The ESIS

1 November/December 2001. Volume 2, Issue 2. The ESIS. Edge Those of us at ESIS wish to express to you our deep concern for the unconscionable events of September 11 and our sincere commitment to support our customers as they recover and rebuild. Immediately following the attacks, ESIS representatives contacted our customers via whatever means was possible. Our objective was to provide assurances we were at hand, to explain benefits and services, and to provide support to you and your colleagues. As the country has shown its resolve to reclaim our way of life, so too, each ESIS. representative is dedicated to maintaining excellence in the delivery of our services to assist you in meeting the unique challenges which we all now face. Each one of us is ready to help. Our toll-free number is (888) 873-6255. Please don't hesitate to call. THE LEGAL CORNER. Oregon Supreme Court Decision Management Advisory Counsel is charged with allows some workers the right to developing an exclusive alternative process and remedy and the Department of Consumer and sue their employer!

2 Business Services is required to track the resolution On May 10, the Oregon Supreme Court filed the of tort cases brought under the Smothers theory. decision of Smothers Vs Gresham Transfer opening employers to civil actions filed by employees in cer- New York Legal Significance: tain situations. Corona v. Metropolitan 298-308 Associates, Inc., ( , Basically, if a workers compensation claim is denied 722 2d 51), The Second Department ruled for failing to prove that the work related incident that the key criterion in ascertaining liability or exposure was the major contributing cause under the scaffold law is not whether the party then the exclusive remedy clause is unconstitution- charged with the violation actually exercised con- al and can not bar a civil action. The decision limits trol over the work, but rather whether he or she the right to sue an employer to those injured work- had the right to do so.

3 Ers who were denied benefits for failing to establish The evidence established that the managing agent their injury was at least 51% job related. for the building's owner and three partners in the The Supreme Court stated that the law deprived agent's business association had the right to con- Smothers of a legal remedy provided by the Oregon trol the work of the contractor's employee, and Constitution. It should be noted the Supreme Court thus, the agent and its partners were liable under did not find that the Workers Compensation Statue the scaffolding law for the employee's injury when as a whole is unconstitutional but only as it applies he fell off a roof of a building in the course of his under the major contributing cause theory thus employment, even if the agent and its partners denying the worker a remedy. exercised no actual control over the employee's activities. Any tort action must also establish negligence on the part of the employer prior to the awarding of Grau v.

4 Taxter Park Associates, ( , 724 2d any damages. Allegations of employer negligence 497), The Second Department submitted that there The Risk Manager's was no duty to remove snow and ice while a storm quarterly newsletter of would need to be evaluated on a case by case basis pertinent industry events. to determine the merit of such allegations. was in progress. Also available on our website: Liability for the failure to remove accumulated The type of workers compensation claims most effected by this ruling would be occupational dis- snow and ice can attach only a reasonable time Looking for past editions? after the storm has ended. Snow or ice removal Log onto ease, repetitive trauma, employees with pre-exist- for all back copies. ing medical conditions, heart attacks, etc. actions taken during a storm may be actionable if performed negligently, , they either cause or cre- Addressing this decision the Governor signed legis- ate a hazardous condition or exacerbate the natu- lation on July 30, SB 485, permitting injured work- rally hazardous condition created by the storm.

5 Ers to sue their employer for injuries which have a connection to the workplace but fail to meet the In this case, no evidence indicated that a hazardous major contributing clause standard. condition was either created or exacerbated by a snow removal contractor's ice removal efforts dur- Key components of SB 485 include the fact that ing a storm, so as to support the imposition of lia- injured workers must exhaust the administrative bility on the contractor or premises owner in favor esis remedy prior to filing a law suit. The Labor- of the victim of a slip and fall on a patch of ice. FRAUD NEWS The following articles on interesting cases around the country have been published with the permission of the Coalition Against Insurance Fraud. Summaries of fraud actions are factual reports from reliable sources and are not intended to suggest or imply guilt or innocence of any person involved.

6 Torch a vehicle. Make new friends. Are workers comp carriers reducing That's the headline of a new billboard campaign in their anti-fraud efforts? Michigan. The photograph under the headline is of That seems to be the case in California, according two men in a jail cell. The campaign is part of a six- to an article in the California Worker's Comp month awareness program sponsored by the Advisor newsletter. Prosecutors and investigators Insurance Information Association of Michigan interviewed by the publication say insurers are that begins next month. The campaign is targeted slowly cutting back, although industry spokesmen at the rash of car fires in the state by people seek- say insurers are still actively fighting fraud. One ing to collect on auto claims. statistic cited: in 1999, 60 percent of fraud referrals to law enforcement came from just five insurers in the state. ESIS PRODUCTS When Catastrophe Strikes: Drills are treated as a real event.

7 A toll-free number was set up for claim reporting. At NCMC, team AND SERVICES ESIS helps clients facing major loss leader Henry Fisch, Shirley Mason, Colleen Abbott The oil spill off Wilmington, , was a petrochem- and Olga Goodson responded to claimants' calls, ical company's worst nightmare. Fortunately, it was entered information into the database and handled only a drill; one of the services ESIS Catastrophe the claims. Smith and Fisch stayed in close contact, Services provides its clients. relaying claim information and inquiries. Goodson Since the 1989 Exxon Valdez spill in Alaska and the gave Smith an hourly event summary. Smith Oil Pollution Act of 1990, the industry has recog- advised CITGO's Roach on claim handling, manage- nized the need to be prepared to respond to oil ment and settlement. spills and quickly minimize the potential environ- After the drill, CITGO's Incident Command con- mental impact.

8 Many of our petrochemical clients ducted a debriefing. ESIS was recognized for provid- are required by law to sponsor and participate in ing consistent and seamless services including oil spill drills. timely and effective communication between ESIS. So when CITGO recently staged a two-day worst and CITGO. case scenario drill, ESIS Catastrophe Services' field manager, Greg Smith, participated at the request of A Helpful Experience CITGO's risk manager, Glenn Roach. More than 150 Five weeks later, CITGO put the drill experience to people, representing CITGO's corporate manage- good use when a real event showed potential for ment and response teams; local, state and federal trouble. ESIS Catastrophe Services was notified agencies; four designated responsible parties and immediately. various vendors took part in the simulated spill on CITGO directed that the phones be answered live, North Carolina's Cape Fear River.

9 24 hours per day. Claim professionals from the Wilmington, Del., claims office worked with the The Practice from this Drill Proved NCMC staff. Fisch, Jim Scalchas and Don Peterson, to be Invaluable regional supervisors for ESIS Physical Damage Smith, who had developed the claim scenario, was Services, established claim protocols promptly. on-site for the drill and worked with the corporate finance team in handling third party claims. He CITGO, Catastrophe Services and Physical Damage was also responsible for on-site management of our Services, working as a team, provided superior cus- environmental cost accounting firm, which gathers tomer service and a quick resolution of claims. the costs of the loss and provides the CITGO. ESIS Catastrophe Services is the umbrella term for Incident Command Center with expense reporting. emergency response services to improve our cus- On a drill site, Smith works with the client and tomers' catastrophe readiness and response.

10 With local, state and federal agencies. He sends the Organized in 1995, it gives them added expertise to National Catastrophe Management Center (NCMC) respond to third-party claims from major events in Wilmington, Del., information regarding cus- and provides real-time cost accounting of the tomer service and claims handling: contact infor- resources being deployed, so clients may plan mation, any instructions for the Coast Guard, response and deployment needs. The goal is to marine animal rescue and industrial hygiene deliver a highly orchestrated response in partner- issues. This information can be provided to those ship with the customer to achieve the goals of loss calling about such non-claim issues as an oil-cov- dollar management and superior customer service. ered seal washed ashore or a stranded boater. We define a catastrophe as a single event that While many corporations have a crisis manage- affects multiple third parties and has the potential ment plan to provide for business continuity in a to impact the public image, reputation and prof- catastrophic loss, their plans may not include their itability of a corporate client.