When relocating, businesses consider many factors, including workers’ comp premiums

Punter’s benefits award overturns longstanding precept

We’ve covered workers’ comp issues in the NFL before, most recently in a piece last month, but the main issue before has been players who file for workers’ comp benefits in the state where they were injured rather than in team’s home state. They do so because the “away-state” offers better benefits than the “home-state.”

Now another issue has arisen, in the case of a former punter for the Washington Redskins. A recent court decision has upended 30 years’ of NFL and legal tradition.

According to a March 10 press release, “Former Washington Redskins punter Thomas Tupa, who suffered a career-ending back injury while warming up for a preseason game in 2005, is eligible to receive workers’ compensation under Maryland law, the state’s court ruled Feb. 28, 2011. Attorneys Benjamin T. Boscolo and Gerry Herz of ChasenBoscolo Injury Lawyers represented Tupa in this landmark case. (No. 09-1839, Pro Football Inc. v. Thomas Tupa, Maryland Court of Special Appeals).

” ‘For almost 30 years, the Court ruled injuries suffered by NFL players were not accidental injuries, stating professional football players were not entitled to receive workers’ compensation benefits because they assumed the risk of such injuries,’ said Boscolo, who has been handling the firm’s sports-related cases since 2000. ‘The Court’s recent decision overturned this longstanding precedent as being contrary to the very purpose of the Maryland Workers’ Compensation Act.’ ”

Venue of game re-appeared, as side issue

The other issue, that is, where games are played, did arise during the process, as the case bounced from commission hearings to county court to appellate court. According to a March 5 article in the Washington Examiner:

Tupa in 2007 originally filed a claim with the Maryland Workers’ Compensation Commission requesting benefits, the documents state. The Redskins were ordered by the commission to pay partial disability as well as medical expenses.

When the team appealed the decision, court documents show that the NFL team argued that Maryland didn’t have the jurisdiction to award Tupa workers’ compensation because he was hired to play in Virginia, where the team’s headquarters and practice field are located.

But the appeals court was not swayed, pointing out that game days are in Maryland: “It is clear that the purpose of Tupa’s employment was to play in games, not to practice.”

Appellate court agreed with county court

A March 10 post at a trade Web site, Injury Board says that “Tupa claimed to have hurt his back warming up at FedEx Field in 2005. The Maryland Court of Appeals upheld a 2009 Prince George’s County Circuit Court jury’s award to Tupa, who says he injured his lower back before a Redskins preseason game at the team’s Landover stadium. Pro-Football Inc., the corporation that operates the Washington Redskins, appealed the jury award by arguing that there’s no connection between Tupa’s 2005 injury and any ongoing disability he still claims.

“Tupa has not played football since hurting his back; the punter has testified that he still needs back surgery. “It is undisputed that he is physically unable to punt in the NFL,” the appeals court wrote. Court records state that the Prince George’s County jury awarded Tupa just over a year’s worth of disability benefits.”

I have a sneaking feeling that all these workers’ comp issues will be addressed in whatever agreement finally ensues from the current battle between the NFL owners and players.

Back to the regular world…

Rhode Island AG fights to rein in workers’ comp premiums

All states and local governments compete for new business, in one way or another. Most want growth–even if their natural resources can’t sustain it–and all need revenue. An undeniable factor in the mix for businesses choosing to relocate is a given state’s cost of workers’ comp premiums.

The Great Recession has affected not only the disability network but also workers’ comp.

We posted the following in September 2010: “In the Northeast, workers comp issues are making headlines via reduced claims in Rhode Island and price hikes in New York, while an unrelated study suggests that impairment ratings for injured workers are often wrong, most often erring on the side of the patient. On one hand, the company that performed the study has a history of similar findings; on the other, the cumulative effect could be bad news for both employees and employers.”

A March 11 post at Insurance Journal says, “Rhode Island Attorney General Peter F. Kilmartin said he opposed a 3.9 percent workers’ comp rate hike being sought by the National Council on Compensation Insurance (NCCI) for the state.

“NCCI’s calculations call for a 3.9 percent increase for advisory loss costs for workers’ compensation insurance. But Kilmartin says that an analysis and an independent actuarial study, the rate hike should be rejected. Kilmartin’s office submitted an alternative calculation that calls for an overall increase of 0.6 percent.”

About a week earlier, Business Insurance posted, “Among other problems, the attorney general said Wednesday that the Boca Raton, Fla.-based workers comp rating organization applied an excessive medical trend factor to arrive at its suggested loss-cost rate increase.

“Instead, Mr. Kilmartin said, a 0.6% rate decrease is in order for Rhode Island businesses.”

A report from the National Council on Compensation Insurance, Inc. (NCCI) is generating some industry buzz about the “precarious position” of the workers’ compensation insurance industry. But a speech at the same symposium by the executive director of the Workers Compensation Research Institute (WCRI) frames the problem in language the rest of us can understand.

Workers comp insurers in ‘precarious position’

Here’s a typical trade press take, from a May 10 post at the Web site of Workforce Management:

“The state of the U.S. workers’ compensation insurance industry is in a ‘precarious position’ following a trying 2009, while economic uncertainties remain ahead, said NCCI Holdings Inc.

“The pace of economic recovery and unknown factors related to health care reform and financial regulation are among uncertainties facing the U.S. industry, NCCI said Thursday, May 6, in its annual ‘State of the Line’ market analysis.

“Meanwhile, workers’ comp insurers’ 2009 combined ratio rose to 110 percent from 101 percent the previous year—the largest single-year increase since the mid-1980s, said the Boca Raton, Florida-based unit of the National Council on Compensation Insurance Inc.”

NCCI: ‘largest data base’

According to the “About” section of its Web site, the “National Council on Compensation Insurance, Inc., based in Boca Raton, FL, manages the nation’s largest database of workers compensation insurance information. NCCI analyzes industry trends, prepares workers compensation insurance rate recommendations, determines the cost of proposed legislation, and provides a variety of services and tools to maintain a healthy workers compensation system.”

The NCCI 2010 report is worth looking at, even if you don’t follow the stats, graphs and industry terminology–the so-called “3D” twist on the .pdf-style document is pretty cool. If you want even more stats and graphs, there’s also the chief actuary’s outline for the symposium. We’ll be referring back these and other related documents in the months ahead, but for now let’s focus on the remarks of Richard Victor, WCRI’s executive director.

WCRI exec says remove unnecessary costs

Another trade-press Web site, in a May 7 piece at P&C National Underwriter, indirectly quotes Victor as saying, “As states exit the recession with a focus on saving money in the new economy, workers’ compensation systems will have to strip out as many unnecessary costs as possible to be successful.”

That may sound like jingo–ism, especially when coupled with Victor’s defining ” ‘unnecessary costs’ as costs borne by the employer in a workers’ comp system that do not improve the outcomes for injured workers.”

But, for anyone hoping for the voice of reason, the examples Victor cites are reasons for encouragement.

Fears of injured workers

“After a workers’ comp claim is filed, Mr. Victor said, the worker generally has three fears: that the worker will lose his or her job; that the worker is distrusted by the supervisor, and a perception that claim denial has occurred or will occur.

“Those with job loss fears are twice as likely to hire an attorney, Mr. Victor said. Those who feel distrusted are 50 percent more likely to hire an attorney.

“Mr. Victor said perceiving that a claim denial will occur is easy for a worker that is not getting money or receiving communication from the employer or insurer.”

Sounds as though he’s paying attention.

So much so, that he recommends all states should do a better job of communicating with workers, as in what to expect if they’re injured,  and how to go through the process. “He said states should have a way for workers to call and find out what will happen with a claim and when. If the claim process deviates from the information given, workers should be able to call back and get further guidance.”

What do higher costs achieve?

And this part is really good: Victor urges states with high claim costs to analyze their systems–not merely to see where costs can be lowered but more important to see whether those extended costs are leading to better results for injured workers. Even better, he uses examples of states with different systems to argue against the adversarial system common to many states. Injured workers who run into balky insurers–and their attorneys–the workers are more likely to need attorneys of their own.

This results in what the article refers to as “dueling docs,” in which “the worker gets a lawyer, who in turn gets a doctor, and the [insurance company] gets its own doctor and they testify against each other . . . .”

Wisconsin system lauded

To get the point across, Victor compares “the systems in states like New Jersey and Maryland with Wisconsin, noting that defense costs are around 40 percent of payments in the former states and 14 percent in the latter state.

“Wisconsin has a higher incidence of voluntary partial permanent disability (PPD) payments, he said, while such payments are virtually non-existent in New Jersey and Maryland. Workers in Wisconsin are also less likely to hire attorneys, he noted.”

Victor cites Wisconsin’s system as possible model because the adversariel model “is discouraged in favor of a system more akin to salary arbitration in baseball.

“In Wisconsin, he said, there is no ‘splitting of the difference’ when dueling docs are used, he said. Instead, the workers’ comp director picks one side or the other.

“This, he said, encourages both sides to make their most reasonable offers, as each side strives to make a more reasonable case than the other.

“ ‘It’s a whole different dynamic . . .’ that leads to both sides coming closer together rather than moving further apart, he said.”

Wouldn’t it be nice if all states workers comp systems were more intent on ensuring that proper treatment of injured workers were the focus of the process?

We’ll be looking for data or studies that delve into the Wisconsin system.  It would be interesting to know how satisfied those workers are with the “arbitration model” as well as any quantifiable health improvements following treatment.

Stay tuned.

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Have you, a friend or a loved one been injured on the job? Whether you’re merely seeking answers about your rights or believe a lawsuit may be necessary, be sure to seek counsel with attorneys trained and experienced in workers’ compensation. Here’s some resources:

Workers compensation basics

Injury on the job

Choosing an attorney