Original Notice.

     Preproposal statement of inquiry was filed as WSR 08-13-083.

     Title of Rule and Other Identifying Information: 2009 industrial insurance premium rates, chapter 296-17 WAC, General reporting rules, audit and recordkeeping, rates and rating system for Washington workers' compensation insurance.

     Hearing Location(s): Spokane Airport Ramada, 8909 West Airport Drive, Spokane, WA 99219, on October 21, at 9 a.m.; at the Kennewick L&I Office, 4310 West 24th Avenue, Kennewick, WA 99338, on October 21, at 2 p.m.; at the Bellingham Quality Inn, 100 East Kellogg Road, Bellingham, WA 98226, on October 22, at 2 p.m.; at the L&I Building, 7273 Linderson Way S.W., Tumwater, WA 98501, on October 22, at 2 p.m.; at the Tukwila L&I Office, 12806 Gateway Drive, Tukwila, WA 98168, on October 24, at 10 a.m.; and at the Red Lion Inn at the Quay, 100 Columbia Street, Vancouver, WA 98660, on October 24, at 10 a.m.

     Date of Intended Adoption: November 26, 2008.

     Submit Written Comments to: Ronald Moore, P.O. Box 44140, Olympia, WA 98504-4140, e-mail mooa235@lni.wa.gov, fax (360) 902-4748, by October 31, 2008.

     Assistance for Persons with Disabilities: Contact office of information and assistance by October 14, 2008, TTY (360) 902-5797.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule proposal will amend the tables of classification base premium rates, items associated with experience modification factor calculations and retrospective rating plan size groupings for the workers' compensation insurance program for calendar year 2009. Classification base rates were amended for updated loss and payroll experience and the proposed decision to increase premium rates an overall average 3.0%. In addition, the experience modification factor limitation rule is being changed regarding the exceptions to the 25% limitation on annual changes to the factor. The maximum claim value, which is the limitation on amounts charged employers for large single claim costs, has been reduced from $502,800 to the average cost of fatality cases, currently $217,944.

     This proposal amends the following sections: WAC 296-17-855 Experience modification, 296-17-865 Experience modification limitations, 296-17-870 Evaluation of actual losses, 296-17-875 Table I, 296-17-880 Table II, 296-17-885 Table III, 296-17-890 Table IV, 296-17-895 Industrial insurance accident fund base rates and medical aid base rates by class of industry, 296-17-89502 Industrial insurance accident fund, medical aid and supplemental pension rates by class of industry for nonhourly rated classifications, 296-17-89504 Horse racing industry industrial insurance, medical aid, and supplemental pension by class, 296-17-90492 Table I (Retro), and 296-17-920 Assessment for supplemental pension fund.

     Reasons Supporting Proposal: The department's decision to increase rates an overall 3.0% is intended to keep up with medical cost inflation and increases in the average amount of workers' wages. Washington law provides that rates should be adjusted annually to reflect the hazards of each industry and in accordance with recognized workers' compensation insurance principles.

     Statutory Authority for Adoption: RCW 51.16.035 Base rates, 51.32.073 Supplemental pension, 51.08.010 Retrospective rating, and 51.04.020(1) General authority.

     Statute Being Implemented: RCW 51.16.035, 51.32.073, 51.18.010, and 51.04.020(1).

     Rule is not necessitated by federal law, federal or state court decision.

     Name of Proponent: Department of labor and industries, governmental.

     Name of Agency Personnel Responsible for Drafting: Bill Moomau/JoAnne Smith, Tumwater, Washington, (360) 902-4774; Implementation: Ronald Moore, Tumwater, Washington, (360) 902-4748; and Enforcement: Robert Malooly, Tumwater, Washington, (360) 902-4209.

     No small business economic impact statement has been prepared under chapter 19.85 RCW. In this rule making the agency is exempt from preparing a small business economic impact statement when the proposed rules set or adjust fees or rates pursuant to legislative standards. This exemption is described in RCW 34.05.310 (4)(f).

     A cost-benefit analysis is not required under RCW 34.05.328. In this rule making, the agency is exempt from conducting a cost-benefit analysis since the proposed rules set or adjust fees or rates pursuant to legislative standards described in RCW 34.05.328 (5)(b)(vi).

September 17, 2008

Judy Schurke

Director

OTS-1920.2

AMENDATORY SECTION(Amending WSR 07-24-046, filed 12/1/07, effective 1/1/08)

WAC 296-17-855   Experience modification.   The basis of the experience modification shall be a comparison of the actual losses charged to an employer during the experience period with the expected losses for an average employer reporting the same exposures in each classification. The comparison shall contain actuarial refinements designed to weigh the extent to which the actual experience is credible, due consideration being given to the volume of the employer's experience. Except for those employers who qualify for an adjusted experience modification as specified in WAC 296-17-860 or 296-17-865, the experience modification factor shall be calculated from the formula:

EXPERIENCE MODIFICATION FACTOR	=	(Credible Actual Primary Loss +Credible Actual Excess Loss)/Expected Loss
Where
Credible Actual Primary Loss	=	Actual Primary Loss x Primary Credibility
	+	Expected Primary Loss x (100% - Primary Credibility)
Credible Actual Excess Loss	=	Actual Excess Loss x Excess Credibility
	+	Expected Excess Loss x (100% - Excess Credibility)

     The meaning and function of each term in the formula is specified below.

     For each claim, the actual primary loss is the first dollar portion of the claim costs, which has been shown in actuarial studies, to have the greater credibility in predicting future experience. These amounts are summed over all claims. For each claim in excess of $20,112 the actual primary loss shall be determined from the formula:

ACTUAL PRIMARY LOSS	=	50,280	x total loss
		(Total loss + 30,168)

     For each claim, less than $20,112 the full value of the claim shall be considered a primary loss.

     For each claim, the excess actual loss is the remaining portion of the claim costs, which have been shown in actuarial studies to have less credibility in predicting future experience. The excess actual loss for each claim shall be determined by subtracting the primary loss from the total loss. These amounts are summed over all claims.

     For any claim without disability benefits (time loss, partial permanent disability, total permanent disability or death) either actually paid or estimated to be paid, the total actual losses for calculating the primary loss and excess loss shall first be reduced by the lesser of $((1,640)) 1,790 or the total cost of the claim. Here are some examples for these claims:

Total Loss		Total Loss (after deduction)		Primary Loss		Excess Loss
200		-		-		-
2,000		((360)) 210		((360)) 210		-
20,000		((18,360)) 18,210		((18,360)) 18,210		-
200,000		((198,360)) 198,210		((43,643)) 43,638		((154,717)) 154,572
2,000,000		((502,800)) 217,994		((47,434)) 44,168		((455,366)) 173,826

Note:

The deduction, $((1,640)) 1,790, is twice the average case incurred cost of these types of claims occurring during the three-year period used for experience rating. On average this results in reducing the average actual loss about seventy percent for these types of claims adjusted. This is done to help make the transition between the two different experience rating methods better by helping make the change in experience factor reasonable for small changes to the actual losses. The $2,000,000 loss is limited by the Maximum Claim Value before the reduction of $((1,640)) 1,790 is applied.

     For each employer, the primary credibility and the excess credibility determines the percentage weight given to the corresponding actual primary losses and the actual excess losses, included in the calculation of the experience modification, based on the volume of expected losses. Primary credibility and excess credibility values are set forth in Table II.

     An employer's expected losses shall be determined by summing the expected loss for each of the three years of the experience period, which are calculated by multiplying the reported exposure in each classification during the year by the corresponding classification expected loss rate and rounding the result to the nearest cent. Classification expected loss rates by year are set forth in Table III.

     Expected losses in each classification shall be multiplied by the classification "Primary-Ratio" to obtain "expected primary losses" which shall be rounded to the nearest cent. Expected excess losses shall then be calculated by subtracting expected primary losses from expected total losses rounded to the nearest cent. Primary-Ratios are also set forth in Table III.

[Statutory Authority: RCW 51.16.035, 51.32.073, 51.08.010, and 51.04.020(1). 07-24-046, § 296-17-855, filed 12/1/07, effective 1/1/08; 06-24-054, § 296-17-855, filed 12/1/06, effective 1/1/07. Statutory Authority: RCW 51.04.020, 51.16.035, and 51.32.073. 05-23-162, § 296-17-855, filed 11/22/05, effective 1/1/06; 04-24-025, § 296-17-855, filed 11/23/04, effective 1/1/05. Statutory Authority: RCW 51.04.020, 51.16.035, 51.32.073, and 51.18.010. 03-24-066, § 296-17-855, filed 12/1/03, effective 1/1/04. Statutory Authority: RCW 51.16.035, 51.32.073, 51.18.010, and 51.04.020(1). 02-24-029, § 296-17-855, filed 11/27/02, effective 1/1/03. Statutory Authority: RCW 51.04.020, 51.16.035, 51.32.073, 51.18.010. 01-23-061, § 296-17-855, filed 11/20/01, effective 1/1/02; 00-23-101, § 296-17-855, filed 11/21/00, effective 1/1/01. Statutory Authority: RCW 51.16.035, 51.04.020. 00-14-052, § 296-17-855, filed 7/1/00, effective 7/1/00. Statutory Authority: RCW 51.04.020, 51.16.035 and 51.32.073. 99-24-055, § 296-17-855, filed 11/29/99, effective 12/31/99; 98-24-094, § 296-17-855, filed 12/1/98, effective 1/1/99; 97-24-062, § 296-17-855, filed 12/1/97, effective 1/1/98; 96-24-063, § 296-17-855, filed 11/29/96, effective 1/1/97. Statutory Authority: RCW 51.04.020. 95-23-080, § 296-17-855, filed 11/20/95, effective 1/1/96; 94-24-007, § 296-17-855, filed 11/28/94, effective 1/1/95; 93-24-114, § 296-17-855, filed 12/1/93, effective 1/1/94. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 93-12-093, § 296-17-855, filed 5/31/93, effective 7/1/93; 92-24-063, § 296-17-855, filed 11/30/92, effective 1/1/93; 91-24-053, § 296-17-855, filed 11/27/91, effective 1/1/92; 90-24-042, § 296-17-855, filed 11/30/90, effective 1/1/91; 89-24-051 (Order 89-22), § 296-17-855, filed 12/1/89, effective 1/1/90. Statutory Authority: RCW 51.16.035 and 51.04.020. 88-24-012 (Order 88-30), § 296-17-855, filed 12/1/88, effective 1/1/89. Statutory Authority: RCW 51.16.035. 87-24-060 (Order 87-26), § 296-17-855, filed 12/1/87, effective 1/1/88. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 86-24-042 (Order 86-41), § 296-17-855, filed 11/26/86. Statutory Authority: RCW 51.16.035. 85-24-032 (Order 85-33), § 296-17-855, filed 11/27/85, effective 1/1/86; 84-24-016 (Order 84-23), § 296-17-855, filed 11/28/84, effective 1/1/85; 83-24-017 (Order 83-36), § 296-17-855, filed 11/30/83, effective 1/1/84; 82-24-047 (Order 82-38), § 296-17-855, filed 11/29/82, effective 1/1/83; 81-24-042 (Order 81-30), § 296-17-855, filed 11/30/81, effective 1/1/82; 80-17-016 (Order 80-23), § 296-17-855, filed 11/13/80, effective 1/1/81. Statutory Authority: RCW 51.04.030 and 51.16.035. 79-12-086 (Order 79-18), § 296-17-855, filed 11/30/79, effective 1/1/80; Order 77-27, § 296-17-855, filed 11/30/77, effective 1/1/78; Order 74-40, § 296-17-855, filed 11/27/74, effective 1/1/75; Order 73-22, § 296-17-855, filed 11/9/73, effective 1/1/74.]

     (1) Valuation date. The ((valuation date shall be on and include December 31, one year and one day immediately preceding the effective date of premium rates as set forth in WAC 296-17-895. For experience modifications effective January 1, 1990, and thereafter, the)) valuation date shall be June 1, seven months immediately preceding the effective date of premium rates.

     (2) Retroactive adjustments - revision of losses between valuation dates. No claim value shall be revised between valuation dates and no retroactive adjustment of an experience modification shall be made because of disputation concerning the judgment of the claims examiner or because of subsequent developments except as specifically provided in the following cases:

     (a) In cases where loss values are included or excluded through mistake other than error of judgment.

     (b) In cases where a third party recovery is made, subject to subsection (4)(a) of this section.

     (c) In cases where the claim qualifies as a second injury claim under the provisions of RCW 51.16.120.

     (d) In cases where a claim, which was previously evaluated as a compensable claim, is closed and is determined to be noncompensable (ineligible for benefits other than medical treatment).

     (e) In cases where a claim is closed and is determined to be ineligible for any benefits.

     In the above specified cases retroactive adjustment of the experience modification shall be made for each rating in which the claim was included. Retroactive adjustments will not be made for rating periods more than ten years prior to the date on which the claim status was changed.

     (3) Average death value. Each fatality occurring to a worker included within the mandatory or elective coverage of Title 51 RCW shall be assigned the "average death value." The "average death value" shall be the average incurred cost for all such fatalities occurring during the experience period. The average death value is set forth in WAC 296-17-880 (Table II).

     (4) Third-party recovery - effect on experience modification.

     (a) For claims with injury dates prior to July 1, 1994, a potential claim cost recovery from action against a third party, either by the injured worker or by the department, shall not be considered in the evaluation of actual losses until such time as the third-party action has been completed. If a third-party recovery is made after a claim had previously been used in an experience modification calculation, the experience modification shall be retroactively adjusted. The department shall compute a percentage recovery by dividing the current valuation of the claim into the amount recovered or recoverable as of the recovery date, and shall reduce both primary and excess losses previously used in the experience modification calculation by that percentage.

     (b) For claims with injury dates on or after July 1, 1994, if the department determines that there is a reasonable potential of recovery from an action against a third party, both primary and excess values of the claim shall be reduced by fifty percent for purposes of experience modification calculation, until such time as the third-party action has been completed. This calculation shall not be retroactively adjusted, regardless of the final outcome of the third-party action. After a third-party recovery is made, the actual percentage recovery shall be applied to future experience modification calculations.

     (c) For third-party actions completed before July 1, 1996, the claim shall be credited with the department's net share of the recovery, after deducting attorney fees and costs. For third-party actions completed on or after July 1, 1996, the claim shall be credited with the department's gross share of the recovery, before deducting attorney fees and costs.

     (d) Definitions:

     (i) As used in this section, "recovery date" means the date the money is received at the department or the date the order confirming the distribution of the recovery becomes final, whichever comes first.

     (ii) As used in this section, "recoverable" means any amount due as of the recovery date and/or any amount available to offset case reserved future benefits.

     (5) Second injury claims. The primary and excess values of any claim which becomes eligible for second injury relief under the provisions of RCW 51.16.120, as now or hereafter amended, shall be reduced by the percentage of relief granted.

     (6) Occupational disease claims. When a claim results from an employee's exposure to an occupational disease hazard, the "date of injury," for the purpose of experience rating, will be the date the disability was diagnosed and that gave rise to the filing of a claim for benefits. The cost of any occupational disease claim, paid from the accident fund and medical aid fund and arising from exposure to the disease hazard under two or more employers, shall be prorated to each period of employment involving exposure to the hazard. Each insured employer who had employed the claimant during the experience period, and for at least ten percent of the claimant's exposure to the hazard, shall be charged for his/her share of the claim based upon the prorated costs.

     (7) Maximum claim value. No claim shall enter an employer's experience record at a value greater than the "maximum claim value." The maximum claim value is set forth in WAC 296-17-880 (Table II).

     (8) Catastrophic losses. Whenever a single accident results in the deaths or total permanent disability of three or more workers employed by the same employer, costs charged to the employer's experience shall be limited as required by RCW 51.16.130.

     (9) Acts of terrorism. Whenever any worker insured with the state fund sustains an injury or occupational disease as a result of an incident certified to be an act of terrorism under the U.S. Terrorism Risk Insurance Act of 2002, the costs of the resulting claim shall be excluded from the experience rating computation of the worker's employer.

     (10) Claims filed by preferred workers. The costs of subsequent claims filed by certified preferred workers will not be included in experience calculations, as provided in WAC 296-16-010.

     (11) Life and rescue phase of emergencies: This provision applies to "emergency workers" of nongovernmental employers assigned to report in classification 7205 (WAC 296-17A-7205) who assist in a life and rescue phase of a state or local emergency (disaster). The life and rescue phase of an emergency is defined in RCW 51.16.130(3) as being the first seventy-two hours after a natural or man-made disaster has occurred. For an employer to qualify for this special experience rating relief, a state or local official such as, but not limited to, the governor; a county executive; a mayor; a fire marshal; a sheriff or police chief must declare an emergency and must request help from private sector employers to assist in locating and rescuing survivors. This special relief is only applicable to nongovernmental employers during this initial seventy-two hour phase of the declared emergency unless the emergency has been extended by the official who declared the emergency. The cost of injuries or occupational disease claims filed by employees of nongovernmental employers assisting in the life and rescue phase of a declared emergency will not be charged to the experience record of the nongovernmental state fund employer.

[Statutory Authority: RCW 51.06.035, 51.08.010, 51.04.020. 07-12-045, § 296-17-870, filed 5/31/07, effective 7/1/07. Statutory Authority: RCW 51.16.035, 51.16.100. 05-23-161, § 296-17-870, filed 11/22/05, effective 1/1/06. Statutory Authority: RCW 51.16.035 and 51.04.020. 04-10-045, § 296-17-870, filed 4/30/04, effective 6/1/04. Statutory Authority: RCW 51.04.020, 51.16.035, 51.32.073, and 51.18.010. 03-24-066, § 296-17-870, filed 12/1/03, effective 1/1/04. Statutory Authority: RCW 51.16.035. 98-18-042, § 296-17-870, filed 8/28/98, effective 10/1/98; 96-12-039, § 296-17-870, filed 5/31/96, effective 7/1/96. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 90-13-018, § 296-17-870, filed 6/8/90, effective 7/9/90; 89-24-051 (Order 89-22), § 296-17-870, filed 12/1/89, effective 1/1/90. Statutory Authority: RCW 51.16.035 and 51.04.020. 88-24-012 (Order 88-30), § 296-17-870, filed 12/1/88, effective 1/1/89. Statutory Authority: RCW 51.16.035. 88-16-012 (Order 88-12), § 296-17-870 filed 7/22/88, effective 1/1/89; 81-24-042 (Order 81-30), § 296-17-870, filed 11/30/81, effective 1/1/82. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 78-12-043 (Order 78-23), § 296-17-870, filed 11/27/78, effective 1/1/79; Order 75-38, § 296-17-870, filed 11/24/75, effective 1/1/76; Order 74-40, § 296-17-870, filed 11/27/74, effective 1/1/75; Order 73-22, § 296-17-870, filed 11/9/73, effective 1/1/74.]

Primary Losses for Selected Claim Values
Effective January 1, ((2008)) 2009

CLAIM VALUE		PRIMARY LOSS
	((5,000	5,000
	10,000	10,000
	15,000	15,000
	20,112	20,112
	29,834	25,000
	44,627	30,000
	69,102	35,000
	100,000	38,627
	200,000	43,690
	222,141*	44,268
	300,000	45,686
	400,000	46,754
	502,800**	47,434
	1,000,000	47,434))

	5,000	5,000
	10,000	10,000
	15,000	15,000
	20,112	20,112
	29,834	25,000
	44,627	30,000
	69,102	35,000
	100,000	38,627
	117,385	40,000
	200,000	43,690
	217,994**	44,168

((*	Average death value))
**	Maximum claim value

[Statutory Authority: RCW 51.16.035, 51.32.073, 51.08.010, and 51.04.020(1). 07-24-046, § 296-17-875, filed 12/1/07, effective 1/1/08; 06-24-054, § 296-17-875, filed 12/1/06, effective 1/1/07. Statutory Authority: RCW 51.04.020, 51.16.035, and 51.32.073. 05-23-162, § 296-17-875, filed 11/22/05, effective 1/1/06; 04-24-025, § 296-17-875, filed 11/23/04, effective 1/1/05. Statutory Authority: RCW 51.04.020, 51.16.035, 51.32.073, and 51.18.010. 03-24-066, § 296-17-875, filed 12/1/03, effective 1/1/04. Statutory Authority: RCW 51.16.035, 51.32.073, 51.18.010, and 51.04.020(1). 02-24-029, § 296-17-875, filed 11/27/02, effective 1/1/03. Statutory Authority: RCW 51.04.020, 51.16.035, 51.32.073, 51.18.010. 01-23-061, § 296-17-875, filed 11/20/01, effective 1/1/02; 00-23-101, § 296-17-875, filed 11/21/00, effective 1/1/01. Statutory Authority: RCW 51.04.020, 51.16.035 and 51.32.073. 99-24-055, § 296-17-875, filed 11/29/99, effective 12/31/99; 98-24-094, § 296-17-875, filed 12/1/98, effective 1/1/99; 97-24-062, § 296-17-875, filed 12/1/97, effective 1/1/98; 96-24-063, § 296-17-875, filed 11/29/96, effective 1/1/97. Statutory Authority: RCW 51.04.020. 95-23-080, § 296-17-875, filed 11/20/95, effective 1/1/96; 94-24-007, § 296-17-875, filed 11/28/94, effective 1/1/95; 93-24-114, § 296-17-875, filed 12/1/93, effective 1/1/94. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 92-24-063, § 296-17-875, filed 11/30/92, effective 1/1/93; 91-24-053, § 296-17-875, filed 11/27/91, effective 1/1/92; 90-24-042, § 296-17-875, filed 11/30/90, effective 1/1/91; 89-24-051 (Order 89-22), § 296-17-875, filed 12/1/89, effective 1/1/90. Statutory Authority: RCW 51.16.035 and 51.04.020. 88-24-012 (Order 88-30), § 296-17-875, filed 12/1/88, effective 1/1/89. Statutory Authority: RCW 51.16.035. 87-24-060 (Order 87-26), § 296-17-875, filed 12/1/87, effective 1/1/88. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 86-24-042 (Order 86-41), § 296-17-875, filed 11/26/86. Statutory Authority: RCW 51.16.035. 86-12-041 (Order 86-18), § 296-17-875, filed 5/30/86, effective 7/1/86; 85-24-032 (Order 85-33), § 296-17-875, filed 11/27/85, effective 1/1/86; 84-24-016 (Order 84-23), § 296-17-875, filed 11/28/84, effective 1/1/85; 83-24-017 (Order 83-36), § 296-17-875, filed 11/30/83, effective 1/1/84; 82-24-047 (Order 82-38), § 296-17-875, filed 11/29/82, effective 1/1/83; 81-24-042 (Order 81-30), § 296-17-875, filed 11/30/81, effective 1/1/82; 80-17-016 (Order 80-23), § 296-17-875, filed 11/13/80, effective 1/1/81. Statutory Authority: RCW 51.04.030 and 51.16.035. 79-12-086 (Order 79-18), § 296-17-875, filed 11/30/79, effective 1/1/80. Statutory Authority: RCW 51.04.020(1) and 51.16.035. 78-12-043 (Order 78-23), § 296-17-875, filed 11/27/78, effective 1/1/79; Order 77-27, § 296-17-875, filed 11/30/77, effective 1/1/78; Order 76-36, § 296-17-875, filed 11/30/76; Order 75-38, § 296-17-875, filed 11/24/75, effective 1/1/76; Order 74-40, § 296-17-875, filed 11/27/74, effective 1/1/75; Order 73-22, § 296-17-875, filed 11/9/73, effective 1/1/74.]