Tuesday, January 2, 2018

Roofing Salespeople--the Disputes Continue

One of my first emails of the New Year involves proper classification of salespeople/estimators for a roofing company. In the past, it was common for such workers to be assigned to the outside sales class, Code 8742, at a relatively inexpensive rate. But in recent years, insurance companies have increasingly insisted that, because such workers must, at least occasionally, go up on a roof to inspect it, their payroll belongs in the roofing code (at a vastly higher rate.)

It's a tricky issue, complicated by some unique rules that apply. One might think that, as long as the roofing company kept track of specific time such workers spent up on the roofs, then only a small percentage of the payroll would go into the more expensive class. But Code 8742 is non-premium divisible--that means it's an all or nothing classification, and the moment a workers spends any time whatsoever doing something that doesn't qualify for 8742, all of the payroll must be placed into the more expensive class.

This is different than the rules that usually apply to construction type classifications, which usually allow for such premium division (as long as the specific hours spent in each are recorded properly.)

Insurers often don't explain these find points very well when the coverage begins, so this can become a sore point after an audit is done and the insurer moves payroll out of the outside sales class and into the roofing class (at a substantial increase in premium.)

Rules on this can vary. California rules developed by WCIRB specifically say outside sales people for roofing companies belong in Code 8742, but the NCCI rules don't have such specific language.

Certainly, workers who are routinely going up on roofs represent a work exposure that would appear to be greater than the typical outside salesperson. But with advances in technology, not all salespeople/estimators have to physically go up on a roof.

With satellite photos, drones, and sophisticated estimating software, it is possible for roofing salespeople/estimators to do their work without going up on a roof. In such cases, the application of the roofing classification would not be warranted--but resolving that point may take some time and effort with a stubborn insurer.

In cases where estimators must still occasionally physically go up on a roof, perhaps a more reasonable accommodation would be to change the rules so that premium would be divisible between occasional roofing exposure and outside sales. But in our current age of Workers Comp deregulation, I don't get the impression that the insurance industry is in a hurry to address this problem.

Monday, December 18, 2017

Something Rotten in Florida--Maiming Workers For Profit

This article reveals the continuing dark side of Workers Comp and how some workers still, in this 21st Century, get maimed at work and then receive no benefits, no medical coverage, but are just discarded or worse by employers who, I regret to admit, are members of the human race.

This scandal involves one recurring scam some employers like to use--exploiting "illegal" workers to do dangerous work, and then (and only then) getting serious about the dangers of "illegal" workers.

So when these workers slice off fingers or have a nail ricochet into their eye, these employers and their insurance companies suddenly discover that these workers are using false documents, and thus can be charged with a felony and dismissed.

No penalty for the employers who hired these people in the first place. But Florida has a state agency dedicated to punishing these workers, naturally. When in doubt, always punish the victims, apparently. According to the new article:

The director of Florida’s Division of Investigative and Forensic Services, which investigates workers found using false identity information, said he wasn’t aware that employee leasing companies and their insurers reported most of the injured immigrants in recent years.
“That’s not something I’m aware of and it would be unfortunate if that’s truly what’s taking place, so maybe that’s something that would need to be looked into,” director Simon Blank said.
Blank said his staff must enforce the law.
“Although it’s unfortunate and we feel for those people, the bottom line is they committed a crime, and that crime is putting other innocent people at risk,” he said.

Pardon me while I throw up in my mouth.

Thursday, November 2, 2017

Thirty Years and Just Getting Started

I started Advanced Insurance Management in November of 1987. So it's now thirty years since that momentous decision, and we're still going strong. I owe a lot of thanks to a lot of people who made this possible. There's that very first client, Scheck Mechanical, and the owner of that company, Rich Scheck, who were there at the very beginning.

There were other early clients as well, like K&S Sprinkler, a local company that I still pass almost every evening on my drive home. And the fine folks at Caterpillar, who hired me to be part of an ongoing consulting project for their manufacturing suppliers back in those early days deserve a salute as well, because that project made a big difference in those early days.

Thirty years later, we're busier than ever. My younger son was six years old when I began A.I.M. and now he's been my business partner for fourteen years. How time flies when you're having fun!

Speaking of my son and biz partner, he updated me today about a case he's handling, where he's obtained premium refunds totaling about $170,000 for a crane manufacturer in Kansas. And of course, in his free time, he continues his law school education, so that in another year or so A.I.M. will be able to add a unique new component to our services: an attorney with unmatched training and experience in Workers Compensation premium reviews.

As I've said elsewhere, the best is yet to come.

Tuesday, October 3, 2017

Interesting Call From A Small California Contractor

We got an interesting call from....oh, you read the headline. So, anyway, this gentleman called because he's just had a Shock Audit, even though he didn't have any employees. But one of his clients required him to get a minimum premium policy so he did, and now he has a bill for $14,000 that has already been turned over to some collections law firm based out in the Chicago suburbs.

As you may have anticipated, this small businessman used independent contractors over the course of the policy. And the nice person at the collections law firm explained that the rules about that are uniform in all states so that's why he has this $14,000 bill.

Except the nice person at the collections law firm lied. Or didn't know what he or she was talking about, perhaps. Because the rules are not uniform across all states and in particular are not uniform in California (when compared to other states).

Workers Compensation is very much a state-by-state matter and the rules about premium can vary from one state to another, sometimes in only small ways but sometimes in big ways. Most states do use the NCCI system of classifications and premium rules, but some states don't. And the biggest state that doesn't use the NCCI system is California.

So the bottom line is that we're pretty confident we can at least reduce that $14,000 bill significantly for that small California contractor. But it's a little galling that people that should be giving reliable information are instead providing information that is wrong, and wrong in a self-serving way.

I guess that probably sums up exactly why we're still in business, thirty years after I started Advanced Insurance Management. If the insurance system gave reliable and accurate information to businesses about Workers Comp insurance and audits and classifications, and didn't make outrageous and self-serving errors in applying the rules that they themselves write, there wouldn't be much for us to do around here. Our foosball table would see a lot more use, I guess.

Instead, it feels like the insurance industry is working overtime to create work for us. We're certainly busier than we ever were when I started this little outfit. I literally get a phone call or an email every single day (sometimes on the weekend, too) from an employer somewhere in the U.S. who's been victimized by a Shock Audit on their Workers Comp insurance. So I guess it's a good thing I like my work.

Tuesday, August 1, 2017

California Changes The Rules About Executive Officers and Workers Comp

California, land of startups and economic unicorns has changed the rules about executive officers, partners, and LLC members, among others, who get automatically included for Workers Comp purposes. This means that a powerful potential has been created for some companies to get into hot water about failing to provide Workers Comp insurance when the (revised) law says they must.

All California employers must provide Workers’ Comp benefits (which usually means having to buy insurance) once the business has one or more "employees"

What sometimes trips up some employers is, "who's an employee, for Workers Comp purposes?"

In California, the definition includes “every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed.” Now the list has been expanded to include corporate officers, directors and working partners, by narrowing the definition of an excluded employee and requiring that a written waiver (under penalty of perjury) be filed in order to opt out.

The new law excludes an officer or member of the board of directors of a private or quasi-public corporation from the definition of an employee only if he or she owns at least 15% of the corporation’s issued and outstanding stock and executes a written waiver of rights stating under penalty of perjury that the individual is a qualified officer or director. 

It similarly excludes a general partner of a partnership or a managing member of a Limited Liability Company who executes a similar waiver. A waiver of coverage is effective upon the date of receipt and acceptance by the insurer and remains effective until it is withdrawn in writing. 

So it's really important that California employers double check their current programs to make sure they are covering everyone the new law requires to be covered, and to file any waivers that need to be filed to exclude those they wish to exclude (and who qualify under the new law.)

Thursday, July 20, 2017

Lights Still On At Illinois Insurance Department, But No One's Home For Small Biz Anymore

Some years ago, I wrote a piece that was headlined "Will The Last Person At The Illinois Department of Insurance Please Turn Out The Lights", that was focused on the diminishing institutional expertise and commitment at the Illinois Department of Insurance when it comes to employers who want to dispute their Workers Compensation insurance charges.

I have kind of a special perspective on that subject, because for more than thirty years I've been helping Illinois employers (and especially small business employers) dispute inflated Workers Compensation insurance charges. And over the course of all those years, and all those disputes, I developed something of a working relationship with the Illinois Department of Insurance. I found that the department would generally try to find a way to informally encourage insurance companies to do the right thing, when I brought to the department's attention situations where it was pretty evident that insurance companies had broken their own rules and as a result overcharged an employer for Workers Comp insurance.

It was an informal process, but that meant that employers could avail themselves of it, with a little assistance, without turning it into an expensive legal case. And while I do plenty of work as an expert witness in legal cases where there is a dispute over Workers Comp insurance premiums, those litigations tend to be, of necessity, fought by larger employers with the financial resources to fight large insurers in court.

For small business, it was the Department of Insurance or nothing.

And now, based on the clear input I'm getting from higher-ups at the Illinois Department of Insurance, it's going to be pretty much nothing, because nothing is essentially what the department is now willing to do when small employers dispute Workers Comp premiums.

Let me give you an example. Illinois has had a unique statute that went into effect January 1, 1984. I know this statute well because I consulted on the language of the statute when it was being written. That statute, section 462.b of the ILCS says that if an insurance company overcharges an employer because of an error in Workers Comp classification, payroll, or other rating factors, the insurer has to refund that overcharge.

Since the law went into effect January 1, 1984 it kind of was self-evident what the effective date was. This week I got an email from an Assistant Deputy Director of the IL DOI that the department could not communicate to an insurer what the effective date of that statute might be. This insurer had asked if the department could clarify if the statute meant that it said, that if an insurer had overcharged in the past it had to refund that overcharge, even if discovered years later.

In the past, the department made it clear that this was so. I have a copy of sworn testimony by department representatives that this was so.

But no longer.

The Illinois Department of Insurance, which in theory is responsible for enforcing insurance regulations and statutes, apparently feels it cannot really provide guidance to insurance companies regarding insurance regulations that protect employers from abusive practices by insurance companies.

About a month ago, I provided testimony before the Illinois House of Representatives about how non-existent Workers Compensation insurance rate regulation was in our state. And I shared a recent case of ours, where we were able to negotiate a refund of around $100,000 for a small business in Broadview, Illinois, because their past insurance companies had mistakenly used the wrong classification and rates to compute their premiums.

Part of the reason we could negotiate those refunds was that the insurers knew we could go to the Department of Insurance if they did not make a good faith review of the facts.

But the Department of Insurance in Illinois, like regulators in many states, have lost many of their experienced people--and in particular, the Illinois Department of Insurance has lost their personnel who were experienced with these kinds of Workers Compensation premium disputes.

And so small business in Illinois are now losing the benefits that the department provided, limited though they always were, to dispute Workers Comp insurance premiums.

There are some more formal appeal processes still remaining, of course. There is a Workers Comp Appeal Board run as a joint venture between the insurance department and the NCCI. But that board is limited as to the issues it can accept for review, and limited regarding how far back in time it will review premiums.

There is also a more formal hearing process at the Illinois Department, a process that is a legal hearing (and thus, no employer in his or her right mind should go there without having retained an attorney, in addition to retaining an expert like me) so these hearings are an expensive proposition from the get-go. I have had more than one small business client give up on a legitimate dispute because the cost of retaining legal counsel was more than they could justify. And so they reluctantly closed their doors, because an insurance company was seeking excessive and improper premiums and they couldn't afford to fight it at a legal hearing--and without Workers Comp insurance they couldn't legally stay in business.)

So the lights are on at the Illinois Department of Insurance. But if you're a small business who's being overcharged by your Workers Comp insurance company, there's nobody home there anymore.

Tuesday, June 13, 2017

A Tale of Two Cases

Perhaps you can also file this under "American Horror Story". Let me tell you about two cases of mine. The names have been changed because they are both still ongoing cases, but I can share enough detail to explain my point without violating any confidentiality.

In one case, the employer has been criminally charged because he put down the wrong classification code on the application and the insurance company didn't catch it for several years. By the time the insurance company got around to figuring out that they didn't think the policyholder's expertise in classifications was very good, the insured company had gone out of business and the insurer couldn't get the money they felt they were owed.

So they got their friendly neighborhood prosecutor to file criminal charges. And now, as part of the negotiations to try and avoid a criminal trial, the insurer has suggested "restitution"--that is, pay them their money and they will arrange to have the criminal prosecution dropped.

My second case involves a major property/casualty insurance company that has just billed a policyholder for audited premium in excess of $700,000--from a policy that had an original premium of only around $1,500.00.  Yes, this employer bought a policy that he thought was going to cost $1,500--but the insurance company has retroactively sent a bill for more than $700,000.00 for that same policy.

And the galling thing is that this $700,000 bill is based on the insurance company ignoring the well-established rules that govern premiums in the particular state involved.

When this problem was brought to the attention to state insurance regulators, and NCCI, they all agreed it seemed to be wrong--and then collectively washed their hands and said there was nothing they could do. The policyholder should go to court, they helpfully suggested.

So, when the insurance industry feels an employer has based premium on a faulty or incorrect understanding of their arcane rules, and then can't pay what the insurance company feels is the proper premium, they get criminal charges filed.

But when an insurance company comes up with an outrageously inflated premium bill that is based on a clear and flagrant disregard for the rules that apply in a particular state, though, the insurance regulatory system shrugs and suggests the policyholder consult an attorney.

Does anyone else feel like something is wrong here?