Wednesday, February 24, 2016

It's The Culture

I'm at the Public Agency Risk Management Association's 42nd conference in Indian Wells, CA.

The agenda has good workers' compensation coverage with sessions about managing disability and accommodation, using alternative dispute resolution, and key decision making.

Being that this was my first time to this conference, I felt compelled to ask attendees about their experiences in the public sector.

Curiously, the vast majority of the people I talked to started out their risk management lives in the private sector, so this provided a great opportunity to compare and contrast.

The folks I talked to noted differences in how money was viewed, with the private sector understandably much more concerned about the bottom line than public entities ("just raise taxes," noted one person).

The risks are inherently greater in public sector work because of the basic tasks of protect and serve with police, fire and other emergency services provided by governmental entities. Or, as Los Angeles County Workers' Compensation Administrator, Alex Rossi, once told me, "When someone yells 'fire' the private sector runs out of the building; but the public sector runs into the building."

There are also distinct legal differences too. Many public sector jobs are statutorily provided presumptions that certain injuries or illnesses are caused by work. For instance, Idaho firefighters are seeking a law declaring certain cancers to be occupational in nature.

Usually these presumptions can be rebutted, but doing so against the liberality of these laws is not typically successful. There really has to be nearly insurmountable evidence that there is no tincture of employment causation.

Presumption cases turn on how this evidence is gathered and presented.

A short case out of Florida's 1st District Court of Appeals (the 1st DCA has original jurisdiction over all work comp appeals in Florida) is demonstrative.

Florida Statutes Section 112.18(1)(a) provides that any condition caused by tuberculosis, heart disease or hypertension, which renders an officer or firefighter disabled shall be presumed to have been suffered in the line of duty, unless the contrary is shown by competent evidence.

Thomasena Mitchell had worked as a law enforcement officer for Miami-Dade County. Before she was hired, she underwent a physical exam which revealed no indications of heart disease.

Doctors later diagnosed Mitchell with supraventricular tachycardia – an abnormally fast heartbeat – and declared her totally disabled by her condition. She was barred from returning to her work as a law enforcement officer so she consequently sought workers' compensation benefits.

Her claim was denied. At trial the condition was declared compensable. On appeal that decision was reversed - the court said the trial judge ignored a vast body of evidence finding the condition congenital.

So on remand the trial judge declared Mitchell's condition not compensable.

On appeal once again, the 1st DCA told the judge to slow down - just because a condition had its origin congenitally doesn't mean it couldn't have been aggravated by work.

The court said that a congenital condition can be aggravated by a person's work, and if that occurs, it is a compensable injury.

Thus, for the county to defeat Mitchell's claim, the court said it had to establish competent evidence that the "trigger" for Mitchell's congenital condition, causing the tachycardia, was non-occupational. So it sent the case back to the trial level for more evidentiary hearing.

Certainly, this type of case would be handled much differently than if it originated in the private sector.

Or would it?

To the one, despite the differences between public and private, everyone I talked to agreed - it all comes down to the culture of the work place and that starts from the top down.

The bottom line based on my discussions here is that work place cultures that value employees as an asset, rather than a liability, experience lower frequency, lower severity, less claim costs, happier employees, and greater productivity.

So while public sector employees may, in general, engage in more dangerous work, or may have more legal protections, workers' compensation is all about people.

And when we're dealing with people it's the culture and attitude of management and the employer as a whole that can make or break a workers' compensation program.

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