. Further, “The report states that UCLA, by repeatedly failing to address previous safety lapses, had “wholly neglected its legal obligations” to provide a safe environment in campus labs and that Harran was personally responsible.”
In the wake of Sangji’s death, we posted about this tragic incident a few times. First, we raised the issue of why university labs aren’t safer, suggesting, among other things, that lab safety be added as a criteria of evaluation for federal funding sources. We got some push back from commenters who thought that such a suggestion was naive and that health and safety personnel were unqualified to oversee “exotic” scientific protocols. We followed with a response to these criticisms, as well as provided links to other articles and places where the death was being discussed by students, scientists, private lab workers and safety professionals. (See More on the
UCLA lab death of Sheri Sangji.)
While Harran and UCLA are facing charges, this is apparently not a random or isolated incident. In December, Beryl Lieff Benderly of Science Careers posted Taken for Granted: A Blueprint for Safety Action Now. Here’s an excerpt:
Issued in October, a CSB report entitled Texas Tech University: Laboratory Explosion lays out in 23 pages of straightforward, nontechnical language what went wrong in a near-fatal 2010 incident on the Lubbock campus and what needs to be done to prevent anything like it from happening again.
The report goes far beyond the usual accident investigation’s list of technical mishaps. It views the maiming of Texas Tech University (TTU) graduate student Preston Brown not as an isolated series of individual errors but as the predictable outcome of a culture, set of values, and system of organization prevalent not only at TTU but also at many other campuses. Having collected at least “preliminary information” on 120 other such incidents, CSB declares itself “greatly concerned about the frequency of academic laboratory incidents in the United States.”
Academia has evaded some of the scrutiny that private employers face in safety standards. The issue of lab safety still sparks controversy. Many still think that the environment is too exotic and too specialized to incorporate safety standards and that regulations would stifle creative research work. That’s little more than obfuscation and foot dragging. Lieff Benderly posted another article Taken for Granted: How to Live With Danger outlining the contrast between chemical laboratory safety and that of another industry, airlines.
In The Sharp Knife of a Short Life, the blog Chembank frames the issues well:
“Changing the culture of an institution–especially one as intractable as chemical academia–is extraordinarily difficult. But so long as we forgo meaningful changes in favor of cosmetic ones that we don’t even bother to sustain anyway, we will continue to experience frustration and tragedy. One wonders what magnitude of disruption is necessary for our community to commit itself to improvement. Apparently, it is much greater than the death of a twenty-something student.”
We repeat a comment that we made in 2009:
Some workplaces come by safety voluntarily with a commitment from the top. Other employers – even generally well meaning employers – don’t truly embrace safety until they have had paid some very steep price. Sometimes that price is a gut-wrenching human one, as when a worker dies; other times, the toll is purely economic, in high workers comp costs, ruinous lawsuits, and bad publicity. Unfortunately, money is often the best change agent. That, and the push provided by standards and enforcement under OSHA.
You have to feel sorry for Erik Martin. He went to work for Quick Chek Corp in 1999 as an assistant store manager. He was promoted to store manager in the summer of 2000. He was diagnosed with Parkinson’s disease that same year. After informing his supervisor of his diagnosis, she advised him to keep his illness “hush, hush.” Martin complied, and never mentioned his illness to the company’s HR director. Martin missed work in 2004 and 2006 due to two mini-strokes and took a two-week leave of absence in 2007 because of depression. Despite his formidable physical difficulties – unrelated to work – he returned to work as soon as he was able.
In March 2008, Martin requested and received a demotion because his medical condition, combined with the lack of an assistant manager, precluded him from satisfying his work obligations. Later that same month, Martin injured his back at work. He contacted his doctor, who instructed him to take a darvocet that was previously prescribed to Martin’s mother-in-law. Martin visited the doctor the following day, at which time he was prescribed percocet to manage his pain.
Drug Policy
In keeping with company policy, Martin was drug tested two days after the injury. A few days later, he was contacted by the testing facility. They asked him to disclose the medications he was taking. He told them about his prescriptions, including the percocet, and also informed them about the darvocet he took on the day of the injury. Because he tested positive for darvocet without a prescription, the testing company reported a failed drug test and Quick Chek terminated Martin.
A reasonable person might think that Martin was in compliance with the company policy. He took a pill at the verbal direction of his doctor. Was this a “prescribed” medication? Well, that’s where a problem arises.
The word “prescription” comes from the Latin “praescriptus” compounded from “prae”, before + scribere, to write = to write before. Historically, a prescription was written before the drug was prepared and administered.
It appears that a “verbal prescription” is an oxymoron: if it isn’t in writing, it isn’t a prescription. [NOTE: the court ruling did not even address this issue.]
The HR director testified that his decision to terminate Martin was based on the failed drug test. He further testified that in his thirteen years managing human resources for Quick Chek, he never made an exception to the company’s zero-tolerance drug abuse policy. The director also stated that he was not aware of Martin’s Parkinson’s disease until this litigation commenced.Thus Martin’s termination was consistent with company policy. And in the view of the court, the termination was perfectly legal.
The court wrote:
Unquestionably, the company’s drug policy was enforced in a harsh fashion against Martin. The company relied completely on the assessment of the testing company that Martin “failed” the drug test. Quick Chek operates in such a way as to delegate total discretion to interpret the drug test results to the testing company. Once deemed to have failed the drug test, an employee is terminated without exception with no apparent right of appeal. In Vargo v. National Exchange Carriers Assn., Inc., 376 N.J.Super. 364, 383 (App. Div. 2005), we held that a company need not investigate possible legal reasons for a positive drug test before taking action with regard to a prospective employee; nor should such a duty exist with respect to existing employees. NJLAD is not offended by a private company’s lack of compassion in these circumstances.
Note how the court starts with a precedent involving a job applicant and then applies it to a loyal employee of long standing: “nor should such a duty exist with respect to existing employees.” The court may not see any difference between an applicant and a loyal employee, but I do.
No Room for Compassion
The court “is not offended by a private company’s lack of compassion.” Well, I am. Zero tolerance policies back companies into a corner; their rigidity may eliminate the need for discretion, but in doing so, these policies also eliminate many good employees. A little discretion in the hands of good managers is a powerful tool toward building a positive work culture. By contrast, zero tolerance policies may provide an illusion of control over matters that are difficult to control, but they are not an effective way to run a company (or a school, for that matter). Indeed, the policy makes it difficult for the company to fulfill its promise as a great place to work:
Quick Chek is proud to be one of NJ’s Best Places to Work! With 2,600 team members in over 120 stores, we strive to create a positive experience and fun environment where core values are nurtured, hard work is rewarded and leadership is cultivated.
I wonder what Erik Martin thinks of the company’s “core values.” When his illness prevented him from doing his job, he requested and was granted a demotion. When his illness prevented him from working, he took (unpaid) time off and focused on recovery. When he was injured at work, he followed his doctor’s orders and his company’s procedures. Martin’s loyalty and perseverance are admirable qualities, but they did not buy him much in the corporate offices of Quick Chek or the courtrooms of New Jersey.
After years of accidents in the workplace caused by the use of mobile devices in vehicles, the Federal Government today proposed universal universal guidelines to encourage automobile manufacturers to electronically disable these devices when a vehicle is in operation. The enforcement of this safety-first proposal may establish a legal standard universally to bar the use of such devices in vehicles and encourage employees to have a safer working environment.
See: U.S. Department of Transportation Proposes ‘Distraction’ Guidelines for Automakers
“Issued by the Department’s National Highway Traffic Safety Administration (NHTSA), the guidelines would establish specific recommended criteria for electronic devices installed in vehicles at the time they are manufactured that require visual or manual operation by drivers. The announcement of the guidelines comes just days after President Obama’s FY 2013 budget request, which includes 0 million over six years for distracted driving programs that increase awareness of the issue and encourage stakeholders to take action. “
The California Division of Workers’ Compensation has announced a series of public discussions for comments and concerns as it struggles in crafting a potential modification of its system.
Click here to read the California DWC Announcement
- Provision of appropriate medical treatment without unnecessary delay, the Medical Provider Network (MPN), Utilization Review (UR) or other issues
- Enabling injured workers to return to work as quickly as medically feasible
- Adequate compensation for permanent disabilities
- Reducing the burden of liens on the system
- Identification of appropriate fee schedules
- Reducing unnecessary litigation costs
- Assessing appropriate use of opiates and other care
- Any other improvements needed
