Workers' Compensation 2010: Eleven issues that will impact the year ahead

With the nation's legislative landscape dominated by health care reform and relatively stable Workers' Compensation rates, Workers' Compensation was off the radar screen for many in 2010. Yet, a review of the year points to challenging times for the years ahead:

1. Declines in frequency of claims slowing
   According to insurers, the long-term trend of declining claims frequency (claims filed per employer payroll) is beginning to flatten. This is significant because declining trends that started in 1991 have helped counter rising medical costs driven by the severity of claims and increased utilization. It's too early to determine the reasons or permanency of the shift and it could be a temporary blip caused by employers cutting back on safety initiatives. On the other hand, a strengthening of the job market can mean hiring employees who are less experienced and more prone to injuries.
2. Injured employees are staying out of work longer
   The National Council on Compensation Insurance (NCCI) notes that Workers' Comp payers are funding temporary total disability benefits longer. NCCI Director, John Robertson, attributes this to economic conditions, including fewer return-to-work opportunities. While the benefits of employee retention and reduced costs of a return-to-work program are valid regardless of economic conditions, the recession has made it difficult for some to place injured workers in transitional positions when the company is laying others off. In other cases, injured workers have returned to transitional jobs, only to be laid off for reasons unrelated to the injury.
   
   Faced with few job prospects, the employees have little incentive to get well. In fact, there is a disincentive to get well and employees stay home leading to higher reserves that are expensive for the employer to support. Dr. Richard Pimentel, a national expert on disability management, notes that the savings of turning an indemnity claim into a medical only claim can be significant and 20% of lost time from work injuries could be eliminated if the physician was given sufficient information about the transitional job possibilities. It simply makes good economic sense to return injured employees to work as soon and as safely possible.
3. Medical costs continue to rise
   According to NCCI, the medical costs of lost-time workers' compensation claims continues to grow at a faster rate than the medical consumer price index and now represent 58% of claims. An important study, "Impact of Cost Intensive Physicians on Workers Compensation" by Edward Bernacki, MD and his team at Johns Hopkins, appeared in the Journal of Occupational and Environmental Medicine in January 2010.
   
   Using five years' closed claim data from the Louisiana Workers' Compensation Corporation, they studied claims that began with reserves less than $15,000, but migrated to reserves of +/-$50,000. Of those claims, 3.8% of physicians involved were responsible for 72% of the costs. The numbers clearly demonstrate that "cost intensive physicians," those who had higher medical costs, longer medical treatment duration, longer claim durations, mean higher indemnity costs.
   
   The Bernacki study also noted that injury types or diagnoses that do not have clearly defined treatment pathways could easily lead to higher costs. Whereas a fractured tibia has a predictable treatment path, injuries of joints and back strains do not, leaving a wide berth of treatment options and opportunities for abuse.
   
   While the adoption of evidenced-based guidelines has gained ground, many job-related health-related decisions are still made by health care professionals without appropriate training in occupational injuries. In 2010 The American College of Occupational and Environmental Medicine (ACOEM) published A Guide to High-Value Physician Services in Workers' Compensation - How to find the best available care for your injured workers. The Guide offers suggestions for finding physicians who provide care for everyday, uncomplicated injuries, as well as physicians who provide specialized medical services addressing catastrophic injury or administrative tasks required by the Workers' Compensation process.
4. Safety and wellness begin to integrate
   While it's reasonable to postulate that healthy workers are less prone to injury and, once injured, recover more quickly than their out-of-shape co-workers, corporate silos have typically separated risk management departments from benefits management. New research, an aging workforce, court cases, tight budgets and anxiety over healthcare reform have caused many employers to recognize the relationship between safety and wellness.
   
   The recent Obesity 2010 NCCI Research Brief confirms that work-related injuries are far more costly and more likely to result in permanent disabilities if the injured worker is obese. Court rulings have required weight reduction surgery prior to treatment of work-related injuries. Furthermore, studies have shown that older workers have fewer injuries than their younger counterparts, but when injured they take longer to heal. In addition to assessing how jobs can be modified to accommodate older workers, employers are looking at wellness programs as a way to keep employees healthy.
5. OSHA everywhere
   With increased funding, more staff and a vigorous agenda, OSHA significantly increased its enforcement activity as well as fines in 2010. The National Safety Council (NSC) noted, "While the list of OSHA's Top 10 most frequently cited violations remains mostly unchanged, the agency's message of strong enforcement is clear." For the first time since publishing the annual OSHA Top 10 feature, each of the ten highest penalties issued in a fiscal year exceeded $1 million. This stepped up agenda is expected to continue in 2011.
6. Litigation swells
   While Workers' Comp was founded in part to avoid litigation between employers and employees, litigation is very much part of the system. Moreover, the Equal Employment Opportunity Commission (EEOC) is on pace to set another record in 2010 because of the expansion of the legal environment, including ADA (Americans with Disabilities Act) amendments, GINA (Genetic Information Nondiscrimination Act) and the Ledbetter Fair Pay Act.
   
   The Cambridge, MA Workers' Compensation Research Institute published a valuable study in 2010, Avoiding Litigation: What Can Employers, Insurers, and State Workers' Compensation Agencies Do? The study found that workers were more likely to seek attorneys when they felt threatened. Recommended actions included:
   • Training supervisors to create timely communications that focus on trust, job security, and entitlement to medical care and income benefits.
   • Communicate in a clear and timely fashion about the status of the claim to prevent misunderstandings so the worker does not mistakenly conclude that the claim has been denied.
   • Eliminate system features that encourage denials or payment delays may help prevent a worker's misconstruing a delay as a denial.
7. Misclassification of independent contractors hot issue
   Both federal and state agencies stepped up their oversight of the classification of independent contractors in 2010. In addition, the number of worker class-action lawsuits against employers relating to independent contractors rose 50% this year to a record 300 according to Garry Mathiason, vice chairman of labor law firm Littler Mendelson.
   
   According to a USA Today article, states, feds crack down on firms using 'contract workers', the Department of Labor forced employers to pay $6.5 million in back wages to 5,261 employees in fiscal 2010, up sharply from $2.6 million owed to 2,190 employees a year earlier. States are also increasing enforcement, with about 20 passing laws in the past two years that make it easier to force employers to reclassify contractors as employees and seek unpaid taxes.
   
   The government estimates that as many as 3.4 million workers are misclassified costing the federal government $4.5 billion and states over $3 billion. With mind-boggling deficits, this is likely to remain a focal point in the years ahead.
8. Medicare Set Aside Arrangements baffling many
   All parties in a Workers' Compensation case have significant responsibilities under the Medicare Secondary Payer (MSP) laws. The process is complex and confusing and has been a minefield for the parties involved. The recommended method is a Workers' Compensation Medicare Set-aside Arrangement (WCMSA), which allocates a portion of the WC settlement for future medical expenses. Failure to give notice of a settlement to Medicare carries steep penalties. Medicare is also prohibited from making payments that are the responsibility of another party; hence, injured employees may be without Medicare care if MSP issues are not dealt with appropriately at the time of settlement. With the crushing need for revenue, more focus is likely to be placed on MSP compliance.
9. Telecommuting is changing the Workers' Comp landscape
   While telecommuting can be advantageous for both employee and employer, it poses challenges for Workers' Compensation. Employees working at home can create exposures that do not occur in the office setting. Although employers have little control over home office design, they are charged with providing a safe and healthy work environment and must afford the same protection to those working at home as those working in the office.
   
   More and more talented workers are looking for flexibility in their job choices. Telecommuting is here to stay and employers need to know how to train remote employees properly to do their jobs safely and stay injury-free.
10. A new arena: Social Media and Workers' Compensation
    In 2010 Facebook surpassed Google as the number one U.S. site. While the connection of Workers' Compensation and social media is new territory, there was a successful case in September 2010 in New York where a workers' Facebook posting led to her arrest and conviction for stealing $8,975 in Workers' Compensation. Employers and lawyers need the ability to navigate around social networking sites, as they can provide a wealth of information about an injured employee's behavior as well as job applicants.
11. Uncertainty in the insurance markets
    Economic conditions, low interest rates and decreased demand have put pressures on the Workers' Compensation markets. Liberty Mutual CEO Edmund "Ted" Kelly called Workers' Compensation coverage currently being sold by insurers, already largely unprofitable while inflation is low, a "time bomb" that will become even more costly for insurers when inflation shoots up. The CEO of American International Group (AIG), made the comment on CNBC that AIG was going to be cutting back on their Workers' Compensation exposure due to some unrealistic pricing in the marketplace. While the soft market is predicted to continue in 2011, employers need to recognize that the seeds of the next hard market are being sown.
    
    In fact, some states, such as Connecticut are already seeing rate hikes. Some Connecticut employers will be hit with the largest average rate hikes in more than a decade including increases potentially as high as 31%.