New York Workers Compensation Alliance

 

 

 

 

The  Chairs of the Labor Committees in both the New York State Senate and Assembly are sponsoring companion bills to provide a  "safety net"  for some of the most vulnerable citizens in the New York State workers' compensation system - permanently totally disabled workers.  Senator George Onorato  is sponsoring S.2781 and Assemblywoman Susan John  is sponsoring A.2135  regarding how the Workers' Compensation Board determines permanent total disability under the New York Workers' Compensation Law.

 

These bills ingeniously establish a link between a finding of "total disability" under the federal Social Security Law and the New York Workers' Compensation Law, thereby reducing costly and lengthy litigation at the Workers Compensation Board. 

 

Specifically, these bills establish a simple "rebuttable presumption" that those seriously injured workers who are adjudged to be disabled under the strict standards of the Social Security Act will also be considered permanently totally disabled under the the Workers' Compensation Law, in the absence of contrary evidence produced by the employer.  After all, if the federal government has already found an injured worker "totally disabled" using a similar standard based upon both medical and vocational evidence, why should the Workers' Compensation board re-litigate the same issue? It makes no sense! 

 

The bills are an excellent example of surgically precise legislative drafting which accomplishes the dual public policy goals of providing the "safety net" promised by the 2007 workers compensation reforms, while adding the long needed benefit of reducing litigation in the current workers' compensation system.  After this bill passes, the WCA recommends that Senator Onorato and Assemblywoman John next take on the federal tax code!  They obviously get what the voting public really wants from its legislators - simple, understandable solutions to real world problems while taming the government bureaucracy. 

 

Predictably, The Business Council has issued a tepid argument in opposition to this common sense legislation.  First, they incredibly claim this simple "rebuttable presumption" ( that if the federal Social Security Administration finds a claimant totally disabled due to his work injuries, so should the New York Workers' Compensation Board) would "undermine the permanent partial disability duration limits" in the 2007 reforms. 

 

Let us be clear - these bills do not even mention the words "permanent partial disabilities". They only apply to "permanently totally disabled" claimants whose educations and career ending injuries would preclude them from other gainful work in the New York economy.  Click here to see the Bar Association's Memorandum of Support for these bills.

 

Second, The Business Council's hypocritical statement that passage of these bills would disrupt the "careful balance" supposedly found in the 2007 reforms is laughable.  According to the "First Annual Safety Net Report" of the NY Commissioner of Labor Patricia Smith dated 12/01/08, required by the new safety net provisions of Sec. 35 (4) of the WCL,  not one claimant has yet been re-classified as having a permanent total disability or as totally industrially disabled under the new "extreme hardship provisions" of the reform law.    So much for the illusory "Safety Net" found in the 2007 reform law! 

 

Finally, the reform "deal" the Business Council talks about was supposed to be implemented by the Return to Work and Medical Guidelines Task Forces - of which they are primary members.  To date, these Task Forces have produced nothing more than "recommendations" - a far cry from the actual "safety net"  totally disabled workers need.  Seriously injured workers expected the 'Safety Net" provisions in Sec. 35 of the reform "bargain" to be an integral part of the deal in which they gave up so much.  To date, while employer workers' compensation premiums have decreased by over 20% since the implementation of the reform law, not one injured worker has been given the protection of the "Safety Net" bargained for and promised by the reforms.

 

The New York Workers' Compensation Alliance, along with our partners in the New York AFL-CIO, requests that all New York State legislators co-sponsor and support S.2781 and A.2135 which will restore the promised "safety net" to their constituents.