Tag Archives: public policy

Debunking ‘Opt-Out’ Myths (Part 5)

Option programs in Texas and Oklahoma produce substantially less litigation than workers’ compensation systems do, which provides a powerful endorsement for states considering such programs.

A look at litigation for workers’ compensation and option programs must consider three main exposures: (1) claims for employer liability, (2) claims that the law violates the particular state’s constitution and (3) claims for wrongful denial of benefits.

Claims for Employer Liability

Public policymakers have long understood that it is not fair to require employers to pay a high level of statutorily mandated injury benefits and also be exposed to legal liability damage claims regarding the cause of injury. There are several approaches available to state legislators in striking that balance in a workers’ compensation system or an option to workers’ compensation, but each approach must reflect this inverse relationship between the extent of an injury benefit mandate and the extent of employer exposure to liability.

Employer exposure to liability has been almost entirely removed from workers’ compensation systems because of extensive benefit mandates that include medical coverage for life. However, the option to Texas workers’ compensation takes the opposite approach. It has no injury benefit mandates but exposes employers to broad liability for negligence.

That formula will be pursued by few, if any, other state legislatures because of the risk that certain irresponsible employers would provide no injury benefit coverage to their workers. However, the Texas option liability exposure does provide an additional incentive for employers to focus on workplace safety. It also provides employers with an incentive to make a strong commitment to take care of the injured employee’s medical and indemnity needs.

Employer liability exposure under the Texas option is real. There have been more than 80 liability settlements or judgments of $1 million or more. This unlimited risk of liability is ever-present.

However, option programs experience less than half as many disputed claims as the Texas workers’ compensation system (which is widely acknowledged as the one of the best-performing systems in the U.S.). The tiny percentage of disputed option claims is, primarily, because of legal requirements to fully communicate all rights and responsibilities (at program inception and continuing) in language that employees can understand — a requirement that is quite hard to find within any workers’ compensation program.

Option programs are also legally required to use claim procedures that ensure a full and fair review of benefit claims, including access to state and federal courts.

Yet only 1.5% of Texas option claims have any attorney involvement, and less than one in 1,000 liability claims actually go through formal litigation. So, this liability exposure has a positive impact on workplace safety, while still proving to be manageable and fully insurable in a highly competitive option marketplace.

It took more than a decade for the insurance industry and case law development to create the current balance that is delivering injury benefits to more than 95% of Texas workers through either workers’ compensation or option injury benefit plans. The existing Oklahoma option and the proposed Tennessee and South Carolina options all mandate some level of injury benefits and reduce employer exposure to liability to simplify the public policy debate and avoid this long period of industry maturation.

Constitutional Challenges

In existence for more than 100 years, the Texas option has never faced a challenge on constitutional grounds. Texas courts have long respected an employee’s right to work, employer rights to tailor employee compensation and benefits and the legislature’s right to determine an appropriate balance between mandated injury benefits and employer liability exposures.

The Oklahoma Supreme Court has now twice rejected lawsuits challenging the constitutionality of the Oklahoma option in 2013 and 2015. Oklahoma trial lawyers have filed more than a dozen lawsuits at the Oklahoma Supreme Court challenging the constitutionality of the 2013 workers’ compensation reforms. Oklahoma courts may further consider different provisions of the option law, but attorneys from the claimant and defense bar now agree that the Oklahoma Employee Injury Benefit Act is here to stay.

Oklahoma and Texas employers can freely move into and out of the workers’ compensation system at any time. So, even if the Oklahoma option is ever stricken down on constitutionality grounds (as unlikely as that prospect is), the law provides a 90-day grace period for employers to move back into workers’ compensation, without penalty. Similar provisions are in the pending Tennessee and South Carolina legislation.

Claims for Wrongful Denial of Benefits

Day-to-day legal challenges by injured workers regarding their rights to benefit payments are a normal feature of all workers’ compensation systems, and the same is true of option injury benefit systems. It is an unfortunate fact of life that, as with any line of insurance business, not every claim will be handled well. But as we have seen in Oklahoma over the past year and in Texas for more than two decades, dramatically fewer claims are disputed by injured workers under option programs.

Twice as many Texas workers’ compensation claims for benefits are disputed as compared with Texas option claims. This is true even when combining all injury benefit plan disputes and employer liability disputes under the Texas option.

Option opponents love to allege these programs only save money by failing to fully compensate injured workers. But, if this were true, why do we see fewer disputes in option programs?

Option program savings are achieved through more employee accountability for injury reporting, earlier diagnosis, persistent medical care from the best providers and more efficient resolution of fewer disputes. Option programs help ensure that employers and injured workers are communicating, engaged at the table (with or without legal counsel) and working together for better medical outcomes and return-to-work. This model must be contrasted with employers and injured workers routinely fighting through the complexity contained in thousands of pages of workers’ compensation statutes, regulations and case law that necessitate attorney involvement for basic system navigation.

A large cadre of workers’ compensation claimants and lawyers can be found in the hallways and hearing rooms of the Oklahoma and other state workers’ compensation commissions and courts on any given day. But there have been few day-to-day Oklahoma option benefit challenges. Oklahoma option programs now cover more than 22,000 workers, and almost every claim that has arisen over the past year has been fairly and efficiently resolved through the injury benefit plan’s claim procedures — essentially the same claim procedures that have applied to private employer group health and retirement plans across the U.S. for more than 40 years.

Over the span of 26 years in Texas and the past year in Oklahoma, not one state or federal employee has ever been hired to specialize in the oversight or administration of the approximately 50,000 option injury program claims that are successfully resolved every year. In contrast, tens of millions in taxpayer dollars are spent in many states every year to oversee and administer day-to-day workers’ compensation claims.

As further testimony to employee appreciation for the full disclosure of their rights and responsibilities under option injury benefit plans and the customer service they receive, not a single workforce in the past 26 years has organized a union as a result of the employer electing an option to workers’ compensation in Texas or Oklahoma. For workforces that are already unionized, their members and leadership appreciate the fact that option programs routinely pay a higher percentage of disability benefits, with no waiting period and no (or a higher) weekly dollar maximum.

Plus, disability benefits are paid on the employer’s normal payroll system, which allows employers and injured workers to seamlessly continue deductions for group health, retirement, child support and union dues. Successful Texas option programs have been in place for many, many years that cover textile, communications, food and commercial workers, teamsters and other collective bargaining units.

Conclusion

With liability exposures clarified and injured workers clearly more satisfied and getting better, faster under option programs in Texas and Oklahoma, legislators and employers in other states no longer need to “wait and see.” Single-digit annual cost savings can still be achieved through traditional workers’ compensation reforms, but option-qualified employers are seeing strong, double-digit cost reductions. Option programs support tremendous productivity, reinvestment and economic development gains for injured workers, employers and communities.

So, in spite of rhetoric from trial lawyers trying to survive and from their allies in the workers’ compensation insurance industry who fear free-market competition, there is no reason why workers’ compensation option legislation and program implementation should not be pursued by state legislators and employers as fast as their other priorities permit.

Assisted Driving Is Taking Over

The power of 35.

The Insurance Institute for Highway Safety (IIHS) estimates that automatic emergency braking and forward-collision warning features could curtail injury claims by as much as 35%. The California Department of Motor Vehicles estimates that in 35% of crashes the brakes were not applied. It is striking that these two numbers match.

These savings are not surprising. Automatic braking will avoid some accidents altogether. When an accident nevertheless occurs, automatic braking may greatly reduce the speed on impact. As a matter of simple physics, a reduction in speed results in an exponential reduction in the kinetic energy that must be absorbed in a collision. The formula, for those interested, is Kinetic Energy = 1/2mv2, where “m” is the mass of the vehicle and “v” is the vehicle’s velocity. Thus, a vehicle that collides at 30 mph has only one-fourth the kinetic energy of a vehicle that collides at 60 mph.

While automatic emergency braking and forward-collision warning are standard in some luxury cars and are available as options in many others, 10 automakers have agreed with the National Highway Traffic Administration and the IIHS to establish a time frame for making assisted driving features standard in all cars.

These are significant developments for insurers and for public policy makers.

For insurers, a 35% decrease in injury claims will result in a significant reduction in premium. This may be offset, at least in part, by an increase in the cost of repair for more sophisticated vehicles and the continuing increase in healthcare costs.

Public policy makers should contemplate the potential benefits of a 35% reduction in injuries and deaths because of assisted driving. At present, highway deaths in the U.S. account for 33,000 to 35,000 deaths per year (depending on how one correlates deaths to auto accidents). Over 10 years this is the equivalent to the population of some major cities-St. Louis, Minneapolis, Des Moines or the city of your choice. A 35% reduction would reduce deaths from 33,000 to 21,450. Every year, 11,550 more people would continue to go about their lives. Add a similar reduction in the more than 2.5 million injuries per year, and the public benefit is overwhelming.

These benefits only accrue as assisted driving features find their way into the fleet. This can be a slow process. It is estimated that electronic stability control, which has been available as an option for many years and has been mandatory since 2012, will not reach 95% penetration until 2029. This is because the average age of automobiles is a bit more than 11 years. Thus, anything that can hasten the adoption of these safety features (and others that are to come) benefits everyone.

Encouraging adoption directly implicates insurance. Auto insurance is one of the more expensive costs of owning a car. The cost of these safety features, either as an option or as a standard feature, is also an expense of owning a car. It is critical that savings from the lower frequency and severity of accidents be rapidly passed on to car owners in lower insurance rates, which will help offset the added cost and promote more rapid adoption.

Even when assisted driving features become standard, which will be some years in the future, the majority of the existing fleet may still be on the road for another 11 years or so. Passing substantial insurance savings to potential purchasers will make retiring the old heap more palatable.

Policy makers and regulators can play an important part in facilitating adoption of these safer cars. Laws and regulations that may impede the rapid distribution of insurance savings to insureds should be streamlined. Likewise, some driver-centric rating systems that may distort rates by artificially depressing the weight given to the safety of the vehicle should be reviewed.

Self-driving vehicles of the future have captured the attention of the public and the insurance industry. While many have been looking toward that day, enormous improvements in safety-critical technology are taking place right now. In a sense, the future is already here. Cars are taking over many safety-critical functions from their more fallible drivers. Insurers and policy makers must adjust.

Those interested in a lengthier treatment of this topic can read this article by Thomas Gage and Richard Bishop. And here is a Bloomberg article on a Boston Consulting Group study of the issue.

Options to Work Comp: Public Policy Analysis

For more than 100 years, Texas has allowed most private employers the option of either purchasing workers’ compensation insurance or developing their own system of injured employee care. Today, 33% of all Texas employers have exercised their option and “nonsubscribe” from the state workers’ compensation system. This paper focuses on public policy that has provided Texas the most successful occupational injury management system in the U.S. – a dual system represented by both traditional workers’ compensation and an option.

Following a brief discussion of the need for options to workers’ compensation and the main components of the Texas Option, foundational public policy is examined. Then, this paper breaks new ground by detailing the size and superior performance of the Texas Option compared with Texas workers’ compensation. Data is provided regarding fewer lost time claims, faster return to work, fewer claim denials, fewer disputed claims, savings on state government expense and lower employer costs. These same public policies and claim results undergird the “Oklahoma Option” legislation that became effective in 2014 and are informing and advancing option legislation now in Tennessee and other states.

This paper will not focus on option program feasibility analysis, design, implementation or funding for a particular employer. This paper also will not provide a detailed analysis of negligence liability exposures or how to administer a nonsubscriber claim. Resources on those subjects are available upon request.

Read the report on Partnersource.com.