From the bizarre file – Thomas A. Robinson ofRisk Management Magazine offers a list of the 10 most bizarre workers compensation cases during 2011. Robinson rightly notes that, “Despite their unusual nature, however, one must always be respectful of the fact that while a case might be bizarre in an academic sense, it was intensely real, affecting real lives and real families.” So true. We hope he’ll follow with a collection of the 10 most bizarre employer acts – we’ve seen a few in our day.

OSHA whistleblowers – Just a reminder: Don’t fire someone for reporting safety hazard. A Florida charter school is learning this lesson the hard way. OSHA is suing Manatee School for the Arts in Palmetto, Fla seeking reinstatement of the former employee with full benefits; payment of back wages, punitive damages, and compensatory damages, among other things.

New York’s Reg. 194 – There’s a big brouhaha in New York over N.Y. Reg. 194, with risk manager groups and agent groups coming down on opposite sides of the fence. N.Y. Reg, 194 is a broker-disclosure rule that requires agents to advise clients that they receive commissions from insurers. The ruling was proposed by the Division of Insurance in the aftermath of the Spitzer investigations against several large brokerage firms. Last week, a NY Appellate Court upheld the rule.

Exploding pig farms – We posted a link to this issue before – but the mysterious hog farm explosions continue to stump scientists. A strange, potentially explosive foam is surfacing near manure pits in about 1 ou tof every 4 hog farms, and has caused six explosions since 2009. According to the article: “This has all started in the last four or five years here. We don’t have any idea where it came from or how it got started,” said agricultural engineer Charles Clanton of the University of Minnesota. “Whatever has happened is new.” The National Hog Farmer has more background: Foaming swine manure poses explosive risks.

Wellness focus – Of cancers affecting both men and women, colorectal cancer (cancer of the colon and rectum) is the second leading cancer killer in the United States, and the number one cancer killer in non-smokers. Why not issue a reminder to your employees: Colorectal cancer screening saves lives.

Market conditions – Roberto Ceniceros notes that captives are thriving as the work comp market hardens. Rising prices for traditional insurance vehicles always means that alternative insurance programs see growth.

The general info about the conference is below. I also threw in the info on the Safety Talk Contest. The contest is an integral part of the safety conference. If you are a vendor, it is a great time to put your biz in front of hundreds of safety professionals in NC. Exhibitors pay a reasonable price for the number of contacts made during the conference. Exhibitors register here.

I am posting this as I am the Treasurer of the North Carolina Mid-State Safety Council. There are eight councils in North Carolina. There are credits given for attending the water/wastewater and safety educational portions of the conference. As the say, there is no such thing as a free lunch, but there is a free safety conference.

I had written about this subject late last year. I receive a few questions every time the online press starts publishing articles warning employers concerning classifications. There is a big difference in these two very similar sounding terms.

It has never been OK to purposely classify an employee as an independent contractor. We have never given the advice to classify employees as independent contractors. This method of cost savings will only backfire. If you are unsure whether a person that performs work for you is an employee or and independent contractor, please refer to this blog post on independent contractors.

Many states have clamped down on employee misclassification (contractor vs. employee) not the classification codes on your Workers Comp policies or E-Mod sheets. If you think some of your employees have been misclassified with the wrong Class Code, you can check on the codes and make a decision whether to dispute them or not.

Employee misclassification does not mean classifying an employee under a classification (class) code such as 8810 Clerical. Those are the classification codes that are assigned by the carrier, NCCI, or State Rating Bureau. Disputing a classification code has never been illegal unless it is done to delay paying a Workers Compensation premium audit bill.

There are many more complications that can arise when an employer tries to reclassify the Classification Codes. Approximately 20% of the time, I have seen it actually cost the employer more premium. That discussion turns to the ELR or D-ratio that you will see on your rating sheets.

There are many articles in this blog on how to determine whether or not your employee or employees are under the wrong classification codes and the proper dispute process.

This is from my prior post on AIG and the Federal Reserve

In some cases, the bids for Workers Comp coverage did not match the claims experience and losses to a very high degree. Now, will the bids become even lower with the taxpayers backing the carrier?

There were many articles published over the last two days concerning AIG also receiving a slew of tax breaks in addition to the bailouts. Oh, when will the government aiding an unfair marketplace ever end?

I have read many articles where AIG executives have said there was no unfair competition due to the bailout. I wonder if one of the execs will now also defend the very selective bailout and the extreme tax breaks.

I had learned very early in my college career that any time a government agency provides a quota, floor, or actually any type of involvement, the playing field is no longer level, or more unfair than it was in the past.

A few insurance executives complained about AIG’s unfair advantage. I am sure we will hear from them again when one of their major competitors in all insurance markets has now received even more of an unfair advantage.

I will not even go into the “Too Big To Fail” charade provided by the government as an excuse for their very selective action. As mentioned in this article on comments from ACE’s CEO ; “It was my opinion that subsidizing an insurance carrier that was bidding against other insurance carriers for policies allowed the subsidized insurance carrier to bid lower, as they had “free money” to use to underbid the competition.“

Grossman notes:

Similar effects have been reported before, but this is one of the largest studies ever to look at these exposures, explained Christina Lawson, a reproductive epidemiologist with NIOSH and study author. Because these results reflect adjustment for a number of variables — including age, hours worked, and shift-work — and because the study was designed to avoid overestimation, its findings may be conservative, said Lawson.

While further studies are needed to determine the exact chemical exposures, high on the suspect list are a variety of chemicals used to disinfect medical equipment and surgical instruments, such as formaldehyde and ethylene oxide. In her post, Grossman also talks about the dangers of formaldehyde exposure to beauty salon workers, an issue that was a recent NIOSH Science blog focus: Hair, Formaldehyde, and Industrial Hygiene. Both the Food & Drug Administration and OSHA have issued particular warnings about the Brazilian Blowout, a highly popular hair straightening treatment.

Christopher Washkowiak worked as a pipefitter. He suffered a serious work-related injury in 2009. The following year, his marriage broke up (dissolved as of August) and he settled his workers comp case in December. The settlement totalled $365K, plus a Medicare Set Aside (MSA) for an additional $70K. Washkowiak’s wife, Rosana, was entitled to 17.5% of the marital assets. She claimed not just 17.5% of the $365K lump sum settlement, but the same percentage of the MSA.

The initial trial court and the Illinois Appellate Court, 3rd District, ruled that Rosana was entitled to the money. Here is the Appeals Court ruling:

Unless there is something about an MSA that removes the MSA funds from the definition of “net proceeds,” the funds fall squarely within the dissolution decrees’s definition of “net proceeds” (paragraph 10).

The court goes on to say that “there is no question that the money is his [Christopher"s] and further that “it is not Medicare’s or [the employer's] money” (paragraph 15).

Finally, the ruling goes on to state that “if he incurs no such [medical] bills, he gets the money back” (paragraph 17).

It is worth noting that Rosana apparently does not have to wait to see if the funds are needed for future medical expenses. The court has foreshortened this process to the point where she gets the money now, as part of the divorce settlement.

Attention All Attorneys!
There are a number of parties who will be alarmed by this ruling:
The Federal Government: Medicare will surely object to the expenditure of MSA funds for non-medical purposes, diluting what is available for future expenses (and thereby defeating the purpose of the MSA).
Insurers and self-insureds: will be shocked to see funds set aside for future medical expenses being used for other purposes; this will inevitably lead to further inflation of future MSAs. (Indeed, Medicare might hesitate to sign off on any settlement prior to determining the relative strength of the marriage – and we all know how much stress disability puts on a marriage…Yikes!)

What if this divorce entailed the conventional 50/50 division of assets? Half the money in the MSA could be spent before the account even got started.

I have never heard MSAs referred to as claimant assets. In my limited understanding, the amount awarded to the claimant is separate and distinct from the MSA. Funds in an MSA can be used only to pay medical bills. In addition, I have never heard of a situation where unspent MSA funds reverted directly to claimants; they would likely revert to the insurer or the self-insured, whoever set aside the money. (If any of our attorney readers have any knowledge to the contrary, please let us know!)

MSAs carry a lot of baggage already: the MSA process slows down settlements while stakeholders wait for federal bureaucrats to check the numbers; MSAs seriously inflate the current cost of settlements, complicating an already complicated process. If this ruling in Illinois is upheld, if MSAs are truly marital assets, then, as the saying goes, “we ain’t seen nothing yet.”

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