Approved WC Legal Fees up 36 percent in 16-17, what will the 17-18 fiscal year look like?

Injured workers racked up nearly $186 million in approved legal fees in 2016-2017, a 36 percent increase from the previous year, a state report on the workers’ compensation insurance system shows.  This is with the Castellanos v. Next Door Company ruling, which repealed restrictive attorney fees caps, only being in place for 7 out of 12 month in the 16 -17 fiscal year.

In all, attorneys’ fees in the workers compensation system totaled nearly $440 million during the 2016-2017 fiscal year. The majority — nearly $254 million — were forked out by employers defending workers’ compensation claims.

Issued by the Office of the Judges of Compensation Claims, the 2016-2017 annual report notes that $185.6 million in approved legal fees for injured workers is the highest amount paid in nearly a decade and is attributable to a 2016 Florida Supreme Court ruling.

“Clearly, there is a trend suggested of increasing claimant attorneys’ fees in the wake of (the ruling),” the report, released last month, notes.

The report shows that in 2016-2017, more than $75 million in hourly fees were approved for claimants’ attorneys, a nearly 200 percent increase from the $25.8 million in hourly fees that were approved the previous year.

During the same period, the report shows that fees paid to workers’ compensation attorneys under legislatively approved fee caps decreased about 31 percent.

It is the second consecutive year that legal fees increased for injured workers and employers and reverses what had been a five-year trend of lower legal costs for both sides in workers’ compensation cases.

Workers’ compensation is a no-fault system meant to protect workers and employers. It is supposed to provide workers who are injured on the job access to medical benefits they need to be made whole. Those who are injured for at least eight days also are entitled to indemnity benefits, or lost wages. In exchange for providing those benefits, employers generally cannot be sued in court for causing injuries.

While the system is supposed to be self-executing, injured workers hire attorneys when there are disputes over the amounts of benefits they should receive.

Florida businesses faced some of the highest workers’ compensation costs in the country in the early 2000s. Business interests argued that attorney involvement — legal fees in the aggregate totaled $427 million in fiscal year 2002-2003 — was the reason for the high costs.

The Legislature responded by passing a sweeping rewrite of the workers’ compensation system in 2003 that, among other things, tied the recovery of plaintiff attorneys’ fees to percentages of the amount of recovered benefits. The law was tweaked in 2009 to make clear that workers’ compensation judges were precluded from awarding additional hourly fees for plaintiffs’ attorneys.

But in a 2016 ruling known as Castellanos v. Next Door Company, the Florida Supreme Court ruled that the restrictive fee caps violated injured workers’ due process rights and authorized judges to award fees outside the fee schedule if adhering to it yielded unreasonable results.

Business interests lobbied the Legislature earlier this year to, at a minimum, limit the hourly rates that attorneys could charge. But lawmakers did not approve a change.

Despite the marked increase in legal costs for 2016-2017, the report notes that when adjusted for inflation, aggregate attorneys’ fees in Florida workers’ compensation have decreased by more than $100 million over the past 14 years.

Source: https://www.news4jax.com/news/florida/legal-fees-increase-in-workers-comp-system

Florida’s Workers’ Comp Rate Decrease By Industry

FORT MYERS, Fla., Nov. 27, 2017 /PRNewswire/ — What goes up must come down is a fundamental law of gravity and roller coasters.  But it is also starting to become an appropriate depiction for Florida workers’ compensation rates, according to Mark Webb, senior vice president of Lykes Insurance.

“In what is heralded as good news for employers, the Florida Insurance Commissioner approved an amended filing on Nov. 9, 2017 ordering an average decrease of 9.5 percent in workers’ compensation rates effective Jan.1, 2018,” says Webb. “This decrease was slightly more than the 9.3 percent decrease proposed by the NCCI in August.”

Webb notes that this is an average decrease. The actual decrease is allocated among classifications by industry as follows:

Office and Clerical -11.5 percent
Goods and Services -10.6 percent
Manufacturing -10.3 percent
Contracting -7.19 percent
Miscellaneous -8.3 percent

This decrease was filed based on a reduction in claim frequency over the two years prior to 2016.  However, it does not take into consideration the two Supreme Court decisions in 2016 that brought the 14.5 percent increase last December: the Castellanos and Westphal decisions.

These two cases resulted in retroactive changes to claimant attorney compensation and impairment benefits.  Few deny that these court decisions are and will continue bringing upward pressure on the cost of claims, and it seems unlikely that the Florida legislature will take any action on reforms to address this issue, especially in the wake of a rate decrease.  According to Logan McFaddin, Southeast Director for the Property Casualty Insurers Association of America, “Experience data relating to the impact of Castellanos and Westphal continues to mature and will likely be reflected in future rate filings.”

This sentiment was reflected in the order from the Insurance Commissioner that directed the NCCI in future recommended rate filings to provide a detailed analysis of the impact of Castellanos, including reopening of older claims, changes in reserves and settlement rates, changes in claim frequency and severity, increasing attorney involvement, and fees paid to attorneys.

One issue that needs to be acknowledged is the possibility of a mid-term cancellation and re-write of a workers’ compensation policy to take advantage of the new rates. While it is uncertain how willing insurance carriers will be to embrace this action, this should be evaluated on a case by case basis, because there are some reasons for concern over this strategy.

First, a mid-term change will eliminate any potential dividends that may be earned on a policy. Also, carriers may choose to apply a short rate cancellation penalty if a policy is cancelled and moved to another carrier. The short rate penalty is approximately 10 percent of the unearned premium, which, if applied, would completely negate any advantage of the 9.5 percent rate decrease. Finally, if rates do go back up next year, the policyholder would be moving up the date that the policy would be impacted by the higher rates.

“The bottom line is, as usual, uncertainty prevails,” Webb concludes. “With the uncertainty surrounding the market impact and future rates, it is important to not allow a rate decrease to bring complacency to the significance of safety and claims management in your workers’ compensation program.  We strongly suggest working with your advisors and advocates to help you prepare for whatever the future may hold for workers’ compensation.”

Source: http://markets.businessinsider.com/news/stocks/Dealing-with-the-Workers-Compensation-Roller-Coaster-1009678544

Workers’ Comp Drug Spend Continues to Drop, According to CompPharma’s 14th Annual Survey of Prescription Drug Management

MAGGIE VALLEY, N.C.–(BUSINESS WIRE)–CompPharma’s 14th Annual Survey of Prescription Drug Management in Workers’ Compensation showed an average 11 percent reduction in payers’ pharmacy spend, driven by a 13.3 percent reduction in opioid cost. The survey analyzed the 2016 pharmacy cost data of 23 workers’ compensation insurance carriers, third-party administrators, self-insured employers, and state funds.

Working with their pharmacy benefit managers, payers cut one of every six dollars in opioid spend, which the report called a “truly remarkable result.” In contrast, across all payer types, pain medication use declined by a scant 1 percent (Quintiles IMS).

“Clearly the efforts of workers’ comp regulators, payers, desk-level staff, PBMs and prescribers have paid off,” said Joseph Paduda, president of CompPharma, LLC. “While we have much left to do, this represents a dramatic improvement in the lives of thousands of patients.”

Payers are far from complacent, with all respondents expressing grave concerns about the risk of opioid addiction or dependency. Most are continuing to refine and improve programs to help patients address pain while minimizing use of opioids, relying on physician and/or pharmacist review of claims, early identification of potentially risky prescribing, and increased use of drug testing.

In contrast, compound drug utilization and spend has dropped dramatically and is no longer of great concern to payers.

A complimentary copy of the 2016 survey can be downloaded from https://tinyurl.com/CP2017RxSurvey.

NAPEO Forms Cybersecurity Task Force

As an fyi, NAPEO has formed  a Cybersecurity Task Force to better understand the exposures of PEO and how to mitigate them.  A very timely and critical task force that I am very proud to be a part of – This is by far the most misunderstood exposure to PEO today.

“NAPEO recognizes the critical business and compliance risks faced by our members concerning cybersecurity. Although many member resources such as PEO Insider and various conferences have featured helpful information and programs for members on this topic, NAPEO recognized more is needed and formed the NAPEO Cybersecurity Task Force to help fill that gap. The Cybersecurity Task Force is comprised of a cross section of professionals with expertise in insurance, law, technology and the business environment of PEOs. Its primary mission is develop a set of best practices which NAPEO members could use to strengthen their compliance efforts and minimize their legal and business risks. The Task Force’s first step will be to survey members to gain a deeper insight into the cybersecurity concerns and exposures of members, which will be used to help shape the best practices the task force will produce. For more information, please contact Farrah Fielder.”

Will master Cyber policies be the next EPLI product for PEOs?

With two carriers now offering master PEO cyber programs, the question here is PEO’s be able to sell these as part of their overall package?

A recent 2017 RIMS survey has shown that 83 percent of organizations have a standalone cyber insurance policy (up 3 percent from 2016) and only 14 percent are utilizing the cyber coverage offered in their other insurance policies.

One reason for this statistic could be that Risk Managers want specific endorsements and add-on coverages that apply directly to their industry or are a result of a problem they’ve faced in the past.  This has been a crucial part of individual cyber policies over the past few years as the carriers try to keep up with the quickly evolving cyber space.

With the above in mind, it may be difficult for PEO’s to make this as part of their basic package as EPLI has become over the past decade.

I would like to note the PEO cyber program has one crucial endorsement, Social Engineering, that can be added on for an individual client company.  This has to be individually underwritten for each client company adding another layer for the PEO sales rep to cross-sell.

If you work in the PEO industry, please comment below with your thoughts of PEO’s offering cyber coverage to client companies. For more statistics from the RIMS survey please visit: http://www.insurancejournal.com/news/national/2017/08/25/462357.htm

 

-David Campbell

Risk Consultant at Libertate Insurance

The 72’nd Annual Workers’ Compensation Educational Conference – Orlando

Another year and another convergence of the who’s who in the field of workers’ compensation at the Marriott World Center in Orlando this week.  Known as the largest insurance conference in the country, the Workers’ Compensation Institute brings together “centers of influence” in law, medicine, claims adjusting, underwriting, brokerage, risk-bearing, managed care, regulation, legislation, staffing and of course coemployment.

Dating back over a decade, the Workers’ Compensation Institute and specifically Jim McConnaughhay and Steve Rissman have granted the PEO community a one day educational track.  Shortly thereafter, FAPEO and NAPEO threw their influence and sponsorship behind it.  Special thanks to the WCI, FAPEO and NAPEO for making this a success and bringing positive exposure to the PEO industry.

I am proud to participate on a panel Tuesday morning at 9:00 am with Andy Olwert (Next Level), Deb Hetzer (PEMCO), Phil Herron (Continuum HR) and Robert Barrett (Rissman, Barrett, Hurt, Donahue, McLain & Manganese’s, PA) titled “Accountability in the PEO Industry – Posting Wins for PEO’s and Their Claims Teams”.  More information on this data-driven session can be found on the WCI 360 site here:

http://www.wci360.com/conference/professional-employer-organization-breakout

Hope to see you Thursday morning and look forward to catching up with lots of old friends!

Why Commercial Insurers Need To Embrace External Data To Price Emerging Risks

See the very interesting and timely article below from leading analytics data provider to the insurance industry, Cytora.  Arguably, there is room for improvement when it comes to the ability to accurately price a risk.  Why external data is not used more often is surprising and, based on the below, a tactic that insurers will hopefully leverage more in the very near future.

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Back to the future

Twenty years ago around 75% of the value of S&P 500 companies were comprised of physical assets, with around 25% in intangibles, such as intellectual property and brand value. Fast forward to today, and that split has more than reversed[i]. Corporates operating in today’s world are increasingly concerned about new and more esoteric risks than they were in the past.

Yet insurance companies – which traditionally focus on historical claims data to price and assess commercial risks – have struggled to meet the demand for a new generation of risk products, including cyber, reputation and non-damage business interruption.

The key barrier to offering meaningful limits and affordable pricing for products such as cyber is a lack of historical data. However, insurers are increasingly recognising that the past is no longer necessarily an accurate proxy for future claims experience. And more importantly, that external data can be used to understand, price and manage both traditional and emerging risks.

Slow to innovate

But is the change happening quickly enough? According to research conducted by the Association of Risk and Insurance Managers (Airmic)[ii]with AXA Corporate Solutions, Chubb and JLT Specialty ahead of the association’s annual conference, the traditional insurance model is not fit for emerging risks.

It found that disruptive innovation driven by technological advances, globalisation and evolving corporate demands are threatening conventional insurance models. Traditional insurance products – which are underwritten using past claims data as a proxy for future claims experience – remain too geared towards protecting physical assets.

With a dearth of coverages tailored to intangible risks available in the commercial insurance market, organisations are forced to self-insure, putting such risks through their captive insurers or simply keeping them on balance sheet. The Airmic survey revealed that the vast majority of risk managers plan to manage their emerging risks in-house either by reducing or retaining them.

“The insurance industry recognises that traditional insurance is losing relevance in face of today’s more complex and harder-to-define risks,” said Julia Graham, Airmic’s deputy CEO and technical director. “And yet our members want support in understanding and dealing with these modern risks – both in terms of innovative products, but also in terms of broader support.”

It is clear that a seismic shift in approach to underwriting is required. It is an approach that consigns the over-reliance on claims data to the dustbin of history and seeks to leverage readily available, external data to provide more relevant and accurately-priced products.

Such an approach has so far gained most traction within personal lines. In retail motor for instance, the rise of aggregator websites and access to external rating factors from telematics devices and industry fraud and DVLA databases, allows carriers and brokers to offer their customers differentiated pricing, in real-time, without the need for excessive form filling.

A new underwriting approach

Commercial insurers are beginning to catch up, albeit slowly. Certainly, the appetite is there. According to 93% of insurance CEOs surveyed by PwC in 2015[iii], data mining and analysis is the most strategically important digital technology for their business.

There is recognition that external data can enable underwriters to improve risk assessments and forecast potential losses, without the need for actuarial analysis based on historical claims performance or the need for excessive client input.

Instead, external data readily available on company websites, social media, publicly-available government reports and via news articles are among a range of sources with which insurance companies can isolate and utilise risk information for underwriting purposes.

For instance, close to 100% of all product recalls and contamination incidents are reported online, offering a valuable tool for product liability underwriters. Moreover, with an expanded pool of rating factors policies should become more dynamic, for instance, reflecting changes in risk that happen on a seasonal basis.

Such a shift in approach to risk selection and pricing is necessary in a rapidly-changing commercial risk landscape. “There is now data to assess risks that were previously uninsurable,” said Gregg Holtmeier, executive vice president at JLT Re. “Another benefit is that a more granular and scientific evaluation should ultimately lead to lower premiums.”

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On a separate but related note, if you happen to be in Naples this week for Florida RIMS be sure and catch Libertate Insurance CEO, Paul Hughes, speak about the impact of data and insurance.  He loves to talk data!  Paul takes the stage at 1:30p and will be entertaining, if nothing else!  No pressure Paul.

References:

[i] http://www.businessintangibles.com/single-post/2015/03/11/Intangible-Assets-Increase-to-84-of-the-SP-500s-Value-in-2015-Report

[ii] https://www.airmic.com/news/press/research-shows-traditional-insurance-model-not-fit-emerging-risks

[iii] https://www.pwc.com/gx/en/ceo-survey/2015/industry/assets/ceo-survey-2015-indepth-analysis-banking-and-capital-markets.pdf

[iv] https://www.jltspecialty.com/our-insights/publications/whiteboard/whiteboard-spring-2017/harnessing-data-and-analytics-in-insurance

Insurance Nerd Day 2017!

…was yesterday and we did not celebrate it here on the Compass where we take that title as a compliment!

July 18 is Insurance Nerd Day

25% of insurance professionals will reach retirement age by 2018 and only 5% of college graduates are very interested in pursuing a career in the insurance industry.  That will create huge opportunity for newly-minted insurance nerds of all ages in the near future.  Data management and predictive modeling are going to make this industry far sexier in the years to come…