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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.

Lobbying

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.

Reform

NY Workers’ Compensation Alliance Remembers 9/11 Victims on Eighth Anniversary

 

On the eighth anniversary of the World Trade Center tragedy, all the attorneys of the New York Workers’ Compensation Alliance  pay their respects to the victims and families impacted by 9/11.  We have all represented these victims before the New York State Workers’ Compensation Board  these past eight years, often in a pro bono capacity, and we pledge to continue to serve future claimants in the inevitable serious claims yet to come. 

In addition, it is appropriate to recognize and applaud all the employees of the New York State Workers’ Compensation Board, whose swift and compassionate actions to process claims following the tragedy helped thousands of families cope with their loss. No workers’ compensation system in the United states, before or after 9/11, had a more challenging crisis.

With the willing cooperation of all stakeholders in the system, the employees of the WCB rose to the occasion to meet the needs of their fellow citizens.  In many respects, this was the NY Workers’ Compensation Board’s shining moment and the Board continues today to resolve 9/11 claims in a quick and compassionate manner.  

Please join the WCA today in taking a moment to remember all those impacted by 9/11 .   

The Truth

Vote for Eliot Spitzer Tomorrow if You Are Disabled

Need another reason to vote for Eliot Spitzer for New York Governor tomorrow? This guy just keeps on working for the little guy and fighting greedy insurance companies right up to his presumptive landslide win on Election Day. His most recent victory last week over disability claim insurer UnumProvident is just further evidence that Eliot puts injured workers first. This wasn’t about getting votes (he doesn’t need any more at this point) – it was about doing the right thing for disabled workers

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!

New York Workers’ Compensation Alliance Endorses Spitzer for Governor

On the eve of Labor Day, the New York Workers’ Compensation Alliance has announced it’s formal endorsement of Attorney General Eliot Spitzer as the next Governor of New York State.   The Workers’ Compensation Alliance is a coalition of advocates for over 200,000 injured workers throughout New York State.  The Alliance is committed to protecting and improving the benefits available to injured workers under the New York Workers’ Compensation Law.

As Attorney General, Eliot Spitzer has exposed insurance company bid rigging scandals and  profit gouging which have driven up the cost of workers’ compensation for small and big business alike.   He seems to understand that the real culprit in escalating workers compensation costs is the insurance industry, not claimants or employers.

Finally, he understands the almost century old historic bargain between employees and employers that the New York Workers’ Compensation Law represents.  In the wake of the horrific Triangle Factory Fire in lower Manhattan, such a bargain suited both employee and employer interests. Employees gave up their right to sue their employers for on the job injuries in return for prompt medical and wage loss benefits.  This decreased litigation and  prevented business’ from being wiped out by one catastrophic injury. 

 If Attorney General Spitzer’s record of accomplishment standing up to some of the most powerful corporate interests for the benefit of the little guy, including injured workers,  is any indication of his intentions as Governor, all New Yorkers (both upstate and downstate) will benefit from his future leadership.  The New York Workers’ Compensation Alliance proudly endorses Eliot Spitzer for Governor and  we ask that all  injured and disabled workers in New York State to give him your vote in both the upcoming primary and the election in November. 

Bruce Topman and Dr. Christopher Brigham Try to Sneak AMA Guidelines into New York

Although trained as an attorney, Bruce Topman is now a political operative in Gov. Eliot Spitzer’s Insurance Department.  He has no prior experience in workers’ compensation law or policy . Yet he is charged with shepherding the various task forces created by Gov. Spitzer after the workers’ compensation reform legislation to their conclusion – no matter what the result.  The final Medical Guidelines, which were originally due in November, are now due in two weeks

Unfortunately, Mr. Topman’s job performance to date has been dreadful.  His “Rocket Docket” Task Force conclusions have been roundly criticized by insurance companies, injured workers’ advocates and  Workers’ Compensation Law Judge’s as unworkable at best.   Now, he has breached the confidence of the entire Medical Guidelines Task Force by secretly hiring the well known insurance company biased Dr. Christopher Brigham to implement the anti-worker AMA Guidelines for Permanent Impairment in New York.  It would seem that Mr. Topman is now doing the bidding for the Business Council of New York Statenot its citizens.

Did you know that the American Medical Association itself has fought the State of Texas for using the AMA Guides inappropriately? See the AMA’s legal brief here.  Although the AMA Guidelines are touted as being “‘objective” by business and the insurance industry, what they really are a tool to lower cash awards for permanent injuries to injured workers. Ask any advocate for injured workers in other states where they have been implemented, and they will tell you AMA Guides lower cash awards for permanent injuries to injured workers.  See Dr. Brigham’s article in “For the Defense” here. After all, if they lowered awards to workers, would insurance companies really push for them?  Of course not! 

Mr. Topman has a lot of explaining to do about his secret deal with Dr. Brigham at the next meeting of the task force this Friday in New York City.  Since this is an “open meeting” under the New York State Open Meetings Law, the WCA and the Injured Workers’ Bar Association of New York will be sending observers to hear Mr. Topman’s explanation of his actions and we will report back here.  Stay tuned…there may be a Minority Task Force Report.

New York State Ignores Well Accepted Alternatives to “AMA Impairment Guidelines”

The Work Loss Data Institute (WLDI)  is a competitor to ACOEM, whose member Dr. Christopher Brigham, contributes to the so called “AMA Guides to Permanent Impairment”.   WDLI produces the Official Disability Guidelines (ODG), which are widely used in over 23 states, for treatment and impairment.   In fact, the trend today among states is to move away from the so called “AMA Guidelines” in favor of the ODG Guides, as California recently did.

Unfortunately, based upon the attached letter from WLDI to Workers’ Compensation Board Chairman Zachary Weiss (and cc’d to all member of the Workers’ Compensation Board),  it appears that the Wage Loss Data Institute has been cut out of the process – and that the ODG evidenced-based guides are being ignored in New York in favor of the biased guides of Dr. Christopher Brigham.  See a copy of Dr. Brigham’s $163,000.00 contract with the NY State Insurance Department here. It is a direct attack on New York Schedule loss of use awards.

Why are the State Insurance Department and the Workers’ Compensation Board not considering the ODG Guidelines?  After all, the ODG Guides do not discriminate against orthopedic surgeons, chiropractors, physical therapists, etc.,  as detailed in the above letter to Chairman Weiss.  

In addition, why is the State Insurance Department and the Workers’ Compensation Board not asking for input on these new guidelines from the experts employed directly by New York State, namely the Occupational Medicine doctors in the  state funded Occupational Health clinics?  Why is New York State “out-sourcing” jobs  to Dr. Brigham, who lives in Hawaii? As reported recently in WorkersCompCentral, the WCA will continue to fight the AMA Guides as unfair to injured workers.

It would seem that whatever medical guidelines are finally developed will require input and consideration from a wider range of medical professionals than the singularly biased, shameless Hawaiian IME, Dr. Christopher BrighamSee his Hawaiian powerpoint presentation!

Thankfully, the original deadline set by Gov. Spitzer for the Medical Task Force Guidelines has long since past, so it appears that the State need not hurry to adopt any particular set of guidelines until all options are explored.  That’s good news. As they say, haste makes waste… 

P.S:  At the request of Dr. Brigham, we apologize to all the residents of Hawaii for implying that he is of Hawaian origin.  He simply resides in Hawaii.  – WCA – 4/20/08

Sciortino and Rosasco Retire as WCA Co-Chairs; Mittman and Pasternack Take Over Reins

On March 8, 2009, John Sciortino and Troy Rosasco completed two full terms as New York Workers’ Compensation Alliance Co-Chairs and turned leadership of the organization over to well known attorneys Brian Mittman and Victor Pasternack.  Both Sciortino and Rosasco will remain on the Board of Governors.  Also joining the Board of Governors are James Buckley, Robert Helbock and Robert Grey.

During their tenure, Sciortino and Rosasco helped build a fledgling Political Action Committee into a well regarded and widely admired voice for injured workers in New York State.  The WCA has gone on to take leading roles in defeating the imposition of AMA Guides to Permanent Impairment in New York and keeping New York a “wage loss” state, fought for the successful increase and indexing of the maximum weekly workers’ comp benefit in our 2007 Legislative Proposals, established an on-line “grass roots” legislative action network for injured workers in NY and raised over $200,000.00 from attorneys and other stakeholders across the state for political candidates who share our convictions.

New Upstate Co-Chair Brian Mittmann is a cutting edge “thought leader” on workers’ compensation issues and is the Managing Partner of the third generation workers’ compensation law firm of Markhoff and Mittman with a main offices in White Plains.  New Downstate Co-Chair Victor Pasternack is the Managing Partner of Brecher Fishman Pasternack Walsh Tilker & Ziegler based in NYC and has been representing claimants before the New York State Workers’ Compensation Board for over 30 years.  Their new roles will focus on pushing the 2009 WCA Legislative Agenda and continued expansion of our fund raising capabilities.  In addition, the WCA has signed a new two year contract with our Albany lobbyist, Richard Winsten of Meyer, Suozzi, English and Klein, PC.

With our new leadership in place, the Workers’ Compensation Alliance remains committed to fighting for and expanding the rights of injured workers in New York. 

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. 

 

New York Workers’ Compensation Alliance Welcomes Robert E. Beloten as Workers’ Compensation Board Chairman

The New York Workers’ Compensation Alliance applauds Governor David Paterson’s appointment of current WCB Commissioner Robert (Bob) Beloten as the new Chairman of the Workers’ Compensation Board.

A former Judge in both the Hempstead and Queens hearing points, Chairman Beloten has been in the “trenches” of the  NY Workers Compensation Board for many years and knows how to implement the type of practical reform needed to make the system better for both injured workers and employers. Certainly, he has large shoes to fill after the departure of  Zachary Weiss for the federal bench. However, given his deep understanding of the workers compensation law, the WCA believes Chairman Beloten has the potential of  being one of the great Chairs for many years to come.

We wish him luck and offer our support as he strives to improve the New York State Workers’ Compensation Board.  

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

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

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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

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 30thHope to see you there!

Another View on New York Workers’ Compensation Reform

Although the statewide New York Workers’ Compensation Alliance has already released its 2007 Legislative Proposals and has begun meeting with key executive branch and legislative leaders, its worth noting that some of our other colleagues and friends have their own ideas regarding the upcoming reform debate.  One such insightful colleague is Rob Grey who has put together the attached White Paper which is sure to stimulate helpful debate about the real reasons why New York is a “high cost/low benefit” state. (Hint: It has little to do with “permanent partial disabilities”, and a lot to do with insurance company bid rigging and profiteering!).  Thanks to Rob for his contributions to the debate. Its essential reading for all policymakers involved in New York Workers’ Comp Reform.