NYWCA APPLAUDS GOVERNOR CUOMO FOR REDUCING EMPLOYER WORKERS’ COMPENSATION COSTS BY $300 MILLION

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.

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.

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.

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.

New York State Senate Confirms Zachary S. Weiss as New Chairman of Workers’ Compensation Board

Zachary S. Weiss, Esq, a lawyer and long time confidant to Governor Eliot Spitzer, was confirmed late last night as the new Chairman of the New York State Workers' Compensation Board.  See Mr. Weiss' biography here.  The New York Workers' Compensation Alliance wishes him well in his new position and pledges to work with him and his administration to better the plight of New York's injured workers.

Despite his new position, the Workers' Compensation Alliance (WCA) has been working with the new Chair since earlier this year on such issues as the "Rocket Docket Task Force" while he was Special Counsel in the New York State Insurance Department.  In recent conversations with the Workers' Compensation Alliance leadership, the new Chair has stated a strong willingness to work with injured workers and their representatives to improve a system that has taken a decidedly "employer turn" in the previous administration.   

The twin goals of speeding benefits to injured workers and lowering employers costs are attainable. For instance, eliminating costly and unnecessary medical depositions would help both injured workers and employers.  In addition, the Chair will be overseeing the implementation of revised medical and vocational guidelines to help determine an injured workers' true level of disability and potential to return to work.

Again, the WCA welcomes Zachary "Zack" Weiss as the new Chair of the venerable and prestigious New York Workers' Compensation Board.  He is a sharp, well seasoned professional. Injured workers need a strong advocate in their corner.

New York 9/11 First Responder Hospital Worker Bill Gives Workers 75% Workers’ Comp Benefits

Private hospital workers, emergency medical technicians (EMT's) and paramedics who were dispatched  to Ground Zero after 9/11 will be potentially the first workers in New York State Workers' Compensation history to receive 75% of their lost wages, as opposed to the traditional 66 2/3% rate of compensation, based on a new bill passed last week in Albany

This is a significant victory for these forgotten heroes of 9/11 and another victory for the hospital workers' unions in Albany.  As reported in Workers' Comp Central:

  • >New York Workers Compensation Alliance, which includes claimants' attorneys and other workers' advocates, praised the compromise bill Thursday.

    Troy Rosasco, co-chairman of the alliance, said a board member of the organization helped draft the legislation.

    "It is a great victory for some of the forgotten heroes of 9/11," Rosasco said. He said the bill will help bring parity with benefits already paid to public employees. "

WCA Calls on NYS Workers’ Compensation Board to Publicize September 11th Registration Deadline

The September 11th attacks killed thousands of New York workers and injured tens of thousands of workers who heroically participated in rescue, recovery and clean-up activities.  In August, 2006 the Legislature added Article 8-A to the Workers’ Compensation Law.  Article 8-A permits those who participated in rescue, recovery and clean-up operations to file a WTC-12 registration form.  The current deadline to file a WTC-12 form is September 11, 2010.

The WCA, labor unions, and other organizations that protect the rights of injured workers have made extensive efforts to publicize the registration provision and to register injured workers.  Information about registering for benefits in connection with September 11th rescue, recovery, and cleanup operations is available at:

http://www.wcb.state.ny.us/content/main/SubjectNos/sn046_159.jsp

http://nycosh.org/environment_wtc/WTC/911WCrev818.pdf

http://www.nyc.gov/html/doh/wtc/html/home/home.shtml

http://www.wtcexams.org/

 The WCA Position.  The WCA calls on the Board to publicize the September 11th registration deadline on its web site and at hearing points, and to make WTC-12 forms readily available so that participants in rescue, recovery and clean-up operations can register and preserve their right to claim workers’ compensation benefits.

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.