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baseline

Baseline Testing Provides a Win

According to the Bureau of Labor Statistics (BLS), the incidence of musculoskeletal injuries (MSD) cases for heavy and tractor-trailer truck drivers increased to 355.4 cases per 10,000 full-time workers in 2014, up from 322.8 in 2013. This is more than three times greater than the rate for all private sector workers.

Companies are faced with increasing exposure from MSD claims, not only from state regulations but from compliance with federal mandates that increase potential exposure for these types of injuries. (The Centers for Disease Control and Prevention (CDC) defines MSD as injuries or disorders of the muscles, nerves, tendons, joints and cartilage as well as disorders of the nerves, tendons, muscles and supporting structures – the upper and lower limbs, neck and lower back – that are caused, precipitated or exacerbated by sudden exertion or prolonged exposure to physical factors.)

Safety will always play a role in mitigating risks, but, no matter how safe an environment, an employer will always have MSD claims. In the transportation industry, the higher rates of injury can be attributed, in part, to several factors.

The nature of the work is one. Many drivers maintain a poor diet, rarely get enough sleep and are sedentary. As a result, they find themselves more susceptible to heart attacks and diabetes, as well as a myriad of strains, sprains and other musculoskeletal disorders.

Additionally, the percentage of older workers is higher in transportation than in most industries, with the Transportation Research Board estimating as many as 25% of truck drivers will be older than 65 by 2025; that translates into more severe musculoskeletal disorder claims.

So, how can a transportation company turn this around and provide a win for all parties? Let’s explore through a case study:

Marten Transport is a multi-faceted provider of transportation services offering over the road (OTR), regional, intermodal and temperature-controlled truckload services. The company has 15 operational centers and more than 3,670 employees and contractors. It needed to provide better care for MSD injuries while not accepting liability for injuries occurred outside the scope of work. Marten decided to institute the EFA Soft Tissue Management (EFA-STM) program in February 2015 to determine which injuries were work-related and which were not, as well as to provide better care.

According to Deborah Konkel, the work comp claims manager for Marten, the company uses the EFA-STM “as a fact-finding tool to help us, our employees and their medical providers better understand the nature of their injury and determine the best course of action going forward.” Under the EFA-STM program, workers are given a baseline test that is unread; after a reported injury, a second test is conducted. That data is compared with the baseline test to identify the new acute condition, distinct from any pre-existing chronic conditions.

The EFA-STM program is a paradigm shift in workers’ compensation because it provides benefits for all stakeholders by accurately separating work-related injuries from those that are not work-related and by providing objective information and, thus, better care for the work-related condition. The key question is what the physical condition of the employee was before the incident and what needs to be done to return him to pre-injury status. EFA-STM provides the required data.

To determine the benefit of the EFA-STM program, Marten’s workers’ compensation claims data from 2010-2014 was compared with claims data from 2015. The average rate of MSD injuries per 100 hires from 2010-14 was compared with the 2015 rate. The result was a 60% drop in the rate of MSD injuries per 100 hires in 2015. This translated into almost 40 fewer MSD claims in 2015. Using the 2010-14 average cost per MSD claim, the EFA-STM program yielded a direct ROI of 3.7: 1.

“Based on these results, we believe that the EFA-STM program has been a win for all parties involved and a must for companies, especially in the transportation industry” Konkel said.

How to Know When a Claim Should Settle

Case evaluation is part art and part math. And we’re not even talking calculus; we’re talking arithmetic.

A surprisingly large number of lawyers tell me they’re bad at math. They’re not alone. CNN anchor Chris Cuomo recently had his math corrected by co-anchor Michaela Pereira while discussing Powerball lottery numbers.

 

You can’t come up with a realistic evaluation of a workers’ compensation claim if you can’t quantify the component parts: permanent disability, life pension, Medicare-eligible and non-Medicare-eligible future medical.

In mediation caucus, when parties give me their offer or demand, I often ask how they came up with that number. I want their best argument, the one that will convince the other side. The first answer I get is often vague, something like, “We thought it would settle the case.” Workers’ compensation professionals often neglect running the numbers. Getting parties to see the same numbers moves them toward settlement.

I recently got a call about an offer in a personal injury case. I questioned the plaintiff’s attorney about what he thought this number represented. His answer didn’t sound right to me. I asked him, “Did you ask them how they came up with that number?” No, he hadn’t. I suggested the attorney ask opposing counsel that question to allow things to move forward, toward settlement.

Random demands and offers are unlikely to settle a claim. Before you assume the other side is being unreasonable or before you respond, ask: How did you get to that number?

Rental Car Waiver: To Buy or Not to Buy?

When I Googled “should I buy the rental car damage waiver, I got 40.6 million hits. Needless to say, much has been written about this issue. But much of what has been written is BAD (aka horrible and dangerous) advice.

If you have auto insurance, is that good enough? What about credit card coverage? This article explores the issues and suggests some answers, at least one of which you might not like. (Note: This article builds on an article I first published in 1998, titled “Top 10 Reasons to Purchase the Rental Car Damage Waiver.”]

The vast majority of consumer articles suggest that the purchase of the loss damage waiver (LDW) is not necessary if you have auto insurance or credit card coverage. For example, in a 2014 article in U.S. News & World Reports titled “7 Costly Car Rental Mistakes to Avoid,” the very first “mistake” involves buying insurance you don’t need. The article says your auto insurance policy “may” cover collision and quotes someone who says, “The credit card coverage will kick in for anything your personal policy doesn’t cover.” Needless to say, “may” and “will” are two different things.

While many auto policies and some credit cards may provide coverage for damage to a rental car, it is almost certainly not complete, and four- to five-figure uncovered losses are not at all uncommon. The purchase of the LDW (with caveats), along with auto insurance, provides a belt and suspenders approach to risk managing the rental car exposure.

Let’s explore the value and deficiencies of auto insurance, credit card coverage and loss damage waivers.

Personal Auto Policies

In the article I wrote in 1998 and have since updated, I enumerate many reasons why buying the loss damage waiver is a good idea. I won’t repeat those reasons in their entirety, but I’ll highlight the more important issues that have resulted in uncovered claims that I’m personally aware of, based on more than 20 years of managing such issues. We’ll start with the current 2005 ISO Personal Auto Policy (PAP) as the basis of our discussion, with some references to non-ISO auto policies.

The ISO PAP extends physical damage coverage to private passenger autos, pickups, vans and trailers you don’t own if at least one declared auto on your policy has such physical damage coverage. But physical damage coverage does not extend to a motor home, moving truck, motorcycle, etc. that you are renting.

Damage valuation is on an actual cash value (ACV) basis, while most rental agreements require coverage for “full value” (translation: whatever the rental car company says is the value), and most PAPs exclude any “betterment” in value.

Many non-ISO PAPs have an exclusion or dollar limitation on non-owned autos or specific types of rental vehicles such that rental, for example, of an upscale SUV or sports car may have limited or even no coverage.

Many PAPs limit or do not cover the rental company’s loss of rental income on a damaged auto. There is often an option to provide increased limits for this coverage, but many price-focused consumers may decline such coverage. Even where this coverage is provided, many insurers may only be willing to pay for the usage indicated by fleet logs while the rental agency wants the full daily rental value. In one claim, the renter was charged $2,000 more than his insurer was willing to pay. In another claim involving a luxury car that was stolen from his hotel parking lot, the renter was hit with the maximum daily rental rate of $300, for a total loss of use charge of $9,000 (that he negotiated down to $4,500). In still another claim, following the 2011 tsunami that hit Japan, replacement parts for a rental car were unavailable for several months, and the renter incurred a $6,000 loss-of-use charge by the rental car company.

Probably the most significant deficiency in the PAP is the lack of coverage for diminished value claims. That’s the #1 reason I always buy the LDW. I’m personally aware of uncovered diminished value charges of $3,000, $5,000, $7,000 and $8,000 and read about one from a reliable source that totaled $15,000 on an upscale SUV rental.

In one case, a Florida insured traveled to Colorado for a rock-climbing vacation. He passed on purchasing the LDW for his four-day rental because “I’m an excellent driver, and I’ve got car insurance and credit card coverage.” Apparently, the driver of the vehicle that sideswiped his rental car while it was parked was not an excellent driver. The damage totaled $4,400 for repairs, $370 for administrative fees, $620 for loss of use and $3,100 in diminished value. Of the $8,490 total, $3,990 was uninsured and not covered by his credit card, the biggest component being the $3,100 diminished value charge. In addition, the driver ended up having to hire a Colorado attorney to assist in resolving the claim. The cost of the LDW for the entire trip would have been less than $100, a small fraction of the total cost of his vacation trip.

When insureds travel on business or vacation, a rental car is often valet-parked at a hotel or restaurant. The ISO PAP extends physical damage coverage for non-owned autos “while in the custody of or being operated by you or any ‘family member’.” So, the question is whether the vehicle is still in the custody of the insured while it’s being valet-parked or otherwise in the custody of the valet service. If you don’t know and you’re relying on your PAP for coverage, the best advice is probably to not valet-park a rental car.

There are many other deficiencies in the ISO PAP that apply, and you can read about them in the previously mentioned “Top 10” article on our website. The last point I’ll make is a reminder that the majority of auto policies in the marketplace are not “ISO-standard” forms. (To learn more about that, Google “independent agent magazine price check.”) Despite what you may be led to believe by auto insurance advertisements or articles that imply that all auto policies and insurers are the same, there are potentially catastrophic differences, including coverage deficiencies with regard to rental cars. There are unendorsed non-ISO policies that don’t cover non-owned autos, period; others that exclude business use of such autos or non-private passenger vehicles (this one shows up in policies of major national carriers, not just “nonstandard” auto insurers); others that exclude vehicles that weigh more than 10,000 pounds; and so on.

Conclusion? An auto policy simply is not adequate to cover the rental car physical damage exposure.

Credit Card Coverages

Read a few of the many articles on the Internet about using credit card programs to fund damage to rental cars, and you would think that little more is needed to adequately address the exposure. Unfortunately, credit card programs have as many, or more, deficiencies as does the PAP alone. Anyone relying on auto insurance and credit cards would be well-advised to study the credit card programs. In his article, “Rental Car Agreements, LDWs, PAPs, and Credit Cards,” David Thompson, CPCU writes:

“Many major credit cards provide some limited, free coverage for rental cars. Most post the provisions related to rental cars on the card issuer’s web site. While these can run several pages, three specific conditions [that] limit, restrict or invalidate the free coverage are show-stoppers. For example:

“The following conditions limit, restrict, void or invalidate the auto rental damage waiver (DW) coverage provided by your credit card:

“(1) This auto rental DW supplements, and applies as excess of, any valid and collectible insurance. For coverage to apply, you must decline the DW offered by the rental company.

“(2) The following losses are not covered by this auto rental DW coverage: (a) Any loss [that] violated the rental agreement of the rental company; (b) Any claim for diminished value of the rental car.

“(3) Any loss or damage to certain types of vehicles—see list.”

In other words, (1) credit card coverage is excess over ANY collectible insurance, (2) you must decline the rental company’s LDW, (3) violation of the rental agreement precludes coverage, (4) like the PAP, there is no coverage for diminished value, which we’ve seen can total thousands of dollars and (5) certain types of vehicles are excluded. Excluded vehicles may include pick-up trucks, full- sized vans and certain luxury cars.

And these are only part of the full list of limitations often found in these programs. Another common limitation is that loss of use is only paid to the extent that the assessment is based on fleet utilization logs. One major credit card only covers collision and theft even though the rental agreement typically makes the user almost absolutely liable for all damage, including fire, flood and vandalism. Some credit cards offer broader optional protection plans, but typically they also exclude coverage if there is a violation of the rental agreement and don’t cover diminished value.

Another issue with reliance on credit cards is that the rental company may charge uncovered fees that max out the credit limit on the card. If you’re 1,000 miles from home on vacation with a maxed-out credit card, that can present problems.

Loss Damage Waivers

Many people don’t buy the rental car company’s LDW because they think they have “full coverage” between their auto policy and credit cards. Many see what can be a significant charge and choose not to buy the LDW on the premise, “This’ll never happen to me.”

I rarely rent cars on business trips or vacation, but I experienced a major claim with a hit-and-run in a restaurant parking lot the night before a 6 a.m. flight. I had bought the $12.95 LDW for my four-day trip, so I simply turned in the vehicle at the airport with little more than a shrug.

Thompson, who rents cars fairly often, says he has walked away from damaged cars three times. Returning a rental at the Ft. Lauderdale airport, Thompson asked the attendant how many cars a month are returned with damage. She responded that, in her typical 12-hour shift, 15 cars are returned with damage and, in most cases, the damage was allegedly caused by someone else, not the renter. She estimated that only about 15% of renters buy the LDW.

The cost of the LDW admittedly can be significant, especially if you extrapolate what the effective physical damage insurance cost would be at that daily rate. But that’s only one way to view the investment in peace of mind, not to mention the avoidance of what can be significant claims.

On an eight-day vacation last year, the LDW cost me more than the actual rental and, in fact, more than my airline ticket. But I considered the LDW part of the cost of the vacation.

Is the LDW all you need? Is it foolproof? Well, kind of, as long as you follow the rental agreement. If you violate the rental agreement, you are likely to void the LDW. Many rental agreements consider the following to be violations:

  • Driving on an unpaved road or off-road (often the case in state or national parks or states like Alaska and Hawaii).
  • Operation while impaired by alcohol or drugs.
  • Any illegal use (parking violations?), reckless driving, racing or pushing or towing another vehicle.
  • Use outside a designated territorial limit.
  • Operation by an unauthorized driver.

This illustrates the advantage of using the belt and suspenders approach of the PAP plus the LDW. The ISO PAP does not exclude the first three rental agreement violations, and the territorial limit is usually broader than any restrictive rental agreement territory outside of Mexico.

As for unauthorized drivers, some rental companies may automatically include a spouse or fellow employee or authorize them to drive for a fee. More often, the renter never reads the rental agreement and presumes anyone on the trip can drive. In one claim, a father and son were on vacation, and the father rented a car. The son had a driver’s license but was too young under the rental agreement to drive the car. The rental clerk made this clear at the time of rental. Despite knowing this, the father allowed the son to drive, and he wrecked the vehicle. Not only was the LDW voided, the father’s non-ISO PAP excluded the claim because the son was not permitted to drive the car.

A special case of unauthorized drivers could be-valet parking at a hotel or restaurant. Some agreements might except valet parking, so it’s important to determine at the time of rental whether valet parking is covered.

A note on third-party LDWs: In 2011, a fellow CPCU rented a car through Orbitz or Expedia, which offered an LDW at the time of the reservation. He mistakenly assumed this was the same LDW offered by the rental car company, but it was underwritten by a separate entity. During his trip, the rental car was damaged by a deer on a rural Montana road. To make a long story short, the third-party LDW was not a true “no liability” LDW warranty of the type offered by the rental car agency, and the result was, after negotiations on the uncovered portion of the charges (including diminished value), he had to pay in excess of $1,000 out of pocket.

Conclusions

When I rent a car on a business trip or vacation, I price the rental to include the LDW and make my decision, in part, on that basis. The peace of mind alone is invaluable, and, again, I consider the cost to be comparable to my decision to stay in a decent, secure hotel.

If you rent cars frequently, consider negotiating a price including LDW with one or more rental car agencies. Otherwise, caveat emptor. If you are an insurance professional giving advice to consumers about whether to purchase the LDW, it would likely be in your and your customer’s best interest to recommend consideration of the LDW. Your E&O insurer will appreciate it.

The Fallacy About International Claims

The world is getting smaller. Companies of every size do business around the globe. This poses business interruption risks both direct and indirectly. Recent examples include the devastating flooding in Thailand and the Tohuku earthquake and subsequent tsunami in Japan. Property claims can be hard enough when they are at home; adding distance and language differences can make things more time-consuming and add expense to resolving a claim. There is good news, though: International claims are not that different than any other claim.

For example, in 2013, when Ingersoll Rand suffered an $11 million-plus flood loss at a manufacturing plant in Shanghai, we calculated the property damage and business interruption loss amounts, prepared the claim and worked with the loss adjustor and the insurance company’s forensic accounting team. We effected a settlement within three months of the end of the loss.

Experience is the key.

The Language

The insurance world speaks English. The first question we are asked about preparing international claims is whether we have someone who speaks the local language. While this might have some benefit, it is far more important that someone understand the process and the numbers. On the rare occasion where a translator is necessary, that is all that is needed: a translator. It is not necessary to have a claims practitioner who is fluent. You are much better off with practitioners who know what they are doing on a property claim.

The Location

The time and cost to fly consultants around the world is a real concern. Often, policyholders will be inclined to hire less experienced professionals because of their proximity to the loss. This is a mistake. For the most part, information can be transferred electronically and explained over the phone. For companies based in the U.S. with operations abroad, all information necessary to prepare a claim can be transferred through headquarters.

There are certain elements of a property claim where on-site assistance is needed (physical inventories, building or equipment inspections, etc.) This type of specific technical assistance can be coordinated with the insurance company and local resources. As with accounting information, the results of these physical inspections can be documented and sent back home. There is usually no need to send someone from here to there.

As real examples, we have prepared and settled dozens of claims around the world without setting foot on the loss site. This is accomplished by sharing information electronically and communicating by phone, web meeting, web sharing portal, etc. The alternative of using local, less experienced professionals would undoubtedly add confusion to the process. Experience is the most important requirement in preparing any property claim.

Don’t get the wrong impression – we have traveled all over the world for our clients when asked. Sometimes, the parties involved require the travel, or the loss simply demands it. However, this type of travel is less frequent now. If required, travel should be scheduled to maximize productivity to reduce the amount of travel needed. Again, experience and expertise allow this to be accomplished most efficiently.

The Local Policy

Local policies that cover losses abroad may have some differences from the global policy. If these differences affect recovery, in general the master policy can be invoked to make up any differences. You will want to prepare the claim according to the local policy, but be aware of differences. Your broker should be able to help sort out any differences and the reasons for those differences.

The interpretation of the local policies by local adjusters can create confusion. Just be aware that the intent of the local policies should fit in with your global program – to indemnify for the loss.

Summary

Losses happen all over the world. Just because you are in New York and the loss is in Paris, France, does not mean you should treat it any differently than if it were in Paris, Texas. Language and location are not a barrier in this day and age. If you compromise expertise for proximity to the loss location, in the end it will cost you more. Look for a team that has had success managing international claims throughout the process, leading to results for clients.

Work Comp: Simpler Can Be More Effective

I was only home from WCRI’s annual conference a little more than a day when I saw a reminder that “simpler” systems often offer more effective solutions than more complex ones that are supposed to make our lives better. It was a lesson that overlays easily on the world of work comp with its all-too-complex and rigid structures.

My wife and I were returning home from breakfast at a local restaurant Sunday morning when we stopped by a grocery store for a quick errand. We had taken my wife’s car, and as we stopped she took the opportunity to try to reset the auto’s clock, because Daylight Savings Time had “sprung us forward” an hour the night before. My wife drives a 2013 Mercedes Benz. It is by no means a top-of-the-line Mercedes, but it still has a plethora of electronic systems and services customary in a luxury car of this day. The car must be stationary to access the clock controls and other system features, so this was a good time to tackle this task.

I watched as she scrolled through the menus on her digital display behind the steering wheel, looking for the correct one. After a few moments, she remembered that her previous car, also a Mercedes, controlled the clock via the main instrument display gauge. The clock control on this Mercedes, on the other hand, was to be found via a large knob on the center console. That knob controls a variety of commands on the audio and information center display to the right of the instrument panel. She decided very quickly that trying to find the clock control was a hassle and that she would just “get it later.”

Juxtapose this scenario with my car, a 2009 Hyundai Santa Fe. To reset the clock for springtime DST on my unassumingly low-tech ride I simply need to press a button. Once.

The clock in my car, near the top center of the dashboard, has three buttons next to it. One resets the clock to the next increment hour. The other two handle both hours and minutes on the clock. Pushing either adjusts the appropriate time segment with ease. Apparently, the Koreans who engineered my car, and the Alabamians who built it, are not as concerned with my safety as those overprotective Germans. I can change the clock whether the car is moving or not. I could be careening down the interstate at 90mph, cellphone wedged between my ear and my shoulder (no Bluetooth) and holding a doughnut firmly clenched in my left hand. A quick reach and push of a simple button still accomplishes on my humble Hyundai what others can only dream of — an automobile clock set at the correct time.

Admittedly, fall is more difficult, as I have to hold that button a few seconds while it scrolls forward 11 digits to actually set the clock back one hour. No AM or PM in my car, baby. The Koreans know I can tell the difference.

Metaphorically, the workers’ compensation industry, born of the grand bargain in 1911, started life as a Hyundai but has since evolved into a Mercedes. Nothing in comp is simple anymore. At the Workers’ Compensation Research Institute Annual Conference, attendees were treated to a myriad of statistics and analysis related to a variety of topics in workers’ comp. We learned that despite complex legislative efforts to control outrageous abuses by physicians who dispensed their own drugs, doctors in Illinois simply changed the dosages to bypass the law. We learned that states that set low fee schedules see increased costs because of more expensive office visit codes as well as an increase in doctors office visits. There were many similar topics and discussions, from California’s independent medical review (IMR) process to Florida’s exclusive remedy challenges. The entire conference highlighted the complexities of managing a process-intensive system that still at times manages to lose people through a somewhat tangled safety net.

It is another perfect example of how complexity and process can eventually stumble and collapse under their own weight, and every attempt to fix the previous crisis simply adds more layers of complication, furthering the potential for failure and disappointment.

Sometimes, simple is better. Pay doctors a fair wage, and reward the ones who perform the best by using them more often. This would stop much of the gamesmanship we see in the pricing of medical services today. Improve and facilitate communications between the employer and the injured worker. Better communication between these primary parties can reduce lost time and litigation. Train adjusters well, keep their workload reasonable and let them actually manage a claim. This would minimize dependency on a plethora of specialty firms, each performing specific tasks that empowered adjusters of yore used to handle. Streamline regulation, making the care of the injured the most important task rather than focusing on useless and resource-sucking paperwork. A simpler, focused effort in these areas would fairly quickly see improved results for all the players in comp that really matter.

I can speak personally of the benefits of simplification. The car I owned prior to my Hyundai was a BMW Z4 Roadster, with sequential manual gearbox transmission. While it was an incredibly fun car to drive, I never could change the stupid clock. Setting it in that car was not dissimilar to following a pre-flight checklist for the space shuttle. It was much easier to leave it alone and let it only be right for 1/2 of the year.

But while getting it right half the time may be acceptable for the clock in your car, it is an abysmal concept where injured human beings are concerned.