Tag Archives: bob wilson

‘Opt Out’ Will Return; Pay Attention

I had the opportunity to participate in a high-octane session at the 72nd Annual WCI Conference in Orlando, FL. With the somewhat imposing title of “The Grand Bargain or Contract of Adhesion: The Ongoing Debate Over Benefit Adequacy, Procedural Efficacy and Blanket Immunity in Workers’ Compensation,” it was a 90-minute discussion about both specific state legal challenges and the future viability (constitutionality) of workers’ comp overall. It featured Florida defense attorney H. George Kagan, Wyoming law professor Michael Duff, Georgia Administrator and Judge Elizabeth Gobeil and me. It was moderated by Florida plaintiff’s attorney Paolo Longo. While we covered a variety of challenges that the industry continues to face, there was one that I regret we did not have the opportunity to address. That one issue is the concept of allowing employers to opt out of workers’ comp altogether.

Since the Oklahoma Opt Out scheme was torpedoed by the state Supreme Court’s upholding of an earlier decision declaring it unconstitutional, many have assumed that this chapter has closed for the industry. We are quite content to put our heads back in the sand and wait for the next crisis before we stir from our slumber. You may pick up from my tone that I believe this to be a mistake. I am predicting here that the “threat” of Opt Out will return, faster than expected, and with an improved concept that will quickly gain traction. I’m telling you, we need to pay attention and be prepared, as this next round will be a more formidable challenge.

The advocates of Opt Out have, quite simply, made a few key changes in their pitch and approach, and the changes, for the sake of argument, have merit. The Achilles heel of Oklahoma Opt Out was “exclusive remedy”; the approach had been allowed to develop a closed and tightly controlled system that maintained the benefits of liability protection afforded to employers within the highly regulated workers’ compensation system. This was found to provide inconsistent benefits to some workers, and, combined with the one-sided controls granted employers within Opt Out, was deemed an unconstitutional restriction on employees’ rights of due process. Today, the backers of Opt Out seem to have learned a lesson and are now proposing an Opt Out scheme that operates without the layer of protections afforded by the exclusive remedy provisions.

See also: What Schrodinger Says on Opt-Out 

In other words, they are saying, “Allow us to accept the risk of full liability and set up our own alternative plans to mitigate that risk.” Although I am known for my opposition to Oklahoma Opt Out and am not a fan of Texas non-subscription, I believe this concept is more intellectually honest than its Sooner State predecessor and therefore worthy of inclusion in the debate about the future of workers’ compensation.

With my involvement with “national conversations” on comp over the last year and a half, one thing has become firmly etched in my mind. There is a feeling of frustration simmering in the industry over the regulatory complexity and paperwork required in helping injured workers. There is tremendous appeal in the idea of bypassing all the oversight and just doing the job that needs to be done. After all, in some systems, treatment of the injured worker now seems to be a secondary goal; we can get to it when all the appropriate paperwork has been completed in triplicate and submitted to the various participants that are required to have it.

By saying, “We accept the risks of open liability and can control those risks by doing the right thing by our employees,” backers change the argument significantly from that where exclusive remedy protected the employer either way. The new approach is going to have tremendous competitive appeal to employers and the legislators whose ears they reach.

There are, of course, concerns with this concept. One of the oft-understated purposes of the “Grand Bargain,” which created a system that was supposed to be no-fault in nature, is that it assures treatment and benefits for the careless and negligent worker. People who represent the injured workers’ interests hate to discuss this, but many accidents occur not because the employer was negligent but because the employee screwed up. The employee may have been simply careless or willfully bypassed safety practices. Either way, the injury is often the fault of the worker who suffers it. Workers’ comp, with few exceptions covers that. Employers who find no liability in an accident may not.

For example, let’s say you run a delivery service. You maintain a strict “no texting while driving” policy for your drivers, even going so far as to install apps on company-provided phones that will not allow texting when movement is detected. However, one of your drivers pulls out a personal phone (banned by company policy), over which you have no control, and drives headlong into a tree while texting his BFF. Were you negligent? If you did not have workers’ comp, would you need to be concerned with the liability of pain and suffering, loss of consortium and all the other threats of a negligence suit? Unlikely. Without the threat of a suit, would you be compelled to provide medical and indemnity benefits to this worker? Equally unlikely, I would suspect, especially in an Opt Out world.

Believe me, there is a real attraction to being released of financial responsibility for things that were not your fault. This really becomes a discussion at a societal level. Are we willing to start assigning blame, potentially placing the burden on taxpayers for injuries that occur while someone is working for the benefit of an employer? Are we ready to return to the days before workers’ comp existed?

Another issue, of course, will be how the concept is actually created in legislative form. Saying you will accept the risk of open liability is different than legislating that element. As with all things, the devil will be in the details of any specific proposal.

These questions will certainly be a part of the debate. In the meantime, the simplicity of bypassing an over-regulated system is going to provide tremendous appeal for some. At our Orlando session, George Kagan observed that Florida legislators have enacted so much legislation for workers’ comp that it would make the “central planners of the Soviet Union proud.” Employers will eventually look to escape an overly complex system where regulators cannot even agree on a simple standardized reporting form.

When the argument can be successfully made that benefits for the injured worker can be improved by leaving a burdensome system, then we will have a real dogfight on our hands.

See also: Debunking ‘Opt-Out’ Myths (Part 6)  

PartnerSource President Bill Minick, who is the primary supporter of the Opt Out concept, and I do agree on a couple things. One of those is that competition is healthy and almost always results in improved service for all. The concept that backers are beginning to put forth represents the opportunity for true competition to a system that cannot seem to respond to other external stimuli.

I remain a vociferous advocate for the workers’ comp system; its importance in stabilizing a contentious area of labor relations has been well proven over the past 100 years. However, I also want to see a vibrant and relevant workers’ comp system for the next 100 years. That means we must address some of our issues head on, and answer the questions about what is important to us as a society.

Opt Out will again soon be an issue we are debating, but with a change in focus on their side. It will be a concept worthy of a larger debate.

It will be a debate that we best be ready to participate in.

Top 10 WC Predictions for 2017

2016 was a hectic year here at the Cluttered Desk. That is due in part to the fact I wasn’t behind it much of the time these past 12 months. Travel demands this last year exceeded all before it, and I spent a fairly significant amount of time away from the office. This makes foretelling the events of 2017 difficult; mostly because I am still trying to accomplish the tasks I was supposed to finish way back in 2015.

Now that I think about it, predicting the past would be much easier.

At any rate, I wanted to lay out for you EXACTLY what will be occurring as the year 2017 unfolds. I wanted to do that, but have absolutely no clue as to what the future will exactly be. Instead I will make these Top Ten Predictions and hope for the best.

1. The president will appoint a federal commission on workers’ compensation

President Trump will appoint a federal commission to identify and recommend improvements for the workers’ compensation system. The 142-member group, composed mainly of fellow students from Ivanka’s Hot Yoga class, will toil for 10 months trying to identify the most pressing issues for the industry. They will ultimately be overwhelmed by the system’s current complexities, causing complete work stoppages for the panel. Originally intended as a key part of the “drain the swamp” campaign, workers’ comp will ironically instead “swamp the drain,” causing chaos and confusion throughout the government. The commission’s final report will be issued via Twitter, with seven characters left to spare.

2. A federal emergency guest worker program will be established

Construction of the long-awaited “Great Wall Numero Dos” will begin along our southern border just four weeks after the new administration is in place. Unfortunately, it will be discovered that in the third week of new management the country deported all the people willing to perform the back-breaking labor in the middle of the desert Southwest. An emergency guest worker program will be established to allow people to return to the country to build the wall designed to keep them out of the country in the first place.

3. Florida will successfully reform its workers’ compensation system

Florida legislators will pull out all the stops to fix the state’s ailing workers’ compensation system this year. When the dust of reform settles, the system will be housed in a large canvas tent with three rings, and there will be shiny new cages for all the animals. Caretakers will be allocated glistening new poop-scooping shovels. The job of Chief Deputy Judge of the Office of Judges of Compensation Claims will be retitled “Ringmaster.”

See also: 10 Predictions for Insurtech in 2017  

4. The state of California will opt out

Unhappy with the fact that much of the rest of the nation did not agree with it in the recent presidential election, California will push for and ultimately be successful at separating itself from the U.S. The effort will get a huge boost when petitions supporting the measure gain 162 million signatures from people living outside the state. The move will not quite be complete, however, as most of the inland and southernmost regions will choose to remain a part of the U.S. This will leave Los Angeles County and the San Francisco Bay area to go their own ways. They will have screaming internet and cutting-edge technology but no food, because all of that is grown inland. Additionally, most LA commuters will have to register as foreign workers, because their three-hour commute means they now reside on foreign soil. The newly formed country of Los Angelinos will have an immediate crisis in workers’ comp, because their outrageous injury costs will no longer be subsidized by what used to be the rest of the state. The chairperson of the Los Angelinos People’s Politburo will embark on a reform effort modeled after Florida efforts. The new system will look quite similar, with the exception that the tent will be resistant to earthquakes, and all bathrooms will be gender-neutral.

5. Healthcare reform will meet medical marijuana

As Republicans dismantle the Affordable Care Act, they will strive to develop an affordable alternative to ensure prompt medical care for the dozens of people who actually paid for health insurance they obtained through the government exchanges. It will be discovered that locally sourced, organically grown and affordable medical marijuana will be the singularly stellar solution for the country’s medical ills. Free marijuana will be distributed to all persons with any illness or ailment and will serve as the single authorized medicine listed on the new health systems formulary. No one will really recover from anything, but no one will really care, either. The national anthem will be changed to Bob Dylan’s “Rainy Day Women #12 & 35” (Everybody must get stoned).

6. Artificial Intelligence will make inroads into workers’ compensation

The first rounds of automation will be employed in the workers’ comp industry in 2017. Artificial Intelligence will make inroads in claims management, transportation and the medical industry. Surprisingly, artificial intelligence will make the most dramatic advances in the online publishing arena; notably, many workers’ comp blogs will be taken over by these wunderkind computers. This will be ironic, as it will represent the first time actual intelligence of any kind has been applied to that sector.

7. Workers’ compensation will almost be named workers’ recovery

Long a personal goal of this prognosticator, the industry will come perilously close to being renamed “workers’ recovery” this year. The International Association of Industrial Accident Boards and Commissions (IAIABC) will commit to the cause and put the full power of its influence behind it. The effort almost succeeds, but falters slightly in the final moments. The German representatives on the Industry Rebranding Committee insist on a slight change to the word “Recovery.” The final result is the industry will be called “Nur die Klappe Halten und Arbeiten,” which essentially means, “Just Shut Up and Work.” All is not lost, however. The people at WorkersCompensation.com successfully obtain the domain name www.nurdieklappehaltenundarbeiten.com, ensuring that these inane predictions can continue for years to come.

8. Illinois will dramatically simplify and improve its workers’ comp program

In a completely unforeseen move, Illinois legislators will totally scrap their currently chaotic workers’ compensation system and replace it with a simplified, recovery-centric program based on an advocacy-based claims model. Injury durations decrease, litigation ceases to exist and everyone benefits from what is now considered the model workers’ compensation program in the nation. On a completely unrelated note, pigs will fly, and hell will freeze over.

See also: 5 Predictions for the IoT in 2017  

9. Amazon will sell workers’ compensation insurance

Online retailing behemoth Amazon will start to sell workers’ compensation insurance via their Prime “One Click Order” system. Alternately, Amazon Echo owners will be able to order a policy by saying, “Alexa, buy me workers’ compensation coverage.” Policy paperwork will be delivered within one hour via drone. When an injury occurs, employers will simply be able to return the broken worker to Amazon by generating a return authorization and shipping label from within their account area.

10. Bob Wilson will lose 50 pounds – again

Suffering with chronic knee issues and having been told to lose weight by his orthopedic surgeon, Bob Wilson will try in vain to find a new orthopedic surgeon, preferably one who weighs 300 pounds and smokes. Failing in that attempt, he will lose 50 pounds. Again. This will bring his total lifetime weight loss to more than 1,750 pounds.

And there you have it. We will look forward to returning at year’s end to see how accurate I was. Until then, have a great 2017!

This article first appeared at www.workerscompensation.com. 

Florida’s Mess on Workers’ Comp

Sometimes stories in the news are simply that: stories. You read them; you ponder the significance for those strangers who are affected by the news; and then you move on. Other times, you find yourself directly affected by the news of the day, and it leaves you with a slightly greater awareness as to the potential impact the story might have. Such is the case here in Florida with our most recent twist in the winding tale of workers’ compensation reform.

My company has used the services of a professional employer organization (PEO) for much of its 17-year existence. However, due to growth and multi-state employment needs, we are extricating ourselves from that relationship and taking payroll, benefits and HR administration in-house. That change includes securing a direct workers’ compensation insurance policy for our company.

Now, workers’ compensation in Florida has become anything but mundane, as court decisions in recent months have stripped key sections of the comp code. The two primary cases that have driven the storyline are Westphal and Castellanos. Westphal ended a 104-week cap on temporary benefits. In reality, that decision will only affect a very small percentage of claims in the state. Castellanos, on the other hand, is having much broader impact. It found that income caps on attorneys for injured workers created an imbalanced level of representation, and declared the limits unconstitutional.

To make a long story short, there is now a huge unfunded liability for attorneys’ fees that may be due from any cases still open from much of this past decade. Some estimates are that employers and carriers will shell out as much as $2 billion for past cases alone. Litigation is expected to surge, resulting in a recommended and approved rate increase of 14.5% effective Dec. 1.

That is where the news of the day potentially affects my firm.

See also: How Should Workers’ Compensation Evolve?  

My agent sent me a quote for coverage effective Jan. 1, 2017. The quote, of course, included the approved rate increase that would be effective at that time. Just two hours later, a Circuit Court judge in Tallahassee blocked the approved rate increase, declaring that NCCI, which had generated recommendations for the state, violated state sunshine laws by not conducting the analysis in public meetings.

This is going to be a mess.

Litigation is already starting to increase in Florida. According to Deputy Chief Judge David Langham, petition filings rose 12% in 2016 (ended June 30, 2016), and thus far in 2017 (beginning July 1) the petition volume is up an average of 6%.

Ironically, while everybody and their brother knows that an increase in lawyer fees WILL drive litigation and costs up in Florida, it was a lawsuit brought by a plaintiff’s attorney, acting as an employer, that brought a screeching halt to the rate increase. If that group is looking to avoid its share of blame and divert attention for the increasing costs, that strategy is not going to work.

However, there is plenty of blame to go around.

As I’ve said previously, these court decisions “were largely the result of some really shortsighted legislative decisions, which were largely the result of greedy actions on the part of a select few who exploited the system for their own selfish gain, which was largely the result of some people screwing around with claims that should have just been paid to begin with.” There is little doubt that abuse existed in Florida. Before reform, attorneys were entitled to fee awards any time they brought action that “benefited” a client. Stories abound of cases where, technically, benefit was obtained, but it was in no way substantial. There was the case where an attorney gained an increase in weekly indemnity of 10 cents for a client, and received a $16,000 fee for the filing. Yet another (that one of my employees witnessed) where an attorney received a decision that awarded an injured worker $5. The attorney got $2,500 for his efforts.

There is little doubt that the reforms, starting back in 2004, had their intended effect. Fees for attorneys for injured workers, which were $215 million in 2003-04, fell to $136 million in 2014-15. However, the ratio of legal fees between plaintiffs and defense attorneys indicatted future problems. In 2003-04, Florida attorney fees were near parity, with 49% going to plaintiffs’ attorneys and 51% going to defense counsel. By 2014-15, however, that ratio had shifted dramatically, with 37% for plaintiffs and 63% for defense counsel (Source: Judge Langham’s Blog). There was indeed a representation imbalance created, and that caused a lot of problems here for some injured workers, particularly those with very temporary lost time and lower-value cases.

The real problem here in Florida was that our legislature took a very broad brush to stop a few bad actors, and ended up painting everybody into a corner.

But now, attorneys who will be the most immediate financial beneficiary have played a role in blocking the rate increase many know is needed to finance the reversal. Left unresolved, this portends big problems for the state. Carriers, facing certain cost increases but prevented from preparing for them, may simply choose to stop issuing new policies. Longer term, some could leave the state. At a minimum, those employers with a less-than-stellar experience level are most certainly facing the chopping block for their coverage.

See also: Healthcare Reform’s Effects on Workers’ Compensation  

As for my company, we’ve had one workers’ comp claim in 17 years. Our current loss run over that time shows zero dollars. We are in pretty good shape, but I do find myself wondering what our agent will be telling me when we chat later today. In the movie O’Brother Where Art Thou, when the boys find themselves surrounded by the law and trapped in the loft of a barn with no apparent way out, Everitt, played by George Clooney, kept repeating the obvious by saying, “Oh, we’re in one heckuva tight spot.”

I know how they felt. Let’s hope that someone comes along to re-write a sensible ending to this scene.

Confusion Coming for Workers’ Comp

Today, dog lovers all over this great nation walk their dogs through neighborhood streets, and after the dogs “do their business” or “deposit a love biscuit,” the dutiful owner takes a moment to pick up the waste and carry it home. The telltale swinging plastic bag of poop is a sign the responsible dog caregiver is keeping their neighborhood clean.

After all, only in America can placing a naturally degradable substance inside a plastic bag where it will last 10,000 years in a landfill be considered ecologically responsible.

But all of that difficult work is about to end, thanks to a ridiculous bit of technology —  and signals the sort of confusing adjustment that workers’ comp will have to make as the definition of work and work sites changes.

Imagine, not so far in the future, the dog owner does not pick up his pooch’s steaming pile of love. Rather, they grab their cell phone (which they were probably holding because they’ve been on Facebook for most of the walk), snap a picture of the pile, tag its location with an app and simply walk away. Somewhere, an “Uber style driver” is notified that fresh feces is afoot. They race to the geographically tagged location and, quick as a flash, scoop up Fido’s poop. They will have the onerous and odoriferous task of keeping your neighborhood safe from unwanted piles of poop. One and done — and you are good to go. I suppose the picture is useful for identification purposes. You wouldn’t want to scoop the wrong poop, after all.

You read that right. There will soon be an app that will allow you to summon someone else to clean up after your dog.

See also: Five Workers’ Compensation Myths

Beyond being the ultimate sign of a lazy and slothful society teetering on the brink of self-destruction, this idea actually just stinks. Imagine, if you will, the physical machinations of the concept. You are standing in your neighbor’s yard, taking a picture of dog shit. As your neighbor stands in their living room window, drinking their morning coffee, what could they possibly be thinking? You might just be arranging for a pick up, but, in their mind, you’ve now been labeled an irresponsible pervert who commemorated the officious occasion of your dog dumping in their yard.

Maybe Fido should get a ribbon for his effort.

While the developers of the “Pooper App” claim it is an “Uber-like service,” it seems to lack an actual verification factor. How do we know the poop was actually purloined? I mean, with Uber, we know whether the guy showed up or not. With the pooper app, you may be able to see the pooper scooper drove by, but you’ll have no idea if they actually scooped the poop. Maybe they have to take a selfie with the poop as proof.

It is certainly going to be an interesting morning in your neighbor’s yard.

And who would actually want this job? I know that services already exist that clean out yards and such on a scheduled basis, but who will want to troll an area waiting for an app to notify them that there is poop afoot? The developers tell us pet owners of all types will take this job because they love animals so much that scooping their poop is a pleasure. I would conjecture that if people loved bagging poop so much, we wouldn’t need the pooper app to begin with.

No, these scoopers must be experiencing a serious call of doody. That is the only explanation.

From a workers’ compensation perspective, I suppose these Uber scoopers will have the same challenges now being faced by other participants in the sharing economy. Who will cover them? What if they are hurt on the job; say shot for trespassing on your neighbor’s lawn? And if they are covered under workers’ comp, what class code would we possibly assign them?

See also: How Should Workers’ Compensation Evolve?  

Technology continues to challenge our industry. At least we can be comforted by the fact that it is challenging our common sense, as well.

This article first appeared on WorkersCompensation.com.

uncompensated

Time to Focus on Injured Workers

When WorkCompCentral released a report, The Uncompensated Worker, I wrote about how a work injury affects family finances. I applied several realistic work injury scenarios to each state. In 31 states, workers receive a reduction in take-home pay of 15% or more when they’re injured on the job. In half the states, households with two median wage earners—one on work disability and the other working full time—cannot afford to sustain their basic budget.

These findings confirmed what workers’ comp claims adjusters, attorneys and case managers already know: Many injured workers live on the edge of financial collapse.

But the findings are by no means conclusive.  The research done for “The Uncompensated Worker” was too limited. I know, because I did it. To really understand the financial experience of being on workers’ comp benefits, one should run not a handful but thousands of scenarios through a statistical analyzer and then compare the data results with actual cases researched through interviews.

The research agendas of the workers’ comp industry rarely involve looking at the worker her or himself.

Instead, the industry has funded research mainly to understand the drivers of claims costs, specifically medical care. This focus can be explained. Over the past 25 or so years, the workers’ comp industry has absorbed a huge rise in medical costs, more and more layers of regulation relating to medical treatment and even more specialties needed to deliver or oversee medical care.

To illustrate the extent of this industrial-medical complex: Nationwide spending on “loss adjustment expense,” a proxy for specialist oversight of claims, has grown annually on average by 9.4%  since 1990, while total claims costs have risen on average by 2.5%.

The quality of industry-funded research has improved, because of better data and strong talent pools in places like the Workers’ Compensation Research Institute (WCRI), the California Workers’ Compensation Institute and the National Council for Compensation Insurance. Their research focuses on cost containment and service delivery. These two themes often intertwine in studies about medications, surgeries or medical provider selection.

It’s time to pay more attention to the worker. Close to a million workers a year lost at least one day from work because of injury.  We hardly know them. Bob Wilson of Workerscompensation.com predicts that, in 2016, “The injured worker will be removed from the system entirely. … Culminating a move started some 20 years ago, this final step will bring true efficiency and cost savings to the workers’ comp industry.” Industry research, one might say, has left the worker out the system.

An example of how the worker is removed can be seen in how the WCRI did an analysis of weekly benefit indemnity caps. These caps set a maximum benefit typically related to the state’s average weekly wage. (The methodology has probably not been critiqued by states for generations, despite better wage data and analytical methods.) The WCRI modeled different caps to estimate the number of workers affected. But it did not report on what this meant to workers and their families; for example, by how much their take-home benefits would change.

As it happens, Indiana is one of the worst states for being injured at work; it has close to the stingiest benefits for a brief disability. You are not paid for the first seven calendar days of disability. Benefits for that waiting period are restored only if you remain on disability for 22 calendar days. Take-home pay for someone who is out for two weeks or less will likely be 83% less than what it would have been without injury. An Indianapolis couple, both at the state’s median wage, cannot afford a basic month’s budget for a family of three when one is on extended work disability. These poor results are partly because of Indiana’s benefit cap, which is one of the lowest in the country. The weekly benefit cap used in the report, a 2014 figure, was $650.

Les Boden, a professor at Boston University’s School of Public Health, read a draft of “The Uncompensated Worker.” For years, he has studied the income of injured workers and the adequacy of workers’ compensation benefits. He told me, “Studies have shown that many people with work-related injuries and illnesses don’t receive any workers’ comp benefits. I don’t think that the problem is too little research. It’s political. Unfortunately, workers are invisible in the political process, and businesses threatening to leave the state are not.”

I am not sure how the politics of this issue can change until the strongest research centers in the industry begin to pay attention to the worker.

This article first appeared at workcompcentral.com.