Legislature Adjourns, TAN Sets End-of-Session Webinar for June 28

Legislature Adjourns, TAN Sets End-of-Session Webinar for June 28

With seemingly more than the customary bickering between the House and Senate and their respective leaders, the 88th regular session of the Texas Legislature adjourned its biennial meeting on Monday, May 29. 

While issues like school vouchers, banning gender-affirming medical treatment for minors, regulation of drag shows, eliminating diversity efforts at universities and efforts to restrict local ordinances dominated much of the news coverage, legislators did come together to do the one thing that it must do, and that is to pass a budget to fund state government. According to the Texas Tribune, the $321.3 billion two-year spending plan made “unprecedented investments into tax cuts, mental health, state parks, colleges and universities, the state’s energy grid, broadband and water infrastructure.” Despite a record surplus of $33 billion, lawmakers were unable to agree on how to use part of it for a property tax cut prompting Gov. Abbott to call them back into session for what he says may be one of several. The governor has directed legislators to focus on property tax cuts and immigration during the first special session.

The governor has until June 18 to sign or veto bills passed during the regular session.

While the routine business of the Legislature did command most of legislators’ attention throughout the 140-day session, there were two significant distractions. The first was the expulsion of one of its members by the House of Representatives due to improper conduct with an intern. Second was the bombshell move by the House of Representatives to impeach Republican Attorney General Ken Paxton based on 20 articles of impeachment submitted by the House General Investigating Committee. The House voted 121 to 23 to impeach Paxton, temporarily removing him from office and triggering the next step of an impeachment process: a trial by the Texas Senate to determine whether he should be convicted of the charges of which he is accused and permanently removed from office. Paxton has blasted the move, calling legislators who were investigating him corrupt.

TAN will conduct its end-of-session webinar on June 28, 2023, at 1:30 p.m. During the presentation, TAN’s government relations team will review legislation of interest to nonsubscribers and Texas businesses as well as the other major bills that were adopted. More information on the webinar will be provided in the coming weeks.

TDI-DWC Adopts End Date for Special Treatment of COVID Claims

The Texas Department of Insurance, Division of Workers’ Compensation, has adopted a proposal from the National Council on Compensation Insurance (NCCI) establishing June 30 as the end date for the special treatment of COVID‐19 workers’ compensation claims and reporting. COVID‐19‐related claims with accident dates on and after July 1, 2023, will now be included in the experience rating calculations and merit rating plans (where applicable).

The new rule ends NCCI’s decision that came immediately following the outbreak of the pandemic to treat COVID-19 workers’ compensation claims under a catastrophe code and exclude all claims data related to COVID‐19 from experience rating, as well as to exclude payments to paid furloughed employees due to COVID‐19 from premium.

In making the proposal, NCCI notes that more than 80% of the U.S. population received at least one dose of a COVID‐19 vaccine, and more than two‐thirds of Americans are fully vaccinated. Additionally, it says employers have implemented several strategies to mitigate the impact of COVID‐19 on U.S. workers, including wearing PPE, working remotely when possible, implementing workspace layout changes, conducting health/symptom screenings, and cleaning and disinfecting.

COVID‐19 claims data collected by NCCI shows that these measures seem to be having the intended impact of mitigating workplace hazards. NCCI also has seen evidence of workers’ compensation COVID‐19 claims becoming more consistent and less impactful to overall workers’ compensation system costs.

With typical claim activity expected in the future, NCCI says it is important to reintroduce the incentives that motivate employers to promote safety in their workplaces, which it says can be accomplished by including COVID‐19 claim experience in experience ratings.

Report Outlines Common Injuries, Claims and Workdays Lost

When it comes to workplace injuries, employers should pay attention to employees in their first year on the job, according to a report from The Travelers Companies, the country’s largest workers’ compensation insurer.

According to Travelers’ recently released 2023 Injury Impact Report, employees in their first year on a job, regardless of their age or industry experience, represented 34% of all claims and accounted for nearly 7 million missed workdays due to injury. Though they were injured less often than most other age groups, employees ages 60 and older had higher average costs per claim, totaling nearly 15% more than employees between the ages of 35 and 49, and approximately 140% more than those ages 18 to 24.

The report examined more than 1.2 million workers’ compensation claims Travelers received from 2016 to 2020. Key findings include the following:

  • Strains and sprains (38%) accounted for the most injuries, followed by fractures (13%), contusions (8%), inflammation (7%) and dislocations (7%).
  • Overexertion caused the most claims (29%), followed by slips, trips and falls (23%); being struck by an object (13%); motor vehicle accidents (5%); and caught-in or caught-between hazards (5%).
  • On average, the injuries analyzed resulted in 71 missed workdays.
  • The construction industry had the highest average number of lost workdays per injury (99 workdays), followed by transportation (77 workdays).
  • Injured employees from small businesses missed an average of 79 workdays.
  • Slips, trips and falls caused employees to miss an average of 83 workdays, followed by motor vehicle accidents (79 workdays), overexertion (71 workdays), and being struck by an object (67 workdays).

The report is available here.

NCCI Reports on State of the Workers’ Comp System

The U.S. workers’ compensation system remains healthy, according to 2022 metrics recently released by the National Council on Compensation Insurance (NCCI).

Workers’ compensation premiums increased 11% in 2022 to $47.5 billion, highlighting a return to a similar level of premiums as in 2019. Private carriers produced their ninth consecutive year of underwriting profitability with a calendar year 2022 combined ratio of 84. It is the sixth consecutive year with a combined ratio below 90 for the workers’ compensation insurance market.

The metrics are contained in NCCI’s State of the Line report. Other key findings in the report include the following:

  • Lost-time claim frequency returned to its 20-year trend, declining 4% in the past year.
  • NCCI reported a notable rise in severity for 2022, with medical claim severity increasing about 5% and indemnity claim severity rising about 6% year over year. NCCI noted the longer-term perspective indicates this is a manageable rise.
  • Workers’ compensation’s accident year combined ratio is 97%, with prior years continuing to experience downward reserve development.
  • The workers’ compensation reserve redundancy grew to $17 billion.

The State of the Line report and State of the Line guide are available here.

FMLA Change Would Allow Leave in Hourly Increments

New guidance from the U.S. Department of Labor will allow certain employees with serious illnesses to take FMLA leave in hourly increments, forcing employers to rethink how they schedule work shifts.

The guidance affects employees who are scheduled to work shifts longer than eight hours at a time. The ruling clarifies that workers with serious health conditions that limit how many hours they can work in a day, can use their FMLA leave time in increments to reduce their shift to eight hours.

The Family and Medical Leave Act entitles covered employees to take unpaid job-protected leave for qualifying family and medical reasons with continuation of group health insurance coverage. Eligible employees are limited to 12 working weeks per 12-month period and typically use their leave in blocks of days, weeks or even months at a time.

However, an unnamed company in February asked the Department of Labor for guidance on the issue of using FMLA in hourly increments, saying it needs its employees to work 10-hour shifts to meet its 24-hour operational needs. Several of its workers had asked the company under the FMLA to limit their shifts to eight hours.

According to the guidance, “If an employee would normally be required to work more than eight hours a day but is unable to do so because of an FMLA-qualifying reason, the employee may use FMLA leave for the remainder of each shift, and the hours which the employee would have otherwise been required to work are counted against the employee’s FMLA leave entitlement.”

The guidance is available here.

TDI-DWC Offers Free Online Training for Safety Professionals

An OSHA inspection can happen at any time and often without advanced warning. Will you know what to do when an Occupational Safety and Health Administration (OSHA) inspector shows up at your door?

The Texas Department of Insurance, Division of Workers’ Compensation (DWC), offers free online training specifically designed for the new safety professional or coordinator. These online seminars will provide the basic information necessary for the effective development of skills to successfully manage an effective workplace safety program.

The next webinar is 10 a.m. to 11 a.m. July 11. Registration is available here.

DWC also offers the Occupational Safety and Health Consultation (OSHCON) program, a free and confidential service available to private Texas employers that provides professional safety and health consultants across the state to help employers identify and eliminate occupational hazards in the workplace, regardless of whether the company carries workers’ compensation insurance.

OSHCON helps employers understand and comply with OSHA health and safety requirements and teaches them how to maintain safe and healthy workplaces. According to DWC, studies show that thousands of Texas employers experience fewer reported injuries and illnesses following their participation in the OSHCON program.

To schedule, call (800) 252-7031, option 2; or email OSHCON@tdi.texas.gov; or complete an online request form here.

OSHA Program to Focus on Fall Prevention

The Occupational Safety and Health Administration (OSHA) has implemented a National Emphasis Program to prevent falls, the leading cause of fatal workplace injuries and the violation the agency cites most frequently in construction industry inspections.

The emphasis program will focus on reducing fall-related injuries and fatalities for people working at heights in all industries. According to the Bureau of Labor Statistics, of the 5,190 fatal workplace injuries in 2021, 680 were associated with falls from elevations, about 13% of all deaths.

The emphasis program establishes guidance for locating and inspecting fall hazards and allows OSHA compliance safety and health officers to open inspections whenever they observe someone working at heights. An outreach component of the program focuses on educating employers about effective ways to keep workers safe. If a compliance officer determines an inspection is not necessary after entering a worksite and observing work activities, they will provide outreach on fall protection and leave the site.

OSHA currently requires employers to do the following to prevent employees from being injured from falls:

  • Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover).
  • Provide a guardrail and toe-board around every elevated open-sided platform, floor or runway.
  • Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt), employers must provide guardrails and toe-boards to prevent workers from falling and getting injured.
  • Other means of fall protection that may be required on certain jobs include safety harnesses and lines, safety nets, stair railings, and handrails.

Details about the National Emphasis Program are available here.

Choosing the Right Pharmacy Partner Is Essential for Advocacy-Based Claims Organizations
By Ron Carter – RxBridge

Advocacy-based claims models involve assisting and empowering injured employees throughout the claims process. The premise is that injured employees who feel their employers truly care about helping them recover are more likely to feel valued and are more motivated to work together to achieve successful outcomes.

As an employer, training your own claims professionals to use an advocacy-based claims model is great, but it’s not enough. It’s imperative each of your medical management partners is also focused on providing compassionate care. When selecting a PBM to partner with, here are a few key components of an advocacy-based claims model you should take into consideration.

  1. Timely Response: Immediately following an injury, it’s important the injured employee receives medical care. At that moment, their health is more important than filing a claim. Make sure you work with a PBM that provides injured employees with immediate access to medications and care oversight from the very first prescription. One of the fastest and best ways to support pharmacy first fills is by texting pharmacy cards immediately after the injury. Speak to your pharmacy partner and discuss options available to get pharmacy care delivered seamlessly from the onset of injury.
  2. Customization: Many PBMs want a one-size-fits-all approach to operations. This benefits the PBM, but not the employer, and certainly not the injured employee. Make sure your PBM partner is willing to customize its program to your workflows — whether that means automatically escalating certain claims to your nurse triage team, using the preferred language when speaking to an injured employee, or providing early alert notifications in a format that works best for your team. It’s important you and your PBM are in sync and working together in a consistent manner to provide a positive care experience.
  3. Clinical Staff Availability: Prescription medications are often a critical component of injury recovery, especially to aid in pain management. However, medications can also create unwanted side effects that can complicate, or even elongate, care. Make sure your PBM provides programs allowing injured employees to speak directly with a clinical pharmacist. For example, providing injured employees the option to have a telemedicine appointment with a pharmacist can positively impact injured employee outcomes. RxBridge has seen this program successful in reducing medication use and accelerating return to work — which are clinical and financial outcomes worth celebrating.
  4. Easy Access to Support: Nothing is more frustrating to a patient than having to wait for answers. Do not underestimate the importance of customer service when selecting a PBM. Make sure your PBM provides multiple ways for an injured employee to get in touch. This should include providing the injured employee with an easy-to-use app and text messaging capabilities. It should also include an easy process for reaching a live representative when calling. Find out how long it takes an injured employee to reach a representative and what type of phone tree is utilized. For RxBridge, we found providing a live answer call center with no phone trees positively impacted injured employee satisfaction and made the claim experience more positive.

Patient experience can have a direct correlation to claims outcomes. If you are using an advocacy-based claims model, make sure each of your partners are as well, or your efforts may be spoiled.

Surveys Highlight Contrast in Opinions of Workers’ Well-Being

A pair of recent surveys from MetLife reveals a sharp difference between how employees feel about their financial, mental and physical health versus what their employers believe their workers feel.

MetLife’s 21st Annual U.S. Employee Benefit Trends Study was conducted in November 2022 and consists of two distinct studies: an employer survey of 2,840 interviews with benefits decision-makers and influencers at companies with at least two employees; and an employee survey of 2,884 interviews with full-time employees, ages 21 and over, at companies with at least two employees.

The surveys indicate 55% of employees say they are financially healthy, while 83% of employers say their employees are financially healthy. Similarly, there are 20-point percentage gaps between employees and employers when measuring employee mental health (65% vs. 85%) and physical health (67% vs. 87%).

Other key findings include:

  • Overall job satisfaction among the employees improved to 69% this year from 66% in 2022; however, this was still the second-lowest percentage since 2013.
  • More than one out of four employees said they don’t feel cared for by their employer, while seven out of 10 said a supportive manager is a “must-have” for employers who want to demonstrate that they care.

Some 72% of men and 70% of white-collar workers feel their employer is demonstrating care on the job. Only 60% of women and 58% of blue-collar workers say the same. Across age groups, Gen Z employees are the least likely to feel cared for at work (only 53% do, versus 61% of millennials).

Information on downloading the study is available here.


The U.S. COVID-19 Public Health Emergency Is Ending. What Does That Mean?
In January 2020, the U.S. government declared COVID-19 a public health emergency. Now, with coronavirus cases and deaths on the decline, that declaration is quickly approaching a predetermined expiration date. Click here for full article. 

WHO Declares End To COVID Global Health Emergency
The World Health Organization ended the global emergency status for COVID-19 on Friday more than three years after its original declaration, and said countries should now manage the virus that killed more than 6.9 million people along with other infectious diseases. Click here for full article.

The News Tribune
Got Pink Eye? Researchers Say It Could Be A Sign Of COVID. What To Know About The Symptom
Depending on who you ask, America is still in the midst of the COVID-19 pandemic that plunged the world into a health emergency. Some people still choose to mask, swab their noses with at-home tests and work from home out of caution. Click here for full article.

The New York Times
U.S. Authorizes a New Round of Covid Boosters
In a nod to the ongoing risk the coronavirus poses to millions of Americans, the Centers for Disease Control and Prevention recommended on Wednesday that adults 65 and older and those with weakened immune systems receive another dose of the reformulated booster that debuted last fall. Click here for full article.

Biden Revokes COVID Travel, Federal Employee Vaccine Requirements
President Joe Biden on Tuesday revoked requirements that most international visitors to the United States be vaccinated against COVID-19 as well as similar rules for federal employees and contractors. Click here for full article.

The Atlantic
23 Pandemic Decisions That Actually Went Right
More than three years ago, the coronavirus pandemic officially became an emergency, and much of the world froze in place while politicians and public-health advisers tried to figure out what on Earth to do. Click here for full article.

NBC Bay Area
Coronavirus Dropped to 4th Leading Cause of Death in US Last Year, CDC Says
U.S. deaths fell last year, and COVID-19 dropped to the nation’s No. 4 cause, the Centers for Disease Control and Prevention reported Thursday. Click here for full article.

COVID’s Future: Mini-waves Rather than Seasonal Surges
Whether you call it a surge, a spike, a wave or perhaps just a wavelet, there are signs of a rise in SARS-CoV-2 infections — again. A growing proportion of tests in some countries are coming back positive, and new variants, most notably a lineage called XBB.1.16, are pushing aside older strains, fuelling some of the uptick in cases. Click here for full article.

State News

Human Resources Director
Is An Intern An Employee For Workers’ Compensation Purposes?
A panel of the Workers’ Compensation Appeals Board of California recently found that a woman claiming benefits was an employee at the time of her alleged injury and that the going and coming rule did not bar her claim. Click here for full article. 

Business Insurance
Report Zeros In On Impact Of High-Cost Drugs In Comp
A handful of drugs prescribed to injured workers in California make up a “disproportionate” share of workers comp prescription payments, according to research released Monday by the California Workers’ Compensation Institute. Click here for full article.

JD Supra
CVS Settles with Massachusetts AG for $6.15 Million over Alleged Workers’ Compensation Pricing Violations
Massachusetts AG Andrea Campbell settled with CVS Pharmacy, Inc. to resolve allegations that the company billed payors of workers’ compensation claims for prescription drugs in excess of amounts permitted by Massachusetts workers’ compensation laws and regulations. Click here for full article.

Attacker’s Mental Illness Does Not Negate Assault Exception for Workers’ Compensation
An assailant’s mental illness did not alter the finding that his attack on a hotel employee was intentional and personal, the Minnesota Supreme Court held, affirming the findings of the Workers Compensation Court of Appeals (WCCA) that the claim fell within the scope of the state’s assault exception for a covered injury. Click here for full article.

Claims Journal
Report Alleges Workers’ Comp Abuse in New York Correctional Unit
A report by the New York State Inspector General alleges “egregious” abuse of a workers’ compensation loss wage benefit provision by state corrections and institution safety officers. Click here for full article.

Business Insurance
Brain-Damaged Pilot’s Comp Appeal Denied On Technical Grounds
A New York appeals court denied a workers compensation claim denial appeal from an airline pilot who says he developed brain damage as a result of toxic fume inhalation. Click here for full article.

Ohio: Spot These Warning Signs of Workers’ Compensation Fraud
There are many signs of potential workers’ compensation fraud, including when an injured Ohioan is working another job and still collecting benefits. Still, fraud can take a long time to prove. Click here for full article.

Business Insurance
Worker Entitled To Attorney Fees Incurred While Seeking Underlying Legal Fees: Court
An injured worker was entitled to additional attorneys fees for which she sought reimbursement that were incurred while litigating over an underlying petition for legal fees in her workers compensation claim, an Oregon appeals court has ruled. Click here for full article.

USA Today
Virginia School Board Says Teacher Shot By 6-Year-Old Should Get Workers’ Comp, Not $40 Million From Lawsuit
The Virginia school district where a 6-year-old boy shot a teacher earlier this year is arguing that she should receive workers compensation for her injuries instead of the $40 million she is seeking in a lawsuit. Click here for full article.

Industry News

Risk & Insurance
A Century of Workers’ Comp Data: Here’s What the NCCI Has Learned Along the Way
From its inception in 1923, the National Council on Compensation Insurance (NCCI) has provided a wealth of data and information on the workers’ comp space. Click here for full article. 

Risk & Insurance
What Are the Key Drivers of Workers’ Comp Costs? This NCCI Report Reveals the Answers
Facilities? Physicians? Medical equipment? Where are most dollars spent on workers’ compensation medical costs and what might the future hold? Answers to those questions, and predictions for what’s to come, can be found in the Medical Fee Schedules and Workers’ Compensation 2023 annual review. Click here for full article.

Business Insurance
Physician Consolidations Can Both Hurt And Help Comp: Experts
As health care system mergers become more commonplace, workers compensation experts are monitoring how physician consolidations might affect issues such as medical costs, patient access and quality of care. Click here for full article.

Business Insurance
Comp Insurers Secure Decreased Rates in 36 States in Q1: S&P
An analysis by S&P Global Market Intelligence shows that 36 states saw reduced workers compensation insurance rates in the first quarter of the year. Click here for full article.

Digital Insurance
Construction Workers Comp Claims Rose Most Among Youngest Employees, Selective Reports
Insuring for workers compensation claims is affecting the construction industry in managing risks, especially as workers comp claims increase in the sector, according to findings in Selective Insurance’s 2023 General Contractors Risk Report. Click here for full article.

Frankenmuth Insurance
5 Benefits Of Promptly Reporting Workers Compensation Claims
Workers compensation protects both employers and employees. It offers financial and medical support for team members who are injured on the jobsite. And, it helps business owners prevent lost income, lost time, and potential lawsuits. Click here for full article.

Best Workers Compensation Insurance Of May 2023
It is all too easy for mistakes to happen in the workplace. Just one accident can have significant consequences, and if you don’t have workers compensation insurance for your business, you could be found legally liable. That could cost you a lot—even your business. Click here for full article.

Human Resources Director
Can Nonparties To A Workers’ Compensation Case Be Made Witnesses?
In a recent workers’ compensation case alleging COVID-19-related illness, an employer tried to require the attendance of witnesses whose depositions were allegedly necessary to get details of the applicant’s possible exposure to the virus at home. Click here for full article.

Insurance Business
Workers Comp Insurance For Small Businesses In The US
As a business owner, you cannot predict what’s going to happen in your day-to-day operations – and sometimes, even if you have exercised due diligence and taken all the necessary precautions, workplace accidents can still occur. Click here for full article.

Insurance Business
Workers’ Comp – Why Agents Need To Pay Attention To Small Construction Firms
Small construction companies that are diversifying in response to economic pressures open themselves to more exposures, an executive told Insurance Business. Click here for full article.

Insurance Journal
Frequency Declines But Lost Time Claims Costs Rise in Restaurant Workers’ Comp: Marsh
A shortage of workers in the restaurant industry is leading to more expensive and complex claims in workers’ compensation even as claim frequency declines, according to a recent report and webinar. Click here for full article.

Is A Workplace Shooting A Workers’ Compensation Issue?
An attorney for the Newport News School Board says a teacher being shot by a student is a workers’ compensation issue. That’s in response to a lawsuit filed by first-grade teacher Abby Zwerner, who was shot by a Richneck Elementary student in class in January. Click here for full article.