New York Workers Compensation Alliance

The New York Workers’ Compensation Alliance 2007 Legislative Proposal

The Workers' Compensation Alliance (WCA) is a political action committee composed of workers’ compensation attorneys and advocates from across New York State committed to protecting the rights and dignity of injured workers. These attorneys are in the trenches attending workers’ compensation hearings on a daily basis. They know first hand the troubles facing injured workers. Collectively, members of the WCA represent over 200,000 currently injured or disabled New York residents. In addition, the WCA publicly fought for the passage of the recent “9/11 Rescue Workers” law and financially support the Triangle Fire Memorial College Scholarship fund for children of injured workers.  In addition,  leaders of the WCA spoke at recent New York State Senate Labor Committee forums and State Assembly hearings addressing workers’ compensation reform. In addition to attempting to influence legislation, members of the WCA provide free legal services to claimants with “medical only” claims and continue to provide free legal services in death claims arising from the 9/11 attack at the World Trade Center.

At its Executive Board meeting on 12-01-06 the Workers’ Compensation Alliance identified five areas for immediate legislative action that its members believe will protect injured workers while containing cost to business. The following proposals should be considered as a unitary whole.

1. Adjust and Index the maximum weekly benefit.

• Increase the maximum benefit payable to 2/3's of the actual state average weekly wage as determined by the Labor Department. This increase could be phased in to lessen the immediate impact on insurance premiums and costs to employers. In addition, increase the minimum weekly rate to $120 from the current $40.

• Index the maximum rate so adjustments would come into effect automatically based on the state’s average weekly wage as determined by the Labor Department. Indexing not only helps injured workers avoid poverty but would also prevent future “rate shock” to employers so that they can adequately plan for potential small premium increases.

• Change the benefit amount in the Disability Benefits Law to one-half the claimant’s average weekly wage without maximum limit. This will reduce workers’ compensation costs by eliminating any incentive to improperly file disability claims under the workers’ compensation program due to more lucrative benefit levels. This will reduce cost pressure on the 100% employer funded workers’ compensation program by shifting cost to the employee contributory disability program.

2. Reform the meaning of permanent disability.

• Revise the definition of disability to explicitly include vocational factors such as are used in Social Security Disability determinations. When setting the degree of wage earning capacity the Workers’ Compensation Board would be required to take into account not only the claimant’s physical limitations, but also include consideration of the claimant’s age, education and prior work experience.

• Require all carriers and self-insured employers to make a good faith offer of a Section 32 settlement at the time the claimant reaches maximum medical improvement to account for any permanent loss of wage earning capacity and permanent medical costs.

• For the injured worker found by the Workers' Compensation Board to have a permanent partial disability, and who has not returned to work, the Board should set a future reevaluation date adequate to permit the injured worker to realistically engage in vocational rehabilitation and return to work within their vocational and physical limitations. At the time of such a reevaluation, the injured worker would have to demonstrate their attempts to reenter the labor market within their limitations. Failure to do so could result in a suspension of indemnity benefits. No injured worker found to be disabled by the Social Security Administration primarily due to his work related injury or sickness would be required to undergo future reevaluation.

• For the injured worker found by the Workers' Compensation Board to have a permanent partial disability, but who has returned to work with reduced earnings, such reduced earnings awards would be extended (subject to annual adjustment) for an additional period not less than seven years to be set by the Workers’ Compensation Board. At the end of this period if the injured worker can demonstrate that their disability still contributes to their loss of earnings, the reduced earnings benefits shall continue.

3. Speed medical authorization and payment

• Increase the dollar limit for required pre-approval for medical services from $500 to $1200, thus speeding necessary medical care and diagnostic services to injured workers.

• Amend §13 to require carriers to actually pay all causally related medical bills within 30 days of those bills being submitted by treating doctors or other health care providers. If no timely payment, then make all late payments subject to statutory interest and penalty.

• Make it mandatory for all private health insurance carriers to pay for medical care during a period when a workers’ compensation case is under controversy. If the case is later established make it mandatory and easy for the health insurance carrier to be reimbursed with interest and costs.

4. Workforce development

• Afford injured workers meaningful vocational rehabilitation as recommended by VESID or the Board’s vocational counselors.

• Better integrate VESID into existing Labor Department return to work programs.

• Create new incentives for employer implementation of return to work and light-duty programs.

5. Actively seek new cost savings for business

• Adopt a regional premium rating system based on the location of the business within the state.

• Abolish the Compensation Insurance Rating Board (CIRB) and transfer the functions of the CIRB to state government to increase the transparency of the rate and classification process and to promote consistent treatment of State Insurance Fund (SIF) insured and private carrier insured employers. Protect the employment rights all of any employees that might be transferred to state agencies. Require all carriers and self-insureds to report to the Insurance Department in detail with respect to profits and losses. Provide for state agency publication of comparative data on the cost and effectiveness of all insurers including SIF.

• Increase the time for requiring up-to-date medical exams of claimants to 90 days from 45 days and institute a presumption that disability continues unchanged during the interval.

• Establish fair fee schedules for medication, diagnostic services and durable medical devices that preserve the claimant’s right to freely choose a vendor.

• Abolish the wasteful conciliation process at the Workers’ Compensation Board. Conciliation is widely viewed as an unsuccessful experiment by both claimant and defense practitioners.

• The Workers’ Compensation Board should institute statewide safety awareness programs and utilize existing incentives to encourage employers and insurers to give premium credit for safe workplaces.

For further information contact: Troy Rosasco at (631)-582-3700 or John Sciortino at (585)-475-1101 or Richard Winsten at (518) 465-5551.

For a detailed analysis of each of the above points please request a copy of the WCA white paper on workers’ compensation reform.  www.nyworkerscompensationalliance.org

I have been disabled since 1994 and on social security disability since 1996 due to back injury. Will this effect me in any way with money being stopped because I am over the 500 week period. Very concerned

if an employer disregards honesty,fairness and the law,can they be called on it? i'm accusing my ex-employer,home depot,of poorly investigating the accusation of an 11yr.assistant manager,who was falsely accused of a terminable offense just to rid themselves of a money costing problem. this employee was injured on the job due to unsafe working conditions that the company is aware of and persists even today. the employee was 'marked' and the termination investigation decided long before the incident could be proven a lie. while on a doctors request for a 2 week time off,3 days shy of the return date,he was fired because of his physical deterioration. 4 knee operations on the same knee in four years and a fifth off in the distance made home depot accepted the one sided story of his accuser. there's more !!!