Tag Archives: wearables

The black box in workers’ compensation

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A blog post by workers’ compensation insurance company Safety National asked “Could the fitness tracker you are wearing be a key to the future of workplace injury prevention?”

The insurance industry likes to talk about “wearables” like Fitbits and Apple Watches as a workplace safety tool. I would be a luddite to say technology couldn’t be used to improve workplace safety.

But you have to be a Silicon Valley simp to blindly believe in technology as the solution for workplace safety. Case in point, Amazon. Amazon ruthlessly uses technology to monitor their warehouse employees, yet according to the Washington State Department of Labor and Industry, they have a much higher rate of injury than comparable warehouses.

The “Black Box” in the workers compensation claims

So in short, technology can cut both ways for workplace safety. A lot depends on how the technology is used and how the technology is regulated. Law professor Frank Pasquale wrote the Black Box Society in 2015 to warn about the dangers the unregulated use of data collected  from people and the algorithms used to analyze data.

Professor Ifeoma Ajunwa applied these ideas in workplace law in the article “The “black box” at work“. In this article Ajunwa specifically mentions an employer using data about employee sleeping patterns to deny a workers’ compensation claim. The insurance industry touts the use of devices like fitbits to track employee sleeping patterns, so her concerns about employer use of data collected from wearables is well-placed.

Critics of the “black box” society have called for “grand bargain” for the use of data in general. I think there needs to be a grand bargain for data generated in the workplace that includes employee-access to data and right to explanation for decisions made by algorithms.

“Black Box” workers compensation in Nebraska?

How would health data generated by a fitbit or Apple Watch fit into Nebraska workers’ compensation? The Rules of Civil Discovery apply in Nebraska workers’ compensation, so that data would in theory be accessible and discoverable. But if an employer is using technology from a third-party, that third-party may not readily provide such information. Technology companies have a history of resisting queries for information from the judicial system.

But while some of gadgetry may be novel, the legal issues raised by the use of algorithms and technology exist apart from the technology. Algorithms are just complicated mathematical formulas. But the formulas can be set up to lead to certain conclusions. I remember a case where the defendant’s main argument was that my client couldn’t have gotten carpal tunnel at work because they had an IME doctor cite a bunch of statistical studies that held as much.

The trial judge in that case was troubled by the defendant using generalized information and not focusing on the specific work duties of my client. She won her case. At least in my experience, Judges in workers compensation cases are willing to question conclusions made by algorithm rather than by the individual circumstances of the individual.

The black box and employment law

I remember taking a deposition of HR manager at a large meat packing plant in a wrongful discharge case.  I remember her answering that my client was “administratively terminated”.

I blurted out, “Well, aren’t you the administrator?”, but I think their point was that the company wasn’t responsible for my client being fired. I frequently read HR people write that they have “no choice” but to terminate my client for some violation of policy or rules. Having personnel decisions made by algorithm allows management to assign responsibility for a decision to a computer program. But even without algorithms and computer programs, there is an automated and inhuman thinking in how HR makes decisions. An algorithm or computer program further dehumanizes the decision by incorporating that logic into the programming.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Hoping That the Revolution in Medical Care Reaches Injured Workers

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Imagine a cross between a FitBit and a TENS Unit (Transcutaneous Electrical Nerve Stimulation) that can control, on demand, issues that hurt workers face: anxiety, pain, PTSD symptoms.

That combination might not be as far-off science fiction as a person would think.

Wearable medical devices are making remarkable advances, according to respected workers’ compensation commentator Robert Wilson.

“We are only scratching the surface of what may be possible,” he predicts. “Wearable devices that can dispense medication, provide biofeedback and can both monitor and adjust a patients vitals are very real possibilities. Devices such as these will improve quality of life with real time application and treatment, and that ‘improved experience’ will help our industry drive better results at an ultimately lower cost.”

A real-life example of these advancements is an app called myBivy, which was originally developed to help veterans with PTSD sleep better by disrupting the physical “symptoms that precede night terrors.” The app is being developed by a team that “Tyler Skluzacek, a student at Macalester College” in St. Paul, Minnesota, began when he was inspired to help his father, a veteran of the Iraq War. The app is in its testing phases now and is estimated to “officially launch between March and May” of this year. Since “7-8 percent of Americans will experience PTSD at some point in their lives” and “11-20 percent of post 9-11 veterans are estimated to have PTSD,” it’s pretty obvious how the app may help those who have developed PTSD through a work-related injury sleep better. I look forward to hearing more about this particular app for sure.

This app meets Wilson’s criteria of how wearables need to evolve to be the most helpful to those who can benefit the most from them.

“To be really effective and successful, the wearable revolution needs at least one more evolution,” Wilson wrote. “An evolution that takes this medium from that of casual observer to mobile clinician; from simple data collector to partner in health. That is when we will see real benefits and results from wearable technology in all health delivery systems.”

I am hopeful that the relentless cost-containment efforts of the “Workers’ Comp Industrial Complex’ will not inhibit these creative efforts, so injured workers and their loved ones will be able to benefit from these advances very soon.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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