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Employer violations of environmental laws draw much heavier penalties than those currently imposed under the Occupational Safety and Health Act. That's the message from OSHA in its effort to gain support for passage of the Protecting America's Workers Act.
The act, if adopted by lawmakers, would strengthen OSHA violation penalties.
To make the point that current OSHA fines are too weak to persuade those employers that ignore workplace hazards a recent OSHA press release describes a 2001 accident in which a tank of acid exploded at a Delaware oil refinery. The accident killed employee Jeff Davis, resulting in a $175,000 fine.
“Yet in the same incident, thousands of dead fish and crabs were discovered, allowing an Environmental Protection Agency Clean Water Act citation of $10 million,“ the press release states.
OSHA's press release took its wording from testimony David Michaels, assistant secretary for OSHA, recently delivered before the U.S. House Subcommittee on Workforce Protections. Mr. Michaels' testimony is available here.
In other news, a Walmart employee suffering from cancer was reportedly fired for his pot use for which he had a prescription under Michigan's medical marijuana law.
According to news reports Walmart learned of his pot use during a drug screening following a work-related accident. As Comp Time has reported before, employers' work comp and safety practices are increasingly likely to clash with medical marijuana laws being adopted in more states.
As shown in the video below, the decision to fire the Walmart employee drew demonstrators to the Walmart store where he worked.
I will be speaking on a related topic at the Self-Insurance Institute of America Inc. Workers Compensation Executive Forum to be held in New Orleans May 11-13. I will discuss how work comp claims decisions can draw unfavorable attention to corporate brands. More information on the conference is available here.
On another subject, Joe Paduda at Managed Care Matters blogged again on North Dakota's criminal prosecution of Sandy Blunt, the former CEO of the state's work comp fund. Joe has consistently written about Mr. Blunt's innocence and misconduct in his prosecution.
Joe's postings are always worth a read, but this one is particularly interesting. It's available here.
Mexican marriage law, spouses in two countries, and children born on both sides of the border are issues Iowa's Supreme Court considered before determining survivor benefits in a comp case involving a nonresident alien.
The case of Jody Perez Rojas v. Pinde Ridge Farms L.L.C. is available here
In the end, the court ruled that an Iowa law requiring a 50% reduction in comp benefits for nonresident aliens is constitutional among other findings. In Iowa, the other 50% in benefits that normally would flow to a worker or dependents go into Iowa's Second Injury Fund.
Laws reducing benefits for nonresident aliens are common in many states, the court decision shows.
All but nine states have comp laws addressing benefits for nonresident aliens. Five states exclude nonresident aliens from receiving any benefits while five others treat their dependents on equal terms with residents. The majority of the remaining states reduce benefits for nonresident aliens.
While Iowa's law doesn't depart from many other states, this particular decision is interesting because it shows the complexities that can arise when providing or determining benefits for immigrants.
The deceased worker, Raul Perez Rojas, died in 2004. He married 17 years earlier in a religious ceremony in Mexico and likely had five children there.
But Mexican law only recognizes civil marriages and not religious ones. Therefore, Iowa's judicial system had to weigh whether the wife married in the religious ceremony is a dependent.
A work comp commissioner determined because Mexico did not recognize that marriage neither does Iowa law and therefore that wife is not entitled to benefits. The Supreme Court agreed.
Because one of the five children was not listed on a birth registry, but is listed on a baptism announcement, there was also a question of whether the deceased was that child's father and therefore entitled to benefits.
The commissioner and courts found there was enough evidence to suggest the Mr. Rojas was the father and all five children in Mexico are entitled to benefits.
In 1999, the deceased married another woman in Iowa and they had a child.
Both spouses sought death benefits and both their cases resulted in appeals.
For a time the employer and its insurers seemed confused over which family to pay death benefits to and an investigation was required to help sort things out.
Iowa's court system also had plenty of issues to sort out, issues that don't typically arise when a deceased worker is a resident.
Comp Time suspects some of the complexities presented by this claim are common when benefits must be provided for immigrant workers who maintain family and financial ties to another country while living in the United States over many years.
It would be interesting to know whether the costs that arose here are eventually passed back to the employer in terms of higher premiums because of the additional investigation and court costs this case generated?
It's always worrisome when legislators tinker with work comp law. Sometimes they get it right and sometimes not, which often depends on whether their actions favor your own political beliefs and business objectives.
Regardless of lawmakers' intentions, though, the vast majority of them across the country know very little, if anything, about comp. Many of them would probably call it workman's compensation if you were to engage them in a conversation on the subject.
After introducing bills that would require selling Oklahoma's state comp insurer, some lawmakers there must have learned that doing so is a little more complicated and requires a little more thought than, say, selling a car your family no longer needs.
According to a story available here the Oklahoma lawmakers withdrew their legislation calling for selling CompSource Oklahoma because too many questions emerged about the proposed sale.
It's hard to imagine that lawmakers would propose selling or mutualizing an entity that writes 35% of the comp business in their state without lots of stakeholders raising lots of questions. They didn't see that coming?
The lawmakers are going back to the drawing board.
In South Carolina, meanwhile, Democratic lawmakers introduced a bill titled “Making Workers' Compensation Work Better.”
The legislation would give employers that fail to buy comp coverage a 30-day grace period from penalties. First, the Workers' Compensation Commission must send them a letter telling them they are not in compliance.
But what happens and who pays if an employee is injured during that 30 days? The bill available here doesn't address that.
On another subject, Comp Time praises Jon Coppelman at Lynch Ryan's Workers' Comp Insider weblog for his March 8, piece on AIG. It's a very entertaining read about a former AIG manager and his heavy-handed, “f-bomb” laden management style.
An unusual case laid open the unusual nature of Vermont's defense typically provided to employers when comp claimants are intoxicated when injured.
Last week Vermont's Supreme Court ruled in favor of a part-time mechanic's helper who “drank deeply” from a Mountain Dew bottle, thinking it contained the soda pop. But instead of Mountain Dew the bottle contained a caustic industrial cleaning chemical that severely burned his esophagus and stomach.
The bottle had been sitting on a counter at work for a week and a co-worker, thinking it had been abandoned, offered it to the claimant. The claimant took it home and after some beers opened the Mountain Dew bottle and took a big swallow.
An emergency room blood test showed he was drunk. So a labor commissioner ruled the employee was intoxicated when injured in 2006 and compensation was not allowed under Vermont law.
But in a split decision in Cyr v. McDermott's Inc., Vermont's Supreme Court reversed the labor commissioner's finding. The decision is available here.
First, the high court said the injury arose out of his employment because the act of accepting the bottle “put the mechanism of injury in motion.” The claimant was put in a “positional risk situation” when given the bottle at work.
Second, there was no indication he was drunk when given the bottle at work, the majority ruled in the 3-2 decision. So the court overturned the commissioner and remanded the case to determine whether the injury occurred in the course of employment.
The employer may still have a way out.
But the dissenting opinion provided interesting case observations.
“The facts of this case are unusual and extreme” and offer an example of the adage that “exceptional cases must not be permitted to beget bad law,” the dissent states.
The descent says that Vermont's intoxication exemption for comp benefits is unique because it disallows compensation for an injury caused by or during a worker's intoxication.
In contrast, most states that exempt or reduce benefits when a claimant is drunk require a casual relationship between an employee's intoxication and the injury.
So Vermont law does not require a connection between an employee's intoxication and the injury. And while the majority concluded that the claimant's injury was cased by taking the bottle home, the injury was also caused by drinking from the bottle when the employee was drunk.
Both events contributed to the injury, the dissent said.
Medical Marijuana is a topic Barry Thompson, president of Risk Acuity LLC, recently took up in a “Quick Tips” monthly newsletter he sends out.
Barry is a veteran work comp expert and consultant whose recent newsletter titled Reefer Madness Leaves Common Sense Up In Smoke says that employers should not ignore the threat of medical marijuana advocates trying to get pot accepted as a comp treatment.
The newsletter, available here, provides tips for countering that potential. Barry’s tips include specific vendor instructions to deny claims and reinforcing company policies.
Colorado lawmakers toned down a bill that would have restricted video surveillance of comp claimants, according to the Coalition Against Insurance Fraud.
A brief Business Insurance story on H.B. 1012 is available here. But since Business Insurance published that piece the bill has been made less onerous, according to the Coalition.
A Coalition blog posting on H.B. 1012 is available here.
Business Insurance launched a new site with social networking and online community tools where readers can connect with one another, share their views and ask questions.
To register and log on go here. Once on the site readers can comment on this blog or discuss any other BI content. It’s sort of like Facebook or LinkedIn for BI readers. Site participants can create a personal page, ask colleagues to join in, start their own blog discussions and much more.
Comp Time hopes you enjoy the new tools.
If you are an observer of California politics and work comp you must recognize that reforming the state's comp system has been Arnold Schwarzenegger's biggest accomplishment as governor.
Unions and trial attorneys consider his influence on comp a disaster. But employers saved about $15 billion a year under reforms he helped employers put in place in 2004. Since then he has vetoed attempts to overturn reform measures favored by employers and insurers.
Personally, when he was first elected and began talking about overhauling California's comp system I never thought the governor would get it done. He was new to the office and entrenched Democrats controlling the state legislature would never allow it, I bet back then.
I was wrong and and as columnist Dan Walters says in a commentary worth a read and available here, the governor is credited with “bulldozing the Legislature into a sweeping overhaul of workers' compensation.”
Many Californians and others, however, know nothing about Schwarzenegger's impact on comp, and it is quite possible that it won't be a part of his broader legacy.
A lengthy Wikipedia entry on Gov. Schwarzenegger mentions nothing about work comp, not even under a subentry on politics. So unless you are interested in the subject you are not likely to know he has had tremendous impact on California's system for treating and indemnifying injured workers.
But for those that do watch comp, the subject is already shaping up as an issue in the upcoming election for the next governor.
Walters points out that Jerry Brown is a contender for the governor's office and whether he or someone else elected to the office would “loosen up on workers' comp benefits” remains a question.
Colorado legislation that would make it harder to conduct video surveillance led to a news story reporting that in 2008 Pinnacol Assurance spent $4.7 million following 2,600 workers.
For its money the state’s comp insurer of last resort obtained 19 fraud convictions and $137,000 in restitution.
Those don’t seem like great results. But convictions and restitution don’t tell the entire story.
By the way, the 19 convictions attributed to Pinnacol in 2008 included seven or eight premium fraud cases, so the underwriter’s efforts resulted in only 10 or 11 claimant convictions.
Most comp professionals know though that many fraudulent claims don’t get to the prosecution stage. But show someone attempting fraud a video contradicting their injury claim and chances are good they will give it up and walk away without any hint of the limp on display when they hobbled into their doctor’s office.
Pinnacol says its main goal is not to prosecute fraud claims, but to shut down a claim as soon as the insurer has enough evidence to do so or pay claims if they prove legitimate. That strategy produces savings, Pinnacol told Comp Time.
There is also the deterrence value. Because people know that Pinnacol conducts surveillance fewer are likely to commit fraud, says Sharra Lee Leonard, Pinnacol’s special investigations unit director.
There are also savings that result when a video shows someone legitimately injured on the job is not impaired as severely as they claim to be. In fact, the majority of times Pinnacol conducts surveillance it does so attempting to establish the degree to which a claimant has lost certain abilities, Ms. Leonard says.
Yet Pinnacol does not have stats on the specific dollar savings derived from its surveillance efforts. It can’t say how much money it saved following around 2,600 claimants in 2008.
Pinnacol is not alone among entities that feel strongly that surveillance leads to savings, but don’t have data to back that up.
Several work comp research entities and investigation organizations say they don’t know of anyone who tracks such data.
It seems strange that these days when companies want to know the return on investment for every dollar spent that more insurers or self insured employers have not put a number to savings derived from surveillance.
So many efforts lead to closing a claim that it’s hard to separate out the single influence of surveillance, Ms. Leonard says.
“That is the single thing investigative units struggle with the most is the ability to track a return on investment or savings,” resulting from surveillance, Ms. Leornard says. “There are so many different aspects to it that you can’t put an amount of money on it.”
Such data, however, could help Pinnacol fend off the Colorado legislation currently seeking to make it harder for insurers and self insured companies to conduct surveillance. Amid the spotlight on surveillance, some claimants say the money spent following them around was a waste.
More information on Colorado’s surveillance legislation is available here.
Sources say that the bill would make Colorado the most restrictive state when it comes to conducting surveillance. Investigations professionals add that they fear that if Colorado adopts the legislation other states could follow.
Civil rights and work comp law may have merged in a South Carolina Supreme Court finding this week.
The court ruled in Frantz Pierre vs. Seaside Farms Inc. and American Home Insurance Co. that a fractured ankle a migrant worker suffered while living in employer-provided housing arose in the course of employment and is compensable.
A Business Insurance summary of the decision is available here.
The court said that Mr. Pierre, who was hired the evening before his injury to work in a produce packing house beginning the next morning, was essentially required to live in the employer-provided housing. Economics and the employer's need made it necessary, the court said.
The court also said that his injury occurred as a result of a hazard on his employer's premise. Mr. Pierre slipped on a sidewalk that had water running down it from an outdoor sink.
The court also took the time in its decision to describe the living quarters as a tin-roof barracks housing up to 96 people, three to a room. The block building had showers and a kitchen in the middle with the outdoor sink for washing clothes.
“It's an important decision for migrant workers” and it's possible that the court may have considered that it's ruling would help improve the living conditions for such workers, said Ilene Stacey King, an attorney at Turnipseed & Associates, a Columbia S.C. law firm that helped represent Mr. Pierre.
Although the opinion is based on a discussion of work comp law, the living conditions “might have been in the back of the court's mind,” the attorney said.
Attorneys for Seaside Farms did not return a telephone call.
The Montgomery, Ala.-based Southern Poverty Law Center, known for its civil rights and anti-hate work, provided the claimant with legal representation.
Andrew Turner, an SPLC attorney who represented Mr. Pierre, told Comp Time that his organization has embraced work comp statutes as “an issue of social importance for impoverished workers” because the comp system “is about the only way that migrant workers in the deep south states can get sustained medical treatment.”
That said, the SPLC is not currently working on other work comp related cases nor does it have a specific strategy for pursuing comp cases, Mr. Turner said.
In other news, the Associated Press reported that a Connecticut police officer who shot and killed a chimpanzee last year after it mauled a woman had his comp claim denied for post-traumatic stress disorder.
News stories attributed a statement that the claim was denied to Joseph Kennedy, president of the Stamford Police Association.
Comp Time spoke with Mr. Kennedy. He said the officer's claim was denied about a year ago, just after the incident.
But this week state Sen. Andrew McDonald, D-Stamford, introduced legislation that would compensate officers for mental or emotional problems when they use deadly force to stop animals attempting to injure them, AP reported.
Is it me or does this alleged violator look a lot like Aerosmith frontman Steven Tyler?
In case you aren't certain, Steven Tyler's photo is the one inset to the right of Devon Lynn Kile's mug shot. She is in custody in Orange County waiting a for a Feb. 18, 2010, mental health competency hearing in what prosecutors allege is one of the largest comp fraud scams in California history.
Her husband, roofing contractor Michael Vincent Petronella, was recently convicted of 33 counts of premium insurance fraud.
Prosecutors say the couple owned three businesses and reported $3 million in payroll when it was actually $32 million. There was also a problem with fraudulent claims.
The couple lived in Laguna Hills and owned several California properties and multiple luxury vehicles including a Bentley and two Ferraris. From 2005 to 2007 they charged more than $2.1 million for personal items.
When investigators searched their properties they found an application from Kile seeking to be featured on the Bravo series The Real Housewives of Orange County.
Comp Time opined in past blog postings that as more states allow doctors to prescribe marijuana there is growing potential for the issue to arise in work comp claims.
Ironically, that occurred earlier in Iowa, which is not one of the 14 states with a medical marijuana law.
But Before I tell you how Oregon's medical marijuana program spilled over onto an Iowa claim, Comp Time must thank Robin E. Kobayashi, editor of the LexisNexis Workers' Compensation Law Center, a web community and aggregator “for all things workers' compensation.”
Robin maintains a great site for comp professionals. She read my postings on medical marijuana and volunteered her research, providing Comp Time with a few related cases from around the country.
The Iowa case stands out because neither Iowa voters nor lawmakers have ever approved a medical marijuana law. Yet the case provides one of the earliest examples, if not the earliest, of medical marijuana's impact on a comp claim.
A review of the 2002 Office of Iowa Workers' Compensation Commissioner decision in Mary McKinney v. Labor Ready and ESIS Inc. revealed that Ms. McKinney moved to Oregon sometime following a 2000 accident, in which a forklift ran over her while she was working in Iowa.
Her treating physician in Oregon recommended medical marijuana. He thought it might mitigate her neuropathic pain, which was “not readily relieved with opioid therapy,” case records show.
But the defendants in the case, Labor Ready and ESIS, argued that Ms. McKinney's doctor had not shown his recommendation would be effective.
The defendants failed to persuade an Iowa work comp commissioner. He said a doctor doesn't have to guarantee a successful outcome for treatment recommendations and the judge noted the recommendation was “pursuant” to Oregon's medical marijuana program.
He found the defendants liable for marijuana expenses as recommended by Ms. McKinney's doctor.
Then in a 2003 hearing, the employer, joined by Reliance Insurance Co., argued that the request for marijuana should be dismissed because it could violate federal law and the claimant refused to cooperate with the defendants to resolve the federal issue.
The claimant, meanwhile, asked a work comp commissioner for additional enforcement of the 2002 order. But the commissioner said he didn't have the power to do that and an attorney that represented Labor Ready in the case told Comp Time that the employer never paid for marijuana.
But case records do show that before the 2003 hearing, the defendants sought to comply with the 2002 ruling by providing the claimant with a $150 check to pay for a license Oregon requires under its medical marijuana program.
It's only one example. But now observers have to wonder, will states allowing pot prescriptions impact comp hearings in states that do not?
On another blog topic, a few days ago Comp Time asked readers how often erectile dysfunction arises from a comp claim. The question was in reference to a ruling involving a Viagra prescription.
Mark Walls, who maintains a Workers' Compensation Forum on Linkedin, started a discussion on the question.
Comp Time appreciates Mark's blog and forum because it attracts comp professionals who review a lot of claims across the country and post interesting discussions on a wide range of comp topics.
Mark says erectile dysfunction treatment occurs more frequently in comp claims than one would expect. He also points out the prescription commercials advise to “ask your doctor.” But if you ask your comp doctor you avoid co-payments.
For more comments on Viagra and other comp-related discussions, Mark's blog is available here, although it does require a Linkedin registration.
Copyright © 2010 Crain Communications, Inc.
