The State of the States

State Workers’ Comp News

A round-up of key workers' comp developments in four states.
By: | February 21, 2014 • 6 min read

California: Latest injury, illness rate ‘in line’ with employment growth

California employers saw a 2.4 percent increase of workplace injuries and illnesses in 2012. The increase of 10,600 incidents over the previous year “was in line with the 2 percent growth in statewide average annual employment noted by the Bureau of Labor Statistics,” according to a new report.

The California Workers’ Compensation Institute says the 2012 work injury and illnesses rate is 4.0 per 100 full-time employees “which due to similar growth in the workforce, was unchanged from 2011, though it was down from 4.2 injuries and illnesses reported in 2010.”

The rate of “other recordable cases,” including first aid cases and injuries that may have been medical only claims, fell to 1.7 in 2012 down from 1.8 in 2011. On the other hand, the incidence of days away from work, work restriction, or job transfer — DART cases — rose slightly to 2.1 cases per 100 FTEs in 2012 compared to 2.0 in 2011. Nearly 57 percent of the 2012 incidents were DART cases up from 55.2 percent.

The numbers were compiled by the California Department of Industrial Relation’s Director’s Office of Policy, Research and Legislation. They provide an alternate view of the state’s work injury and illness experience from workers’ comp claim counts, “as the figures include cases recorded by employers for which no workers’ compensation claims were filed,” CWCI explained. Also, rather than counting indemnity claims, the report tracks DART cases including those for which no indemnity was due because the employee returned to work within three days or was not hospitalized.

The injury and illness rate among private employers “held steady last year, after falling from 3.7 to 3.5 cases per 100 FTEs between 2010 and 2011,” CWCI reported. The rate of the less serious DART cases in the private sector fell to 1.4 from 1.6 per 100 FTEs.

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“A comparison of California’s 2012 results to the nationwide figures shows that California accounted for 12 percent of the reported work injuries and illnesses cases in the U.S., including 13.6 percent of all DART cases,” the report said. “California’s overall injury and illness rate of 4.0 was above the nationwide rate of 3.7 as the incidence of DART cases was higher than the nationwide rate (2.1 vs. 1.8 cases per 100 FTE) while the incidence of other recordable cases was slightly below the nationwide rate (1.7 cases vs. 1.8 cases).”

Florida: Controversial case challenges constitutionality of WC law

The case that has threatened to change Florida’s time limit on temporary total disability benefits is now taking on the legality of the law itself. The latest move comes in a brief filed on behalf of Bradley Westphal in his suit against the city of St. Petersburg.

“The current Florida Workers’ Compensation Law is unconstitutional in total, as it is not an adequate remedy in terms of access to courts and due process of law,” wrote Westphal’s attorneys.

The case arose after Westphal, a former firefighter, had exhausted the state’s 104-week TTD time limit. However, his claim for permanent total disability benefits was denied by a judge who said it was unclear whether the worker had reached maximum medical improvement. It left Westphal without benefits for nine months.

An initial decision by the Florida 1st District Court of Appeal that deemed the TTD time limit unconstitutional was reversed after an en banc hearing, and the case was remanded for further consideration. The Florida Supreme Court recently added it to its list of high-profile cases.

In their initial brief to the court, Westphal’s attorneys argue that the en banc decision is incorrect and that the 104-week limitation on TTD benefits is unconstitutional “as it is not an adequate remedy in violation of the access to courts provision of the Florida Constitution.”

The brief gives a history of Florida’s workers’ comp law, pointing out the changes that have ensued. For example, “the 1967 Workers’ Compensation Law had a 350 weeks limitation on temporary disability (now 104),” it says. It says the 104-week limitation on TTD is “not an adequate remedy compared to other states” and notes Florida’s ranking for “dead last” compared to other states, according to the Department of Labor.

It also notes the following changes in Florida’s workers’ comp law since 1967:

  • Permanent total disability was for life and is now to age 75.
  • Full medical care was provided without apportionment or co-pays, where there now are both.
  • A workplace safety act was repealed.
  • Employees’ options to select a treatment physician have been removed.

“Since 1968, there have been numerous other substantial take-aways,” the brief says. “The lack of full medical benefits and the repeal of the Florida Occupational & Safety Health Act cannot be used to counterbalance the inadequacy of the 104 weeks limitation on temporary total disability. Considered together with other numerous and substantial take-aways, the law has become unconstitutional as an inadequate remedy taken as a whole.”

The high court has given the respondents until March 6 to respond to the brief.

New York: WC board chief seeks input to ID, fix ‘fundamental problems’

Saying the state’s workers’ comp system has been “in extreme dysfunction caused by years of neglect and special interest lobbying,” the top regulator is looking for ideas. New York Workers’ Compensation Board Executive Director Jeffrey R. Fenster explained the appeal in a recent essay.

Fenster, appointed to the post by former Gov. David A. Paterson in 2010, said current Gov. Cuomo inherited a system that compared poorly to other states, according to recent studies. It was slow to pay injured workers, produced poor medical outcomes, and had the nation’s fifth highest costs for employers. “Things needed to change.”

In addition to recent changes, Fenster cited an upcoming business process reengineering project to help design a better functioning system. The goal is to be able to use technology better to serve constituents.

“The board cannot succeed acting in isolation,” Fenster wrote. “Consequently, we are in the midst of unprecedented public outreach. We are gathering ideas from injured workers, businesses, public employers, organized labor, health care providers, insurance carriers, attorneys, and other industry professionals through a variety of forums and focus groups.”

Outreach schedules and comments received are posted to the board’s website. Final recommendations and an action plan will be available when completed.

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“For the first time in a long time, the board is systematically identifying and fixing the fundamental problems in our system. Improving a system that decayed for decades is not easy,” Fenster said. “Not every vested interest will agree on every recommendation. Interest groups that profit from dysfunction will defend this indefensible status quo. Guided by our core belief that everyone benefits from timely and appropriate lost wage benefits and medical care, the board is ready for the challenge and is committed to fighting for a better workers’ compensation system in New York State.”

Massachusetts: Insurance division considers 7.7 percent rate hike

Employers in Massachusetts may see their workers’ comp rates increase soon. Despite a proposed effective date of Jan. 1, a hearing was scheduled for Jan. 30 for the proposal from the Workers’ Compensation Rating and Inspection Bureau.

Massachusetts’s workers’ comp rates are not determined by NCCI, as are most other states. Instead, the WCIRB — a private, nonprofit unincorporated association of insurers — is the licensed rating organization for the workers’ comp system.

“In anticipation of the rate filing, the WCRIBMA has been issuing ratings effective on January 1, 2014 and subsequent with a preliminary status,” the rating organization explained in a letter. “At the conclusion of the rate case, the WCRIBMA will revise the preliminary ratings. Until a decision is received, carriers should attach the Massachusetts Pending Premium Change Endorsement (WC 20 04 01) to all new and renewal policies effective on or after January 1, 2014.”

The hearing was to allow interested parties to offer evidence and testimony as to whether the proposal was “excessive, inadequate, or unfairly discriminatory for the risks to which they apply and whether they fall within a range of reasonableness,” according to the hearing notice from the insurance commissioner.

Nancy Grover is the president of NMG Consulting and the Editor of Workers' Compensation Report, a publication of our parent company, LRP Publications. She can be reached at [email protected]

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The R&I Editorial Team can be reached at [email protected]