We kick off 2019 by discussing 20 issues the workers compensation community
should be monitoring. Our list includes both employee benefits and workers
compensation issues, as these two areas inevitably overlap. Later in the year,
several of these topics will be developed into individual Out Front Ideas
with Kimberly and Mark webinars.
Just because an issue is not on our list does not mean it's not
important. Our goal is to highlight issues that we feel need more attention.
Thus, while opioids are an important issue, we do not discuss them here because
they are already receiving tremendous national attention.
Health Care 2020
After 2 years into this administration, the Affordable Care Act remains the
law, although lawmakers and the administration have reshaped parts of it
through legislative, regulatory, budgetary, and legal actions. Health care was
a leading campaign conversation during the midterm elections in 2018 and,
expect it to top the list in the 2020 presidential election.
As of January 4, all but 14 states have adopted Medicaid expansion. This is
something we expect to continue into 2019.
Addressing the cost of prescription drugs will be a priority in 2019. While
we are a long way from bipartisan consensus on how to address the pricing
challenges, big pharma is bracing for smaller, but significant, regulatory
changes.
Finally, physician-led Accountable Care Organizations (ACOs) have continued
to do well and are likely to increase in 2019. ACOs reward providers for
desirable patient outcomes.
Legislative Watch
The 2018 elections may have a big impact on the workers compensation
landscape in 2019. There were eight states where the party of the governor
changed in the November 2018 elections. Many do not fully appreciate the impact
this can have on workers compensation; however, these governors appoint the
workers compensation regulators and administrative law judges. These positions
have a very significant influence on the practice of workers compensation in
their respective states.
In 2018, there were over 100 national bills introduced to expand
presumptions for first responders. Many of these bills pertained to
post-traumatic stress disorder. We expect a similar trend this year. One newer
area of emphasis that we expect to see is a push to continue death benefits for
surviving spouses of first responders after remarriage.
In terms of specific states, we are closely monitoring the following for
potential workers compensation legislative activity in 2019.
California—Bills to erode costs savings provisions in the
workers compensation statutes pass the California legislature every year. The
question is: will incoming Governor Gavin Newsom veto those bills as the past
two governors did? Governor Newsom is also very focused on creating universal
health care for California residents, which could have a significant impact on
workers compensation.
Illinois—The Democratic Illinois legislature and Republican
Governor Bruce Rauner battled for his entire term over workers compensation.
What will happen when Democratic Governor J.B. Pritzker takes office?
Alabama—In May 2017, a circuit judge ruled that
Alabama's workers compensation statutes were unconstitutional because of
the caps on weekly benefit and attorney fees. Since then, a bipartisan task
force has been working to develop reforms to their workers compensation
statutes that would address the areas that the judge felt were unconstitutional
while, at the same time, preventing significant cost increases for employers.
It remains to be seen whether legislative action on the task force
recommendations will happen in 2019.
Federal—With the solvency of Social Security being a
significant concern for the federal government, we have been waiting for Social
Security to start looking into potential shifting from state workers
compensation programs to the federal program. This appears to be happening now.
There are currently 15 states that have a "reverse offset" allowing
workers compensation benefits to be reduced if the person is receiving both
Social Security Disability (SSDI) and workers compensation. In all other
states, SSDI gets the offset. Legislation could quite possibly take away this
reverse offset.
Psychology of Pain
Treating pain is much more complicated than prescription medication and
physical therapy. Pain has biological, psychological, and emotional
factors—often referred to as the biopsychosocial approach to pain or the
biopsychosocial model. When patients focus on pain, pain worsens. Anxiety,
fear, and a sense of loss of control contribute to pain. Research shows
treating anxiety and psychological support reduces pain and the use of pain
medication. And, while we know that the psyche has a tremendous role in pain,
few patients receive treatment for the emotional and psychological aspects
impacting pain.
Worldwide, the need for more effective pain treatment has led the pain
treatment community to promote comprehensive treatment of pain and
multidisciplinary pain care. Unfortunately, access to skilled providers and
comprehensive pain care is a challenge in many parts of America. In addition,
receiving payer approval for care is equally challenging.
Understanding a patient's response to pain earlier in the claim offers
an opportunity to proactively create a meaningful holistic treatment plan. If
the initial pain assessment reveals the patient has a high level of subjective
pain complaints with limited objective findings, there is a likelihood the
patient will end up in a chronic pain state in the future.
The following are a few suggestions to consider regarding the psychology of
pain and workers compensation.
WORKERS COMPENSATION AND PAIN SUGGESTIONS
- Create a pain philosophy as part of your claims
program. Engage the entire cross-functional claims team in the
development of the program, including claims, clinical, legal, employer,
occupational, and orthopedic providers. The pain philosophy and
associated documents become part of the client service instructions.
- Implement pain assessment tool(s). Initial and
ongoing assessments are available.
- Outline care pathways for holistic pain
treatment.
- Patient-centered care is a key to success.
Communicate clearly and often with the injured worker. Transparency and
empathy are important.
- Identify a pain psychologist or clinical pain expert to
consult, as needed, on pain cases and help guide the more complex
cases.
- Create a feedback loop or grand rounds approach to bring
stakeholders together on a regular basis and assess the pain philosophy,
outcomes, and opportunities for improvement.
Politics of Permanent Impairment
When the American Medical Section (AMA) Sixth Edition Impairment Guidelines
were issued, experts hailed them as a very significant improvement in the
evaluation of physical impairment. But they have also led to litigation around
the country as plaintiff attorneys challenge the constitutionality of the
guidelines because they can produce lower impairment ratings.
This leads to the question states need to be asking: what is the purpose of
the impairment guidelines in their state? If the purpose is to provide a
measurement of objective physical impairment, then the AMA Sixth Edition is the
best tool for this. But, if the purpose of the impairment rating is to provide
a permanent partial disability award that considers more than just objective
impairment, then the AMA Guidelines alone are not the proper tool. The AMA
Guidelines measure physical impairment, not the loss of access to the labor
market, potential loss of earning capacity, or other subjective elements that
have nothing to do with recovery from the physical injury.
Social Determinants of Health
In patient care, addressing social determinants of health is as important as
the quality of the care that a patient receives. Social determinants of health
are the conditions in which people are born, live, work, play, worship, and age
that factor into overall health. Social determinants of health include
socioeconomic status, education and literacy, access to healthy foods and
health services, and social and physical environments. Increasingly, payers and
healthcare providers are interested in more holistic care with the goal of
improving health outcomes.
Economy's Impact on Workers Compensation
We are at record-low levels of unemployment and wages are climbing. Higher
employment and wages mean a higher payroll. Higher payroll leads to higher
workers compensation premiums.
However, higher employment rates also mean that we have more workers in the
workforce who are not adequately trained and may not be in good physical
condition. Because of this, some insurers are starting to notice a slight
uptick in accident frequency rates. It will be interesting to see the data
presented at the 2019 NCCI Annual Issues Symposium to see if we are, indeed,
starting to see an increase in frequency rates.
As of January 1, 2019, 20 states increased their minimum wage. Higher wages
could lead to more payroll and associated premiums. In addition, in states with
a wage loss benefit, a higher minimum wage means decreased wage loss
awards.
Employee Health Models
Benefits continue to be a talent attraction and retention tool for
employers. Chief human resources officers understand that the health of an
employee is directly related to productivity. The health and well-being of the
employee population lead to productivity and, in turn, directly correlates to
the top and bottom-line performance of the organization. Employee health models
are evolving with employer-purchased care. This is happening because health
insurers are not negotiating and managing costs in a way that employers can
manage models directly.
Direct primary care (DPC) is a small but fast-growing movement of doctors
who do not accept insurance and, instead, charge a monthly membership fee.
Employers engaging DPC believe in the primary care health model from a
treatment perspective and care coordination. Doctors have the incentive to
prioritize prevention and provide high-quality, coordinated care. It is a
cost-effective, value-based care model that avoids the fee-for-service
traditional pricing model.
The National Business Group on Health estimates that over 50 percent of
employers report having some form of value-based care in their health insurance
program. Although we are hearing more about value-based care in workers
compensation, be mindful of the difference between bundled pricing and
value-based programs. "Value-based" care should have a quality care
component and cost factor. "Bundled pricing" is a cost savings
model.
Telemedicine is commonplace in employee health benefits today. Over 95
percent of large employers offer telemedicine solutions. While adoption varies,
consumers who use telemedicine typically report a high level of confidence and
satisfaction in their care.
Mega Claims and Rates
Industry data reports that the number of claims over $5 million incurred is
increasing, and the size of individual claims is also increasing. It was not
that long ago that a $5 million claim was a rarity and catastrophic injury
claims tended to top off around $10 million–$15 million.
However, a combination of factors is leading to an increase in these
numbers, including accident survivability, an increase in auto accident
frequency, and advancement in medical treatment. Insurers are now seeing
individual claims as high as $40 million, and these long-tail costs have a
significant impact on premium rates.
In terms of forecasting workers compensation premium rates for 2019, overall
the outlook is that rates will remain fairly flat with some states seeing
slight rate decreases. However, both A.M. Best and Fitch have cautioned that
increasing medical and litigation costs are eroding workers compensation
insurer combined ratios and that 2019 will likely be closer to a break-even
combined ratio than the last 3 years. If the data, ultimately, shows that
accident frequency is increasing, that would be another factor that would
impact the marketplace.
Leave of Absence
State and local laws, the talent war, and employee expectations are leading
more employers to implement leave of absence programs. Employers offering paid
leave report that the benefit helps with employee retention and reduces costs
related to turnover and employee training. Another contributing factor to leave
policies is the federal Tax Cuts and Jobs Act of 2017, which contains a tax
credit for employers that provide qualifying types of paid leave to full- and
part-time employees.
As more leave programs exist, the coordination of leave administration with
job accommodations and workers compensation continues to be an issue to
watch.
Impaired Workforce
As we enter 2019, legal marijuana is more available than ever before. In
October 2018, recreational marijuana became legal in Canada. After the November
elections, there are now 10 states and the District of Columbia with legal
recreational marijuana. In 2019, state legislatures in Connecticut, Illinois,
Minnesota, New Hampshire, New Jersey, New Mexico, New York, and Rhode Island
are all expected to consider legalizing recreational marijuana.
What does all of this mean for employers? Some percentage of your workforce
is possibly impaired at work. The challenge for both employers and law
enforcement right now is that the science of marijuana has not caught up to the
social reality of legal marijuana. There are no widely accepted standards or
standardized tests to determine if someone is impaired from marijuana.
Talent Training and Development
As an industry, we are experiencing an unprecedented amount of turnover due
to the aging workforce. With turnover comes the need to train and prepare the
next generation of claims handlers. It is important that we carefully examine
existing training programs to ensure that they are adequately preparing people
with the necessary skill sets to handle claims. Not only are statutes and rules
important to learn, but soft skills are more important than ever. Rules and
regulations are trained consistently, and system training is extensive;
however, soft skills training is lacking and, often, absent.
Workplace Violence
Workplace violence is a problem that continues to get worse. We are not
talking about mass shootings, which are rare. Instead, our focus is the
day-to-day threat of violence faced by many workers. Physical assaults on the
job are a growing problem in many industries—especially health care, K–12
schools, and retailers. Most are not aware of how bad the problem is becoming
because it is not widely reported. Some workers feel it is part of the job, so
they don't report the incidents. In addition, businesses and schools
don't want customers and the community to think they are unsafe, so they
don't talk about the problem.
We cannot begin to fix the problem of workplace violence until we
acknowledge the extent to which it is happening and talk about the societal
causes of the behavior. This is a very complex problem for employers.
Unconscious Bias
In recent years, the discussion about diversity and inclusion has become
mainstream. Conferences on the topic flood our inboxes, and many of our
organizations have hired diversity officers. While the discussions are
important and meaningful, we also must spend time digging into ways that we can
train our staff to be more inclusive. One such way is to tackle the topic of
them.
Unconscious biases are learned stereotypes that are automatic,
unintentional, and deeply engrained in each of us. Since many of these
prejudices exist beyond the conscious level and are a result of being brought
up in a culture that harbors biases, we must first acknowledge that they, in
fact, exist. Simply learning about our hidden biases is not enough. We must
train colleagues to identify and build skills to overcome these biases.
Employee Classification
The determination of whether a worker is an employee or an independent
contractor is a challenge that has been around since the start of workers
compensation. This issue is getting more attention now because of the gig
economy. States and the US Department of Labor are very focused on this
issue.
This is a very complicated problem for employers. The rules regarding what
constitutes an independent contractor not only vary by state, but
"independent contractor" can also be defined differently under a
state's workers compensation than under their wage-and-hour rules. In
addition, Internal Revenue Service definitions of an independent contractor are
often different than the state regulations.
The Sharing Economy
When we speak of the sharing economy, organizations like Uber, Lyft,and
Airbnb come to mind. However, the biggest potential impact of the sharing
economy in workers compensation comes in the form of data.
Larger companies used to have a tremendous competitive advantage because
they had access to so much more data, which enabled them to make more informed
decisions. However, many InsurTech companies are data aggregators, gathering
information from multiple sources and compiling it into something useful that
can be analyzed and acted upon. The wide availability of data is a benefit to
startup and smaller companies because it can help to level the information
playing field. More data enables better analytics and better
decision-making.
Globalization of Risk Management
We live in a global economy, and, as a result, risk management is becoming
more globalized. Employers with operations in multiple countries are well aware
of the challenges associated with globalization, including complying with a
growing number of laws and regulations. However, even businesses that do not
have physical operations in other countries can be subject to international
laws and regulations if they have an online presence or work with vendors in
other countries.
The Consumer Experience
Organizations placing a high priority on consumer experience and engagement
are changing the way they create and design products, address customer service
issues, and measure experience and engagement across stakeholders. These
organizations often discuss design thinking as a strategy for innovation.
"Design thinking" involves internal and external stakeholders,
satisfaction and engagement levels, and efficacy and quality.
How often do you find injured workers at a conference sharing their
experience with the system and claims process? Do injured workers have a voice
at the table regarding processes and communications in which they are involved?
Would turnover and employee satisfaction improve for claims organizations if
the claims adjuster had a central role in workflow and product design?
As we consider the future of work, talent attraction, and retention,
evolving from process to an empathetic engaging industry, we believe an
emphasis on the consumer experience is paramount to success.
Measuring Success
The old adage of "what gets measured gets done" is also true in
the workers compensation industry. But the question becomes "are we
measuring the right things?"
Future of Work
The future of work is an important conversation for all of us to consider in
2019. When you think of the future of work, what comes to mind? Machine
learning, automation, technology, digital? How are our work cultures changing?
Employees today want to feel connected—connected to each other, connected to
their community, and connected to passions. Employees also want to perform
purposeful work and to feel valued.
As workplaces evolve, our industry will also need to evolve in order to
attract and maintain the workforce of the future.
Natural Disasters
Without question, we are experiencing more frequent and more catastrophic
natural disasters than ever before. Last year, we saw a record hurricane hit
the Florida panhandle and wildfires in California destroy entire towns.
Disaster planning and response are an essential part of a risk manager's
job. However, the significant and devastating nature of natural disasters
requires an evaluation of current risk management programs. Risk managers need
to build in different possibilities for contingency plans and also need to
factor in what would happen if there was a significant and lengthy disruption
in their supply chain. We need to be thinking of the unthinkable and preparing
for it before it happens.
To listen to the complete Out Front Ideas with Kimberly and Mark
"20 Issues to Watch in 2019" webinar, which was broadcast on January
8, 2019, please visit our archive.
Mark Walls is vice president of Communications
& Strategic Analysis for Safety National. See his full bio.