Category Archives: Workers Compensation

Making the home a safe place to work

December 17, 2020 Maria Sassian Leave a comment

Work from home arrangements necessitated by the coronavirus pandemic are predicted to become permanent for some employees as companies like Google contemplate ‘hybrid models‘ with more flexible work options.

And though remote work is nothing new, an increase in the numbers of people working from home in the coming post-pandemic years is bound to lead to some thorny workers compensation questions.

In a recent report called “Digital Business Accelerated,” which examines digital transformation trends that small and mid-sized businesses are pursuing, Chubb pointed out that makeshift home offices that don’t properly address ergonomic best practices may lead to an increase in long-term injuries.

Relaxed work habits and environmental inconsistencies in air quality and lighting can also affect the overall wellbeing and performance of employees. And the risk of slips and falls remains in the home, just as it does in the office, said the report.

An injury or illness that occurs while an employee is working at home will be considered work-related if it occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting, according to OSHA.

For example, OSHA goes on to say, if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.

There’s a lot of ambiguity around such claims.

“It is much more difficult to prove that an injury was work-related because there is usually less evidence available in these home office scenarios,” said Gary L. Wickert, an insurance trial lawyer, in a Claims Journal article. “An accident at a business or job site may have witnesses or be caught on security footage. Work at home employees often are all by themselves while they work, so there is often no one present to corroborate a sudden injury or accident or to help determine the precise conditions of the injury.”

Holding a third party responsible (subrogation) for an accident also becomes more complicated in cases of at home injuries.

“When the employee is injured in their home, subrogation targets tend to shrivel up and blow away,” said Wickert. “If an employee is injured at home or while taking kids to the daycare prior to, during, or after the workday… A subrogated carrier cannot sue the employee in the name of the employee – neither can the employee,” he said.

Employers and workers also need to be aware of mental health issues which can develop. Though many tout the mental health benefits of working remotely, others find that remote work leads to anxiety, depression and burnout. The Center for Workplace Mental Health has suggestions for workers that include exercise and keeping a regular schedule, as well as for employers, which includes staying connected and recognizing the impact of isolation.

To reduce the changes for injuries in the home, of which poisoning and falls are the most common, check out the CDC’s Home and Recreational Safety page. For tips for setting up an ergonomically correct workstation read this Mayo Clinic article.

Health & Safety, Workers Compensation

New CDC Numbers Raise Concern for Health, Workers Comp Insurers

September 25, 2020 Jeff Dunsavage Leave a comment

*Between June and August, the CDC says, COVID-19 was most prevalent in people between the ages of 20 and 29.*

The Centers for Disease Control and Prevention this week provided new data on the spread of COVID-19 that diverges sharply from past reports and is something health and workers compensation insurance providers will want to incorporate into their claims projections.

In its Morbidity and Mortality Weekly Report, the CDC says that between June and August the virus was most prevalent in people between the ages of 20 and 29, accounting for more than 20 percent of all confirmed cases. It went on to say that “across the southern United States in June 2020, increases in percentage of positive [COVID-19] test results among adults aged 20-39 years preceded increases among those aged ≥60 years” by between four and 15 days.

Most of the workforce

“This has profound implications for claims made against health insurance and workers comp,” says Dr. Steven N. Weisbart, CLU, Triple-I’s senior vice president and chief economist. “Early in the pandemic, COVID-19 was most common among adults age 70 or older – people who are mostly retired. Now, the CDC says, more than 50 percent of confirmed cases during the referenced period were among people between 20 and 49. This is the segment of the population that makes up most of the workforce and tends to have health and life insurance.”

They also are the most mobile portion of the population, more likely than the elderly and infirm to spread the infection to co-workers, friends, and family before they know they have it.

Indicating how significant the shift has been, Weisbart points out that in May the most affected age group was still 80 and older, with a case incidence of 4.04 per 1,000 population. In August the most affected age group was 20-29 (case incidence: 4.17 per 1,000).

“By August,” Weisbart says, “the case incidence of the 80-plus group was down to 2.61 per 1,000.”

Expanded workers comp coverage

The ultimate impact of the pandemic on workers compensation is still not clear. It generally doesn’t cover illnesses like a cold or flu because they can’t be tied to the workplace. Before the pandemic, the National Council on Compensation Insurance (NCCI) says, at least 18 states had policies that presumed firefighters’ and other first responders’ chronic lung or respiratory illnesses are work-related and therefore covered.

Since the pandemic, some states have extended coverage to include health care workers and other essential employees. A common approach is to amend state policy so COVID-19 infections in certain workers are presumed to be work related. This puts the burden on the employer and insurer to prove the infection was not work-related, making it easier for workers to file successful claims.

Business Insurance, Business Risk, Legal Environment, Regulation, Workers Compensation

Legislatures AdvanceCOVID-19-related Bills

August 7, 2020 Jeff Dunsavage Leave a comment

As states struggle to identify the best ways to reopen their economies, agencies, and schools from the coronavirus-related lockdown, legislatures have been moving forward legislation to protect them and the people they employ.

Virginia Approves Worker Health & Safety Standard

The Virginia Occupational Safety and Health (VOSH) – the state’s version of the federal Occupational Safety and Health Administration (OSHA) – will enforce a standard that mandates and, in some instances, exceeds guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and OSHA, PropertyCasualty360.com reports.

The standard protects employees who raise reasonable concerns about infection control to print, online, social, or other media. It covers most private employers in Virginia, as well as all state and local employees.

The standard also requires building and facility owners to report positive COVID-19 tests to employer tenants. It exempts private and public institutions of higher education with reopening plans certified by the State Council of Higher Education in Virginia (SCHEV) and public-school divisions that submit reopening plans to the Virginia Department of Education. No such exemptions are provided to private elementary and secondary schools.

In addition to CDC and OSHA guidelines, the standard requires employers to:

Provide flexible sick-leave policies, telework, and staggered shifts when feasible;
Provide handwashing stations and hand sanitizer when feasible;
Assess risk levels of employers and suppliers before entry;
Notify the Virginia Department of Health of positive COVID-19 tests;
Notify VOSH of three or more positive COVID-19 tests within a two-week period;
Assess hazard levels of all job tasks;
Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
Prepare infectious disease preparedness and response plans within 60 days;
Post or present agency-prepared COVID-19 information to all employees; and
Maintain air handling systems in accordance with manufacturers’ instructions and the American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards.

Special Legislative Session for Tennessee Liability Bill

Weeks after Tennessee’s two legislative chambers failed to come to an agreement on legislation surrounding civil liability for coronavirus, Gov. Bill Lee called the state’s General Assembly to return next week for a special session, The Tennessean reports.

Lee issued an order asking members of the legislature to return to Nashville at 4 p.m. on Aug. 10 to take up the matter, which would extend broad immunity to businesses, schools, and other entities against COVID-19-related lawsuits.

The General Assembly also is expected to take up two other bills it failed to pass before adjourning in June. One would expand medical professionals’ ability to offer telehealth services and encourage insurers to cover those costs. The other would increase penalties for protesters camping and engaging in vandalism at the Capitol. A group of protesters has remained across the street from the Capitol for more than 50 days, resulting in the arrest of some for trespassing and writing messages in chalk.

Nevada Senators Advance Liability Shield Measure

State senators in Nevada, by an overwhelming majority, advanced legislation that would extend COVID-19 liability protections to businesses, nonprofits, schools, and governmental agencies and outlining several measures intended to protect hospitality workers, The Las Vegas Sun reports.

The legislation would extend COVID-19 liability protections to many entities that have “substantially complied with controlling health standards.” Provisions of the bill would sunset either upon the termination of the current state of emergency or in July 2023.

The measure wouldn’t extend to most private health care providers.

“Unease with the bill’s focus on the tourism and gaming industry crossed party lines,” the Sun writes. “Sen. Marcia Washington, D-North Las Vegas, said she was concerned why the bill singled out hospitality workers: ‘I’m here to represent, as far as I’m concerned, everybody, all the workers in the state of Nevada,’ Washington said.”

Marie Neisess, president of the Clark County Education Association, said the bill did nothing to help teachers going back into the classroom this year.

“Even with the best safety measures in place, educators and students will still be at risk,” Neisses said. Putting a bill in place that protects the employer rather than the employee is unacceptable.”

The bill now advances to the Senate floor for final action as lawmakers continue to meet in special session.

“Rebuttable Presumption” for Essential Workers Goes to N.J. Governor

New Jersey may become the next state to enact a law presuming that essential workers who acquire COVID-19 did so on the job, Business Insurance reports.

Lawmakers in the New Jersey Assembly and Senate on Thursday passed S.B. 2380 with a 42-27 vote in the Assembly and a 27-12 vote in the Senate. The bill, introduced in early May, would create a rebuttable presumption for essential workers seeking workers compensation for acquiring COVID-19 on the job during a declared state of emergency.

The bill identifies essential employees as those whose duties are considered essential during an emergency response and recovery operation; public or private sector employees whose duties are essential to the public’s health, safety, and welfare; emergency responders and workers at health-care facilities and those performing jobs that support a health-care facility, such as laundry, research, and hospital food service.

The bill moves to Gov. Phil Murphy’s desk. If signed into law, the legislation would take effect immediately and be retroactive to March 9. According to Business Insurance, a spokeswoman for Gov. Murphy declined to comment on whether he intended to sign the legislation.

Insurance Industry, Webinars, Workers Compensation

COVID-19 and Workers Compensation: Impact Will Become Clearer … Eventually

July 27, 2020 Maria Sassian Leave a comment

By John Novaria

The impact of COVID-19 on workers compensation will come down to several fundamental questions in the coming months: Who’s at work? Who’s going back to work? And under what circumstances?

Experts addressed these questions during a webcast jointly sponsored by Triple-I and the National Council on Compensation Insurance (NCCI). The discussion was moderated by Mark Friedlander, director of corporate communications, Triple-I.

While they agreed it’s too early to know all of the impacts of the virus on workers compensation, several important themes are emerging.

Sean Cooper, practice leader and senior actuary, NCCI, said the economy has experienced sudden job losses, compared to the Great Recession of 2008-09, when they were spread out over a period of time, and the nature of those jobs is much different.

“Back then you saw construction and manufacturing impacted greatly, while this time it’s hospitality, leisure and travel,” he said.

Cooper explained some of the varying impacts of COVID-19 on overall workers compensation claims: while COVID-19 claims will have an upward influence on claims, social distancing could put downward pressure on frequency. He also noted telehealth could put downward pressure on the cost of claims.

NCCI files rates and loss costs for every job classification in 38 states, and submits those to regulators for approval in each state. The organization has taken several actions and made several changes to reflect COVID-19.

“We began collecting payroll for furloughed workers so that payroll wouldn’t be used in premium calculations,” said Jeff Eddinger, senior division executive, NCCI. “We are also tracking legislation in each state that affects compensability presumptions.”

Triple-I chief economist Dr. Steven Weisbart pointed out that the last recession was a lengthy one – lasting 19 months – and this one in contrast is unique because it largely depends on a virus and society’s ability to successfully combat it.

Weisbart said he believes the nation will emerge from this pandemic with a different type of economy.

“Telecommuting will be one of the new norms,” he said. “People are recognizing they can do most jobs at home, and companies don’t have the expense of renting office space.”

Weisbart also thinks there will be some additional conversion to robotics and machine jobs, and the number of jobs performed by people may well shrink. He says these types of changes in the workplace will make some difference over time in the types of jobs available and skills required.

Until now, few would have considered a pandemic a likely workers compensation catastrophe. Eddinger noted that traditional methods for calculating the impacts don’t work for low frequency, high severity events.

“NCCI has engaged a modeling firm to evaluate if a pandemic catastrophe provision would be appropriate for future rate filings,” he said. “After 9/11 we applied terrorism models in all 38 of our states, but that was more straightforward because compensability applied to all workers; if you were at work during an event you were covered.”

Watch the highlights: Webcast Highlights Video

Watch the full webcast: Impact of COVID-19 on Workers Compensation Insurance

Additional Resources:

Media Coverage:

Health & Safety, Workers Compensation

Wrap-up: COVID-19 and Workers Comp

July 17, 2020 Jeff Dunsavage Leave a comment

Lauded for their service and hailed as heroes, essential workers who become infected with the coronavirus on the job have no guarantee in most states that they’ll qualify for workers compensation to cover lost wages and medical care, Associated Press reports.

Fewer than one-third of the states have enacted policies that shift the burden of proof for coverage of job-related COVID-19 so workers like first responders and nurses don’t have to show they got sick by reporting for a risky assignment.

And for most employees going back to job sites as the economy reopens, there’s even less protection than for essential workers. In nearly all states, they have to prove they got the virus on the job to qualify for workers comp.

Workers comp is not health insurance, or an unemployment benefit. In exchange for coverage, workers give up the right to sue their employers for job-related harms. Employers pay premiums to support the system. Complex rules differ from state to state.

Dealing with job-related injuries is fairly straightforward, but diseases have always been trickier for workers’ comp, and COVID-19 seems to be in a class of its own.

“You don’t know per se where you inhaled that breath whereby you became infected,” said Bill Smith, president of the Workers’ Injury Law & Advocacy Group, a professional association of lawyers representing workers.

Read more:

Families of health workers killed by COVID-19 fight for denied workers comp benefits (Philadelphia Inquirer, July 16, 2020)

Workers comp in the new world of the COVID-19 pandemic (Law.com, July 16, 2020)

Report: Sharp drop in California workers’ comp premiums expected from COVID-19 (Insurance Journal, July 14, 2020)

Business Insurance, Health & Safety, Insurers and the Economy, Legal Environment, Workers Compensation

Gauging Pandemic’s Impact on Insurers

June 30, 2020 Jeff Dunsavage Leave a comment

While COVID-19’s impact on the insurance industry will require time to fully understand, litigation, legislation, and concerns about pricing and policy language will be with us for some time to come.

“Significant” changes in policy language seen

The majority of respondents to an Artemis re/insurance market survey believe the COVID-19 pandemic will result in “significant changes” to business interruption (BI) policy wordings.

In fact, the U.K. Financial Conduct Authority (FCA) is conducting a review focused on obtaining legal clarity on policies connected to the pandemic and which claims are valid and which aren’t.

FCA’s Interim CEO Chris Woolard said recently that while some BI policies are paying out for virus-related issues, others remain “within dispute” due to ambiguities in their wordings.

Outside of the 67.6% who stated a belief that COVID-19 will drive “significant changes” in BI policy wordings, 21.6% expect a “moderate amount” of change, while the remaining 10.8% said the effect will be “limited.”

Loss estimates vary

The Artemis survey also shows 67% of respondents expect the industry to face between $80 billion and $100 billion of underwriting losses due to the pandemic. This is roughly in line with Lloyd’s of London’s earlier estimate of a $107 billion global industry impact.

But analysts from investment bank Berenberg said they believe global COVID-19 claims will be more manageable, estimating a range from $50 billion to $70 billion for the total bill. The analysts don’t specify whether this includes both life and non-life insurance claims from the pandemic, but they do point to the estimate from Lloyd’s of London as being too high.

“We estimate $50-70bn for global COVID-19 claims,” Berenberg’s analysts state. “Significantly less than the $107bn estimate reported by the Lloyd’s of London market estimate on 14 May.”

Las Vegas Hospitality Union Sues Employers

Las Vegas Culinary Workers Union Local 226 is suing several employers on the Las Vegas strip over unsafe working conditions during the coronavirus pandemic, Business Insurance reported.

The union, representing 60,000 workers, said in a statement it is asking for injunctive relief under the Labor-Management Relations Act based on the “hazardous working conditions” workers face.

The lawsuit alleges casino hotels have not protected workers, their families, and their community from the spread of COVID-19 and that current rules and procedures in place for responding to workers contracting COVID-19 have been “wholly and dangerously inadequate.”

The Culinary Union made a number of requests for policy changes, including daily cleaning of guest rooms, mandatory testing of all employees for COVID-19 before returning to work and regular testing thereafter, adequate personal protective equipment for workers, and a requirement that guests wear face masks in all public areas.

Best Warning on COVID-19 Workers’ Comp Laws

Insurance rating agency A.M. Best has warned that legal efforts in several U.S. states to expand workers’ compensation coverage to allow employees to claim for COVID-19 will have a negative impact on re/insurers, Reinsurance News reports.

The crisis has resulted in many employees now working from home, but a significant part of the workforce still needs to be present and public facing, and this is the group new state laws aim to support. For these workers, some states are looking to shift the burden to the insurer to prove that an employee contracting COVID-19 did not do so while on the job.

“This shift in the burden of proof could lead to significant additional losses to a segment already under pressure and result in increased reserve estimates and higher combined ratios,” A.M. Best said.

Given that assumptions used in pricing and actual loss emergence diverge significantly, these legislative changes will result in an increase in loss estimates and could affect earnings.

Businesses Ask Patrons to Waive Right to Sue

As businesses reopen across the U.S. after coronavirus shutdowns, many are requiring customers and workers to sign forms saying they won’t sue if they catch COVID-19, Associated Press reported.

Businesses fear they could be the target of litigation, even if they adhere to safety precautions from the Centers for Disease Control and Prevention and state health officials. But workers’ rights groups say the forms force employees to sign away their rights should they get sick.

So far, at least six states — Utah, North Carolina, Louisiana, Oklahoma, Arkansas and Alabama — have such limits through legislation or executive orders, and others are considering them. Business groups such as the U.S. Chamber of Commerce are lobbying for national liability protections.

Business Risk, Workers Compensation

Workers Comp, Liability Next Up for Virus-Related Insurance Disputes

May 8, 2020 Jeff Dunsavage Leave a comment

Coronavirus-related insurance litigation is likely to move beyond business interruption coverage and into workers comp and general liability policy lines as states begin to lift restrictions on economic activity.

“There’s just going to be a bloodbath of litigation over the next 10 years,” former Mississippi Attorney General and counsel at Weisbrod Matteis & Copley Jim Hood told Bloomberg Law this week. “Even if the governor tells you to open up, that’s not going to protect you from a lawsuit.”

The Trump administration and Republican lawmakers are insisting that an employer liability shield be included in the next round of pandemic relief legislation, but it’s unclear whether Democrats will go along with the idea.

Ask the Experts: The Impact of COVID-19 on Workers Compensation (Property/Casualty 360, May 7, 2020)

Bill to Boost Aid to Dependents of Workers Killed by COVID-19 (Business Insurance, May 6, 2020)

Workplace Testing Guide May Provide Target for Lawsuits (Business Insurance, May 5, 2020)

A Better Workers’ Comp System: Silver Lining of COVID-19? (Property/Casualty 360, May 1, 2020)

California Facilitates Workers Comp for Virus Claims

California Gov. Gavin Newsom signed an executive order Wednesday that will make it easier for essential workers who contract COVID-19 to obtain workers’ compensations benefits. The governor said the order streamlines workers’ comp claims and establishes a rebuttable presumption that any essential workers infected with COVID-19 contracted the virus on the job. In effect, the change shifts the burden of proof that typically falls on workers and instead requires companies or insurers to prove that the employees didn’t get sick at work.

The California Federation of Labor, which asked for the change in a March 27 letter to the governor and legislative leaders, applauded the order. Dozens of business groups, led by the California Chamber of Commerce, pushed back last month on the labor federation’s request, saying the changes would force businesses to be the “safety net to mitigate the unprecedented outcomes of this natural disaster and the government’s response.”

Executive Order Threatens Stability of California Workers Compensation System (American Property Casualty Insurance Association press release, May 6, 2020)

California to Give Workers Comp to All Essential Employees Infected With Coronavirus (The Hill, May 6, 2020)

NCCI: Workers Comp Costs and COVID-19

If only 10 percent of health care workers contract COVID-19 and all of their claims are deemed compensable, workers’ compensation loss costs for that sector could double or even triple in some states, according to an analysis by the National Council on Compensation Insurance (NCCI).

Claims Journal reports that, in NCCI’s worst-case scenario, 50 percent of workers are infected and 60 percent of their claims are deemed compensable. That would result in $81.5 billion in increased costs —or two and half times current workers’ compensation loss costs — for the 38 states and District of Columbia, where NCCI tracks claims data. If eligibility is limited to first responders and healthcare workers and only 5 percent of those workers are infected, Claims Journal says, the increase in costs would be just $2 billion, assuming 60 percent of claims are paid.

From the Triple-I Blog:

ECONOMY STARTS REOPENING AMID NEW PANDEMIC PROJECTIONS

Workers Compensation

FAQs about COVID-19’s Impact on Workers’ Comp

April 28, 2020 Maria Sassian Leave a comment

Dr. John W. Ruser, President and CEO of the Workers’ Compensation Research Institute (WCRI), contributed this Q&A about the role workers’ compensation insurance plays in the coronavirus pandemic.

During this pandemic, many workers (nurses, police, grocery store clerks, transit professionals, etc.) are considered essential, potentially putting them at heightened risk for contracting COVID-19. A key question, of course, is whether a worker who contracts COVID-19 is compensated under workers’ compensation for income loss and medical expenses.

Below are some frequently asked questions that get posed to me as president and CEO of the Workers Compensation Research Institute (WCRI), which is an independent, not-for-profit research organization that provides high-quality, objective research and statistical information about public policy issues involving the various state workers’ compensation insurance systems in the United States.

Q1: Is COVID-19 covered under workers’ compensation and if not, why not?

A1: Historically, communicable diseases, like the flu, have generally not been covered. Workers’ compensation covers injuries and illnesses that arise out of and in the course of employment. It is generally difficult to establish work-relationship for a disease that could be contracted anywhere. Indeed, some states’ statutes bar compensation for communicable diseases. In the past few weeks, though, a number of states have taken steps to expand workers’ compensation coverage to include COVID-19 for certain groups of workers.

Q2: What is the course of action for states seeking to cover essential workers impacted by COVID-19?

A2: Some states consider that their current laws, regulations and procedures are sufficient to provide compensation for workers who demonstrate that they contracted COVID-19 at work. Other states have changed their rules, either by executive order or by legislation, to increase the likelihood that a worker who contracts COVID-19 may be eligible for workers ’ compensation. The states vary in terms of the scope of workers covered and in terms of the burden of proof required by an ill worker to establish work-relatedness. A number of states’ laws and orders cover only first responders or health care workers. Others expand coverage to include other groups of workers deemed to be essential, e.g., grocery workers. In some states, the worker may be eligible for workers’ compensation if they can demonstrate that their illness was the result of their employment or occupation. In other states, for the workers covered, there is a presumption that their illness arose from work, though that presumption can be rebutted.

Q3: Is this is the first time coverage has been expanded for conditions that may arise outside of work and how are workers’ compensation laws changed?

A3: No, for example, we have seen workers’ compensation coverage expanded to include those, particularly first responders, who witness a traumatic experience and as a result have post-traumatic stress disorder (PTSD) and can no longer perform their duties.

Q4: Is workers’ compensation administered at the state or federal level?

A4: Individuals injured on the job while employed by private companies or state and local government agencies are covered by workers’ compensation programs administered by the states. The essential features of the states’ workers’ compensation systems are similar, but they may vary in terms of the compensability of some conditions, the amount of benefits paid and other features. Federal and some other workers are covered by four disability compensation programs administered by the US Department of Labor.

Q5: What does workers’ compensation cover and are the benefits across the country the same?

A5: Workers’ compensation covers all medical benefits and wages lost while off work due to the injury. It covers the first dollar of medical care and there are statutory formulas for the income benefits that replace lost wages. WCRI’s workers’ compensation laws reports are a great resource to identify the similarities and differences across workers’ compensation systems in U.S. states and Canadian provinces.

Q6: Is WCRI working on any research that will help us better understand the impact of COVID-19 on state workers’ compensation systems?

A6: WCRI has a wealth of studies that provide a pre-COVID baseline for evaluating the impact of the virus on workers’ compensation claims. This includes WCRI’s CompScope™ Benchmarks studies, which compare a range of workers’ compensation performance metrics across 18 states. In the future, we will evaluate the impact of the virus on the composition of claims and their costs, how the virus may have affected the delivery of care to injured workers and the impact of that on worker and claims outcomes, including duration of disability.