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Montana Self Insurers' Association

January 2021 Update

  • Hearing on Proposed Electronic Signature Rules in MT Workers’ Compensation
  • OR Rate Ranking Study – MT Drops Another Spot
  • COVID-19

    - WCRI Study on COVID Claims Impact on WC

    - Federal Court (CA) rules tort claim for alleged unsafe COVID conditions barred by exclusivity rule

    - Will Vaccines Bring Lawsuits?

  • Legislative Week 2

    - Governor’s Cabinet

    - Limited COVID Liability Protections Passes Committee - SB 65 (S. Fitzgerald)

    - MSIA Bill Watch List

  • WC Renewals Reaching a Turning Point? 

There’s waaaaaay too much information in this Update and my apologies to you. It seems like everyone waited for this week to release all their new information for 2021. This Update also includes the latest Legislative Update Week # 2 which also contributes to its’ length. I will also update the website, https://mtselfinsurers.org/ with this information. 

Any questions or comments? Please do not hesitate to be in touch with me at either the new email address (PStrauss@MTSelfInsurers.org) the older one PGStrauss520@gmail.com or call or text me at 406-431-7220.

Hearing on Proposed Electronic Signature Rules in MT Workers’ Compensation

Attached is the hearing notice, including the proposed rule change, providing for the use electronic signatures within the Montana workers’ compensation system. The Employment Relations Division of the Department of Labor and Industry was kind enough to provide an early draft of the proposed rule to MSIA for input. MSIA appreciates their courtesy and attention to the details as evidenced in this proposed language. The hearing will be held on February 17, at 10:00a via Zoom. MSIA supports this rule change and thanks our regulators for listening to the industry calls for such a change and their positive response.

Join Zoom Meeting, https://mt-gov.zoom.us/j/98264309140,

Meeting ID: 982 6430 9140; or

Dial by telephone, +1 406 444 9999 or +1 646 558 8656,

Meeting ID: 982 6430 9140

OR Rate Ranking Study Out – MT Drops Again!

Every other year the Oregon Department of Consumer and Business Services releases their report on their comparisons of 50 NCCI classification code rates, based on Oregon payroll weighting https://www.oregon.gov/dcbs/reports/Documents/general/prem-sum/20-2082.pdf. 

What all those details mean is actuarially there are bones we can pick with the report. Overall, with its’ caveats, it is a reasonable comparison of state’s premium rate rankings, based on average rates per $100 of payroll. 

More to the point, everyone uses it to see where their state lines up. Montana traditionally has been very (very) high. Since 2011 we have consistently dropped in our ranking to the point where it is as low as I have ever seen it at 117% of the study median, at $1.69 per $100 of payroll. North Dakota is the lowest in the country at .67 per $100 of payroll and 47% of the median; Wyoming, Colorado, Oregon and Utah are all below the #25 ranking.  

All the other regional states in fact, other than Alaska, are lower than Montana. That tells us our work is not done, but we’re better than we have been in the past. Montana paid medical benefits continue to be higher than the regional and national averages according to NCCI. The Montana system can continue to improve, and for greater business development and fairness in providing benefits to those who are hurt at work, we need to. MSIA is ready to continue to fight to make the Montana workers’ compensation system work better and continue to drop in our rate comparison.  

COVID-19 - WCRI Study on COVID Claims Impact on WC

I recently provided a Workers’ Compensation Update to a national insurance compliance group and the first three bullet points of the outline and about three quarters of my time were all COVID related. As workers’ compensation professionals, we know that the COVID-19 claims data is just too new for any solid analysis or interpretation. That being said, there are some things that are strikingly clear, overall claims volume is down, the vast majority of COVID claims are minimal cost claims but the outliers can be very significant and no one really knows what the ultimate impact will be, despite everyone asking. Another question we do not know the answer to is, “What will be the longer term impact of COVID-19 after it is under control?”

The Workers Compensation Research Institute (WCRI) has just come out with a new study, The Early Impact of COVID-19 on Workers’ Compensation Claims Composition, compares claims activities in the first two quarters of 2020 with the first two quarters of 2019 in 27 states representing almost 70% of the workers’ compensation benefits paid in the US (Montana is not included). 

·        There was great variation in the percentage of COVID-19 claims among all workers' compensation paid claims across the study states, ranging from 1 percent in Kansas and South Carolina to 34 percent in New Jersey and 42 percent in Massachusetts in the second quarter of 2020. A number of factors may have contributed to the variation, including severity of the COVID-19 outbreak, presumption laws, and compensability rules.

·        As compared with 2019Q1, we observed decreases in 2020Q1 in the number of non-COVID-19 claims across all states, ranging from a 2 percent decrease in Arkansas to a 20 percent decrease in Connecticut. Comparing 2020Q2 with 2019Q2, the reduction in the volume of non-COVID-19 workers' compensation claims was even larger, dropping by at least 30 percent in the vast majority of the states and by as much as 50 percent in Massachusetts.

·        For lost-time claims with more than seven days away from work (including COVID-19 lost-time claims), we observed even greater variation in the changes of workers' compensation claim volume, with some states reporting increases and some reporting decreases in the number of lost-time claims. For the second quarter, the change from 2019 to 2020 in the number of lost-time claims varied between a 27 percent decrease in Nevada and a 63 percent increase in Massachusetts.

·        We found substantial concentration of COVID-19 claims among workers employed in service industries (85 percent in 2020Q2), particularly in assisted living facilities, hospitals, and the offices of physicians and dentists.

·        Overall, there was tremendous variation in how the pandemic impacted different industries as a result of lockdowns, massive economic slowdown, and remote work. Comparing 2020Q2 against 2019Q2, the largest decrease in the number of non-COVID-19 workers' compensation claims was 57 percent for clerical and professional employees. The smallest decrease was 25 percent for construction workers.

The study is available free to WCRI members and for $55 to others at https://www.wcrinet.org/reports/the-early-impact-of-covid-19-on-workers-compensation-claim-composition.

COVID-19 - Federal Court (CA) rules tort claim for alleged unsafe COVID conditions barred by exclusivity rule

Thomas Robinson reports in the workcomp writer (http://www.workcompwriter.com/federal-court-cal-says-tort-claim-alleging-unsafe-covid-19-conditions-is-barred-by-exclusivity-rule/) about a case in California where an officer at a private detention facility sued his employer alleging unsafe conditions based on his potential exposure to COVID within the facility. The Federal Court ruled that California’s exclusive remedy law prevented such suit from going forward. His employer, Corecivic also has a facility in Montana.

COVID-19 - Will Vaccines Bring Lawsuits?

Finally on the COVID front (not really as MT legislative action on the topic is also reported on), in their Out Front Ideas presentation on the 20 topics to watch in workers compensation for 2021 this week (https://www.outfrontideas.com/) Kimberly George, SVP of Corporate Development, M & A and Healthcare at Sedgwick and Mark Walls, VP of Communications and Strategic Analysis for Safety National discussed the potential impact COVID might have on the workers’ compensation line as well. As reported in WorkersCompensation.com Litigation Around COVID-19 Vaccines 'Likely' in 2021, George specifically discussed the questions vaccinations could bring to workers’ compensation,

“Will Public entities require their workers to be vaccinated? Will customers entering a retail store, or boarding an airplane or bus expect that staff and customers are vaccinated? Will coworkers request specific assignments to avoid exposure to workers not vaccinated?

Mandating employees to get vaccinated can be tricky for employers. While some workers may not want to get the vaccine, employers must balance those desires with their duty under OSHA to provide a safe workplace. Organizations will need to determine if there is a real hazard presented if someone is not vaccinated.

This may be particularly problematic for smaller companies that have been struggling to survive. Small business has “significant concerns, with business continuity and being able to open, they will likely mandate the vaccine and, unfortunately, reinforce some employment laws via litigation. There is likely 2021 litigation around the vaccine. We anticipate a sympathetic court, however, given the lives lost to the virus and business interruption already experienced.

Another concerns the logistics. “If employers mandate the vaccine, the distribution of the vaccine can be very challenging. Who is to administer the vaccine? How do you coordinate vaccination schedules, secure documentation of doses and ensure compliance?

One additional question on the minds of many employers considering vaccine mandates is whether adverse reactions experienced by workers required to get the vaccine should be covered.”

Legislative Week 2

o  Governor’s Cabinet

Below is a list of the appointees Governor Greg Gianforte has made for his cabinet that are important to MSIA members. Cabinet appointees must be approved by the Senate, but at this time there is no concern in the Republican controlled legislature not approving everyone appointed so far.

Dept of Labor & Industry - Laurie Esau former Chief of Staff for MN Congressman Erik Paulsen and Deputy Commissioner for the MN Department of Commerce.

DPPHS - No appointment yet.

Dept of Transportation - Malcom “Mack” Long prior manager of JTL Group, a Billings based construction company and former owner of an oil field services business.

Dept of Natural Resources and Conservation - Amanda Kaster former aide to Rep and Interior Secretary Ryan Zinke and has experience in timber management, oil and gas production and grazing programs for the US Bureau of Land Management.

Dept of Agriculture - Mike Foster a former Montana legislator, veteran of Governor Judy Martz’ administration, former hospital lobbyist and USDA Farm Services Agency State Executive Director

Dept of Environmental Quality - Chris Dorrington who has worked for DEQ since 2016 and previously was with the Dept of Transportation. 

Director of Commerce - Scott Osterman former senior director of busines unit operations at Applied Materials (Kalispell).

o  Limited COVID Liability Protections Passes Committee – SB 65 (S. Fitzgerald)

This week the promised amendments to SB 65 were released providing a more specific affirmative defense, broadening the application for health care providers and providing other technical changes. All in all, in our opinion, the changes improve the legislation. The bill passed the Senate Business, Labor and Economic Affairs Committee today with an 8-3 vote, with all the Republicans voting in favor and Senator Mark Sweeny (D-Deer Lodge) also on board. The bill is also a centerpiece for Governor Gianforte’s COVID pandemic response and emergency order. The Governor stated he expects to loosen the emergency orders once more vaccines are available and there is some liability protection for business and health care providers if they reasonably apply health department recommendations. A copy of the bill, with the amendatory language is attached.  The bill is now slated for the first Senate floor vote on Monday, 1/18. It takes two floor votes to move legislation to the next chamber. 

o MSIA Bills Watch List

Also attached is our updated list of bills to watch. As reported last week, not all requested bills (bills with LC #’s) will be drafted or introduced. 

LC 1589 will be the MSIA bill to change the WC subrogation law to be sponsored by Rep. M Noland (R-Big Fork), Chair of the House Business and Labor Committee. A first draft of the language has been provided to us and is under legal review to confirm it achieves what we want it to do. 

LC 481 is the MSIA supported bill to limit benefits to someone who knowingly and willingly provides false information on a written form regarding their physical limitations, that information is relied on by the employer in the hiring process and those limitations impact the applicants ability to perform the function of their job. This bill was requested by Senate President Pro Tem Mark Blasdel (R-Kalispell).

LC 2928 is expected to be the LMAC approved change to eliminate the requirement to provide detailed medical information when both sides agree benefits should continue after five years. This bill is expected to be sponsored by Rep Derek Harvey (D-Butte).   

LC 1345 requested by Rep Andrea Olsen (D-Missoula) is expected to change the current choice of physician law back to pre-2011 language. MSIA will oppose this proposal should it reach Committee hearing.

LC 1350 also requested by Rep Olsen (D-Missoula) is titled “Establish presumption in workers compensation for COVID-19. About 18 other states have enacted or by Governor Emergency Order have established such presumptions in their workers’ compensation systems. With the start of their legislative sessions, AK, MN, OR, NY and VT are considering proposals to provide statutory presumptions for COVID. MSIA will oppose this proposal should it reach Committee hearing. Mark Walls, in his Out Front Ideas presentation earlier this week (see above), stated, “Workers compensation was designed to cover risk particular to the employment; it was not designed to cover a global pandemic impacting millions of people around the world. But here we are. Politicians were looking for a way to cover the cost of COVID and workers' compensation was an easy target. There will likely be more of these laws passed in 2021.”

HB 43 (R. Knudsen, R-Culbertson) broadens the application of telemedicine. It is not clear the potential impact this bill will have on workers’ compensation as yet. Telemedicine is still not used much in Montana, in comparison to other states. With the COVID pandemic, telemedicine use both in workers’ compensation and general health has literally sky-rocketed in other states. 

You will note there are a lot of bills titled “Generally Revise Workers’ Compensation Law,” or “Generally Revise Labor Law.” Until language is finalized, unless the sponsor desires the title to identify the purpose, most drafts start that way. Until the sponsor allows a draft to be released, we may not know what the idea is and rumors can be all over the place – some may have a semblance of truth, some do not. Until draft language is approved, the draft number (LC) remains. A drafting request – that is an LC bill does not have to be completed. 

If there is a bill you would like us to pay attention to or consider supporting or opposing, please contact me directly. 

WC Renewals Reaching a Turning Point?

Usually I would not include speculation about what is going on in the market. This is the first story I have seen in some time about potential increases in costs in the workers’ compensation line. We’ve all wondered when the turn in rates/loss costs would occur and have been waiting for it. We know that sooner or later, rates will have to bottom out. When I started in the business, double digit rate increases were not unusual (rates, not loss costs – I am that old). Today, we often work with professionals who have never seen an overall average increase during their careers. I will let the Business Insurance story speak for itself: https://www.businessinsurance.com/article/20210113/NEWS08/912339056/Renewals-may-mark-a-turning-point-for-workers-comp. Thanks to MSIA Secretary/Treasurer Mike Marsh for the heads up on this.

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