Leading Out Loud: Workers' Comp

What trends are impacting workers' compensation the most in 2022? And is medical marijuana finally primed to become a compensable treatment for injured workers?

Which trends do you see impacting your corner of workers' compensation the most over the next year?

MICHELLE GREENE, NORTH AMERICAN RISK SERVICES: The talent shortage has been challenging for a couple of years now, and I foresee this talent gap continuing, especially in the workers’ compensation space. The workforce is aging, and there are limited jobs and fierce competition. As employers, we are faced with finding the perfect combination of benefits, flexibility, and appeal. Younger workers want work-life integration that fits their season. They want to value their work, find purpose, and spend time with their families. We will see this continue as we move through 2022, coming off remote work due to the pandemic. As employers in this industry, we must do more to educate and demonstrate the value of the customer-centric approach to workers’ compensation and the shift to employee empowerment in the workforce.

Along with the talent shortage, integrating technology will continue to be a trend in workers’ compensation. With COVID-19, our industry saw a significant technological transformation along with most other industries. I don’t see this slowing down. There is a need to continue to improve internal efficiencies to reduce process work, create better experiences for injured workers, and attract newer, more tech-savvy generations. The goal is to be strategic with technology to complement the customer-centric approach to handling claims. The industry experienced strategic technology with the adoption of trends like telemedicine. This year, communication is key with mobile apps and communication portals. We must use technology to stay efficient and provide convenience to our partners without compromising advocacy for injured workers.

JAMES J. BIRCH, ROLFES HENRY CO., LPA: A rise in overall claims costs is a reality that must be faced because of the increase in “mega” claims, a rise in overall claims costs, a talent shortage, and the continuing effects of COVID-19. While certain variables are hard to control, such as inflation and the effects of the pandemic, carriers and law firms should focus on the areas that can be managed. The first step in dealing with a talent shortage is to retain the talent that already exists within the organization. Few things in business are as costly as unexpected talent departures. Carriers and firms need to create a work environment in which employees are engaged, developed, recognized, and rewarded.

Another way that costs can be managed is to pay attention to the factors that increase attorney involvement on behalf of injured workers. Once an injured worker is represented by an attorney, the resolution of the dispute will take longer, and costs will increase. In fact, studies have shown that costs in workers’ compensation claims go up by a factor of 10 to 20 times when the injured worker obtains an attorney. There are three main factors that cause injured workers to seek an attorney: the employment relationship, lack of communication, and the worker feeling “threatened.”

Carriers should work with employers to ensure that managers are trained to deal with injured workers in a positive manner. Supervisors are often in the best position to shape workers’ initial expectations about the workers’ compensation process. Clear and timely communication regarding the status of the claim can reduce the likelihood of attorney involvement. Remarkably, just the perception by a worker that the claim has been denied—even if it has not—can lead the worker to hire an attorney. Finally, making sure that injured workers do not feel threatened by unnecessarily giving the impression that they may be laid off or that their claim is illegitimate can help stave off their seeking an attorney.

Much has been written about state medical marijuana laws, how they conflict with federal laws, and whether marijuana is reimbursable. We've generally been waiting to see how the courts will rule on the issue. Is there any sense yet of a trend, or perhaps clarity, one way or the other? 

JAMES J. BIRCH, ROLFES HENRY CO., LPA: While we are not likely to see a consensus among the states any time soon regarding reimbursement in workers’ compensation for medical marijuana, there are some trends appearing. First, it is becoming more common for states to make legislative or administrative decisions regarding the compensability of medical marijuana in workers’ compensation claims. Several states have explicitly precluded medical marijuana from being compensable treatment, while other states have proposed a maximum reimbursable amount for medical marijuana. Some states have even decided that carriers can be liable for the cost of marijuana use if it is deemed reasonable and necessary to treat a work injury.

Because most states allow for the use of medical marijuana in a range of conditions, another trend is that states are starting to treat marijuana as a medicine. In the workers’ compensation realm, it is typical for medical providers to obtain preauthorization before prescribing any drug. With marijuana, injured workers often request reimbursement retrospectively. Expect states to begin designing preauthorization processes for medical marijuana when it becomes a compensable treatment.

MICHELLE GREENE, NORTH AMERICAN RISK SERVICES: I think we will get some clarity in 2022 on the reimbursement for the cost of marijuana in workers’ compensation, especially as more states push legislation to legalize recreational and medical use. Obviously, each state has its own workers’ compensation laws and regulations, but few allow reimbursement because of the case that reimbursement is a violation of federal law. The industry needs Supreme Court guidance on this highly debated issue as marijuana is considered a beneficial form of medical treatment, and its medical use continues to grow.

Whatever the Supreme Court decides, it does not come without further change. If the Supreme Court determines reimbursement is not a violation of federal law, then I don’t think we will see such an impact with the states that already have legislation in place. However, if reimbursement is determined to violate the Controlled Substances Act, states requiring reimbursement will have to change their current laws.

If we see a hang up this year on this ruling, it could be because of the pending legislation to remove marijuana as a Schedule 1 substance. If that gets traction this year, it can change laws at the state level anyway. 

Michelle Greene is director of workers’ compensation at North American Risk Services.
mgreene@narisk.com

James J. Birch is partner at Rolfes Henry Co., LPA. jbirch@rolfeshenry.com