Tag Archives: grand bargain

Where the Oklahoma Court Went Wrong

This essay takes issue with the Oklahoma Supreme Court’s recent decision in Torres v. Seaboard Foods to declare some workers’ compensation (WC) laws unconstitutional.

The problem with the opinions of Justices Edmonson, Combs and Colbert isn’t simply that they reached the wrong conclusion — but that they reached it for the wrong reasons.

To justify their decision, all three justices went out of their way to invoke the grand bargain, a historic compromise between employers and employees that guarantees medical and wage replacement benefits to injured workers. Before the grand bargain was struck in 1917, most U.S. employees injured on the job had to sue their employers for damages. The process was often prohibitively expensive, onerous and time-consuming for hardworking citizens who found themselves unable to earn a paycheck — when they needed funds to cover medical bills and other expenses during their convalescence.

The grand bargain is worth championing because it put an end to this intolerable state of affairs, thanks, in part, to luminaries such as Crystal Eastman, who thought an injured worker shouldn’t have to spend “nearly half of (his settlement) to pay the cost of fighting for it.”

See also: Taking a New Look at the ‘Grand Bargain’

Eastman’s emphasis on avoiding long, costly court battles was typical of the thinking that guided the U.S. into embracing the grand bargain.

It is therefore disappointing to see Justice Colbert argue that he is “forced to insure that claimants and employers in the (WC) system have their day in court.” Colbert’s rationale is contrary to grand bargain principles.

The only thing forcing Colbert to such a conclusion is his decision to put the interests of injury lawyers ahead of the interests of injured workers and of the employers who provide the benefits those workers deserve.

If the Oklahoma Supreme Court is as committed to preserving grand bargain principles as Justice Colbert claims, it doesn’t need to do anything revolutionary. It only needs to rule in the same way that it did in 1917, when it initially recognized the state legislature’s ability to pass special legislation concerning WC in the interest of the general public.

This article is the summary of a much longer essay on the topic, which draws on numerous primary and secondary sources and which you can find here.

workers' compensation

Hidden Motives on Workers’ Comp

As legal alternatives to workers’ compensation (WC) grow in number and popularity, employers will save money, and employees will—in aggregate—receive better care. [1] As this market grows, my income will also grow.

Such forthrightness should seem unnecessary from a proponent of the opt-out movement, like me. But a vocal (and boisterous) contingent of the opposition to alternatives avoids the necessary logical inversion by hiding behind other, less relevant motives.

As companies move away from WC, the income for opponents of alternatives will shrink, though they will never acknowledge financial well-being as a motive in opposing the opt-out. Attorneys, judges, cost-containment companies, third-party administrators, industry regulators, the NCCI and a host of other WC stakeholders [2] veil their financial motives by redirecting the argument to “what is fair and just for the employee.” They are being disingenuous.

See Also: The Pretzel Logic on Oklahoma Option

Over time, it becomes easier to expose financially motivated WC stakeholders. But a second component of the opposition is free from poorly hidden financial agendas. This ideological group—which compels me to write this essay—claims to oppose free market alternatives on altruistic grounds. The group’s members—just like their financially motivated brethren—lean quite heavily on the noble ideas that they hope are conveyed in the two-word, nebulous term “grand bargain” and that they treat as sacrosanct.[3]

The U.S. was a little late to the WC party. Pressure had been building on policy makers since the second half of the 19th century, but it was the Pittsburgh Survey by the Russell Sage Foundation that provided the greatest influence in the rapid adoption of WC laws in the U.S. between 1911 and 1920. Anecdotes (e.g., The Jungle) helped, but legislatures needed statistically compelling factual evidence to reform the legal schemes governing workplace accidents. Crystal Eastman stood and delivered. In her seminal study, Work-accidents and the Law (which was part of the Pittsburgh Survey and was published in 1910), Eastman gathered and reported on workplace accident data for a 12-month period between 1906 and 1907 in the small but industrially relevant sample of Allegheny County, PA. She rightly and importantly spent the first 200 pages of her study explaining the devastating effects of workplace accidents on individuals, families and communities.[4] After dozens of case studies concerning widows, orphans and maimed workers, she dove into the problem with aplomb.

The root of the problem was that common law systems couldn’t keep up with changes stemming from the Industrial Revolution—especially those in the U.S. It’s no coincidence many countries that eventually committed to industrialization were also, to some extent, relying on English common law. From the Pittsburgh survey, Eastman summarized the problematic common law system on page 206 as follows:

  1. It is wasteful:
  • The state expends a large amount in fruitless litigation.
  • Employers expend a large amount, as the result of work accidents, only a small part of which is actually paid in settlement of accident claims. 
  • The injured employes [sic] spend nearly half of what they get in settlements and damages to pay the cost of fighting for it.
  1. It is slow; recovery is long delayed, while the need is immediate.
  2. It fosters misunderstanding and bitterness between employer and employees.
  3. It encourages both parties to dishonest methods. 
  4. The institutions which have been resorted to as an escape from its evils, liability insurance and relief associations based upon a contract of release, are often advantageous to employers, but disadvantageous in important respects to employees. 

The irony—over a century later—is too obvious. Eastman’s first four points might as well be the outline for states like Oklahoma, South Carolina and Tennessee when contemplating legal alternatives to their inefficient, caustic, modern WC systems. Granted, there was substantially more urgency for Eastman when she created this list—deaths per 100,000 hours worked were at all-time highs. Today, that statistic is at an all-time low. As significant as our modern occupational accident problems are, they are a different breed from—even if they are similarly described to—what Eastman studied.

Eastman’s study was so powerful that many state legislatures used it to outline their original WC laws. Stakeholders were generally agreeable to this grand bargain, which, 1) prevented employees from suing employers for common law negligence, 2) required employers to pay medical and lost income benefits for employees injured on the job and 3) removed negligence from the conversation by making the entire WC scheme “no fault” in nature.

But there are some important contextual factors that contemporary WC stakeholders forget to mention regarding the grand bargain that gave us WC to begin with. First, most states made these new-fangled WC systems optional. That’s right; of the 45 states that passed WC legislation between 1911 and 1920, 36 allowed employers to choose which system they wished to participate in. The original Texas law—which still stands iconoclastically today—was perfectly ordinary when it was originally enacted in 1913 (it gave private employers the opportunity to subscribe to WC or stick with common law, albeit without three powerful common law defenses). When the grand bargain was being born, options were the norm.

See Also: Key Misunderstanding on Oklahoma Option

A second, forgotten characteristic of the grand bargain is how disputes—though rare—were handled. By design, attorney involvement was minimal. One of the primary goals of the grand bargain was to decrease the amount of litigation, not to recategorize and grow it. Eastman’s suggested mechanism (pp. 211-220) for dispute resolution was arbitration, which was embraced by a number of states.[5] However, never count attorneys out. Primal due process ideals eventually compelled them to increase their involvement (and compensation), all in the name of giving clients the day in court to which they are constitutionally entitled. This aberration—attorney involvement—is now sold to the public as part and parcel of the grand bargain.

Opponents will accuse me of misinterpreting Eastman’s time and message. All interested parties are, of course, welcome to read her study [6] and draw their own conclusions.

We invite interested parties to tour the facilities of our opt-out employers and interview employees. They can even search for hidden torture chambers filled with injured workers, but they won’t find them, because they do not exist. Our employees are happy, and our employers are delivering top-notch care to them at a fraction of the cost of WC.

But our opponents won’t accept this reality. “Facts be damned!” they cry. “The employer needs to pay full fare for WC.” That reasoning, again, is understandable from those WC stakeholders who fear they will starve if they can’t slurp from the trough of WC. Inexplicably, however, this attitude is even more pronounced among the opposition’s altruistic contingent, which maintains that employers must continue covering the inflated costs of employee welfare under WC, whether or not that financial burden improves the situation of injured employees.

Medicare presents an interesting litmus test for this ideological perspective. It is obvious to anyone paying attention that our entitlement healthcare program for seniors could—and should—deliver better outcomes at substantially lower costs. This is self-evident to Americans of all political stripes, in large part because we all pay for those costs via taxes. We would all like to see outcomes improve and our tax burden decrease.

In both Texas nonsubscription and the Oklahoma option, we eliminate the vast majority of legal overhead, which allows us to focus on medical outcomes. The same sorts of inefficiencies and abuses that occur within Medicare also infect WC, so it shouldn’t be hard to believe that the free market (given the legal opportunity to do so) can economize them.[7]

Yet, our vocal, altruistic opponents won’t allow their own criticisms of Medicare to influence their opinion about opt-out saving money and improving outcomes. It’s perfectly obvious that Medicare (a healthcare system rife with bureaucratic inefficiencies) could deliver better results at lower costs if it were redesigned. However, when we demonstrate that WC (a healthcare system equally rife with bureaucratic inefficiencies) could—and should—deliver better results at lower costs, they opponent of opt-out close their eyes and cover their ears. “It can’t be done!” they cry.

Somehow, from this perverse perspective, the solution to workplace injuries does not need to make the little guys (the employees) any better off, so long as it does a sufficient job of making the big guys (the employers) pay.

Ah, the joys of spending other people’s money.

This litmus test provided by Medicare shows our altruistic opponents have an unexpected hidden agenda: politics. Is such a desire—to have the employer pay more than necessary—relevant to the welfare of employees? No, it is not.

It is political. It is an impediment. It is stupid.[8]

The grand bargain was about rationalizing what had become out-of-control non-solutions for workplace injuries. Throughout the past century, many WC systems have become burdensome for employees and employers alike. They are now, ironically, non-solutions. The grand bargain wasn’t fundamentally about WC; it was about protecting employees and employers as sensibly and pragmatically as possible. It accomplished that objective with minimal use of attorneys, while generally allowing employers to elect (or subscribe) to a statutory scheme that took the name “workmen’s compensation.”

With slightly different jargon, that sounds eerily similar to what Oklahoma did in 2013. The Sooner State took a critical look at its non-solution for workplace injuries and created an alternative to more efficiently protect employer and employee alike. This statutory scheme has taken the popular name of “the Oklahoma option.”

What’s next for opt-out proponents? First and foremost, Oklahoma must tend to its new creation. After that, we’ll just have to wait and see what other states will do—if anything.

What’s next for our opponents? I suspect they will not advertise their fear of losing income. They will continue to tout the grand bargain as sacrosanct, without examining the historical context from which it emerged. They will try to hide behind arguments that appear noble.

We at WorkersCompensationOptions.com will remain at the cutting edge of this movement and will provide whatever legal occupational accident programs our clients wish to implement. Our results already speak for themselves—and they will continue to do so.

 

[1] If the reader is determined to think of “care” in only post-injury terms, so be it; my claim still stands. However, our idea of “care” starts with motivating employers to create the safest workplaces possible and motivating employees to avoid injuries in the first place. Because “no fault” is a cornerstone of the WC structure, our emphasis on safety is far easier to convey to our opt-out clients than to our WC clients.

[2] The panoply of stakeholders in WC (ranging from payroll auditors to WC Medicare Set Aside reporters and from private investigators to coding specialists tasked with maximizing reimbursements) is quite a spectacle. To avoid overwhelming my audience, I generally categorize this excessive cast of characters into the five communities of WC: insurance, medical, legal, employer and employee. Watch the first seven minutes of this video for an explanation of how perverse the incentives are for most of these stakeholders. Regrettably, the employer and employee have become afterthoughts in a system ostensibly designed to meet their needs.

[3] In both form and content, this article borrows heavily from the first 12 pages of John Kenneth Galbraith’s The Affluent Society. In particular, I have modeled my discussion on his examination of “the obsolescence of ideas,” where he explains the danger of leaving “sacrosanct” concepts unexamined as a matter of convenience.

[4] Sensitive readers beware; stories of aching necks are completely ignored by Eastman in favor of gruesome accounts of deaths and dismemberments.

[5] Arbitration was much less formal a century ago. Typically, a disinterested but experienced third party would simply perform a records review and make a determination. Testimony could be heard. For a glimpse of how WC disputes were resolved in the 1920s, see pages 88-194 of Bureau of Labor Statistics Bulletin 301, April 1922. The report by Carl Hookstadt details the various methods of dispute resolution for 21 states and two Canadian provinces. Voluntary resolution between employer and employee was universally sought. In its broadest sense, “arbitration”—in varying layers—successfully prevented litigation in the vast majority of cases (with the California sample offering the singular, glaring exception).

[6] I urge all industry insiders to read Eastman’s survey, as it’s fascinating, historically significant and accessible for free via the link above.

[7] While this argument is esoteric, I remind the reader we have actual results. Texas nonsubscription and the Oklahoma option are not theoretical; they are real.

[8] Reza Aslan delivered one of the greatest uses of the term “stupid” in September 2014, when interviewed on CNN. This nine-minute video is certainly worth watching in its entirety, but, for his thoughtful and appropriate deployment of a term many of us are too cowardly to invoke, watch from 6:20 to 7:00.

Taking a New Look at the ‘Grand Bargain’

Workers’ compensation was established more than 100 years ago as a “grand bargain” between employers and labor. Injured workers gave up their right to sue employers in civil court for workplace injuries, making workers’ compensation the “exclusive remedy” for such injuries. In exchange, injured workers received statutory benefits in a no-fault system. Over time, we have seen a number of different challenges to this grand bargain.

Is Exclusive Remedy Exclusive?

The answer to this question is clearly no. Nearly every state has a very narrow statutory exception to exclusive remedy if the injury was caused by an “intentional act” of the employer. Some states have a lower threshold if it is determined that the employer’s actions were “substantially certain” to cause injury. In both of these cases, lawsuits filed by injured workers against their employer rarely succeed, and most suits do not survive past summary judgment.

However, there are many other ways in which the exclusive remedy of workers’ compensation can be circumvented. These include:

  • Statutory Exceptions – New York employers in the building trades are still exposed to civil litigation in addition to workers’ compensation under the Scaffold Law. This allows workers in the construction industry to file suit against their employer if the injury arose from an “elevation-related hazard.” New York is currently the only state that still has such legislation in place, with Illinois repealing its Structural Work Act in 1995.
  • Third-Party-Over Actions – Some states allow civil litigation surrounding a work injury under a third-party-over action. In such cases, the employee sues a third party for contributing to the injury and then the third party brings in the employer on a contributory negligence action. For example, if an accident involves machinery, the machine manufacturer can bring the employer into the suit, alleging that it trained employees inadequately, that the machine was not properly maintained or that it was modified by the employer.
  • Dual Capacity Suits – Dual capacity suits allow the employee to sue the employer as supplier of a product, provider of a service or owner of premises. For example, if a worker is injured using a machine manufactured by the employer, some states allow that injured employee to file suit against the employer based on its negligence as the manufacturer.
  • RICO Suits – Filing claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) is a more recent method to attempt to avoid exclusive remedy protections. This federal law was originally designed to fight organized crime. In Michigan, Colorado and Arizona, the courts allowed injured workers to pursue a RICO complaint against their employer on the grounds that the employer “conspired” to deny medical treatment to injured workers by limiting physician referrals and prescribing practices and exercising undue influence over treating physicians.
  • Constitutional Challenges – Constitutional challenges are the latest avenue for attempting to circumvent exclusive remedy protections. There was much attention given to the Padgett case in Florida, where a judge ruled that the workers’ compensation statutes were unconstitutional because statutory changes that reduced benefits to workers and raised thresholds of compensability had eroded the “grand bargain” to the point that it was no longer valid. This case was reversed on appeal because of a technicality, so the higher courts never ruled on the merits of the argument.

Is No Fault Really No Fault?

Again, the answer is clearly no. Many states allow for a workers’ compensation claim to be disputed if it is proven that the injured worker was intoxicated at the time of the accident. In addition, some states allow for a reduction in benefits if the accident occurred because the worker violated a safety rule, such as not following lock-out/tag-out procedures or not using protective gear.

Unintended Consequences of Statutory Change and Litigation

Courts in Missouri, Illinois and Pennsylvania have ruled that, if a work injury is excluded under the workers’ compensation statutes, the employee can bring a civil suit against the employer. The courts are hesitant to provide no means for an injured worker to pursue compensation, so when statutory language is tightened up and certain conditions are excluded from workers’ compensation coverage it opens the door for potential civil action.

This issues also arises when the workers’ compensation claim is denied because the worker is not in “course and scope” of employment. If the worker falls on the employer’s premises, and the employer denies the claim under workers’ compensation, then the employee can sue under civil liability.

Not All Workers Are Protected

In many states, there are workers who are not required to be covered under workers’ compensation. In 14 states, smaller employers with five employees or fewer do not have to secure coverage. In 17 states, there is no legal requirement for coverage of agricultural workers. Finally, half the states do not require coverage for domestic workers, and five states specifically exclude coverage for these employees.

Opt-Out Legislation

Opt-out legislation, by its very nature, allows for an option to the grand bargain of traditional workers’ compensation. What many do not realize is that workers’ compensation has always been optional in Texas. Both employers and workers can choose to opt out of the workers’ compensation system and, instead, be subject to civil litigation in the event of employee injuries.

Oklahoma now allows employers an “option” to traditional workers’ compensation. Plans must be approved by the state and must provide the same level of benefits as workers’ compensation. Such plans provide employers greater control over choice of medical providers.

Opt-out legislation is currently being considered in Tennessee and South Carolina, and it is likely that similar legislation will be introduced in additional states in the future.

Causation Thresholds

There is significant variation among states in the threshold for a condition to result in a compensable workers’ compensation claim. In Tennessee, the injury must “primarily arise” from work (50% or greater). However, in California and Illinois, if the work is a contributing factor (1% or greater), the employer is responsible for that condition under workers’ compensation. Employers argue that these low causation thresholds undermine the grand bargain by greatly expanding what is considered a workers’ compensation injury.

Conclusion

As workers’ compensation has evolved, there have been many exceptions to the original premise behind the “grand bargain.” The courts have continued to allow exceptions to exclusive remedy and expanded causation standards. Statutory reforms have also resulted in classifications of employees and work conditions that are excluded from workers’ compensation. These trends are expected to continue.

Is Workers’ Comp on the Ropes?

Well, the Oklahoma experiment was fun while it lasted.

Dramatic reforms there in 2013 were intended to move the state workers’ compensation system from a court-based model to an administrative one. The experiment established Oklahoma as just the second state where employers can “opt out” of workers’ comp entirely, although they are required to offer alternate, privately managed plans.

However, thanks to a court decision a week ago, employers may be opting out of comp a lot more than they intended or even desire. That is because a Pottawatomie County district judge ruled that an injured tire worker can sue his employer for negligence because the injury was “foreseeable.”

While courts in the past have allowed tort action based on extreme negligence, the concept of a “foreseeable” accident doesn’t necessarily come close to that standard. The judge’s decision certainly risks broadening the definition of when an employee may be entitled to damages. After all, it might be “foreseeable” that a prison guard could get injured in an exercise yard fight, but that doesn’t mean his employer was negligent.

Injured tire worker Darrell Duck sued his employer, Hibdon Tire Plus, for injuries to his neck and back that he sustained while using equipment to try to loosen a bolt on a wheel. Workers’ compensation attorney Bob Burke, who is representing Duck, said the court “has issued a monumental ruling that challenges the foundation of Oklahoma’s workers’ compensation system.” He says, “The sloppy drafting of that law in 2013 has caused so many problems. It has really created a crisis now.”

A number of attorneys have raised constitutional challenges to the new Oklahoma laws. I have to give them credit. When Florida underwent significant reforms in 2003, it took attorneys in that state more than 10 years of whaling away at it before they tore a few holes in the system. The Oklahoma boys seemingly have done it in less than a year.

At stake here, of course, is the future of “exclusive remedy,” not just in Oklahoma but across the nation. There has been some discussion on this over the years, but only recently have court decisions started giving urgency to the dialogue. There are several key elements playing into this new melodrama:

  1. The assigning of guilt, or blame, in a no-fault system.
  2. The erosion of benefits provided injured workers’ to the point they are no longer adequately protected by the system.
  3. Increasing burdens on employers, now responsible for co-morbidity and social issues not of their making.

The first item listed, in my view, offers the greatest potential threat to exclusive remedy. I’ve talked about this before. The case I have cited in Tennessee is a terrific example. An electrical lineman was successfully denied benefits because he failed to follow established safety rules. Employers and insurance people I know loved that decision – after all, if it is the fault of the worker, why should we have to pay? Except, the “grand bargain: and “exclusive remedy” in workers’ comp are double-edged swords. When they swing back the other way and start allowing negligence claims that include pain and suffering awards, employers will be singing a different tune. Bottom line: You cannot assign guilt in a no-fault system, either to the employee or the employer, or the entire concept will come crashing to its knees.

The Padgett case in Florida is a good example of item number two, the erosion of benefits. In that case, a judge with very little exposure to workers’ comp declared the entire system unconstitutional. The decision was largely based on what he viewed as the continuing degradation of benefits in Florida over many years since the grand bargain. He declared that the erosion undermined the original intent of the program, and that the system no longer serves Florida’s injured workers in a fair and constitutionally sound manner. While the case itself will have limited impact for jurisdictional reasons, it is a major shot across the bow for legislators and businesses in that state.

The third item I listed is not one normally cited when discussing threats to exclusive remedy, but I think it is a mistake to ignore it. Employers today are being asked – make that required – to pay for conditions and health issues that have nothing to do with a claim; and social demands along with increasing beliefs of entitlement are pressuring employers to cover much more than they would have had to do 40 years ago. As we all get old, fat, diabetic and mentally unstable, this situation will only get worse. Employers forced to pick up the tab for these significant, yet unrelated, conditions are getting fed up with the system, and are more open to its eventual demise. For these employers, cases like our Tennessee lineman are almost seen as “payback” for what they increasingly view as a lopsided and unjust system.

The fact that their injured workers also feel it is lopsided and unjust should be telling us something.

While it is true that our process-intensive, complex and confusing system has lost its way on some fronts, people anxious to return to the days of unending litigation and open liability should rethink that position. For the vast majority of employers and their injured workers, workers’ comp has worked for more than 100 years, and the statistics bear that out. There was a reason both sides worked together to create this mess in the first place; the mess it replaced was even worse.

So we should fix workers’ compensation (starting, of course, by calling it workers’ recovery) and protect the concept of exclusive remedy for another 100 years.

As for our friends in Oklahoma, appeals to the state Supreme Court are sure to manifest themselves. That story is just beginning. No one can clearly see where this trend will take the nation. Alas, while apparently injuries are “foreseeable” in Oklahoma, the future of exclusive remedy is not.

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