A Rugged Path to Occupational Health
Working as an oil field roughneck and Alaska bush doctor are among early occupational experiences that shaped Will Gaines understanding of injury treatment long before becoming Liberty Mutual’s National medical director.
While working pipeline construction in North Texas and Southern Oklahoma the summer after graduating from high school, Gaines even considered skipping college altogether for a blue-collar pursuit.
It was 1974 and the start of construction on the trans-Alaska pipeline offered financially-attractive work for a young man already yearning to visit Alaska, Gaines recalled. His father, however, didn’t want his son foregoing college for an oil-industry construction job.
“The old man and I had a very robust physical disagreement over that,” Gaines recalled.
He immediately entered college after high school, promptly followed by medical school and then his medical residency work.
Roughly 15 years after the disagreement with his father, ConocoPhillips hired Gaines as medical director for its Prudhoe Bay operations, allowing him to tell dad he actually won the dispute.
“I said I finally got to Alaska in the oil industry so I really won out in the long run,” Gaines said.
While the ConocoPhillips work focused on treating oil workers, the oil-giant’s medically advanced clinic offered the only emergency room in the region. That meant also treating hunters, tourists and others needing acute medical care.
Gaines was already working in Alaska when ConocoPhillips hired him. The Texan went their two years earlier for the Tanana Chiefs Conference, a tribal consortium of villages that provides health care among other services.
“For lack of a better term, I was a bush doctor,” Gaines said. “I spent time in the clinic in Fairbanks. But then you would fly in to the villages, most of them up and down the drainage of the Yukon.”
“I saw a lot of injuries that went down and how hazardous (the work) was. I saw the impact, what it will do to an individual and if you are on a crew and shorthanded you understand the impact on the employer.” — Will Gaines, national medical director, Liberty Mutual
Between working for ConocoPhillips and joining Liberty Mutual in 2003, first as a regional medical director and eventually being named the insurer’s national medical director in November 2014, Gaines held related professional roles. Those included chairman of an occupational-medicine department at a health care system that serves as the primary teaching facility for Texas A&M.
He also held the title of associate medical director for Procter & Gamble.
But his earlier blue-collar experiences had already shaped his understanding how accidents harm workers and their employers.
During high school and college summers Gaines worked construction, including operating heavy equipment to install subdivision sewer lines and roads. There was also a summer spent working steel construction, building massive oil storage tanks. “So I spent a summer walking the iron as we called it,” before eventually working as an oil industry rough neck.
Utility construction and heavy equipment operation continued through his first two summers of medical school. Conventional practice at the time called for medical students to work in hospitals. But his blue collar skills paid better.
“Frankly, I needed the money and really couldn’t afford at that point to go into a hospital,” Gaines said. “Most of the stuff I was doing paid darn well. I liked being outdoors and I liked being around blue collar people at that time more then I liked being around medical people.”
Eventually though, it was time for greater “focus on being a doctor and not doing all this other stuff,” he added.
By then, worker injuries and deaths experienced while working at that “other stuff” shaped his medical career, emphasizing occupational injury treatment. He had heard first-hand from injured co-workers what they expected from a good doctor and the injuries he witnessed made him consider a company’s losses when injured workers are absent.
“I saw a lot of injuries that went down and how hazardous (the work) was,” Gaines said. “I saw the impact, what it will do to an individual and if you are on a crew and shorthanded you understand the impact on the employer. Unfortunately, there were two occasions where people I worked with got killed on the job. It makes you think about health and safety at work.”
The growing labyrinth of laws allowing some form of marijuana use has made crafting corporate drug-free policies a real buzzkill. The task is becoming nearly as complex as drafting strategies for complying with the Family and Medical Leave Act, and that law’s numerous state offspring.
I’m exaggerating. Creating a company policy on drug use and drug-testing procedures can’t be as nightmarish as leave-law compliance.
But after reading “Marijuana in the Workplace: Guidance for Occupational Health Professionals and Employers,” I have two overriding thoughts.
One, I hope the writers saw the pun in beginning the paper’s subtitle with “Joint Guidance Statement …”
When it comes to marijuana, the days of a one-size-fits-all zero-tolerance policy are slipping away.
Two, when it comes to marijuana, the days of a one-size-fits-all zero-tolerance policy are slipping away. This is particularly true for those with operations across multiple states with varying cannabis laws.
Societal, legal and medical forces are driving a need for a greater assessment of each employer’s attitude and policies regarding marijuana use. Rapidly shifting dynamics have also increased the need to seek the guidance of legal and health care professionals when crafting corporate policies on marijuana use and drug testing.
The broader forces at play include shifting public attitude toward marijuana; increased adoption of medical or recreational marijuana laws, including some with limits on employer treatment of cannabis users and a few with discrimination protections; the federal government’s inconsistent enforcement stance on state marijuana laws; and evolving scientific evidence of marijuana’s efficacy for treating certain ailments.
At least 23 states now have medical cannabis laws, four others have legalized recreational use, and that trend is expected to continue. Meanwhile, marijuana remains the substance most often detected in workplace drug-testing programs.
The new hodgepodge of state laws includes a few protecting marijuana use outside work hours, others limiting drug-testing practices, and still others raising unknowns, including how some state regulations will interact with disability laws.
Yet employers must still protect worker and public safety, comply with regulations regarding zero tolerance for safety-sensitive positions, and guard themselves against worker impairment, productivity losses and job performance problems, etc.
Fortunately, no state law requires employers to permit workplace drug use or tolerate impairment at work, allowing companies to implement drug-free-workplace policies.
The recent jurisdictional variations in laws, coupled with the desire of many employers to use drug testing to maintain safe work environments, leave companies in a thornier weed patch than before.
“Reconciling varying and dynamic state laws in regard to legality, permitted use in the workplace, and lawful drug testing can be challenging,” the paper stated. “Every employer should consult with legal advisors to ensure that they comply with any applicable state or local laws and design their testing programs to withstand legal challenges.”
Every employer wanting to better understand marijuana, review related state and federal laws, and learn some suggestions for monitoring workers for marijuana use, might want to start by reviewing the guidance paper.
Because while marijuana users often cite relaxation and euphoria as reasons for consuming the drug, it’s obvious that employers have less to relax about.
The Risks of Opting Out
Employers operating in Texas often tell me about the superior claims management results obtained by opting out of the state’s traditional workers’ compensation system.
Their eagerly shared success stories explain why they would want the opportunity to opt out of workers’ comp systems
in more states, as is currently possible only in Texas and Oklahoma.
Yet, if Texas is to be held up as an example of the benefits of opting out of traditional workers’ comp mandates, it is also essential to understand an employer’s potential costs when opting out goes awry.
A Texas appeals court decision upholding an injured meat cutter’s $1 million jury award provides an opportunity to do that.
The ruling handed down recently in The Kroger Co. v. Christopher Milanes shows that companies that opt out of Texas’ workers’ comp system are exposed to considerable jury awards.
That’s an unlikely scenario under traditional workers’ comp systems with exclusive remedy protections for employers.
The Kroger case involved a meat cutter who severed three fingers while operating a saw. His injuries required three surgeries.
Kroger later fired him for insubordination while he was on light duty. Milanes argued that he declined a supervisor’s request to perform a task because of considerable pain.
He sued Kroger for negligence and the appeals court was unsympathetic to Kroger’s arguments for overturning the lower court’s jury findings.
The appeals court ruled sufficient evidence existed that there was negligence in the provision of safe equipment and safety regulations, as well as lapses in training.
Although Kroger did not have an arbitration agreement in this case, the Lone Star State allows non-subscribing employers liberal use of such agreements. Critics of opting out say this keeps disputes out of court and out of the public eye.
A 2014 Texas Department of Insurance report states that 66 percent of large non-subscribers use arbitration agreements.
But the absence of one allows the public, including other employers, insight into the potential medical, legal and jury-award costs when an employee brings a negligence suit.
Texas law particularities include the lack of exclusive remedy protection for non-subscribing employers, which could have prevented the negligence suit.
In contrast, opting-out Oklahoma employers retain that protection.
The case-specific facts and nuances of Texas law applied in Kroger don’t allow the $1 million judgment to stand as an example of what employers would face in other states that one day may sanction opting out.
How employers and employees would fare should other states allow opting out would depend on how legislation is crafted and enforced.
But whenever employers look to implement alternatives to traditional workers’ comp arrangements, they should know the risks, like those Kroger faced.
While the case’s $1 million award is an attention grabber and should make employers weigh the value of traditional workers’ comp arrangements, I don’t think I will stop hearing positive reports from large employers that have benefitted by opting out in Texas.
The 2014 Texas Department of Insurance report shows that 33 percent of the state’s employers opt out and that non-subscribers experience higher levels of satisfaction than those participating in the state workers’ comp system.