WCA Thanks the NYS Legislature

In the newly enacted budget for New York State’s 2016/17 fiscal year, the Legislature rejected proposals that would have reduced benefits for injured workers and deprived them of their fundamental right to due process.


The WCA thanks the Legislature for re-affirming the principle that those who are injured on the job have the right to fair and adequate compensation, the right to choose their own doctors and to participate in their own health care decisions, and the right to a fair hearing and a meaningful appeal when legal action is needed. 


For too long, too much of the conversation about workers’ compensation has centered around costs for employers and profits for insurers.  The truth is that employer costs are low and insurer profits are high.  It’s time to turn our attention to the injured workers who suffer the real cost of inadequate benefits and a broken system.


The WCA salutes the Governor, Assembly Speaker Heastie, Senate Majority Leader Flanagan, and the Legislature for their efforts on behalf of low wage and immigrant workers by increasing minimum wage and adopting paid leave.  Each of these initiatives helps New Yorkers while they are employed.  Now an equal effort must be dedicated to helping and protecting New Yorkers who are hurt on the job and lose their employment benefits.  Injured workers need more compensation, more health care options, and more access to a fairer, faster, and more transparent system.


The WCA looks forward to working with the Legislature and all who speak for injured workers in this campaign.

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WCA and NYCOSH Issue a New Report on Uncompensated Wage Loss

On February 1, 2016 the Workers' Compensation Alliance and the New York Committee for Occupational Safety and Health released a report showing the stark consequences of on-the-job injury for workers. 

The report outlines the consequences of the 2007 workers compensation "reforms" for injured workers.  Among its conclusions, the report finds that (1) the 2007 "reforms" offered no benefit to low-wage workers; (2) even workers who benefited from the 2007 reforms continue to suffer high rates of uncompensated wage loss; and (3) the workers' compensation system now replaces less than 10% of the lost wages of permanently disabled workers.  

The report further concludes that proposals made by the Business Council, some of which are included in the 2016 Executive Budget, would render the workers' compensation virtually meaningless as a source of wage replacement benefits for injured workers.

The report can be found here.

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WCA Releases White Paper on 2016 Executive Budget

On January 13, 2016, the Governor's office released the 2016 Executive Budget for New York State.  The Budget included a number of proposals that would make significant changes to the workers' compensation system. 


The WCA has reviewed the Executive Budget and is deeply concerned about the aspects of it that impact due process and benefits for injured workers.  In particular, the WCA believes that the following proposals would adversely affect injured workers:


1.  The elimination of the Aggregate Trust Fund.  The 2007 reform legislation slashed benefits for permanently partially disabled workers, but preserved their ability to obtain fair settlements of their now-limited benefits by requiring insurers to make deposits into the Aggregate Trust Fund.  The Budget proposal to eliminate the ATF deposit requirement would still further diminish benefits for these workers, and also undermine benefits for widows, dependent children, and those who are permanently totally disabled.


2.  The elimination of the right to hearings before a single judge.  The Budget proposes to allow the Workers' Compensation Board to re-assign any case at any time to any judge in the state.  This could result in judges in distant parts of the state deciding claims of workers they have never seen, based on the opinions of medical witnesses with whom they are totally unfamiliar.  This proposal raises serious concerns about due process for both injured workers and employers.


3.  The elimination of appeals heard by an appeals panel.  The Budget proposes to allow appeals from decisions of Workers' Compensation Law Judges to be heard by a single lawyer employed by the Board, or by a single Commissioner.  This proposal would deprive injured workers and employers of their right to a meaningful appeal, and again raises serious concerns about due process.


There are many other provisions of the Budget that would result in major changes to the workers' compensation system and the rights of those who participate in it.  The full WCA White Paper can be found here.

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Restore the Safety Net: 2016 WCA Legislative Agenda

Over the past two decades, the social safety net has been steadily eroded for working New Yorkers who are injured on the job.  The workers’ compensation system is the first – and many times the only – resource for lost wages and medical treatment caused by workplace injuries and illnesses.  Sadly, these protections have been drastically reduced as the result of past legislation, regulation, and administrative change.

          It is vitally important that the social safety net, and particularly the workers’ compensation system, be restored to protect vulnerable injured and disabled workers.  These workers are entitled to due process of law and to meaningful compensation for their lost wages, medical treatment.  And because the workers’ compensation system no longer provides an adequate remedy for their loss of other legal remedies, the system must be reformed to permit these workers to be made whole where their employer broke the law or was grossly negligent.

          We therefore propose eight meaningful legislative reforms that will help to restore the safety net for working New Yorkers who are injured on the job.


1.       Reduce the threshold for safety net eligibility.  The threshold for safety net consideration should be reduced from loss of wage earning capacity in excess of eighty percent to loss of wage earning capacity in excess of fifty percent.  Workers who have been determined to lose more than half of their pre-accident wage earning capacity and have been unable to return to work should be eligible for safety net evaluation.


2.       “Voluntary withdrawal from the labor market” should be defined.  The statute should be amended to define the circumstances in which an injured worker must demonstrate that he or she is “attached to the labor market” as a condition of receiving benefits. 


3.       Index the minimum weekly rate to the maximum weekly benefit rate.  The failure to index the minimum benefit rate ensures that it will become inadequate in the intermediate or long term absent continued legislative oversight and statutory correction.  This can be obviated by fixing the minimum rate at 25% of the maximum rate.


4.       The Medical Treatment Guidelines should be eliminated.  The existing statutory procedure makes more treatment available to injured workers with less administrative process and at a lower expense than that directed by the Medical Treatment Guidelines.  The WCA supports A3356.


5.       Schedule loss awards should be in addition to awards for temporary disability.  The current schedule loss evaluation system should be preserved, but schedule loss awards should be paid in addition to compensation for temporary disability (as under the Longshore & Harbor Workers’ Compensation Act), rather than having such compensation deducted from the schedule loss award.

                  6.       The Board should hold an initial hearing in every case.  Participants in the system are in substantial agreement that holding an initial hearing is more efficient than the use of non-hearing determinations.  More importantly, an initial hearing ensures that unrepresented workers are given adequate information about their claim, their rights, and system benefits, and that they have a meaningful opportunity to be heard by the Board.


7.       Limit “exclusive remedy” protection for employers.  The law prohibits injured workers from suing their employer, on the theory that the workers’ compensation system offers an adequate replacement.  Given the caps on permanent partial disability benefits, this is no longer true in cases where the worker is significantly disabled.  There is also no justification to insulate employers from liability where the worker is injured because the employer violated a statute or regulation. 


8.       Adopt a presumption that workers deemed totally disabled by the Social Security Administration are totally disabled in the workers’ compensation system.  The Workers’ Compensation Board issued guidelines for awarding benefits in cases of permanent injury.  These guidelines require consideration of the injured worker’s medical impairment, functional loss, and vocational factors.  The Board’s guidelines envision prolonged and substantial litigation regarding these issues in each permanent disability case.


Most workers who are permanently disabled apply for Social Security Disability benefits.  On applications for disability benefits, the Social Security Administration considers the same medical, functional, and vocational factors that the Board has included in its new guidelines.  If a worker has been approved for Social Security Disability benefits based primarily on the compensable injury, then re-litigation of the same issues in the workers’ compensation case serves little or no purpose.  Instead, adoption of the Social Security decision will streamline the process and avoid needless litigation costs that burden injured workers, employers, and the Board.

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New York, NY – July 16, 2015 – The New York State Department of Financial Services (DFS) has approved a 5.9% increase in workers’ compensation premiums.  The DFS approval is consistent with improving economic conditions in New York State and stable workers’ compensation claim costs.


An employer’s workers’ compensation costs depend largely on payroll, although industry type and loss history also play a role.  Last month, the New York State Department of Labor's Research and Statistics Division announced that the New York State Average Weekly Wage for 2014 was $1,266.44, a 4.3% increase over the 2013 figure of $1,212.98.  Today, the Department of Labor announced that New York’s private sector job count has reached an all-time high, while unemployment is at its lowest level in eight years.


“It is clear that the DFS approval of a small increase in workers’ compensation premiums is consistent with the improved economic conditions reflected in more jobs, increased wages, and less unemployment,” said Robert Grey, chair of the New York Workers’ Compensation Alliance.  “It also demonstrates that there has been no increase in workers’ compensation claim costs, which remain stable as previously reported by the WCA.”


A letter confirming the 5.9% increase can be found here:  http://go.nycirb.org/tr_rcb/rcb/rc2395.pdf


The Department of Labor reports can be found here:




The WCA report on workers’ compensation costs can be found here:





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The Demolition of Workers' Compensation

The WCA has issued the following press release regarding the ProPublica series on The Demolition of Workers' Compensation:




Despite Reduced Costs, Insurers and Business Interests

Seek to Slash Protection for Injured Workers


New York, NY – March 6, 2015 – Workers’ compensation costs are down nationally and in New York State, according to a dramatic new analysis from ProPublica and NPR.


The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, hailed the analysis, which reveals a system in which insurers and business interests are seeking to slash injured worker benefits despite reduced costs.


“For years, insurers have promoted a false narrative that workers’ comp costs are out of control and that they have to reduce benefits to maintain competitiveness,” said Robert Grey, Chair of NYWCA.  “This is simply not the case.  New York is not a high-cost state and costs are at a 25-year low nationally.  Nonetheless, insurers and business interests are attempting to destroy the safety net for injured workers.”


Meanwhile, a new report from OSHA reveals that the cost for workplace injures has been shifted from employers onto the backs of taxpayers and injured workers. According to the report, 50 percent of the costs for worker injuries come from the injured workers themselves, while 29 percent comes from federal, state and local governments, and only 21 percent is paid by workers’ compensation insurance.


“Workers gave up their right to sue employers for personal injury in exchange for medical coverage and speedy and adequate wage replacement benefits,” said Grey. “This basic ‘bargain’ has been broken, and the system has been twisted to create profits for insurance companies at the expense of injured workers.”


Workers’ compensation costs in New York State have declined dramatically in the past two decades and workers’ compensation is also a declining portion of overall employer costs.  Employers’ workers’ compensation premiums were cut nearly 25% in 2007 and 2008 as a result of 2007 legislation. After moderate increases from 2009-2011, there have been no further increases in premiums in two of the past three years. Meanwhile, since 2011, employers’ workers’ compensation assessments have dropped more than a third from 20.2% to 13.2%.

As employer costs have been reduced, however, benefits for lost wages have remained inadequate for both the maximum and minimum rates. Nevertheless, business and employer interests continue their efforts to further cut worker benefits, pursuing employer managed care and attempting to cut benefits for permanent injury.


To read full copies of the reports: http://www.propublica.org/article/the-demolition-of-workers-compensation http://www.dol.gov/osha/report/20150304-inequality.pdf.




These and other workers’ compensation issues have been covered in detail in a recent NYCWA white paper: http://www.nyworkerscompensationalliance.org/STATE%20OF%20THE%20SYSTEM%202014%20-%20Release.pdf

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WCA 2015 Legislative Agenda

The New York Workers' Compensation Alliance has released its 2015 Legislative Agenda, titled "Protect New York Workers."  The agenda calls attention to the fact that as employer costs have been reduced, injured workers have suffered.  Benefits for lost wages remain inadequate for both the maximum and minimum rates, and the Workers’ Compensation Board has failed to develop systems to meaningfully address loss of wage earning capacity, to determine when an injured worker’s “labor market attachment” should be relevant, or to create meaningful return to work programs.  No consideration has been given to implementing the statutory safety net for the most severely disabled workers, and benefits for lost wages are still unfairly deducted from awards for “schedule loss.”  Meanwhile, medical treatment for injured workers has been constricted by the Board’s Medical Treatment Guidelines, and the Board proposes to further restrict injured workers’ access to medical care by reducing reimbursement rates for health care providers and expanding employer-managed care through “preferred provider organizations.” 

The WCA Legislative Agenda calls on New York State government to restore balance to the system.  The goal of the workers’ compensation system should not be the creation of profits for insurance companies at the expense of workers and employers.  Instead, it has always been, and should continue to be, protecting injured workers. 

The 2015 WCA Legislative Agenda can be found here: www.nyworkerscompensationalliance.org/uploads/file/WCA2015LegislativeAgenda.pdf

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WCA Releases 2014 White Paper

The New York Workers’ Compensation Alliance has released a White Paper authored by WCA Chair Robert Grey.  The paper was cross-endorsed by the New York Committee for Occupational Safety and Health (NYCOSH) and the National Economic and Social Rights Initiative (NESRI).

The 2014 White Paper reviews the current legislative, regulatory and administrative status of the New York State workers’ compensation system.  The system has undergone significant changes in the past two decades.  There were major changes as a result of the reform legislation enacted in 2007.  In addition, some trends that pre-dated the 2007 legislation have subsequently accelerated.

            The paper considers developments in the workers’ compensation system over the past six years in three primary areas:  (1) benefits for injured workers; (2) costs for employers; and (3) administration by the state (primarily by the Workers’ Compensation Board).  It will address areas of improvement, stagnation, and deterioration in the system’s core mission of delivering compensation and medical benefits to injured workers.

             The 2014 paper is the third in a series of papers released by the WCA and NYCOSH about the state of the system.  Workers’ Compensation:  State of the System, 2006 (“the 2006 White Paper”), was written to contribute to the discussion leading to the 2007 legislation.  The 2006 White Paper identified the main problems in the New York workers’ compensation system as “the amount of benefits injured workers receive, delays in medical treatment, cost to employers, lack of transparency regarding insurance carrier financial information, and the state Workers’ Compensation Board’s administrative procedures.”  The paper made a number of recommendations to resolve these problems.

              Workers’ Compensation:  State of the System, 2008 (“the 2008 White Paper”) reviewed the 2007 legislation and the Task Forces that were created to implement the statutory changes.  The 2008 White Paper identified continuing problems in the system and made recommendations about modifying and implementing the legislation and the suggestions of the Task Forces. 

            The 2014 White Paper is available here.


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WCA Comments on Proposed Medical Fee Schedule

On July 28, 2014 the Board released a “discussion document” proposing significant changes in the workers’ compensation medical fee schedule, which has not been significantly updated in two decades. The Board’s document proposes a transition of the fee schedule to the “resource-based relative value scale” (“RBRVS”) used by Medicare.[1] 

The Board’s proposal raises serious questions about access to quality care for injured workers.  Rather than creating incentives for specialists and high quality health care providers to enter the system, it is likely to drastically reduce the number and quality of specialists available to treat injured workers.

The proposed RBRVS fee schedule also fails to fully consider the bureaucratic burden on health care providers in the workers’ compensation system.  Physicians are now required to be fully familiar with hundreds of pages of Medical Treatment Guidelines (covering five separate body parts and chronic pain), over 100 pages of Medical Impairment Guidelines, the principles of functional loss evaluation, the variance procedure, the procedure to obtain authorization where a variance is not required and the treatment is not covered by the Medical Treatment Guidelines, principles of causal relationship, reporting, billing, testifying and more.

The inadequate medical fee schedule, multiplicity of forms, limitations of the Medical Treatment Guidelines, complexity of the Medical Impairment Guidelines, and the many other burdensome obligations of the workers’ compensation process have increasingly deterred providers from participating in the system.

The proposed revision of the medical fee schedule would only serve to exacerbate the existing set of disincentives for specialists and high-quality physicians to participate in the system.  Instead we recommend that reimbursement rates for specialists be increased, and the bureaucratic burden reduced in order to attract more quality physicians to provide health care to injured workers.

The full text of the WCA's comments to the Workers' Compensation Board regarding the proposed fee schedule can be found here.

The deadline for submission of comments to the Board is October 1, 2014.  Comments may be submitted by email to feeschedule@wcb.ny.gov.



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WCA Issues Legislative Memos

The Workers' Compensation Alliance has issued Memoranda in support and opposition to four bills this Legislative Session.  In addition to our continued opposition to insurer efforts to close the Aggregate Trust Fund, which protects the benefits of permanently disabled workers, we support the Zamora return-to-work standards bill, support the elimination of the remarriage penalty for widows and widowers, and oppose the expansion of the Medical Treatment Guidelines.  Here is the text of our Memoranda:


Memorandum in Support

A.7961 (Heastie)/S.5294 (Savino)


            The New York Workers’ Compensation Alliance supports A.7961 (Heastie)/S.5294 (Savino).

The Workers’ Compensation Law recognizes that a partially disabled worker retains the ability to do some work, and provides compensation only for the loss of wage earning capacity.  No compensation is payable for the wage earning capacity the worker retains.  The law does not identify the circumstances in which a partially disabled worker must seek employment as a condition of receiving benefits.  This has resulted in significant litigation, inconsistency of result, and unfairness in the workers’ compensation system.

            This bill would provide a statutory standard for labor market attachment in workers’ compensation claims.  It would preserve and codify the requirement of a causal connection between the injury and the loss of earnings, encourage return to work, expedite delivery of benefits, and reduce litigation.

            For these reasons the New York Workers’ Compensation Alliance strongly supports S.5294 (Savino)/A.7961 (Heastie).  If you have any questions please contact Richard Winsten at (518) 465-5551




S.4090 (Savino)/A.6559 (Wright)


            The New York Workers’ Compensation Alliance (WCA) supports S.4090 (Savino)/A.6559 (Wright).  This bill would continue death benefits under workers’ compensation law to a surviving spouse regardless of remarriage.


            Workers’ compensation law provides death benefits to a spouse, minor children or other dependants of a deceased worker.  Death benefits are calculated as a percentage of the deceased’s average wage, subject to a minimum and a maximum.  Funeral expenses are also payable up to statutory maximums. 


            Current law ends these benefits on remarriage of the surviving spouse.  Upon remarriage of the surviving spouse a payment of two years compensation is made in a lump sum before benefits end.


            The ability to remarry should not be hindered by the possibility of financial loss to a family who has already suffered the greatest loss, that of a spouse and parent.  This legislation will allow for workers compensation survivor benefits to continue in the case of the remarriage of a surviving spouse, thus allowing the a survivor to move forward in a new chapter of their life.


            For these reasons WCA supports S.4090 (Savino)/A.6559 (Wright).  If you have any questions please contact Richard Winsten at (518) 465-5551.



Memorandum in Opposition

A.9068 (Bronson)/S.6997 (Savino)


The New York Workers' Compensation Alliance strongly opposes A.9068 (Bronson)/S.6997 (Savino). This bill would expand the Medical Treatment Guidelines adopted by the Workers' Compensation Board (WCB) in 2010.


The WCB Medical Treatment Guidelines have resulted in the widespread denial of medical treatment to injured workers. Under the guise of "pre-authorizing" some treatment, the

Guidelines effectively "pre-deny" other treatment. Instead of permitting health care providers to provide patient-specific treatment, the Guidelines require physicians to "doctor-by-numbers," providing the specific treatment prescribed by the Guidelines in the order directed by the Guidelines. This approach dehumanizes injured workers and undermines the value of medical expertise. Moreover, the legality of the Guidelines in view of the language, spirit and purpose of the Workers' Compensation Law is questionable, and that issue is presently under consideration by the Court of Appeals.


The Medical Treatment Guidelines should be eliminated, not expanded. For that and many other reasons, the Workers' Compensation Alliance strongly opposes A.9068

(Bronson)/S.6997 (Savino).


Memorandum in Opposition


A. A01569 (Kolb)/S04587(Seward)


The 2007 workers’ compensation reform legislation required a private insurer that fails to settle with a permanently partially disabled worker to deposit the present value of future compensation payments into an Aggregate Trust Fund (ATF).  This provision serves as a “fair claims settlement” rule.  It was intended to guarantee that workers whose benefits were significantly reduced by the PPD “caps” in 2007 would receive the fair value of those benefits if they chose to settle their case.


The 2013 budget rejected a proposal to end the ATF deposit requirement.  This was a sound and proper decision, as ending the ATF would significantly increase litigation on the issues of maximum medical improvement and permanency.  More importantly, it would ultimately amount to a second cut in benefits for permanently disabled workers whose benefits were already limited in 2007.


It would be unfair and unjust to remove the ATF deposit requirement from the 2007 reform legislation, thus unbalancing that agreement.  It was an important component of the legislation that should not be separated and removed without consideration of its impact on other aspects of the 2007 reforms.  The ATF serves an important role in ensuring that permanently disabled workers that are subject to the PPD caps receive the fair value of their (already limited) benefits.


We strongly oppose A.01569 (Kolb)/S.04587(Seward).


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