In December, Florida Insurance Consumer Advocate Sean Shaw convened and facilitated a discussion on the potential creation of an advisory board to help improve the state's workers' compensation process. Although representatives of the various stakeholder groups — carrier, legal, health care, governmental, and regulatory — attended, agreement on the need for such a board was far from unanimous. Rehabilitation and health-care companies and claimant's counsel expressed the most interest in creating the council; support from other quarters was muted, at best.
"In my view, the main question on the formation of a workers' compensation advisory board is defining its mission and assuring its effectiveness," said Attorney Rich Fidei, who heads the regulatory division of Colodny, Fass, Talenfeld, Karlinsky & Abate. "Workers' compensation was substantially reformed by the 2003 Florida Legislature and in a 2009 legislative correction of the Florida Supreme Court's decision on attorneys' fees in the Emma Murray v. Mariner Health case. Many believe that these reforms have dramatically improved Florida's workers' compensation platform and have served as a model for meaningful, positive change. In this context, are there issues significant enough, and will the advisory board have enough influence, to warrant the expenditure of valuable resources [to create the board]? If so, the advisory board would be a good forum for open dialogue on the issues."
The Florida United Business Association (FUBA) sent a representative to the meeting, but despite participating in a previous statutorily created advisory panel, the organization is not currently in favor of a new one. "At this time, FUBA does not believe the creation of a new panel or advisory group is warranted or needed," Executive Director Tom Stahl said.
Such boards are not commonplace. National Council on Compensation Insurance (NCCI) State Relations Executive Lori Lovgren reported that an NCCI informal internal survey identified only 17 similar boards in other states. In more than half of these boards, membership is split between business and labor. Less than half also include other stakeholders, such as medical providers.
According to Lovgren, "The purposes of these boards may be limited at one extreme to advising regulatory authorities or legislatures on workers' compensation matters, or at the other extreme, they may be tasked with developing workers' compensation legislation or reviewing/endorsing workers' compensation legislation before it moves on to the legislature."
As to possible participation by her company, Lovgren noted that, "NCCI only occasionally holds a seat on a board. It is much more common that NCCI would serve as a resource to the board."
Given the mixed opinions, where does Shaw go from here? In a Q&A with Florida Underwriter, Shaw talked about the advisory board idea and the workers' compensation market in general.
Q. What was the impetus for considering such an advisory board now?
A. I had been hearing anecdotal evidence from representatives of injured workers that the current system was not working for them. Then I spoke with a provider who voiced concerns from their perspective and he suggested the creation of an advisory board. Our office, after seeing the value of open dialogue among participants in the homeowner insurance issue, felt that there would be merit in bringing the parties together to discuss their interest in and their thoughts on the value of convening an advisory board to address workers' compensation issues.
Q. The Dec. 3 meeting agenda appeared to focus on medical and claim issues only. Why?
A. The issues cited on the agenda were those issues that my office identified as potential areas needing discussion from a review of the Division of Workers' Compensation's 2009 annual report. We examined, in particular, the types of issues addressed by the division's Ombudsman & Helpline, as well as the reasons cited that claims were totally or partially denied. It was my belief that these issues are the ones that affect the injured worker and would help me determine what negatives exist that are facing the injured worker.
Q. Advisory boards often suffer from a perception of being ineffective or non-relevant. Many considered the oversight board authorized by the 1993 Florida Legislature ineffective, partly because a supermajority vote was required for approval of recommendations. What would you do to make this board more than a paper tiger?
A. That is a worthwhile question and one that does concern me. It is not worth everyone's time and investment if the group serves no purpose. I have instructed my staff to study the information regarding other state's advisory boards to determine what works, what doesn't work, and if possible, why. I am also considering, at the suggestion of a participant, that the advisory board be one simply as an aid to the Insurance Consumer Advocate in my review of issues and potential solutions.
However, that being said, I would like to comment that one problem that appears to drive many of the concerns that insureds and injured workers have voiced deals directly with the element of good communication, and anything that will foster open communication and improved understanding from all stakeholders, I believe has value.
Q. The health-care people at the meeting for the most part seemed critical of the current system. Others were of the opinion that the 2003 reforms may need tweaking, but not a major overhaul. What is your opinion of the current system and the effectiveness of the 2003 reform package?
A. After listening to the discussion of the participants in the meeting, I did walk away with the belief that the system is not working perfectly and could use some tweaking. However, I am not at a point of recommending what those proposed revisions should be. Clearly, the effectiveness of the 2003 reform package as it related to availability and affordability of coverage has been successful. What is not as clear to me is if the reform has truly provided the "self-executing" system it was designed to be, nor is it clear that the intent of the reform "to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment" is being met.
Q. Does your office plan to introduce any workers' compensation legislation during the 2010 session?
A. At this time, we are considering legislation relating to the loss cost rating system. However, we are not considering any additional legislation for the 2010 session
Q. What is your next step?
A. I will review the information provided by NCCI related to other state advisory boards and evaluate what I believe the value of an advisory board can be — whether it is one that provides input solely to the Insurance Consumer Advocate or one that would need legislative creation. G
Editor's Note: On Dec. 24, Shaw released a letter stating he has approved the preliminary formation of an advisory group. The first meeting is expected to take place prior to the 2010 regular legislative session.
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