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Workers comp opt-out backers ready fresh campaigns


Workers compensation opt-out programs are expected to remain a hot topic in 2016 as advocates push to expand such programs around the country.

Tennessee legislators reportedly are gearing up to reintroduce opt-out legislation in 2016 after a proposal earlier this year failed to move forward. And the Association for Responsible Alternatives to Workers' Compensation — a group promoting alternative workers comp plans — has put Tennessee on its list of “target states” to adopt a workers comp opt-out program.

John Leonard, president and CEO of Portland, Maine-based insurer Maine Employers' Mutual Insurance Co., said the opt-out legislation includes provisions unfair to injured workers.

“I anticipate there will be continued pressure on state legislators to adopt opt-out provisions because of continued pressure by select employers with a lot of political clout,” Mr. Leonard said.

OSHA penalties

The Bipartisan Budget Act of 2015 that President Obama signed in November featured a holiday surprise for safety and health professionals — a provision to boost the civil monetary penalties the U.S. Occupational Safety and Health Administration and certain other federal agencies can impose.

For example, OSHA's willful citation fines could increase to $126,500 from the current $70,000 per violation. Updated penalties are to be are finalized by Aug. 1, 2016.

“That's something that could be detrimental to organizations,” said Robert Cartwright Jr., Exton, Pennsylvania-based safety and health manager at Bridgestone Retail Operations L.L.C. and treasurer of the Risk & Insurance Management Society Inc.

Injury tracking

OSHA's controversial proposal to improve tracking of workplace injuries and illnesses is scheduled for completion in March.

“This is a nightmare for employers,” said Valerie Butera, a Washington-based member of the labor and employment practice at Epstein Becker Green P.C.

Employers and their representatives have criticized what they view as overly burdensome reporting requirements and OSHA's intent to make the information public via a searchable database, which they have argued could be misused to make them look like dangerous employers.

California safety

The California Division of Occupational Safety and Health has proposed a comprehensive workplace violence prevention standard that would require health care employers to establish, implement and maintain an effective written workplace violence prevention plan and procedures to communicate workplace violence matters to employees.

If adopted, the plan would bar employers from retaliating against employees who seek help from emergency services or law enforcement if a violent incident occurs.

On-demand economy

As on-demand companies become more popular among workers, creating new definitions of workplace accidents and injuries will become even more important in 2016, Steve Klingel, former president and CEO of the National Council on Compensation Insurance Inc., said in May.

Experts say they'll be watching to see how federal employee misclassification lawsuits against San Francisco-based ride-sharing services Uber Technologies Inc. and Lyft Inc. will play out in 2016, as well as a similar misclassification lawsuit against Inc. brought in Los Angeles Superior Court.

Medical marijuana

New Mexico's workers comp health care provider fee schedule will allow reimbursement for medical marijuana starting on Jan. 1, 2016, following the third ruling since May 2014 by the New Mexico Court of Appeals that medical marijuana is “reasonable and necessary” to treat injured workers.

It remains to be seen if other states, more than 20 of which have legalized medical marijuana, will follow suit, experts have said.

Florida challenges

Workers comp experts are waiting for decisions in several cases determining the constitutionality of Florida's workers comp law.

The Florida Supreme Court is expected to rule soon in Marvin Castellanos v. Next Door Co. et. al., which challenges the constitutionality of Florida's cap on attorney fees for workers compensation claimants.

The Florida Supreme Court in October agreed to consider Daniel Stahl v. Hialeah Hospital, which questions whether the state's workers comp system is adequate in light of 2003 reforms that eliminated permanent partial disability benefits.


Sources expect opioid utilization will further decrease in workers comp in 2016, but the cost of such drugs looks to continue rising.

Workers comp pricing

Market experts say most employers are seeing flat to slightly decreasing rates for 2016 workers comp renewals, in part due to improved comp insurer profitability.

Stephanie Goldberg and Gloria Gonzalez contributed to this report