The Man on the Jack
Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.
On the Muscle
When his supervisor waved to him, Early Hart took one hand off of the jackhammer trigger, plucked the earbud out of his right ear and picked up his head in acknowledgement.
“Whatcha got?” Early shouted to his boss, the clattering, echoing din of the jackhammer coming momentarily to a halt.
“Break time!” shouted his boss. “Put that hammer down and come get out of the sun!”
“Don’t want to break. Wanna work,” Early shouted back at him, smiling.
Early wiped at his brow with a grimy backhand. Sweat was pouring down his face, the bulging muscles of his arms and his burly torso.
“Break!” the boss said as an answer, still smiling back. Early did as his boss said and set the jackhammer down to rest on the pile of broken asphalt he was creating in the middle of Green Avenue.
Early strode confidently to where his boss and a handful of other workers were already gathered under an enormous sycamore. The gate to his boss’ pickup truck was down and the guys were pulling drinks of iced tea out of an enormous orange thermos.
The son of a local alderman, Roger Hart, Early made a name for himself at a young age, as a Gloucester County New Jersey high school football star. College wasn’t for him though, and he thought himself lucky to have landed a job with KMF Energy Solutions, working on a gas line replacement crew for the utility.
It didn’t hurt that his boss was his father’s cousin, Frank Walter. Frank eyed Early admiringly as he came forward to join his co-workers under the shade of the tree.
“You’re a strong young man, but if you want to stay strong in this heat you better hydrate!”
Early took the cup of iced tea Frank offered. He had no argument with a cold drink of tea in this heat and humidity.
“It’s all good,” he thought as he sipped his tea. Lowering his cup, he spied his SUV, with two surfboards strapped to the top of it. In two and half hours he’d be in the water.
When Early paddled into the surf break, the other nearby surfers gave him plenty of room.
Early had a reputation as one of the best amateur surfers on the East Coast.
Even without knowing his reputation, anyone with sense could deduce that the owner of muscles like those didn’t need to worry about objections over sharing a wave. He could clearly take care of himself or any shoreline disputes that came his way.
The swells that day were big. Some kind of a storm must have been working its way up from the Caribbean.
Early surfed one big wave, then another. He was joyous in the feeling of immeasurable strength that a young man has in taking on the ocean and feeling no fear.
That’s when it happened.
Early knew these waters well, but no one knows everything, and in this case Early’s undoing was a sand bar that had built up where he wasn’t expecting one. A big breaker drove him into it.
The wave flipped Early and he hit the sand bar hard, with his lower body extending over the edge of it and his lower back taking the brunt of the wave’s force.
It was all Early could do to stagger to the beach. He felt crippled.
“Hey! Hey Early!” one of the other surfers yelled.
Early was mobile, but after being examined by a doctor, he was placed on eight weeks of short-term disability with a severely strained lower back.
An Uneasy Feeling
Back at work, Early was under orders from the doctor to take it easy for a while. His injury was expected to fully heal, but for now a dull pain and unfamiliar physical limitations remained for the normally strong and capable man. But Early’s relative Frank Walter knew the way of the world. Frank felt he needed to protect Early and shield his condition.
Frank gave Early lighter duty, but he didn’t formally ask for an accommodation for Early from human resources. Early was given jobs like operating the hose to keep dust down or working traffic control, but his pay rate and job classification remained the same.
Frank walked up to Early one day as Early stood morosely at the edge of the job site, holding a sign that said “stop” on one side and “slow” on the other.
“What’s the matter with you?” Frank asked Early.
“I’m bored,” Early said.
“Be happy you’ve got a job,” Frank said under his breath.
“What do you mean?” Early asked.
“Things are getting tight around here,” Frank said. “I’m hearing some rumors about layoffs.”
One of Early’s co-workers walked by. He was the kind of person who tended not to mind his own business and he liked to start trouble.
“Same pay, lighter duty. Must be nice,” the co-worker said, eyeing Frank and Early malevolently.
“You mind your own business Johnny,” Frank said to him. “Get over there and load the concrete saw onto the truck like I told you to do a half hour ago!”
Johnny ambled off, in no big hurry.
“I’d fire that coyote tomorrow!” Frank said under his breath, for only Early to hear.
But it was Frank who lost his job, the very next day, as part of a KMF management reshuffle.
Early had been back at work only three weeks when he got a new boss, Del Miller. Miller didn’t know Early, but Early’s ginger approach to his work gave Miller a bad first impression, albeit a mistaken one.
“That guy’s just flat-out lazy,” Miller said to himself as he watched Early pick up a single two by twelve at a time instead of two or three like his co-workers did.
“Is there something the matter with you, young man?” Miller asked Early one morning, after they’d been working together for a week.
“No sir, nothing,” Early said, not anxious to be overly candid with a new supervisor he barely knew.
“Mama’s boy,” the troublemaking Johnny said under his breath to Del Miller the next Monday, as Early ducked working the concrete saw and instead picked up a hose and watered the street to keep the dust down.
With KMF’s managers under pressure to cut costs, Early was terminated by the disapproving Del Miller, five weeks after coming back from short-term disability. Del Miller wanted someone who could perform all the requirements of the job.
Roger Hart was not the type to baby his son, but when Early was terminated, Roger consulted with a friend, Avery Fischer, who was known as one of the best labor attorneys in the state of New Jersey.
The Thursday after Early was terminated, he had a meeting with Avery Fischer in Avery’s office in Trenton.
“When you got back to work after your injury, did anyone within KMF discuss with you what you were and weren’t able to do within your job duties?” Avery asked Early.
“No sir, they didn’t,” Early said.
“Did the company offer you any kind of accommodation, say a desk job or a job driving where you wouldn’t be called on to do so much physical labor, or an official adjustment in your current job?” Avery asked Early.
“Not officially. After Frank lost his job, I was back to normal expectations on the same job, working as a laborer on the road crew.”
Roger Hart was at the meeting with Avery and Early, and it was at this point in the conversation that Avery turned to Roger with a meaningful glance.
“It looks to me, Roger, that KMF is in clear violation of the Americans with Disabilities Act Amendments Act here.”
“How so?” Roger said.
“The company initiated no dialogue with Early, made no effort to check in with him, talk to him about his back injury.”
“And?” Roger said, guessing that there was more to it.
“And they made no attempt to determine if a reasonable accommodation would allow him to continue employment. By leaving him on the road crew – in the same job with the same expectations – to get picked off by this new supervisor, they hung an injured man out to dry. That’s a clear violation,” Avery said.
Roger Hart needed to hear no more. KMF had gotten rid of his cousin, who worked for the company for 14 years, and then they’d terminated the apple of his eye, his son Early, who he knew as a hard-working young man, bent on achievement.
“So, what do we do?” Early said, turning to the two older men.
“We sue,” Roger said.
Avery nodded his head in agreement.
KMF’s defense attorneys, displaying the same inadequate knowledge of the ADAAA as the company’s line managers, decided to take the case to court.
They got hammered.
Avery Fischer argued that KMF Energy Solutions failed to comply with the ADAAA in three substantial ways:
- The company failed to maintain a dialogue, in fact didn’t dialogue at all with a worker who had a lingering disability, in Early’s case, an injury-weakened back.
- The company made no attempt to recognize the limitations of their employee and determine whether his current job could be modified to allow him to continue to perform the essential job requirements – or if there was another job within the company he would be qualified for and would be possible within his limitations – a clear violation of the act.
- The company terminated an employee for performance issues without first reviewing all of the facts to ensure whether the situation was truly a performance issue or if the performance issue was due to a medical condition from his recent and known eight-week short-term disability.
The judge agreed and KMF Energy Solutions was hit with a penalty judgment that ran in the low to mid six figures.
The next one to lose his job was Del Miller.
Upcoming Webinar: Compliance crossroads: How are you navigating the intersection of ADA/ADAAA and workers’ comp, disability or leave?
Join Sedgwick, on Wednesday, October 7, 2015 at 1:00pm ET as they delve deeper into ADA/ADAA compliance with our sister publication, Human Resource Executive®. Register here.
Risk & Insurance® partnered with Sedgwick to produce this scenario. Below are Sedgwick’s recommendations on how to prevent the losses presented in the scenario. This perspective is not an editorial opinion of Risk & Insurance®.
1. Appoint your experts: When compliance is on the line, someone in your organization needs to be well-versed in ADA/ADAAA and the interactive process. This may not be your front line managers. Appoint someone to be responsible for triggering the accommodation process and engaging appropriately when employees return from a workplace injury, a non-work injury or illness or another medical need.
2. Document, document, document: Companies need to make sure that standard procedures regarding leave or accommodation under the Family Medical Leave Act or the Americans with Disabilities Act are in place, up to date and triggering interactive process review – as well as clearly communicated to employees and supervisors. A robust information management platform is key to supporting the process and necessary documentation.
3. Alternative options: If you are able, offer a chance for those in need of accommodation to be reassigned to another job, even temporarily. Sometimes time off from work may be the best or only option; although the goal of ADA/ADAAA is to keep people at work and every effort should be made to meet an accommodation request, supervisors need to keep in mind that there may be cases where an accommodation within someone’s current position isn’t possible or advisable due to the nature of their job or the significant hardship it would place on the business.
4. Consistency: Different injured employees with debilitating conditions should be treated with consistency under the Americans with Disabilities Act, regardless of whether their need for accommodation is due to a work-related injury, a non-occupational injury or illness or for another medical need. Don’t treat employees differently based on whether they need temporary vs. permanent accommodation, based on their type of leave or based on personal feelings.
5. Medical review: Make sure you request and document medical reviews of any request for accommodation as part of the overall interactive accommodation process.
Additional Partner Resources
Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.
Part One: Pressure Builds
Barry Little cast an appreciative glance back at the front door of the elementary school where he’d just dropped off his little girl Lila, age 5, for her morning kindergarten class. He was grateful that he trusted Lila’s teacher and the rest of the school staff.
Walking to his car, with the late September sun warming his face, he ticked off the other reasons he had for being happy. Ten minutes before dropping Lila off, he’d dropped off her little brother Benjamin at daycare. Benjamin was a joy, now speaking in full sentences and displaying a wry sense of humor.
Driving to work, Little ruminated on his further good fortune. He was celebrating the one-year anniversary of his promotion to plant manager of the Glaucus Inc. ammonia plant in nearby Edmonton, in the province of Alberta, Canada.
His promotion coincided with increased natural gas production in the fields close to the Edmonton plant. Natural gas is the feedstock for ammonia, and its recent abundance and lower cost was a boon for the company.
Just that week, his managers asked him to extend the current ammonia production run out two years to take advantage of the lower cost of natural gas and the burgeoning demand for fertilizer in the emerging economies of India and China.
Ammonia is a key raw material for the production of fertilizers. But there are inherent risks. Ammonia production is a demanding process on plant equipment. And the extended production run was being performed at the expense of regularly scheduled equipment maintenance.
Little knew the reasons for management’s decision. With global revenues at close to $1 billion annually, publicly traded Glaucus could run that figure close to $1.25 billion in this two-year window.
There was another factor gnawing at Little. The vastly increased production of natural gas in North America meant that chemical manufacturing was on the upswing. New plants were being built and existing plants expanded which increased lead times for equipment and spare parts
In this high-demand environment, contingency plans that included the purchase of spare parts were important to minimize any downtime due an equipment breakdown. Little, relatively new to this position, was in the process of drafting contingency plans, but they weren’t complete. The plant had some spare parts and equipment, but it was questionable whether that was adequate.
Little was relaxing that night after dinner, keeping half an eye on an Edmonton Eskimos game, when his cell phone lit up.
A fast moving storm was moving through Alberta. No sooner had Little seen that news on his phone, when he got a call. A lightning strike at the Glaucus plant tripped the electrical system off line, triggering a “hard crash” and a complete shutdown of the plant.
“Gotta go,” Little said to his wife as he jumped up and grabbed his raincoat.
“Where to?” she said.
“The plant’s been knocked out by a lightning strike. I gotta get over there!”
“Drive safely!” she called after him but he was already out the door.
Driving to the plant with rain pelting his windshield, Little’s mind raced.
“What to do?”
The truth was, he didn’t know.
Part Two: Break Down
When Little arrived at the stricken plant, his assistant plant manager, Denny Ashe, was waiting for him just outside the door.
“It’s a complete shutdown, nothing is on line,” Ashe said as he and Little walked into the plant together.
Little strode out into the plant’s main control room. Nothing seemed amiss, but everything was shut down.
“Do we have power?” he asked Ashe.
“Yep, we’re just reconnected,” Ashe said. “The strike tripped our system, but the circuit breakers have been reset and service has been restored.”
Little stood, looking at the idled control panels for the plant’s equipment and at the faces of the operators, who were watching him expectantly. The faces of the watching operators triggered something in Little.
It looked like they were expecting him to act, so he did.
Little turned to Ashe.
“Let’s start it back up.”
“Are you sure?” Ashe said.
Ashe was just asking a question, but it angered Little.
“Yes I’m sure!” Little thundered.
“Start it up like I said!”
Just then, the phone number of Little’s manager flashed on his phone. Flustered, Little didn’t answer the call.
What Little didn’t know and didn’t take the time to find out was that a critical steam turbine driving a process compressor was damaged when the lightning strike shut the plant down so suddenly. The turbine was vulnerable because it hadn’t been properly maintained due to production demands.
Little went out and stood in the middle of the compressor building with his hands on his hips as Ashe worked with the operators in the control room to get the plant back on line.
When the plant restarted, the turbine started to vibrate excessively. Without vibration trips, the turbine continued to operate. The vibration caused a lubrication oil line to break, which in turn started a fire.
“Fire!” one of the turbine operators yelled as he ran to grab a fire extinguisher since there was no sprinkler protection installed, but another turbine operator beat him to it. The fire was so intense that it burned the two workers severely.
Denny Ashe shut the plant back down as calls went out to the emergency response team.
As a member of the emergency response team used a first-aid kit to attend to the turbine operators, Little stepped back, realizing that he still held his phone in his hand.
He couldn’t look at the injured workers laid out on the compressor building floor, with their co-workers offering them aid. He couldn’t face it.
Little just stared at his phone in shock, unwilling to dial his boss’s number.
It took a week of meetings between plant operational personnel to determine just how bad the situation was.
The team determined that the $10 million turbine, which was crucial to the plant’s production process, was totally destroyed.
The plant was powerless without the turbine; it couldn’t produce ammonia.
“I can’t tell you,” is what the equipment manufacturer said when Little called him and asked when they could deliver a replacement.
“It could be six months, it could be nine months, it could be longer,” the manufacturer’s representative said.
“When are we going to be back up?” is what Little’s manager asked him, two weeks after the shutdown and the turbine fire.
“I can’t answer that question,” Little said.
Part Three: A Chilling Dawn
Seven months after the lightning strike and the turbine fire that injured two workers, Little finally had an answer to that question.
With a date for the delivery of the replacement turbine now firm, it would be two more months before Glaucus Inc.’s Edmonton plant could resume ammonia production.
Little’s initial inability to tell senior management when the plant would reopen motivated them to send an engineering team from the company’s Shreveport, La., plant to conduct a complete inspection of the Edmonton plant.
“I want to state for the record that I was asked by management to extend the production run at the expense of the regularly scheduled maintenance,” Little told the inspection team as they sat down with him and some of the senior management team to report on their findings.
“Barry, we’re not here to officiate between you and your manager,” the head of the Shreveport engineering team told him.
“We’re just here to report on what we found.”
The engineering team reported that the Edmonton plant’s electrical system was well used and wasn’t adequately maintained. It didn’t matter that Barry Little had only been plant manager for a year, the fault lay at his feet.
The engineering team also faulted the Edmonton operation for extending production without maintaining the plant’s equipment; not installing vibration trips on the critical turbine; not adequately maintaining turbine integrity; failing to have a written contingency plan, including maintaining spares for critical pieces of equipment and not installing sprinkler protection on the turbine.
Instead of being on track to increase its revenues from $1 billion to $1.25 billion, Glaucus Inc. saw its revenues in the year of the Edmonton plant failure slip down to $900 million. The work stoppage at Edmonton cost the company $125 million in plant repairs and lost revenues.
When it reported its full-year figures, the company’s stock price tumbled 20 percent.
The fact that Barry Little was in the process of writing a contingency plan when the plant experienced the lightning strike and hard crash didn’t help him much. He was fired in the first quarter of the following year.
Risk & Insurance® partnered with FM Global to produce this scenario. Below are FM Global’s recommendations on how to prevent the losses presented in the scenario. This perspective is not an editorial opinion of Risk & Insurance®.
No company can afford the loss of property, lives and productivity from destruction caused by fire, natural hazards or equipment outage. Equipment damaged in minutes can take many months to repair or replace. If there is business interruption, revenue, stock price and shareholder confidence all can take a major hit. Market position may be lost. Inflation and material shortage may make rebuilding difficult and costly.
Of course, insurance helps alleviate some of the cost associated with property damage. But insurance isn’t the only answer, especially when considering the loss of customers, productivity, goodwill and staff.
Reliable equipment delivers resilient service to your production, utility and support systems, can reduce risk to your business and help your organization maintain a competitive advantage.
Webinar – Value-Based Purchasing in WC: An Idea Whose Time is Here
Getting excellent medical results for injured workers at a price that is both predictable and reasonable doesn’t seem like too much to ask. So why is it that the workers’ comp industry and its vendors can’t get this one right?
This webinar’s expert panel is going to show us the way forward. We’ll hear from a California-based medical provider who is contracting with carriers to produce high quality results with spinal injuries, one of workers’ compensation’s toughest and most expensive challenges.
We’ll also talk to the executive director of one of the largest state funds, which has launched a pilot program to use value-based medical provider compensation in managing hundreds of worker knee injuries.
Lastly, we’ll hear from a workers’ comp company that has successfully launched a value-based program for bundled orthopedic surgical procedures.
Furthermore, the expert panel will discuss:
- The impact of healthcare reform and the creation of accountable care organizations; and the need for workers’ comp to recognize that it must inevitably follow the trend away from the flawed fee-for-service model.
- How improved modeling is giving payers and providers much better transparency into their risk portfolios of injured workers, and how those analytics can be acted on.
- That although frequency is down, workers’ comp costs continue to rise. Merely watching this trend and doing nothing is not an option.
- The challenges of bundled or value-based purchasing, presenting a holistic view of this topic.
- The recommended steps workers’ comp can take today to implement value-based models, moving the industry towards walking the walk not just talking the talk.
Date / Time: Thursday, September 3rd, 2015 1:00-2:00 pm Eastern Time
Space is limited, so register today!