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Industry Trends for 2017

Every day, our colleagues take care of people facing uncertain situations. Whether they have a workplace injury, need time away for the birth of a child, experience a medical situation that will lead to time off, are in an auto accident or suffer product or property damage, we are here to let them know that it’s going to be okay.

Part of our job in caring for these people is to simplify and clarify the process and to explain what consumers can expect. An evolving system, shifting regulations, rapidly advancing technology and economic uncertainties add to the complexities they face. Key areas in the spotlight for the coming year include good health empowerments, regulation transformations, consumer-centric progressions, risk circumventions and tech modernisms.

We will continue to offer our insights as we monitor the following business advancements and challenges throughout 2017:

Good health empowerments

Accessing care via technology

Technology advancements will continue to influence healthcare delivery. Connecting a specific injury or condition with a quality provider in a virtual setting for more immediate treatment will make these advancements more readily acceptable and increase demand.

Balancing the scale of pain management

Increasing opioid addiction and the legalization of medical marijuana will ensure pain management remains at the forefront of industry discussions. Increased education about the dangers of opioid abuse, the availability of marijuana as a medical alternative and the introduction of alternative pain management techniques will continue to dominate the conversation.

Supporting mental health initiatives

The pressures to reduce stigma and strengthen initiatives aimed at psychosocial issues and behavioral health will continue to mount. The linkage between absence at the workplace and mental health will continue to be highlighted.

See also: 10 Insurance Questions for 2017  

Regulation transformations

Compliance enforcement

Employers will continue to manage compliance-related issues as they respond to changes in the ADA/ADAAA, FMLA and other federal and state laws affecting our industry. Political reorganization and shifting administrative priorities may also create regulatory shifts for OSHA and the EEOC.

Navigating regulatory changes

Assessing the impact of provisions introduced by newly elected officials from the federal and state level in the areas of healthcare, workers’ compensation and parental leave will be at the forefront. It will be necessary to monitor newly introduced legislation in key states such as California, New York and Florida to determine how best to respond and comply with new regulations.

Workers’ compensation strategies

Primary steps among industry leaders include finding common ground and developing strategies focused on benefiting all key stakeholders. Those who favor a federal workers’ compensation option point to inconsistent benefits, rules and regulations among the states. Others believe the state systems have proven to be effective and simply need to be updated. By understanding what should be changed or replicated, legislators can work to revitalize workers’ compensation and help ensure that it continues to fulfill its original purpose.

Consumer-centric progressions

Enhancing the claims experience

The current claims paradigm will continue to shift and be characterized by an increasing focus on the consumer. The needs of injured or ill employees and other consumers will assume center stage. Claims expectations will be established early on; information and resources to support the consumers’ needs will become more readily available; and care and concern will drive and transform the claims experience.

Bridging benefit models

Integrated benefit plans have long been discussed, but not widely implemented. Pushing the boundary between various benefit providers, administrators, payers and employers through advanced online platforms could be at the forefront of many discussions. In addition to technology advancements, there is a renewed health, wellness and compliance mindset that is fostering increased interest in integration.

On-demand consumerism

Consumer and customer expectations are on the rise, and providing an immediate response has become expected in many industries. Increased connectivity and immediate communication are now the standard. In the past, it was enough to provide claim and case details through push technology, seamless payment processing and direct bank deposits. Now, the gold standard is to provide a consumer-focused experience where access to resources and data are a click away. With enhanced consumer engagement comes faster resolution, reduced litigation and reallocation of resources to focus on more complex matters.

Risk circumventions

Crisis plans

Building resiliency through new predictive models in pre-catastrophic events and using new technologies in post-disaster recoveries is on the mind of many employers. Whether the emergency is natural or man-made, cyber- or product-related or a supply chain interruption, having the right pre-catastrophe plan in place continues to be a discussion among employers, brokers, carriers and payers.

Geo risks

More organizations are likely to consider an enterprise-wide response to growing political, economic and global risks as customer markets expand. There is also an increasing need to address travel risks for employees servicing global customers on a short-term or interim basis, and ensure preparedness plans are in place.

Talent strategies

There continues to be a need to attract, train and retain new talent as baby boomers enter retirement years. Employers must learn how to accommodate multiple generations with varied preferences – from telecommuting to technology – and ensure successful integration with the existing workforce. Creating strategies and using new tools for knowledge sharing will help enhance communication and understanding.

See also: 2017 Priorities for Innovation, Automation  

Tech modernisms

Artificial and emotional intelligence

The rapid advancement of technology has led to conversations and interest in artificial and emotional intelligence. Developments in these areas and others such as new connected health technologies, Internet of Things, drones, driverless cars and services using virtual technology are contributing to privacy law and ethical guideline debates.

Explosion in actionable data

With today’s technology advancements and increasing number of connected devices come an explosion in actionable data, creating a need for more data miners. There is a growing demand for data scientists and engineers who can interpret actionable information. The use and expectation of having more refined predictive analytics to drive decisions will continue to increase and underscore the need for this specialized talent. Deciphering actionable insights as more data pours in from various connected devices will continue to be an important topic of discussion.

Self-service innovations

Having been introduced in the banking and airlines industries early on, consumer self-service options are becoming increasingly popular in the risk and benefits industry. Consumers of claims services are seeking the same user experiences that they have become accustomed to in the B2C world, including instant information access, connectivity to tech support and two-way communication when and how they want it.

You can find the original report here.

Is EEOC an Unlikely Friend on Work Comp?

The traditional school of thought since the Americans with Disabilities Act (ADA) was enacted in 1990 is that it did not apply to state workers’ comp cases because they involve temporary disabilities and work restrictions. Claimants were not considered “qualified individuals with a disability” under the ADA. Even if the ADA provision for a “reasonable accommodation without undue hardship” is to be taken into consideration, the process would not begin until the claimant reached maximum medical improvement (MMI). But informal EEOC guidelines released in December 2014 stated that these traditional understandings may not be legal.

The EEOC release stated that it is “not true” that MMI should be considered the trigger for ADA-related protections for employees and obligations for employers. Employers must begin the ADA interactive process for return to work (RTW) much sooner than commonly thought. The EEOC is saying that workers’ comp and the ADA process are to run simultaneously, not sequentially. In addition, the worker must be an active participant in the process. This is a major surprise to many in the industry.

I have been a proponent of using “the spirit of the ADA” to implement return-to-work practices in workers’ comp programs for 25 years. (See previous ITL article, “Return-to-Work: A Success Story,” June 25, 2014.) However, these new “interactive process” guidelines may change the whole practice of RTW in workers’ comp because most employers and their third-party administrators (TPAs) or insurers typically postpone attempts at a reasonable accommodation until the claimant reaches MMI. That may now be construed as a violation of employee rights and employer obligations under the ADA.

In addition, the EEOC guidelines give a very broad definition of disability and when it applies under the ADA. The EEOC spokesperson said the ADA applies “all the time” and “as soon as notified” when “a medical condition has the potential to significantly disrupt an employee’s work participation. . . . The only relevant question is whether the disability is now, or is perceived as potentially, having an impact on someone’s ability to perform their job, bring home a paycheck and stay employed.”

That is a mouthful to swallow and think about. The ADA would apply if the disability is “perceived” as having an impact on the ability to perform a job. Perceived by whom? The employer? The employee? The physician? What physician?

What does this mean for employers?

The EEOC stated that its biggest concern is the employee who has a disability but who can perform the essential functions of a job with a reasonable accommodation. The cause of the disability is considered irrelevant under the ADA. It will now be very difficult for employers to say that a worker is not a “qualified” individual under the ADA because the person obviously held the job prior to the disability.

The EEOC stated that everyone, including treating physicians, TPAs and employers, should “keep that in mind” but that only the employer is accountable for complying with the ADA. Treating physicians and employer vendors who fail to communicate with employers during the “stay @ home” process may be exposing the employer to increased risk and liability, and the EEOC spokesperson said this failure would be particularly troublesome if a treating physician who is picked by the employer doesn’t tell the employee about adjustments that might allow her to work. The employer may be liable for failing to provide that accommodation even if not properly passed along. The EEOC spokesperson went on to say that physicians and vendors should be educating employers. But who, may I ask, is educating the physicians and employer vendors?

How should employers react to these EEOC process guidelines for workers’ comp and other non-occupational disability programs? Employers should embrace them!

Most that is truly considered workers’ comp managed care and RTW best practices are encompassed in these interactive guidelines: prompt, high-quality medical care followed by 24-hour contact between workers, treating providers and supervisors. Safe return to work, with or without reasonable accommodations, should be the goal from day one and documented in each case, even without intervention by the EEOC.

Sebastian Grasso, CEO of Windham Group in Manchester, NH:

sgrasso@windhamgroup.com

which specializes in “failed return-to-work,” agrees and argues that the EEOC action should be a “wake-up call” for employers. Grasso, like several other industry experts interviewed for this article, said that in his 25-year career in the RTW business his employer/insurer clients have never brought up the ADA in workers’ comp cases. He said the two problems faced on a daily basis in the workers’ comp industry that severely hamper RTW efforts are erroneous job descriptions and inflexible employers who won’t take injured workers back unless they are “100%.” This traditional mindset and passive approach to RTW may now be considered an ADA violation, so employers and insurers may have to re-think their RTW policies and procedures.

Grasso stated; “We get injured workers back to their original jobs; it’s what we do every day. It’s the right thing to do; it’s non-adversarial and benefits all the players in the process.” This approach appears to be both within the spirit and now actual guidelines of the ADA, according to the EEOC.

Ted Ronca (medsearch7@optionline.net), a leading workers’ comp and disability attorney based in New York, also stated that he never saw the ADA brought up in a workers’ comp case in New York in the past 24 years. Ronca also feels employers should “champion” the new approach for workers’ comp RTW programs. He recommends the first thing for employers is to establish job requirements and bring the employee into these preliminary discussions. Ask the worker for his input on reasonable accommodations and document the discussion.

Back when the ADA was enacted in 1990, many believed a slew of litigation would result from workers’ comp cases. This has rarely, if ever, happened. Most experts I have spoken to are not aware of any cases, but the original fears may now come to fruition. As Ronca noted; “75% of the cases in the New York work comp system involve cases where the claimant’s attorney is claiming total disability and seeking a lump-sum award.” Getting that injured worker back to work is not on the claimant’s attorney agenda but should be on the employer’s.

Employers should not fear the ADA but embrace it. The ADA has built-in protections for employers such as that any accommodations must be “reasonable without undue hardship.” This means significantly difficult or expensive. In addition, employers are not required to eliminate or reduce the essential functions of a job even temporarily. The EEOC is simply saying that employers may choose to reduce job demands and productivity expectations on a case-by-case basis and that no blanket policy is appropriate.

However, the EEOC goes on say that the ADA cannot be used to deny a benefit or privilege to which an employee is entitled, such as time off under the Family and Medical Leave Act (FMLA), workers’ comp, disability, sick leave, accrued vacation or any other leave and benefits. The EEOC considers the ADA “civil rights for people with disabilities.”

I just loved the EEOC comment that an employer’s stay @ home policy is not a reasonable accommodation. Not only is an interactive process the right thing to do for disabled workers, it will save money, improve productivity and protect employers from potential ADA violations and obligations.

It may be time to rethink your return to work program. It’s about time!

Absence Management: Work Comp’s Future?

American employers will dispatch hundreds of staff members to an April gathering in Washington, DC, on corporate compliance issues. In all likelihood, hardly any CEOs in the workers’ comp industry are fluent in these issues, even though by the end of this decade they may change the direction of the workers’ comp businesses, separating the successful from the laggards.

A change for workers’ comp leaders hides in plain sight.  Claims have been declining in frequency by about 3.5% a year. It’s prudent to expect continued decline, as jobs become safer every year. Average claims costs, which used to bump up by more than 5% a year, aren’t growing beyond a few percent.

Meanwhile, the typical employer’s agendas of employee leave, disability management and wellness have been surging in scope and complexity. A few workers’ comp companies have already repositioned themselves to provide a broad array of solutions for these agendas.

Most workers’ comp CEOs appear to think these burgeoning workplace concerns have little to do with their company’s future. They may be right. Or they may be whistling past the graveyard.

Since the beginning of the Great Recession, demographic, technology and legal trends visible in recent decades began to accelerate in the direction of smaller work injury risk and larger non-occupational employee risks. Frank Neuhauser of the University of California at Berkeley estimated that for most workers it is more dangerous to drive to work than to be at work.

And notice the rise in employee leave benefits and the greater emphasis on wellness (despite deserved criticism of overselling that concept). Perhaps this is how Occupy Wall Street ends: not in a revolutionary bang, but a paid parental leave benefit and a worksite yoga studio.

The Disability Management Employer Coalition puts on the April conference as its annual problem-solving exercise for the Family and Medical Leave Act and Americans with Disabilities Act. In addition to these federal mandates, states and localities have been promulgating leave-related mandates by the dozens. In January, for instance, Tacoma, WA, enacted a law requiring employers to offer at least three days of paid sick leave come January 2015.

ClaimVantage, which sells absence management software, reports there are about 140 federal and state family leaves across the nation. When adding ancillary leaves like jury duty and blood donor leaves, the numbers rise to about 400. Paid family leave is gaining momentum to become a mandated benefit. The U.S. is the only high-earning country that does not offer paid leave after the birth of a child and only one of eight countries in the world that doesn’t mandate paid leave for new mothers.

According to the Integrated Benefits Institute, workers’ comp accounts for a mere 11% of all work absences involving a medical condition.

Legally mandated and voluntary benefits, disability accommodation, wellness and other employee-centric programs have by intertwining themselves raised their visibility in corporate C-Suites. No single, memorable descriptor today captures them successfully. Phrases such as “health and productivity management” and “total health” are bandied about. I suggest a simple term, “absence management,” in a report I wrote called “Seismic Shifts: An Essential Guide for Practitioners and CEOs in Workers’ Comp,” which WorkCompCentral published in February.

The absence business beckons

Although the labels will evolve, the need of employers for expert outside assistance to address their agendas is bound to grow. Will workers’ comp companies deliver solutions?

The employers most ready to ask for help include those with relatively large workers’ comp costs to begin with: middle- to large-sized employers. Workers’ comp claims payers today will process about $65 billion in workers’ comp benefits this year. Perhaps 15% of these benefits involve very large employers. A further 25% involve employers that are not that large yet incur workers’ comp losses of about $200,000 a year or more. Combined, these employers account for 45% of workers’ comp benefits. In other words, about half of the workers’ comp business today is with employers big enough to know they have a complicated absence management problem on their hands.

Their human resource executives and legal counsel have been telling CEOs that the compliance risks of government mandates can’t be ignored. The mandates have grown into an elephantine mass so thick that without expert outside assistance an employer has a high probability – say, 100% — of violating some law or other.

The more alert and early-adapting segment of employers tends to affiliate with the San Francisco-based Integrate Benefits Institute. Their individual staff members join the San Diego-based Disability Management Employer Coalition. These membership organizations feed the demand for training, resource networking and applied research.

Broadspire, ESIS, Sedgwick, York and perhaps other third-party administrators already market services to manage at least some aspect of non-occupational absences.

Workers’ comp claims payers can manage non-occupational absences because they already possess the needed core competencies. Pared down to the essentials, the workers’ comp claims payer does six things:

  • It processes claims.
  • It assists at some level of intensity in reducing the rate of incidents that end in claims.
  • It coordinates medical treatment and vocational recovery
  • It understands return to work.
  • It prices its product.
  • It complies with pertinent laws.

Absence management does basically the same things.

Further tying together workers’ comp and non-occupational absences in a workforce is the vital role of health behaviors of employees. The workers’ comp claims executive is acutely aware that health behaviors of injured workers often drive up claims costs. It is increasingly clear that smoking can be a more costly unsafe act than, say, distraction. Not that smoking precipitates an occupational or non-occupational injury (there’s scanty evidence of that), but that smokers are at more sharply higher risk to heal slowly and to become dependent on opioids in treatment.

The Integrated Benefits Institute has for years carefully analyzed patterns in non-occupational absences. It says that employers can and should use a coherent master plan for absences of all kinds, wellness initiatives and claims management.

In a phone and email exchange, IBI President Tom Parry suggests that workers’ comp claims payers think through their strengths in medical care, disability management and return to work. “These all are key parts to an employer’s strategy in taking a comprehensive approach to lost work time management,” he says.

Also, he advises, be prepared to benchmark and compare. Get hold of industry-specific benchmarking data across lost time programs, workers’ comp, FMLA and short and long-term disability. Become fluent in plan design terminology on the non-occupational side. Review the research literature on the cross-program impacts of health and a total absence management approach. IBI just published research on claims migration across programs, “Crossing Over — Do Benefits and Risk Managers Have Anything to Talk About?”

Why companies may hold back

A workers’ comp claims payer might enter the absence business because it does not believe that the workers’ comp industry is shrinking. For instance, the average cost of claims may, as it has in the past, grow faster than the reduction in injuries, leaving claims payers with an ever-larger pie. But in recent years average indemnity and medical costs have greatly slowed their growth and in some jurisdictions declined. And the incidence of lost time compensable claims continues to decline, the one clear exception being the island of all exceptions, Southern California.

Also, workers’ comp executives might say there is no apparent demand from their clients for non-occupational services. This sort of flies in the face of the experience of TPAs that have launched non-occupational service units. (True, they focus on the higher end of the employer market.) But the observation also doesn’t jibe with the workers’ comp industry’s experience with emerging services in the past. In instances of innovation, from medical bill review to pharmacy management to Medicare set-asides, large-scale and profitable services emerged after initial years of puzzlement. The fog banks eventually lift.

Then there are impediments in the broker community. It’s almost inevitable that absence management involves insurance products sold through benefits brokers and products sold through property and casualty brokers. They don’t talk a lot, even when working under the same roof. This complicates the work of product design and marketing.

Another reason to say no to opportunity is the challenging learning curve that absence management brings. But look at how the TPAs handled that. Those that have expanded their service offerings beyond workers’ comp claims all appear to forge alliances with, or acquire, servicing partners already steeped in some aspect of absence management.

It may be too harsh to equate workers’ comp claims payers with the railroad industry, which 60 years ago asserted that it was in the railroad, not the transportation, business. Perhaps too harsh, but there may be a lesson in that story.

The decline of work injuries

Injuries requiring at least 31 days away from work

year 1993 2015 2022 (projected)
injuries 450,000 250,000 175,000
Total employment 110 million 133 million 148 million

 

 

Workers’ Comp Issues to Watch in 2015

Tis the season for reflections on the past and predictions for the future. As we kick off 2015, here are my thoughts on the workers’ compensation issues to watch this year.

What Does TRIA’s Non-Renewal Mean for Workers’ Compensation?

Thanks to congressional inaction, a last-minute rewrite added this subject to the issues for this year. I’m not about to predict what Congress will do with TRIA legislation in 2015, as there are no sure things in the legislative process. We have already seen the reaction from the marketplace. Back in February 2014, carriers started issuing policies that contemplated coverage without the TRIA backstops. We saw some carriers pull back from certain geographic locations, and we also saw some carriers change the terms of their policies and only bind coverage through the end of the year, giving themselves the flexibility to renegotiate terms or terminate coverage if TRIA wasn’t renewed. But while some carriers pulled back in certain locations, others stepped up to take their place. While some carriers tied their policy expiration to the expiration of TRIA, other carriers did not.  Going forward, some employers may see fewer carrier choices and higher prices without the TRIA backstop, but ultimately most employers will still be able to obtain workers’ compensation coverage in the private marketplace. Those that cannot will have to turn to the State Fund or assigned risk pool.

Rising Generic Drug Prices

The opioid epidemic, physician dispensing and the increased use of compound drugs are issues the industry has faced for years. While these issues continue to be a problem, I want to focus on something that is getting less attention. Have you noticed that the costs for generic prescription drugs are increasing, sometimes significantly? In the past, the focus was on substituting generic drugs for brand names, which provided the same therapeutic benefit at a fraction of the costs.  But now the rising costs of these generic medications will drive costs in 2015. These price increases are being investigated by the Federal Drug Administration (FDA) and Congress, but I do not expect this trend to change soon.

Medical Treatment Guidelines

Another issue to watch on the medical side is the continued development of medical treatment guidelines and drug formularies in states around the country. This is a very positive trend and one that our industry should be pushing for. There is no reason that the same diagnosis under workers’ comp should result in more treatment and longer disability than the same condition under group health. One troubling issue that I see here is the politics that come into play. Sorry, but I do not accept that human anatomy is different in California or Florida than in other states. I feel the focus should be on adopting universally accepted treatment guidelines, such as Official Disability Guidelines, or “ODG,” rather than trying to develop state-specific guides. The ODG have been developed by leading experts and are updated frequently. State-based guidelines often are influenced by politics instead of evidence-based medicine, and they are usually not updated in a timely manner.

How Advances in Medical Treatment Can Increase Workers’ Comp Costs

There is one area in which advances in medicine are actually having an adverse impact on workers’ compensation costs, and that is in the area of catastrophic injury claims. Specifically, I’m referring to things such as brain injuries, spinal cord injuries and severe burns. Back in 1995, Christopher Reeve suffered a spinal cord injury that left him a quadriplegic. He received the best care money could buy from experts around the world, and he died less than 10 years after his injury.  But as medicine advances, we are now seeing that a quadriplegic can live close to normal life expectancy if complications can be avoided. Injuries that used to be fatal are now survivable. That’s great news. The downside for those paying the bills is that surviving these injuries is very costly. The cost of catastrophic medical claims used to top off around $5 million, with a $10 million claim being a rarity. Now, that $10 million price tag is becoming more the norm.

The Evolving Healthcare Model

For years, workers’ comp medical networks focused on two things: discount and penetration.  Sign up as many physicians as you can as long as they will agree to accept a discount below fee schedule for their services. I’m happy to say that we are slowly, finally, evolving away from that model. Payers are realizing that a better medical outcome for the injured worker results in lower overall workers’ compensation costs, even if that means paying a little more on a per-visit basis. We are now seeing larger employers developing outcome-based networks, not only for workers’ compensation, but for their group health, as well. Employers are also starting to embrace less traditional approaches such as telemedicine. Finally, more and more employers are recognizing the importance that mental health plays in the overall wellness of their workforce. In the end, we are slowly starting to see is a wellness revolution.

The Need for Integrated Disability Management

The evolving healthcare model is tied directly to an evolving viewpoint on disability management. More employers are realizing the importance of managing all disability, not just that associated with workers’ compensation claims. Employees are a valued asset to the company, and their absence, for any reason, decreases productivity and increases costs. I feel this integrated disability management model is the future of claims administration. Employers who retain risk on the workers’ comp side usually do the same thing with non-occupational disability. These employers are looking for third-party administrators (TPAs) that can manage their integrated disability management programs. And make no mistake: Having an integrated disability management program is essential for employers. Human resource issues such as the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) cross over into the workers’ compensation realm. The same interactive process required on non-occupational disability is required in workers’ compensation. Employers must be consistent with how they handle any type of disability management, regardless of whether the cause is a workers’ compensation injury or non-occupational.

Will We See a Push for ‘Opt Out’ in Other States?

Most people know that non-subscription, or opt out, has been allowed in Texas for many years. The Oklahoma Option that started last year is viewed as a much more exportable version of opt out. Under this system, employers can opt out of workers’ compensation, but they must replace it with a benefit plan that provides the same (or better) benefits available under traditional workers’ compensation. While some view the Oklahoma Option as the start of an opt-out revolution, it is just too early to tell what impact it will ultimately have. But, make no mistake, discussions about opting out are spreading to other states. A group called the Association for Responsible Alternatives to Workers’ Compensation is currently investigating the possibility of bringing opt out to other states. I expect to see opt-out legislation in a handful of other states in the next three to five years.

Marijuana

Marijuana legislation is a very hot topic these days.  In national polls, the majority of Americans favors legalization of marijuana in some form.  Recreational use of marijuana is now legal in four states (Colorado, Washington, Oregon and Alaska), and 23 states allow medical marijuana. When it comes to workers’ compensation, much of the attention has been focused on medical marijuana as a treatment option for workers’ comp because a judge in New Mexico allowed this last year. My concern is around employment practices. Employment policies around marijuana have been centered on the fact that it is illegal, so any trace in the system is unacceptable. That is going to change. I fully expect the government to reclassify marijuana from Schedule I to Schedule II in the next few years. When that happens, zero-tolerance policies in the workplace will no longer be valid. Instead, the focus will have to be like it currently is with alcohol: whether the person is impaired.

The Next Pandemic

Another hot topic these days is Ebola. While the threat from this particular disease seems to be subsiding, the concerns about Ebola last year showed we are not ready for that next pandemic. People who were exposed to the disease were allowed to interact with the general population and even use commercial travel. Government agencies debated whether travel to certain countries should be limited. The problem is, diseases don’t wait for a bureaucracy to make decisions. While this threat didn’t materialize, you can see how easily it could have. With work forces that travel around the globe, the threat of a global pandemic is very real. You know where you send your workers as part of their job, but do you know where they go on vacation? As an employer, are you allowed to ask about what employees do during their personal time? Are you allowed to quarantine an employee who traveled to an infected country during vacation? These are very complex legal questions that I cannot answer, but these are discussions we need to be having. How do we protect our employees from the next pandemic?

Rates and Market Cycle

You cannot have a discussion around issues to watch without talking about insurance premium rates in workers’ compensation. After several years of increasing rates around the country, the National Council on Compensation Insurance (NCCI) is projecting that, in 2014, workers’ compensation combined ratios were below 100% for the first time since 2006. This means that, as an industry, writing workers’ compensation is profitable again. So what should buyers expect in 2015? Well, it depends. California continues to be a very challenging state for workers’ compensation costs. New York is challenging, as well. Given the percentage of the U.S. workforce in those two states, they have significant influence on the entire industry. Some employers will see rate reductions this year, and some will not. In the end, your individual loss experiences will determine what happens with your premiums. That seems to be the one constant when it comes to pricing. Employers with favorable loss experiences get lower rates, so it pays to stay diligent in the areas of loss prevention and claims management.

Will We See More Constitutional Challenges Similar to Padgett in Florida?

While I don’t think the Padgett case will be upheld on appeal, I am concerned that the case is the first of many similar ones we could see around the country. Look at the main arguments in Padgett: The workers’ compensation system is a grand bargain between injured workers and employers. Workers gave up their constitutional right to sue in civil courts in exchange for statutorily guaranteed, no-fault benefits. Over the last 20 years, many workers’ comp reform efforts around the country have focused on lowering employer costs. Standards of compensability have been tightened. Caps have been put on benefits. The judge in Padgett looked at these law changes and ruled that workers’ compensation benefits in Florida had been eroded to the point where it was no longer a grand bargain for injured workers. He ruled that the workers’ compensation statutes were unconstitutional on their merits because the benefits provided are no longer an adequate replacement for the right to sue in civil court that that the workers gave up. Attorneys tend to mimic what succeeds in other courts, so I expect we are going to be seeing more constitutional arguments in the future.

Impact of the Evolving Workforce

One of the biggest issues I see affecting workers’ compensation in 2015 and beyond is the evolving workforce. This takes many forms. First, we are seeing technology replace workers more and more. When was the last time you went to a bank instead of an ATM? I have seen both fast food and sit-down restaurants using ordering kiosks. Also, we are seeing more use of part-time vs. full-time workers. Some of this is driven by concerns around the Affordable Care Act. But part-time workers also have fewer human resource issues, and their use allows employers to easily vary their workforce based on business needs. Unfortunately, part-time workers are also less-trained, which could lead to higher injury frequency. Finally, the mobile work force is also creating concerns around workers’ compensation. Where is the line between work and personal life when you are using a company cell phone, tablet or computer to check e-mails any place, any time? Where do you draw the line for someone who works from home regularly? There have been numerous court cases around the nation trying to determine where that line is. This is a very complex and evolving issue.

To view a webinar that goes into these topics in more detail, click here: https://www.safetynational.com/webinars.html

Yes, OSHA Is Now a Friend to Insurers

The HR/safety director at a large national construction company, who was the first to use OSHA-sanctioned medical exams conducted outside the workers’ comp system, said the program is “extremely successful” and may have saved the company as much as $1 million in workers’ comp expenses over the past few years.

The company, which has asked not to be named, has had employees sign contracts agreeing to diagnostic tests based on OSHA medical exam regulations. But when the company wanted to us a test result in front of the New York State Workers’ Comp Commission, the company’s insurance lawyer strongly advised against doing so — the insurance lawyer told the company lawyer she might go to jail!

The company contacted Ted Ronca, a leading workers’ comp and disability attorney and author based in New York. Ronca said a section in OSHA record keeping regulations (attached below) allowed an employer to schedule a contemporaneous exam with a medical provider of its choice, at the same time a worker was being examined as part of the workers’ comp process. The employer could then request a release of HIPAA-protected medical records from the worker. Ronca made a written request to OSHA and received an official letter of clarification and refinement, which was noted in my ITL article in October, Has OSHA Become a Friend to Insurers?

Both Ronca (reachable at medsearch7@optonline.net) and I were very surprised to learn of these regulations, which can help an employer push back against any overstatement of the injury done to the worker. But as anyone who has worked in the HR/disability world knows, there is a whole alphabet soup of federal regulations involving both occupational and non-occupational disability programs, including ERISA, SSDI, ADA, FMLA, EEOC, OSHA, DOT and both federal and state workers’ comp laws, not to mention scores of management/union-negotiated disability benefit programs. None of these programs are actually aligned with one another. Most are run independently from each other by different federal agencies. And most large employers have different internal staffs and outside vendors or insurance companies that administer these various disability/paid-time-off programs.

A retired New York workers’ compensation judge said that uncovering the OSHA regulations was “brilliant” and that state courts wouldn’t override them. He said the first thing judges are trained to do is “not touch” any other laws in workers’ comp cases. A workers’ comp judge would have no authority whatsoever on federal OSHA regulations.

An employer has an unequivocal right to schedule a contemporaneous exam under OSHA record keeping regulations, outside of state workers’ comp systems. How and when to use these exams is a whole other matter. Their use is not based on any case law. Case law does not exist here. Usage is based on what Ronca has done with the major construction company and other clients. In fact, OSHA exams are now formerly a part of the construction company’s employee contract protocol as a union contractor.

The new employment contract includes all the typical rules and regulations but also contains a provision on how to report all work-related injuries and the requirement that the injured worker must go to a company-provided medical/diagnostic exam, paid for 100% by the employer. In addition, new employees or contractors must undergo a confidential post-hire baseline range-of-motion medical exam, which is not read but kept in a private file and used only if there is a subsequent, work-related injury reported.

Ronca and the company have headed off potentially difficult or fraudulent claims, often without ever going to court, since implementing their program in late 2011. It would typically take as long as 18 months to schedule a hearing or independent medical exam (IME) through the state work comp system. Now, the company can take a very active role from the time of injury.

Among the first test cases was a classic type involving an employee who filed a work comp claim, after being fired, for aggravation of a pre-existing back condition. The OSHA-sanctioned medical exam confirmed there was no aggravation of a pre-existing condition. Furthermore, it was discovered that the employee was working a second job “under the table.”  No claim was filed.

Ronca says that, depending on results of the OSHA-sanctioned exams, he may be able to tell the employee’s work comp attorney, “Your client is a liar.” The client and attorney will not show up for a hearing.

In another case, the HR/safety director at the construction company said an attorney at her work comp carrier read the OSHA medical exam report and said, “I have never been so prepared for a hearing.”  This was another complicated claim involving aggravation of a pre-existing shoulder and neck condition. The carrier was going to settle for $80,000. Instead, the case was settled for $12,000 when it was determined there was no aggravation of the shoulder injury, only of the neck.

Another case in California involved aggravation of a pre-existing condition, where the claimant claimed total disability as a result. The medical exam found a slight aggravation, but the employee refused to return to work. The company went as far to arrange a modified-duty job with the nonprofit Habitat for Humanity, at full pay and benefits, but the employee refused. The company pointed out the situation to the company union. After a 5 1/2-month stand- off, the employee returned to full duty and dropped his work comp claim.

Ronca feels the strongest tool offered by the OSHA regulation is the ability to obtain prior medical records. He also stressed that the whole goal is to get the employer involved in workers’ comp claims from the moment of injury.  Early intervention is a well-known standard and best practice in workers’ comp. An OSHA exam is tool employers may use in selected cases.

The construction company is trying to do the right thing — that is, get the injured worker an early exam to help determine the correct diagnosis and treatment, which is in the best interest of both the employee and the employer. The OSHA exam should also be used if the employer suspects fraud or abuse, pre-existing conditions, employees working second jobs, etc.

Bob “Red” Hollingsworth, CEO of CompMinder in Salt Lake City, is now using this approach and has updated the CompMinder injury reporting tool he offers to employers. There is now a section that asks the employer if it wants to schedule an OSHA exam? If yes, Hollingsworth (reachable at Bob@buckner.com) has arrangements with a highly qualified occupational medical director to set-up a pre-planned program. It is critical that the employer do this directly with medical providers. The work comp carrier or TPA cannot pay for or schedule such an exam.

The work comp folks can’t be involved, so non-believers need not apply. But the employer can!

ADDENDUM — OSHA REGULATIONS UNDER SECTION 1904

“OSHA record keeping regulations permit an employer to request a prompt medical exam and release of HIPPA protected prior medical records outside the workers’ compensation system in order to help understand the link between workplace factors and injuries and illnesses in particular cases.”

Key Points

The medical exam must be paid 100% by the employer with the provider of its choice outside the workers’ compensation system.

An insurance company or third party administrator cannot schedule or pay for such exams because they cannot act outside the state workers’ comp system.

The costs of such medical exams are not included in a company’s workers’ comp costs nor experience modification calculation.

The employer can choose what medical provider’s opinion they consider to be the most authoritative for record keeping purposes.

Employee must submit to a prompt medical exam when requested by the employer and release of HIPAA-protected medical records.

Medical information and records obtained through this process can be discoverable with proper procedure and subpoena in workers’ comp cases.

OSHA 300 LOG Recordable Rules-1904

Key Language

In certain circumstances, OSHA record keeping requirements permit an employer to choose between two conflicting medical opinions. When an employer receives contemporaneous recommendations from two or more physicians or licensed health care professionals about the need for medical treatment, the employer may decide which recommendation is the most authoritative and record case based on that recommendation.

1904 Frequently Asked Questions

If a physician or licensed health care professional recommends medical treatment, days away from work or restricted activity as a result of a work-related injury or illness, can the employer decline to record the case based on a contemporaneous second provider’s opinion that the recommended medical treatment, days away from work or work restrictions are unnecessary, if the employer believes the second opinion is more authoritative?

OSHA ANSWER IS YES

HOWEVER,  

Once medical treatment is provided for a work-related injury or illness, or days away from work or restricted work activity has taken place, the case is recordable.

“If there are conflicting contemporaneous recommendations regarding medical treatment or the need for days away from work or restricted work activity but the medical treatment is not actually provided and no days away from work or work restrictions have occurred, then the employer may determine which recommendation is the most authoritative and record on that basis.”

OSHA considers that medical treatment is provided once a prescription is issued.

Key Definitions

Lost-Time: Work day (other than day of injury) when the worker is unable to return to their job.

Contemporaneous: Medical recommendations provided with no change in condition.

Most Authoritative: Best documented, best reasoned and most persuasive

Section 1904.5

Wide variety of issues do not need to be reported on OSHA log 300 but require a medical exam with prior medical records.

Employer can schedule a prompt exam and request HIPAA release for prior medical records.

A carrier or TPA would NOT be permitted to schedule such an exam, because they cannot act outside the workers’ comp system.

Note the Department of Transportation (DOT) also has additional exams for drivers such as ability to load, drive etc.

These are known as intermediary exams.

In both cases, exam records and results are not part of the comp record.

Medical exam costs must be paid by employer and are not added in comp claims or the experience modifier. However, with proper procedure and use of subpoena, records may be released and used in the comp claim.

Who Makes the Determination?

OSHA agrees that medical opinions are a burden and impractical and not required in the majority of cases. “This does not mean that employers may not, if they choose, seek advice of a physician or other licensed health care professional to help understand the link between workplace factors and injuries and illness in particular cases. It simply means OSHA does not believe that most employers will need to avail themselves of such professional services in most cases.”

Accordingly, OSHA concluded in the final rule that the determination of work-relatedness is “best made by the employer.”