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.
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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
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.”
The Quality Assurance Journey
Not too long ago, if you were planning a trip, you would buy a map or an atlas and draw out the route you would take. If you continued to drive this route repeatedly, you might discover better ways to avoid a heavily congested area or take advantage of a new highway.
Similarly, a third party administrator (TPA) draws on years of experience to develop best practices for claims handling, discovering better routes and avoiding areas of delay. Payers trust their TPA to formalize these best practices, and to develop a Quality Assurance (QA) program that helps ensure claims are effectively managed. Like a roadmap, a QA program tracks the journey to the desired destination.
Mark Siciliano defines a quality assurance program.
With today’s technology, a cumbersome map is replaced with a GPS; just follow the step-by-step instructions. Sometimes the technology works flawlessly, and other times, it doesn’t deliver the best route.
Likewise, many QA programs have developed a checklist mentality, listing the steps to take. Such QA programs typically involve a small team reviewing a limited number of claims to ensure that key standards are consistently applied. While important, this doesn’t necessarily guarantee claims are optimally handled, or uncover ways to improve claim workflows and performance.
Mark Siciliano explains how Helmsman’s QA approach differs from the industry’s standard “checklist” mentality.
A New Process
Helmsman Management Services LLC, a third-party claims administrator and a member of Liberty Mutual Insurance, began to re-examine its QA program with the help of its clients several years ago. In doing so, they developed a new methodology that is a welcome departure from robotic checklist behavior.
“Our QA program dives deeper to find actionable ways we can improve claims outcomes, the performance of claims professionals, and the entire claims management process,” noted Mark Siciliano, vice president and managing director of Helmsman Management Services. “We conduct more in-depth reviews on a higher volume of claims – more than 80,000 each year – at key points in the lifecycle. We involve over 800 field claims professionals and engage individual claims handlers and their managers through an online dashboard that reports performance and highlights opportunities to improve performance through additional training and coaching.”
Mark Siciliano discusses the Helmsman approach to quality assurance.
The new approach to QA was successful, enabling Helmsman to improve the overall quality of its clients’ claims by eight points in 2014. In fact, 92.7 percent of the claims Helmsman managed met or exceeded the TPA’s service standards in the fourth quarter of 2014, up from 84.5 percent in the first quarter of that year.
“Re-engineering our QA program and moving it beyond the standard industry checklist approach took our claims management from really good to great,” said Siciliano. “And, it is helping us drive further improvements.”
One of the reasons for that improvement is Helmsman’s QA process keeps adjustors focused on what works best.
“We looked at the common characteristics of really great outcomes and worked backwards,” said Siciliano. “We found that when our claims professionals start with an empathetic approach, they are better able to connect with the injured employee and deliver better outcomes, both for the claimant and her or his employer.”
Like blindly following GPS instructions, a claims professional can easily fall into a pattern of completing tasks and forget that an injured person may be experiencing a very challenging time in their life. Helmsman trains its claims professionals to treat the injured worker as if they are dealing with a family member. It’s not just asking questions and moving through a checklist; it’s answering an injured worker’s questions, providing important information, and doing so with a level of compassion.
Once a conversation has begun and the injured worker is more at ease, the claims professional can ask questions beyond what might be in the process to really understand the injury, the individual, and the claim, and to find that best route to the ultimate destination of return to work. This inquisitive nature of the claims professional also allows for early discovery of any specific challenges in the claim – such as co-morbid conditions or psycho-social issues – paving the way for intervention to get the claim back on track.
“We call it humanistic common sense,” said Siciliano. “We know we have to ask the tough questions and protect our clients’ financial interests, but when we do so through a positive and supportive lens, it permeates throughout the entire process, facilitating the journey.”
Building a relationship with medical providers using this same approach can also assist the claim.
“Re-engineering our QA program and moving it beyond the standard industry checklist approach took our claims management from really good to great. And, it is helping us drive further improvements.”
— Mark Siciliano, Vice President and Managing Director, Helmsman Management Services
In the case of light duty restrictions, instead of ‘check’ and move on after the initial call with the treating physician, Helmsman asks for more details on what the injured worker can do, and helps the physician understand the claimant’s duties and the temporary jobs available. Helmsman might ask the doctor to join them for a site visit to better understand the work environment.
As a result, light duty jobs become gainful and meaningful work for the injured worker because they are tailored to their capabilities.
“We’re not just asking for medical information and work capacity; we’re actually working with our clients and the physicians to create a return-to-work environment that works for the injured worker, employer, and physician,” said Siciliano.
Evolution of Change
A QA program that delivers a high level of value to the employer and improves outcomes for the injured worker is just the beginning. QA is more than a program—it’s a process. Quality assurance programs are critical for tracking and improving performance. It’s a continuous cycle of training, learning, client feedback, and process improvement.
“Our enhanced QA program helps us better service our clients, but we know it’s an ongoing process,” said Siciliano. “Our continuous improvement process is built around the investment that we put in our people, systems, and technology. It’s also response to the changing landscapes around us, and how well we adapt to them.”
Mark Siciliano describes characteristics of effective quality assurance programs.
As a result, quality assurance programs are not working towards just a destination; they’re working towards the evolution of change, and how risk managers, brokers, and TPAs respond to it. The QA process becomes that journey.
This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Helmsman Management Services. The editorial staff of Risk & Insurance had no role in its preparation.