Assessments: The Facts, Not the Fiction

            On February 22, 2012, an arm of Public Employers Risk Management Association (PERMA) released a “report” claiming that workers’ compensation assessments are a “tax” that is dramatically increases employer costs.  This “report” was filled with misleading statistics and misinformation, to which the WCA responded on March 16, 2012.

            On September 10, 2012, PERMA released a “new” report that simply repackages its prior claims, perpetuating the same factual and legal inaccuracies.

            The WCA believes that sound public policy must be based on accurate information, and not mischaracterizations of the facts and misstatements of the law.  As a result, the WCA has again responded to PERMA’s release and set the record straight.

            The key points of the WCA report are:

-           Assessments are not a “tax.”  To the contrary, most assessments are a reinsurance system that benefits employers and insurance carriers.  According to PERMA’s own report, nearly 80% of assessments relate to the Special Funds, which reimburse money to employers and carriers.  Almost 98% of the money employers and carriers pay in assessments related to the Special Funds is returned to those same employers and carriers. 

 

             -           Assessments are not skyrocketing, and have historically fluctuated in a narrow range.  In fact, based on Governor Cuomo’s action, assessments went down between PERMA's February, 2012 and September, 2012 releases.

 

                      The 2007 reform legislation will ultimately result in a substantial reduction in assessments through the elimination of the Second Injury Fund.  The WCA calls for the elimination of the Reopened Case Fund in order to further reduce assessments.  It is notable that PERMA has not called for the same action.

 

 Read the full report here.

WCA Responds to PPI “Revisiting the Reforms”

The “Public Policy Institute of New York State, Inc.” (PPI), an arm of the Business Council, recently released a report titled “Revisiting the Reforms.”  The report contends, in essence, that workers’ compensation is a high cost for employers and that the 2007 reforms increased those costs.  The report refuses to acknowledge the role of the Business Council in developing the 2007 legislation, fails to mention to gross inadequacy of benefits for the fifteen preceding years, and mischaracterizes the cost of workers’ compensation.

            The PPI report is not based on relevant facts or data, and is indeed refuted by information available from CIRB and other sources.  Time after time, the PPI report selectively extracts a specific fact, strips it of all relevant context, and advocates for radical policy changes that would dismantle a primary resource for New York State workers.  When all of the available data is considered in proper context, however, it becomes apparent that employer workers’ compensation costs were declining prior to the 2007 reforms, and have subsequently continued to decline.  In short, the PPI report is a transparent attempt to paint a picture of a crisis that does not actually exist.  What is required instead is greater transparency and accountability on the part of insurers and their representatives, so that proper public policy decisions can be made.

            Accordingly the WCA has issued a response, which available here.

WCA Questions Agenda to Expedite Permanency Determinations

 

New York, NY, 06/04/2013 -- The New York Workers’ Compensation Alliance today released a letter to the New York State Workers' Compensation Board expressing concern over the Board’s plan to expedite the classification of permanent partial disability (PPD) cases, ultimately terminating benefits for thousands of permanently disabled workers.

The WCA stated that the agency’s plan represents a troubling departure from its proper role as an impartial adjudicator. “It isn’t the Board’s job to decide what claims the parties should be making,” said WCA Chair Robert Grey. “It’s the Board’s job to make fair and impartial decisions about the claims the parties bring before it.”

WCA Board Member Brian Mittman added that the Board’s plan appears to be designed for the benefit of insurance companies. “The carriers could have asked for classification any time in the last six years,” said Mittman. “Now the Board is stepping in to do their work for them. That’s simply unfair to injured workers.”

At issue are permanency classifications, which as a result of the 2007 reforms work for the benefit of insurers by imposing time limits for payment of benefits. As Mittman observed, insurers have chosen not to pursue this aspect of the reforms, and the Board has now taken on the task for them.

The WCA expressed particular concern about the threatening nature of the plan. “They have made it clear that they will prevent the parties from offering evidence, ignore the fact that someone needs surgery, and sanction attorneys if anything ‘hinders’ classification,” said Western New York WCA Board Member Greg Connors. “This is a rush to judgment, with no concern for whether that judgment is fair.”

The WCA contends that the Board does not have, nor should it have, any interest whatsoever in the outcome of any individual case, or of cases generally. “We are very concerned about the underlying principle here,” said Grey. “This plan puts the Board clearly on the side of the insurance industry, at the expense of permanently disabled workers. If anything, it is the Board’s obligation under the statute and nearly a century of case law to protect injured workers.”
 

The WCA letter can be found here.

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

On August 15, 2013, the Workers’ Compensation Board announced a “business process re-engineering” initiative “designed to significantly improve the experience of injured workers and employers in the New York workers' compensation system.”  The Board has asked “stakeholders” (injured workers, employers, doctors, lawyers, insurance carriers and others) for their views of the system.

 

The WCA believes that that some of the basic components of a good workers’ compensation system would be:

 

1.             Clear communication to injured workers about the existence of the workers’

compensation system, availability of benefits, rights (including the right to counsel) and obligations.

 

2.             Timely delivery of indemnity benefits to injured workers; consistent and effective

penalties for non-compliance.

 

3.             Strict enforcement of injury reporting and filing requirements.

 

4.             Medical reporting that transmits necessary claim information without imposing

 undue burdens on health care providers.

 

5.             Initial formal hearings that ensure worker access to benefits in all cases.

 

6.             Access to high-quality medical care resulting from outreach, regulation, and fee

schedules that encourage provider participation.

 

7.             Consistent interpretation and enforcement of statutory and regulatory provisions.

 

8.             Discouragement of frivolous litigation.

 

9.             Timely scheduling of hearings when required.

 

10.         Testimony before the trier of fact to enhance credibility determinations.

 

11.         Timely decision of claims at the hearing level and on appeal.

 

12.         Data collection to inform public policy, legislation, regulation and administration.

  

13.         Professional and respectful communication among the agency, injured workers,

 employers, insurers, and attorneys.

 

When we compare those components to the current workers’ compensation system, a number of specific concerns emerge.

 

1.      The number of claims indexed or assembled by the Board declined from 174,802 in 2001 to 123, 245 in 2011.  Although there is a long-term trend in declining frequency of claims, it is unlikely that this accounts for the extraordinary decline in indexed/assembled claims.  It is probable that there is a significant lack of information and access to benefits by low-wage workers, and that the decline in claims is partially representative of a loss of benefits by this population.

 

2.      There are significant obstacles to claim filing.  These obstacles disproportionately impact the group of workers that is most likely to require access to the system.  The cumbersome C-3 form and the hypertechnical requirements for case assembly/indexing are significant factors.   The lack of direct outreach by the state agency to injured workers, as well as the absence of a requirement that employers distribute information are also relevant.

 

3.      Communication about worker rights in the system is ineffective.   The use of non-hearing determinations is problematic as they cannot and do not effectively provide information to injured workers due to language, literacy and other obstacles.

 

4.      There is inadequate access to medical care in the workers’ compensation system.  From 2004 to date the Board has removed 330 doctors from its provider lists (through suspension and voluntary resignation).  306 of the 330 have been removed since 2007.  There is a clear relationship between the loss of providers and the mushrooming of the number, length, and content of medical reporting forms.  The Board’s web site currently lists 37 forms for use by health care providers, virtually all of which are multi-page forms.

 

5.      Benefits remain inadequate despite the increase in the statutory maximum rate.  From 1992 -2006 the minimum rate of $40 was 10% of the maximum rate of $400.  The increase of the minimum rate to $100 in 2007 made it 20% of the maximum rate of $500.  However by 2012 it had declined to 12% of the maximum rate of $792.07 due to the failure to index the minimum rate.  The 2013 increase to $150 has restored the minimum rate to 18% of the maximum rate (still short of its 2007 percentage).  However, it will inevitably sink back into irrelevance until it is indexed to the maximum rate.

 

6.      The standard for temporary disability must be revisited.  The general principle of total disability is that a worker must be unemployable.  However, in cases of temporary disability a worker’s hypothetical ability to perform other work is largely irrelevant.  As a matter of practicality, it is unreasonable to expect a temporarily disabled worker to seek out other employment or to engage in vocational retraining when that worker has a reasonable expectation of returning to his or her previously employment (and employer) and in fact may be prohibited from seeking other employment due to a collective bargaining agreement, employer policy, or employment contract.  A temporarily disabled worker should be paid for total disability as long as they are unable to return to their former employment or any modified duty position reasonably offered by the employer.

 

7.      Data must be collected and oversight brought to the use of so-called “independent medical examiners” by insurers.  The frequency and extent to which IMEs report disability and need for treatment should be tracked, as well as the frequency with which their opinions are accepted following litigation.

 

8.      Administrative inefficiency must be eliminated.  Hearing requests must be processed in a timely manner.  Litigation should be discouraged in the absence of a “joined issue,” as should duplicative or “investigatory” testimony.  Depositions should be eliminated in favor of in-person testimony, or restricted to extraordinary circumstances.  To the extent that depositions are retained, regulatory guidance must be provided as well as real-time access to a WCL Judge to obtain rulings on disputed matters.  Reserved decisions should be issued within 30 days.  Appeals should be decided within 60 days. 

 

9.      A worker-friendly culture consistent with the intent of the statute should be encouraged on the part of Board personnel, including WCL Judges.  In the current environment RFA-2 forms are treated as credible, while RFA-1 forms are treated with skepticism.  Insurer lack of compliance is routinely excused.  Current statutory and regulatory provisions are inconsistently enforced. 

 

10.  The Medical Treatment Guidelines should be withdrawn.

 

11.  The 2012 Guidelines should be applied as intended, and supplemented with a consistent mechanism that creates predictability of claim values and which can be effectively implemented by WCL Judges and attorneys. 

 

There are many subsidiary issues that must be considered in correcting the systemic problems that obstruct access to benefits for injured workers; our list is not intended to be comprehensive.  Any initiative to “re-engineer” the system must restore its original purpose:  protecting and compensating those who are injured or become ill in the course of their employment.  Over the past twenty years, this purpose has been obscured by disingenuous and well-orchestrated campaigns to boost insurer profits at the expense of worker benefits.  It is time for the system to “get back to basics” and take care of injured workers.

WCA Releases 2014 White Paper

The New York Workers’ Compensation Alliance has released a White Paper authored by WCA Chair Robert Grey.  The paper was cross-endorsed by the New York Committee for Occupational Safety and Health (NYCOSH) and the National Economic and Social Rights Initiative (NESRI).

The 2014 White Paper reviews the current legislative, regulatory and administrative status of the New York State workers’ compensation system.  The system has undergone significant changes in the past two decades.  There were major changes as a result of the reform legislation enacted in 2007.  In addition, some trends that pre-dated the 2007 legislation have subsequently accelerated.

            The paper considers developments in the workers’ compensation system over the past six years in three primary areas:  (1) benefits for injured workers; (2) costs for employers; and (3) administration by the state (primarily by the Workers’ Compensation Board).  It will address areas of improvement, stagnation, and deterioration in the system’s core mission of delivering compensation and medical benefits to injured workers.

             The 2014 paper is the third in a series of papers released by the WCA and NYCOSH about the state of the system.  Workers’ Compensation:  State of the System, 2006 (“the 2006 White Paper”), was written to contribute to the discussion leading to the 2007 legislation.  The 2006 White Paper identified the main problems in the New York workers’ compensation system as “the amount of benefits injured workers receive, delays in medical treatment, cost to employers, lack of transparency regarding insurance carrier financial information, and the state Workers’ Compensation Board’s administrative procedures.”  The paper made a number of recommendations to resolve these problems.

              Workers’ Compensation:  State of the System, 2008 (“the 2008 White Paper”) reviewed the 2007 legislation and the Task Forces that were created to implement the statutory changes.  The 2008 White Paper identified continuing problems in the system and made recommendations about modifying and implementing the legislation and the suggestions of the Task Forces. 

            The 2014 White Paper is available here.

WCA Releases White Paper on 2016 Executive Budget

On January 13, 2016, the Governor's office released the 2016 Executive Budget for New York State.  The Budget included a number of proposals that would make significant changes to the workers' compensation system. 

The WCA has reviewed the Executive Budget and is deeply concerned about the aspects of it that impact due process and benefits for injured workers.  In particular, the WCA believes that the following proposals would adversely affect injured workers:

1.  The elimination of the Aggregate Trust Fund.  The 2007 reform legislation slashed benefits for permanently partially disabled workers, but preserved their ability to obtain fair settlements of their now-limited benefits by requiring insurers to make deposits into the Aggregate Trust Fund.  The Budget proposal to eliminate the ATF deposit requirement would still further diminish benefits for these workers, and also undermine benefits for widows, dependent children, and those who are permanently totally disabled.

2.  The elimination of the right to hearings before a single judge.  The Budget proposes to allow the Workers' Compensation Board to re-assign any case at any time to any judge in the state.  This could result in judges in distant parts of the state deciding claims of workers they have never seen, based on the opinions of medical witnesses with whom they are totally unfamiliar.  This proposal raises serious concerns about due process for both injured workers and employers.

3.  The elimination of appeals heard by an appeals panel.  The Budget proposes to allow appeals from decisions of Workers' Compensation Law Judges to be heard by a single lawyer employed by the Board, or by a single Commissioner.  This proposal would deprive injured workers and employers of their right to a meaningful appeal, and again raises serious concerns about due process.

There are many other provisions of the Budget that would result in major changes to the workers' compensation system and the rights of those who participate in it.  The full WCA White Paper can be found here.

WCA Thanks the NYS Legislature

In the newly enacted budget for New York State’s 2016/17 fiscal year, the Legislature rejected proposals that would have reduced benefits for injured workers and deprived them of their fundamental right to due process.

 

The WCA thanks the Legislature for re-affirming the principle that those who are injured on the job have the right to fair and adequate compensation, the right to choose their own doctors and to participate in their own health care decisions, and the right to a fair hearing and a meaningful appeal when legal action is needed. 

 

For too long, too much of the conversation about workers’ compensation has centered around costs for employers and profits for insurers.  The truth is that employer costs are low and insurer profits are high.  It’s time to turn our attention to the injured workers who suffer the real cost of inadequate benefits and a broken system.

 

The WCA salutes the Governor, Assembly Speaker Heastie, Senate Majority Leader Flanagan, and the Legislature for their efforts on behalf of low wage and immigrant workers by increasing minimum wage and adopting paid leave.  Each of these initiatives helps New Yorkers while they are employed.  Now an equal effort must be dedicated to helping and protecting New Yorkers who are hurt on the job and lose their employment benefits.  Injured workers need more compensation, more health care options, and more access to a fairer, faster, and more transparent system.

 

The WCA looks forward to working with the Legislature and all who speak for injured workers in this campaign.

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

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

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

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

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

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

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

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

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

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

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