Yesterday the S.C. Consumer Advocate, the South
Carolina Small Business Chamber of Commerce and the National Council of
Compensation Insurance (NCCI) reached a settlement on a proposed 7.3% average increase
sought by the workers’ compensation insurance industry.
The settlement reduces the NCCI proposed hike by
58%. Starting in September 1, workers’
compensation carriers will be able to adjust their premiums using only a 3%
average increase in loss costs. (See
WorkCompCentral.com story below.)
“Yesterday was a great day for the small businesses
of South Carolina,” said Frank Knapp, Jr., president and CEO of the South
Carolina Small Business Chamber of Commerce (SCSBCC). Since 2005 the SCSBCC had intervened in
workers’ compensation cases numerous times always with great success. This 58% decrease in a proposed hike matches
a similar result in May
of 2008.
The settlement also included an agreement by NCCI to
withdraw an appeal of a Court
of Appeal ruling earlier this year that required all NCCI proposed workers’
comp adjustments to be subject to a hearing before the Administrative Law
Court. Until that ruling, the law was
being interpreted as not allowing the Consumer Advocate to contest an average
decrease in loss cost even if the data would have called for more of a drop.
“Small businesses now can be assured that any overall
changes in workers’ compensation rates will be based on an objective vetting of
premiums paid and carrier payments made to workers and healthcare providers,”
said Knapp. “We will no longer have to
trust the industry’s math because we were locked out of the filing process.”
Knapp gave credit to the partnership between the
SCSBCC and the State Consumer Advocate, Elliott Elam, for the continued success
in protecting small businesses from unwarranted workers’ comp rate
increases. “Thanks to the Injured
Workers Advocates for providing the legal services that enables the Small
Business Chamber to intervene in these cases.
Bill Smith (Chappell, Smith & Arden) and Kevin Holmes (Steinberg Law
Firm) have worked very hard without compensation on these cases over the years
on behalf of the state’s small businesses and we are very appreciative.”
---------------------------------------------------------------------------------------------
WorkCompCentral.com
August 29, 2012
NCCI
Reaches Settlement in Latest Court Fight over Loss Costs
By Michael Whiteley, Eastern Bureau Chief
South Carolina Consumer Advocate Elliott Elam Jr. and a group of small
businesses reached a settlement in the latest in a series of administrative
court battles with the National Council on Compensation Insurance (NCCI) on
Monday and agreed to a 3% increase in loss costs, effective Sept. 1.
Elam and the South Carolina Small Business Chamber of Commerce said the
agreement, approved by Chief Administrative Law Judge Ralph K. Anderson III on
Monday, resolves a three-year legal challenge over loss-cost notice
requirements.
The agreement cuts NCCI's pending loss-cost request by more than half. Last
February, NCCI had filed for a 7.3% loss-cost increase to take effect on July
1.
Elam said Acting State Insurance Director Gwendolyn Fuller McGriff also
approved the settlement. The South Carolina Insurance Department did not return
telephone calls on Tuesday.
As part of the settlement, NCCI also agreed to drop its appeal of a Feb. 22,
2012, ruling by the South Carolina Court of Appeals that required the Insurance
Department to post notice of all loss-cost changes, regardless of whether
overall averages increase or decrease.
Both NCCI and McGriff argued state law requires notice only when the average
for loss costs covering the state's 700 job classification codes goes up.
Elam argued that, without official notice, he had no standing to challenge
loss-cost changes and ask the state's Administrative Law Court to force NCCI to
divulge the details of its filings.
"This brings certain stability back to the market, and now we can start
moving forward," Elam said on Tuesday. "With every loss-cost filing,
regardless of whether the overall average increased, somebody was getting a
rate increase."
Small Business Chamber President and Chief Executive Officer Frank Knapp Jr.
said the settlement makes it clear that Elam and his successors can challenge
loss-cost filings even when overall averages decline.
"These filings are a little bit math and a little bit art," Knapp
said. "We're quite pleased that the proposed rate increase has dropped by
more than 50%."
The South Carolina Consumer Advocate's Office has filed a series of challenges
to NCCI's filings dating back to 2001. Elam said South Carolina law does not
provide for rate hearings within the Insurance Department.
NCCI's call to boost loss costs by 32.9% in 2005 led to more than a year of
legal wrangling in the state administrative law court. Former Chief Judge
Marvin Kittrell reduced the increase to 18.4%, effective Dec. 1, 2006.
NCCI filed for another 23.7% increase in April 2007, but reached a settlement
with Elam and the Small Business Chamber in May 2008 that limited the overall
increase to 9.8%.
The double-digit increases prompted a series of workers' compensation reforms
approved by the South Carolina Legislature in June 2007.
Following the reforms, NCCI obtained Insurance Department approval to cut loss
costs by 0.3% in 2009 and by another 9.8% in 2010.
But Elam contested both filings, arguing that the South Carolina Insurance
Department provided no notice of the filings and did not make the data
available. Elam lost the challenge to the notice requirement in state
administrative court and took the case to the state Court of Appeals.
The appeals court ruled on Feb. 22, 2012, that South Carolina employers have a
right to know when loss costs change, because it can affect their individual
premiums.
"Under the DOI's interpretation, an insured might get notice of the filing
one year and might not get notice the following year, even though that
insurer's loss costs increased in both years," the appellate court ruled.
"Such an arbitrary result cannot have been intended."
Both McGriff and NCCI filed writs of certiorari asking the South Carolina
Supreme Court to intervene. The petitions were pending when the parties reached
the settlement on Tuesday.
The settlement calls for:
The state to approve an increase in loss costs averaging 3% in the voluntary
market and to reduce loss costs by an average of 3.1% for "F"
classifications – which apply to workers covered by the U.S. Longshore and
Harbor Workers Act.
The Insurance Department and NCCI to withdraw their petitions for certiorari
within 10 days of the settlement's approval.
Elam to withdraw pending challenges of previous loss-cost changes.
The parties to agree that NCCI's filings for 2009, 2010 and 2011 were not
"excessive, inadequate or unfairly discriminatory."
NCCI State Relations Executive Amy Quinn could not be reached for comment on
Tuesday.
In its annual state advisory forums, NCCI reported that, prior to the
settlement, South Carolina would have experienced the third largest loss-cost
increase in the Southeastern region. Mississippi regulators approved a 9.9%
loss-cost increase that took effect on March 1.
Florida Insurance Commissioner Kevin McCarty approved an 8.9% rate increase,
effective Jan. 1, 2012, and is considering NCCI's call to increase rates by
another 6.1% next January.
NCCI reported that 2012 loss costs or rates increased in seven states in the
region and declined in five others. Alabama regulators approved a decrease of
9.3%, the steepest cut in the region, effective March 1.
Knapp said the settlement will streamline future loss-cost challenges.
"Small businesses now can be assured that any overall changes in workers'
compensation rates will be based on an objective vetting of premiums paid and
carrier payments made to workers and health care providers," Knapp said.