Rx for Violence
Law enforcement responded to Brigham and Women’s Hospital in Boston on Jan. 20, 2015, where a cardiologist was killed.
Dr. Jeffrey Ho treats patients in a busy Level 1 trauma center at the Hennepin County Medical Center in Minneapolis, and he teaches emergency medicine at the University of Minnesota Medical School. He’s also a sworn deputy sheriff in neighboring Meeker County.
The combination of medical practice and law enforcement is not the contradiction it might seem.
It led to his belief that the most effective strategy for preventing violence was not necessarily more deterrence in the form of weapons and armed security, but more and better training in violence recognition and pre-emption for people who dedicate themselves to the helping professions: doctors, nurses, technicians, administrators and therapists, as well as support staff such as receptionists and maintenance crews.
Health care workers are injured through violent acts at more than four times the national rate, according to the U.S. Bureau of Labor Statistics. FBI statistics show the incidence of active shooter incidents in health care settings rose from 6.4 per year between 2000 and 2006, to 16.4 per year between 2007 and 2013.
Those numbers are a gross underestimate, Ho said, because the health care culture doesn’t yet take assaults seriously, other than the deadly ones. OSHA doesn’t break out violence in its statistics on injuries to workers, although it breaks out other sources of injury. And workers themselves don’t consider minor incidents worth reporting.
When he consults with other hospitals on beefing up security — another of his jobs, along with his role as medical director for TASER International — Ho asks caregivers, “Has a patient ever threatened you or has anybody ever touched you?”
“Every hand goes up,” he said. Then he asks how many times they’ve reported it. “Nobody raises a hand,” he said.
A Big Problem, But How Big?
When an accurate registry of incidents exposes the pervasiveness and severity of the problem, Ho said, hospital administrations, the insurance industry, the government and general public will be shocked into corrective action.
However, obstacles to accurate reporting are nearly as pervasive as the violence itself.
The main reason violent incidents are under-reported, said Barry Weiner, managing director, health care practice leader, Aon, is that there is no mandate for facilities to report all events.
For those that report anyway, there is no universal definition of a reportable (or recordable) injury, said Jane Lipscomb, professor at the University of Maryland Schools of Nursing and Medicine, and author of “Not Part of the Job: How to Take a Stand Against Violence in the Work Setting.”
OSHA has one set of requirements, workers’ compensation carriers may have another and facilities may have their own.
“What’s an ‘event’?” asked Weiner. “Every emergency department sees a half-dozen on a good night, but won’t report all of them. Where is the threshold for reportable incidents?”
“We had to get staff to understand that behaviors that would be criminal in other settings are not OK just because they happen in a hospital.” — Dr. Jeffrey Ho, Hennepin County Medical Center
Many victims, particularly nurses, don’t report staff-on-staff incidents for fear of retaliation, said Lori Severson, health care loss control consultant, Lockton Cos.
An Institute for Safe Medication Practices study finds a virtual epidemic of violence, intimidation and passive aggression by health care workers, who may be stressed out by accountability for life-and-death procedures.
A dysfunctional team, said Lipscomb, is more apt to make errors, which may expose the organization to litigation. “Increasingly, organizations recognize that staff safety and patient safety are closely linked.”
Obstacles to Reporting
Electronic medical records, mandated by the Affordable Care Act for patient records, may contribute to the problem, said Weiner, as hospitals may have a disincentive to record incidents.
“Discoverability can be an issue,” he said. “An electronic record is permanent and discoverable. Both sides can use it in a courtroom.”
Not infrequently, Severson said, a repeat offender cycles through a facility again and again. “Health care workers may then feel workplace violence reporting isn’t a solution but an empty motion. Why report the same person multiple times?” she asked.
Veterans Affairs facilities electronically flag the file of patients who have acted out violently against staff in the past two years, and security personnel escort them whenever they’re in a facility for treatment, according to published reports.
The financial ramifications of violence combined with the need to protect employees create an urgent problem. A broker’s role, said Weiner, is to work with clients to scope out the problem.
“Some of the solution lives with us. We deliver training, promote best practices and engage leadership in meaningful discussion about reducing violence.”
Responsibility for the so-far nonexistent registry of assaults, Ho said, doesn’t belong with a government agency, but with a professional risk association.
The American Society for Healthcare Risk Management was unavailable for comment.
But a professional association faces the same obstacles as OSHA, the Department of Labor, the Crime Victimization Survey and the “other organizations out there trying to make good estimates,” said Lipscomb. “Staff don’t report if they work in an environment where they think violence is part of their job, where reporting is risky, and where it won’t produce results anyway.”
Disrupting the vicious cycle of under-reporting and perpetuation of violence, Lipscomb said, usually depends on a facility’s enlightened leadership, without whose commitment of time, resources and adequate staffing to meet patients’ needs, culture change is “nearly impossible.”
The organizations she visited to identify best practices, she said, have many things in common, such as morning huddles every day, when CEOs and unit heads get together to talk about what happened in last 24 hours. “They ask, ‘What do we need to do to make sure it doesn’t happen again?’ ”
“Staff don’t report if they work in an environment where they think violence is part of their job, where reporting is risky, and where it won’t produce results anyway.” — Jane Lipscomb, professor, University of Maryland Schools of Nursing and Medicine
This is already common practice with patient care. Taking their cue from aviation and other safety-essential industries, they have adopted a culture where errors and near misses are considered opportunities to improve the facility’s practice.
“That’s how you get people to report,” Lipscomb said. “Then you can do something about the problem.”
Ho’s facility has done “a good job” controlling violence, thanks to senior management’s follow-up on recommendations from a violence prevention task force formed in 2007. The task force’s recommendations start with a carrot (de-escalation) and end with a stick (force). The longest journey, he said, was training staff members to consider their own safety.
Having been taught for years that verbal abuse and getting punched in the face by a distraught patient or family member is simply an occupational hazard, the forgivable by-product of grief or pain, “we had to get staff to understand that behaviors that would be criminal in other settings are not OK just because they happen in a hospital.”
In fact, several states have passed legislation making any attack on a health care worker a felony. Although there is no federal standard for workplace violence protections, according to the American Nurses Association, some states require employer-run workplace violence programs. Washington is the only state to require reporting of incidents.
Among the Hennepin County Medical Center task force’s recommendations: Signage around the facility stating appropriate behavior.
The Joint Commission, a national certifying organization, now requires its accredited hospitals to have a code of conduct that identifies appropriate behaviors and how inappropriate behavior should be managed.
Training helps staff recognize risks, such as frustration with long ER wait times, intoxication and drug-seeking behavior, according to experts.
It teaches empathetic listening, the most basic de-escalation technique, which means the distraught person has no need to act out in violent ways to be heard, said Elizabeth Moreland, senior risk engineering consultant, Zurich Insurance.
Emergency rooms and mental health settings are particularly high-risk areas, experts said, but “everyone who has patient contact should get basic crisis prevention awareness training,” said Moreland.
Some organizations, such as the Crisis Prevention Institute (CPI), provide training specific to health care facilities. Typically, a facility sends one or two staff members for training, and they return to spread the gospel.
The National Institute for Occupational Safety and Health, the Centers for Disease Control and Prevention, and some trade associations offer free programs and best practices to help manage health care violence.
Training typically includes rehearsing non-judgmental and non-provocative responses to a distraught person’s demands. Body language can also diffuse emotions, Moreland said. For example, standing to a person’s side is a less confrontational posture than standing nose to nose.
For most people, these techniques require practice, she said. “In-service role-playing is very effective. Don’t depend on once-a-year training sessions.”
People, Not Livestock
Batsheva Katz, vice president of Windsor Healthcare Communities, which runs elder care, skilled nursing and rehabilitation facilities in New Jersey, takes pains to provide “a happy environment” as the most effective prevention against violence.
Biting, hitting, pushing and scratching are typical assaults in residential facilities, where emotions run high among residents and their families as they face the fear of mortality and the discomforts and humiliations of aging.
“Happiness” in those circumstances is a systematic, top-down effort to treat residents “as someone’s mother or father,” rather than as bodies that need to be fed and washed, Katz said.
“That means talking to them if they want to talk, addressing them by name, knowing their tastes and preferences.” It also means teaching care partners to approach residents slowly and speak softly but audibly. Care partners explain what they’re doing, such as, “I’m going to put your socks on now.”
This is a human resources issue, Katz said, requiring adequate staff, time, training and a concerted search for applicants with the friendly, caring personalities that are crucial, but harder to find than résumés boasting relevant but teachable skills.
The practice pays off in “extremely favorable” workers’ compensation premiums, virtually no claims related to violence and very high employee retention, said Ettie Schoor, president, Prism Consultants, Windsor’s hands-on insurance broker.
When new residents are admitted, Windsor’s interdisciplinary care partners and administration undertake a “72-hour meeting” with them and their families to get to know the resident’s tastes, personality, triggers and risk factors, such as dementia or a tendency to wander; if residents wander, their care partners wander with them and bring them back gently, Katz said, to avoid power struggles. Windsor matches residents with care partners they like and trust.
For example, said Katz, staff members noticed one resident’s combativeness eased on weekends, when he had a male certified nursing assistant (CNA). “All he wanted was a male CNA,” said Schoor.
Kendra L. Stea, director of client services, CPI, urges facilities to reconsider inflexible rules, policies and protocols that produce power struggles between patients and staff, which can escalate into violence.
A psychiatric patient’s request for a glass of milk at night led to “a really ugly outcome,” she wrote in a CPI blog, when a caregiver refused, saying it would lead to a stampede of midnight demands for milk.
“We have to be creative and flexible in deciding which of our rules are negotiable, and which are non-negotiable,” she wrote.
Securing the Plant
Ryan Clarke, director of security and transport, Renown Regional Medical Center in Reno, Nev., agreed that education and awareness are the best tools against violence.
After a shooter killed a doctor and wounded two others before killing himself in 2013 at the center, Clarke’s facility introduced more comprehensive staff-wide de-escalation training for handling people who are verbally or physically out of control. And it added armed security guards to its team, mostly as a deterrent to future attacks but also to add a greater level of response.
Much of its re-evaluation of the physical plant’s security addressed access control: Who needs to be where? Who’s coming into the ER? Armed security guards and volunteers, who are trained to perform a visual risk evaluation, greet people as they pass through a door.
“We put access control at main and intermediate doors inside the ER so if we need to lock down an area, we can,” Clarke said.
“If we suspect a visitor problem, we can lock the lobby off from the patient area until we can ensure that it’s safe.”
Clarke looks at furniture. Can it be broken up and weaponized? He also looks at layout. Is there enough space to separate people with a history of hostilities, maybe gang members or fighting domestic partners, who may meet again in the ER?
“In a good layout,” he said, “visitors see a staff member or security officer as soon as they enter. In a poor layout, the entrance is isolated, and nobody is there to identify potential threats.”
Some experts challenge the efficacy of color-coded alert systems — such as Code Gray for personal threat — as unintelligible and unhelpful to non-staff. Emergency codes are not standardized by any state or agency.
After the tragic 2015 shooting at Brigham and Women’s Hospital (BWH) in Boston that left a cardiologist and the shooter dead, police were on the scene within seconds, the 5 million-square-foot facility was cleared within 16 minutes and the violence was contained to the exam room.
That faint silver lining was due, in part, to a 39-word plain-English scripted announcement that identified and located the incident and explained what to do.
An announcement “needs to be plain English so untrained visitors, patients, anybody who is in the building, can hear it and know what’s happening,” Robert Chicarello, director of security at BWH, told “Boston Magazine.”
Pamela Popp, executive vice president and chief risk officer, Western Litigation, recommended that health care facilities cultivate relationships with law enforcement.
Facilities that can’t hire security staff may offer free food or cafeteria discounts to local police, whose presence serves as a visual deterrent.
Ho agreed, with qualifications. Does the cop understand how to work in health care settings? In case there’s a pursuit inside the hospital, is the sterilization area locked? Are there flammable gasses?
“A firearm or Taser is dangerous in those environments,” he said.
A security solution that’s appropriate for one facility won’t necessarily work in another because of endless variables: differences in the community, the layout, the size of the hospital and risk factors in the community.
Study and adapt best practices, advised Clarke.
With public anxiety about companies running high after crashes, contaminations, cyber attacks and leadership failures, insurance buyers and sellers agree on the need for insurance solutions to protect reputations.
But they are still figuring out what should be covered, when coverage should be triggered, where to set insurance limits and how to pay out benefits.
There’s no denying the cry of need for reputation risk insurance — worries about brand and reputation are the top threats keeping executives up at night, according to the most recent “Aon Risk Solutions Survey.” But the take-up rate on the handful of current stand-alone policies has been “almost immeasurably low,” said Randy Nornes, executive vice president, Aon Risk Solutions and an author of the survey.
The failure so far of stand-alone products to catch on doesn’t mean risk must be left uncovered, said Tracy Knippenburg Gillis, global practice leader, Marsh Risk Consulting’s reputational risk and crisis management practice.
“As carriers figure out the optimal combination, many existing policies — including directors and officers, umbrella, cyber and property — currently have endorsements available for crisis response,” she said.
Examples of companies currently offering stand-alone policies, include:
- Only losses (Munich Re)
- Only crisis and/or communications management (Zurich and Lloyd’s)
- Both losses and crisis communications management (AIG and Steel City Re)
The policies that cover only crisis management and communications are a placeholder while the industry develops a more complete solution, said Ty Sagalow, chief executive officer and founder of Innovation Insurance Group and a 30-year C-suite alumnus of AIG General Insurance and Zurich North America. “Nobody thinks crisis management products that pay a couple hundred thousand are the answer, but where there’s a need, a solution will follow.”
Chief among the challenges for stand-alone policies that cover losses, Nornes said, is quantifying potential and actual losses. Another is that reputation damage itself is the result of other risks, which divert companies’ attention from reputational damage to the issues that drive them.
The issues most driving them are ethics and integrity; security, both physical and cyber breaches; product and service risks (such as those related to safety, health and the environment); and third-party relationships, with companies increasingly held accountable for the actions of their suppliers and vendors, according to Deloitte’s “2014 Global Survey on Reputation Risk.”
Working the Numbers
Quantification of reputational risk is “an inexact science,” reported a 2013 ACE Group reputation study, subject to vagaries stemming from an organization’s pre-crisis reputation, its response to the crisis, and how quickly it reassured stakeholders that the underlying problems had been addressed.
“These subtleties mean that quantification of reputational risk will inevitably rely on a number of assumptions, and that could generate a false sense of precision, leading companies to rely on estimations that may ultimately turn out to be wide of the mark,” it said.
Hart Brown, vice president, organizational resilience, HUB International, agreed that a mature insurance solution is around the corner.
Its development, he said, is inhibited by still-developing data analysis and predictive modeling tools, but the technology is “getting closer” to supplying a solution that will give actuaries more precise projected losses from reputation-damaging events.
Identifying possible risks starts with common sense — Emily Freeman, risk management, cyber and professional liability specialist, Lockton Cos.
Some industry players believe the solution is already at hand. Nir Kossovsky, co-founder and chief executive officer, Steel City Re, built his company, and his company’s reputation, on those very data analysis and predictive modeling tools.
Steel City Re, which provides reputation assurance solutions, measures the implied reputational values of 7,500 companies every week using metrics, many of which predict what will appear on profit and loss statements: revenue, employee expenses, credit costs, supplier costs, and fines and penalties associated with regulatory action.
Value also manifests in shareholder actions, merger and acquisition scenarios and equity investor optimism.
When stakeholders are disappointed in an organization, Kossovsky said, they jump ship. Customers leave, price points fall, suppliers charge more, credit is withdrawn, employees disengage and regulations are imposed. Typically, those consequences can equal two to seven times the cost of the original operations failure.
For example, Penn State University acknowledged a financial impact of $171.5 million two years after the 2011 Jerry Sandusky scandal, in which the former assistant football coach was convicted of assaulting young boys. That may not include such items as lost research grants and decreased out-of-state applications, which could push the bill higher.
The total number, Kossovsky said, could be derived from “very big data” — Penn State’s average resource allocations over the years compared to other institutions.
“Then you ask, ‘After the Sandusky scandal, did Penn State’s behavior relative to the average or control group change substantially?’ If it did, you could reasonably argue that the change reflects the Sandusky event.”
The scandal prompted an FBI investigation, shook up the university’s top leadership and resulted in a post-season ban of the football team. Headlines called out “Penn State” and “child sex abuse” in the same phrase.
But in fiscal year 2011-2012, the school received donations of $208.7 million — the second-highest annual amount in its history — according to the university.
The reason, Kossovsky said, was the institution’s reputation resilience. While out-of-state stakeholders might send their children to other storied universities until the incident faded from memory, Pennsylvania residents and fervently loyal alumni were willing to approach the indiscretion as an anomaly and move on.
Of course, most organizations lack Penn State’s mythology, which produced its reputation resilience.
“It doesn’t matter if it’s a data breach or product recall. We can come to a good approximation of what it will cost.” — Randy Nornes, executive vice president, Aon Risk Solutions
For others, quantifying losses is a “math problem” requiring a decision tree based on a series of questions about the event, Nornes said.
“It doesn’t matter if it’s a data breach or product recall. We can come to a good approximation of what it will cost.”
First is the magnitude of the event. Was it widely reported? Did litigation or liabilities follow? Was it a data breach that disclosed personal information? How will it affect future sales? Then there are subcategories. Was it a safety event? What kind?
Stop the Bleeding
A company’s response to a crisis — the purview of crisis management and communications insurance coverage — profoundly affects losses.
“A mismanaged crisis response will bring down a company faster than anything else,” said Mike Swenson, president, Crossroads, a public relations and crisis communications management firm that represents numerous food manufacturers.
In the age of Twitter and Facebook, that requires a lightning-fast response, which in turn means having a well-practiced crisis plan and wholehearted buy-in from the C-suite and the board of directors.
“There are no longer any news cycles,” Swenson said. “After an event, you have no planning time with social media. If something goes wrong, you have minutes, not hours, to respond.”
To be effective, he said, the plan must:
- Identify the team that will leap into action in a crisis.
- Identify all the imaginable and unimaginable risks, and all possible variations facing the company.
- Map a response to each crisis.
- Develop key messages consisting of three to five talking points for each crisis.
Some carriers align their policies with a selected panel of agencies, vetted and retained for their experience, reputation, cost, service package, geographical scope and industry expertise, said Emily Freeman, risk management, cyber and professional liability specialist, Lockton Cos. Carriers may consider vetting and pre-approving a client’s own external PR or crisis management firm.
AIG’s ReputationGuard is one of the products that uses a panel of crisis management and communications agencies.
Typical of its peer products, coverage responds to extraordinary events, not day-to-day business operations, such as a crime by an executive or on the company’s premises, said Jeanmarie Giordano, chief underwriting officer, professional liability, AIG.
Atypically, coverage is triggered when the insured contacts the agency either to prepare a response to a still-hypothetical threat or to an actual one that may go public. The firm helps the company respond through social media, publicity, public appearances and image monitoring.
Plan for the Worst
Identifying possible risks starts with common sense, Freeman said. “If the company has exposure to children, it needs to think about personal safety. If it offers public facilities, it needs to think about violence. If it’s involved in transportation, it needs to think about accidents.”
A lot of tangential issues emerge in the process, said Aon’s Nornes, such as climate change. A company might ask, ‘Are we good environmental stewards?’
“You can make a pretty good list of risks,” he said. “The question is, are you running exercises and drills around situations you thought about? Not every company does the second piece.”
Eerily, he said, when Aon mapped out risk scenarios by industry in 1999, its aviation category contemplated two 747s flying into the World Trade Center.
The ACE study advises companies to listen, engaging in “more frequent dialogue with stakeholders to understand their views and monitoring the external environment more systematically to identify the emerging reputational threats that put their relationships at risk.”
Commitment starts at the top. Boards of directors should take time at board meetings to discuss customer satisfaction, brand identity, customer loyalty and elasticity measures.
This organizational soul-searching makes companies “better firms and better prepared” for crises, said Nornes, because it “translates to changes in both process and traditional insurance related to perils that drive reputational risk.”
Publicity about poor customer service or some mishap can be repeated multiple times over social media. “There’s a high value in thinking the response through,” he said.
A crisis response plan can shake a company out of the complacency that can leave exposures hiding in plain sight.
For example, Freeman said, “A company may have excellent cyber security and so neglect to put a crisis plan in place for a data breach even though it collects sensitive customer information and processes their credit cards.”
A thorough examination of risks and responses would catch that kind of exposure.
Scenario planning also picks up the slack left by failing attention spans, which — for people who use multiple digital devices — are now shorter than that of a goldfish, according to a recent Microsoft study.
“Who can actually forget a school shooting or an oil spill that kills 11 people?” said Leslie Gaines-Ross, chief reputation strategist, Weber Shandwick, which is on several carriers’ panels of crisis communications experts.
But people move on to the next threat. For example, Gaines-Ross said, privacy was the top threat on executives’ minds last year; this year it’s reputation risk, but privacy threats haven’t gone away, especially in the minds of miscreants.
A well-thought-out response can turn a bad story into a good one, said Swenson of Crossroads.
For example, he recalled, when the story of horse DNA in some of Taco Bell’s European locations hit the Internet, the result of a supply chain failure, the restaurant chain used the bad publicity to drive people to its website, which staunchly defended the purity of its American product.
“They created viral marketing to turn a bad thing into a good thing. It works both ways. You have to be prepared for an adverse event.”
In Danger’s Path
Defense contractors in the Middle East work in some of the most dangerous and inhospitable conditions on the planet. Workers are drawn there by high pay rates, but face a long list of exposures.
Defense Base Act (DBA) insurance provides the sole workers’ compensation remedy for these employees, although some employers supplement that cover with employer liability coverage, in case of legal action from injured workers or third parties.
Provided through the Department of Labor, DBA coverage is congressionally mandated for civilian employees working outside the United States on military bases or under a contract with the government for public works or for national defense unless their employer obtains a waiver.
DBA carriers qualify for full reimbursement from the government for injuries caused by a “war-risk hazard” under The War Hazards Compensation Act.
Video: The DOL in 2009 reported that at least 1,688 civilian contractors in Iraq and Afghanistan died and more than 37,000 were injured, according to this Global Report TV broadcast.
Although conflict is spreading in the Middle East, many areas are not considered “conflict zones” where qualified injuries would be reimbursable by the federal government.
Still, DBA benefits are broad, said Karen Dobson, national client director, Aon Risk Solutions. They don’t officially provide 24-hour coverage, but they apply to many activities, sometimes even those as questionable as bar fights and softball injuries.
AIG has the lion’s share of the statutory DBA business, followed by CNA and ACE.
Neither the Department of Defense nor the Department of Labor releases statistics on the number of workers covered by the DBA, but the Business Benefits Group, a benefits consultant, reports that it covers almost 200,000 prime and subcontractor employees overseas and that it generates annual government-wide premiums of more than $400 million. DBA coverage extends to foreign nationals as well as U.S. citizens.
Contractors accounted for at least 50 percent of U.S. forces in Iraq and Afghanistan over the last decade, and before that, in the Balkans, said Moshe Schwartz, specialist in defense acquisition, before the House of Representatives’ Committee on Armed Services in October 2013.
High Risk and High Rewards
Despite its dangers and discomforts, the Middle East is an attractive place to work for many, said Aon’s Dobson, in large part because the work pays so well. For example, a truck driver who makes $40,000 per year in the United States may make $100,000 per year in the Middle East.
“An attorney will ask, ‘Is the worker’s heart condition or inflamed liver related to drinking bad water in Afghanistan?’ ” — Scott Bloch, a Washington, D.C. attorney who represents injured employees in many DBA cases.
But fundamental safety considerations sometimes get pushed to the back burner by extreme conditions. In challenging environments, such as 120-degree heat, “people just want to get the job done, and they’re not always focusing on safety procedures or taking the time to avoid risk,” said Alan Leibowitz, corporate director, environment, safety, health and security for Exelis Inc., a contractor with a large Middle East footprint.
Those shortcuts can lead to high injury rates. Workers in the Middle East are injured at least 10 times more frequently than their stateside equivalents, said Haleh Khodayari, chief executive officer, Advanced Consulting Inc., a global risk management firm based in California.
The costs in those cases can escalate rapidly due to exorbitant medical, medevac and repatriation expenses, in addition to lost time from work. The list of regional and war zone exposures is long and can be grisly, Khodayari said, ranging from slip-and-fall injuries to environmental exposures to death and injury from detonated roadside bombs and other extreme hazards from strife in the Middle East.
Post-traumatic stress and fatigue disorders occur frequently in Iraq and Afghanistan, sources said. The list of regional exposures includes allergies to foreign plants, such as palm pollen, and traffic accidents as workers try to negotiate unfamiliar or haphazard traffic patterns.
Adding to underwriters’ headaches is that the high compensation rates overseas sometimes motivate applicants to hide disqualifying ailments such as asthma or heart conditions during pre-employment screenings, which could put them at risk. It could also put their colleagues at risk if the safety of one depends on the unimpaired function of the other.
When DBA Applies
The Department of Labor is vigilant in its oversight of the DBA program, said Dobson, to the extent that it is “paternalistic” about looking after workers. In several cases, she said, the insurance company and claimant agreed on a settlement, but the DOL didn’t agree with the terms. It compelled the insurer to pay more, even though the claimants had competent legal representation.
Some disputes arise over whether or not idiopathic ailments, such as cancers and heart conditions, are related to employment, said Scott Bloch, a Washington, D.C. attorney who represents injured employees in many DBA cases.
“A DBA remedy could kick in if any aspect of the employment hastens or aggravates the conditions,” he said, which pulls the employer into complex legal and medical situations to prove or disprove a claim.
“An attorney will ask, ‘Is the worker’s heart condition or inflamed liver related to drinking bad water in Afghanistan?’ ”
To stave off financial crises in case DBA does not apply or while a case is in review, Bloch said, many employers offer their workers disability insurance over and above the workers’ compensation insurance to cover gaps that DBA may not cover.
Although DBA prevents employers from being hauled into civil lawsuits for its direct employees, employers may still be liable for third-party suits independent of DBA, Bloch said.
For example, if an employee leaves a live electrical cord that electrocutes a subcontractor in the shower, the employer may be subject to liability in civil court for action or inaction taken vis-à-vis the electrocuted subcontractor, who is a third party despite being part of “the team.”
The same pertains to any third party who wanders onto a work site or is struck by a contractor’s car.
Claims Management in Farsi
Language and distance often hobble claims management for injuries in the Middle East, said Terri Rhodes, CEO of the Disability Management Employer Coalition. U.S. doctors and carriers have to read medical reports from non-English-speaking countries to determine the nature and cause of injuries and whether they’re job-related.
They have to be able to read a treatment plan to arrange return-to-work. Even when she hires interpreters, Rhodes said, she never has full confidence that the interpretation is accurate.
“There’s always some variance in language,” Rhodes said.
Extracting, transporting and repatriating injured workers from conflict zones and remote regions to a location with adequate medical facilities can be complicated and expensive, said Eric Dean, senior vice president, ACE Risk Management Global Casualty.
DBA insurance provides coverage for repatriation. But problems multiply when a worker is medically incapacitated and can’t speak, Rhodes said, and it becomes necessary to obtain medical records.
“We have to communicate with hospitals,” she said, “and we run into time zone problems. In an emergency, we have to find out immediately when the injured worker was admitted and what the injury is.”
As elsewhere, incident prevention in the Middle East is the best claims management strategy, to whatever extent that’s possible in an environment where explosives and extreme heat are a fact of life.
Michael Baker International, a global engineering, planning and integrated consulting firm, strives for a “zero-incident, zero-accident” workplace at every site around the world, said Nicholas Gross, chief operating officer, international operations. That pays off both in protection of its employees and in its claims experience: Last year, Michael Baker International got “the best DBA rates in history,” Gross said.
“Our safety record has a direct benefit on our bottom line.”
Industry best practices include thorough pre-and post-employment screens, which include medical, dental and psychological exams, followed up with checkups during deployment, even in war zones, Aon’s Dobson said.
Michael Baker keeps a solid, detailed documentation trail about every incident, illness and injury, which ensures that injured employees get swift treatment and also protects the company against future claims.
Like Michael Baker, Exelis spends a lot of resources training its workers, both U.S. and foreign nationals, in safety protocols. It holds workers in the field to the same standard as its U.S. offices and factories.
Safety protocols could include redundant testing for electrical current on a rewiring site — an important precaution where infrastructure is cobbled together and wiring is “not always the safest,” Exelis’ Leibowitz said. It also includes forced hydration breaks, because people don’t notice heat exposure until it’s too late.
Compliance is high, Leibowitz said, because workers appreciate that the protocols are in their best interest. Exelis offers incentives for following safety rules and applies penalties, such as being sent home, for breaking them.
Return-to-work programs for Middle East contract workers can be hard to implement, Advance Consulting’s Khodayari said. A fairly simple injury such as a broken leg can be treated in most regions of the Middle East, but the worker can’t get back to work as quickly as in the U.S. because light duty assignments are not usually available.
The cost of lost wages can be high because the DBA entitles some injured workers to full wage loss for the rest of their lives.
“If a worker can’t return to the original contract, we may conduct a formal Labor Market Survey and help the injured worker look into other jobs with the same employer in a different capacity,” Khodayari said.
Gross attributes much of Michael Baker International’s safety success to its proactive approach — and to its partnership with its broker and DBA insurance provider.
“Our broker took an active role in identifying and managing risk, reducing claims and getting personnel back to work,” he said. “Our partnership with our carrier helped us reduce claims and experience.”
And key to the successful relationship, said ACE Group’s Dean, is working directly with the client, face to face when possible.
“Insurance is a contract of trust. Putting a face to the name helps build that trust,” he said, even with statutory coverage, such as DBA insurance.
“The relationship doesn’t change the coverage, but it facilitates the placement of coverage.”