WCA Comments on "Business Process Re-engineering"
On August 15, 2013, the Workers’ Compensation Board announced a “business process re-engineering” initiative “designed to significantly improve the experience of injured workers and employers in the New York workers' compensation system.” The Board has asked “stakeholders” (injured workers, employers, doctors, lawyers, insurance carriers and others) for their views of the system.
The WCA believes that that some of the basic components of a good workers’ compensation system would be:
1. Clear communication to injured workers about the existence of the workers’
compensation system, availability of benefits, rights (including the right to counsel) and obligations.
2. Timely delivery of indemnity benefits to injured workers; consistent and effective
penalties for non-compliance.
3. Strict enforcement of injury reporting and filing requirements.
4. Medical reporting that transmits necessary claim information without imposing
undue burdens on health care providers.
5. Initial formal hearings that ensure worker access to benefits in all cases.
6. Access to high-quality medical care resulting from outreach, regulation, and fee
schedules that encourage provider participation.
7. Consistent interpretation and enforcement of statutory and regulatory provisions.
8. Discouragement of frivolous litigation.
9. Timely scheduling of hearings when required.
10. Testimony before the trier of fact to enhance credibility determinations.
11. Timely decision of claims at the hearing level and on appeal.
12. Data collection to inform public policy, legislation, regulation and administration.
13. Professional and respectful communication among the agency, injured workers,
employers, insurers, and attorneys.
When we compare those components to the current workers’ compensation system, a number of specific concerns emerge.
1. The number of claims indexed or assembled by the Board declined from 174,802 in 2001 to 123, 245 in 2011. Although there is a long-term trend in declining frequency of claims, it is unlikely that this accounts for the extraordinary decline in indexed/assembled claims. It is probable that there is a significant lack of information and access to benefits by low-wage workers, and that the decline in claims is partially representative of a loss of benefits by this population.
2. There are significant obstacles to claim filing. These obstacles disproportionately impact the group of workers that is most likely to require access to the system. The cumbersome C-3 form and the hypertechnical requirements for case assembly/indexing are significant factors. The lack of direct outreach by the state agency to injured workers, as well as the absence of a requirement that employers distribute information are also relevant.
3. Communication about worker rights in the system is ineffective. The use of non-hearing determinations is problematic as they cannot and do not effectively provide information to injured workers due to language, literacy and other obstacles.
4. There is inadequate access to medical care in the workers’ compensation system. From 2004 to date the Board has removed 330 doctors from its provider lists (through suspension and voluntary resignation). 306 of the 330 have been removed since 2007. There is a clear relationship between the loss of providers and the mushrooming of the number, length, and content of medical reporting forms. The Board’s web site currently lists 37 forms for use by health care providers, virtually all of which are multi-page forms.
5. Benefits remain inadequate despite the increase in the statutory maximum rate. From 1992 -2006 the minimum rate of $40 was 10% of the maximum rate of $400. The increase of the minimum rate to $100 in 2007 made it 20% of the maximum rate of $500. However by 2012 it had declined to 12% of the maximum rate of $792.07 due to the failure to index the minimum rate. The 2013 increase to $150 has restored the minimum rate to 18% of the maximum rate (still short of its 2007 percentage). However, it will inevitably sink back into irrelevance until it is indexed to the maximum rate.
6. The standard for temporary disability must be revisited. The general principle of total disability is that a worker must be unemployable. However, in cases of temporary disability a worker’s hypothetical ability to perform other work is largely irrelevant. As a matter of practicality, it is unreasonable to expect a temporarily disabled worker to seek out other employment or to engage in vocational retraining when that worker has a reasonable expectation of returning to his or her previously employment (and employer) and in fact may be prohibited from seeking other employment due to a collective bargaining agreement, employer policy, or employment contract. A temporarily disabled worker should be paid for total disability as long as they are unable to return to their former employment or any modified duty position reasonably offered by the employer.
7. Data must be collected and oversight brought to the use of so-called “independent medical examiners” by insurers. The frequency and extent to which IMEs report disability and need for treatment should be tracked, as well as the frequency with which their opinions are accepted following litigation.
8. Administrative inefficiency must be eliminated. Hearing requests must be processed in a timely manner. Litigation should be discouraged in the absence of a “joined issue,” as should duplicative or “investigatory” testimony. Depositions should be eliminated in favor of in-person testimony, or restricted to extraordinary circumstances. To the extent that depositions are retained, regulatory guidance must be provided as well as real-time access to a WCL Judge to obtain rulings on disputed matters. Reserved decisions should be issued within 30 days. Appeals should be decided within 60 days.
9. A worker-friendly culture consistent with the intent of the statute should be encouraged on the part of Board personnel, including WCL Judges. In the current environment RFA-2 forms are treated as credible, while RFA-1 forms are treated with skepticism. Insurer lack of compliance is routinely excused. Current statutory and regulatory provisions are inconsistently enforced.
10. The Medical Treatment Guidelines should be withdrawn.
11. The 2012 Guidelines should be applied as intended, and supplemented with a consistent mechanism that creates predictability of claim values and which can be effectively implemented by WCL Judges and attorneys.
There are many subsidiary issues that must be considered in correcting the systemic problems that obstruct access to benefits for injured workers; our list is not intended to be comprehensive. Any initiative to “re-engineer” the system must restore its original purpose: protecting and compensating those who are injured or become ill in the course of their employment. Over the past twenty years, this purpose has been obscured by disingenuous and well-orchestrated campaigns to boost insurer profits at the expense of worker benefits. It is time for the system to “get back to basics” and take care of injured workers.
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NYWCA APPLAUDS GOVERNOR CUOMO FOR REDUCING EMPLOYER WORKERS' COMPENSATION COSTS BY $300 MILLION
The New York Workers’ Compensation Alliance today released a statement applauding Governor Cuomo and the New York State Workers’ Compensation Board for reducing employer workers’ compensation assessments by over 25%, resulting in a savings of $300 million to New York employers.
The reduction in assessments was due to the closure of the Reopened Case Fund and streamlining the assessment process, which were achieved in the 2013-2014 state budget.
“It has been clear since the 2007 reforms that closure was needed for the Reopened Case Fund,” said WCA Chair Robert Grey. “Insurers were using it to transfer liability to employers at an increasing pace, and without the Governor’s action employer costs would have skyrocketed. Instead, a common-sense reform has cut costs by over a quarter-billion dollars.”
WCA Board Member Brian Mittman added that closure of the Reopened Case Fund has been a priority for several years. “Closing the Fund has been on our agenda since 2009,” said Mittman. “It’s good to see the outcome, as well as the results of the Board implementing the new assessment process.”
Western New York WCA Board Member Greg Connors noted that when employers have “cradle to grave” responsibility for their own claims, instead of spreading the cost to others, “they have a greater incentive to provide safe workplaces, reducing the incidence of injuries.”Posted By WCA In Breaking News | 0 Comments Permalink
WCA Questions Agenda to Expedite Permanency Determinations
New York, NY, 06/04/2013 -- The New York Workers’ Compensation Alliance today released a letter to the New York State Workers' Compensation Board expressing concern over the Board’s plan to expedite the classification of permanent partial disability (PPD) cases, ultimately terminating benefits for thousands of permanently disabled workers.
The WCA stated that the agency’s plan represents a troubling departure from its proper role as an impartial adjudicator. “It isn’t the Board’s job to decide what claims the parties should be making,” said WCA Chair Robert Grey. “It’s the Board’s job to make fair and impartial decisions about the claims the parties bring before it.”
WCA Board Member Brian Mittman added that the Board’s plan appears to be designed for the benefit of insurance companies. “The carriers could have asked for classification any time in the last six years,” said Mittman. “Now the Board is stepping in to do their work for them. That’s simply unfair to injured workers.”
At issue are permanency classifications, which as a result of the 2007 reforms work for the benefit of insurers by imposing time limits for payment of benefits. As Mittman observed, insurers have chosen not to pursue this aspect of the reforms, and the Board has now taken on the task for them.
The WCA expressed particular concern about the threatening nature of the plan. “They have made it clear that they will prevent the parties from offering evidence, ignore the fact that someone needs surgery, and sanction attorneys if anything ‘hinders’ classification,” said Western New York WCA Board Member Greg Connors. “This is a rush to judgment, with no concern for whether that judgment is fair.”
The WCA contends that the Board does not have, nor should it have, any interest whatsoever in the outcome of any individual case, or of cases generally. “We are very concerned about the underlying principle here,” said Grey. “This plan puts the Board clearly on the side of the insurance industry, at the expense of permanently disabled workers. If anything, it is the Board’s obligation under the statute and nearly a century of case law to protect injured workers.”
The WCA letter can be found here.
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WCA Hails Budget Agreement
New York, NY – Mar. 25, 2013 -- The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, today praised Governor Andrew Cuomo and legislative leaders for working together to agree on a budget that will create administrative efficiency, and control costs for employers while protecting and improving benefits for injured workers.
The NYWCA hailed budget provisions that will close the state’s Reopened Case Fund, which has been an agenda item for NYWCA for several years. Eliminating the fund will help create price transparency for employers by reducing the “hidden cost” of assessments and will create administrative efficiency by eliminating a duplicative agency. “We are very pleased that the budget includes closing the Reopened Case Fund. This step, combined with the previous closure of the Second Injury Fund, will reduce assessments for employers by 80 percent,” said Robert Grey, Chairman of NYWCA. “Not only will this save money for employers, it will make the workers’ compensation system more efficient.” Grey said: “This move will especially benefit employers with good safety and health programs, who should not have to subsidize employers with poor safety records.”
NYWCA also praised the budget’s increase in the minimum compensation rate from $100 per week to $150 per week. Grey said: “The Governor and the Legislature deserve a tremendous amount of credit for protecting low-wage workers in this budget. Increasing the minimum benefit is an important piece of the social safety net that helps save workers from falling into poverty.”
Other budget provisions were also favorably reviewed by NYWCA, including a requirement that the New York Compensation Insurance Rating Board transfer data to the Workers’ Compensation Board and the Department of Financial Services. “The budget takes an important step toward bringing clarity to workers’ compensation costs,” Grey noted. Although NYWCA has issued detailed reports showing a downward trend in workers’ compensation costs, CIRB’s rate filings on behalf of the insurance industry routinely seek double-digit increases from employers.
NYWCA also supported the decision to retain the state’s Aggregate Trust Fund. “The ATF is very important,” said Gregory R. Connors, a NYWCA board member from Western New York. “It exists to protect permanently disabled workers, widows and children from insurance company insolvency, as Ullico declared only last week. In addition, it makes sure that workers who already have limited benefits get the full value of those benefits, instead of turning the money into profit for insurance companies.”
“Overall,” said Grey, “we think that the Governor and the Legislature did a terrific job on these issues in the budget.”Posted By WCA In Breaking News | 0 Comments Permalink
WCA Releases 2013 Legislative Agenda
The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, has released its 2013 Legislative Agenda covering a host of issues ranging from Social Security Disability Presumption to Medical Treatment Guidelines.
“New York State has made significant strides in the past year to save money for responsible employers while continuing to deliver appropriate benefits to injured workers,” said NYWCA Chair Robert Grey. “We are confident that our legislative agenda will further strengthen and streamline the workers’ compensation system.”
The NYWCA legislative agenda identifies four areas in which the law can be strengthened and improved. NYWCA “top priorities” would:
· reduce litigation by requiring the Workers’ Compensation Board to adopt findings made by the federal Social Security Administration;
· reduce litigation by establishing a standard for labor market attachment by partially disabled workers;
· strengthen the right to a hearing, preserving due process rights of workers and employers; and
· restore workers’ rights to appropriate medical treatment.
In the area of indemnity benefits, the NYWCA agenda would streamline delivery of compensation to injured workers by:
· ensuring full payment of awards for permanent injury to limbs;
· instituting a cost-of-living adjustment for permanently totally disabled workers and beneficiaries in death cases so that their weekly benefit amounts do not fall into irrelevance;
· correct an error in the law by unifying the dates for rate raises and caps on permanent partial disability benefits;
· indexing the minimum benefit rate to coincide with existing indexing of the maximum benefit rate;
· increasing so-called “no dependency” awards in death claims, which are unchanged since 1996;
· eliminating discrimination against immigrant workers; and
· expanding the Board’s discretion to use existing safety net provisions to keep permanently disabled workers from poverty and welfare.
In the area of administrative procedure, the NYWCA agenda would create efficiency by:
· encouraging legal representation of injured workers in “medical only” cases;
· establishing rules for legal representation in connection with appeals;
· extending deadlines for
· eliminating wasteful and abusive litigation tactics;
· expanding availability of mental health services;
· creating oversight for alternative dispute resolution programs;
· providing a framework for use of impartial specialists; and
· developing data regarding use of “independent medical examinations.”
In the area of personal injury litigation, the NYWCA agenda would reduce complexity by:
· unifying the definition of “basic economic loss” for No-Fault and workers’ compensation purposes;
· preventing windfalls to workers’ compensation carriers from personal injury recoveries by injured workers, while preventing double-recoveries by workers; and
· clarifying the law regarding insurer liens and credits for personal injury recoveries
Grey said: “These steps -- supported by stronger oversight of the Compensation Insurance Rating Board, existing downward trends in workers’ compensation costs, and the Governor’s recent proposals to increase the minimum benefit rate, close the Special Funds, streamline assessments and resolve the group self-insurance trust crisis -- will continue to establish New York as a national leader in delivering benefits to injured workers while preserving efficiency for employers.”
The full 2013 WCA Legislative Agenda is here.
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, Breaking News
WCA Press Release on State of the State, 2013
New York, NY – Jan. 9, 2013 -- The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, today praised actions to streamline the Workers’ Compensation system outlined by Governor Andrew Cuomo in his State of the State address.
In particular, NYWCA hailed Cuomo’s call to close the 25-a Fund, or Reopened Case Fund, which has been an agenda item for NYWCA for several years. Eliminating this fund will reduce assessments on employers by 25 percent.
“We are very pleased that the Governor’s agenda includes closing the Reopened Case Fund, which would reduce workers’ compensation assessments for New York employers by 25 percent, in addition to the more than 50 percent reduction that will ultimately be achieved through the previous closure of the Second Injury Fund,” said Robert Grey, Chairman of NYWCA. “This has long been an agenda item of the WCA because we want appropriate benefits for injured workers at the lowest cost to employers, and closing these Special Funds will reduce assessments on employers by nearly 80 percent.”
Grey said: “This move will especially benefit employers with good safety and health programs. The Governor’s commendable proposal will save money for responsible employers while continuing to deliver benefits to injured workers.”
NYWCA recently released a report revealing that workers’ compensation costs in New York State have declined dramatically in the past two decades and that workers’ compensation is also a declining portion of overall employer costs. The report shows that workers’ compensation reforms in 2007, combined with other administrative and regulatory initiatives, reduced worker access to benefits while also reducing claim costs. The report shows that costs have actually declined by a full 30 percent during the past 18 years.
The report also demonstrates that the cost of workers’ compensation is comparable to similarly situated states, such as Connecticut, California, Illinois and New Jersey, and that costs could be even lower if insurance companies were required to be transparent and verify the projected costs that they use to justify rate increases. At present, insurance carriers submit unaudited “projected cost increases” as a basis for premium increases that unfairly impact employers.
The NYWCA report -- which features raw data and charts from the New York Compensation Insurance Rating Board, the National Council on Compensation Insurance and the NYS Department of Labor, among other sources -- demonstrates that workers’ compensation employer costs, as a percentage of total compensation, have dropped from 1.6 percent in 2001 to 1.5 percent in 2011.
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WCA Releases White Paper on Workers' Compensation Costs
Business and insurance interests have repeatedly claimed that workers’ compensation is a “high cost” to employers, that it saps New York’s economic competitiveness, and that the system must be “reformed” to reduce costs.
None of these claims are true. To the contrary, workers’ compensation costs in New York have declined dramatically in the past twenty years, and workers’ compensation is a small and declining portion of employer costs. Trends in the law, accelerated by statutory changes in 2007 and a host of administrative and regulatory initiatives, have reduced worker access to benefits and have reduced claim costs across the board. Overall, the cost of workers’ compensation in New York is slightly lower than other costs in the state, and is comparable to similarly situated states.
Invariably, the target of these cost reduction efforts is benefits for injured workers, whose claims are portrayed as driving increased costs. However, the driving factor in the debate about workers’ compensation is not claim costs, but insurer profits. The simple fact is that insurers benefit from greater system costs. As more money flows through the system, insurer profits increase. To deflect attention from this fact, insurers blame the claims of injured workers when attempting to increase their charges to employers.
The WCA has taken an in depth look at the issues and prepared a White Paper to set the record straight. A copy of the White Paper is available here.
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WCA Responds to PPI "Revisiting the Reforms"
The “Public Policy Institute of New York State, Inc.” (PPI), an arm of the Business Council, recently released a report titled “Revisiting the Reforms.” The report contends, in essence, that workers’ compensation is a high cost for employers and that the 2007 reforms increased those costs. The report refuses to acknowledge the role of the Business Council in developing the 2007 legislation, fails to mention to gross inadequacy of benefits for the fifteen preceding years, and mischaracterizes the cost of workers’ compensation.
The PPI report is not based on relevant facts or data, and is indeed refuted by information available from CIRB and other sources. Time after time, the PPI report selectively extracts a specific fact, strips it of all relevant context, and advocates for radical policy changes that would dismantle a primary resource for New York State workers. When all of the available data is considered in proper context, however, it becomes apparent that employer workers’ compensation costs were declining prior to the 2007 reforms, and have subsequently continued to decline. In short, the PPI report is a transparent attempt to paint a picture of a crisis that does not actually exist. What is required instead is greater transparency and accountability on the part of insurers and their representatives, so that proper public policy decisions can be made.
Accordingly the WCA has issued a response, which available here.
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Assessments: The Facts, Not the Fiction
On February 22, 2012, an arm of Public Employers Risk Management Association (PERMA) released a “report” claiming that workers’ compensation assessments are a “tax” that is dramatically increases employer costs. This “report” was filled with misleading statistics and misinformation, to which the WCA responded on March 16, 2012.
On September 10, 2012, PERMA released a “new” report that simply repackages its prior claims, perpetuating the same factual and legal inaccuracies.
The WCA believes that sound public policy must be based on accurate information, and not mischaracterizations of the facts and misstatements of the law. As a result, the WCA has again responded to PERMA’s release and set the record straight.
The key points of the WCA report are:
- Assessments are not a “tax.” To the contrary, most assessments are a reinsurance system that benefits employers and insurance carriers. According to PERMA’s own report, nearly 80% of assessments relate to the Special Funds, which reimburse money to employers and carriers. Almost 98% of the money employers and carriers pay in assessments related to the Special Funds is returned to those same employers and carriers.
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WCA Hails DFS Decision on WC Insurance Premiums
The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, hailed a decision by the New York State Department of Financial Services to reject a request for an 11.5 percent increase in workers’ compensation premiums.
NYWCA called for full transparency of insurance carrier costs, claiming that the unverified numbers submitted by insurers are unnecessarily driving up costs for New York State businesses.
The 11.5 increase requested by insurers followed premium increases of nearly 23 percent between 2009 and 2011, and would have imposed an estimated $500 million in additional premium costs on employers in New York State. The 2009 – 2011 increases, which WCA feels were unjustified, nearly eclipsed premium reductions of 25 percent that were achieved through workers’ compensation reforms enacted in 2007.
For the past two years, NYWCA has testified before DFS against rate increases, and this year it was joined by a host of businesses testifying against the increase request, which was based on unverified cost increases submitted by the very insurance carriers that stand to benefit from the overall rate increases.
Rate increase requests are submitted by the New York Compensation Insurance Rating Board, a statutory rate service organization that until 2007 was comprised solely of private insurers. The cost increases reported by insurance carriers as the basis for rate increases are not independently verified. Nor are the numbers broken down to reveal insurance company profits, expenses and costs.
“The NYWCA represents injured workers and we strongly object to unnecessary premium increases whose only beneficiary is private insurance companies,” said Robert Grey, chair of NYWCA. “The costs for the increases fall unfairly on businesses and the blame falls unfairly on injured workers.”
Grey said that the DFS decision and the vocal opposition by employers to the unnecessary increases is a tremendous victory for injured workers. “When rates go up it becomes extraordinarily difficult to advance good legislation that benefits workers’ health. It is critical for businesses to know that claim costs are not the primary driver of increased workers’ compensation costs – insurer profits are.”
Grey said that stronger supervision and regulation of insurers is needed. Ironically, the only part of the 2007 workers’ compensation reforms yet to be implemented is a provision intended to replace NYCIRB with a transparent, accountable entity to set workers’ compensation insurance rates.
“When a group of unregulated insurers is permitted to propose rates and the state remains unwilling or unable to call for data and accountability, employers and injured workers suffer,” Grey said.Posted By WCA In Breaking News | 0 Comments Permalink