New York Workers Compensation Alliance

At the April 15, 2008 meeting of the New York State Workers' Compensation Board ( see web-cast here), one of the nation's preeminent scholars on workers compensation systems, Prof. John F. Burton, declared in no uncertain terms that the AMA Guides to the Evaluation of Permanent Impairment are "hokum" and "not evidenced based".  He attributed their controversial yet wide spread use in other states in part to a desire for simplification of complex issues, and a political move to lessen actual wage loss benefits to injured workers. In fact, during the web-cast several of the Workers' Compensation Board Commissioners joked that "hokum" was a Mid-west term, and we had another term for "hokum" here in New York! 

When John Burton talks on workers' compensation, people listen!  He is the former Dean of the School of Management and Labor Relations at Rutgers University, and before that was a full Professor at both Cornell's School of Industrial & Labor Relations and the University of Chicago (the Alma Mater of our own Workers' Compensation Board Chairman, Zachary Weiss).  Importantly, he was also the Chairman of the National Commission on State Workers' Compensation Laws and his newsletter is required reading for the top experts in the industry.

During his speech to the Workers' Compensation Board, Prof. Burton implored New York State policy makers to "do it right" and craft medical guidelines that adequately address "loss of earning capacity" rather than just "impairment".  He said this process could take a few years and would probably require the appointment of a special commission by Governor Patterson for this purpose. 

Prof. Burton specifically approved of Section 15 (3) v - an underused provision of the current New York law which survived the reforms of last year.  Section 15 (3) v allows a claimant to petition for additional cash benefits after his original "scheduled award" runs out, if he can show an ongoing causally related loss of earnings. 

Give substantial credit to Workers' Compensation Board Chairman Zachary Weiss for inviting Professor Burton to shed light on the current AMA Guides debate in New York.  On a number of issues (the self-insured trusts scandal, the crane accident rapid response team) -  we are learning that Chairman Weiss is most interested in good policy to protect injured workers, and is willing to stand up to political pressure to "do the right thing".

Given Prof. Burton's even handed and scholarly presentation to the New York Workers' Compensation Board, it is unlikely Bruce Topman and the State Insurance Department can ever resurrect even "AMA-like" guidelines  in New York.  In fact, Prof. Burton suggests revamping the current objective 1996 Medical Guidelines for the time being.  The New York AFL-CIO is meeting with Mr. Topman and his boss, Eric Dinallo, on April 30th to discuss medical guidelines.  We will report back on this issue then.  Stay tuned...

Posted By WCA In Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Comp Politics , Workers' Compensation & AMA Guidelines | 0 Comments Permalink

At a press conference earlier today, New York Governor Eliot Spitzer signed landmark workers' compensation reform legislation into law.  Certain aspects of the law take effect immediately, while others such as the maximum rate increases will not become effective until July 1, 2007.  Our prior post highlights the major changes. In addition, the Governor's interesting letter introducucing the new law discusses the new task forces and implementation. 

Posted By WCA In Breaking News , Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Comp Politics | 2 Comments Permalink

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

Posted By WCA In 2007 WCA Workers' Comp Proposals , Breaking News , Legislation , Lobbying , NY Workers' Compensation Reform | 3 Comments Permalink

Here's an interesting article hot off the press from Workers' Comp Central regarding why workers' compensation reform in New York may take longer than expected:

New York Reform Plan Could Be Months Away: Top (1/8/07)

 
A key aide to newly inaugurated Gov. Eliot Spitzer has begun talks with state union and business leaders about revamping New York's embattled workers' compensation system.

But claimants' attorneys representing two major workers' compensation lobbies said Friday that hope of a swift compromise under the governor's watch is fading because the state lacks solid data on losses and premiums.

"The AFL-CIO and the Business Council of New York State have been meeting with the governor's advisers for the past few weeks," said Troy Rosasco, co-chairman of the New York State Workers' Compensation Alliance. "Unfortunately, I think all of the parties are finding that workers' compensation is much more complicated than anyone envisioned.

"Even though all the parties would like to move as quickly as possible," he said, "it simply may not get done in the near term."

Rosasco and Robert Grey, an attorney and board member of the New York Council for Occupational Safety and Health (NYCOSH), said a lack of specific data on losses and the profits of carriers is at the heart of the dilemma.

The alliance consists of attorneys and others representing injured workers. NYCOSH represents 200 labor unions and 400 individual workers, physicians, lawyers and others.

New York is not one of the 37 states for which premium and loss data is collected and rates are recommended by the National Council on Compensation Insurance (NCCI) Instead, rates are recommended by the New York Compensation Insurance Rating Board (NYCIRB).

The New York Insurance Department twice rejected workers' compensation rate requests from NYCIRB, first for about 25% and later for 12%, Grey said.

"The state Insurance Department said you'll have to have zero and like it," Grey said.

NYCIRB could not be reached for comment Friday.

Spitzer's chief policy adviser, Paul Francis, was appointed to talk with warring parties in the workers' compensation debate and come up with a compromise for lawmakers.

Rosasco said the alliance had hoped to see a reform bill by the end of January but now thinks it may be months away. Alliance representatives are scheduled to talk to Spitzer's staff in the next two weeks.

"Insurers' current profits were 7.8% in the workers' compensation sector. They far outweigh the profits in other lines of insurance. Property and casualty is down to 3 or 4%," Rosasco said.

Rosasco said the state's self-insurers, which comprise 35% of the market, don't have to supply data to the state. That includes the employees of New York City, where the system is grappling with 2006 legislation passed to compensate rescuers and their survivors following the Sept. 11, 2001 attacks on the World Trade Center.

The alliance has called for raising the maximum weekly benefit for insured workers from $400, where it has been capped since 1992, and indexing it to two-thirds of the state average weekly wage.

The alliance and NYCOSH also are opposing a call by insurers and the Business Council to place the first cap on New York's permanent partial disability. PPD benefits are now paid over the lifetime of workers in New York. Businesses and insurers have suggested ending them after 10 years.

The Business Council and the affiliated New York Compensation Action Network (NYCAN) argue that permanent disability benefits account for 15% of the state's workers' compensation cases and 75% of the expenditures.

At the heart of the debate are two statistics.

NYCAN said employers' costs for workers' compensation insurance are 15% above the national average, but the state pays among the lowest maximum weekly indemnity benefits.

Both sides of the debate were celebrating Spitzer's state-of-the-state speech last week. Injured worker advocates were happy that Spitzer didn't call for capping PPD.

But Business Council spokesman Michael Maguire said his group also saw Spitzer's speech as a promise for reform. Maguire said he could not comment on negotiations with Spitzer's advisers.

"We're still optimistic, because the governor in a major speech this week has reaffirmed his commitment to workers' compensation reform," Maguire said "He has been unwavering since he first announced his campaign for election. We take that to be a very good sign."

A press aide to Spitzer promised to provide a future interview with a transition team member on Friday. The AFL-CIO did not return a phone call.

Grey said until the groups can obtain valid statistics from an independent party, he's not convinced the system needs changes that would reduce benefits."

"This is a fictitious storm," Grey said. "There is no workers' compensation crisis in New York."

--By Michael Whiteley, WorkCompCentral Southeast Bureau Chief
mike@workcompcentral.com

Posted By WCA In Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Comp Politics | 0 Comments Permalink

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.

Posted By WCA In 2007 WCA Workers' Comp Proposals , Breaking News , Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Comp Politics | 13 Comments Permalink

The New York Workers’ Compensation Alliance 2007 Legislative Proposal

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

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

1. Adjust and Index the maximum weekly benefit.

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

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

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

2. Reform the meaning of permanent disability.

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

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

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

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

3. Speed medical authorization and payment

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

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

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

4. Workforce development

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

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

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

5. Actively seek new cost savings for business

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

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

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

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

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

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

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

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

Posted By WCA In Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Comp Politics | 2 Comments Permalink

Last Sunday, the influential Albany Times Union published the WCA Letter to the Editor rebutting their editorial position on fair workers' compensation benefits in New York.  Even if they are not the greatest defenders of injured workers, they do respect free speech and we applaud their publishing our divergent views on this important matter. Click here to read our letter.

Posted By WCA In Comp Truth '06 , Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Comp Politics | 0 Comments Permalink

Thanks to Workers' Compensation Alliance Governor Ed Pitts, Esq. (otherwise known as the "Professor") for the fine synposis of the 2006 New York Workers Comp laws that passed in  Albany contained below.  We hope this is helpful.

Review of Workers’ Compensation Bills

passed in 2006 Legislative Session

Compiled for the WCA by Edward I. Pitts 6/28/06

1. Bills with some significant implications for injured workers:

A8713B [Rules (Farrell)] -- Same as S5612-B [Winner] - Amends WCL §§15, 151 & 13-a

06/21/06 PASSED ASSEMBLY - 06/23/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends §15(8) to provide a separate category of assessment and payment of costs of the Special Fund for self-insured groups and also provides that the Workers’ Compensation Board may withhold reimbursements from the Special Fund if assessments have not been paid by the self-insured employer or the insurance carrier. Amends §151(2) to provide a separate category of assessment and payment of costs for the administrative expenses borne by group self-insureds. It also provides that self-insured groups shall collect the assessments for the Special Fund §15(8) and §25-a and for the operations of the Board through a surcharge on their policyholders in accordance with rules set forth by the New York Compensation Insurance Rating Board. Amends §13-a (5) to increase the level of prior authorization required for medical services from $500 to $1200.

EXPLANATION: This legislation is intended primarily to place group self-insureds on the same footing as commercial insurance carriers as relates to payment of assessments to support the Special Funds. A similar change in the funding mechanism for Special Funds was adopted in 1999 for commercial carriers, but this change was not applied to self-insureds. This change was in response to a change in an accounting standard issued by the Financial Accounting Standards Board (FASB) that became effective in 1998. It is important to note that this change should not diminish the payments made to support the Special Funds. The statutory funding mechanism that determines the total amount to be paid annually to support these funds will remain the same. Most importantly for injured workers, this bill also raises the pre-approval threshold for medical services from the current $500 to $1200.

S6802 [Maziarz] -- Same as A9836 [John] - Adds WCL §9, Amends WCL §15 & §16

06/22/06 PASSED SENATE - 06/22/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Makes provisions for the deaths or permanent or temporary (partial or total) disabilities of employees of voluntary hospitals due to accident or occupational disease occurring as a result of rescue activity in connection with the World Trade Center attacks. Specific provisions: (1) increases the salary replacement for disabled first responders to 75% of their salary at the time of disability; (2) increases workers' compensation survivors’ benefits for the families of those killed at Ground Zero to the 75% of salary benefit provided to the disabled under this bill; (3) extends date for filing claims with the Board for the disablement or death benefits provided under this act to one year from the effective date of this act.

EXPLANATION: The Legislature and Governor have acted several times since September 11, 2001 to improve benefits and due process for victims of that tragedy. In 2004 he Legislature passed legislation to provide presumptive eligibility for a seventy-five percent of salary disability pension benefit for public employee Ground Zero first responders. The legislation passed for public employees in 2004 does not provide similar relief to private voluntary hospital rescue employees, some of which are represented by 1199 SEIU. These workers were primarily emergency medical technicians and paramedics employed by and dispatched from private voluntary hospitals in the vicinity of Ground Zero. They suffered the same injuries as the public employee first responders. Because the State does not determine their private sector disability pension benefits, it is proper that the State provide equal compensation to them through the workers' compensation system.

S8348 [Marchi] -- Same as A11944 [Rules (Bing)] - Adds WCL Art 8-A, §§161 – 167

06/21/06 PASSED SENATE - 06/22/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Adds a new Article 8-a to the Workers' Compensation Law ("WCL") to provide as follows:

§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.

§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.

§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.

§164 provides that the date of disablement for a claim by a participant for a qualifying condition shall be treated as the occurrence 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.

§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 re-determine the claim applying the liberal notice and claims filing provisions as provided in this bill.

§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.

            §167 provides that the Uninsured Employers' Fund shall administer 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.

EXPLANATION: 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 at the World Trade Center be treated for claims filing (statute of limitations) and notice purposes in the same manner as an occupational disease. Treatment as an accident has caused persons with such latent conditions to be denied benefits.

2. Bills with substantive implications for injured workers:

S4186 [Maziarz] -- Same as A5507 [Ortiz] - Amends WCL §25

03/06/06 PASSED SENATE - 05/22/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Amends WCL §25(3) to require the chair of the Workers' Compensation Board to transfer a controverted case to a special part for an expedited hearing if such case has not been resolved within two years.

EXPLANATION: This legislation is intended to speed the resolution of controverted cases by making it mandatory rather than discretionary for a controverted case to be transferred to an expedited hearing part if the case has been pending before the Board for two years. 

S6854 [Maziarz] -- Same as A9846 [Abbate] - Amends Civil Service L §71

03/27/06 PASSED SENATE - 06/07/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Amends Civil Service Law §71 to permit civil service employees separated from service by reason of disability due to an injury on the job a leave of absence of up to eighteen months when the disability has resulted from an injury, and for two years when it is the result of an assault in the line of duty.

EXPLANATION: By extending the leave of absence period from the current one year to up to eighteen months when the disability has resulted from an injury, and for two years when it is the result of an assault in the line of duty, more temporarily disabled workers would be restored to the workforce rather than be terminated. Workers who are injured in the performance of their duties should be allowed enough time to fully recover from their injuries without facing the loss of their right to return to work.

3. Bills making primarily technical revisions to the law:

A8840C [Rules (John)] -- Same as S5728-C [Rules] - Amends WCL §13

03/20/06 PASSED ASSEMBLY - 06/20/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends WCL §13 to provide for proper payment for spinal implants. Section one of the bill regulates the rate of reimbursement to general hospitals in addition to the provider's documented, paid cost for any implantable hardware and instrumentation. Such paid costs may include an additional ten percent, not to exceed three hundred and fifty dollars. Section two of the bill provides for a study that shall document the efficacy of the utilization of these spinal procedures in returning workers to their jobs following surgery.

EXPLANATION: Currently the New York Workers' Compensation system does not cover the cost of surgical implants to hospitals with medical services associated with spine surgeries. One of the reasons is that the surgical implants, for the most part, represent new technology that is not reflected in the reimbursement rates. This bill is intended to guarantee treatment of Workers Compensation claimants at the same level of care provided to patients with other insurance benefits.

S718A [Lavalle] -- Same as A1458-A [Brodsky] - Amends WCL §3

06/22/06 PASSED SENATE - 06/23/06 PASSED ASSEMBLY

SUMMARY OF PROVISIONS: Amends WCL §3 to include Lyme Disease (Lyme Borrcliosis) as an occupational disease that is compensable under the workers' compensation law.

EXPLANATION: The spread of Lyme Disease on Long Island and other parts of New York State among workers who are involved in outdoor activities has been growing steadily in the past few years. Since persons who work outdoors may contract this disease it is being added to the list of covered occupational diseases.

A4397 [Ortiz] -- Same as S4946 [Maziarz] - Amends WCL §25

04/05/06 PASSED ASSEMBLY - 06/05/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends WCL §25(3) to require the chair of the Workers' Compensation Board to create a special part for hearings and proceedings of claims submitted by injured apparel employees.

EXPLANATION: Sponsors of this bill submit that given the complex nature of the garment industry there are many difficulties that arise in the adjudication of apparel industry cases before the Workers' Compensation Board. The sponsors contend that creation of a special unit within the Workers' Compensation Board designed specifically to process apparel industry claims will improve the accuracy and efficiency of the Board in adjudicating these cases.

A5399A [Abbate] -- No same as   - Amends WCL §§ 2 & 201 and Labor L §511

06/22/06 PASSED ASSEMBLY - 06/23/06 PASSED SENATE

SUMMARY OF PROVISIONS: Amends Labor Law §511 by adding a new subdivision to define media sales representative as an independent contractor engaged in the sale or renewal of magazine subscriptions or the sale or renewal of magazine advertising space and excludes qualified media sales representatives from the term "employment". Amends WCL §2(4) so that the term "employee" does not include the services of a media sales representative under certain conditions. Amends WCL §2(5) to specify that the term "employment" does not include the services of a media sales representative under certain conditions. Amends WCL §201 so that the term "employed" shall not include the services of a media sales representative under certain conditions.

EXPLANATION: This bill is intended to clarify that those individuals who work as media sales representatives, and function as independent contractors are not considered employees. So long as these individuals perform services pursuant to written contracts and have no expectation of receiving employment related benefits, they would be excluded from coverage as employees.

A7066 [Colton] -- Same as S6435 [Maltese] - Amends WCL §54

01/31/06 PASSED ASSEMBLY - 05/22/06 PASSED SENATE

06/01/06 DELIVERED TO GOVERNOR

SUMMARY OF PROVISIONS: Amends WCL §54(8) to authorize the partners of registered limited liability partnerships and members of limited liability companies and professional service limited liability companies to purchase workers' compensation coverage for themselves.

EXPLANATION: The WCL provides that all employers must cover their employees for workers' compensation either by purchasing insurance or by self-insuring. The law creating limited liability companies, limited liability partnerships and professional services limited liability companies in New York failed to address how the partners or members of such entities should be treated for purposes of workers' compensation. This amendment clarifies that these individuals are owners or partners of such organizations, and not employees, and thus they should be treated in a manner similar to that of other business owners.

Posted By WCA In Legislation , Lobbying , NY Workers' Compensation Reform | 4 Comments Permalink

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 , Lobbying | 0 Comments Permalink

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 , Legislation , Lobbying , NY Workers' Compensation Reform | 0 Comments Permalink

Workers' Compensation Alliance Legislative Co-Chairs John Sciortino and Troy Rosasco will travel to Albany tomorrow to take part in the second of a series of Roundtable Discussions hosted by Senator George Maziarz, New York State Senate Labor Committee Chair, regarding Workers' Compensation Reform. Since Workers' Comp Reform was recently detached from the Governor's budget bill, it appears that workers' compensation reform will continue to be on the Albany radar screen for the rest of the year.

Also scheduled to participate in the Roundtable are: Randall Wolken, President, Central New York Manufacturing Association; Cecelia Norat, Director of State Operations for AIG; William Melchionni, Nationwide Insurance; Mark Alesse, New York State Director, National Federation of Independent Business; and Ted Potrikus, Executive Vice President, Retail Council of New York State. Members of the Senate Labor Committee are also expected to be in attendance.

Of course, the Workers' Compensation Alliance will be advocating for a long overdue benefit increase, no caps on PPD's (permanent partial disabilities), and expediting needed medical care for injured workers. Yet we will also be proposing a fair pharmacy benefit schedule that should save employers significant amounts of money by mandatory use of generic drugs. Surrounded by all these insurance and employer lobbyists, it looks like John and Troy have their work cut out for them!

Posted By WCA In Comp Truth '06 , Legislation , Lobbying , NY Workers' Compensation Reform | 1 Comments Permalink

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.

Posted By WCA In Breaking News , Legislation , Lobbying | 1 Comments Permalink