Trends and Issues in Workers’ Comp for 2016

From the ‘What’s happening now in workers’ comp’ department comes two articles written earlier this month by Jacquelyn Connelly in Independent Agent magazine.

The first, written on February 1, talks about new health care trends driving change for workers’ comp. The second, written a week later, deals with the top three regulatory issues to watch for in workers’ comp in 2016.

Let’s start with the first article.

As Ms. Connelly writes, medical now represents on average, 60% of the benefit dollar paid to injured workers, according to Peter Burton, senior division executive for state relations at NCCI (National Council on Compensation Insurance).

Burton said that, “if you went back 25 years ago, it would have been about 40%,” and he went on to say that, “medical is the largest component in most states of the benefit given to injured workers. If you looked at the amount of legislative pricing requested of NCCI during last year, the majority of the requests were medical-related.”

In my White Paper, I cited that “medical costs in 2008 were 58% of all total claims.”

One explanation Ms. Connelly gives is rising and shifting medical costs.  According to Donna Urben, vice president and workers’ compensation product manager at Erie Insurance, “the rise in medical costs, we’ve all seen it on typical health plans and we’ve also seen it on workers’ comp.” She goes further to say that, “what helps with the control of the increase in medical costs are those states that actually are able to direct medical care.”

Some state workers’ comp laws state that injured workers must go to panel physician established by the employer for a timeframe that is mandated by state guidelines, according to Ms. Urben.

If the injured workers receives medical care that fits the injury,” says Ms. Urben, “that ultimately gets them back to pre-injury status and enables them to return to work more quickly,”…”this explains why in some states that permit direction of care, employers are able to see a reduction in the claim cost on the medical claims side, versus those states that don’t permit direction of care, employers see a greater volatility in the medical costs from a workers’ compensation claim.

Another reason given by Ms. Connelly for the rise of medical costs is the duration of treatment.

Medical costs could also transform under the ACA, says Yvonne Hobson, vice president of corporate underwriting at Amerisure, and could cause some cost-shifting in workers’ comp insurance, by authorizing the use of capitation models that designate a set amount for each enrolled plan member, regardless of whether they take medical during that time.

This is not the first time we have seen this issue of cost-shifting and the ACA come up, as I and others have written about it last year.

Hobson explains that, “there are some injuries, such as soft tissue injures or back or knee or shoulder pain, where the cause of the injury isn’t readily apparent if it happened on the job or outside of work.” There is some discretion on the part of the doctors, Ms. Hobson states, when determining if the injury is work-related or not.

On the other hand, Matt Lyon, of Foremost Insurance Group, cited some predictions that the ACA could reduce the frequency of “Monday morning claims”, where someone gets hurt on the weekend, they don’t have health insurance, and come into work on Monday and file a workers’ comp claim, Ms. Connelly writes.

Mr. Lyon noted that some preliminary studies suggest a slight correlation between the ACA and a decline in fraudulent comp claims.

Ms. Hobson concurs, and stated that, “the challenge with cost-shifting is that the research and the data on it is new, so only time is going to be able to tell us how it’s going to ultimately be impacting workers’ compensation costs.

The final trend, Ms. Connelly mentions is the misuse and abuse of opioids and medical marijuana. I have discussed the opioid abuse issue before, so I will not go into that here, and the other trend is medical marijuana, as well as recreational use.

States such as Alaska, Colorado, Oregon and Washington have allowed recreational use, and 23 states and Washington, D.C. have legalized medical marijuana.

In her second article, Ms. Connelly identifies three regulatory issues. These issues are:

  1. Opt-out laws. Currently, as I have written about, opt-out is only in Texas and Oklahoma, but it was reported recently that the legislation in Tennessee has not passed this year, and maybe voted on again next year. Other states proposed for this legislation are Arkansas, North and South Carolina and West Virginia. The group behind the writing of this legislation is called “A-rock” (ARAWC).
  2. Reform efforts. Peter Burton, cited by Ms. Connelly in the last article, said that insurance agents need to be wary of the “attack on the exclusive remedy”. I have also written about this; yet, my research for this article has found that the ALEC (American Legislative Exchange Council), a right-wing, non-profit organization partly funded by the Castor and Pollux of right-wing, libertarianism, the Koch Brothers has drawn up a bill defending exclusive remedy, which I find puzzling, because I would have thought that they would want to let workers try to sue their employers, which is what happened before the enactment of workers’ comp laws.
  3. Independent contractor classification. The Department of Labor’s Administrator’s interpretation sought to classify most independent contractors as employees.

What does this mean?

For workers’ comp, it means that there are challenges ahead that the industry needs to be aware of, but it also means that business as usual will no longer suffice, nor will doing the same things over and over again, and expecting different results.

As we have seen in Ms. Connelly’s first article, medical costs are rising for workers’ comp claims. She does not mention whether or not this includes expensive surgeries, or is just confined to the immediate treatment of the injury and the subsequent process of returning the injured worker to their pre-injury state.

Some employers have seen reductions in medical costs, but overall, the medical costs keep rising, as evidenced by my White Paper that stated that in 2008, the percentage was 58%. Two percentage points in seven years.

Obviously, something or some things are not working. But as long as the industry ignores alternatives, as long as some people suggest that judges won’t order surgery out of the country (do doctors order executions, I wonder?), as long as these same individuals believe that no injured workers (especially Latino workers) will want to or will accept going abroad for surgery, and as long as the “old men” of the industry cling to xenophobia, racism and American Exceptionalism, holding back the workers’ compensation industry from joining the globalization of health care, comp included, then nothing will change, and costs will continue to rise.

Lastly, it is state laws themselves that need to be changed, modified or outright discarded so that employers across the country can realize huge cost savings in their medical claim costs, when their employees need surgery.

To say this will never happen is like saying Man will never fly, go to the Moon, or any of a thousand other “impossible” things we humans have accomplished. Are you saying that going to the Moon or flying is easier than going to another country to get surgery? Or are you just being xenophobic, racist, and delusional that American health care is the best?

You decide, but while you do, the meter is running on medical costs, and the other issues, such as opt-out, reform and job classification are making workers’ comp challenging now and for the future. But it does not have to be that way.

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