Wokers' Comp Challenges

Workers’ Comp Forecast for 2014

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

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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.

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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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The State of the States

Regulatory Review

A round-up of nationwide regulatory changes affecting the workers' compensation industry.
By: | July 27, 2015 • 4 min read
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California

Qualified Medical Evaluators

The Division of Workers’ Compensation proposed modifications to its proposed regulations regarding qualified medical evaluators. The modifications state that initial represented panel requests postmarked after Sept. 3 will not be accepted or processed by the medical unit for initial represented panel requests only. The last day to mail in panel requests will be Sept. 3. Effective Oct. 1, all initial panel requests must be submitted electronically.

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Under the proposed modifications, parties will have 10 days from service of the panel list to strike a doctor. Also, disputes regarding the validity of panel requests must be resolved by a workers’ compensation judge. Disputes regarding the appropriateness of the specialty designated must be resolved by the medical director. Either party may appeal the decision with a workers’ compensation judge.

Medical Billing and Payment Guide

The Division of Workers’ Compensation proposed to modify rules to transition from the International Classification of Diseases, 9th Revision diagnosis and inpatient procedure coding systems to the ICD-10 diagnosis and inpatient procedure systems. The change will go into effect on Oct. 1. The proposed amendments also adopt new forms and amend the medical billing and payment guide to adopt the ICD-10 code tables and index. Additional updates were proposed to the medical billing and payment guide to adopt more current versions of instruction manuals for professional and facility paper billing forms and updated dental codes.

Colorado

Medical Fee Schedule

The Division of Workers’ Compensation proposed amendments to rules regarding the medical fee schedule. The rules revise the standard terminology and the administrative procedures and requirements necessary to implement the medical treatment guidelines and medical fee schedule. The proposed rule amendments also update the language of the medical fee schedule, revise the billing codes systems, and update the fees and relative values. The amendments also revise the medical requirements, procedures, and payments as they relate to the medical fee schedule.

Maine

Medical Fees

The Workers’ Compensation Board proposed to repeal and replace a rule regarding medical fees and amend rules regarding formal hearings and expenses and fees.

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The rule states that in the event that the employer or insurer contends that the medical records and information, preexisting and subsequent to the workplace injury, are relevant for determination of compensability and disability, it may obtain from the worker and the employee is obliged to within 14 calendar days execute a limited authorization for focused written medical records. Also, an employer or insurer must pay a worker’s travel expenses incurred for medical treatment, including actual costs for overnight lodging, parking, tolls, and public transportation if accompanied by a receipt.

New York

Fees

The Workers’ Compensation Board announced the elimination of a number of fees. Starting April 1, fees for licensing compensation medical bureaus and laboratories were eliminated. Fees were also eliminated for physician arbitration, psychologist arbitration, chiropractor arbitration, and podiatrist arbitration. Licensed third-party administrator fees and licensed hearing representative fees were also eliminated.

Ohio

Claims Procedure Rules

The Bureau of Workers’ Compensation proposed amendments to the claims procedure rules regarding lump-sum advancements. The rule states that an injured worker or surviving spouse must file an application requesting a lump-sum advancement with the bureau. The injured worker or surviving spouse must provide proof that the lump-sum advancement is advisable for the purpose of providing financial relief or furthering the injured worker’s rehabilitation. The bureau will not grant a lump-sum advancement in a claim where the allowance of the award of compensation is on appeal.

Oregon

Medical Services

The Workers’ Compensation Division proposed amendments to rules regarding medical services. The rules clarify that the dispute record packet must include certification whether there is or is not an issue of compensability of the underlying claim or condition. The rules limit the denial of reimbursement based on the late submission of a treatment plan by an ancillary service provider to those services provided before the treatment plan is sent.

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The amendments also require that an insurer approve or disapprove a health care provider’s request for preauthorization of a diagnostic study within 14 days of receipt of the request. The division scheduled a public hearing on July 21 at 9 a.m. at 350 Winter Street NE, Room B, in Salem.

Washington

Penalties

The Department of Labor and Industries amended rules to meet new measures for calculating penalties set by the Occupational Safety and Health Administration. The amendments add a minimum penalty amount of $2,500 for violations issued when contributing to a fatality. In a rule regarding base penalty adjustments, the language was modified to state that no reduction will be given if the violations are classified as willful, repeat, failure to abate, or violations contributing to an inpatient hospitalization or a fatality. The rule also added clarifying language on how to determine an employer’s good faith. The rule goes into effect on Sept. 1.

Christina Lumbreras is a Legal Editor for Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]
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Sponsored: Liberty International Underwriters

Detention Risks Grow for Traveling Employees

Employees traveling abroad face new abduction risks that are more difficult to resolve than a ransom-based kidnapping.
By: | June 1, 2015 • 6 min read
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It used to be that most kidnapping events were driven by economic motives. The bad guys kidnapped corporate employees and then demanded a ransom.

These situations are always very dangerous and serious. But the bad guys’ profit motive helps ensure the safety of their hostages in order to collect a ransom.

Recently, an even more dangerous trend has emerged. Governments, insurgents and terrorist organizations are abducting employees not to make money, but to gain notoriety or for political reasons.

Without a ransom demand, an involuntarily confined person is referred to as ‘detained.’ Each detention event requires a specialized approach to try and negotiate the safe return of the hostage, depending on the ideology or motivation of the abductors.

And the risk is not just faced by global corporations but by companies of all sizes.

LIU_BrandedContent“The world is changing. We see many more occasions where governments are getting involved in detentions and insurgent/terrorist groups are growing in size and scope. It’s the right time for a discussion about detention risks.”

— Tom Dunlap, Assistant Vice President, Liberty International Underwriters (LIU)

“Practically any company with employees traveling abroad or operations overseas can be a target for a detention risk,” said Tom Dunlap, assistant vice president at Liberty International Underwriters (LIU). “Whether you are setting up a foreign operation, sourcing raw materials or equipment overseas, or trying to establish an overseas sales contract, people are traveling everywhere today for so many reasons.”

Emerging Threats Driven By New Groups Using New Tools

Many of the groups who pose the most dangerous detention threats are well versed in how to use the Internet and social media for PR, recruiting and communication. ISIS, for example, generates worldwide publicity with their gruesome videos that are distributed through multiple electronic channels.

Bad guys leverage their digital skills to identify companies and their employees who conduct business overseas. Corporate websites and personal social media often provide enough information to target employees who are working abroad.

LIU_BrandedContentAnd if executives are too well protected to abduct, these tools can also be used to identify and target family members who may be less well protected.

The explosion of new groups who pose the most dangerous risks are generally classified into three categories:

Insurgents – Detentions by these groups are most often intended to keep a government or humanitarian group from delivering services or aid to certain populations, usually in a specific territory, for political reasons. They also take hostages to make a political statement and, on occasion, will ask for a ransom.

In other cases, insurgent groups detain aid workers in order to provide the aid themselves (to win over locals to their cause). They also attempt prisoner swaps by offering to trade their hostages for prisoners held by the government.

The most dangerous groups include FARC (Colombia), ISIS (Syria and Iraq), Boko Haram (Nigeria), Taliban (Pakistan and Afghanistan) and Al Shabab (Somalia).

Governments – Often use detention as a way to hide illegal or suspect activities. In Iran, an American woman was working with Iranian professors to organize a cultural exchange program for Iranian students. Without notice, she was arrested and accused of subversion to overthrow the government. In a separate incident, a journalist was thrown in jail for not presenting proper credentials when he entered the country.

“Government allegations against detainees vary but in most cases are unfounded or untrue,” said Dunlap. “Often these detentions are attempts to prevent the monitoring of elections or conducting inspections.”

Even local city and town governments present an increased detention risk. In one recent case, a local manager of a foreign company was arrested in order to try and force a favorable settlement in a commercial dispute.

Ideology-driven terrorists – Extremist groups such as Boko Haram and ISIS are grabbing most of today’s headlines with their public displays of ultra-violence and unwillingness to compromise. The threat from these groups is particularly dangerous because their motives are based on pure ideology and, at the same time, they seek media exposure as a recruiting tool.

These groups don’t care who they abduct — journalist, aid worker, student or private employee – they just need hostages.

“The main idea here is to shock people and show how governments and businesses are powerless to protect their citizens and employees,” observed Dunlap.

Mitigating the Risks

LIU_BrandedContentEven if no ransom demands are made, an LIU kidnap and ransom policy will deliver benefits to employers and their employees encountering a detention scenario.

For instance, the policy provides a hostage’s family with salary continuation for the duration of their captivity. For a family who’s already dealing with the terror of abduction, ensuring financial stability is an important benefit.

In addition, coverage provides for security for the family if they, too, may be at risk. It also pays for travel and accommodations if the family, employees or consultants need to travel to the detention location. Then there are potential medical and psychological care costs for the employee when they are released as well as litigation defense costs for the company.

LIU coverage also includes expert consultant and response services from red24, a leading global crisis management assistance firm. Even without a ransom negotiation to manage, the services of expert consultants are vital.

“We have witnessed a marked increase in wrongful detentions involving the business traveler. In some regions of the world wrongful detentions are referred to as “business kidnappings.” The victim is often held against their will because of a business dispute. Assisting a client who falls victim to such a scheme requires an experienced crisis management consultant,” said Jack Cloonan, head of special risks for red24.

Without coverage, the fees for experienced consultants can run as high as $3,000 per day.

Pre-Travel Planning

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Given the growing threat, it is more important than ever to be well versed about the country your company is working in. Threats vary by region and country. For example, in some locales safety dictates to always call for a cab instead of hailing one off the street. And in other countries it is never safe to use public transportation.

LIU’s coverage includes thorough pre-travel services, which are free of charge. As part of that effort, LIU makes its crisis consultants available to collaborate with insureds on potential exposures ahead of time.

Every insured employee traveling or working overseas can access vital information from the red24 website. The site contains information on individual countries or regions and what a traveler needs to know in terms of security/safety threats, documents to help avoid detention, and even medical information about risks such as pandemics, etc.

“Anyone who is a risk manager, security director, CFO or an HR leader has to think about the detention issue when they are about to send people abroad or establish operations overseas,” Dunlap said. “The world is changing. We see many more occasions where governments are getting involved in detentions and insurgent/terrorist groups are growing in size and scope. It’s the right time for a discussion about detention risks.”

For more information about the benefits LIU kidnap and ransom policies offer, please visit the website or contact your broker.

Liberty International Underwriters is the marketing name for the broker-distributed specialty lines business operations of Liberty Mutual Insurance. Certain coverage may be provided by a surplus lines insurer. Surplus lines insurers do not generally participate in state guaranty funds and insureds are therefore not protected by such funds. This literature is a summary only and does not include all terms, conditions, or exclusions of the coverage described. Please refer to the actual policy issued for complete details of coverage and exclusions.

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




LIU is part of the Global Specialty Division of Liberty Mutual Insurance.
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