WCA Estimates the Cost of the Medical Treatment Guidelines
On Monday, January 23, 2012 the WCA released an estimate to the New York State Legislature of the cost of the Medical Treatment Guidelines. The state Workers' Compensation Board implemented the Guidelines on December 1, 2010, and has applied them both retroactively and prospectively.
The original intent of the Legislature in authorizing the Board to create a list of "pre-approved" medical treatment and surgery was to expedite medical treatment to injured workers, reducing red tape and litigation. It was expected that both injured workers and insurers would benefit not only from the reduction in litigation costs but also from speedier return to work.
In practice, the Medical Treatment Guidelines have vastly expanded red tape and litigation, slowed and limited medical treatment for injured workers, and dramatically increased costs for insurers.
The WCA analysis shows that - measured conservatively and using the Board's own data - the cost of the litigation process associated with the Medical Treatment Guidelines is twice the cost of the medical treatment the Guidelines cut off.
Instead of reducing costs and speeding medical care to injured workers, the Medical Treatment Guidelines have expanded costs and slowed treatment. In view of the evidence, the WCA has called on the Board to withdraw the Guidelines and all associated process and to reconsider how to best achieve the Legislature's intent. In the interim, the WCA has called on the Legislature to prohibit the Board from retroactive application of the Guidelines as a matter of justice and due process.
The WCA analysis can be found here.
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WCA Releases 2012 Legislative Agenda
2012 LEGISLATIVE AGENDA
TOP PRIORITIES
1. A6294/S3746 - the Medical Treatment Guidelines Retroactivity Bill.
On December 1, 2010, the Workers’ Compensation Board implemented Medical Treatment Guidelines intended to establish a standard of medical care in workers’ compensation cases. The Board further stated that these Guidelines – which substantially restricted the availability of pain medication, physical therapy, and chiropractic treatment – would be applied to all workers’ compensation claims, regardless of the date of accident. The WCA wrote to the Board expressing grave concern about the retroactive application of the Guidelines.
As predicted by the WCA, the retroactive application had the effect of terminating treatment for thousands of injured workers. In many instances, the treatment had been approved or agreed upon years or even decades prior to the implementation of the Guidelines.
The Medical Treatment Guidelines developed by a New York State Insurance Department Task Force were never intended to be applied in a retroactive fashion, and the Board’s interpretation and application of the Guidelines has been an unmitigated disaster for injured workers, health care providers, employers, carriers, attorneys, and the Board’s own staff.
The WCA supports A6294/S3746, which would prohibit the Board from applying the Medical Treatment Guidelines in a retroactive fashion.
2. A2135/S2781 - the Social Security Presumption Bill.
The Workers’ Compensation Board has issued new 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.
The WCA supports A01235, which would streamline the system by providing that that a worker who is approved for Social Security Disability benefits is totally disabled for workers’ compensation purposes.
3. A2135/S2781 A11337- the Right to a Hearing Bill.
The Workers’ Compensation Board continues to deny injured workers their right to a hearing before a Workers’ Compensation Law Judge, despite existing statutory language that guarantees that right. The Board has replaced hearings with a variety of administrative processes and non-judicial decisions that deny claimants and employers substantive and due process rights and which deliver inferior justice to the parties in the system.
It is clear that the legal protection for the right to a hearing must be strengthened in order to prevent the further denial of the due process rights of injured workers. A11337 would require the Board to schedule a hearing where a request is filed together with substantiating evidence, thus limiting the Board’s increasing administrative denial of the basic due process right to a hearing.
The WCA supports A11337.
INDEMNITY BENEFIT LEGISLATION
1. A03117-B - a cost-of-living adjustment for permanently totally disabled workers and dependents in death cases.
Unlike Social Security Disability benefits, workers’ compensation benefits do not rise as the cost of living rises over time. Workers who were injured years ago are still receiving the benefit rates in effect at the time of their accidents - in some cases less than $150 per week. These workers include the most seriously injured, who have been found permanently totally disabled, and the surviving spouses and children of workers who were killed on the job.
A3117-B would provide a cost of living adjustment for those who are most in need – workers who are permanently totally disabled and the dependents of those who died on the job. This much-needed adjustment would further the basic purpose of the Workers’ Compensation Law, which is to provide economic support to injured workers and their dependents.
The WCA supports A3117-B.
2. Amending WCL Sections 15(3)(w) and 15(6) to harmonize the effective dates of the caps on permanent partial disability benefits and increased benefit rates.
The 2007 amendments to the Workers’ Compensation Law imposed time limitations, or caps, on permanent partial disability benefits for workers injured on or after March 13, 2007. That same legislation increased the maximum weekly benefit rate for workers injured on or after July 1, 2007.
It is fundamentally unfair for workers who were injured between March 13, 2007 and July 1, 2007 to be subject to the permanent partial disability “caps” while being denied the benefit of increased maximum weekly rates. The basic compromise of the 2007 legislation was a trade – increased weekly maximum rates for time limits on permanent partial disability benefits. The workers who fall in the “gap” between March 13, 2007 and July 1, 2007 are victimized by suffering all of the considerable downside of that trade, while reaping none of the benefits.
The WCA supports amending the 2007 legislation to make the permanent partial disability caps effective for accidents occurring on or after July 1, 2007, which is the same date as the increased maximum rates became effective.
3. Amending WCL Section 15(6) to index the minimum benefit rate.
The 2007 amendments to the Workers’ Compensation Law “indexed” the maximum weekly workers’ compensation rate for accidents occurring on or after July 1, 2010. As a result of the indexing provision, the maximum weekly benefit rate for accidents occurring between July 1, 2010 and June 30, 2011 is now $739.83, compared to $400 for accidents occurring prior to July 1, 2007.
While the 2007 legislation did raise the minimum weekly benefit from $40 per week to $100 per week, it did not index the minimum rate as it did the maximum rate. The minimum rate is crucial to tens of thousands of low-wage workers. Just as the maximum weekly benefit rate was indexed to prevent it from falling into economic irrelevance (as occurred when it was not raised from 1992 – 2007), the minimum weekly benefit should also be indexed.
The WCA supports amending the Workers’ Compensation Law to provide that the minimum weekly benefit shall be 25% of the maximum weekly benefit beginning July 1, 2010, the effective date of indexing for the maximum weekly benefit.
4. Amending WCL Section 16(4)(b) to increase no dependency awards
to $100,000 and indexing same.
Workers’ Compensation Law Section 16(4)(b) provides for an award of $50,000 payable to a workers’ parents or estate in cases of work-related death where there is no surviving spouse or other dependents. This provision was added to the law in 1990, and has remained unchanged since that time. In the interim, the maximum weekly workers’ compensation benefit rate has nearly doubled.
It is plainly inequitable for the award in a death case to remain unchanged for over twenty years. This award should be increased in accordance with the increase in other workers’ compensation benefit rates, and should be similarly indexed.
The WCA supports an amendment to WCL Section 16(4)(b) that would increase the “no dependency” death case award to $100,000 and index that award in future years.
5. Amending WCL Section 15(3)(v) to prevent discrimination against
immigrant workers.
Workers’ Compensation Law Section 15(3)(v) provides crucial protection for some of the most seriously injured workers. Under this statute, workers who lose more than 50% of the use of an extremity (arm, leg, hand or foot) and who would ordinarily be deprived of wage replacement benefits beyond the statutory “schedule loss” award are potentially entitled to additional compensation. In order to be eligible for such additional benefits, the worker must “participate in a board approved rehabilitation program; or shall have demonstrated cooperation with efforts to institute such a board approved program and shall have been determined by the board not to be a feasible candidate for rehabilitation.”
In Matter of Ramroop v Flexo-Craft Print, Inc., 11 NY3d 160, 866 NYS2d 586, 896 NE2d 69 (2008), the Court of Appeals upheld the Board’s determination that injured workers who are precluded from participating in board approved rehabilitation programs by virtue of their immigration status are not entitled to benefits under Section 15(3)(v), notwithstanding the provisions of Workers’ Compensation Law Section 17, which provides that “compensation under this chapter to aliens not residents or about to become nonresidents of the United States or Canada, shall be the same in amount as provided for residents.” The Ramroop decision effectively provides unequal compensation based on immigration status, in direct contradiction of the purpose of the Workers’ Compensation Law, which is intended to protect and compensate injured workers. Moreover, the very workers most likely to be maimed by industrial machinery, and most in need of the protection offered by WCL Section 15(3)(v), are the ones excluded from coverage under this decision.
The WCA supports an amendment to WCL Section 15(3)(v) to overrule the Ramroop decision and provide proper and adequate compensation for severely injured workers, regardless of immigration status.
6. Amending WCL Section 35(3) to reduce the threshold for Safety Net consideration from an 80% loss of wage earning capacity to a 50% loss of wage earning capacity.
The 2007 amendments to the Workers’ Compensation Law imposed time limits on permanent partial disability benefits. Prior to these reforms, workers who were permanently partially disabled from work could receive benefits for the duration of their disability, unencumbered by artificial time restrictions. The 2007 legislation also provided a “safety net” for workers who suffered more than an 80% loss of wage earning capacity. Under the safety net provisions, within one year of his or her benefits being exhausted, the injured worker may apply to the Board for re-classification as industrially totally disabled, showing “extreme hardship.”
To date, the Board has yet to issue any meaningful guidance regarding the evaluation of loss of wage earning capacity. As a result, the workers’ compensation system continues to rely on medical impairment determinations based on the 1996 Workers’ Compensation Board Medical Guidelines, which divide disability into “mild” (25%), “moderate” (50%), “marked” (75%) and “total” (100%). Under this regime, it is unlikely that any injured worker will reach the 81% threshold for safety net eligibility. Moreover, many workers who are deemed “50% disabled” under the present system are not employable in a meaningful fashion. New York State Department of Labor statistics demonstrate that most workers who are found to be permanently partially disabled with at least a 50% disability do not return to work in any capacity, and other evidence indicates that most of such workers qualify for Social Security disability benefits due to unemployability. It is therefore clear that the 81% threshold is too high to provide meaningful protection to workers whose benefits will be terminated through the 2007 caps on permanent partial disability benefits.
The WCA supports an amendment to WCL Section 35 that would create eligibility for the safety nets with a finding of a 50% loss of wage earning capacity.
ADMINISTRATIVE PROCEDURE LEGISLATION
1. S7900 - the Reporter Bill.
For decades, hearings at the Workers’ Compensation Board have been recorded by court reporters, or stenographers. Stenographic recording – which is what is used in civil and criminal cases throughout the State of New York – provides a reliable, accurate means of recording judicial proceedings and trial testimony.
The Workers’ Compensation Board has suggested that court reporters can be replaced with electronic recording equipment. The WCA supports the stenographic recording of hearings by court reporters, and opposes the use of electronic recording equipment. The Workers’ Compensation Board has suggested that it may try to exploit a potential loophole in the law, which already requires that hearings be “transcribed” by reporters, by taking the position that a court reporter may not be necessary to “record” the hearing.
The WCA supports S07900, which would require hearings to be “recorded and transcribed” by court reporters, thus closing this loophole.
2. Amending WCL Section 24 to provide for attorneys fees in cases involving medical treatment.
For injured workers, access to benefits in an increasingly complex workers’ compensation system depends largely on the availability of representation. Within the system, claimant attorney fees are awarded by the Workers’ Compensation Board as a lien on the awards made by the Board. “Medical only” claims, in which no indemnity benefits are payable because there is no wage loss or “schedule loss” award due, are the largest category of claims in which workers lack representation. This shortfall is due to the Board’s interpretation of its authority under WCL Section 24 to consider only the value of indemnity benefits as part of an “award,” and to limit attorney fees to cases in which an indemnity award is entered.
This approach is both archaic and deprives injured workers of access to benefits by depriving them of representation that would otherwise be available. In 2010, the value of medical benefits paid in workers’ compensation claims exceeded the value of indemnity benefits paid – yet the value of medical benefits was wholly excluded from consideration by the Board in awarding attorney fees.
The New York State Department of Labor, in its Report of the Commissioner on Return to Work, recommended that the Board provide compensation to attorneys in medical only cases. The Commissioner observed that the lack of representation deprives injured workers of needed benefits and disadvantages them in the system.
The WCA supports an amendment to WCL Section 24 that would permit and encourage the Workers’ Compensation Board to consider the value of medical benefits in workers’ compensation cases and to award claimant attorney fees in connection therewith.
3. Amending WCL Sections 23 and 24 to provide for the provision of attorney fees to claimant attorneys in connection with appeals to the Appellate Division.
Workers’ Compensation Law Section 24 provides that a claimant’s attorney in a workers’ compensation case may only be paid for representation before the Workers’ Compensation Board when the Board awards a fee, and that such fee is a lien on the award. The attorney may not charge or receive a fee directly. Pursuant to WCL Section 23, appeals from decisions of the Workers’ Compensation Board are heard by the Supreme Court, Appellate Division, Third Judicial Department.
Although the Third Department hears appeals in workers’ compensation matters, representation in connection with such appeals is not representation before the Board. In a letter dated November 22, 2010, the Chair of the Workers’ Compensation Board implied that the Board may be of the opinion that it retains jurisdiction over attorney compensation related to matters pending before the Appellate Division. While those matters are concerned with workers’ compensation issues, they are by definition not before the Board (from whose decision the appeal was taken), but rather are before the Court.
The ambiguity created by the Board’s assertion of potential jurisdiction over attorney fees in appeals to the Appellate Division has had a chilling effect on the ability of injured workers to pursue appeals from the Board’s decisions. Attorneys in such matters must either prosecute appeals pro bono, or reject the Board’s apparent interpretation of the statute and charge a fee to the injured worker – many of whom can ill afford the cost of an appeal. Insurance carriers, however, suffer no such disadvantage.
The WCA supports an amendment to WCL Sections 23 and 24 that would clarify the Board’s jurisdiction over attorney fees in appeals to the Appellate Division and the Court of Appeals and provide for payment to claimant attorneys in such matters.
4. Amending WCL Section 162 to extend the time frame for filing WTC-12 registration forms.
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 deadline to file a WTC-12 form expired on 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. Unfortunately, hundreds of these workers did not file registrations before the deadline and are now denied benefits.
The WCA supports an amendment to WCL Section 162 to extend the deadline to file WTC-12 registration forms so that those who participated in rescue, recovery and clean-up operations at the World Trade Center and related sites can register and preserve their right to claim workers’ compensation benefits.
5. Enacting regulations that prohibit unfettered cross-examination of injured workers and health care providers in the absence of contrary evidence submitted by the employer or carrier.
The Appellate Division has held that “in the absence of a viable difference in the expert opinions expressed in the medical reports, no prejudice accrues as a result of the denial of the right to cross-examine a medical expert.” Bryan v. Borg-Warner Automotive, 293 A.D.2d 856, 742 N.Y.S.2d 393 (3rd Dept. 2002); see also, Robideau v. Van Rensselaer Manor, 56 A.D.3d 866, 866 N.Y.S.2d 457 (3rd Dept. 2008). The reason that there is no right to cross-examination in the absence of a joined issue is that the Workers’ Compensation Board has no right to fashion its own medical opinion. If there is only medical opinion in the record, then the Board’s decision must be in accord with the substantial evidence. Cerami v. City of Rochester School District, 82 N.Y.2d 809, 604 N.Y.S.2d 543 (1993); see also, Findling v. Comm. General Houses, 288 A.D.2d 798, 720 N.Y.S.2d 630 (3rd Dept., 2001).
Although the Board has exposure to cases involving medical questions and a “certain expertise” in such matters, this expertise is to be employed in weighing and balancing evidence with appropriate regard for its probative character, not in fashioning the Board’s own medical opinion.” Doersam v. Oswego Co. Dep. of Soc. Servs., 171 A.D.2d 934, 566 N.Y.S.2d 978 (3rd Dept., 1991); Smith v. Bell Aerospace, 125 A.D.2d 140, 512 N.Y.S.2d 541 (3rd Dept. 1987). The Board may not fashion a medical opinion of its own. Lincoln v. Con Ed., 46 A.D.3d 1176, 848 N.Y.S.2d 418 (3rd Dept., 2007); Sullivan v. Sysco, 199 A.D.2d 849, 606 N.Y.S.2d 77 (3rd Dept., 1993); Knouse v. Millshoe, 260 A.D.2d 948, 689 N.Y.S.2d 266 (3rd Dept., 1999).
Notwithstanding the law set forth by the Appellate Division, the Board has often concluded that one of its rules, 12 NYCRR Section 300.10, requires it to grant requests for cross-examination even in the absence of contrary evidence. This approach encourages frivolous and dilatory litigation, delaying the payment of benefits to injured workers and imposing an unnecessary burden and cost on the Board.
The WCA supports an amendment to 12 NYCRR Section 300.10 that would permit the Board to deny a request for cross-examination where no contrary evidence is submitted.
6. A01972/S3056 - expanding the availability of medical care for psychological injury and disability by authorizing treatment by certified social workers.
Injured workers who require psychological or psychiatric care have few available resources. There is an extremely limited number of psychiatrists who are “coded’ by the Workers’ Compensation Board and who are willing to accept new patients. Factors which contribute to this situation include inadequate reimbursement for treatment under the workers’ compensation fee schedule and the high controversy rate associated with claims for mental illness. Although the availability of psychiatric care is somewhat expanded by existing statutory authorization for treatment by licensed psychologists, referral from a medical doctor is required for such treatment and the same disincentives that discourage psychiatrists from participating in the workers’ compensation system affect psychologists.
Authorizing certified social workers to provide treatment in workers’ compensation cases under the same ground rules that are applicable to psychologists would expand the availability of medical care for work-related psychological injuries. In addition, social workers are uniquely suited to address the secondary consequences of work-related injury and disability on family dynamics.
The WCA supports A01972/S3746.
7. Enacting regulations that govern employer and carrier relationships with diagnostic test networks, notice of such relationships, quality care standards, and provision of diagnostic test reports.
The 2007 amendments to the Workers’ Compensation Law authorized employers and insurance carriers to enter into contracts with diagnostic test networks for the performance of radiological and other diagnostic tests in workers’ compensation cases. The amendments were intended to provide cost savings to employers and carriers while preserving quality of care for injured workers.
Five years of experience under the statutory amendments has highlighted the need for additional regulation under the statute. Among other matters, provision must be made for (1) notice of the required use of the employer or carrier’s network to the injured worker and the treating physician(s); (2) proximity of the test facility to the injured worker’s residence; (3) provision of reports and films to the injured worker and the treating doctor; and (4) filing and public disclosure of contracts between employers, carriers, and diagnostic test facilities.
The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to employer and carrier diagnostic test networks.
8. Enacting regulations that govern the Board’s use of impartial specialists, guaranteeing the impartiality of such specialists and providing oversight.
The Workers’ Compensation Law authorizes the Workers’ Compensation Board to utilize impartial specialists in cases involving questions of diagnosis or causal relationship. The Board’s use of such specialists is, however, wholly unregulated. This has called into question the impartiality and qualifications of physicians selected by the Board to serve as impartial specialists, undermining the confidence of the parties in the system.
This oversight should be remedied with regulations addressing, among other items, (1) the circumstances in which impartial specialist examinations are appropriate; (2) the circumstances in which the authority to direct such examination may rest with a WCL Judge or with the Board; (3) qualifications to serve as an impartial specialist and periodic re-certification of same; (4) the mechanism for a party to object to the direction for an impartial specialist examination or the qualifications or appointment of a particular impartial specialist; (5) the conduct of impartial specialist examinations; (6) filing and service of impartial specialist reports; (7) cross-examination of impartial specialists.
The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to the use of impartial specialists.
9. Adopting regulations governing “independent medical examinations,” delineating permissible relationships between medical consultants, IME vendors, and carriers, establishing data tracking for the reports of such physicians, and strengthening and clarifying existing regulations regarding IME examinations and reports.
The use by employers and insurance carriers of “independent medical examinations” is pervasive in the workers’ compensation system. Reports resulting from these examinations are used to reduce and deny medical and indemnity benefits to injured workers.
The IME process has historically been the source of substantial abuse by employers and insurance carriers. In 2000, the Workers’ Compensation Law was amended in an effort to remedy that abuse, and the Workers’ Compensation Board subsequently issued regulations in furtherance of the statutory amendment. Although the statute and existing regulations have been beneficial, the use of “IME vendors” continues to result in the submission of inaccurate and sometimes fraudulent IME reports.
Among other matters, provision must be made to address (1) relationships between insurers and IME companies; (2) disclosure of such relationships; (3) relationships between IME companies and IMEs; (4) disclosure of such relationships; (5) permissible fees for the conduct of independent medical examinations; (6) restriction of the application of the regulations to employer and carrier consultants; (7) data collection regarding the outcome of IME examinations by IME, IME company, and carrier; (8) service and filing of IME reports.
The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to the conduct of independent medical examinations.
THIRD PARTY LITIGATION
1. Amending Insurance Law § 5102 to define basic economic loss as the maximum monthly workers’ compensation benefit rate.
Insurance Law § 5102 defines “basic economic loss” as wage loss up to $2,000 per month. Workers’ Compensation Law § 29(1-a) provides that a workers’ compensation carrier has no lien on a personal injury recovery to the extent that its payments are equivalent to basic economic loss. This provision is intended to assure that those who are injured in work-related motor vehicle accidents are not disadvantaged by the creation of liens that would not otherwise exist.
The current weekly workers’ compensation benefit rate exceeds $2,000 per month for some injured workers. As a result, these workers are subject to partial workers’ compensation liens. Given the various relationships between the Workers’ Compensation Law and the No-Fault Law, it is logical and reasonable to co-ordinate the definition of basic economic loss with the maximum workers’ compensation benefit rate.
The WCA therefore supports amending Insurance Law § 5102 to define basic economic loss as the maximum monthly workers’ compensation benefit rate.
2. Amending WCL § 29 to limit workers’ compensation liens to matching categories of personal injury recovery.
Workers’ Compensation Law § 29 permits a worker who is injured by the negligence of a third party to accept workers’ compensation benefits from his or her employer and also pursue a personal injury lawsuit against the tortfeasor. The law further provides the workers’ compensation carrier with a lien on “any” recovery from the tortfeasor, regardless of whether the recovery from the tortfeasor bears any relation to the workers’ compensation benefits paid.
It is patently unjust and inequitable to afford the workers’ compensation carrier a lien for benefits it paid against an unrelated personal injury recovery. Workers’ compensation benefits are payable solely for lost wages and medical expenses, while a personal injury recovery may include payment for pain and suffering not covered under the Workers’ Compensation Law. Providing the workers’ compensation carrier with a lien against a personal injury recovery to the extent that such is for wage loss or medical expenses is logical and serves to prevent duplication of benefits. However, providing the workers’ compensation carrier with a lien against a personal injury recovery for pain and suffering that was not the subject of the workers’ compensation claim unjustly enriches the compensation carrier at the expense of the injured worker.
The WCA supports an amendment to WCL Section 29 that limits the compensation carrier’s lien to those portions of a personal injury recovery that compensate wage loss or medical expenses.
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Workers' Compensation Alliance Comments on the 2012 Guidelines
The Workers’ Compensation
The WCA recognizes that the medical impairment guidelines are adopted in their entirety from the September, 2010 report from the New York State Insurance Department. The WCA comments regarding that report can be found here. The Board has, however, added a “crosswalk” that permits severity ratings for different body parts to be compared on a 0-6 scale.
The 2012 Guidelines repeatedly state that medical impairment does not translate into loss of wage earning capacity, and that worker’s compensation benefits depend on the loss of wage earning capacity, rather than medical impairment. This represents a significant shift from present workers’ compensation practice, which tends to minimize the consideration of functional loss and vocational factors except in rare instances (claims for total industrial disability).
The Insurance Department’s Task Force and Advisory Group specifically designed its medical impairment guidelines to prevent comparison of severity rankings across body parts in order to assist in shifting the system’s focus from medical impairment to loss of wage earning capacity. The WCA is concerned that the Board’s creation of a “crosswalk” will undermine this goal. Instead of converting medical impairment into a series of letter rankings that cannot be translated into traditional “degrees of disability” as intended by the Task Force and Advisory Group, the “crosswalk” facilitates such translation. It is therefore of critical importance that in training its personnel the Board place a strong emphasis on the multiple portions of the 2012 Guidelines that prohibit conversion of medical impairment into compensation benefits and which require consideration of other factors.
The WCA is generally supportive of those portions of the 2012 Guidelines that mandate evaluation of the impact of functional loss and vocational characteristics on loss of wage earning capacity. The WCA commends the Board for recognizing that there are few employment options available for many workers who are limited to sedentary work as the result of occupational injury. Such workers have little if any earning capacity and must be protected by the workers’ compensation system.
The WCA regrets the lack of guidance in the 2012 Guidelines regarding the respective weight of medical impairment, functional loss, and vocational factors, as well as the specific weight to be accorded to any given vocational factor. The WCA recognizes that this approach permits an individualized assessment of each injured worker. However, the absence of guidance may well result in dissimilar outcomes in otherwise similar cases due to the variability inherent in the litigation process.
If the 2012 Guidelines are applied so that full and fair weight is given to the impact of functional loss and vocational factors on wage earning capacity, then the system may well achieve more substantial justice than it has in the past when inquiry was limited largely to medical impairment. If, however, the Board fails to properly emphasize the impact of functional loss and vocational factors, or if those factors are accorded insufficient weight in the ultimate determination, then substantial loss of benefits may occur due to the minimization of medical impairment under the new guidelines.
The WCA will continue to monitor the implementation of the 2012 Guidelines and comment as appropriate.
Special Note: The WCA will be conducting its second Continuing Legal Education Seminar (in conjunction with ACE-CLE) on November 18, 2011.
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WCA Blog Honored by Lexis-Nexis for Second Consecutive Year
LexisNexis Workers’ Compensation Law Community Announces Top 25 Blogs for Workers’ Compensation and Workplace Issues – 2011 Honorees
The New York Workers Compensation Alliance Blog has been selected as a LexisNexis Top 25 Blog for Workers’ Compensation and Workplace Issues – 2011, in the State-Specific Blogs category.
Selections were made by the LexisNexis Workers’ Compensation Law Community staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members.
The Top 25 Blogs contain some of the best writing out there on workers' compensation and workplace issues in general. They contain a wealth of information for the workers' compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers' compensation and workplace issues.
You can read the full announcement and list of honorees here.
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WCA Calls for Full Coverage for Livery Drivers
Medallion taxi drivers in New York City are covered by workers' compensation if they get hurt on the job. Black car drivers are too, through the Black Car Operators Insurance Fund. Livery drivers? Not so much. Due to legislation passed in January, 2010, livery drivers are only eligible for benefits in certain limited circumstances, generally involving injuries suffered due to criminal activity and those involving severe injury. Rather than expanding coverage for these drivers, the law actually reduced it.
The Legislature recently passed legislation that expands the geographic area in which livery drivers can legally pick up fares. Although the law envisions more work for livery drivers, it continues to treat them as second-class citizens for workers' compensation purposes.
The WCA supports full workers' compensation coverage for all workers. Livery drivers should have the same benefits available to them as medallion taxi drivers and black car drivers, and should not be left to shoulder the burden of medical expenses and lost wages following on-the-job injury.
On July 11, 2011, the WCA wrote to Governor Cuomo calling for full workers' compensation coverage for livery drivers. The letter is available here.
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WCA Opposes CIRB Application for Increase in Workers' Comp Insurance Rates
The New York Compensation Insurance Rating Board (“CIRB”) has filed a rate application seeking an increase in workers’ compensation insurance rates of over 10%. As required by law, the Insurance Department has scheduled a public hearing, and the WCA has submitted this testimony in opposition to the rate filing.
The WCA believes that CIRB’s data collection process lacks transparency, consisting of the un-audited self-report of information by private insurers to an entity controlled by those same insurers. The information used by the CIRB cannot be verified by comparison to other sources, does not correlate with actual workers’ compensation benefit payments, and is not based on actual payments, but rather on carrier “projections” that are of dubious validity. As a result, the CIRB’s submissions are wholly lacking in credibility.
The WCA’s testimony takes the position that these factors should lead the Insurance Department to reject CIRB’s application. The WCA also calls the Insurance Department’s attention to the provisions of the 2007 Workers’ Compensation Reform Act that were intended to remove the CIRB from data collection and rate-making functions. These provisions remain unfulfilled.
The WCA also disagrees that employer or carrier costs have increased at the rate suggested by the CIRB. Available information regarding the impact of the 2007 statutory reforms does not support the CIRB’s current application.
To the extent any increases have occurred, such would be due to the failure to fully implement the 2007 statutory reforms. The lack of implementation is, in turn, directly attributable to the obstruction of various reform Task Forces by The Business Council of New York State (“the Business Council”) and the insurance industry – which collectively dominate the CIRB. The relationship between the Business Council and the insurance industry is well illustrated by the Business Council’s vote in favor of the rate increase, which (if approved by the Insurance Department) would increase costs for every non-insurance-industry member of the Business Council.
For all of these reasons, the WCA has taken the position that the CIRB’s rate application should be rejected.
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WCA Says No More Medical Treatment Guidelines!
The Workers' Compensation Alliance has continued its fight to defend injured workers and their access to medical care. On June 6, 2011, the WCA sent its third letter to the Chair of the Workers' Compensation Board, this time opposing the creation of more Medical Treatment Guidelines proposed by the Board. The letter is posted here.
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WCA Announces 2011/2012 Legislative Agenda
The New York Workers’ Compensation Alliance recognizes that benefits and due process for injured workers in the workers’ compensation system are governed not only by statute, but also by regulation and administrative procedures. Our 2011 Legislative Agenda focuses primarily on statutory amendments, but also identifies areas in need of additional regulation.
Our legislative priorities are:
1. Restoring the safety net for permanently partially
disabled workers.
We support:
a. S00728 - the Social Security Presumption Bill;
b. Amending WCL Section 15(3)(v) to prevent
discrimination against immigrant workers;
c. Amending WCL Section 35(3) to reduce the
threshold for Safety Net consideration from an
80% loss of wage earning capacity to a 50%
loss of wage earning capacity;
d. Adopting guidelines for the determination of
loss of wage earning capacity that are fair to
injured workers.
2. Preserving the right to due process for injured
workers.
We support:
a. A1817 - the Right to a Hearing Bill;
b. S04112 - the Reporter Bill;
c. Amending WCL Section 24 to provide for
attorneys fees in cases involving medical
treatment;
d. Amending WCL Sections 23 and 24 to provide
for the provision of attorney fees to claimant
attorneys in connection with appeals to the
Appellate Division;
e. Amending WCL Section 162 to extend the
time frame for filing WTC-12 registration
forms;
f. Enacting regulations that prohibit unfettered
cross-examination of injured workers and
health care providers in the absence of
contrary evidence submitted by the employer
or carrier.
We oppose:
a. A5923/S4176 – requiring injured workers to
respond to insurance carrier questionnaires.
3. Protecting the right to appropriate medical treatment for injured workers.
We support:
a. A6294/S3746 - the Medical Treatment
Guidelines Retroactivity Bill;
b. A01972/S3056 - expanding the availability of
medical care for psychological injury and
disability by authorizing treatment by certified
social workers;
c. Withdrawal and re-evaluation of all current
Medical Treatment Guidelines regulations
and process;
d. Enacting regulations that govern employer
and carrier relationships with diagnostic test
networks, notice of such relationships, quality
care standards, and provision of diagnostic
test reports;
e. Enacting regulations that govern the Board’s
use of impartial specialists, guaranteeing the
impartiality of such specialists and providing
oversight.
4. Repairing gaps in the law.
We support:
a. A00186 - a cost-of-living adjustment for
permanently totally disabled workers and
dependents in death cases;
b. Amending WCL Sections 15(3)(w) and 15(6)
to harmonize the effective dates of the caps
on permanent partial disability benefits and
increased benefit rates;
c. Amending WCL Section 15(6) to index the
minimum benefit rate;
d. Amending WCL Section 16(4)(b) to increase
no dependency awards to $100,000 and
indexing same;
e. Amending WCL Section 15(6)(a)(4) to prohibit
reduction in the state average weekly wage for
purposes of the Workers’ Compensation Law;
f. Amending WCL Section 204 to increase the
maximum rate for NYS Disability Benefits from
$170 per week to $500 per week;
g. Amending VFBL Sections 8 through 11 to
increase the rates for Volunteer Firefighter
Benefit Law claims to correspond to the
maximum workers’ compensation benefit
rate, as indexed;
h. Amending WCL Section 27 to include
self-insured employers and the State Insurance
Fund in addition to private insurance carriers;
i. Amending WCL Section 29 to provide
employers and carriers with a lien on the
portion of third-party recoveries corresponding
to workers’ compensation benefits;
j. Adopting regulations governing “independent
medical examinations,” delineating permissible
relationships between medical consultants,
IME vendors, and carriers, establishing data
tracking for the reports of such physicians, and
strengthening and clarifying existing regulations
regarding IME examinations and reports.
A detailed description of the agenda is available here
Posted By WCA In Breaking News
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WCA Releases Letter Condemning the Medical Treatment Guidelines
On April 14, 2011, the Workers' Compensation Alliance released a letter calling on the New York State Workers' Compensation Board to rescind its Medical Treatment Guidelines and the associated processes.
The Medical Treatment Guidelines, or MTG, became effective on December 1, 2010. Over the objections of the WCA and others, the Board declared that the MTG would be applied retroactively to cases in which the injury had occurred years earlier. Over four months later, it has become apparent that the MTG are being used by the insurance industry to contest and eliminate medical treatment for injured workers.
The WCA letter states "that the MTG are illegal, have been substantially misapplied by the Board, and that the associated process has imposed new and substantial burdens on injured workers, health care providers, employers, carriers, and the Board's own staff. We are frankly unable to envision any modification of the process that would salvage any benefit from this ill-conceived system. We therefore request that all MTG regulations, paperwork and process be withdrawn by the Board."
Read the full letter here.
Posted By WCA In Breaking News
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WCA Welcomes Senate and Assembly Labor Chairs
Previously, State Senator Joseph Robach was announced as the chair of the Senate Labor Committee. The State Senate page regarding Senator Robach can be located here:
http://www.nysenate.gov/senator/joseph-e-robach
Assemblyman Keith L.T. Wright has now been announced as the chair of the Assembly Labor Committee. The State Assembly page regarding Assemblyman Wright can be located here:
http://assembly.state.ny.us/mem/Keith-L-T-Wright
The WCA welcomes Senator Robach and Assemblyman Wright to their new posts (also an old post for Senator Robach). We look forward to working closely with these public officials, through whose committees legislation regarding the workers' compensation system must pass.
Posted By WCA In Breaking News
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WCA Criticizes Implementation of the Medical Treatment Guidelines
On December 1, 2010, the New York State Workers' Compensation Board implemented its Medical Treatment Guidelines. The Medical Treatment Guidelines limit the treatment available to injured workers and create a complex set of regulations for doctors to ask for a "variance" from the process.
The Board has indicated in several "Subject Numbers" that the Guidelines will apply to all cases, even those with dates of accident before December 1, 2010 and those in which medical treatment has been ongoing. The Workers' Compensation Alliance is deeply concerned about the impact of retroactive application of the Guidelines to pending workers' compensation claims. As a result, the WCA has issued the following email and letter to the Workers' Compensation Board:
Honorable Chairman Beloten:
Chair, Workers’ Compensation
Honorable Chairman Beloten:
Chair
Workers’ Compensation
Posted By WCA In Breaking News
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WCA Comments on Proposed Cross-Examination Regulations
The Workers’ Compensation
Proposed Section 300.39(a) requires requests for cross-examination to be submitted in writing no later than 45 days after the Board receives the report.
The WCA does not support this provision. It is our considered opinion that the provision will result in both sides filing requests for cross-examination for every report that is received in order to preserve the right to cross-examination, regardless of whether cross-examination is actually desired. It would require carriers to file cross-examination requests for each C-4 that was filed, and would require claimant attorneys to file a request for almost every IME report that was filed.
There is no need to burden the parties or the Board with the volume of paperwork that would be required to comply with this provision. To the extent that the timeliness of cross-examination requests is an issue, the issue does not relate to the length of time that passes between the filing of the report and the request for cross-examination. Instead, the timeliness issue relates to the circumstances in which cross-examination is requested. Issues arise when the carrier appears for a hearing without a consultant’s report and requests cross-examination of the treating physician, or where the WCL Judge makes a decision from the bench and the carrier’s attorney requests cross-examination simply to provide a basis for appeal. Setting a time frame after a report is filed to request cross-examination and requiring that a form be filed does not address these issues in an effective manner. Instead, we believe that the issue can be addressed under proposed Section 300.39(b).
With regard to proposed Section 300.39(b), we believe that it can potentially address the issues related to cross-examination. The draft regulation should, however, be supplemented with examples so that its message is clearly communicated to the WCL Judges and the parties.
The WCA believes that there are three primary circumstances in which cross-examination should be denied.
(1) Where there is no genuine issue. The best example of this is where the claimant’s medical report is uncontradicted.
(3) The request is belated (as described above, where it is made simply to create a “due process” issue for appeal in the absence of a genuine reason for the request beyond a fishing expedition).
Proposed Section 300.39(b) specifically addresses item (1). It also addresses item (3) by specifically referring to the failure “to timely request cross-examination.” While that language may have been intended to refer back to 300.39(a), it is satisfactory standing alone in section 300.39(b), as it affords the WCL Judge latitude to decide whether a request is timely (as opposed to dilatory).
The WCA believes, however, that the proposed regulation should be amended to include language specifically addressing the set of circumstances described in item (2).
The WCA believes that the 45 day time limit in proposed Section 300.39(c) is inadequate and that at least 60 days should be provided for cross-examination.
The WCA also requests that proposed Section 300.39(d) be amended. The carrier has no right to have its witness testify. It is the claimant’s right to cross-examine. Therefore the clause “or to have the witness testify at a hearing or by deposition” should be deleted.
Read the proposed regulation here
Posted By WCA In WCA Legislative Agenda
, Breaking News
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WCA Salutes the U.S. House of Representatives for Passing the Zadroga Bill
The Workers' Compensation Alliance salutes the United States House of Representatives for at long last passing the James Zadroga 9/11 Health and Compensation Act. Special credit must go to unions representing the responders and New York representatives Carolyn Maloney and Jerrold Nadler, who worked tirelessly to shepherd the bill through a succession of House committees and ultimately to a successful floor vote.
The bill now moves to the Senate. President Obama has issued an Executive Statement that he will sign the bill when it reaches his desk.
Read more:
www.nydailynews.com/opinions/2010/09/30/2010-09-30_on_to_the_senate.html
capitaltonight.com/2010/09/house-passes-zadroga-bill/
www.nytimes.com/2010/09/30/nyregion/30health.html
Posted By WCA In Breaking News
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NYS WCB Announces Medical Guidelines Training
Training on the Medical Treatment Guidelines
Date: September 30, 2010
The Workers' Compensation Board (Board) is preparing to implement a major change in the manner medical care is provided to injured workers. The NYS Workers' Compensation Medical Treatment Guidelines will become the mandatory standard of care for the mid and low back, neck, shoulder, and knee, effective for dates of service on or after December 1, 2010. These four body parts were chosen because they represent the most frequent claims and the highest medical costs.
The Medical Treatment Guidelines will:
- Establish a standard of medical care for injured workers,
- Expedite quality care for injured workers,
- Improve the medical outcomes for injured workers,
- Speed return to work by injured workers whenever possible,
- Reduce disputes between payers and medical providers over treatment issues,
- Increase timely payments to medical providers, and
- Reduce overall system costs.
It is essential for medical providers, insurers, legal professionals, and their staffs to become familiar with the Guidelines. The Medical Treatment Guidelines are mandatory for all work-related injuries or illnesses to these four body parts experienced by employees in New York State. With few exceptions, all treatment in accordance with the Guidelines is pre-authorized, so providers will no longer have to obtain prior approval if their treatment conforms to the Guidelines. The regulations require that insurers pay providers for services rendered in accordance with the Guidelines. Treatment that is outside the Guidelines will not be paid unless a variance is approved by the insurer or the Board.
Variety of Training Opportunities Offered
This is a completely new process that involves new procedures, with both new and revised forms, so the Board is collaborating with many stakeholder groups to offer a comprehensive training program. The Board is strongly encouraging medical providers, insurers, legal professionals, and their staffs to take the available training, to ensure a smooth transition into the new Medical Treatment Guideline process.
Free Web-based, LEGAL, CME, and CCE Training
A major component of the training program is free web-based training. The courses will be available starting October 4, 2010 on the Board's web site, at the following URL: http://www.wcb.state.ny.us/content/main/hcpp/MedicalTreatmentGuidelines/MTGOverview.jsp
There are several programs available, each designed for different audiences. The medical provider program is accredited for CME credits; the chiropractor program is accredited for CCE credits. There are also courses designed for attorneys and claimant representatives, as well as for insurers, medical providers' staffs, and other non-medical persons.
The topics covered include:
- Medical Treatment Guidelines General Principles,
- Mid and Low Back Guidelines,
- Neck Guidelines,
- Shoulder Guidelines,
- Knee Guidelines, and
- Forms and Processes.
CLE Training
In addition to the web-based legal training, the Board, in cooperation with Albany Law School, will offer a Continuing Legal Education (CLE) program on the Medical Treatment Guidelines. The program, worth 3.5 CLE credits including .5 hours of Ethics, is tentatively scheduled for the morning of November 3, 2010, and will be broadcast to locations around the state. No hearings will be scheduled for that morning to allow practitioners to attend the program. More information concerning the CLE program will be placed on the Board's web site, www.wcb.state.ny.us, when it becomes available.
In preparation for the CLE program, it is recommended that legal professionals take the free web-based training and become familiar with the various standards of care that the Guidelines specify for treatment of injuries to the mid and low back, neck, shoulder, and knee. It may also be helpful to review some of the new Board forms and processes concerning use of the Medical Treatment Guidelines.
Questions and Additional Information
Please contact the Board's Bureau of Health Management at (800) 781-2362 if you have any questions. Additional information on the Guidelines may also be found on the Board's web site under Board Announcements at www.wcb.state.ny.us.
You are strongly encouraged to review the information on the Board's web site regarding the Guidelines and to take advantage of the available training. Thank you for your cooperation in this critically important initiative.
Robert E. Beloten
Chair
Posted By WCA In Breaking News
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Letter from NYS Insurance Dept to WCB
On September 15, 2010, the NYS Insurance Department issued a letter to the Workers' Compensation Board, together with Proposed Disability Duration Guidelines. For more on the Disability Duration Guidelines, see the article below.
Posted By WCA In Breaking News
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NYS Insurance Dept Issues Proposed Disability Duration Guidelines
On September 15, 2010, the New York State Insurance Department issued Proposed Disability Duration Guidelines for consideration by the Workers' Compensation Board in deciding claims for permanent partial disability under the "caps" imposed by the 2007 amendments to the Workers' Compensation Law.
The communication from the Insurance Department to the Workers' Compensation Board and the "Proposed Disability Duration Guidelines" envision a three-part process. The document that has been issued only addresses two parts of that process. The third part of the process has been left for determination by the Board, and therefore the document does not actually provide guidance on how to calculate awards until the third piece of the process has been completed.
The impairment determination is intended only to provide a foundation for a functional loss assessment. The doctor is to identify (for example) that the patient has a herniated disc confirmed by a positive MRI with radiculopathy confirmed by a positive EMG, restricted range of motion, and radiating pain. Those doctors are then to proceed to a functional evaluation. The main purpose of the severity ranking is simply to serve as a “check” on the functional opinion (it would seem inconsistent to have a high severity ranking and few functional limitations, or vice versa).
Posted By WCA In Breaking News
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WCA Expresses Concern About the "Streamlined Conciliation Process" - a/k/a "MAP"
The Workers’ Compensation
Hearings are Critical. Holding an early hearing in a claim is critical to ensuring that workers receive the proper benefits. For decades, the Board held regular hearings at which WCL Judges met injured workers in person, reviewed their cases, and provided direct and personal advice to the worker about his or her claim.
In the past decade, the Board has increasingly denied hearings before WCL Judges to injured workers, instead issuing “Administrative” and “Proposed” Decisions which decide important legal issues. These decisions are produced not by Judges, but instead by non-judicial WCB staff. They are written in language that the average worker cannot understand, do not adequately inform workers about their rights, and often contain errors. In short, these paper decisions are inferior in every way to the hearing process.
Access to Benefits. Instead of recognizing that the Administrative and Proposed Decision process that began under the anti-worker Pataki Administration is designed to limit access to benefits and due process for injured workers, its use has regrettably accelerated under the Spitzer and Paterson administrations. Rather than eliminating these non-hearing decisions and restoring the right of injured workers to hearings before WCL Judges, the Board is reportedly considering expanding the authority of its non-judge employees to decide claims and to issue those decisions without hearings. The WCA opposes the Administrative and Proposed Decision process, and is opposed to any further expansion of the program.
Injured workers have a right to have their claims heard, in person, by a WCL Judge. Judges are obviously better trained and more versed in the law than non-judicial Board staff. A Judge who is able to see and speak to an injured worker is obviously in the best position to identify issues in the case, to explain the issues to the worker in terms the worker can understand, and to make sure that the worker receives all of the benefits that are due.
The WCA Position. The WCA calls on the Board not only to abandon the ill-advised MAP/Streamlined Conciliation program, but to sharply reduce its use of non-hearing decisions to decide legal issues in workers’ compensation claims. The WCA calls on the Board to hold an initial hearing in every claim to ensure that workers are properly advised of their rights and receive the proper benefits. This is not a radical proposal, but would simply represent a return to a method that was proven effective for over eight decades. We recognize that the Board has limited resources and that some issues in some established cases may be suitable for non-hearing decisions, and the WCA will work with the Board to identify and address these issues. It is essential, however, that an initial hearing be held in each case in order to preserve benefits and due process for injured workers.
Posted By WCA In Breaking News
, MAP
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WCA Applauds The Workers' Compensation Board's Stand on Erie County
Earlier this year the
The Workers’ Compensation Law requires employers and carriers to pay benefits “periodically and promptly in like manner as wages.” Payments are required to be made at set intervals, and there are penalties for late payment. The Board, employers, and carriers have always understood that the law required compensation checks to be mailed – until
In a unanimous decision, the Board has told
“Finally, the policy violates the spirit and intent of the WCL. It places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace. To assert post-injury control over the employee by requiring an injured worker to pick up the compensation check at the place of employment overly burdens an injured worker by adding unnecessary traveling costs and potentially places an injured worker at risk of further injury. The compensation law was enacted to assist claimants at a time of hardship, not add to their burdens unnecessarily.”
The WCA applauds the Board’s stand on this issue, which is a welcome return to the role of the Board as the defender of the injured and disabled worker.
Shockingly, the Erie County Executive still doesn’t seem to understand that the County cannot make up its own rules, and has been quoted saying that “It doesn't matter to us what the Workers Compensation Board says. Quite frankly, they don't matter." See the video.
Posted By WCA In Breaking News
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WCA Calls on NYS Workers' Compensation Board to Publicize September 11th Registration Deadline
The September 11th attacks killed thousands of
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
Posted By WCA In 9/11 Workers' Comp Claims
, Breaking News
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NY Workers Compensation Board's "Secret Committee" Proposes End to Due Process Hearings
It turns out that the infamous words of former NY Workers' Compensation Board Chairman Zach Weiss were prophetic: "There comes a time when due process must come to an end".
In an excellent in-depth story which broke today, Mike Whiteley, the Eastern Bureau Chief of WorkComp Central, exposes the "secret 2015 Project Committee" headed by WCB Executive Director Joe Pennisi, which among other things, seeks to hurt injured workers by stopping due process hearings and driving both claimant and insurance carrier attorneys out of the system altogether.
Shockingly, the "2015 Project " Committee and various sub-committees have been meeting without any input from the primary stakeholders at the Workers' Compensation Board - injured workers and their representatives! This "shadow government" has eerie "Dick Cheney" overtones.
You can be sure that the New York Workers' Compensation Alliance, which exists to protect the due process rights of injured workers, will seek further information on the conduct of this rogue (operating outside normal or desirable controls) group within the Workers' Compensation Board.
On September 1, 2009, the WCA filed an extensive Freedom of Information Law (FOIL) Request seeking all documents regarding "the "2015 Project" at the Workers Compensation Board and will share these documents shortly on this web site. Other interested parties can do the same by email by clicking here.
In the meantime, perhaps the "2015 Project" committee members should click here and learn something about Open Government and Government in the Sunshine in New York State. Stay tuned.
Posted By WCA In Breaking News
, Legislation
, NY Workers' Compensation Reform
, Workers' Comp Politics
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NY Workers' Compensation Board Chairman Zachary S. Weiss Resigns to Accept Federal Judgeship
The New York Times reported earlier today that, Zachary S. Weiss, Chairman of the New York State Workers' Compensation Board, is resigning to take a federal judgeship with the United States Social Security Administration. In addition, Governor David Paterson issued an official statement praising Chairman Weiss and his service to the citizens of New York.
The sudden announcement comes on the heels of what is perhaps Chairman Weiss' greatest accomplishment in the job - his successful recruitment of the renowned occupational medicine specialist, Dr. Stephen M. Levin, from Mt. Sinai Medical Center, as Interim Medical Director of the Board. Given the sweeping 2007workers' comp reforms in New York, Chairman Weiss astutely recognized that a Medical Director, a position that had been left surprisingly unfilled for many years in NY, was necessary to develop fair medical guidelines to protect injured workers.
In addition to his success recruiting a new Medical Director, Chairman Weiss will also be remembered for technological innovation and transparency at the Workers Compensation Board, in part by instituting live web casting of Workers' Compensation Board meetings. Weiss, a University of Chicago educated former mob prosecutor with a flair for policy, will be also be remembered as the first Board executive to actually gain traction in implementing the massive administrative changes necessary to implement the 2007 reform law. No easy task!
Certainly, the NY Workers' Compensation Board's loss is the Social Security Administration's gain. The New York Workers' Compensation Alliance wishes Chairman Weiss much success in his new role as a Federal Administrative Law Judge protecting injured and disabled individuals.
Posted By WCA In Breaking News
, NY Workers' Compensation Reform
, Workers Comp Claims
, Workers' Comp Politics
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Where Are the New York Workers' Compensation Reform Law Medical Guidelines for Permanent Disabilities?
It is now almost two years since former Governor Eliot Spitzer hastily pushed through his sweeping workers’ compensation reforms, including the capping of permanent partial disabilities, to the detriment of all New York workers. As part of the reform package, Spitzer gave the New York State Insurance Department (still under the leadership of Superintendent Eric Dinallo) until December 1, 2007 (over one year ago) to deliver guidelines in final draft form for consideration by the Workers’ Compensation Board. So where are injured workers now regarding these guidelines?
It has been estimated that to date, the State Insurance Department has spent close to $1,000,000 of taxpayer money on staff salaries,consultants and other costs attempting to develop the medical guidelines needed to evaluate permanent disabilities. Originally, the NY State Insurance Department secretly tried bringing the discredited AMA Guidelines to the Evaluation of Permanent Impairment to New York, at a consultant's cost of $175,000.
Thankfully, the NY Workers’ Compensation Alliance (with the help of the eminent workers’ compensation expert, Professor John Burton, who called the AMA Guides “hokum”) squashed any possibility of AMA Guides implementation in New York. Since the AMA Guides "fiasco" and their rejection in New York, it seems that Superintendent Dinallo and the Insurance Department have lost their “mojo” to create new medical guidelines for permanent disabilities.
The Medical Guidelines Task Force, headed by Bruce Topman, seems to be working at “glacial speed”. There are even rumblings from different corners of the New York Workers’ Compensation Board about the lack of progress and its impact on the agency. Remember, until the medical permanency guidelines are in place, neither the caps on permanent partial disabilities nor the injured worker “safety net” can take effect.
As of March 13, 2009, it will have been two years since the Spitzer workers' compensation reform bill became law. All injured workers with permanent disabilities from accidents after March 13, 2007 would normally be classified at the two year mark, since it is generally assumed they would have reached maximum medical improvement at that point in time. Failure to have medical permanency guidelines in place by March 13, 2009 will seriously hurt injured workers, leaving them in compensation “limbo”. Surely, the NY Workers' Compensation Board itself cannot now, at this late date, implement its own workable guidelines, given that it has not been allocated either the time or money to effectively accomplish such a huge undertaking.
The Medical Guidelines Task Force must now act with all deliberate speed to insure that fair medical guidelines, including the “safety net” and linking impairments to vocational factors for benefit determination, are in place no later than Presidents Day 2009. In these dire economic times, the lack of the “safety net” contained in the reform law - impossible to implement without the guidelines - will cause workers throughout the state further impoverishment and seek the assistance of welfare relief.
Enough dragging of bureaucratic feet to the detriment of injured workers! Insurance Department Superintendent Eric Dinallo (or Governor Patterson) should order the Medical Guidelines Task Force to meet day and night to finish the job that should have been completed over one year ago. Failure to do so would be a colossal waste of taxpayer money, while neglecting the needs of injured workers.
The New York Workers' Compensation Alliance stands ready to assist in the creation and implementation of a just and appropriate set of medical guidelines - one that will effectively guide the medical community without further detracting from the needs and interests of injured workers.
Posted By WCA In Breaking News
, Legislation
, Lobbying
, NY Workers' Compensation Reform
, Workers' Compensation & AMA Guidelines
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Gov. Patterson Bombarded with Objections to "Rocket Docket" Regulations Proposed by New York Workers' Compensation Board
The new "Rocket Docket" regulations proposed by the New York Workers' Compensation Board are being attacked by formal comments submitted by a diverse group of stakeholders across New York State. Gov. Patterson's office has received a rash of phone calls and letters objecting to these well intentioned, but ill advised, regulations. It will be interesting to see what, if anything, is left of these proposed regulations after the formal comment period ends on September 15th and the Governor's Office reviews all comments. The final version may look much different than the original version proposed by the NY Workers' Compensation Board.
Below are just a few of the formal comments criticizing the Rocket Docket proposals. First are the formal comments of the New York Workers' Compensation Alliance authored by Co-Chair John Sciortino of Rochester and supported by the New York Injured Workers' Bar Association (IWBA)President Barbara Levine of Long Island. Second are objections from the Medical Society of the State of New York authored by Philip Fontanetta, MD and Robert Goldberg, MD. Third are the objections of the Erie County Bar Association authored by Giles P. Manius, President of the Erie County Bar. Fourth are objections from Louis M. Dauerer of Poughkeepsie, Past President of the NY Injured Workers' Bar Association. Fifth are objections from Michael P. Daly, Esq., of Syracuse, the former partner of the Hon. Edward I. Pitts, author of the New York Workers' Compensation Handbook and past President of the NY Injured Workers' Bar Association (IWBA). Finally are objections of Peter Hill, Esq. of Oneonta, a solo practitioner whose clients would be adversely impacted by these proposed regulations.
We are not aware of any stakeholders who appear at the Workers' Compensation Board, including employers and insurance carriers, who support the current proposed regulations in their entirety. Privately, workers' compensation law judges, who will be charged with implementing these regulations, admit that these regulations are counter-productive and will increase litigation and delay the timely resolution of claims.
We are hopeful that Governor Patterson and his staff will take a close look at all of these objections prior to implementing any of these regulations. This is the WCA - Protecting the Rights of Injured Workers!
Posted By WCA In Breaking News
, NY Workers' Compensation Reform
, Rocket Docket Regulations
, Workers Comp Claims
, Workers' Comp Politics
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NY Workers Compensation Board Proposed "Rocket Docket" Regulations Open for Comment Until 9/15/08
The "Ill-Conceived" Rocket Docket Regulations are now open for comment until September 15, 2008. As you know, the New York Workers' Compensation Alliance is firmly opposed to these administrative regulations that fundamentlly change for the worse elements of the Workers' Compensation Law. They are a direct violation of a claimant's medical privacy and and will in fact delay the adjudication of disputed workers' compensation claims. Click here to send written comments in opposition to these scary rules. Click here and here for our prior comments deriding these silly rules.
Bottom Line - these regulations are really bad for injured workers. Insurance carriers will now be given free license to dig through a claimant's prior medical history to try and dispute claims. For example, pregnancy is a known risk factor for carpul tunnel syndrome. If a secretary alleges a work related carpul tunnel injury, does the insurance carrier now have a right to dig through her college medical records to see if she was ever pregnant? Quite possibly.
Such an invasion of medical privacy was never allowed previously under the Workers' Compensation Law. Whether or not these regulations become effective will be a telling test to see if new Governor David Patterson is a friend of labor and injured or disabled workers. We will be watching. Please send your email comments in oppositon to regulations@wcb.state.ny.us today! Thanks.
Posted By WCA In Alliance News
, Breaking News
, NY Workers' Compensation Reform
, Workers' Comp Politics
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The Ill-Conceived "Rocket Docket" Regulations Proposed by the NY Workers' Compensation Board
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At the NY Workers' Compensation Board meeting last Tuesday, July 15th, Board Chairman Zachary Weiss proposed the adoption of the unworkable and ill-conceived so called "Rocket Docket " regulations. Below is the NY Workers' Compensation Alliance's position paper on the version of the regulations that were initially shared with us. Click here for a PDF version. We will be issuing a revised critique of the final version shortly. Click here for the final version of the Rocket Docket regulations.
THE “ROCKET DOCKET” PROPOSALS ARE UNWORKABLE AND UNNECESSARY
Prepared By: JOHN SCIORTINO, ESQ.
June 24, 2008
INTRODUCTION
In his letter to the then-Chair of the Workers’ Compensation Board dated June 1, 2007, Superintendent Dinallo acknowledged that the Workers’ Compensation system was, as a matter of necessity, intended to expedite the provision of wage replacement and medical care to injured workers. It was recognized that delays in receiving indemnity payments cause economic hardship, and delays in providing medical benefits affects the workers’ long-term medical prospects and the ability to return to work. Because the Workers’ Compensation Board was failing to accomplish this mission, the “Rocket Docket” Task Force was formed to propose regulatory change designed to reduce C-7 litigation inefficiencies and delays, thereby speeding the resolution of claim establishment defenses (benefitting claimants), while reducing claim defense costs (benefitting employers).
Rather than reducing friction opportunity and thereby shortening the process of resolving claim establishment controversies, the proposed regulatory scheme, in fact, encourages needless practices which will slow the resolution process and trample the rights and interests of injured workers. This unintended result is accomplished by proposed regulations which are either: (1) illegal in that they conflict with the unambiguous requirements of standing statutes; (2) ill-conceived in that they will likely encourage/increase litigation; and/or (3) unfair and/or overly burdensome in their application.
One must also justifiably question the efficacy of enacting such controversial regulations when the Workers’ Compensation Board has itself recently admitted that a striking 88% of controverted claims had been resolved within the 90-day target window since January of this year, simply by virtue of a more stringent enforcement of existing laws and regulations.
The following constitutes an analysis of some of the more glaring deficiencies.
I.
Proposed Rule 300.37(b) allows for the indexing of a claim only upon the convergence of the following filings: (1) a “completed” enhanced C-2 or enhanced C-3 form; (2) a “completed” enhanced C-4 form; and, (3) a “completed” duly-executed “limited” authorization enabling the carrier to obtain “relevant” medical records.
Setting aside that this proposed rule is ill-conceived because:
1. It fails to exclude death or other unwitnessed or unexplained accident cases, where current caselaw--relying on the §21 presumption--excuses the need for the filing of prima facie medical evidence;
2. It fails to require indexing upon the filing of C-669;
3. It discourages the prompt filing of a C-669 while the carrier waits to see whether all of the new filing requirements imposed on claimant are accomplished;
4. It suggests that either an enhanced C-2 or C-3 form will be required, when in practice every claim to be indexed will require the filing of a C-3--not just a C-2--because the required medical record authorization has been made a part of new C-3 form;
5. It fails to define what “relevant” medical records constitute, thereby inviting a new line of claim-delaying practices while the parties argue the matter;
6. It does not provide that the limited medical authorization is the exclusive authorization obtainable by a carrier, thereby inviting carriers to directly request from claimants blanket, unlimited and abusive medical record authorizations, this new rule is in contradiction of statutory mandates rendering the rule unenforceable and subject to CPLR Article 78 attack.
More specifically, newly amended WCL §25(2-a)(a) (applicable only claims occurring on or after 03/13/07) provides “(i)n any controverted case” upon receipt of the carrier’s C-7, a pre-hearing conference shall be scheduled as soon as practicable, but not to exceed 45 days after the receipt by the Board of the C-7 and “a medical report referencing an injury” (emphasis added).
Simultaneously, WCL §25(2)(a) provides, in a claim where the employer decides to controvert claimant’s right to compensation, the employer shall: on or before the 18th day after disability; or, within 10 days after it has knowledge of the alleged accident, whichever is greater, file a C-7 notice of controversy providing, among other things, “the reason why compensation is not being paid”.
The combined effect of newly amended 25(2-a)(a) and 25(2)(a) is to guarantee to the injured worker a pre-hearing conference within 45-days after the statutorily mandated filing of a C-7 and a “medical report referencing an injury”. At no instance do these statutes require filing of a C-3 or medical release form in order for the pre-hearing conference to be scheduled. As such, because the scheduling of a pre-hearing conference necessitates that the claim first be indexed, any delay on the part of the Board to index while it awaits the filing of the new C-3 and medical record release forms as is required by the new board rule will infringe on the injured workers’ statutorily mandated right to a speedy pre-hearing conference.
It is beyond cavil that the Workers’ Compensation Board has no authority to adopt a rule which is out of harmony with a statute. Zalenski vs. Crucible Steel 91 A.D.2d 807 (3rd Dept. 1982); Mit vs. T.S. & M. Catering Corp., 285 A.D. 506 (3rd Dept. 1955).
For example, the Workers’ Compensation Board was recently rebuked by the New York State Supreme Court for pursuing a policy that deemed appeals from a finding of prima facie medical evidence to be interlocutory in contravention of the statutory mandate of Workers’ Compensation Law §23 guaranteeing the right to appeal. See, New York State Insurance Fund vs. New York State Workers’ Compensation Board, Sup. Ct., Broome County, index number 2004-0131(8204) (copy attached).
Such will be the fate of proposed Rule 300.37(b). Proposed Rule 300.38(a)(1), which contravenes the plain language of Workers’ Compensation Law §25(2)(a) by only requiring the filing of a C-7 within 25-days from notice of indexing, will be subject to similar attack.
II.
While Superintendent Dinallo’s letter of June 1, 2007 makes clear that “early enhanced disclosure” is fundamental to the accomplishment of the accelerated resolution of claims, it is equally fundamental that the early disclosure must be of relevant information only. Certainly, to clutter the early information exchange with unnecessary and irrelevant filings will only pave the way for the proliferation of litigation and the elongation of the claims resolution process. This concern is particularly applicable to the early exchange of medical information regarding pre-existing but non-disabling conditions.
For decades, the Appellate Division, Third Department and the Workers’ Compensation Board have rightfully guarded the principle that compensation will be found even where a particular claimant suffered from some pre-existing disease or condition, as long as it is shown that the employment acted upon that disease or condition in such a manner as to cause a disability which did not previously exist. See, for example, Perez vs. Pearl-Wick Corporation, 56 A.D.2d 239 (3d Dept. 1977). As such, the focus for determining the compensability of a claim is justifiably on the precipitation of a disability from work, not on the initiation or precipitation of the condition itself. And, as the Third Department recently reminded, the issue of apportionment does not apply to a claimant’s claim for temporary disability benefits, but may apply--depending upon the particular facts of the case--at the time permanency is determined. Bremner vs. New Venture Gear, 31 A.D.3d 848 (2006).
Therefore, the requirement of proposed Rule 300.37(b)(1) that pre-existing medical information be exchanged at the outset and as a condition of the indexing of a claim represents a misguided derogation of the principles enunciated by the Third Department and consistently applied by the Board the past several years.
Furthermore, rather than reducing the number of controverted claims, the heightened focus on prior medical history at the commencement of a claim will only encourage carriers to controvert claims, on the heretofore irrelevant notion that a claimant’s medical condition--not disability--was initiated prior to the alleged date of injury. Again, such theory represents a fundamental shift from the long-standing rule of Perez, where the focus for determining the compensability of a claim is rightfully centered on the initiation of the injured worker’s disability from work.
Moreover, the new-found emphasis on pre-existing medical conditions will likely beget requests for additional or otherwise irrelevant prior medical records which will further delay the resolution of the claim while: (1) the claimant defends against the provision of such unnecessary information; and/or, (2) the carrier undergoes the typically time-consuming process involved in searching for and acquiring such additional records. It is feared that these delays will be particularly profound in the absence of appropriate regulatory provisions specifying the manner in which such disputes shall be heard and resolved (proposed Rule 300.38(a)(2) is woefully inadequate--it fails to specify: the standard of proof required for a successful application; whether claimant has the opportunity to be heard in opposition; and, whether the Board’s response will be in the form of an applicable decision). Certainly, in view of the law of Perez, it should be incumbent on a carrier desirous of obtaining pre-existing medical records at the outset of the claim to apply to the Board specifying the reason through specific medical opinion evidence that such pre-existing medical records are relevant to the particular case.
The Workers’ Compensation Board has acknowledged that an employer’s insistence on the production of irrelevant medical records can result in a protracted delay of the adjudication of claimant’s rights. See, for example, Eastman Kodak Company, WCB Case No. 7041 1438 (3-Member Panel, 06/12/06) Irrelevant or unnecessary medical record searches also chill a claimant’s willingness to pursue a claim, fearful that sensitive or embarrassing entries in medical records may be accessed by employers. And, it is impractical to expect that unrepresented claimants (claimants are typically unrepresented in the early stages of the claim) will have the ability to knowingly supply appropriate and informed medical releases, thereby raising the prospect of a proliferation of 114-a fraud claims.
Lastly, any discussion involving the requirement of medical record authorizations must be measured in accordance with the recognized purpose of the Workers’ Compensation Law, as was enunciated by the Court of Appeals in Johannesen vs. New York City Department of Housing Preservation and Development, 84 N.Y.2d 129 (1994), viz: “(t)he Workers’ Compensation Law was enacted for socioeconomic remediation purposes as a means of protecting workers and their dependents from want in case of injury on the job”.
III.
The proponents of the Rocket Docket argue carriers must be better positioned to make an informed decision whether to accept or deny claims if delays caused by defense inefficiencies are to be reduced. It is theorized that enhanced forms providing increased disclosure about the specifics of the claim will assist in reducing the number of claims that are disputed. So important to the Rocket Docket scheme is this theory of enhanced disclosure that a claim will not even be indexed until such time as the enhanced disclosure documentation has been provided.
The first and primary manner in which the carrier receives notice of a claim is by way of the employer’s C-2 report of injury/illness [WCL §110(2)]. As such, relevant modifications to the C-2 form currently in use would significantly contribute to the goal of enhancing early disclosure. However, the C-2 revisions currently proposed fail to accomplish this goal.
Indeed, the newly proposed C-2 form:
1. Does not require the employer to provide a copy of claimant’s written notice of injury;
2. Does not require the employer to provide a copy of the supervisor’s written incident report;
3. Does not require the employer to provide a copy of any medical notes provided by the employee concerning the injury, the need for medical treatment, or the need for lost time;
4. Does not require the employer to comment whether the claimant was working without restriction at the time of the subject injury; and,
5. Does not mandate that the employer provide a copy of any existing written job description.
While the Workers’ Compensation Board is rightfully concerned that any revisions to the current C-2 form be user friendly, all of the above-described information will be readily available to the appropriately motivated C-2 preparer, so that the inclusion of this high relevant information will not in any way prejudice the form filer’s ability to swiftly complete the document. Furthermore, given that all of this information directly addresses most of the defenses raised at the outset of a claim, the absence of this information from the newly proposed C-2 form represents an inexcusable loss of opportunity and calls into question the true motivation of the Rocket Docket initiatives.
IV.
Much as been said about the impractical length and cumbersome nature of the proposed C-4 forms. And, it is entirely premature to adopt new C-4 forms before the Medical Guidelines Task Force has completed its work. However, there is one particularly objectionable flaw existing in the newly proposed C-4 forms.
In their zeal to accomplish some measure of uniformity, the new C-4 forms ignore the fundamental premise that, to be credible, a medical opinion must be supported by a rational basis. See, VanPatten vs. Quandt’s Wholesale Distributors, 198 A.D.2d 539 (3d Dept. 1993). This premise is particularly important to determining the comparative credibility of medical opinions on such issues as causal relationship and permanency. The Third Department, for instance, has made absolutely clear that a medical expert’s conclusory opinion regarding causal relationship, offered without any medical hypothesis or rationale to substantiate said conclusion, should be rejected as speculative and without rational basis. Ayala vs. Dre Maintenance Corp., 238 A.D.2d 674 (1997). And, time and again the Workers’ Compensation Board has found that a medical opinion on permanency which neglects to offer a rationale which directly refers to the Workers’ Compensation Board Medical Guidelines lacks credibility. See, for example, Eastman Kodak Co., 2007 WL 4111626 (3-Member Panel, 11/07/07).
The proposed C-4 and C-4.2 forms fail to inform and guide the examining physician to provide the specific basis for his/her opinion in connection with such issues as causal relationship and permanency, thereby exposing the opinions offered by such forms to be ruled lacking in credibility.
CONCLUSION
For the specific and compelling reasons as are set forth hereinabove, combined with numerous other flaws not hereinabove identified, it is recommended that the proposed Rocket Docket scheme be tabled in order to enable the Board to continue to pursue the strikingly successful initiatives it is currently undertaking to accomplish a speedy resolution of C-7 disputes through a more stringent enforcement of existing laws and regulations.
Respectfully submitted,
John Sciortino, Esq.
SEGAR & SCIORTINO
400 Meridian Centre, Suite 320
Rochester, New York 14618
Telephone: (585) 475-1100
Posted By WCA In Breaking News
, NY Workers' Compensation Reform
, Workers' Comp Politics
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AMA Guides Guru Tries to Intimidate and Silence the Workers' Compensation Alliance's Protected Political Speech
The New York Workers’ Compensation Alliance recently received a “cease and desist” letter threatening a libel action on behalf of Dr. Christopher Brigham and Phil Walker, Esq. (click here to see letter) over our opinions expressed on this blog regarding the AMA Guides to the Evaluation of Permanent Impairment.. The letter was written by Phil Walker himself, one of the allegedly aggrieved parties. Bottom Line - the New York Workers’ Compensation Alliance will continue to assert our First Amendment rights to criticize the AMA Guides and New York State Insurance Department’s contract with Dr. Brigham to bring them to New York.
The New York Workers’ Compensation Alliance is a non-profit, registered political action committee in New York State. Our goal is to protect injured workers and promote legislative and state action to achieve that goal. As such, we publish the New York Workers’ Compensation Alliance Blog to express our political opinions on issues of public importance to both injured workers and all citizens of New York State. Recently, the New York State Insurance Department paid Dr. Christopher Brigham $162,500 to evaluate New York’s current medical guidelines and determine the impact of applying the AMA Guides in New York State (click here to see contract). In our opinion, this contract and its timing was entered into secretly and was only fully disclosed by a Freedom of Information Act request to the State Insurance Department from the Workers’ Compensation Alliance.
Dr.Christopher Brigham and Phil Walker, Esq are both public figures who have numerous websites promoting their services explaining the AMA Guides to workers’ compensation stakeholders throughout the country. Their joint website (www.BrighamWalker.com) takes you to Walker’s www.askphilwalker.com where you can view streaming video of Phil touting his seminars to explain the AMA Guides. Similarly, the BrighamWalker website also takes you to Dr. Brigham’s website (www.impairment.com) where you can also find out about his AMA Guide seminars and “fill up your cart” in his online store. These are but a few of the numerous websites in which they are involved selling their services to the workers’ compensation community and state governments across the country. Clearly, both these gentlemen are involved in massive internet marketing of their AMA Guidelines related businesses.
The letter threatening legal action demands that the WCA Blog cease and desist from making further references to either Dr. Brigham or Phil Walker, Esq., and also demands apologies, retractions etc. by April 25, 2008. Below is our point-by-point response to this blatant intimidation and attempt to silence protected political speech:
1. Walker claims it is “untrue” that Dr. Brigham is “insurance company biased,” but anyone reading the blog can see that this characterization is a fair one, based on the evidence cited throughout the blog. In our view, the AMA Guides that Dr. Brigham promotes will decrease benefits to injured workers and increase profits for insurance companies. We stand by our opinion and have no doubt we have every right to accuse him of bias in his advocacy of the Guides.
2. Walker is technically correct in noting that the AMA Guides are not literally “Brigham’s AMA Guidelines.” We acknowledge that Dr. Brigham does not own the AMA Guides, he is simply the Senior Contributing Editor. We are sorry. Please deduct two points from our blog post score in the blogosphere. However, Dr. Brigham has shamelessly promoted the Guides and prominently sells them on his website. In fact, we bought a copy and are now on his e-mail list. For all intents and purposes, Dr. Brigham is the architect of the Guides, and in that sense, they are, indeed, his handiwork more than anyone else. For the time being, the AMA still publishes these controversial Guides, despite recent efforts by the New York Injured Workers’ Bar Association to have the AMA remove their imprimatur from the Guides. We will continue to support these efforts and stand by our belief and opinion that Brigham’s biased work should not endorsed or supported by the AMA or any state government.
3. Walker next takes us to task for noting that Dr. Brigham would rate a torn medial meniscus with surgery as a 1% loss of use of a lower extremity, claiming the rating is prescribed by the AMA Guides and would, in any event, be deemed a 1% Whole Person Impairment. What Walker overlooks is the fact that this statement was taken directly from a radio interview which Dr. Brigham re-publishes on his own website (click here for the interview). If we misconstrued his analysis on the radio, we apologize. Obviously, we need more training on the AMA Guides. Do you know of anyone? The more important point, of course, is to highlight Dr. Brigham’s advocacy of such worker-harming ratings. Torn meniscus surgery is not an inconsequential impairment, regardless of what Dr. Brigham says or claims and regardless of how it is classified in the Guides that Dr. Brigham endorses.
4. We stand by our well reasoned opinion that Dr. Brigham is a shameless self promoter who advertises his services to reduce benefits to injured workers. In fact, we share this opinion with others based upon the plethora of Dr. Brigham’s websites selling a multitude of services to the workers’ compensation community throughout the country. Walker can criticize us all he wants for expressing our opinion. We have every right to do so, and will continue to do so.
5. It remains our opinion that the “Guides” are “tarnished”, most recently bolstered by the opinion of preeminent workers’ compensation scholar, Prof. John F. Burton, that the AMA Guides are “hokum”. (see link to 4/15/08 video presentation by Prof. Burton to the New York State Workers’ Compensation Board).
6. It remains our opinion, shared by many others, that the AMA Guides are biased against injured workers. For this reason, there is a growing movement among state governments to reject the new Sixth Edition of the Guides, including the states Iowa, Vermont, Kentucky, and most recently Tennessee.
7. Since none other than workers’ compensation scholar, Prof. John F. Burton, has labeled the AMA Guides as “hokum” and “not evidence based”, our opinion that the AMA Guides are “voodoo science” seems appropriate.
8. Phil Walker, Esq, next complains, on his own behalf, that he is not Dr. Brigham’s “financial partner.” Our belief that Walker and Brigham’s financial interests are tied closely together is based upon a still existing website, www.BrighamWalker.com , which then leads to links to both Walker’s website and Dr. Brigham’s. On both sites, you will find Walker selling his services. After watching Walker’s “talking head video” on his website, we were tempted to “click here” to “get Phil Walker’s free CA [California] apportionment materials”. We are still mulling that over. Finally, regarding our allegedly anti-gay remarks towards Walker, he misconstrues our comments completely. We simply provided a link to a New York Times article in which Walker himself stated, “I am the gay Oprah”. We said nothing derogatory toward gays, Oprah or other talk show hosts. We like and respect Oprah. We wish Walker luck in his own talk show career and as a public figure. But please, Mr. Walker, do not try to intimidate and silence our political speech on issues of public concern and public importance.
9. Walker’s most amusing threat concerns our comment that the Brigham Walker duo are a “poor excuse for a vaudeville act.” Our comment was based upon the picture of the duo (Walker in a boxing pose, and Dr.Brigham looking perplexed) that has long been available for public consumption on the internet.
10. Dr. Brigham clearly is biased against workers. We repeat our opinion, and stand by it. Emphatically. Opinions cannot be libelous. They are fully protected by the First Amendment. Walker should know better.
11. The AMA Guides have been completely discredited in our minds, and in our opinion. We repeat our opinion, and stand by it. Emphatically. See also # 10 as to our rights under the First Amendment.
12. Again, given Dr. Brigham’s actions, the AMA Guides can fairly be deemed “Brigham’s guidelines,” but to the extent Walker still complains, see # 2, above.
13. Walker evidently doesn’t approve of our decision to post pictures of him and Brigham, but we considered it fair use since they put them in the public domain for commercial purposes. Nevertheless, to avoid complicating a simple first amendment dispute with issues of copyright and the like, we will remove same from our blog immediately. We generally do Spring cleaning on our blog this time of year anyway.
14.Walker’s claim that the posting of the pictures has harmed him is laughable, but as he requests, we will remove them.
15. We are tired by this point in having to respond over and over to Walker’s repetitive and duplicative allegations that our blogs are defamatory. But once again, for the record, we stand by our opinions as set forth in the blogs. In our opinion, Dr. Brigham is biased. We honestly believe, based on the evidence cited in the blogs, that Bruce Topman secretly hired Dr. Brigham. And the AMA Guides are, indeed, anti-worker in our opinion.
16. Walker complains about the photo again. See response to # 13.
17. Ditto.
18. Our opinion that Dr. Brigham is “the insurance and defense industry’s best friend” is based upon Dr. Brigham’s published articles in For the Defense, along with his published seminars on how to successfully combat injured worker “malingering”. We stand by our opinion.
19. It is comical, and perhaps speaks volumes about Walker’s entire letter, that one of his numbered complaints would object to our statement that Dr. Brigham “hangs out” in Hawaii, rather than “resides in” Hawaii!
20.Given that Dr. Brigham is the Senior Contributing Editor for the AMA Guides and Prof. Burton has labeled the Guides “hokum” and “not evidence based”, and that the AMA is currently considering the Injured Workers’ Bar Association’s request to remove their imprimatur from this publication, our opinion and belief that the AMA was “duped” is appropriate political commentary. Walker also seems not to understand that his client’s conduct could be considered embarrassing to the AMA, particularly as criticism of the Guides mounts throughout the country.
21. Perhaps we overstated the obvious in describing Dr. Brigham as an injured worker’s “worst nightmare IME.” But as hard as we try to think of anything worse that we have seen in real life [anyone know of a workers compensation doctor like the dentist in Marathon Man?], it seems appropriate to stand by our characterization, which is obviously protected as our political opinion regarding a well-known public figure.
22. Mr. Walker does not seem to understand that freedom of speech allows rhetorical characterizations of Dr. Brigham’s handiwork, such as calling it the “bible” for insurance company doctors out to hurt injured workers. But in retrospect, we apologize to our religious friends. Dr. Brigham’s work has nothing in common with the teachings of the bible.
23. On the other hand, our rhetorical reference to Dr. Brigham making a “deal with the devil” seems apropos. But since Walker claims, emphatically, that Dr. Brigham “has entered into no ‘deal’ with the devil,” we will take him at his word. From now on, readers should know we do not have any concrete evidence that Dr. Brigham actually made a “deal with the devil.” However, it remains our opinion that he is, consciously or unconsciously, doing the devil’s work and harming honest working people seeking fair compensation for their injuries.
24. We truly hope that it will be true, one day, that Dr. Bingham will no longer be an “insurance company fave,” but until then, we stand by our opinion.
25. Our opinions about ACOEM and Dr. Bingham are well documented in our blogs and elsewhere.
26. Ditto.
27. We accept Walker’s criticism that the blog’s grammar can be improved. That being said, we agree with the opinion of Dr. John F. Burton that the AMA Guides are “hokum” and “not evidence based”, and therefore stand by our opinion that the Guides are “all about reducing” monetary compensation to injured workers.
28. When our blog referenced Dr. Brigham’s use of the term “abusive attorneys", it was in fact taken from the cover of Dr. Brigham’s seminar materials on the "How to Be an Effective Medical Witness" (click here to buy it on Amazon!), so we beg to differ with Walker’s denial that it represents his client’s characterization of workers’ lawyers. Certainly, such a characterization of attorneys as "abusive" could be considered false, inaccurate, libelous etc, but have we sent a similar letter to you or Dr. Brigham? Of course not. We accept that Dr. Brigham labeling us as “abusive attorneys” is his opinion entitled to legal protection. We simply ask that both Walker and Brigham afford us the same First Amendment protections.
29. We honestly believe that Dr. Brigham’s methods are “specious” and will harm workers. We will continue to defend our beliefs. We hold to our opinions.
30. Hmm…Walker catches us on the old “Guides” vs. “Guidelines” mistake again. We said “sorry” in #2 above. Our hands are getting tired. We may have to file a workers’ compensation claim for carpal tunnel syndrome for repetitive motion on our computer keyboard.
31. We believe that the Guides Dr. Brigham is proposing to implement for the State of New York will potentially result in a wholesale slashing of benefits to injured workers. It is well documented that the AMA Guides have resulted in lower benefits to injured workers in other states. Therefore, our opinion that Dr. Brigham is a “hatchet man” in this context would seem to be accurate. However, in the spirit of compromise and good will toward men, we will remove this reference immediately from the offending post as an appropriate gesture. We suppose no one likes to be called a “hatchet man”, and we have no desire to hurt Dr. Brigham’s feelings.
32. Walker is obviously unhappy that we said that the medical profession and the labor movement would eventually “crush” Dr. Brigham and his cohorts. But to call it a threatened “assault” is absurd. Pleeeeeeeeease! Has Walker never heard of a “metaphor”?
33.We are sorry to hear that Dr. Brigham has neither a Hawaiian “bungalow or coconuts”. Does he live in a tent on the beach? Is there a shortage of coconuts?!
34.We reiterate our view that the Guides are biased See also responses to #’s 2, 5, 6, 7 above.
35. We apologize for not clarifying that Dr. Brigham is not of Hawaiian origin and that he simply resides in Hawaii. We can understand how this would be an issue of importance to all those who are proud of their Hawaiian origin. We apologize to all the people of Hawaii, and will remove this slight immediately.
Note to Phil Walker, Esq.:
Please accept this as our respectful response to your letter of April 25, 2008. We will continue to protect injured workers in New York State. Please direct any and all future correspondence regarding this issue to our legal counsel, Meyer, Suozzi, English & Klein, P.C.
Love,
The New York Workers’ Compensation Alliance Blog
Posted By WCA In Alliance News
, Breaking News
, NY Workers' Compensation Reform
, Workers' Comp Politics
, Workers' Compensation & AMA Guidelines
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NY Times Reports on New York Insurance Superintendent Eric Dinallo's "Pearl Harbor" Attack on Injured Workers
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Thanks to the NY Times for reporting in today's edition (see article excerpt below) about the New York State Insurance Department's secret attempt to hire one of the most anti-worker insurance company hack doctors in America to implement new disability guidelines in New York's Workers' Compensation system. Obviously, the NY Workers' Compensation Alliance's posts got the ear of the "Gray Lady", and the Times will continue to report on the far ranging ramifications of this under-handed maneuver by Eric Dinallo and the State Insurance Department.
Besides picking a fight with the AFL-CIO, this move has stirred the New York State Trial Lawyers Association and influential medical societies throughout the state into action. Speaking to Workers Comp Central recently, Art Wilcox of the NYS AFL-CIO described the the hiring of Dr. Brigham as "Pearl Harbor". If injured workers were seamen on the deck of the USS Arizona, the Insurance Department's attack dog on this issue, Bruce Topman, would be flying a Japanese "Zero"!
Read the text of the Time's story below:
Unions vs. Injury Expert
Labor leaders are up in arms over a new employee of Mr. Spitzer’s workers’ compensation task force, which in the coming weeks will release the details of his overhaul of the system that provides benefits for employees who are injured on the job or have work-related illnesses.
Last fall, the task force’s staff hired a well-known consultant and physician named Christopher R. Brigham to help formulate the new rules. That was a problem for the state’s powerful labor unions, because Dr. Brigham, who has offices in Maine, California and Hawaii, is also one of the country’s leading advisers to companies locked in legal disputes with workers over disability payments.
Union officials argued that Dr. Brigham’s system for evaluating workers’ injuries tended to favor lower payments than the system commonly accepted under New York labor law. They also fault the task force’s executive director, Bruce Topman, for hiring Dr. Brigham without first consulting members of the task force’s advisory committee.
“There’s been no detailed discussion on what he’s going to do, why he’s been hired, or anything else,” said Art Wilcox, an official with the state A.F.L.-C.I.O. who is on the advisory committee.
Dr. Brigham’s contract, for which his firm, Brigham Associates, will be paid $162,500, was finalized in early December.
“We didn’t know they were going to hire one of the world’s most famous defense witnesses, from Hawaii, and pay him $162,000 to push for a system that he makes money off of,” Mr. Wilcox complained.
Through a spokeswoman, Dr. Brigham declined to comment. Andrew Mais, a spokesman for the task force, said that Dr. Brigham’s hiring was appropriate and that he had disclosed to state officials any potential conflicts of interest.
“The Task Force sought to contract with an individual highly qualified for this important and specialized task,” Mr. Mais said.
The advisory committee, which includes representatives from business and labor, meets behind closed doors, which has rankled some outside groups.
NICHOLAS CONFESSORE
NY Workers' Compensation Alliance - "Protecting Injured Workers"
Posted By WCA In Breaking News
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, Workers' Comp Politics
, Workers' Compensation & AMA Guidelines
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Voodoo Science? Dr. Christopher Brigham and AMA Guidelines Invade New York
A potential war between injured workers and the New York State Insurance Department is on the horizon! During the recent workers' compensation reform negotiations, all the negotiators from the Governor's office, Speaker Silver's office and Senate Majority Leader Bruno's office promised that "AMA Guidelines will never come to NY!". Well, word on the street is that the Governor's man heading the Medical Guidelines Task Force just hired Dr. Christopher Brigham, the insurance and defense industry's best friend, to implement the AMA guidelines in New York.
A little about Dr. Christopher R. Brigham. He is an entrepreneur with numerous sophisticated websites selling his IME services, click here, here, here for a few of the "classier" ones. He hangs out in Hawaii and peddles his new "Sixth Edition of the AMA Guidelines to Evaluation of Permanent Impairment" in a nice little cottage industry he has carved out for himself and his family (Mindy Brigham is "Director of Marketing"). Go to his website - you can fill up your "Cart"! Somehow, he duped the AMA into buying into his biased opinions on "impairment ratings", much to the embarrassment of the AMA. The fact is that he is an injured worker's "worst nightmare IME" (insurance company medical examiner). He is the proud author of "Symptom Magnification, Deception and Malingering", the bible for all insurance company doctors out to hurt injured workers.
Dr. Brigham still performs insurance company medical exams in Hawaii (nice work if you can get it, assuming you are willing to make a deal with the Devil). Check out this "sample Brigham IME report" of his regarding an injured worker who had surgery for "cubital tunnel syndrome" on his dominant left arm. Despite a 10 centimeter scar on the worker's right elbow, insurance company fave Dr. Brigham opines that the worker has a " 2 percent impairment to the Hand!" . I kid you not! Dr. Brigham also does live "webinars" for ACOEM, the discredited organization which represents primarily the interests of industry and insurance companies.
Under the current objective New York Workers' Compensation Guidelines of 1996, this serious injury would appropriately translate into at least a 15-20% schedule loss of use to the "Arm". This tells you everything you need to know about the AMA Guides and Dr. Brigham - it all about reducing compensation monetary to injured workers awards! See this press release from Dr. Brigham about insurance companies saving money using his methods. See his article from "For The Defense" (a pro-worker publication...) here.
Dr. Christopher Brigham is one sharp expert witness. His tape, "How to Be An Effective Medical Witness" (see below) teaches insurance company doctors to "properly state your opinion using 'magic' legal words", "humanize your testimony", "deal with trick questions and trial tactics of attorneys", "answer questions about your fee" and "deal with an abusive attorney". I hope none of us "abusive attorneys" run across the good doctor while strolling the white sands of Hawaii - he knows how to "deal with us"!
In a recent Internet radio interview, Dr. Brigham stated that the new "6th Edition of the AMA Guides" would lower impairment ratings from prior editions of the Guides. He gave an example of his own "partial medial menistectomy" knee surgery. Quite generously, Dr. Brigham gave himself a "one percent impairment" to the lower extremity. Again, under current New York Medical Guidelines, such an injury would result in at least a 15% loss of use. Using Dr. Brigham's specious methods, an injured worker in New York would lose tens of thousands of dollars. But, then again, remember that the AMA Guidelines as written By Dr. Brigham are all about saving insurance companies money - not about credible medicine.
The best example of this is the startling fact that the purported "big accomplishment" of the "Sixth Edition" is that they will no longer use "range of motion" in determining impairment! Are they serious? Tell that to the treating orthopedic surgeons and chiropractors in New York - Brigham will be laughed all the way back to Hawaii.
Bottom Line - AMA Guidelines in New York is a non-starter. The Governor's team is too smart to bring in a biased "defense medical examiner" like Dr. Brigham to mess with the New York Workers' Compensation Medical Guidelines. It would be another drivers' license-like albatross for the Governor Spitzer. Just look at what recently happened in South Carolina when the Governor there tried to implement AMA Guidelines. The medical profession and labor movement in New York would crush Dr. Brigham and his co-horts, and find allies in both the NY Assembly and the Senate in doing so. The WCA suggests that the good doctor remain in his Hawaiian bungalow counting his numerous coconuts. Stay tuned...
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Spitzer Extends 9/11 World Trade Center Workers' Compensation Registration Deadline Until August 14, 2008
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Gov. Spitzer Releases Workers' Compensation "Rocket Docket" Proposed Regulations
After receiving input from both the Business Council of New York State and the New York AFL-CIO, NY State Insurance Department Superintendent Eric Dinallo has released his cover letter and proposed "Streamlined Docket Regulations" which substantially impact the rights of injured workers in New York - some for the good, some for the not so good. In addition, some of the proposed regulations conflict with existing statutory law. Please download this document and study it carefully.
The WCA would appreciate written comments about the proposed regulations from all interested stakeholders as soon as possible. You may do so by using the comment button below this post. The New York Workers' Compensation Alliance will be publishing its analysis of the proposed regulations shortly and would appreciate your input. There should be a new Workers' Compensation Board Chairperson around the corner soon to try and implement these interesting regulations. Thanks and stay tuned!
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Problems with New York Workers' Comp Reform Law Brewing
In like a lion, out like a lamb! That seems to be upshot of the much heralded, but upon close examination, seriously flawed "new" New York Workers' Compensation Reform Law signed in March by Governor Spitzer. Leaving aside for a moment the thousands of newly created second class citizens (now known as "Gap Workers" ) disregarded by the negotiators - who do not get the benefit increase promised but do suffer the from the cap on permanent partial disabilities - there are more immediate problems.
Governor Spitzer's 3/13/07 letter accompanying the new law stated that he would appoint several "task forces" to deal with important issues such as new medical guidelines. The members of these task forces were to be selected based upon recommendations of the New York State AFL-CIO, the NYS Business Council, the Assembly Speaker and the Senate Majority Leader. To date, the members of these task forces have not been named. Now comes a 4/27/07 letter from New York Insurance Superintendent Eric Dinallo acknowledging that these important task forces have not yet been named.
This is a big problem! Such task forces need attorneys who represent employers and claimants in the trenches each day to make this error strewn reform bill work. For example, the Medical Guidelines Task Force is mandatory before the law can properly implemented. On a positive note, at least Susan John, Chair of the Assembly Labor Committee, at our recent cocktail fundraiser, informed us that she had spoken personally to Governor Spitzer and was assured that "AMA Medical Guidelines are not coming to New York". That will help many injured New Yorkers.
The formation of these guidelines cannot be another "inside Albany" job. Attorneys from both the employer and claimant sides across the state are still scratching their heads trying to figure out how to deal with the multitude of problems and conflicting sections of the new workers compensation reform law. Perhaps this is another reason to increase the still lacking transparency in Albany. The inside story on workers' compensation reform in New York has yet to be told and is not over yet. All the while, injured workers' will be left in limbo. The prompt naming a new Chair for the now directionless Workers' Compensation Board who understands the medical and financial struggles of injured workers might help. Stay tuned.
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Spitzer Signs New York Workers' Comp Reform Bill into Law
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Workers' Compensation Central Report on Spitzer New York Reform Package
Spitzer Unveils Overhaul for N.Y. Work Comp
New York Gov. Eliot Spitzer emerged Tuesday with a workers' compensation reform bill that would raise the maximum weekly benefit for the first time since 1992, abolish the state's rate board and phase out the Second Injury Fund.
Spitzer also called for the creation of task forces to review everything from medical practice guidelines to the implementation of an expedited hearings process dubbed "rocket docket" by the New York Workers' Compensation Alliance.
Spitzer said the bill will cut the costs of the workers' compensation system by 10% to 15% over time. He said the system is serving neither businesses, which are fleeing upstate New York, nor injured workers.
"The whole system has become ossified and unresponsive," Spitzer said at a press conference in Albany Tuesday. "And despite the dissatisfaction with which it was viewed on all sides, gridlock has prevailed until today."
The legislative package carries the blessings of the AFL-CIO and the Business Council of New York State, which have fought over attempts to place a cap on lifetime benefits granted for permanent partial disability.
The legislation had not been posted on New York's legislative Web sites by early Tuesday evening. But, based on materials Spitzer and the AFL-CIO made public in the press conference, it would:
* Increase the maximum weekly benefit from $400 per week to $500 later this year. The maximum would increase to $600 in 2008, $650 in 2009 and then be indexed to two-thirds of the state's average weekly wage every year thereafter.
* Raise the minimum weekly benefit from $40 to $100.
* Impose a 500-week cap on permanent partial disabilities, while creating a system for workers to petition to raise the cap in cases in which their disability is 80% or greater.
* Eliminate the Second Injury Fund for future cases in a move labor leaders said will lower assessments paid through employers and reduce hearings.
* Increase civil and criminal penalties for employers who fail to obtain coverage.
* Abolish the New York Compensation Insurance Rating Board (NYCIRB), a private association of carriers that recommends rate changes, through a sunset provision effective Feb. 1, 2008.
* Mandate lump sum settlement offers by employers, according to an AFL-CIO review of the proposal. * Create a task force for advancing a California-type security bond program for self-insureds.
* Create a task force to set requirements for data collection.
* Create a task force to establish retraining requirements for permanently disabled workers.
The bill directs acting New York State Insurance Superintendent Eric Dinallo to examine alternative structures for tracking losses and recommending rates to the department and come up with recommendations for replacing NYCIRB.
The rating board's last two recommended rate increases were rejected by former Insurance Superintendent Howard Mills, who said the industry has not done enough to police employers who don't provide coverage.
The system's structure, which requires the state-run New York Workers' Compensation Board to decide claims and NYCIRB to handle rate issues, has been under fire from claimants' attorneys, labor and others saying it is so fragmented that Spitzer's negotiators couldn't find the data they needed to map a reform plan.
States use a variety of means for producing loss costs -- or "pure premiums" -- on which rates are based. The National Council on Compensation Insurance (NCCI) recommends rates in 37 states.
In addition to NCCI, independent rating bureaus operate in California, Delaware, Indiana, Massachusetts, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania and Wisconsin.
Andy Mais, a spokesman for Dinallo, referred all questions on the bill to Spitzer's office.
Monte Almer, NYCIRB president, did not return telephone calls. An aide said he was at a conference Tuesday afternoon.
The legislation would also make New York one of at least three states considering abolishing their second injury funds this year.
A Senate subcommittee chairman in South Carolina said last week he is leaning toward amending a reform bill to phase out the fund.
Arkansas regulators, business owners and labor are also discussing the proposal.
The bill drew mixed reviews from the New York Workers' Compensation Alliance, a group of claimants' attorneys and other workers' advocates who have adamantly opposed capping permanent partial disability benefits.
Troy Rosasco, the alliance co-chairman, said the bill is a victory for workers whose benefits have remained capped at $400 since 1992. The bill also doubles the threshold at which a doctor must get prior approval to perform a procedure from $500 to $1,000.
Doctors accepted into a state "best practices" program would be exempt from the prior approval requirements. Standards for that program would be established by a task force established under the bill.
Rosasco said the alliance proposed the "rocket docket" concept, which would expedite some claims to speed the start of medical benefits.
But the battle against a permanent disability cap by the alliance and the AFL-CIO gridlocked last year's efforts by former Gov. George Pataki to reform the system.
"The real concern that the Workers' Compensation Alliance has is that there now may have been an elimination of a safety net for seriously injured workers who, by no fault of their own, are both partially disabled and unable to gain competitive employment in the workforce," Rosasco said.
But the AFL-CIO praised the compromise. The union's New York president, Denis Hughes, appeared at the press conference and said the union was "immensely pleased."
Spitzer also got accolades from legislative leaders in the New York State Assembly and the state Senate.
"Labor, business and political leaders joined together to forge an historic agreement for the common good of injured workers, the business community and all New Yorkers," Hughes said. "This agreement ... immeasurably improves a system long believed to be broken beyond repair."
Kenneth Adams, president of the Business Council, called it "a major step toward reducing the cost of doing business in New York. It is a big win for improving our economic climate, especially upstate."
The Business Council said Second Injury Fund claims comprised 17% of the cases in the system but 73% of the cost.
The Independent Insurance Agents & Brokers of New York (IIABNY) called the legislation "a step in the right direction."
"The plan is bold and forward thinking," said IIABNY Chairwoman Sharon Emek. "Eliminating such inefficiency as the Second Injury Fund and the Compensation Insurance Rating Board, while limiting the number of years a small population of claimants can receive benefits under permanent partial disability, will drive substantial costs out of the system."
Spitzer said the bill directs Dinallo to find ways to reduce rates by the next rate cycle. And the governor said capping permanent partial disability will save hundreds of millions of dollars.
Rosasco said his group won't oppose the bill but will work with the task forces to make it suitable for injured workers. The key will be establishing the process at the state Workers' Compensation Board for petitioning to extend benefits.
"You really have to give Gov. Spitzer credit for doing a sweeping reform of the workers' compensation system in New York," Rosasco said. "He did what he said he would do."
--By Michael Whiteley, WorkCompCentral Southeast Bureau Chief
mike@workcompcentral.com
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New York Workers' Compensation Reform Deal Announced by Governor Eliot Spitzer
At a 1:00pm news conference today, New York Governor Eliot Spitzer, Assembly Speaker Shelly Silver and Senate Majority Leader Joe Bruno announced a comprehensive workers' compensation reform package, breaking an almost 12 year legislative dead lock. Listen to the audio announcement here.
Like any hard fought compromise, neither business nor labor got everything they wanted. However, both injured workers and business will see significant benefits. Injured workers will see a rapid increase in the maximum weekly benefit, while employers should see a 10-15% decrease in premiums.
The New York Workers' Compensation Alliance, after months of hard work, was particularly pleased to see the adoption of many of our legislative proposals. Specifically, the following proposals made by the Workers' Compensation Alliance are part of the new reform package:
- The maximum weekly benefit will increase to $500 immediately, then to 2/3 of the state average weekly wage by 2010 and will be indexed and adjusted automatically in the future;
- Increases the minimum weekly benefit to $100;
- Increases the dollar amount for pre-approval of medical services to $1000;
- Provides lifetime medical coverage for workers with permanent partial disabilities;
- Mandates lump sum settlement (Section 32) offers for permanent partial disabilities;
- Provides workers with meaningful vocational rehabilitation and light duty programs;
- Creates a "Rocket Docket" program to speed resolution of claims;
- Abolishes the New York Compensation Rating Board.
Of course, the New York Workers' Compensation Alliance is deeply concerned that the proposed caps on cash benefits for permanent partial disabilities will take away the much needed economic safety net for those workers whose partial disabilities effectively preclude them from competitive employment.
However, the bill does provide such claimants the right to petition at any time for a reclassification as a permanent total industrial disability, thereby providing lifetime cash benefits. Once the actual bill language is released later today, we will be analyzing what additional safety net protections exist for those with permanent partial disabilities and reporting our position. Frequently, the "devil is in the details". Let's hope the details in this bill are angelic!
Any one with questions or concerns regarding this bill may call Workers' Compensation Alliance Co- Chairs Troy Rosasco at 631-582-3700 x123 or John Sciortino at 585-475-1100.
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New York Workers' Compensation Reform: AFL-CIO Stands Firm on No PPD Caps
Art Wilcox of the New York AFL-CIO was the guest speaker at last week's successful Workers' Compensation Alliance fundraiser at the Grand Hyatt in New York City. Art Wilcox is one of the brightest minds in New York State on workers' compensation and is the key negotiator for organized labor on workers' compensation reform. He has been continually meeting with Gov. Spitzer's advisers and the New York Business Council Corporate Chieftains on this issue in recent weeks.
In light of the new Fiscal Policy Institute report exposing overwhelming workers compensation fraud by employers in New York, Mr. Wilcox announced to thunderous applause in the packed room that his boss, AFL-CIO President Denis Hughes, has stated that labor will not accept any givebacks on severe permanent partial disabilities. This is the same position as the Workers' Compensation Alliance which also represents non-unionized injured workers, often times made up of the working poor.
The working poor are disproportionately made up of African Americans, Hispanics and single women with children. Since they are the ones who would be most affected by caps on permanent partial disabilities, we should all thank the AFL-CIO for standing up for those among us who often times live in the shadows of our prosperity. As more light is shed on the workers' compensation reform debate, it is becoming increasingly clear that injured workers occupy the moral high ground while some greedy and dishonest employers ruin the system for all. Based upon his past track record, Eliot Spitzer knows how to deal with greedy and dishonest corporations.
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New York Times Reports Rampant Employer Workers Compensation Fraud in NY
The New York Times today reported the shocking news (see article below) that New York employers are cheating the workers' compensation system out of up to $1 billion dollars per year, according to a report released by the Fiscal Policy Institute. The news sent reverberations through the halls of Albany and sent policy makers and the New York State Legislators talking. The report was picked up by influential industry sites such as WorkersComp Central and the Workers Comp Insider, who provided their own comments and analysis. In addition, the new Business and Labor Coalition of New York (BALCONY) and the Public Employees Federation (PEF) called upon new Attorney General Andrew Cuomo to investigate and prosecute cheating employers.
Given the size of such fraud and the harm to the majority of honest employers throughout New York, it's interesting that the Business Council of New York State has not placed employer workers' compensation fraud on it's own priority agenda. They keep on trotting out the same old highly suspect statistics, but say nothing about rampant employer workers' compensation fraud....hmm? Certainly, eliminating such fraud would more than pay for the measly 7000 permanent partial disabilities found among the 150,000 indexed workers comp claims per year.
Permanent partial disabilities make up only 5% of the claims each year and fall disproportionately on the working poor. The working poor in New York State are your sisters, brothers and cousins and are more likely to be single women, African Americans and Hispanics. We don't believe that Gov. Spitzer or the State Legislature has any intention of making the working poor bare the brunt of any workers' compensation reform while rich corporate interests continue to cheat the system.
The below Times article by Steven Greenhouse is eye opening:
January 25, 2007
Study Says Many Firms Cheat New York Workers’ Comp System
By STEVEN GREENHOUSE
A new study estimates that employers cheat New York State’s workers’ compensation system by not paying $500 million to $1 billion a year in required insurance premiums, forcing other employers to pay higher premiums.
The study by the Fiscal Policy Institute, a liberal research group, found that these illegal underpayments represent 15 percent to 20 percent of all the workers’ comp premiums that are supposed to be paid each year statewide.
Some companies pay no premiums while others underpay by underreporting the size of their work force to qualify for lower premiums, the study said.
Government, business and labor leaders say the noncompliance hurts the state’s business climate by forcing law-abiding companies to pay higher workers’ comp premiums when many corporations are already complaining that their premiums are too high.
“We were surprised to find this magnitude of noncompliance,” said James Parrott, the chief economist for the Fiscal Policy Institute. “This noncompliance has helped cause at least two things: very low benefits for injured workers in New York, which are among the lowest in the country, and second, despite these low benefits, workers’ comp premiums that are considered very high.”
Mr. Parrott said inadequate data made it hard to pinpoint the exact amount of cheating.
The report asserts that if more companies paid their full premiums, the extra money would enable the state to cut workers’ comp premiums over all and increase benefits for injured workers. The report maintains that a lack of enforcement has emboldened employers to cheat.
“Not being honest on payroll has become almost an accepted practice in New York State,” said Art Wilcox, a workers’ comp expert with the New York State A.F.L.-C.I.O. “It hurts the competitiveness of a business that does the right thing. It hurts the competitiveness of an insurance broker who refuses to play games with payroll. And it certainly hurts any insurance carrier who won’t bend the rules because they’re competing against people who will.”
Michael Moran, a spokesman for the American Insurance Association, said he found it difficult to believe the level of noncompliance found by the study. “It is very important for insurance companies to be paid correctly for all the people they cover,” he said. “They work at it very hard. They try to audit to make sure that things are right.”
The Fiscal Policy Institute based its calculations on financial numbers filed with state agencies. It bolsters the finding of a report last year by the state’s association of insurance agents, which estimated, based on inside knowledge of industry practices, that up to 20 percent of New York’s employers did not pay all their required premiums.
“New York’s honest businesses who are playing by the rules have had to subsidize those who don’t even cover their employees or those who seriously underpay for the coverage they do have,” said David Dickson, president of the association, Professional Insurance Agents of New York State. “It approaches plain fraud.”
Gov. Eliot Spitzer has pledged to make major changes in the workers’ comp system, hoping to hold down premiums and increase benefits. The maximum benefit an injured worker can now obtain is $400 a week.
“Although we do not know the magnitude of the underreporting of workers’ comp obligations, we recognize that it is a serious problem,” said Christine Anderson, a spokeswoman for the governor.
Insurance experts say that a company with, say, 100 employees might tell its insurer that it has only 70 workers and then pay premiums for only 70.
But if any of the company’s 100 employees are injured on the job, they would be likely to qualify for worker’s comp benefits — either medical coverage and weekly benefits in lieu of wages — when they are out of work. This means that the amount collected in premiums might fall short of the amount spent on benefits. As a result of such a shortfall statewide, insurers often pressure New York officials to increase premiums for all employers in an effort to balance total premiums paid in with total benefits paid out.
“The lack of aggressive enforcement forces everybody in the process to bend the rules,” said Mr. Wilcox of the A.F.L.-C.I.O. “If insurance company A enforces the law but all the rest don’t, then the client will end up with insurance company B or C or D.”
In finding underpayments, the Fiscal Policy Institute first looked at the total amount of employee payroll — $389 billion — that the state’s employers reported for 2003 to the Labor Department and Tax Department when they paid their unemployment insurance taxes. Then the institute examined the total payroll reported to the state agencies and the industry association that handle payroll data for employers paying workers’ comp insurance. The total payroll reported for workers’ comp came to just $311 billion (after the policy institute made some adjustments to account for excluded job categories.)
“Manufacturers are paying significant amount of workers’ comp, and they obviously pay more than they need to because it looks like a large percentage of companies aren’t paying into the system,” said Randall Wolken, president of the Manufacturers Association of Central New York. “If we’re inadvertently increasing some companies’ costs, we inadvertently drive some companies out of the state.”
Last July, the state’s insurance superintendent, Howard Mills, denied a request by insurers to increase workers’ comp premiums, saying, “The insurers’ efforts to fight fraud — both claimant and employer fraud — can be said to be anemic at best.”
At the time, Mr. Mills, who stepped down last month, said that without a greater commitment by insurers to fight fraud, it would be hard to justify any overall increase in premiums.
One common practice, insurance experts say, is for companies, often taxi or trucking companies, to say that their drivers are independent contractors (who are not required to be part of the workers’ comp system) when by many definitions they are actual employees.
As part of the campaign against fraud, Manhattan District Attorney Robert M. Morgenthau and the State Insurance Fund, a state agency that provides workers’ comp coverage to 194,000 employers, arrested Anthony Spychalsky last month and charged his company, NY Ceiling & Drywall, with underpaying premiums by at least $207,000. Mr. Spychalsky pleaded guilty on Jan. 8 to insurance fraud.
Many industry experts say the State Insurance Fund, which focuses on providing coverage to small business, is more aggressive in pursuing premium fraud than private insurance carriers.
Robert Lawson, the insurance fund’s spokesman, said that in 2006, the fund’s 200 auditors did 88,398 field audits. All the audits yielded an additional $89 million in revenues, coming to $493,000 per auditor, Mr. Lawson said.
Mr. Dickson, the head of the insurance agents’ group, said, “The level of audits that are conducted by the commercial carriers and the frequency of the audits, I don’t see that at the same standard as the State Insurance Fund’s efforts.”
Kenneth Adams, president of the Business Council of New York State, said, “Whatever can be put in place to limit and reduce fraud by employers or injured workers, that will produce benefits throughout the system.”
Copyright 2007 The New York Times Company
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Gov. Spitzer's State of the State: No Caps on Permanent Partial Disabilities!
Eliot Spitzer is a smart guy (Horace Mann, Princeton, Harvard Law) who surrounds himself with smart people. It is becoming increasingly clear that the new Spitzer administration has come to the conclusion that it cannot trust the data and misleading statistics on workers' compensation costs, insurance company profits and benefit levels put forth as gospel (and unquestioned by the slumbering New York press) by the Business Council of New York State and the insurance lobby.
The Governor's State of the State Address today was important for what it didn't say. Much to the chagrin of the Business Council and insurance lobby, he did not say he favored capping permanent partial disabilities (PPD's). He simply said that the system needs to be reformed - something those of us who have represented injured workers these last fourteen years know all too well.
The Business Council (nice new website funded by MetLife, IBM, GE, Citigroup etc) largely relies on statistics from the insurance company CEO controlled National Council on Compensation Insurance (NCCI). Check out this 2006 "State of Workers' Comp Insurance Line" video or PDF document to learn what NCCI is all about (Short version - gouging New York business with increased premiums to make up for investment losses, even though claims are down!) It's eye opening to say the least!
Let's now provide all stakeholders and policy makers with a reliable source of workers' compensation statistics and analysis - Professor John Burton's Workers' Compensation Policy Review. Ever since his days as a professor at Cornell's School of Industrial and Labor Relations to his years as Dean of the Rutger's University Business School, Burton has been one of the leading non-partisan authorities on workers' compensation policy and economics in the United States. His 73 page July 2006 report entitled: "Workers' Compensation: Benefits, Coverage and Costs, 2004" is the most up-to-date state by state comparison of key workers compensation data, and is must reading for anyone who wants to get workers' comp reform right.
Over the next few weeks, we will use this report and others to prove why the Business Council's misleading statistics only prove the old adage, "Figures don't lie, but liars can figure!"
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Spitzer and Workers' Comp Reform: What is a "Permanent Partial Disability" and Why It Should be Protected
So big business and the insurance company lobbyists (NYCAN's Larry Gilroy) want to cap "permanent partial disabilities" under the New York State Workers' Compensation system. They say it will be the panacea that results in the revitalization of the upstate New York economy. But before we throw the baby out with the bath water, let's shine some light on the faces of those injured workers who live with "permanent partial disabilities".
George C. was an 47 year old upstate New York union carpenter earning almost $60,000 a year prior to his work related injury. He has a wife and three kids. On 10/14/05, he lifted a piece of sheet rock over his head and suddenly felt a sharp pain in his back which caused him to drop to the floor. He was taken to the local hospital by ambulance where an MRI revealed a large herniated disc in the low back impinging on his spinal cord. George's doctors suggested immediate surgery to relieve the pressure on the spinal cord and George consented to surgery. The doctors requested authorization for surgery from the workers' compensation insurance carrier, which was granted in record setting time of about three weeks. George began to receive New York workers' comp benefits at the maximum benefit level of $400/wk (about 1/3 of his wages). George wondered how he would pay his family's bills.
On 11/11/05, George underwent a two hour lumbar laminectomy where fragments of disc material were removed from his spinal canal. Initially after surgery, George felt immediate relief from the pain and numbness in his right leg. He still felt a constant "toothache" type pain in his lower back, but was hopeful that this would decrease as he began physical therapy. Unfortunately, after 12 weeks of physical therapy, George's lower back pain was still registering a 7/10 on the pain scale. He was still unable to take out the garbage, lift his new one year old grandson or sit in one position for longer than 1/2 hour. George was still taking Vicodin for pain and Flexeril for muscle spasms.
On 2/15/06, George's long time employer, Black Hawk Construction, let him go leaving him and his family without any other medical coverage. His wife's job as a waitress in the local diner did not provide any health insurance. George spoke to his orthopedic surgeon about alternative treatments that might help him return to work. His surgeon suggested a consultation with an anesthesiologist who specialized in pain management. The anesthesiologist suggested a series of three lumbar epidural steroid injections to be done over a period of six weeks as an outpatient at the local hospital. After the first injection on 4/10/06, George's pain decreased to about a 3/10 on the pain scale and he was feeling significantly better. His pain continued to be well controlled initially after the second and third injections also. Unfortunately, when the medication from the final injection wore off by late May 2006, George's pain had returned to a 7/10 on the pain scale and his condition was getting worse.
George now could not control his bladder when he coughed, had put on an extra 20 pounds due to a lack of physical activity, had become increasingly depressed over not working and had lost much of his libido. He went back to his orthopedic surgeon who took another MRI of his spine which found marked degenerative disc disease and instability of the spine. The surgeon suggested a lumbar "spinal fusion" by grafting bone from his hip to stabilize George's spinal column and prevent further worsening of his condition. After waiting over two months for the workers' compensation insurance carrier to authorize the second surgery, George finally had his back fused on 9/7/06 (right after Labor Day). Like his first surgery, George initially felt a little better, and his pain four weeks post-surgery was 5/10. However, George's pain again began to steadily increase and an x-ray done 12 weeks post surgery showed a failed fusion at the graft site in the spinal column. Because the fusion was unsuccessful, he was unable to undergo further physical therapy.
Despite a pro-active course of sustained treatment, George's doctors now diagnose his condition as "failed back syndrome". His only course of future treatment is to rely on increased pain medication. He has become increasingly depressed and his doctor has referred him to a psychiatrist to cope with loss of his career. He now walks with a cane and is frequently incontinent. The financial strain has caused him to put his house up for sale, sell his much loved fishing boat and created marital problems. There are days he would like to "call it all quits".
Under the objective Workers' Compensation Board Medical Guidelines" promulgated as part of the Pataki reforms of 1996, George has a "Permanent Partial Disability" and would be entitled to ongoing workers' compensation benefits until such time that he was able to earn as much as he made prior to his accident lifting sheet rock. He would not be considered "Permanently Totally Disabled" because he does not need a wheelchair, does not need assistance bathing himself and can drive short distances himself. He is now 48 years old, living in constant pain and his economic future is bleak. Should New York State "cap" this gentleman's permanent partial disability benefits?
Now let's assume, for argument's sake, that George with his high school education can be retrained by the state for some type of less physical work AND some employer (Walmart????) will hire him cane and all ( I wouldn't bet on it! ). Will he ever earn as much as he did as a union carpenter?. Had George's employer given safety classes on proper lifting techniques or provided back belts to its employees, could this accident have been prevented? Would not prevention be in the best economic interests of both George and his employer?
Bottom Line - to date, the New York AFL-CIO , NYCOSH and the New York Workers' Compensation Alliance have steadfastly refused to do a devil's bargain with "'permanent partial disabilities", i.e. trade a "cap" on permanent partial disabilities for an increase in short term benefit levels. We know that in the long run it's bad for most injured workers. Such a deal could have been done with the full blessing of both Governor Pataki and the Business Council years ago had we not stood our ground and taken the moral high road. To date, Governor-elect Spitzer has a record taking the moral high road which elevates him from the levels of mere politicians to the almost Lincoln-esque stature of a statesman. As Hubert Humphrey once said, the "the moral test of government is how it treats the children, the elderly and the disabled". I've got a funny feeling that the Governor-elect would agree with that statement. His Inaugural Address is on January 1st. We'll be listening.
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What Will NY Workers' Compensation Look Like under Governor Spitzer?
Will there be caps on permanent partial disabilities (PPD's)? Will the maximum workers' compensation rates for injured workers increase and by how much? Will there be changes to the Section 32 settlement process? Will the overall effect of proposed workers' compensation reform be a "net win or loss" for injured workers?
Find out some of the possible scenarios this Friday! The New York Workers' Compensation Alliance (WCA) will be holding a Cocktail Fundraiser and Information Session this Friday, December 1st, from 3:30 to 5:30 pm, at the new offices of our Counsel, Richard Winsten, Esq, of Meyer Suozzi English & Klein at 990 Stewart Avenue, Suite 300, Garden City, NY 11530. Richard will update all attendees on the current state of workers comp in Albany. The suggested contribution per attendee is $100.00, subject to annual donation limitations, payable to the "New York Workers' Compensation Alliance".
Please be assured that the Workers' Compensation Alliance stands firm in our belief that capping PPD's is harmful to injured workers in New York State and will result in many disabled workers becoming welfare recipients and an additional burden New York taxpayers. In addition, the Workers' Compensation Alliance firmly supports a long overdue increase in the maximum weekly compensation rates to reflect wage growth since the last adjustment in 1992. Finally, the Workers' Compensation Alliance strongly believes that injured workers should have choice in selecting their own doctors for treatment of their injuries.
Please make every effort to attend. RSVP to Don Shouldice (516) 594-0909 or Troy Rosasco (631) 582-3700 by November 30th. Hope to see you there!
Posted By WCA In Breaking News
, NY Workers' Compensation Reform
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Vote for Eliot Spitzer Tomorrow if You Are Disabled
Unum agreed to $15.5 million dollars in restitution to over charged policyholders and a $1.7 million dollar civil penalty. This settlement with UnumProvident, the nation's beleaguered yet largest long term disability claim insurer, comes on the heels of Spitzer's prior settlement with UnumProvident requiring them to re-access tens of thousands of previous unfair long term disability claim denials. Give Eliot Spitzer credit and your vote tomorrow - to date, he has done more to protect injured and disabled than any past NY Attorney General of recent memory. The New York Workers' Compensation Alliance has been in his corner since our first fundraiser for him in April 2005. Now let's hope he protects New York workers' compensation claimants just like UnumProvident claimants in his new role as Governor. Good luck Mr. Governor!
Posted By WCA In Breaking News
, Comp Truth '06
, NY Workers' Compensation Reform
, Workers Comp Claims
, Workers' Comp Politics
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Wake Up Employers! The Insurance Cartel is Responsible for High Workers' Compensation Costs in New York
Below is an excellent Op-Ed piece published in yesterday's New York Times on the real problem driving higher costs in New York's workers' comp system. It should be mandatory reading for all Albany decision-makers, including the presumptive next Governor, Eliot Spitzer.
EACH year, more than 140,000 New Yorkers are injured on the job. For most, the main source for paying medical expenses and replacing lost wages is the workers’ compensation system.
As a lawyer whose career is devoted to representing these injured workers, I have spoken to thousands of people over the years about their individual cases and about the limitations of the system. I’ve spent many unhappy hours explaining that even though someone may not be able to pay rent or feed his family on his benefit amount, he is getting the most the law allows. Often, I have had to tell clients that they cannot have necessary medical testing or treatment until they get approval from their insurance company. And recently, I have had to explain to workers with problems related to 9/11 that they’ve missed the deadline for claims because of technicalities in the Workers’ Compensation Law.
Since 1992, the maximum benefit in New York has been $400 per week, although most injured workers receive less. According to the New York Committee for Occupational Safety and Health, a nonprofit coalition of unions and individual workers, this is the lowest benefit rate in the country as a percentage of the state’s average weekly wage. By contrast, New Jersey’s maximum weekly benefit is $691 and Connecticut’s is $1,005.
Gov. George Pataki, adopting proposals made by the Business Council of New York State, has suggested an increase in the maximum benefit to $500 per week, a figure that would still leave New York far behind most other states. Other elements of the proposal are a 50 percent cut in awards for permanent loss of use and a sliding scale of time limits for permanent disability benefits. This means that a worker who was permanently disabled would no longer be paid for life and “capped” at 500 weeks of benefits; those less than totally disabled would get benefits for an even shorter period.
One wonders how permanently disabled workers would survive after their benefits are exhausted. Only the most disabled are likely to receive Social Security disability benefits, and thousands of “capped out” disabled workers would be left to the mercy of public assistance or charity.
Business groups argue that workers’ compensation insurance costs too much money, and that cutting benefits for workers will result in lower insurance premiums for employers. This theory isn’t supported by the data, which shows a 45 percent drop in claims for workers’ compensation from 1991 to 2005. Other studies show that from 1988 to 1997 financial benefits paid to injured workers declined by 32 percent, a trend that has continued.
By every measure available injured workers have made far fewer claims and have received far less money over the past 15 years. Logically, workers’ compensation insurance premiums should have dropped substantially because if fewer claims are made, less money is paid out — and they have, by 30 percent during the last 10 years. During that same period, insurance carriers have made a profit of at least 9 percent per year, taking in more premiums than claims paid out.
Have insurers passed on their savings from the decline in workers’ compensation claims? It doesn’t look like it, but it’s impossible to know if they’re overcharging employers. Why? Because in New York, these insurers are required to report their data to the Compensation Insurance Rating Board and this board is governed by the insurers. With no independent verification of the insurers’ claims about their charges to employers, their payments to workers or their profits, much of their data remains suspect.
The state Insurance Department, which supervises and regulates all insurance products in New York, recently rejected an application by the rating board for a rate increase, implying its distrust of the insurers’ data. The accuracy of their claims has also been challenged by the Professional Insurance Agents of New York and by the state A.F.L.-C.I.O., which estimates that the insurers retain 35 cents out of every premium dollar. And the New York State Attorney General’s office has announced settlements with the insurance industry totaling $2.6 billion related to fraud and bid-rigging, much of it related to workers’ compensation insurance.
It’s clear that we cannot rely on an honor system when dealing with insurers that have settled fraud claims against them for billions of dollars. Therefore, the Legislature must empower the state Insurance Department to audit these insurers and publish the results, bringing a measure of truth to the question of how much premium is collected and what portion actually reaches injured workers and their families.
The problem with the workers’ compensation system is that too few of the premium dollars paid by employers reach disabled workers and their families. Too much is kept by insurers, which reap huge profits by pocketing the savings on declining claims instead of reducing charges to employers. Perhaps it should be the other way around.
Robert Grey is a lawyer.
Posted By WCA In Breaking News
, Comp Truth '06
, NY Workers' Compensation Reform
, Workers' Comp Politics
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New York Insurance Department Slams Workers' Comp Insurance Industry
New York Insurance Superintendent Howard Mills, using Spitzer-like language to condemn the actions of workers' compensation insurance carriers in New York, denied the insurance industry's request for a rate increase on July 14, 2006. See the full opinion here.
"Insurers efforts to fight fraud - both claimant and employer fraud - can be said to be anemic at best" and "the paucity of fraud savings is most unsettleing" stated Mills. "Without a greater committment on the part of workers' compensation carriers in New York to fight fraud, this Department is hard pressed to justify any new overall average rate increases".
Citing workers' compensation insurer profits of 8.1% in 2002, 9.9%in 2003 and 8.7% in 2004, the Republican Pataki appointed Mills came down hard on insurers in favor of protecting the New York business community from insurance company gouging. The opinion was hailed by various business groups and leaders, including Randy Wolken of the Manufacturer's Association of Central New York.
It is apparent that government and business alike are finally realizing that insurance companies are the real culprits causing increasing workers' compensation costs in New York. With one of the lowest maximum workers' compensation benefit rates in the U.S. (injured workers have not had ANY increase since 1992), it certainly isn't claimant benefit levels. If Howard Mills keeps talking like this, he may keep his job in a future Spitzer administration!
Posted By WCA In Breaking News
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New York Legislature Passes 9/11 Workers' Comp Bill
The new "9/11 Bill" allows workers who later become ill with conditions such as asthma, chronic obstructive lung disease (COPD), asbestosis, mesothelioma or cancer to file their claims as "occupational diseases". This change essentially extends their time to file a claim to two years from the "date of disablement", rather than two years from the date of exposure exposure which resulted in the denial of many claims to date. Claimants who have had 9/11 disease cases disallowed for late claim filing (statute of limitations) problems can now re-open those denials. Anyone with a 9/11 claim previously denied due to lateness should contact a workers compensation attorney immediately. A list of qualified workers' comp lawyers can be found at the Injured Workers' Bar Association website. The entire text of the bill is below:
--------------------------------------------------------------------------------------
AN ACT to amend the workers' compensation law, in relation to claims for
illnesses sustained by workers who participated in the rescue, recov-
ery and clean-up effort following the terrorist attack at the World
Trade Center on September 11, 2001
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. The workers' compensation law is amended by adding a new
2 article 8-a to read as follows:
3 ARTICLE 8-A
4 WORLD TRADE CENTER RESCUE, RECOVERY AND CLEAN-UP OPERATIONS
5 Section 161. Definitions.
6 162. Registration of participation in World Trade Center rescue,
7 recovery and clean-up operations.
8 163. Notice; participants in the World Trade Center rescue,
9 recovery and clean-up operations.
10 164. Disablement of a participant in World Trade Center rescue,
11 recovery and clean-up operations treated as an accident.
12 165. Reopening of disallowed claims.
13 166. Liability of employer and insurance carrier.
14 167. Claims of volunteers.
15 § 161. Definitions. Whenever used in this article:
16 1. "Participant in World Trade Center rescue, recovery, or cleanup
17 operations" means any (a) employee who within the course of employment,
18 or (b) volunteer upon presentation to the board of evidence satisfactory
19 to the board that he or she:
20 (i) participated in the rescue, recovery, or cleanup operations at the
21 World Trade Center site between September eleventh, two thousand one and
22 September twelfth, two thousand two; or
23 (ii) worked at the Fresh Kills Land Fill in New York city between
24 September eleventh, two thousand one and September twelfth, two thousand
25 two, or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17509-01-6
S. 8348 2
1 (iii) worked at the New York city morgue or the temporary morgue on
2 pier locations on the west side of Manhattan between September eleventh,
3 two thousand one and September twelfth, two thousand two, or
4 (iv) worked on the barges between the west side of Manhattan and the
5 Fresh Kills Land Fill in New York city between September eleventh, two
6 thousand one and September twelfth, two thousand two.
7 2. "World Trade Center site" means anywhere below a line starting from
8 the Hudson River and Canal Street; east on Canal Street to Pike Street;
9 south on Pike Street to the East River; and extending to the lower tip
10 of Manhattan.
11 3. "Qualifying condition" means any latent disease or condition
12 resulting from a hazardous exposure during participation in World Trade
13 Center rescue, recovery or clean-up operations.
14 4. "Disablement" shall have the same meaning as defined in section
15 thirty-seven of this chapter and determined by the board in the same
16 manner as provided in section forty-two of this chapter.
17 § 162. Registration of participation in World Trade Center rescue,
18 recovery and clean-up operations. In order for the claim of a partic-
19 ipant in World Trade Center rescue, recovery and clean-up operations to
20 come within the application of this article, such participant must file
21 a written and sworn statement with the board on a form promulgated by
22 the chair indicating the dates and locations of such participation and
23 the name of such participant's employer during the period of partic-
24 ipation. Such statement must be filed not later than one year after the
25 effective date of this article. The board shall transmit a copy of such
26 statement to the employer or carrier named therein. The filing of such a
27 statement shall not be considered the filing of a claim for benefits
28 under this chapter.
29 § 163. Notice; participants in the World Trade Center rescue, recovery
30 and clean-up operations. The notice requirements for injury or death
31 resulting from a qualifying condition for a participant in World Trade
32 Center rescue, recovery and clean-up operations shall be the same as set
33 forth in section eighteen of this chapter, except that the notice shall
34 be given to the employer, or in the case of a volunteer, to the board,
35 within two years after the disablement of the participant or after the
36 participant knew or should have known that the qualifying condition was
37 causally related to his or her participation in World Trade Center
38 rescue, recovery and clean-up operations, whichever is the later date.
39 § 164. Disablement of a participant in World Trade Center rescue,
40 recovery and clean-up operations treated as an accident. The date of
41 disablement of a participant in World Trade Center rescue, recovery and
42 clean-up operations resulting from a qualifying condition that is
43 causally related to such participant shall be treated as the happening
44 of an accident within the meaning of this chapter and the procedure and
45 practice provided in this chapter shall apply to all proceedings under
46 this article, except where otherwise specifically provided herein.
47 § 165. Reopening of disallowed claims. The board, upon receiving a
48 statement duly filed as required under section one hundred sixty-two of
49 this article, from a participant in World Trade Center rescue, recovery
50 and clean-up operations for a qualifying condition that was disallowed
51 as barred by section eighteen or section twenty-eight of this chapter
52 shall reopen and redetermine such claim in accordance with the
53 provisions of this article, provided that no such previously disallowed
54 claim for a qualifying condition shall be determined to have a date of
55 disablement that would bar the claim under section eighteen or section
56 twenty-eight of this chapter.
S. 8348 3
1 § 166. Liability of employer and insurance carrier. The employer in
2 whose employment an employee participated in World Trade Center rescue,
3 recovery and clean-up operations shall be liable for any claim for a
4 qualifying condition that is causally related to such participation
5 provided that such participation arose out of and in the course of such
6 employment. For the purpose of determining which carrier has insurance
7 coverage of such claim, the date of accident shall be considered the
8 last day of such participation.
9 § 167. Claims of volunteers. For persons who participated in World
10 Trade Center rescue, recovery and clean-up operations as volunteers, the
11 uninsured employers' fund shall be deemed to be the employer only for
12 the purposes of administering and paying claims pursuant to this arti-
13 cle. Benefits under this chapter shall be payable to such volunteers
14 only to the extent that funds are available out of funds appropriated to
15 the United States Department of Labor under Public Law 109-148 to reim-
16 burse the uninsured employer's fund for the payment of such benefits.
17 § 2. This act shall take effect immediately and shall be deemed to
18 have been in full force and effect on and after September 11, 2001 and
19 shall apply to all open and closed claims coming within its purview.
--------------------------------------------------------------------------------
NEW YORK STATE SENATE
INTRODUCER'S MEMORANDUM IN SUPPORT
submitted in accordance with Senate Rule VI. Sec 1
BILL NUMBER: S8348
SPONSOR: MARCHI
TITLE OF BILL:
An act to amend the workers' compensation law, in relation to claims for
illnesses sustained by workers who participated in the rescue, recovery
and clean-up effort following the terrorist attack at the World Trade
Center on September 11, 2001
PURPOSE OF THE BILL:
The purpose of this bill is overcome obstacles of filing claims by
participants in World Trade Center rescue, recovery and clean-up oper-
ations following the September 11, 2001 attacks for latent conditions
and illnesses by treating such claims filings in a similar manner to
claims for occupational disease. The bill also addresses specific issues
regarding claims of those who participated as employees and those that
participated as volunteers.
SUMMARY OF PROVISIONS:
Section 1 of the bill adds a new article 8-a to the Workers' Compen-
sation Law ("WCL") which provides as follows:
* Section 161 provides definitions of "Participant in World Trade Center
rescue, recovery and cleanup operations", "World Trade Center site",
"Qualifying condition" and "Disablement" as those terms are used in the
new article. "Qualifying condition" is defined as a latent disease or
condition resulting from a hazardous exposure during participation in
the rescue, recovery or clean-up operation. "Disablement" is defined to
have the same meaning as the term is used in the WCL in reference to an
occupational disease.
* Section 162 requires participants, in order to qualify for special
notice and claims filing provisions for a qualifying condition, to file
a written and sworn statement with the Workers' Compensation Board (WCB)
within eighteen months of the effective date of the legislation stating
the dates that person worked in the operation and name of the employer.
The employer and carrier are to receive a copy.
* Section 163 provides that notice of injury or death from a qualifying
condition shall be given within two years after the disablement of the
participant or after the participant knew or should have known that the
qualifying condition was causally related to participation in rescue,
recovery or clean-up operations, whichever is later.
* Section 164 provides that the date of disablement for a claim by a
participant for a qualifying condition shall be treated as the occur-
rence of an accident so as to provide a statute of limitations standard
to these claims the same as that which applies to an occupational
disease claim.
* Section 165 provides that upon receiving a duly filed registration
statement for a qualifying condition, the WCB shall reopen any previous
claim for such a condition disallowed under WCL § 18 or § 28 and rede-
termine the claim applying the liberal notice and claims filing
provisions as provided.
* Section 166 provides that the employer of any participant in rescue,
recovery and clean-up operations shall be liable for any claim for a
qualifying condition that arose out of and in the course of employment
and that the insurance carrier covering the employer on the last day of
participation in rescue, recovery and clean-up operations has coverage
of such claims.
* Section 167 provides that the Uninsured Employers' Fund shall adminis-
ter and pay the claims of those who participated as volunteers but that
benefits shall be paid only to the extent that funds appropriated by the
federal government for such purpose are available.
Section 2 of the bill provides for an immediate effective date but is
deemed to have been in effect on and after September 11, 2001 and
applies to all open and closed claims coming within its purview.
EXISTING LAW:
Existing law treats claims for latent conditions resulting form a
hazardous exposure during participation in the rescue, recovery or
clean-up operation as accidents.
PRIOR LEGISLATIVE HISTORY:
None.
STATEMENT IN SUPPORT:
The aim of this bill is to remove statutory obstacles to timely claims
filing and notice for latent conditions resulting from hazardous expo-
sure for those who worked in rescue, recovery or cleanup operations
following the World Trade Center September 11th, 2001 attack.
The WCL requires an employee to provide notice to the employer within 30
days (WCL § 18) and to file a claim for benefits within two years of the
injury (WCL § 28). Under the WCL, latent conditions are normally
compensable as occupational diseases. Notice and claims filing require-
ments are triggered by a date of disablement determined by the WCB.
Occupational disease claims usually involve conditions that develop
slowly over a period of years after an employee has performed a partic-
ular type of work. Each disease established by the WCL as occupational
is linked to particular work processes that the employee has performed
over time. In the case of participants in World Trade Center rescue,
recovery or cleanup operations, little is known about what diseases and
conditions might develop later on based on their exposure to uniquely
hazardous conditions so as to recognize them as occupational diseases.
This bill requires that claims for latent conditions alleged to be
causally related to a hazardous exposure while participating in rescue,
recovery or cleanup operations be treated for claims filing (statute of
limitations) and notice purposes in the same manner as an occupational
disease. Claims filing and notice provisions would begin to run from the
date of disablement determined by the WCB rather than from the date of
the actual exposure. As in occupational disease cases, the WCB has wide
latitude to set the date of disablement so that the claim of a partic-
ipant for a qualifying condition who discovered the presence or cause of
that condition at a date after participation ceased not to be barred by
the statute of limitations or for lack of timely notice. In cases where
the participant continues to work after seeking medical treatment for
the qualifying condition, the WCB would have latitude to set a date of
disablement so as to include such treatment as covered under the claim.
Claims for a qualifying condition can be determined to be compensable as
accidents under the WCL based on evidence that they are causally related
to a hazardous exposure during rescue, recovery or cleanup operations.
These complicated and unique issues of causation can best be addressed
by the WCB on a case by case basis.
To be eligible for occupational disease claims filing and notice treat-
ment, participants would be required to register with the WCB within
eighteen months after enactment of the legislation showing the dates and
location of their participation.
The bill also addresses claims handling and liability issues for two
distinct classes of workers who participated in the World Trade Center
rescue, recovery and cleanup effort, those who participated at the
behest of their employer and sustained injuries that arise out of and in
the course of that employment and those that participated as volunteers.
The employees are covered by their employers' workers' compensation
insurance. The bill provides that benefits for latent diseases will be
covered under the insurance policy covering the employer in question for
injuries sustained in the rescue, recovery and cleanup effort on the
date that the employee ended his or her participation in such oper-
ations.
Volunteers have been paid workers' compensation benefits for all inju-
ries related to participation in rescue, recovery and clean-up oper-
ations by the Uninsured Employers' Fund and reimbursed through the U.S.
Department of Labor out of a $50 million federal appropriation for that
purpose. The bill would clarify that benefits to these volunteers would
be financed only out of federal funds reimbursements appropriated for
that purpose and not otherwise be a liability imposed on the Uninsured
Employers' Fund.
BUDGET IMPLICATIONS:
None.
EFFECTIVE DATE:
This bill is effective immediately is deemed to have been in effect on
and after September 11, 2001 and applies to all open and closed claims
coming within its purview.
Posted By WCA In Breaking News
, Legislation
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New York Workers' Compensation Alliance Pushes 9/11 Bill in Albany
The NY Workers' Comp Alliance is pushing hard at the end of this legislative session in Albany to pass a comprehensive "9/11 Workers' Compensation" bill that will protect rescue and recovery workers who become ill as a result of working at Ground Zero. We are pleased to report that the New York State Senate unanimously approved a compromise 9/11 workers' comp bill this afternoon. The bill will now go to the Assembly Rules Committee for action, and will hopefully then be sent to Governor Pataki for his presumed signature.
If this bill becomes law, it will be the result of the hard work and dedication of many tireless advocates for injured workers throughout New York State. It will provide protection to workers and their families for the many lung diseases, cancers and yet unknown illness' resulting from working around the toxins at Ground Zero. These heroes were there for all New Yorkers during the 9/11 catastrophe - now its time to to take care of their needs while they face their own health crisis.
Posted By WCA In Breaking News
, Legislation
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Workers' Compensation Alliance Chairs Participate in Lively Senate Roundtable
Workers' Comp Alliance Co-Chairs John Sciortino and Troy Rosasco recently advocated the position of injured workers at a well attended public Roundtable in Albany sponsored by State Senator George Maziarz. Once again, Senator Maziarz proved to be an open minded fact finder seeking common ground solutions to the tough problem of Workers' Compensation.
As stated in a previous Workers' Compensation Alliance post, the panel consisted of representatives of injured workers and business. Joel Shufro, President of the New York Committee for Occupational Safety & Health (NYCOSH) made an impassioned plea to make safety on the job the number one priority. All panelists agreed this was a priority.
John Sciortino outlined the Workers' Compensation Alliance position on not capping benefits for permanent partial disabilities (PPD's) and raising the maximum benefit rate for the first time in 14 years. The business representatives continued to bang the drum that New York should cap PPD's "because 42 other states do". However, Troy Rosasco rebutted this reasoning as silly and unpersuasive. He compared such reasoning to the teenage daughter who pleas with her parents to allow her to go on an overnight ski trip "because 42 other parents do". Perhaps the other 8 states (parents) have it right! In addition, he noted that there are no university based research studies showing that workers comp costs put New York business at a competitive disadvantage. Finally, the business panel had to concede that the manufacturing economy in New York is the best it has been in over 5 years.
All in all, it was another excellent opportunity for the Workers' Compensation Alliance to speak for injured workers across New York State.
Posted By WCA In Breaking News
, Comp Truth '06
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, Lobbying
, NY Workers' Compensation Reform
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Response to Newsday Editorial on Workers' Comp Reform
Below are two letters to the Editor written by New York Workers' Compensation Alliance members objecting to Newsday's March 21st editorial supporting the Pataki reform proposals:
To the Editor:
I know Newsday is one of Long Island's major employers (owned by the Times-Tribune conglomerate), but I never thought its own corporate self interest would would infect its positions on the editorial page. On the issue of workers' compensation, apparently it did.
How soon Newsday forgets. 9/11 was the worst workplace tragedy in the history of the United States. Besides the over 3000 deaths, many Long Islanders suffered devastating permanent partial disabilities and will never return to any gainful occupation. The survivors and their families on Long Island live with this cruel reminder every day. Without the notoriety of 9/11, similar crippling permanent partial disabilities occur each and every day to workers on Long Island. Newsday notes that these serious injuries only make up 11% of those receiving benefits, but make up 72% of the cost. Isn't this the way it should be - with the most seriously disabled receiving the majority of workers compensation benefits? Newsday's logic on this issue eludes me.
There are no research studies showing that New York's workers' compensation costs cause New York to be less competitive than other states. In fact, all leading economic indicators point to a strong economy and the Federal Reserve Bank of New York recently published a report showing that manufacturing is particularly strong in New York. The fact that a number of other states have a different approach is not a persuasive argument to change New York's Workers' Compensation Law. Perhaps New York, like it is in so many other ways, is ahead of the rest of nation on this issue.
On March 25, 1911, 146 immigrant workers lost their lives due to unsafe workplace conditions in the Triangle Shirtwaist Factory Fire in lower Manhattan. This tragedy was directly responsible for the groundbreaking enactment of the New York State Workers' Compensation Law. On the eve of the Triangle Fire's anniversary, it is disappointing that Newsday would take a stance hurting injured workers even further on its editorial page.
Troy G. Rosasco
Co-Chair
New York Workers' Compensation Alliance
____________________________________________________
To the Editor:
Your support of putting a cap on the length of time a person who is permanently partially disabled can receive workers' compensation benefits fails to answer the most important question created by placing a cap on this type of workers' compensation benefits. (Reform for Workers' Compensation, Editorial, March 21, 2006) If a worker cannot be retrained after slightly over 9.5 years of benefits and is unable to return to work, who will pick up the cost of supporting the worker? If the workers' compensation benefits are cutoff it is likely that the injured worker will be moved from the workers' compensation rolls to the welfare rolls. Why should the taxpayers support this person when the employer has already purchased insurance for this injured worker? Capping benefits for a person who is permanent partial disability may result in lower premiums for employers that will be offset by increased taxes for everyone when the injured worker ends up living on social services.
Ronald Balter
Treasurer
New York Workers' Compensation Alliance
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Federal Reserve Bank Says New York Manufacturers Financially Strong
On March 16, 2006, the Rochester Democrat and Chronicle, in an editorial entitled "Fix Workers Comp", once again blamed workers' compensation for the upstate economic woes and the downfall of Delphi, the upstate manufacturer of auto parts. What a bunch of hogwash! I guess the editors didn't read (or purposely ignored) the Associated Press report of the same day indicating that manufacturers across New York State are reporting their best financial results in years. In fact, the report was so strong that it was partly responsible for pushing the S & P 500 Index over the 1,300 mark for the first time in almost five years.
The Federal Reserve Bank of New York publishes the Empire State Manufacturing Survey, a monthly survey of manufacturers across New York State that measures their financial health. This is "gold standard" information that moves stock markets, as it did on Wednesday. This information refutes the propaganda put out by the Business Council of New York State, and apparently believed by the Rochester Democrat, that workers' compensation is hurting the upstate manufacturing economy. It also undercuts the Governor's political pandering blaming workers compensation costs for the Delphi bankruptcy. For the real reasons for the Delphi debacle, click here. Hint - it's not about workers' comp!
Bottom Line - manufacturers are doing better than they have in a long time in New York State. Things are looking up! Of course they would like to "manufacture" an artificial workers' comp crisis to increase profits. That's how CEO's get paid these days. It's profits - not corporate integrity or loyalty to their employees - that govern the outrageous executive compensation packages at Delphi. Perhaps we should not be surprised by the newspaper's slanted position, unsupported by the facts. After all, newspapers are profit hungry employers too!
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Report on Workers' Compensation Senate Hearing
Several members of the Workers' Compensation Alliance (WCA) Board of Governors were in attendance at the Workers' Compensation Reform "Roundtable" called by Republican State Senator George Maziarz on 3/13/06. In addition to the very even handed Senator Maziarz, Senators Marcellino, Onorato, Wright and Little were present.
Invited speakers included Denis Hughes of the New York AFL-CIO, Dan Walsh of the Business Council of NY, Richard Bell of the NYS Workers' Compensation Board, Monte Alper of the NY Workers Compensation Rating Board. Peter Molinaro of the NY State Insurance Department and Paul Magaril of the NY State Insurance Fund.
For two hours the participant's debated the pros and cons of Governor Pataki's Workers' Compensation Reform bill which is currently attached to the State Budget. After all was said and done, the following was clear:
1) Workers' Compensation insurance carriers made an 8.7% profit in 2004, compared to 4% in other lines of insurance, according to Mr. Molinaro of the State Insurance Department;
2) Mr. Alper, representing the insurance carriers, disagreed but did not have the exact profit figures;
3) The Senators seemed frustrated that these two State agencies could not agree on the "numbers", and stated that they could not make any rational decisions until the numbers are straightened out;
4) Dan Walsh of the Business Council made an impassioned plea that we must "take the emotion out of workers' compensation" and that permanently disabled workers "need to rise above it - it is all a numbers game". Nearly all the panelists, including the Senators, felt this was improper when we are talking about workers losing arms and legs. Even Mr. Magaril of the State Insurance Fund disagreed with Mr. Walsh on this point;
5) AFL-CIO President Denis Hughes noted that out of every one dollar in premium paid by employers, only 65 cents goes to injured workers. The other 35 cents goes to insurance company profits and administrative costs. He suggested we look to this 35 cents to find savings for employers;
6) Near the end of the hearing, Senator Maziarz stated: "I think I'm speaking for the Senate Majority that "we want to make sure that benefits to permanently disabled workers don't stop". Does this mean the Senate opposes caps on PPD's?
The next "Roundtable" is scheduled for April 10th, at which a representative of the Workers' Compensation Alliance will probably take part.
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NY Workers' Compensation Alliance Travels to Albany for Senate Hearing
Members of the Board of Governors of the NY Workers' Compensation Alliance will be representing the interests of injured workers during New York State Senate hearings on workers' compensation reform on Monday, March 13, 2006. This hearing was called by upstate Republican Senator George Maziarz, and the majority of speakers will represent insurance company and employer interests.
When the NY Workers' Compensation Alliance requested time to present our positions at this hearing, we were rebuffed without explanation. This is despite the fact that our members represent almost 150,000 injured workers from Long Island to Buffalo to Rochester. Despite this, we are confident that NY AFL-CIO President Denis Hughes will ably represent injured workers despite being outnumbered by the opposition. We will have a full report next Tuesday upon our return.
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NY Workers' Compensation Alliance Rebuts Business Council in Albany Newspaper
In today's edition of the Albany Legislative Gazette, the NY Workers' Compensation Alliance countered the allegations of the Business Council of New York State. Click here to read our comments on pages 10 and 20. As reported in prior posts here, the Business Council continues to make misleading and inaccurate statements about workers' compensation costs in NY. Before you know it, the Business Council will blame Governor Pataki's burst appendix on workers' compensation costs!
However, the Business Council is strangely silent on one critical issue - workers' compensation insurance company profiteering in New York State. As is well known among all Albany insiders due to Attorney General Spitzer's investigation, insurance giant AIG cheated the New York State workers compensation system out of tens of millions of dollars over the past several years. This resulted in higher workers comp premiums for all honest employers in NY.
Workers' compensation insurance in New York is so lucrative that the Business Council runs it's own self-insured program under it's subsidiary, First Cardinal. Until the Business Council starts being honest about where a large portion of employer premiums really go (insurance company CEO pockets, etc.), their claims that struggling injured workers are bankrupting upstate business will fall on deaf ears.
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NY Workers' Compensation Alliance Position Paper on Pataki Bill
NY WORKERS' COMPENSATION ALLIANCE (WCA)
Position On Governor Pataki's Proposed Changes To
The Workers' Compensation System
Budget Bill Article VII A.9561/S.6461
The New York workers' compensation system is in need of changes to keep pace with the cost of living and to effectively deliver the basic medical benefits promised to injured workers by the State Constitution. In recent years it has become commonplace to accuse the current workers' compensation system of providing too little in the way of benefits to injured workers while costing employers too much. Both of these criticisms are well founded. Unfortunately the legislation currently proposed by Governor Pataki will not provide the promised relief either to injured workers or to business.
The Governor's proposal is INADEQUATE. It provides too little in benefit increases to injured workers and contains no guarantees that it can deliver relief from the high cost of workers'
compensation insurance.
The Governor's proposal is INSENSITIVE to the real needs of injured workers and to the plight of small businesses in New York.
The Workers' Compensation Alliance (WCA) is made up of legal professionals with extensive background working within the New York workers' compensation system. We are comprised of over thirty law firms and corporations throughout the State that represent and provide service to injured workers We believe the workers' compensation system can be successfully modified to
meet the needs of New York's injured workers and at the same time deliver cost savings to New York business.
- The WCA strongly favors a genuine benefit increase to injured workers. The WCA strongly opposes any attempt to reduce current benefits to injured workers by limiting the
scope of permanent disability benefits.
- The WCA strongly favors changes in the way medical benefits are delivered injured workers that will also yield significant cost savings to employers. The WCA believes
that real cost savings are possible but that they should not be found at the expense of the injured workers the statute has always served.
- The WCA strongly favors the absolute right of the injured worker to have his or her day in Court before a Judge. The WCA thus strongly opposes efforts to erode the due process guaranteed in the statute.
This paper will explore each of these areas in some detail. We will show (1) why a benefit
increase is needed and what would be necessary to provide genuine economic relief to injured workers. We will show (2) why cost savings should not be achieved by reducing basic economic benefits to injured workers, but should be focused on control of the real cost drivers of the system. Finally,we will show (3) why it's important not to take away the injured workers' due process right to a hearing before a Judge, currently guaranteed in the State Constitution.
Why the Governor's Benefit Increase is Inadequate
In his proposal Governor Pataki seeks to raise the maximum rate of workers' compensation benefits from the current $400 per week to $500 per week by increasing the maximum rate by $25 per year between now and January 1, 2009. The Governor's proposal is both misleading and inadequate. It will actually leave injured workers in a position worse than they were on July
1, 1992 when the last increase in the workers' compensation maximum took effect.
Currently,the maximum workers' compensation rate in Connecticut is $931 per week and in New Jersey is $891 per week. Injured New York workers deserve benefits that will not force them into poverty.
A maximum rate of $500 in 2009, when adjusted to 1992 dollars will be significantly below what is necessary for the workers' compensation rates to keep pace with increases in the Consumer
Price Index (CPI). As computed by the Federal Reserve Bank, in order for the maximum compensation rate in 2004 to have the same purchasing power as it had in 1992 the rate should already have been raised to $538.56. The proposed maximum rate that would not become
effective until 2009 is only 92.8% of what the rate should have been in 2004 to keep pace with inflation. As prices continue to rise between now and 2009 the Governor's proposed rate increase will represent less and less real purchasing power to injured workers.
Any real increase in workers' compensation maximum benefits should be tied to the state average weekly wage. Workers' compensation lost wage benefits are calculated as a percentage of average weekly wage. From the beginning of the New York workers'
compensation system in 1914 it has been widely acknowledged that workers' compensation benefits should equal two-thirds of a person's actual average weekly wage. The last benefit
increase in 1992 was calculated to achieve this goal. Any current modification of the workers' compensation maximum rate should do the same. According to the New York State Department of Labor, in 1992 the state average weekly wage was $623.22. This meant that in 1992 the maximum workers' compensation rate was approximately 64.2% of the state average weekly wage. By 2004 the state average weekly wage had increased to $960.64 leaving the maximum workers' compensation rate of $400 to represent only about 41.6% of the state average weekly wage. To keep pace with the increase in the state average weekly wage the rate in 2004 should have been increased to $616.57. If the governor's proposal is enacted by 2009 the maximum workers' compensation rate of $500
will be only about 52% of the 2004 state average weekly wage.
The Governor cynically claims that his proposal constitutes a 25% increase in the maximum workers' compensation rates. In
fact, under his proposal the injured workers of New York State will be worse off in real dollars in 2009 than they were in 1992.It has been 16 years since the Legislature addressed the question of the maximum benefit in workers' compensation. In the last 12 years achieving an increase of the maximum benefit has been a stumbling block for other real reforms in the workers' compensation system. The only way to avoid this type of deadlock in the future is to permanently tie the maximum workers'
compensation benefit directly to the state average weekly wage.
For this reason the Workers' Compensation Alliance asks the Legislature to consider permanently linking the maximum benefit level for workers' compensation to two thirds of the state average weekly wage as computed by the New York State Labor Department.
Why basic economic benefits to injured workers should not be reduced
The most objectionable aspect of the Governor's proposal is the drastic reductions in benefits paid to permanently disabled injured workers. Under the Governor's proposal persons who have become permanently disabled due to a workplace injury would be completely cut off from wage loss benefits after a given number of years.
The Governor's proposal offers no alternative source of benefits to permanently disabled injured workers. It offers no help in rehabilitating permanently disabled injured workers. It simply tells injured workers who have lost their livelihood that they are out of luck. After the prescribed period of benefits, the economic security of the injured worker will become the responsibility of county and local government
welfare systems.
The apparent rationale for these proposed cuts to wage loss benefits is that paying benefits to persons who have a permanent disability is expensive. There is no doubt that such payments are expensive, but it is also the right thing to do. The Workers' Compensation Law in New York has historically promised workers who have been severely and permanently injured they will not
die in poverty. The Governor's proposal is nothing short of a cruel abandonment of the most seriously injured.
To understand how the Governor's proposal would affect permanently disabled workers consider the case of Mark, a 35-year-old pipe fitter. Mark was working at a high wage construction job making more than $1200 a week when a hose from a compressor broke loose and struck him in the back of the head. Mark suffered a severe traumatic brain injury. Even
after the best medical treatment available Mark will never be able to return to work. Indeed, Mark has been granted Social Security disability benefits because the federal government has
decided that he's unemployable. Under the current wage loss limits in the Workers' Compensation Law Mark receives $400 a week, the maximum possible. He has lost his home, his vehicle and his marriage. He had to declare bankruptcy. Once he started receiving Social Security disability benefits he was able to begin rebuilding his life because when combined with his continuing workers' compensation benefits he could now afford a basic standard of living. If he loses his weekly workers' compensation benefit, even the most basic lifestyle will be
unaffordable.
Or consider the case of Anne, a 45-year-old Emergency Medical Technician who worked at Ground Zero for three months after 9/11. Anne was earning more than $1000 a week and was a member of the EMT union. She was a "first responder" and is considered a hero by all accounts. In 2003, Anne developed a persistent cough that would not go away. She sought treatment from pulmonary specialists who informed her that she has Chronic Obstructive Pulmonary Disease as a result of the toxins she inhaled at Ground Zero. Anne was prescribed multiple medications and tried to continue to work. However, as her disease progressed, and given the physical nature of the job, she soon had to stop working as an EMT permanently. If
she ever works again it will be for much less of a wage that she made as an EMT. Anne needs the permanent reduced earnings benefits provided by Workers' Compensation to survive.
Under the Governor's proposal Mark's and Anne's benefits would be ended after somewhere between 5 and 10 years of payments. The Governor's proposal would simply take away
necessary income replacement benefits from these permanently disabled workers. This loss of benefits will render these permanently disabled workers poverty-stricken and require them to
seek assistance from the welfare system. How fair is that to these seriously injured workers? How fair is the cost shifting to the average taxpayer?
Until and unless some solution is proposed that would guarantee the economic security of permanently injured workers, they should not be asked to fund insurance company profits or to
make an enormous sacrifice so that workers' compensation insurance can be slightly more affordable.
While there is no question that workers' compensation insurance needs to be made more affordable in New York, it is simply not right to ask the most seriously injured workers to be the
source of lower insurance premiums. The Legislature should seriously investigate other ways to lower premium costs. Some such ways are proposed in the Governor's legislation. The WCA
supports the proposed measures to lower medical costs by imposing new fee schedules and by reducing the amount of time it takes to get approval for medical services. The WCA also supports increasing innovative occupational safety programs and tax incentives for the safest employers. Surely there are more innovative ways to reduce the cost of workers' compensation
insurance that do not demand the impoverishment of hard working New Yorkers who have had the unfortunate luck to be injured on the job.
Why the due process right to a hearing should not be reduced
Given the urgency and gravity of the lost wage and medical concerns that face a worker who is injured on-the-job, injured workers and those who employ them are currently guaranteed an
adjudicatory hearing, held at a meaningful time and in a meaningful manner. Section 20(1) of the Workers' Compensation Law provides that a hearing "shall" be ordered "upon application of
either party."
The Governor's proposal would eliminate this absolute right to a hearing by amending Section 20 of the Workers' Compensation Law to allow for the scheduling of a hearing before an administrative law judge only after it is determined that the dispute cannot be resolved by undergoing non-binding "conciliation" procedures. This proposal is inconsistent with the due
process rights of both injured workers and employers. Not only does the governor's proposal eliminate a fundamental right of the parties in workers' compensation litigation, it does so for no real reason. This change will not result in any savings and will only prolong the time needed to resolve central issues; not a good bargain.
Not only does this proposal violate fundamental due process rights but it proposes to require use of a system of non-binding conciliation meetings that has already shown itself to be a failure
in resolving the common controversies that exist in many workers' compensation cases. The conciliation process was instituted as part of the reforms of 1996. Since that time experience with the conciliation process shows it is inappropriate for resolving any true controversy. In fact, the Workers' Compensation Board currently uses the conciliation process only after the Board itself has determined that no true controversy exists. For this reason any statistics about the so called success of the conciliation process are deeply misleading. In fact, each and every time the conciliation process has been applied when a true controversy exists it has failed.
There's no doubt that there is a place in the workers' compensation system for the conciliation process. Conciliation can be used effectively where the parties are in fundamental agreement.
However, is not uncommon that diametrically opposed positions that are not susceptible to negotiation and compromise are raised on fundamental issues in a case. To require that such fundamental disputes first undergo non-binding "conciliation" before being allowed an adjudicatory hearing imposes on the injured worker the burden of undergoing a wasteful and time-consuming layer of proceedings before any real opportunity for relief can be reached.
Take the common example of a construction worker who falls on-the-job and injures his shoulder. Because the treating physician believes the injury to be a rotator cuff tear, the
diagnostic test typically ordered is an MRI. If the MRI is positive, the injured worker will undergo surgery; a negative test means a course of intensive physical therapy. Any delay in diagnosis
risks a frozen shoulder.
If the MRI is granted shortly after the injury, the recovery time is usually six weeks or less. If the carrier refuses to authorize the MRI, the injured worker's only practical recourse is to request an adjudicatory hearing. The precious time spent first attempting to
"conciliate" the matter will cost the claimant at least a four-month delay in being allowed the only practical opportunity he has to achieve a successful resolution of the dispute at an evidentiary
hearing. Unfortunately, during all of this time, the injured construction worker will have had little or no use of his painful arm, will be out of work and suffer a dramatic reduction in his wages, and ultimately have a diminished opportunity to completely heal. This unfortunate scenario will be played out time and again if the Governor's proposal is passed into law.
The fundamental requisite of procedural due process is the opportunity to be heard, by way of a hearing provided at a meaningful time and in a meaningful manner. There are few instances where the urgency to obtain relief is as profound as in a Workers' Compensation case. Unimpeded access to an adjudicatory hearing is the only effective means available to an injured
worker to obtain the lost wage and medical benefits that are so desperately needed.
Detailed analysis of the proposal
For the above reasons, the WCA takes the following positions on the Governor's proposed Article VII legislation, A.9561 and S. 6461, to amend the Workers' Compensation system:
The WCA FAVORS:
1. An increase in the maximum weekly benefit, and believes that benefits should be permanently set at two thirds of the state average weekly wage. We also support the
proposed increase in the disability insurance benefit level.
2. Cost savings that can be generated by the imposition of a fee schedule for medication as well as other medical services and the development of networks of providers so long as the injured worker continues to have the right to free choice of medical providers .
3. A raise in the prior authorization limit to $1000 thereby reducing the time needed to obtain necessary medical tests and treatment .
4. A reduction from 60 to 45 days for the Board to schedule a preliminary hearing in a controverted case.
5. The revision of the Workers' Compensation Board Medical Guidelines by a panel of medical experts working in consultation with legal practitioners .
THE WCA OPPOSES:
1. An inadequate increase in the maximum lost wage benefit.
2. A cap on benefits for those permanently disabled.
3. The elimination of the right to a hearing to resolve controversies.
4. The development of a pilot program for voluntary delivery of benefits outside of the Workers' Compensation Board.
5. Development of networks of medical providers controlled by insurance companies without right to free choice of providers by injured workers.
6. Elimination of the stenographic recording for evidence in workers' compensation matters.
THE WCA takes no position on the other provisions in the Governor's proposal.
For further information please contact:
Richard D. Winsten, Esq.
Meyer, Suozzi, English & Klein, PC
One Commerce Plaza, Suite 1102
Albany, New York 12260
Phone: (518) 465-5551
Troy Rosasco Esq., Co-Chair Legislative Committee
Turley, Redmond, and Rosasco LLP
3075 Veterans Memorial Highway
Ronkonkoma, NY 11779
Phone: (631) 582-3700 ext. 123
John Sciortino, Esq., Co-Chair Legislative Committee
Segar & Sciortino, LLP
400 Meridian Centre - Suite 320
Rochester, NY 14618
Phone: (585) 475-1100
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Comp Truth '06
On February 6, 2006 the Business Council of New York State, Inc. issued its second Comp Watch '06 bulletin. In it they try to indicate that claimants in New York State are double dipping by collecting both workers' compensation benefits and disability pensions to the detriment of municipalities across the state. The information they put out is an UNTRUTH and an attempt to reduce benefits to public employees in New York.
The Vice President of Claims for Public Employer Risk Management Association (PERMA) claims that public employees who collect workers' compensation benefits for a permanent partial disability (PPD) are supplementing those benefits with "generous disability retirement benefits." This is not true.
New York State has four Tiers within in its pension system for public employees. For those employees in Tier I or Tier II they have very generous accidental disability pension rights. However, these benefits are reduced by any amount of workers' compensation those employees receive for either a PPD or a Permanent Total Disability (PTD) on a dollar for dollar basis.
For these workers the state pension system makes a determination as how much money they are entitled to receive on a monthly basis. The system then looks to see if the injured worker is also receiving workers' compensation. If they are reeiving workers' comp, the pension is reduced for every penny of the workers' compensation benefits paid to the claimant.
Because these benefits were too costly, New York State eventually set up Tier III and Tier IV in the pension system. Most public employees today are in Tier III and Tier IV. These Tiers do not have an offset for workers' compensation benefits. However, these Tiers also pay less than the benefits available to public employees in Tier I or Tier II. Because of the overall benefit to workers, the State of New York has already reduced the amount of benefits available to workers when they become disabled on the pension side. Now the Business Council wants to take even more away from workers by trying to reduce what they are entitled to receive in workers' compensation. UNTRUTH number 2 from the Business Council.
As for Social Security offsets, the Business Council in the chart in Comp Watch '06 implies that New York State has offsets in workers' compensation for SSI benefits. This is not true. New York allows for offsets for Social Security Disability Benefits under only one provision of the law. They are allowed only when injured workers have lost the use of 50% or more of an arm, leg, hand or foot and that injury is the sole reason for the worker's inability to earn what they used earn after participating in rehabilitation. The only other Social Security offset allowed under the New York State Workers' Compensation Law is to surviving spouses in a death claim for Social Security Survivors benefits.
The Business Council thinks that if an injured worker is receiving workers' comp benefits due to a permanent partial disability and then collects Social Security and a pension in addition, the worker is double dipping from the system. Once again they are simply wrong. If a person is found to have a PPD and is collecting workers' compensation benefits, it means that they stopped working before they normally would have ended their working career. A person who stops working before they are ready to cease work activities stops contributing to both Social Security and earning credits towards a pension. This means that their Social Security benefits and pension benefits will be lower when they retire.
Once the worker stops working the employer is no longer paying the matching Social Security benefits for the worker nor are they contributing towards their pension. So the injured worker has had their Social Security and Pension benefits reduced because of their injury. Now, the Business Council wants to take away the workers' compensation which may make up what was lost by the worker in Social Security and pension benefits. This is UNTRUTH number 3 from the Business Council.
The Business Council implies in Comp Watch '06 that workers can file a workers' compensation claim to supplement their Social Security and pension benefits. What they leave out is that prior to being able to file a workers' compensation case the worker must have an accident or an occupational disease! This is the fourth and final UNTRUTH from the Business Council in Comp Watch '06.
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Insurance Company Scandal Raises Employer Workers' Compensation Costs in NY
If employers in New York State ever needed more evidence that the real enemy to rising workers' compensation costs is insurance companies, not injured workers, they need look no further than the recent 1.6 billion dollar AIG bid rigging settlement with Attorney General Eliot Spitzer.
Bottom Line - besides rigging bids to boost their exorbitant profit margins at the expense of employers, AIG cheated the New York Workers' Compensation Board out of millions of dollars that had to then be made up higher employer premiums. All the while, AIG's now ousted CEO Maurice "Hank" Greenberg collected a tidy $29,000,000 compensation package in 2003. As of 2005, Greenberg has a net worth of 3.2 billion. If I'm a New York employer with AIG as my workers' comp carrier, I'm mad as hell. Guess what? The other workers' compensation insurance company CEO's are not too far behind.
Funny - Governor Pataki and the Business Council of New York State don't mention these facts when they complain about employer workers' compensation costs. They always blame the injured worker. Do New York employers know that the Business Council has it's own side business as a workers' compensation "third party administrator" - First Cardinal? How much does the First Cardinal CEO make? How much money does the Business Council make on this cozy little relationship? Hmm...
Hopefully, employers in New York State will wake up to the fact that workers' compensation insurance companies are making money hand over foot in New York. Every day, more workers' compensation insurance companies enter the New York market because of the lucrative profits. It's gotten so ridiculous that even State Funds from other states are coming into the New York market. Does the New York State Business Council have a response? I'd like to see it.
The only thing more ridiculous is the Governor's assertion that rising workers' comp costs had something to do with the demise of Delphi upstate. No credible business analyst would back such a silly proposition. The fact is, Delphi was cooking the books and was tanking with it's parent, General Motors. Iowans may fall for silly charades like this, but not New Yorkers, or our State Senators. Insurance company profiteering in the New York workers' compensation market is the big problem for employers in New York State. Period!
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, Comp Truth '06
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Governor Pataki Proposes Workers' Compensation "Deform" Bill
Governor Pataki recently attached a Workers' Compensation "Reform" Bill to his 2006 Budget Bill. This bill, if enacted, would take away benefits from injured workers that they have had since 1914.
Specifically, the bill would "cap" benefits for injured workers with career ending permanent disabilities. Essentially, the Governor is shifting the cost of workers' compensation benefits from employers to county and local government. Once the injured workers' benefits run out, they will have no recourse but to apply for welfare.
If you think your property taxes are already too high, wait until the cost of workers compensation injuries is added to your tax bill!
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Workers' Compensation Alliance Launches New Website
The Workers' Compensation Alliance, a group of individuals and organizations committed to protecting the rights of injured workers under the New York State Workers Compensation Law, has launched a new website and blog.
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