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Workers’ Comp Market Trends

Senior executives from some of the top California workers’ compensation carriers identified emerging trends that are of great importance to California employers at the 2015 California Workers’ Compensation and Risk Conference.

Panelists were:

  • Moderator: Pamela Ferrandino, national casualty practice leader at Willis North America
  • Mike Mulray, chief underwriting officer at Everest National
  • John Dickey, regional president at Liberty Mutual
  • Mike Hessling, chief client officer at Gallagher Bassett
  • Glen-Roberts Pitruzzello, vice president of workers’ compensation, group benefits claim strategy and clinical operations, at the Hartford

The WCIRB projects the estimated average medical cost-per-claim will be the lowest since 2007. What do you think are the key drivers behind this improvement?

  • The independent medical review (IMR) process. IMRs are being upheld in favor of the employer – around 90% of the time. That is showing that evidence-based protocols are being followed.
  • Medical inflation has decreased. Effective utilization review (UR) programs have had a positive effect on controlling medical costs.

Will the greater use of generic drugs in the California drug formulary materially lower workers’ compensation costs?

  • Texas is a good example. We have not seen any major pushback from what Texas has done. Texas communicated to the providers, so they know how to work within the new environment. There are reports showing that the new system has been successful.
  • It could help decrease employers’ costs by 10% to 15%. There could be much broader implications to the claimant, as well. It is not just about the money, though; the upside is also the social benefit of avoiding addiction issues.

How do you see medical marijuana affecting employers?

There are three areas:

  1. Intoxication policies come into play when you have an employee using marijuana not related to a workers’ compensation claim.
  2. To date, New Mexico is the only state that ruled for compensable treatment, but the employee was already using marijuana prior to injury. This will likely continue to be challenged in various states.
  3. Medical advocacy will continue to prove effectiveness vs. the alternatives, like opioids.

What insights have you gleaned from predictive modeling?

  • We have had some great success from the claims standpoint. There have been some great advances in tools to help with predictive modeling over the past five to 10 years, like text mining, which allows modelers to look for keywords in cases that show a trend.
  • Predictive modeling can be used to see how to prevent claims from even happening. It is more effective to try to keep the claim from occurring, rather than controlling costs once a claim has occurred.
  • We are using predictive modeling more to drive early intervention in claims to reduce the costs, but we also are trying to see how we can use this information for risk control and reduce claims altogether.
  • Almost all predictive models have a level of false positives. We need to learn to filter out the white noise that is not providing useful information.

Collectively, do you think SB 863 improvements will continue to adhere, or will they be chipped away just like the others?

  • The instant you change the rules, people try to find new loopholes. You cannot stop. One or two years of results is not a trend line to claim a victory. We will probably see erosion, and we will have to come up with solutions as an industry.
  • I’m not sure if we are seeing SB 863 play out as intended, because of issues like IMR and liens. There will probably be tweaking.
  • Many stakeholders are trying to prevent erosion, so there is cautious optimism.

What are trends to look for?

  • Formulary – we could adopt the Texas system, and, while it wouldn’t play out here exactly the same way, I think we need it.
  • Ways to reduce frictional costs for employers, like IMR.
  • The impact of a new president and immigration reform on the workers’ compensation system.
  • Attracting talent for claims adjuster positions.
  • The next generation of workers entering the workforce and becoming injured workers. Engaging with them as injured workers will be vastly different from how we have engaged with workers in the past. They will have different expectations.
  • Changes in the market cycle and how it affects the health of the workers’ comp system.

Move Workers’ Comp Out of the Silo

Over the last three-plus decades, employers have grappled with dramatic increases in healthcare and workers’ compensation costs, according to the Centers for Medicare and Medicaid Services. Workers’ compensation costs climbed more than 40% just in the last five years in California, according to the Oregon Workers’ Compensation Premium Rate Ranking Summary. At the same time, the lost time and productivity associated with injuries and illnesses add to the urgency to find a new approach to managing these costs.

Wellness programs that support and encourage employee health are popular, deployed today in more than 60% of companies with three or more employees, according to Kaiser Family Foundation and Health Research and Educational Trust research. While some believe that the benefits of wellness programs are overstated, all of the recent attention on wellness and the costs of healthcare and workers’ compensation warrants a new look at the bigger picture.

Employee health and its associated costs continue to be managed in a silo — separate from, and somehow unrelated to, workers’ compensation and “lost time” programs. Yet, these initiatives are related, and smart companies should be integrating data around workers’ comp, healthcare and productivity, to identify ways to support employees, thereby reducing costs, increasing productivity and ultimately resulting in a healthier workforce.

Breaking Down the Silos

In many organizations, group health plans and workers’ compensation programs are managed separately, often with finance responsible for workers’ compensation and HR managing the health plan. Because of the occupational/non-occupational nature of the claims — and the two distinct systems for their management — this historic division made sense when overall healthcare costs were a small component of organizational spending.

However, research is finding that viewing these programs — along with their corresponding components, such as safety, wellness, disability and leave management — as competing concerns in separate silos is short-sighted and counterproductive.

For example, based on recent research by Kaiser, we now know that smokers in the workforce are 40% more likely, and obese workers twice as likely, to have a work injury than non-smokers or leaner counterparts. Other corresponding data demonstrate similar links — obese workers who have a work injury generate seven times greater medical costs and spend 13 times more time away from work.

Organizing in traditional silos can create a hidden incentive to shift cost and risk to another internal program (“that injury happened on the job, didn’t it?”) rather than working together to reduce or eliminate the costs for the benefit of the company as a whole. Viewing these issues in a vacuum masks the true nature of healthcare costs, as is easily seen when data is analyzed in an integrated fashion. The traditional silos prevent organizations from (a) realizing improved productivity and the profit it brings and (b) maximizing the potential of internal efforts such as safety or wellness programs.

Taking an Integrated Approach

Kaiser Permanente has studied this approach and offers some startling numbers. Figures provided by the Workers’ Compensation Insurance Ratings Bureau of California (WCIRB) show the losses per indemnity claim nearly doubling since 1998, to a total of nearly $90 billion. The holistic view provided by new data enables Kaiser to look at employee health, workers’ compensation and workplace safety through a broader population health management lens.

Other insurance companies are starting to roll out programs that look at synergistic and more holistic opportunities for employee health to drive down costs, improve productivity, boost the bottom line and help employees enjoy better health. These programs help companies understand the total cost of health and safety by looking at the employee benefits and workers’ compensation costs, as well as absenteeism and “presenteeism” (an employee who is physically present at work but unproductive because of health problems or personal issues). These programs look at lost productivity, as well as identifying the specific risk factors that are driving up costs. By determining what can be modified, and creating specific action plans, employers are able to realize lower health costs, fewer on-the-job injuries and faster recoveries.

Let’s use smoking as an example. In addition to increased workers’ comp costs, numerous government and academic studies tell us that:

  • Smokers lose an average of 6.0 workdays per year — almost double the absenteeism of non-smokers;
  • Smoking exacerbates the effect of chronic disease on productivity;
  • Smokers are less likely to exercise and more likely to be heavier drinkers;
  • Smokers are estimated to spend between eight and 30 minutes a day in unsanctioned smoking breaks. This equates conservatively to more than 33 hours per year of lost time, just because of unsanctioned smoking breaks. At 15 minutes per day, the total lost productivity rises to 62.5 hours annually;
  • Lower direct healthcare and lost-time costs equal improved profit, as does greater employee productivity and morale. Combining these efforts strengthens efficiencies and drives greater profit improvement.

While the concept and math are simple, changing deeply entrenched organization models, long-standing procedures and practices and the outmoded personal attitudes and behavior they encourage and reinforce is challenging. But it can and should be done. By finding the right consulting partner, companies can tear down the silos and look at the world through a broader lens of integrated, holistic safety, health and wellness. Everyone — the organization, its people and the stakeholders — will win.

How to Manage Legal Fees for Work Comp

Loss expenses are on the rise, at an alarming rate, according to California’s Workers’ Compensation Insurance Rating Bureau (WCIRB). The California Workers Compensation — Aon Advisory Bulletin (July 2014) indicates that “allocated costs (mostly attorney payments) increased 7.3% in 2013. Unallocated costs increased 10.3%.”

Given that legal costs are on the rise, here are nine ways that risk managers can more closely manage legal services:

Have in-house counsel monitor outside counsel (and adjuster performance). Litigation costs must be properly managed because overzealous defense counsel and untrained (or cooperating adjusters) can prolong litigation, increase costs for the employer and wreak havoc on the lives of injured workers.

Review outside counsel financial arrangements — consider capped fees, flat fees or invoice paid upon file completion. Paying at the end allows outside counsel to defend the claim but discourages unnecessary hearings and runaway fees and lets risk management easily review the ultimate fee rather than numerous monthly bills. Excessive fees are more noticeable and easier to compare against other files and law firms. Attorneys who are milking the claim become more visible.

An “invoice paid upon file completion” is a good approach if you use the same attorney frequently. However, this approach should not be used when the defense counsel only has one file. You could end up with an excessive bill, with little recourse other than to fight with your own chosen counsel over the amount.

Conduct an independent audit to assess whether defense counsel was needed in the first place, or whether she was just assigned the case to do work the adjuster, assigned too many cases, was too busy to do.

A favorite ploy of overworked adjusters (and lazy adjusters) is to allow the defense counsel to handle the claim. Legal counsel should not be paid to do the adjuster’s job, including gathering medical reports, state board records and ISO reports, arranging independent medical exams (IMEs), etc. An independent claims audit of your files will tell you whether you are paying legal fees for the work the adjuster should be doing.

Review hearing rulings. Review whether the same attorneys are requesting hearings on the same issue repeatedly or requesting hearings on issues they are likely to lose. For example, if benefits are terminated but reinstated at the hearing, and this happens repeatedly, it is an indication that benefits are being terminated without sufficient cause, thereby creating unnecessary legal expense. In insurance speak, this is called “churning” files.

Churning is any unnecessary activity undertaken by defense counsel for the sole purpose of increasing the legal services bill. It can be unnecessary research on a subject the attorney should know, unnecessary motions, unnecessary discovery, having another attorney in the firm review the case, having a paralegal or junior partner undertake an unnecessary action, etc.

Before any preparation by defense counsel for the hearing, the adjuster should phone the defense attorney and discuss the need for the hearing and what the probable outcome will be. If you know going into the hearing that you are going to lose, have counsel resolve the issue with the opposing counsel. It will save both legal fees and unnecessary claim costs (indemnity and medical costs continue while you wait for the hearing). By removing the unnecessary hearings, you move the file faster, with less overall claim cost, to the final resolution.

Review whether opportunities for agreement between counsel are ignored. Defense counsel may avoid agreement because it is more profitable to have a junior attorney attend hearings and collect a large fee.

For example, in Connecticut, a claimant’s doctor can be changed, with agreement of counsel, but defense counsel rarely agree even though knowledgeable counsel will know which doctors have reputations for overtreating and overrating disability, which doctors are known for unbiased treatment and ratings and which doctors have a reputation for being conservative in their treatment and ratings.

Review whether defense counsel makes unfounded accusations against claimant of misbehavior or wrongdoing (e.g. claimant is not credible or is trying to game the system) on every claim to obfuscate the issues and prolong the litigation.

If defense counsel is not totally objective in his assessment of both the claim and the claimant, it is time to immediately identify new defense counsel.

Look at whether the attorney charges for lots of research, on many files. Very little research is necessary except in unusual claims with issues of law, so files with legal research should be reviewed very carefully.

Adjusters — with sufficient authority — should attend all hearings with defense counsel. Sometimes, there are opportunities to settle litigation during hearings. These opportunities should be considered while someone with the requisite authority is present. In many cases, seasoned adjusters are capable of attending hearings without defense counsel. (This is not allowed in some jurisdictions.)

Risk managers (or the company human resources manager or the workers’ compensation coordinator) should attend all hearings to be available to testify about the job requirements and efforts to provide transitional duty and to show interest in the injured worker’s well-being. Specify this procedure in the account handling instructions.

To verify you are controlling your legal fees, a two-pronged approach is needed. A litigation management review by an independent claims auditor will determine the effectiveness of your adjusters in controlling legal expenses. This should be combined with an audit of the legal invoices by an experienced legal bill auditor.

Post-SB 863: Now How Do We Contain Costs?

Several recent articles and publications have highlighted the challenges we continue to face in California workers’ compensation. Following the “state of the state” report in August by the Workers Compensation Insurance Rating Bureau (WCIRB), Mark Walls noted in an article that the challenges in California continue to mount as California now accounts for 25% of U.S. workers’ comp premiums, with some of the highest medical costs in the nation.

The recent Oregon report noted that California now has the most expensive comp system in the nation, having risen from the third most expense in 2012 to the #1 spot — a dubious distinction that should serve as a continued call to action.

As Walls so aptly noted, we in California need to move beyond the notion that we are always going to be different. We cannot continue to mark our “progress” against our own past performance, overlooking the sobering comparison to other states. If we do, we’ll see the return of television commercials touting nearby states as welcoming alternatives for employers.

With no shortage of reforms over the past 15 years, Mark’s comment about our focus on reducing frictional costs in the system without really addressing medical provider behavior rings true.

The recent reform attempted to tackle the frictional costs, particularly the costs of liens and utilization review (UR) disputes. It was assumed that the lien filing fee and statute of limitations on liens would reduce the extraordinary burdens and costs that were expended to both litigate and settle these expensive and often unjustified charges. It was also thought that independent medical reviews (IMRs) would speed the delivery of necessary medical care and would keep UR disputes out of the courts.

Although there certainly appear to be fewer liens, the problem has not been solved. In addition to some inevitable liens for disputed medical treatment, we continue to see liens filed after bills are reduced to conform to the approved fee schedule. In a state with a fee schedule, why should an employer be forced to litigate or settle a lien for charges that exceed the fee schedule? We know we can resist the lien, have a bill reviewer testify at a lien trial and have a good chance of prevailing. Unfortunately, though, the cost of winning is very high, including the cost of the hearing and the larger cost of keeping a claim open, delaying a settlement and maintaining a reserve. This is the very real dilemma that often causes payers to settle a lien that is not owed, rather than defending against it.

What if the prevailing party was reimbursed for the full cost of a lien hearing? Perhaps that would persuade claimants to carefully evaluate their liens before proceeding, while also forcing the defense to evaluate the validity of the lien before allowing the lien to go to trial.

The other significant attempt at reducing the frictional costs was the introduction of independent medical review. What have we seen, as a claims administrator that limits the use of utilization review by empowering examiners to approve significant numbers of diagnostics and treatments? We’ve seen in excess of 97% of the URs submitted to IMR upheld by the IMR process. Yet, for those 97%, our clients have incurred the added expense (IMR is not inexpensive), and the claims process was delayed while the IMR process was completed.

Some oversight is definitely healthy and necessary. The challenge is in finding a less costly, less time-consuming method of ensuring that injured workers are treated fairly — a method that actually changes provider behaviors so that the injured workers who are treated by high-performing providers are not swept up in a system of reviews and re-reviews.

Although no solution is likely to satisfy all constituents, there must be something we can do to provide incentives for the right provider behaviors. What about using all the medical bill reviews and other data to analyze provider behavior and “certifying” providers? The consequences could be:

1- A fee schedule “add on” or bonus for the top quartile of providers
2- A six month “bye” from utilization review for the top 50% of providers
3- Some sort of added oversight for providers performing below the 50th percentile

This is certainly not as easy as it sounds. Perhaps some representative providers would have some suggestions. Perhaps we should engage them in a discussion.

But it doesn’t seem that there can be any harm in considering a “pay for performance” model.

The answers may lie in the data, and they may not. The answers may also lie in the programs of one or more of the 49 states that offer less costly workers’ compensation coverage to employers. It certainly behooves us to look everywhere until we find those answers.

The C-Suite View on Employer Costs

An open mic session at the California Workers Comp & Risk Conference in Dana Point featured insurance industry leaders identifying emerging market trends that are important to employers in California. Panelists were: moderator Pamela Ferrandino, national practice leader at Willis North America; Bill Rabl, chief operating officer at ACE Risk Management; Robert Darby, president at Berkshire Hathaway Homestate and former chairman of WCIRB; Duane Hercules, president at Safety National; and Michele Tucker, vice president at CorVel.

The panelists indicated that their short-term outlook on rates was flat to slightly higher, but not as high as over the last couple of years. For first-dollar accounts (those with no deductible), competition is increasing because there are more carriers entering the California marketplace. For the self-insured and those with large deductibles, the rate tends to matter less than the amount of risk retained by the employer, because the goal of these loss-sensitive programs is for the carrier to only cover unusual claims such as catastrophic injuries.

Managing medical costs also continues to be a challenge. Opioids are still driving costs, so there must be an aggressive pharmacy management program in place. The industry is starting to see complications such as organ damage arise from opioid abuse. This could become a cost driver. Almost half the opioids in California are dispensed by physicians, so it may be necessary to address this issue legislatively, as other states have done.

Predictive analytics are becoming increasingly important in the workers’ compensation industry. Some third-party administrators (TPA)s and carriers are doing excellent work in using psychosocial questions to identify issues that could complicate claims handling and increase costs. This allows them to intervene and devote additional resources to these claims. Analytics are also useful in the pricing process to assist carriers in identifying accounts that are performing above and below average and trends related to them.

Municipalities face significant, long-tail impact from presumption claims (for diseases that have uncertain origins but that may be presumed to have been caused by an occupation). Defending against these claims is extremely difficult, and, once accepted, the claims have a tendency expand. Claims for high blood pressure can eventually morph into claims for advanced heart disease or a heart attack. In many municipalities, a large percentage of police officers and firefighters retire under presumption claims. There are currently bills sitting on the governor’s desk that would expand presumption laws in California, including one bill that would create presumptions for certain healthcare workers in the private sectors. If these bills are signed, they will increase California municipalities’ workers’ compensation costs even more.

Finally, panelists were asked what they expect the key issues will be three years from now. Panelists predicted that mobile technology and the ability to communicate with injured workers will advance through apps that help with early intervention. They also expect to see an increased focus on wellness to address co-morbidities. Finally, everyone anticipates that within three years we will be talking about yet another California workers’ compensation reform bill and the continued expansion of presumption laws.