Workers Compensation Assessments 2012: New York remains the highest in the nation.

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1 Workers Compensation Assessments 2012: New York remains the highest in the nation. By Paul Jahn, Debbie Stickle and Kristen Morris Executive Summary An assessment surcharge added to workers' compensation costs borne by New York employers remains the nation's highest, nearly five times the average imposed in other states, according to the annual study conducted by the Workers Compensation Policy Institute. New York s 18.8 percent surcharge is more than double the 8.3 percent tax in Minnesota the state with the second highest assessment. These assessments are essentially a tax on workers compensation premiums and are used by state governments to fund the system. In the last two years, New York State has increased this tax by 27.5 percent and decreased it by 6.9 percent, respectively. While states are free to choose various methods for funding their individual workers compensation systems, the most common method is to impose an assessment or tax on premiums paid by employers. A total of 32 states impose a premium tax on employers. The average assessment levied by these states is 3.8 percent.

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3 Page 3 of 8 Background: New York s High Assessment Costs and the Attempt at Reform The Institute s study marks the second time we have compared assessments on a national basis. Prior to passing the reform act of 2007, assessments stood at 18.6 percent of premium. Since then, New Yorkers were charged 15.5 percent, 13.4 percent, 14.2 percent, 18.1 percent and 20.2 percent. This year s 18.8 percent assessment is the second highest New York has seen since undertaking reform. An assessment is essentially a tax that covers the cost of administering the compensation system. The 2007 Workers Compensation Reform Act attempted to reduce the burden on employers; however, for the last three years assessments have increased. While assessments in New York decreased by 6.9 percent in 2012, nationally assessments were actually down by an average of 9.5 percent. The Reform Act of 2007 made three significant attempts at reducing this tax on employers: The second injury fund created by Section 15-8 of the Workers Compensation Law was closed to new claims effective July 1, The cost of administering this fund is the single largest component of New York assessments. The fund provides reimbursement to employers after five years of payments on any claim that was made worse by an injured worker s prior permanent disability. While accidents occurring after July 1, 2007 are not eligible for reimbursement from the fund, payments on open claims are expected to continue for many years.

4 Page 4 of 8 The law called for group self-insurers, including municipal groups, to be assessed based on premiums 1 paid by their members, rather than by indemnity payments (which are payments for wages lost due to the work-related illness or injury). Without this law, municipal groups are required to maintain a reserve for future assessments and pay for their current assessments. Insurance companies do not have to maintain a reserve and as a result, municipal self-insured groups incur a huge liability. Despite the legislation, the state continues to charge municipal group self-insurers based on indemnity payments. Municipal groups must continue to maintain this liability, while insurance companies operate under different rules. The law called for streamlining claims disputes. In theory, a more efficient litigation system will cost less. In practice, the reform was accompanied by new regulations and requirements which require as much or more oversight as the old system. These efforts have failed to reduce assessments over the long term. 1 New York State requires self-insured trusts to refer to payments received for coverage as contributions rather than premium.

5 Page 5 of 8 Context: Assessments are Becoming a Larger Part of Increasing Costs Consider the following chart. 2 Employers pay nearly 50 percent more of their compensation dollars to fund the system than they did four years ago. Now consider what happened to compensation premiums over the same four years: When costs decline, the fixed costs associated with administering the system might necessarily increase as a share of all costs. However, employers and taxpayers endured consistent increases in premiums since Employers who once paid $ in combined premium and assessments now pay $ in premium alone and $ in combined costs an increase of 29 percent over four years. Assessments have grown by just over 74 percent (from $13.40 per $100 in premium in 2008 to $23.34 today) over the same period of time. It should be noted that the New York Compensation Insurance Rating Board (NYCIRB), which completes an annual actuarial review of the adequacy of workers compensation rates in New York, recommended an 11.5 percent increase in rates for This recommendation was rejected by the state s Department of Financial Services because the recent regulatory changes implemented by the New York Workers Compensation Board may reverse the trend of rising costs in New York. We have assumed that changes 2 In this analysis, we have assumed that premium costs will increase and decrease with state-generated loss costs, and that other factors such as insurance company expenses and employer claims experience remain constant. The chart is based on $100 of premium paid in 2009 and shows both increases in premium and assessments.

6 Page 6 of 8 in total costs to employers will track closely with changes in the approved rates. However, due to the freeze announced by the Department of Financial Services, it is possible that other factors in the compensation universe (such as experience, available discounts to insured clients and actual payments made by self insurers) will increase despite the freeze in rates. If so, the upward trend in costs will continue. Components: What Employers are Funding A 9.6 percent 3 tax on premiums is assessed to fund the Special Disability Fund. This accounts for more than half of New York s very high assessment charges. The Special Disability Fund or Second Injury Fund was created as an incentive for employers to hire disabled veterans. It mitigates workers compensation benefits if an injured employee had a permanent impairment prior to filing his or her compensation claim. The 2007 Reform Act closed this fund to claims occurring after July 1, Since the fund only reimburses claims after 260 weeks of benefits are paid, it is likely that claims will continue to enter the system for the next few years, and that the cost of administering this fund will not decrease in the short term. The second largest assessment, 4.9 percent of premiums, is used to fund the Reopened Case Fund. This fund assists with claims that have been closed but later reopened. If a 3 The percentages in the next paragraphs vary from the graph since the narrative refers to the percentage of total premium charged and the pie chart represents the percentage of total assessments.

7 Page 7 of 8 closed claim reopens more than seven years after the work-related accident, and if three years have passed since the last payment or award of lost wages, this fund assumes the payments. Since long-term benefits for permanent partial disability (PPD) claims are now capped, more claims will become eligible for submission to this fund after capped benefits are paid in full. While the assessment needed for this fund declined in 2012, it is likely that the cost of this assessment will increase over the long term. The third largest assessment, 3.1 percent of premiums, is the cost that employers pay for the state to administer the Workers Compensation Board. New York s administrative costs are high, and in fact, exceed the total cost of assessments in all the comparable states, except Connecticut. Impact on New York s Taxpayers New York State s municipalities continue to find themselves caught between a rock and a hard place. Their ability to raise revenues is constrained by the two percent cap on property taxes. Similarly, an artificial freeze on workers compensation rates was implemented by the Department of Financial Services, despite the actuarial recommendation of NYCIRB. No such constraint exists on unfunded mandates and high employment costs such as retirement contributions, health insurance, and county Medicaid mandates. At the same time, workers compensation benefits regularly increase and actuarial experts are concerned that the New York system remains significantly underfunded. Ultimately, employers will absorb the full cost of the system. The additional increase of the hidden tax on workers compensation premiums, which has grown rapidly since 2008, complicates an already difficult situation and cannot be sustained over the long term. The slight relief from this burden offered this year was not enough to change the fact that New York continues to have the highest administrative costs in the country. Paul Jahn is the chief research officer for the Workers Compensation Policy Institute and has nearly 30 years of experience in the workers compensation field. Debbie Stickle is the data analyst for the Workers Compensation Policy Institute and has more than 10 years' experience as an accountant and data analyst. Kristen Morris is the research associate for the Workers Compensation Policy Institute and has more 10 years of experience in the workers compensation field.

8 Page 8 of 8 The Workers Compensation Policy Institute is a think tank that examines how the workers comp system influences local taxes and services. The Institute focuses on nonpartisan policy research, issues and ideas pertaining to workers' compensation policy in New York State, especially on how these policy issues affect public entities and New York s taxpayers. The Institute conducts surveys, analyzes data, evaluates workers' compensation issues, and thinks outside of the box to develop insights to share with municipal leaders, policy makers, journalists, and other opinion leaders. The Institute seeks to establish itself as the foremost expert in New York State on public entity workers' compensation Workers Compensation Policy Institute

9 New York Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Indiana Kentucky Maine Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Jersey Oklahoma Oregon Pennsylvania Rhode Island Tennessee Texas Utah Vermont Virginia West Virginia APPENDIX A New York Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Indiana Kentucky Maine Massachusetts Michigan Minnesota Missouri Montana Nebraska Nevada New Jersey Oklahoma Oregon Pennsylvania Rhode Island Tennessee Texas Utah Vermont Virginia West Virginia 18.80% 4.50% 3.00% 2.00% 1.73% 3.90% 0.00% 1.75% 1.30% 6.50% compensation 2.00% 0.66% 6.28% 2.54% 4.20% 0.62% 8.30% 4.00% 2.30% 1.00% 3.50% 7.75% 2.98% 6.20% 2.25% 6.75% 4.00% 1.67% 3.05% 1.75% 2.60% 5.00% % 18.00% 16.00% 14.00% 12.00% 10.00% 8.00% 6.00% 4.00% 2.00% 0.00% 2012 premium assessment surcharge by state percentage of premium assessed Page 1 of 4

10 APPENDIX A Workers Compensation Board 3.1 Reopened Case Fund 4.9 Special Disability Fund 9.6 Interdepartmental Expenses 0.9 Special Funds Conservation Committee0.3 Allocation of assessments 2012 Interdepartmental Expenses 5% Special Funds Conservation Committee 2% Workers Compensation Board 16% Special Disability Fund 51% Reopened Case Fund 26% New York 18.80% California 2.00% Florida 1.75% Texas 1.67% Pennsylvania 2.25% Michigan 0.62% 20.00% 18.00% 16.00% 14.00% 12.00% 10.00% 8.00% 6.00% 4.00% 2.00% 0.00% New York vs. 5 largest states that assess premium percentage of premium assessed Page 2 of 4

11 APPENDIX A New York 18.80% Minnesota 8.30% New Jersey 7.75% Hawaii 6.50% Rhode Island 6.75% Oregon 6.20% New York vs. 5 highest assessments 20.00% 18.00% 16.00% 14.00% 12.00% 10.00% 8.00% 6.00% 4.00% 2.00% 0.00% New York Minnesota New Jersey Hawaii Rhode Island Oregon Percentage of premium surcharge New York 18.80% Pennsylvania 2.25% Maine 2.54% Delaware 0.00% Massachussetts 4.20% New Jersey 7.75% Connecticut 3.90% Vermont 1.75% 20.00% 18.00% 16.00% 14.00% 12.00% 10.00% 8.00% 6.00% 4.00% 2.00% 0.00% New York vs. other Northeastern States percentage of premium assessed Page 3 of 4

12 APPENDIX A Page 4 of 4

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