Category Archives: Workers Compensation

Business Insurance, Business Risk, Legal Environment, Market Conditions, Workers Compensation

Group Captives Offer Cost-Sensitive Companies Opportunities to Save
in Face of Inflation

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By Max Dorfman, Research Writer, Triple-I

Today’s inflationary conditions may increase interest for group captives – insurance companies owned by the organizations they insure – according to a new Triple-I Executive Brief.

Group captives recruit safety-conscious companies with better-than-average loss experience, with each member’s premium based on its own most recent five-year loss history. Additionally, the increased focus on pre-loss risk management and post-loss claims management can drive members’ premiums down even further by the second and third year of membership.

“Each owner makes a modest initial capital contribution,” states the paper, Group Captives: An Opportunity to Lower Cost of Risk. “The lines of coverage written typically are those with more predictable losses, such as workers compensation, general liability, and automobile liability and physical damage.”

With these benefits, the group captive model can help to control spiraling litigation costs. This is particularly important as attorney involvement in commercial auto claims – notably in the trucking industry – drives expensive litigation and settlement delays that inflate companies’ expenses.

Indeed, a 2020 report from the American Transportation Research Institute found that average verdicts in the U.S. trucking industry grew from approximately $2.3 million to almost $22.3 million between 2010 and 2018 – a 967 percent increase, with the potential for even higher verdicts looming.

Group captives can improve control over these costs through careful claims monitoring and review, often through providing additional layers of support that improves claims adjusting effectiveness and efficiency.

“Given that members’ premiums are derived from their own loss history, this is yet another way that they are able to lower their premiums, proactively managing and controlling the losses that do occur,” the Triple-I report mentions. “Group captives can provide a viable way to protect companies across several lines of casualty insurance. Their prominence is likely to grow as economic and litigation trends continue to increase costs.”

Most companies that join group captives are safety-conscious, despite often being entrepreneurial risk takers. “While they embrace the risk-reward trade-off, they’re not gamblers,” said Sandra Springer, SVP of Marketing for Captive Resources (CRI), a leading consultant to member-owned group captive insurance companies. 

“They are successful, financially stable, well-run companies that have confidence in their own abilities and dedication to controlling and managing risk,” Springer added. “They believe they will outperform actuarial projections, and a large percentage of them do.”

Learn More:

Backgrounder: Captives and Other Risk-Financing Options

Firm Foundation:  Captives by State

White Paper: A Comprehensive Evaluation of the Member-Owned Group Captive Option

From the Triple-I Blog:

Latest Research on Social Inflation in Commercial Auto Liability Reveals a $30 Billion Increase in Claims

How Inflation Affects P&C Rates and How It Doesn’t

Inflation Trends Shine Some Light for P&C, But Underwriting Profits Still Elude Most Lines

Monetary Policy Drives Economic Prospects; Geopolitics Limits Inflation Improvement

Health & Safety, Workers Compensation

Workers Comp:
A Strong Line Rebounds From Pandemic Pressure

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Max Dorfman, Research Writer, Triple-I

The workers compensation field is “responding and adapting remarkably well to economic changes,” according to Donna Glenn, chief actuary, National Council on Compensation Insurance (NCCI). “The pandemic brought new occupational illnesses into the system, but it was offset by a reduction of other types of claims back in 2020.”

Glenn made her comments in a new Executive Exchange with Triple-I CEO Sean Kevelighan. She noted that the workers comp industry was in a strong position before the pandemic and, consequently, in its aftermath. This includes seven years of underwriting profitability.

“Strong employment and wages are on the rise, fueling the workers comp system,” Glenn said. “The strength of the labor market is awesome.”

Kevelighan and Glenn noted that changing labor patterns will also affect workers comp claims frequency.

“Frequency declined in 2020 because of the business shutdowns,” Glenn said. “When workers returned, claims activity came back. However, remote work is decreasing overall claim frequency. This is the new normal.”

They also discussed the potential for rising medical costs.

“Medical costs have been fairly stable, but some are talking about medical costs exploding out of control again,” Kevelighan said.

“Medical prices are up,” Glenn agreed, adding that medical inflation “is tame compared to general inflation. The medical industry has benefited from regulation, including medical fee schedules, treatment guidelines and prescription drug formularies, which contribute significantly to the cost-control system in workers comp.”

Further, fewer procedures are happening in hospitals.  Instead, they’re happening in an outpatient environment or ambulatory service center.

Glenn observed that physical therapy and the decrease in use of opioids has also helped. However, she signaled that there may be emerging issues with mental health.

“PTSD, particularly with first responders, comes up with workers comp,” she said. “But mental health is much broader than PTSD. We have to be very mindful of how we take care of workers.”

Business Insurance, Business Risk, Insurance Industry, Workers Compensation

Pandemic Fuels Growth
in Captive Insurance

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By Max Dorfman, Research Writer

The coronavirus pandemic and the financial challenges it presents have fueled growth in captive insurance – a form of self-insurance in which one or more entities establish their own insurance company. They also may insure the risks of organizations other than their major owners. 

“Wholly owned” captives are set up by large corporations to finance or administer their risk financing needs. If such a captive insures only the risks of its parent or subsidiaries, it is called a “pure” captive.  Multiple companies may also form a “group captive.”

Captive formations nearly doubled in 2020, according to a recent survey by Marsh. The global insurance broker and risk advisor’s survey of more than 1,300 captives also shows that gross written premiums in this area grew from $54 billion in 2019 to nearly $61 billion in 2020.

 In January 2022, the National Collegiate Athletic Association (NCAA) board of governors unanimously approved a $175 million fund to create a captive for event cancellation. With insurers unable to cover risks related to the coronavirus pandemic – which falls under the umbrella of communicable diseases policies – because of the potential for unsustainable costs, the captive structure has become a more popular method to protect from losses.

The NCAA formed its captive after the 2020 NCAA basketball tournament was cancelled due to COVID-19, resulting in a $270 million payout – or about 40 percent of what the 1,200 participating schools would have earned for the tournament. In 2021, the NCAA limited the number of fans at the tournament, with the organization’s coverage allowing it to pay the total $613 million to members last year. However, their coverage for 2022 had expired, and communicable disease coverage was now difficult to find.

“When the NCAA looked to renew coverage for the 2022 tournament, a lot of it was going to look similar,” said John Beam, a broker for Willis Towers Watson, “but there is not coverage for communicable disease right now.”

The sports and entertainment industry experienced losses between $6 billion and $10 billion as the coronavirus pandemic raged on, with premiums in event insurance increasing between 25 percent and 50 percent. For many organizations, captive insurance provides a viable alternative for these risks.

Workers’ comp and captives

The coronavirus pandemic has also affected captive owners in the workers’ compensation field. Indeed, the pandemic, alongside the ensuing “Great Resignation,” during which employers have struggled to retain staff, has made many captive owners potentially more willing to pay workers’ comp claims, according to a panel at the recently held Captive Insurance Companies Association international conference.

Amy O’Brien, vice president of third-party administer sales at Gallagher Bassett Services Inc., a claims service provider, said the initial phases of the pandemic saw many insurers denying COVID-19-related claims. Claims asserting exposure at work were difficult to prove, and many captives questioned if the claims were associated with claimants’ work. Additionally, there were possible regulatory changes that these captives were concerned about.

“With medical costs continuing to rise, the most significant dynamic in terms of any company controlling their workers’ compensation costs and claims is ensuring that there are adequate tools in place to help mitigate medical costs for claimants under their workers’ compensation,” said Dustin Partlow, senior vice president at Caitlin Morgan Insurance Services and an expert in captive insurance solutions.

“But with omicron and the Great Resignation, we’re seeing a change where employers are saying, ‘What can I do to get this person back to work sooner?’” Gallagher’s O’Brien said.

Approximately 90,000 claims were processed by Gallagher Bassett that covered a COVID-19 issue, with over 60 percent of cases closed without payment, frequently due to the fact that there were no related medical expenses, O’Brien said. But the 40 percent that did result in a payment averaged $4,000 per case.

“The employee is more valuable now – so they are being treated right. The employer is saying: ‘What can I do to keep this person?’,” O’Brien added.

Insurers and the Economy, Workers Compensation

Workers Comp:
Resilient and Relevant

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Despite early “dire estimates” of how the COVID-19 pandemic might affect the workers compensation insurance sector, the system has proved to be resilient, according to Bill Donnell, president and CEO of the National Council on Compensation Insurance (NCCI).

Triple-I CEO Sean Kevelighan recently spoke with Donnell about a range of workers comp topics, starting with how the line has managed to buck the hard-market trend affecting much of the rest of the industry. Workers comp plays a critical role in the U.S. economy and is the second-largest line of commercial insurance, with $42 billion in premium annually. As part of its mission to foster a healthy workers compensation system, NCCI gathers data, analyzes industry trends, and provides objective insurance rate and loss cost recommendations. 

While much of the rest of the property and casualty insurance sector has been marked by rising rates in recent years, Donnell said, “Workers compensation rates have been trending down, unlike others in the marketplace.”

Even with rates falling, he said, the line has seen “seven years of underwriting gains and favorable combined ratios.” Combined ratio is the most commonly cited measure of profitability for individual insurers and for the industry.

Donnell added that, in 2020, workers comp writers had $14 billion in reserves.

“It’s a resilient system,” he said.

Donnell also offered his perspective on how the nearly 100-year-old industry can stay relevant in the years ahead.

“It’s about modernizing data and analysis,” he said. “It’s about attracting the best talent, and never losing focus about why we exist, which is helping injured workers and their families. I can’t think of a more noble mission than that one.”

Auto Insurance, Business Insurance, Business Risk, Emerging Risks, Legal Environment, Regulation, Workers Compensation

Cannabis Industry Prospects Brighten;
Risks, Challenges Remain

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The future looks brighter every day for the cannabis industry.

From recent findings that cannabis components may lead to treatment or even prevention of coronavirus infection in lung cells to yesterday’s vote by the House of Representatives in favor of the Safe Banking Act, barricades to full legalization just keep falling.

This isn’t the first time the act – which would protect banks from federal penalties for doing business with cannabis-related businesses that comply with state laws – has made it through the House. It was first introduced in March 2019, and the House has approved it three times, only to have the Senate Banking Committee block its progress. But with the current Democrat majority, apparent bipartisan support, and growing public and state-government support for cannabis legalization, the fourth time just might be the charm.

Similar federal “safe harbor” legislation for the insurance industry – the Clarifying Law Around Insurance of Marijuana Act (CLAIM Act) – was introduced last month.

“More optimism”

The Drug Enforcement Agency characterizes cannabis as a Schedule I drug, defined as having “no currently accepted medical use and a high potential for abuse.” Without legislative change, banks and insurers can’t do business with business without risking running afoul of federal drug laws.

“There’s more optimism now and an assumption that they’re going to work to pass some of these bills that have been in motion for a while now, but never hit the point of actually moving forward,” said Max Meade, cannabis insurance advisor at Brown & Brown Insurance. “I’m also seeing more conversations around working to bundle some of these bills that they’ve been talking about and do a larger cannabis reform.”

As states continue to decriminalize marijuana to different degrees, one of the biggest issues facing cannabis businesses is the 280E federal tax burden, which means cannabis businesses can’t expense the normal cost of goods or anything a normal business can during the course of operation, from utilities to payroll and rent. This means marijuana businesses often pay federal income tax rates in the 65–75 percent range, compared to 15-30 percent  for other businesses. They are taxed on their gross revenues, unlike all regular businesses, which pay tax only on income after their expenses.

The Small Business Tax Equity Act would provide an exception into the Internal Revenue Code to let cannabis operators – as long as they’re in compliance with state laws – make the same deductions as any other business.

Easier to operate

Passage of these laws would make it easier for cannabis-related businesses to operate. The CLAIM Act would let these businesses obtain insurance to cover the same risks of theft, damage, injury, loss, and liability as all other businesses.  

“There are upwards of 30 surplus lines carriers and several managing general underwriters that currently service the cannabis industry across many lines of coverage,” the National Law Review reports. “There also is a small handful of admitted carriers that operate in California, and most recently in Arizona.”

While market capacity for property, commercial general liability, product liability and workers’ compensation coverage has expanded – these policies remain more expensive than the same coverage purchased by similar companies in other industries. Passage of the CLAIM Act would open the doors for more insurers and should bring the cost of insuring marijuana-related businesses much less expensive.

THC persistence a challenge

But challenges will remain – particularly with respect to the workplace. When marijuana was illegal under both state and federal law, employers would typically prohibit employees or employment candidates from using marijuana off-duty as a condition of employment. But as states have begun to permit medical marijuana, things have gotten a bit hazier.

No state requires companies to accommodate on-duty marijuana use. As with recreational marijuana, no state that permits medical marijuana requires employers to accommodate on-duty marijuana use, possession, or impairment. States will often explicitly state that medical marijuana laws don’t affect an employer’s drug-free workplace policy.

Does workers compensation cover a workplace accident in which the injured employee tested positive for marijuana? Persistence of THC – the main psychoactive compound in marijuana – complicates this question, and state courts have differed on this issue, depending on the individual details of each case.

THC persistence also complicates issues around impaired driving.

Auto Insurance, Highway Safety, Workers Compensation

Distracted driving during the pandemic

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Activities that take drivers’ attention off the road, including talking or texting on mobile devices, eating, and talking with passengers, are a major safety threat.

During the pandemic, while overall driving decreased, unsafe behavior by drivers rose in an alarming way. Motor vehicle deaths were up 8 percent in 2020 from the prior year – the highest percentage increase in 13 years, according to the National Safety Council.

Perhaps unaware of the danger, one in four drivers thinks roads are safer today than they were before the pandemic, yet a growing number of people reported using their mobile devices in unsafe ways while driving, according to the 2021 Travelers Risk Index on distracted driving.

The study found increases in the following behaviors:

  • Texting or emailing (26 percent, up from 19 percent pre-pandemic).
  • Checking social media (20 percent, up from 13 percent pre-pandemic).
  • Taking videos and pictures (19 percent, up from 10 percent pre-pandemic).
  • Shopping online (17 percent, up from 8 percent pre-pandemic).

“Traffic volumes were lower during the early days of the pandemic, which may have given drivers a false sense of security,” said Chris Hayes, Second Vice President of Workers Compensation and Transportation, Risk Control, at Travelers. “Not only did distracted driving increase, data from our telematics product IntelliDrive shows that speeding also became more prevalent. As travel restrictions are lifted around the country, it’s critical to slow down and stay focused on the road by eliminating distractions.”

Travelers’ findings suggest that many people may be feeling increased pressure to always be available for their jobs. This year, 48 percent of business managers said they expect employees to respond frequently to work-related calls, texts or emails, compared to 43 percent pre-pandemic. One in four respondents said they answer work-related calls and texts while behind the wheel, citing the following reasons:

  • 46 percent said they think it might be an emergency.
  • 29 percent said their supervisor would be upset if they don’t answer.
  • 22 percent said they are unable to mentally shut off from work.

Yet, a higher number of employers are concerned about liability from distracted driving. More than one-quarter (27 percent) indicated that they worry a great deal about their liability should an employee be involved in a crash because of distracted driving, up from 21 percent pre-pandemic.

April is Distracted Driving Awareness Month. Here are a few resources to help reduce preventable crashes and keep everyone safe on the road:

Travelers Distracted Driving Prevention Materials
National Safety Council
National Highway Traffic Safety Administration
OSHA Guidelines for Employers to Reduce Motor Vehicle Crashes

Business Insurance, Industry Financials, Insurance Industry, Webinars, Workers Compensation

Triple-I and Milliman forecast: commercial and personal auto and workers comp

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By Loretta Worters, Vice President, Media Relations, Triple-I

During an exclusive Groundhog Day webinar presented to Triple-I members by Triple-I and Milliman, experts talked about what the insurance industry can expect in 2021.

Auto Insurance Report editor Brian Sullivan looked at both personal and commercial auto insurance.  “For the first nine months, private passenger auto liability written premium was down less than two percent, but losses incurred were down more than 14 percent with loss ratios likely to be in the mid-50s.”

On the commercial side, Sullivan noted that commercial auto trends aren’t as powerful as those for personal lines. “Things have gotten better in terms of losses, but not that much better; certainly, nothing like personal auto,” Sullivan said.

Jeff Eddinger, senior division executive at the National Council for Compensation Insurance (NCCI), gave an early look at 2020 results for workers compensation insurance. “The pandemic has landed the U.S. economy into a recession. Significant job losses combined with changes in wage and rate levels have put downward pressure on premiums.  NCCI estimates that private carrier net premium written will be down about 8 percent for 2020.” 

Eddinger noted that as the virus began to spread in 2020, so did the concern that COVID claims could overwhelm the system. “Fortunately, that has turned out not to be the case. At the same time, there has been a drop in non-COVID claims, due in part to more remote work and less work-related driving. So far, incurred losses have decreased about 8 percent, in line with the drop in total premium. As a result, the estimated calendar year combined ratio for 2020 is almost unchanged from 2019 at 86. This would be the seventh straight year of underwriting profit for workers compensation.”

The industry is financially strong but continues to face uncertainty, Eddinger warned. “The vaccine rollout has begun, but new cases of the virus in the U.S. have soared to record levels.  In addition to COVID claims, industry leaders are concerned about regulatory activity related to presumptions, the economic downturn and the long-term impact of working from home,” Eddinger said.

To learn about Triple-I membership, visit iiimembership.org

Insurance Industry, Workers Compensation

What COVID-19 means
for workers comp claims

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So far, the impact of COVID-19 on workers compensation has not been as great as first feared. The National Council on Compensation Insurance (NCCI) reported that as of the second quarter 2020, out of every 100,000 active workers comp claims, COVID-19 medical claims accounted for only about 200, depending on the jurisdiction.

Still, the pandemic presents uncertainties and concerns for workers compensation, just as it does for many other sectors.

NCCI’s annual survey found that COVID-19 was the top concern of workers compensation executives going into 2021.  Executives worry about uncertainty surrounding the duration of the pandemic, the size and number of claims that could develop, recovery time for workers sickened by COVID-19 and whether there would be long-term needs or lasting adverse effects.

Executives also mentioned state compensability presumptions that have arisen during the pandemic. These presumption rules, passed by various states, say that COVID-19 infections in certain workers are presumed to be work-related and covered under workers compensation. This presumption places the burden on the employer and insurer to prove that the infection was not work-related making it easier for those workers to file successful claims.

The executives surveyed by the NCCI expressed concern about the variations developing across states and the complexity of legislation and regulations that adds to the challenge of the rapidly evolving environment. Several noted issues and questions related to reinsurance for presumptive claims. Others are anticipating that compensability presumptions for contagious diseases, such as those instituted for COVID-19, will be widely adopted and permanently enacted or even expanded, in some cases, to include other common diseases.

In many states, immigrants are eligible for workers compensation benefits regardless of their legal status. A recent blog post by a legal expert showed how a decision by the Supreme Court of Nevada reiterated that the state’s workers’ compensation statutes clearly and unambiguously protected every person in the service of an employer, whether lawfully or unlawfully employed. The high court affirmed the judgment of the state district court that denied judicial review to an appeals officer’s decision awarding permanent total disability benefits to an undocumented worker.

Health & Safety, Workers Compensation

Making the home a safe place to work

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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

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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.