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A Race against the Clock to Address TRIA Issues

Failure by the Senate to reauthorize the Terrorism Risk Insurance Act (TRIA) has left unanswered questions for insurance buyers facing renewals on terrorism coverage—which some in the insurance industry are scrambling to answer.

Because TRIA renewal was recently passed by a majority in the House of Representatives, the industry was optimistic about its renewal before its expiration. But at this point, the Dec. 31 deadline looms large.

AIR-Worldwide explained in an email notice that commercial insurers will no longer be required to offer terrorism coverage beginning Jan. 1. Without a federal backstop, they said, insurers may seek to limit underwriting for high concentrations of risks in major cities. This could cause terrorism insurance coverage to become unavailable or unaffordable.

AIR continued:

Insurers that do continue to offer commercial terrorism insurance would likely be required to maintain higher capital standards in order to avoid negative rating implications. Where coverage for terrorism-related events is still available, prices for this coverage will increase.

In the absence of TRIA, the workers’ compensation insurance market would be particularly vulnerable to terror attack losses. State workers compensation statutes offer insurers less flexibility to control terrorism risk through modifications such as policy limits or coverage exclusions. With or without TRIA, it is mandatory for U.S. employers to provide workers’ compensation coverage. If coverage is not available, employers may be forced to purchase insurance in the residual markets or self-insure.

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This could result in large amounts of risk being transferred to the residual market in a few states.

Allowing TRIA to expire would have widespread implications, not only for the insurance industry, but also for the broader economy. Construction and real estate business sectors may be unable to obtain financing without adequate terrorism coverage in place. If insurers limit underwriting following an expiration of TRIA, businesses with high concentrations of employees could have difficulty obtaining coverage for workers’ compensation, including higher education institutions, hotels, airports, hospitals, and financial services, among many others.

In an advisory to its clients, Willis addressed considerations and offered preliminary guidance.

The broker noted several scenarios, depending on how a company has organized its terrorism risk transfer program:

• For terrorism coverage that is currently embedded in all-risk property, liability and workers compensation programs there are three potential scenarios:

1. If there are no sunset clauses–contract provisions which may allow the insurer to exclude coverage for terrorism in the event that TRIA is not reauthorized–or reservation of rights clauses related to TRIA expiration, the program will run until its natural expiration. Market disruption may impact renewal pricing if no action has been taken on TRIA.

2. If there is a TRIA-related sunset clause, the terrorism coverage will expire after Dec.

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31. Policyholders should assess the need for insurance coverage and seek stand-alone coverage or a sunset clause extension.

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3. If there is a reservation of rights which allows carriers to modify the terrorism coverage as a result of TRIA expiration, a coverage extension should be negotiated if possible, and stand-alone alternatives should be sought.

Stand-alone Terrorism coverage – In this case, Willis said it does not anticipate immediate changes due to TRIA’s expiration. This is because most stand-alone placements do not have sunset clauses or reservation of rights endorsements related to TRIA expiration. While there may be market disruption to consider at renewal, for the time being, TRIA is a non-issue for these placements.

Captives – In all cases where it places terrorism reinsurance behind a captive program, Willis said the reinsurance arrangement this year has been organized to convert from quota share reinsurance of the captive—when a primary insurer and reinsurer establish a fixed percentage for sharing amounts of insurance, premiums and losses—to primary reinsurance of the captive (in anticipation of TRIA’s expiration). Reinsurance coverage agreements should be read carefully to determine the new limit. The new primary limits are likely to approximate their existing quota share capacity. Willis recommends that any capacity that does convert should remain as reinsurance of the captive. This would maintain captive involvement, should TRIA be reauthorized in early 2015, and avoid any direct self-procurement or frictional costs during the transition. A program may also include excess capacity which, in many cases, should drop down to provide excess over revised captive limits, Willis advised.

Zero Tolerance Needed to Stop Construction Injuries

Photo by Caroline McDonald

NASHVILLE–For David B. Walls, president and chief executive officer of Austin Industries, construction safety became a lifelong mission the day he had to answer to the father of a worker killed in an accident.

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“Why did you kill my son?” he asked Walls over and over.

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“Those words haunted me,” Walls said during his keynote address at the IRMI Construction Risk Conference here. “Nothing I could do would bring him back.” Tragic events such as this are “defining moments,” he said.

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“But we need to get passionate about safety without experiencing a fatality.” Walls explained that the construction industry has a long way to go, with the worst record for fatalities, according to the U.S. Bureau of Labor Statistics.

Organizations, he added, should focus on the physical work environment and the company culture. They also need to realize that a world-class safety program leads to higher quality throughout the organization.

One prerequisite is strong leadership. A good leader takes the time to really listen to people, admits to making mistakes and shares recognition for a project well done with employees, he said. This person also should be consistent in addressing safety issues and assertive enough to stop workers from continuing on a job if unsafe conditions are evident.

An effective leader needs to be accountable and hold the entire team accountable when it comes to safety. For example, workers need to know that breaking certain safety rules could cost them their job. After all, he said, “you have a moral obligation to get employees home to their families each night in a safe condition.”

Walls recommended frequent discussions of company successes as well as failures. Weekly dialogues of near-misses, for example, can raise awareness about how they could have been prevented and encourage safe behaviors. Posting the safety records of contractors “makes them improve quickly,” he said. Walls advocates for both classroom and thorough on-the-job training.

Safety managers and employees also need to focus on what they might be overlooking, the “sins of omission.” For example, he said, “what are you not doing that you could be doing to save lives?” The litmus test, he added, would be for a manager to ask him or herself, “Would I let my child work here?”

Asked by an audience member how to get the necessary buy-in from a CEO, Walls advised, “Get the CEO to walk the job and see the hazards. Go to the job site and see where someone fell and where the accident took place. Two to three people a day are dying in this industry and it is unacceptable.”

Handling the Pain: Getting People Back to Work

Photo ©Donscarpo

Employers nationwide are always concerned about absenteeism. When a worker doesn’t show up, the loss of productivity and profits can be staggering, making the worker’s problems a serious issue for the employer.

If the employee doesn’t stay home, the result doesn’t fall under ‘absenteeism’ but it still creates a negative impact.

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Productivity loss due to poorly performing employees who try to “work through” recurrent pain places employers in a difficult situation. Lost productivity—like time itself—is a non-renewable resource. No one wins when employees are unable to work.

The reverberations are felt on many levels. The worker may continue to feel pain. The employer must deal with the issue. Colleagues and associates often need to pick up the slack. Customers may be affected.

Who else? The employee benefits managers and the company’s workers compensation claims statistics. The higher the number and value of claims, the greater the drag on the company’s fiscal performance.

Pain emanating from chronic or lingering injuries needs professional involvement. The good news is that by treating the pain comprehensively or applying interventional pain techniques, nagging injuries or pain can be remedied or reduced sufficiently to increase the productivity of suffering employees.

On the Job

For many sufferers, relief through medication, physical therapy or other ‘traditional’ remedies is temporary, but pain and lost productivity continue.

Interventional pain care and management is a specialty where the physician diagnoses and treats pain at the source. According to the American Society of Interventional Pain Physicians (ASIPP), “Interventional pain management is defined as the discipline of medicine devoted to the diagnosis and treatment of pain-related disorders, principally with the application of interventional techniques in managing subacute, chronic, persistent, and intractable pain, independently or in conjunction with other modalities of treatment.” Employers should encourage workers to learn more on how interventional pain management can reduce the duration and severity of pain, help them return to work faster and enjoy an overall improved quality of life.

Interventional pain physicians employ a number of techniques and procedures. Among the many successful solutions are epidural steroid, trigger point and botox injections; sympathetic plexus blocks; spinal cord stimulation; radiofrequency ablation, percutaneous intradiscal procedures, and implantable intrathecal drug delivery systems.

Pain reduction or eradication is the desired outcome, but diagnosis plots the path to potential recovery. Procedures like fluoroscopically-guided injections using local anesthetic can provide both relief and diagnostic value. Fluoroscopy is an imaging technique that incorporates X-rays to produce real time images of the internal anatomy. This diagnostic tool provides more accurate delivery of medication and important information to the physician on the origination of the pain, and thus the doctor can offer more effective treatment. In a healthcare climate that seeks to reduce unnecessary expenditures, like tests or procedures, such interventional techniques can reduce or eliminate ineffective, unnecessary or even more invasive options, up to and including surgery.

Injuries, chronic pain and absenteeism, plus the urgency to get employees back to work affect more than the bottom line. From on-the-job injuries, like lifting, strains and slip-and-fall injuries, to the resulting drain on human capital and performance, organizations are in need of solutions.

The Call of the Benefits Manager

The appropriate first call made by a human resources director or employee benefits manager is to the general practitioner or claims adjuster to document the mishap. Yet, if pain persists and lengthens an employee’s out-of-work status, quite possibly exacerbating a deteriorating psychological status, resolution may be difficult to achieve.

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The advice and services of an interventional pain management specialist are beneficial and can often be even more effective when combined with physical therapy or other home programs. A patient treated early often begins to experience expedient and lasting relief. The employee is not only more comfortable, but also returns to work sooner. This increases organizational productivity and, equally as important, reduces the time of a workers compensation claim.

Interventional pain care and management is growing in favor and its beneficiaries run the demographic gamut. Depending on the injury or source of lingering pain, employees from millennials to baby boomers approaching retirement are ideal candidates for many procedures.

This is especially important as many workers are putting off retirement into their late 60s and 70s. As those older patients more frequently suffer degenerative problems that may create or complicate injuries, interventional treatments deliver an ideal remedy, especially when performed in concert with physical or occupational therapy.

Using an Interventional Pain Specialist

The engagement of an interventional pain specialist presents a unique scenario. Benefit managers, human resource professionals and case workers have become more aware of interventional pain care over time.

Who should get the referral? The American Board of Anesthesiology has a certification process for interventionalists, as well as an additional sub-specialty certification in pain management. The American Board of Pain Medicine (ABPM) also certifies qualifying members. A Fellow of Interventional Pain Practice (FIPP) has earned certification by the World Institute of Pain, and the American Board of Interventional Pain Physicians (ABIPP) has a certification process as well.

The American economy loses upward of billion annually, due to lost productivity stemming from health issues and missed work, according to a 2013 report from Gallup-Healthways.

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Issues include chronic health problems such as pain, obesity, high cholesterol, blood pressure, cancer, asthma and depression. Even issues like poorly designed ergonomics in the workplace can result in significant pain and absenteeism. About one in three (34%) of all work missed stems from ergonomic-related issues, according to the U.S. Bureau of Labor Statistics.

For employee benefits managers who know how to help employees tackle pain and return to work, absenteeism and lost productivity can be reduced and billions of dollars can be saved all year long.

The End of the Florida Workers Compensation System?

Workers Compensation Florida

A recent development in Florida has jumped that state to the front of the age old workers comp debate between employers and their workers. On August 13, Miami-Dade Circuit Judge Jorge Cueto declared the state’s workers’ compensation exclusive remedy statute (440.01 et seq.) unconstitutional on the grounds that the benefits given to injured employees by the law no longer provide a fair exchange for the surrender of an employee’s right to sue the employer for negligence damages. “The benefits in the act have been so decimated that it no longer provides a reasonable alternative,” said Judge Cueto.

For years, workers rights attorneys in Florida have been asking judges to strike down the Florida workers compensation law. They argue that successive state legislatures have continually eroded the benefits that injured employees receive under the workers comp system. Employers and some legislators counter that high workers comp insurance premiums have those changes necessary in order to stabilize the state’s economy.

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For now, Judge Cueto’s ruling will not impact areas outside of Miami-Dade’s judicial circuit. Florida Attorney General Pam Bondi, who has received criticism for not directly intervening in the Miami-Dade case on behalf of the state, has filed an appeal to Judge Cueto for a rehearing. If that appeal is denied, as seems likely, then the case could eventually make its way to the Florida Supreme Court. Should the Supreme Court uphold Judge Cueto’s ruling then workers throughout the state will be able to settle their workers compensation claims, then file a civil claim to recover additional benefits.

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This case will join other cases challenging parts of Florida’s workers comp statutes. The state Supreme Court is considering an appeal from an injured firefighter who was left with no income after his temporary wage-loss benefits expired.

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