Wokers' Comp Challenges

Workers’ Comp Forecast for 2014

Seven issues keeping workers’ comp brokers up at night.
By: | March 3, 2014 • 5 min read

1. Predictive Analytics.
Using predictive analytics effectively is the holy grail for any large company.
If you are a staffing company, oil field service operation, or retailer working on tight margins, getting this right can mean the difference between a profitable year or needing to increase liability accruals to account for ever-increasing long tail development.

There is a need to not only develop models for making predictions but to be able to provide actionable information that can be used to quantify the cost/benefit of taking very specific actions. If this could be accomplished, insurers and large self-insured companies could efficiently allocate resources to the areas likely to provide the most meaningful benefit.

2. TRIA is Non-Renewed.
The Terrorism Risk Insurance Act (TRIA) or Terrorism Risk Insurance Program Reauthorization Act (TRIPRA) is scheduled to expire on Dec. 31. Even now, as we are without a decision, insurers are being exposed to unlimited terrorism-related workers’ compensation liability (based on an annual policy period).


TRIA has been in place since 2002, when Congress acted to ensure that there was a market-based solution for insurance losses arising out of terrorist acts. It is generally agreed that the sponsors of that Act suggested that it could one day be phased out, and throughout its life, the protection has been diminished. However, what remains are clear limits that comfort investors and others in the financial community.

While the Act remains unrenewed, it is the witching hour for insurers. Consequently, insurers are in the process of preparing their position with respect to the issue.

3. Loss Costs in California Deteriorate.
When California Gov. Edmund “Jerry” Brown signed the workers’ compensation reform legislation into law Sept. 18, he said that it would reverse a four-year trend of rate increases. According to the data made available to us, the insurance market clearly disagrees.

As a matter of fact, California is the state producing the highest rate increases. Possibly, the reform medicine is slow acting and good news for employers in California is on its way.

The problem in California is not a new one. At one point, the state insurance fund was writing more than 50 percent of the workers’ compensation market. That

Eric Silverstein senior vice president National Casualty Insurance Practice, Lockton Cos.

Eric Silverstein
senior vice president National Casualty Insurance Practice, Lockton Cos.

is the fund that was created to be the market of last resort as it is a government enterprise.

What is clear is it is becoming more common for insurers to place limitations on the amount of California workers’ compensation they will write. The concern is that in the current environment it is simply impossible to be profitable. It is a subtle movement to avoid a head-on clash with regulators.

4. IRS Focuses on Insurers and Captives.
The uniqueness and secret to success for the insurance industry is its favorable tax treatment. Money comes in, expected future losses are deducted and cash is available for investment and growth. The big difference is that expenses do not need to be paid but only accrued to reduce taxable income. That leaves more cash for investment.

There has been discussion about scrutiny of taxation for insurance companies and captives, the alternative risk tool of choice.  Captives are on the short list for IRS auditors and if captives are not properly structured, there is more risk that those captives will now be challenged.

5. Trial Attorneys to Target Non-Subscription.
Approximately one-third of the employers in Texas are non-subscribers. Why? Because it makes sense. It saves on frictional costs, quickly provides benefits to employees who are injured and eliminates much of the soft fraud. It has been so successful that Oklahoma enacted its own reform effort, and Tennessee is considering legislative initiatives to enhance opportunities for non-subscription.

Even without a survey, we can safely assume that the majority of plaintiff’s attorneys are not big fans of non-subscription. Benefits for non-subscription are paid out via the Employee Retirement Income Security Act. There is no need for a legal process. There is no waiting period. There are clear definitions that are subject to arbitration.

In contrast, workers’ compensation commonly requires a legal process. Should an attorney become involved in a case where there is an injury within the course of employment, the attorney’s share, although not as large as in a tort case, is for all intents and purposes no-fault. For legal firms, workers’ compensation is high volume, low risk and considerable reward.


Consequently, we would think that should non-subscription become popular in Oklahoma and be signed into law in Tennessee that it may become a target of the bar.

6. Medicare Set Asides Become Increasingly Difficult.
MSAs, as they are called, are a complicated thing. In general, money is set aside to pay benefits for costs that otherwise would be funded by Medicare. It applies only to certain classes of individuals. With an aging workforce, it has become a big and expensive issue for insurance companies.

The problem is that claims can’t be settled quickly and efficiently as government sign-off is required. The impact has been a substantial increase in large claims severity. Further, it has helped to create longer tail development. What this means is that all companies will end up with longer periods of loss development in the form of greater IBNR (Incurred but not reported losses). It translates into more collateral, higher costs and higher liability accruals.

7. Bond Yields Plummet.
Nothing has had a greater impact on the insurance market than the change in bond yields post-2008. It required underwriters to make a profit underwriting. That changed the dynamics of the marketplace and the way the big insurers look at their business.

While it is hard to imagine, it is possible that rates of return on bonds could get much lower. Should there be a European meltdown, recession in Asia or the refusal of China and others to continue to fund our deficits, rates will fall. Should this happen there will be no escaping the need for rate adjustments across all lines of insurance as the dynamics of the current market will be left smoldering once again.

Eric Silverstein is senior vice president, National Casualty Insurance Practice, Lockton Cos. He can be reached at [email protected]
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Legal Developments

Proposed Rule Aimed at Clarifying GINA Violations

A proposed regulation from the EEOC is intended to help employers steer clear of GINA violations when structuring their wellness and safety initiatives.
By: | November 23, 2015 • 3 min read
3d render of dna structure, abstract  background

Employers have increasingly raised questions about whether their wellness programs could violate the Genetic Information Nondiscrimination Act of 2008. The Equal Employment Opportunity Commission is hoping a newly proposed rule will answer them.


GINA was created to prevent employment discrimination based on a person’s genetic information.

The issue for employers concerns potential violations of GINA where spouses are involved, particularly the issue of inducements to participate in wellness programs.

Such programs often require “a health risk assessment administered in connection with the employer’s offer of health services as part of an employer-sponsored wellness program,” according to a summary of the proposed regulations in the “Federal Register.”

Wellness programs cannot “condition inducements to employees on the provision of genetic information,” the EEOC said.

Wellness programs cannot “condition inducements to employees on the provision of genetic information,” the EEOC said.

“Read in one way, conditioning all or part of an inducement on the provision of the spouse’s current or past health information could be read to violate the … prohibition on providing financial inducements in return for an employee’s protected genetic information.”

The proposal seeks to clarify that employers are allowed to offer “limited inducements (whether in the form of rewards or penalties avoided) for the provision by spouses covered by the employer’s group health plan of information about their current or past health status as part of a health risk assessment, which may include a medical questionnaire, a medical examination (e.g., to detect high blood pressure or high cholesterol), or both, as long as the requirements of 29 CFR 1635.8(b)(2)(i) are satisfied,” the notice states.

“These requirements include that the provision of genetic information be voluntary and that the individual from whom the genetic information is being obtained provides prior, knowing, voluntary, and written authorization, which may include authorization in electronic format.”

Among the changes the EEOC proposes are:

  • Add a section explaining that “employers may request, require, or purchase genetic information as part of health or genetic services only when those services, including any acquisition of genetic information that is part of those services, are reasonably designed to promote health or prevent disease.”
  • Add a section explaining that “a covered entity may offer, as part of its health plan, an inducement to an employee whose spouse: 1) is covered under the employee’s health plan; 2) receives health or genetic services offered by the employer, including as part of a wellness program; and 3) provides information about his or her current or past health status as part of a health risk assessment. No inducement may be offered, however, in return for the spouse providing his or her own genetic information, including results of his or her genetic tests.”
  • Add a section to explain the way inducements for employees and spouses may be dispensed. The proposed rule would explain that “the maximum share of the inducement attributable to the employee’s participation in an employer wellness program … be equal to 30 percent of the cost of self-only coverage,” the EEOC said.
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  • “The remainder of the inducement — equal to 30 percent of the total cost of coverage for the plan in which the employee and any dependents are enrolled minus 30 percent of the total cost of self-only coverage — may be provided in exchange for the spouse providing information to an employer wellness program … about his or her current or past health status.”
  • Eliminate the term “financial” as related to inducements and clarify that both financial and in-kind inducements such as time-off awards, prizes, or other items of value would be allowed.
Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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Sponsored: Liberty Mutual Insurance

Managing Construction’s True Risk Exposure

Mitigating construction risks requires a partner who, with deep industry expertise, will be with you from the beginning.
By: | November 2, 2015 • 5 min read

When it comes to the construction industry, the path to success is never easy.

After a long, deep recession of historic proportions, the sector is finally on the mend. But as opportunities to win new projects grow, experience shows that more contractors go out of business during a recovery than during a recession.

Skilled labor shortages, legal rulings in various states that push construction defects onto general liability policies, and New York state’s labor laws that assign full liability to project owners and contractors for falls from elevations that injure workers are just some of the established issues that are making it ever harder for firms to succeed.

And now, there are new emerging risks, such as the potential for more expensive capital, should the Federal Reserve increase its rates. This would tighten already stressed margins, perhaps making it harder for contractors and project owners to invest in safety and quality assurance, and raising the cost of treating injured workers.

Liberty Mutual’s Doug Cauti reviews the top three risks facing contractors and project owners.

“Our customers are very clear about the challenges they are facing in the market,” said Doug Cauti, the Boston-based chief underwriting officer for Liberty Mutual’s construction practice.

“Now more than ever, construction risk buyers – and the brokers who serve them – are leveraging our team’s deep expertise to find solutions for complicated risks. This goes way beyond what many consider the traditional role of an insurance carrier.”

Other leading risks facing contractors and project owners.

Given the current risk environment, firms that simply seek out the cheapest coverage could leave themselves exposed to these emerging risks. And that could result in them becoming just another failed statistic.

So what is the best way to approach your risk management program?

Understanding the Emerging Picture

Construction firms have been dealing with multiple challenges over the last several years. Now, several new emerging risks could further complicate the business.

After an extended period of historically low interest rates, the Federal Reserve is indicating that rates could rise in late 2015 or sometime in 2016. That would surely impact construction firms’ cost of capital.

“At the end of the day, an increased cost of capital is going to impact many construction firm’s margins, which are already thin,” Cauti said.

“The trickle-down effect is that less money may be available for other operational activities, including safety and quality programs. Firms may need to underbid and/or place low bids just to get jobs and keep the cash flow going,” Cauti said.

SponsoredContent_LM“Now more than ever, construction risk buyers – and the brokers who serve them – are leveraging our team’s deep expertise to find solutions for complicated risks.”
— Doug Cauti, Chief Underwriting Officer, Liberty Mutual National Insurance Specialty Construction

“Experience shows us that shortcuts in safety and quality often lead to more construction defect claims, general liability claims and workers’ compensation claims,” Cauti said.

Currently, the frequency of worker injuries is down on a national basis but the severity of injuries is on the rise. If those frequencies start creeping up due to less robust safety programs, the costs could grow fast.

And if this possible trend is not cause enough for concern, the growing costs associated with medical care should have the attention of all risk managers.

“Five years ago medical costs represented 56 percent of a claim,” said Jack Probolus, a Boston-based manager of construction risk financing programs for Liberty Mutual.

“By 2020, that medical cost will likely grow to 76 percent of an injured worker’s claim, according to industry experts,” Probolus said.

Rising interest rates and rising medical costs could form a perfect storm.

Focusing on the Total Cost of Risk

For risk managers, the approach they utilize to mitigate the myriad of existing and emerging risks is more important than ever. The ideal insurance partner will be one that can integrate claims management, quality assurance and loss control solutions to better manage the total cost of construction risk, and do it for the long term.

Liberty Mutual’s Doug Cauti reviews the partnership between buyers, brokers and insureds that helps better manage the total cost of insurance.

In the case of rising medical costs, that means using claims management tools and workflows that help eliminate the runaway expense of things such as duplicate billings, inappropriate prescriptions for powerful painkillers, and over-utilization of costly medical procedures.

“We’re committed to making sure that the client isn’t burdened in unnecessary costs, while working to ensure that injured employees return to productive lives in the best possible health,” Probolus said.

The right partner will also have the construction industry expertise and the willingness to work with a project owner or contractor from the very beginning of a project. That enables them to analyze risk on the front end and devise the best risk management program for the project or contractor, thereby protecting the policyholder’s vulnerable margins.

“We want to be there from the very beginning,” Liberty Mutual’s Cauti said.

“This isn’t merely a transaction with us,” he added. “It’s a partnership that extends for years, from binding coverage, through the life of the project and deeper as claims come in and are resolved over time,” he said.

In other words, it’s a relationship focused on value.

Today’s construction insurance market – with an abundance of capacity – can lead to new carriers entering the market and/or insurers seeking to gain market share by underpricing policies.

“We see it all the time,” Liberty Mutual’s Cauti said.

Where does this leave insureds? Frustrated at pricing instability, or by the need to find a new carrier.  And wiser, having learned the wisdom of focusing on value, that is the ability to better control the total cost of risk.

“Premium is always important,” notes Liberty Mutual’s Cauti. “But smart buyers also understand the importance of value, the ability of an insurer to partner with a buyer and their broker to develop a custom blend of coverages and services that better protect a project’s or contractor’s bottom line and reputation. This is the approach our dedicated construction practice takes.

Why Liberty Mutual?

For more information on how Liberty Mutual Insurance can help assess your construction risk exposure, contact your broker or Doug Cauti at [email protected].



This article was produced by the R&I Brand Studio, a unit of the advertising department of Risk & Insurance, in collaboration with Liberty Mutual Insurance. The editorial staff of Risk & Insurance had no role in its preparation.

Liberty Mutual Insurance offers a wide range of insurance products and services, including general liability, property, commercial automobile, excess casualty, workers compensation and group benefits.
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