Category: Daily News

The WCIRB just published its 2021 State of the System report. Highlights of the report show the recent changes in premium revenue, claims, and costs.

The sharp and sudden employment drops in 2020 significantly impacted workers’ compensation exposure, the number of claim filings and claims activity. Premium levels dropped sharply in 2020 due to continued insurer rate decreases and the pandemic-related economic slowdown. Premiums are forecast to increase modestly in 2021 with economic recovery and the impact of insurer rate decreases moderating.

The insurance market remains stable and non-concentrated. Insurer charged rates continue to decrease and are now at a 50-year low. Average indemnity claim costs are rising, while average medical claim costs remain relatively flat. The impact of the pandemic on average claim costs in the long-term remains uncertain.

Average insurer rates charged for the first quarter of 2021 are only 2% below the rates charged in 2020, possibly signaling a sign of moderating insurer rate decreases and potential future hardening of the insurance market. Total written premium is forecast to increase modestly in 2021 with the economic recovery and moderation of the impact of declining premium rates, but would still be well below the level from 2014 to 2019.

California had the highest rates in the country until 2018, when rate declines moved it from the top spot. It is now the fourth highest, behind New Jersey, New York, and Vermont.

Almost 150,000 COVID-19 claims have been filed in the California workers’ compensation system. The impact of the filing of so many COVID-19 claims in 2020 on claim frequency was in part offset by a reduction in the number of non-COVID-19 claims filed. Over one-half of the almost 150,000 COVID-19 claims filed in the California workers’ comp system as of June 1, 2021 were within the insured system.

Over time, the ratio of COVID-19 claims relative to statewide infections declined as the COVID- 19 workers’ compensation presumption created by Senate Bill (SB) No. 1159 was more restrictive than the Governor’s Executive Order issued in spring 2020.

The winter surge resulted in over 2 million infections statewide and the largest volume of COVID-19 workers’ compensation claims filed during the pandemic. COVID-19 claims as a percent of all indemnity claims peaked in December 2020 during the winter surge of infections. As vaccines rolled out in spring 2021, the proportion of COVID-19 claims has been very modest. A much higher than projected share of COVID-19 claims has been filed by younger workers. Younger individuals are more likely to have mild COVID-19 symptoms.

Currently projected costs of COVID-19 claims in the insured system for accident years 2020 and 2021 are over $1 billion in total.

Preliminary estimates suggest the CT claim share of indemnity claims for accident years 2020 and 2021 are significantly below the 2018 and 2019 levels. The vast majority of increases in CT claims since 2012 came from the Los Angeles Basin and San Diego areas.

Following the implementation of reforms related to lien filings of SB 863 (in 2013) and SB 1160 and Assembly Bill (AB) 1244 (in 2017), the number of lien filings dropped significantly. The number of liens filed in 2020 is over 70% below the pre- SB 1160 and AB 1244 level.

Combined ratios in California have historically been volatile. Recent industry ratios have been fairly stable, with seven consecutive years of combined ratios below 100% from 2012 to 2019. Combined ratios since 2016 have been increasing primarily due to lower premium levels driven by lower insurer rates and higher expense ratios. The combined ratio for 2020 is the first above 100% since 2012. Excluding the impact of COVID-19 claims, the 2020 combined ratio would be 96%.

A Bronx man allegedly received $1.5 million in just ten months. A California real estate broker raked in more than $500,000 within half a year. A Nigerian government official is accused of pocketing over $350,000 in less than six weeks.

What they all had in common, according to federal prosecutors, was participation in what may turn out to be the biggest fraud wave in U.S. history: filing bogus claims for unemployment insurance benefits during the COVID-19 pandemic. (The broker has pleaded guilty, while the Bronx man and Nigerian official have pleaded not guilty.)

One person, according to the U.S. Department of Labor, used a single Social Security number to file unemployment insurance claims in 40 states. Twenty-nine states paid up, sending $222,532.

But the problem extends far beyond a plague of solo scammers. Bots filing bogus applications in bulk, teams of fraudsters in foreign countries making phony claims, online forums peddling how-to advice on identity theft – all inside the infrastructure of perhaps the largest fraud wave in history.

A ProPublica investigation reveals that much of the fraud has been organized – both in the U.S. and abroad. Fraudsters have used bots to file online claims in bulk. And others, located as far away as China and West Africa, have organized low-wage teams to file phony claims.

The fraud has been enabled by a burgeoning online infrastructure, whose existence has not previously been reported in the mainstream press. Much of it is geared toward exploiting aging or obsolete state unemployment systems whose weaknesses have drawn warnings for decades.

Communities have sprouted on messaging apps such as Telegram, where fraudsters trade tips on how to cash in. Hustlers advertise their techniques – or “sauces” (apparently short for “secret sauce”) – for filing bogus claims, along with state-specific instructions on how to get around security checks, according to a ProPublica review of messages on more than 25 such chat forums.

Some of the forums have thousands of participants and regularly offer stolen identities for sale, alongside tech tips, screenshots that ostensibly prove the methods work and advice on which states are easiest to game and which are “lit” – that is, still paying out fake claims. Users have created two Telegram channels in which they trade tips for filing claims in Maryland, whose labor department recently said it detected some 508,000 potentially fraudulent jobless claims between the start of May and mid-June. Participants in those forums have been talking about turning their efforts to Pennsylvania, where officials recently said they have “noticed an uptick” in fraudulent claims.

“From my experience, when this is all said and done, we are going to be counting in the hundreds of billions of dollars, not the tens of billions,” said Jon Coss, who heads a unit within Thomson Reuters that is helping states detect fake unemployment insurance claims.

Coss bases that assessment on the widespread fraudulent activity he’s seen. He said one U.S. state, which he declined to name, received fake claims – all purportedly from state residents – that originated from IP addresses in nearly 170 countries. They included countries historically linked to fraud, such as China, Nigeria and Russia, as well as more surprising ones, such as Cuba, Eritrea, Fiji and Monaco.

Overall, Coss said, between 40% and 50% of the claims his group has analyzed seem highly suspect. He added, “It’s mind-boggling the level of fraud that we’re seeing.”

In 2006, Daniel Desimone began working for the County of Santa Barbara as a corrections officer.

In October 2007, he injured his lower back. The incident occurred at a private gym inside an apartment complex on a weekend when Desimone was not working and no other County employees were present. Desimone was attempting to lift 350 pounds without a fitness trainer. The injury resulted in permanent damage to his spine. He said that he was lifting weights in hopes of being promoted to Deputy Sheriff.

Desimone continued working as a custody deputy until March 2016. In 2017, he filed an application for disability retirement benefits. Two reporting physicians agreed he was permanently incapacitated, but they disagreed on whether his disability was service connected. Dr. Conwisar opined that it was “within reasonable medical probability” that Desimone’s work activities contributed to the injury. Dr. Ganjianpour opined that Desimone’s disc herniation resulted from the 2007 weight-lifting incident and that his work duties did not “significantly and measurably contribute” to his incapacity.

The Board referred the question of whether the disability was service connected to a referee. The referee found that Desimone’s weight-lifting injury was not work related. A trial court affirmed the Board, and the Court of Appeal affirmed in the unpublished case of Desimone v the Retirement Board of Santa Barbara County.

Desimone argued that pursuant to Ezzy v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252 (Ezzy), that he was entitled to service-connected disability benefits because (1) he believed that his weight-lifting activity was expected by his employer and (2) his belief was objectively reasonable.

In Ezzy, the court of appeal held that a worker’s compensation claimant injured during a company-sponsored softball game was participating in an activity in the course of her employment.

Ezzy, is not controlling authority because it involved a worker’s compensation claim under the Labor Code, and not, as here, a claim for service connected disability retirement benefits under the CERL (Gov. Code, § 31720). The trial court was therefore not required to apply the Ezzy test to determine whether Desimone’s injury was service connected.

But, even under the Ezzy test, Desimone did not prove that his injury was sustained in the course of his employment. He argues that his subjective belief that the County expected him to participate in heavy weight lifting was objectively reasonable.

The specific activity must have a substantial nexus between an employer’s expectations or requirement, or else the scope of coverage becomes virtually limitless. Accordingly, general assertions that it would benefit the employer for, or even that the employer expects, an employee to stay in good physical condition are not sufficient.

Despite the pandemic-driven recession, workers’ comp claim frequency among California’s private self-insured employers rose in 2020, fueled by a big increase in the incidence of indemnity claims which more than offset a decline in medical-only claim frequency.  This conclusion was based on a California Workers’ Compensation Institute (CWCI) analysis of data compiled by the state Office of Self-Insurance Plans (OSIP).

OSIP’s annual summary of private self-insured data, released July 8, provides the first snapshot of California private, self-insured claims experience for cases reported in 2020, including the total number of covered employees, medical-only and indemnity claim counts, and total paid and incurred losses on those claims through the end of the year.

The latest summary reflects the experience of private self-insured employers who covered 2.34 million California employees last year, and who reported a total of 86,503 claims in 2020 – slightly more than the 85,852 claims shown in the 2019 initial report.

It is notable that the number of covered employees in the private sector self-insured sector held steady while statewide unemployment soared during the pandemic, though CWCI notes that many large, private self-insured employers fit into the “essential worker” category (e.g., major retail, health care, utilities) where workers were less impacted than the insured work force by furloughs, layoffs, and remote work.

OSIP’s initial report on 2020 private self-insured experience shows 43,779 medical-only claims (down 15.1 percent from 51,545 claims in 2019) and 42,724 indemnity claims (up 24.5 percent from 34,307 in 2019).

The 2020 claim count translates to an overall frequency rate of 3.70 claims per 100 private self-insured employees, nearly matching the overall frequency rates from 2018 and 2019, though the breakdown by claim type underscores the major shift in the claim distribution away from less costly medical-only claims and toward more expensive indemnity claims.  While medical-only claim frequency per 100 employees fell from 2.21 in 2019 to a 15-year low of 1.87 in 2020, the indemnity claim rate rose from 1.47 to a 15-year high of 1.83.

That shift was also evident in the first report paid and incurred loss data.  

Paid losses on the 2020 private self-insured claims through the fourth quarter totaled $268.4 million, $15.6 million more than the comparable figure for 2019, as total paid indemnity (primarily temporary disability payments) increased by $25.1 million (22.5 percent) while total paid medical fell by $9.5 million (6.7 percent).  

Similarly, total incurred losses (paid benefits plus reserves for future payments) increased to $742.4 million, up $48.0 million from the initial incurred amount reported for 2019 claims, as total incurred indemnity at the first report climbed by $40.2 million (6.9 percent) and total incurred medical increased by $7.8 million (1.9 percent).  Average paid and incurred losses in the initial report both rose sharply in 2020, climbing to $3,103 and $8,583 respectively, with all of the year-over-year increase in the average paid amount and most of the increase in average incurred due to increased indemnity.

With a $26 billion nationwide settlement in sight over claims that the three largest U.S. drug distributors and Johnson & Johnson helped fuel a nationwide opioid epidemic, state and local governments will soon turn their attention to pharmacies and a handful of drugmakers.

Reuters reports that U.S. state attorneys general are expected to unveil a settlement proposal this week with distributors McKesson Corp (MCK.N), Cardinal Health Inc (CAH.N) and AmerisourceBergen Corp (ABC.N) contributing a combined $21 billion, while Johnson & Johnson would pay $5 billion.

Noticeably absent from the potential $26 billion deal are pharmacy operators including Walgreens Boots Alliance, Walmart Inc , Rite Aid Corp and CVS Health Corp, which have been accused of ignoring red flags that opioid drugs were being diverted into illegal channels.

The deal also would not include drugmakers AbbVie Inc, Teva Pharmaceutical Industries Ltd or Endo International Plc, which have been accused of misleadingly marketing their pain medicines as safe.

The pharmacies and drugmakers have denied the claims, saying rising opioid prescriptions were driven by doctors, that they followed federal law and that the known risks were included in U.S.-approved labels for the drugs.

News of the proposed nationwide settlement came three weeks into a jury trial in New York, and legal experts said upcoming court proceedings will pressure the remaining defendants to reach a deal.

The drugmakers are currently defending themselves at the New York trial and a trial in Orange County, California, and are expected to face another trial in San Francisco along with the pharmacies later this year. The pharmacies, which settled the New York case shortly before trial, also face an October trial in Ohio.

After start of the Orange County case earlier this year, Allergan defense counsel Donna Welch, in her opening statements in front of Judge Wilson, initially threw co-defendants in the opioid litigation “The Pharmacy Chains” under the bus, claiming they were the responsible party in unleashing hundreds of millions of prescription opioids, the “firewall” in mitigating the now defense asserted, non-existent opioid crisis.  This illustration of the “blame others” defense strategy has fewer targets as supply chain participants settle cases, removing opportunities for remaining defendants to shift blame.

Richard Ausness, a law professor at the University of Kentucky, said a settlement this week reduces the groups of defendants in the litigation and makes it harder for the remaining companies to blame others.

Endo is scheduled to go to trial next week to assess damages over a lawsuit brought on behalf of Tennessee counties and an infant allegedly born addicted to opioids, in which a judge has already ruled the company liable. District Attorney General Barry Staubus of Tennessee’s Sullivan County told WHLJ television that the company offered to settle, but the deal would be limited to that case.

Peter Mougey, a lawyer representing the local governments pursuing opioid litigation around the country, said at a news conference to discuss proposed settlements that he was “frustrated” pharmacies were not part of the nationwide deal.

“They’ve had ample time to assess where they are with their liability, and we all have the common goal of trying to end this opioid epidemic,” he said.

The pharmacies did not immediately respond to requests for comment.