Real Business Groups Oppose Rate Hike

Last week, WCA posts observed that the Business Council of New York State was inexplicably supporting a 9.3% increase in workers' compensation costs for the members it supposedly speaks for - New York State employers.  The WCA also noted that there is no credible data showing that claims by injured workers support the rate filing supported by the Business Council.  To the contrary, claim costs are down.  We can only conclude that the "employers" the Business Council speaks for are really insurance companies, and not Main Street businesses.

This week, two groups that represent real New York employers publicly objected to the very same rate filing the Business Council supports.  In a press release on its web site, the Retail Council called for "an industry-wide actuarial study before DFS considers any further rate increases," citing specific concerns it has with lack of data provided by the State Insurance Fund.  The Retail Council's press release can be found at:

Retailers bash bid for 10% workers’ comp rate hike

Meanwhile, the Business and Labor Coalition of New York (BALCONY) also opposed to rate filing.  In its press release, BALCONY said that it "oppose[s] the request filed by the New York Compensation Insurance Rating Board for a 9.3% increase ... [because] there is no justification for such a steep increase."  BALCONY also noted that "workers' compensation insurance is a relatively small part of our business members' costs," but that there is no "reasonable or proven justification" to increase rates.  The BALCONY press release can be found at: The WCA applauds the Retail Council and BALCONY for giving voice to the interest of New York employers over the multinational insurance industry.

WCA and NYCOSH Issue a New Report on Uncompensated Wage Loss

On February 1, 2016 the Workers' Compensation Alliance and the New York Committee for Occupational Safety and Health released a report showing the stark consequences of on-the-job injury for workers.

The report outlines the consequences of the 2007 workers compensation "reforms" for injured workers.  Among its conclusions, the report finds that (1) the 2007 "reforms" offered no benefit to low-wage workers; (2) even workers who benefited from the 2007 reforms continue to suffer high rates of uncompensated wage loss; and (3) the workers' compensation system now replaces less than 10% of the lost wages of permanently disabled workers.

The report further concludes that proposals made by the Business Council, some of which are included in the 2016 Executive Budget, would render the workers' compensation virtually meaningless as a source of wage replacement benefits for injured workers.

The report can be found here.


New York, NY – July 16, 2015 – The New York State Department of Financial Services (DFS) has approved a 5.9% increase in workers’ compensation premiums.  The DFS approval is consistent with improving economic conditions in New York State and stable workers’ compensation claim costs.

An employer’s workers’ compensation costs depend largely on payroll, although industry type and loss history also play a role.  Last month, the New York State Department of Labor's Research and Statistics Division announced that the New York State Average Weekly Wage for 2014 was $1,266.44, a 4.3% increase over the 2013 figure of $1,212.98.  Today, the Department of Labor announced that New York’s private sector job count has reached an all-time high, while unemployment is at its lowest level in eight years.

“It is clear that the DFS approval of a small increase in workers’ compensation premiums is consistent with the improved economic conditions reflected in more jobs, increased wages, and less unemployment,” said Robert Grey, chair of the New York Workers’ Compensation Alliance.  “It also demonstrates that there has been no increase in workers’ compensation claim costs, which remain stable as previously reported by the WCA.”

A letter confirming the 5.9% increase can be found here:

The Department of Labor reports can be found here: The WCA report on workers’ compensation costs can be found here:

The Demolition of Workers’ Compensation

The WCA has issued the following press release regarding the ProPublica series on The Demolition of Workers' Compensation:


Despite Reduced Costs, Insurers and Business Interests Seek to Slash Protection for Injured Workers

New York, NY – March 6, 2015 – Workers’ compensation costs are down nationally and in New York State, according to a dramatic new analysis from ProPublica and NPR.

The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, hailed the analysis, which reveals a system in which insurers and business interests are seeking to slash injured worker benefits despite reduced costs.

“For years, insurers have promoted a false narrative that workers’ comp costs are out of control and that they have to reduce benefits to maintain competitiveness,” said Robert Grey, Chair of NYWCA.  “This is simply not the case.  New York is not a high-cost state and costs are at a 25-year low nationally.  Nonetheless, insurers and business interests are attempting to destroy the safety net for injured workers.”

Meanwhile, a new report from OSHA reveals that the cost for workplace injures has been shifted from employers onto the backs of taxpayers and injured workers. According to the report, 50 percent of the costs for worker injuries come from the injured workers themselves, while 29 percent comes from federal, state and local governments, and only 21 percent is paid by workers’ compensation insurance.

“Workers gave up their right to sue employers for personal injury in exchange for medical coverage and speedy and adequate wage replacement benefits,” said Grey. “This basic ‘bargain’ has been broken, and the system has been twisted to create profits for insurance companies at the expense of injured workers.”

Workers’ compensation costs in New York State have declined dramatically in the past two decades and workers’ compensation is also a declining portion of overall employer costs.  Employers’ workers’ compensation premiums were cut nearly 25% in 2007 and 2008 as a result of 2007 legislation. After moderate increases from 2009-2011, there have been no further increases in premiums in two of the past three years. Meanwhile, since 2011, employers’ workers’ compensation assessments have dropped more than a third from 20.2% to 13.2%.

As employer costs have been reduced, however, benefits for lost wages have remained inadequate for both the maximum and minimum rates. Nevertheless, business and employer interests continue their efforts to further cut worker benefits, pursuing employer managed care and attempting to cut benefits for permanent injury.

  To read full copies of the reports: These and other workers’ compensation issues have been covered in detail in a recent NYCWA white paper:

WCA 2015 Legislative Agenda

The New York Workers' Compensation Alliance has released its 2015 Legislative Agenda, titled "Protect New York Workers." The agenda calls attention to the fact that as employer costs have been reduced, injured workers have suffered. Benefits for lost wages remain inadequate for both the maximum and minimum rates, and the Workers’ Compensation Board has failed to develop systems to meaningfully address loss of wage earning capacity, to determine when an injured worker’s “labor market attachment” should be relevant, or to create meaningful return to work programs. No consideration has been given to implementing the statutory safety net for the most severely disabled workers, and benefits for lost wages are still unfairly deducted from awards for “schedule loss.” Meanwhile, medical treatment for injured workers has been constricted by the Board’s Medical Treatment Guidelines, and the Board proposes to further restrict injured workers’ access to medical care by reducing reimbursement rates for health care providers and expanding employer-managed care through “preferred provider organizations.

The WCA Legislative Agenda calls on New York State government to restore balance to the system. The goal of the workers’ compensation system should not be the creation of profits for insurance companies at the expense of workers and employers. Instead, it has always been, and should continue to be, protecting injured workers.

The 2015 WCA Legislative Agenda can be found here:

WCA Comments on Proposed Changes to Medical Fee Schedule

On July 28, 2014 the Board released a “discussion document” proposing significant changes in the workers’ compensation medical fee schedule, which has not been significantly updated in two decades. The Board’s document proposes a transition of the fee schedule to the “resource-based relative value scale” (“RBRVS”) used by Medicare.[1]

The Board’s proposal raises serious questions about access to quality care for injured workers.  Rather than creating incentives for specialists and high quality health care providers to enter the system, it is likely to drastically reduce the number and quality of specialists available to treat injured workers.

The proposed RBRVS fee schedule also fails to fully consider the bureaucratic burden on health care providers in the workers’ compensation system.  Physicians are now required to be fully familiar with hundreds of pages of Medical Treatment Guidelines (covering five separate body parts and chronic pain), over 100 pages of Medical Impairment Guidelines, the principles of functional loss evaluation, the variance procedure, the procedure to obtain authorization where a variance is not required and the treatment is not covered by the Medical Treatment Guidelines, principles of causal relationship, reporting, billing, testifying and more.

The inadequate medical fee schedule, multiplicity of forms, limitations of the Medical Treatment Guidelines, complexity of the Medical Impairment Guidelines, and the many other burdensome obligations of the workers’ compensation process have increasingly deterred providers from participating in the system.

The proposed revision of the medical fee schedule would only serve to exacerbate the existing set of disincentives for specialists and high-quality physicians to participate in the system.  Instead we recommend that reimbursement rates for specialists be increased, and the bureaucratic burden reduced in order to attract more quality physicians to provide health care to injured workers.

The full text of the WCA's comments to the Workers' Compensation Board regarding the proposed fee schedule can be found here.

The deadline for submission of comments to the Board is October 1, 2014.  Comments may be submitted by email to

[1] Subject Number 046-710, 7/28/14, available at; also

WCA Issues Legislative Memos

The Workers' Compensation Alliance has issued Memoranda in support and opposition to four bills this Legislative Session.  In addition to our continued opposition to insurer efforts to close the Aggregate Trust Fund, which protects the benefits of permanently disabled workers, we support the Zamora return-to-work standards bill, support the elimination of the remarriage penalty for widows and widowers, and oppose the expansion of the Medical Treatment Guidelines.  Here is the text of our Memoranda:

Memorandum in Support A.7961 (Heastie)/S.5294 (Savino)

The New York Workers’ Compensation Alliance supports A.7961 (Heastie)/S.5294 (Savino).

The Workers’ Compensation Law recognizes that a partially disabled worker retains the ability to do some work, and provides compensation only for the loss of wage earning capacity.  No compensation is payable for the wage earning capacity the worker retains.  The law does not identify the circumstances in which a partially disabled worker must seek employment as a condition of receiving benefits.  This has resulted in significant litigation, inconsistency of result, and unfairness in the workers’ compensation system.

This bill would provide a statutory standard for labor market attachment in workers’ compensation claims.  It would preserve and codify the requirement of a causal connection between the injury and the loss of earnings, encourage return to work, expedite delivery of benefits, and reduce litigation.

For these reasons the New York Workers’ Compensation Alliance strongly supports S.5294 (Savino)/A.7961 (Heastie).  If you have any questions please contact Richard Winsten at (518) 465-5551

MEMORANDUM IN SUPPORT S.4090 (Savino)/A.6559 (Wright)

The New York Workers’ Compensation Alliance (WCA) supports S.4090 (Savino)/A.6559 (Wright).  This bill would continue death benefits under workers’ compensation law to a surviving spouse regardless of remarriage.

Workers’ compensation law provides death benefits to a spouse, minor children or other dependants of a deceased worker.  Death benefits are calculated as a percentage of the deceased’s average wage, subject to a minimum and a maximum.  Funeral expenses are also payable up to statutory maximums.

Current law ends these benefits on remarriage of the surviving spouse.  Upon remarriage of the surviving spouse a payment of two years compensation is made in a lump sum before benefits end.

The ability to remarry should not be hindered by the possibility of financial loss to a family who has already suffered the greatest loss, that of a spouse and parent.  This legislation will allow for workers compensation survivor benefits to continue in the case of the remarriage of a surviving spouse, thus allowing the a survivor to move forward in a new chapter of their life.

For these reasons WCA supports S.4090 (Savino)/A.6559 (Wright).  If you have any questions please contact Richard Winsten at (518) 465-5551.

Memorandum in Opposition A.9068 (Bronson)/S.6997 (Savino)

The New York Workers' Compensation Alliance strongly opposes A.9068 (Bronson)/S.6997 (Savino). This bill would expand the Medical Treatment Guidelines adopted by the Workers' Compensation Board (WCB) in 2010.

The WCB Medical Treatment Guidelines have resulted in the widespread denial of medical treatment to injured workers. Under the guise of "pre-authorizing" some treatment, the Guidelines effectively "pre-deny" other treatment. Instead of permitting health care providers to provide patient-specific treatment, the Guidelines require physicians to "doctor-by-numbers," providing the specific treatment prescribed by the Guidelines in the order directed by the Guidelines. This approach dehumanizes injured workers and undermines the value of medical expertise. Moreover, the legality of the Guidelines in view of the language, spirit and purpose of the Workers' Compensation Law is questionable, and that issue is presently under consideration by the Court of Appeals. The Medical Treatment Guidelines should be eliminated, not expanded. For that and many other reasons, the Workers' Compensation Alliance strongly opposes A.9068 (Bronson)/S.6997 (Savino).

Memorandum in Opposition

A. A01569 (Kolb)/S04587(Seward)

The 2007 workers’ compensation reform legislation required a private insurer that fails to settle with a permanently partially disabled worker to deposit the present value of future compensation payments into an Aggregate Trust Fund (ATF).  This provision serves as a “fair claims settlement” rule.  It was intended to guarantee that workers whose benefits were significantly reduced by the PPD “caps” in 2007 would receive the fair value of those benefits if they chose to settle their case.

The 2013 budget rejected a proposal to end the ATF deposit requirement.  This was a sound and proper decision, as ending the ATF would significantly increase litigation on the issues of maximum medical improvement and permanency.  More importantly, it would ultimately amount to a second cut in benefits for permanently disabled workers whose benefits were already limited in 2007.

It would be unfair and unjust to remove the ATF deposit requirement from the 2007 reform legislation, thus unbalancing that agreement.  It was an important component of the legislation that should not be separated and removed without consideration of its impact on other aspects of the 2007 reforms.  The ATF serves an important role in ensuring that permanently disabled workers that are subject to the PPD caps receive the fair value of their (already limited) benefits.

We strongly oppose A.01569 (Kolb)/S.04587(Seward).

WCA Comments on “Business Process Re-engineering”

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 comp Timely scheduling of hearings when required.onents 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 Hails Budget Agreement

New York, NY – Mar. 25, 2013 -- The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, today praised Governor Andrew Cuomo and legislative leaders for working together to agree on a budget that will create administrative efficiency, and control costs for employers while protecting and improving benefits for injured workers.

The NYWCA hailed budget provisions that will close the state’s Reopened Case Fund, which has been an agenda item for NYWCA for several years. Eliminating the fund will help create price transparency for employers by reducing the “hidden cost” of assessments and will create administrative efficiency by eliminating a duplicative agency. “We are very pleased that the budget includes closing the Reopened Case Fund. This step, combined with the previous closure of the Second Injury Fund, will reduce assessments for employers by 80 percent,” said Robert Grey, Chairman of NYWCA. “Not only will this save money for employers, it will make the workers’ compensation system more efficient.” Grey said: “This move will especially benefit employers with good safety and health programs, who should not have to subsidize employers with poor safety records.”

NYWCA also praised the budget’s increase in the minimum compensation rate from $100 per week to $150 per week. Grey said: “The Governor and the Legislature deserve a tremendous amount of credit for protecting low-wage workers in this budget. Increasing the minimum benefit is an important piece of the social safety net that helps save workers from falling into poverty.”

Other budget provisions were also favorably reviewed by NYWCA, including a requirement that the New York Compensation Insurance Rating Board transfer data to the Workers’ Compensation Board and the Department of Financial Services. “The budget takes an important step toward bringing clarity to workers’ compensation costs,” Grey noted. Although NYWCA has issued detailed reports showing a downward trend in workers’ compensation costs, CIRB’s rate filings on behalf of the insurance industry routinely seek double-digit increases from employers.

NYWCA also supported the decision to retain the state’s Aggregate Trust Fund. “The ATF is very important,” said Gregory R. Connors, a NYWCA board member from Western New York. “It exists to protect permanently disabled workers, widows and children from insurance company insolvency, as Ullico declared only last week. In addition, it makes sure that workers who already have limited benefits get the full value of those benefits, instead of turning the money into profit for insurance companies.”

“Overall,” said Grey, “we think that the Governor and the Legislature did a terrific job on these issues in the budget.”

WCA Releases 2013 Legislative Agenda

The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, has released its 2013 Legislative Agenda covering a host of issues ranging from Social Security Disability Presumption to Medical Treatment Guidelines. “New York State has made significant strides in the past year to save money for responsible employers while continuing to deliver appropriate benefits to injured workers,” said NYWCA Chair Robert Grey. “We are confident that our legislative agenda will further strengthen and streamline the workers’ compensation system.” The NYWCA legislative agenda identifies four areas in which the law can be strengthened and improved. NYWCA “top priorities” would:
  • reduce litigation by requiring the Workers’ Compensation Board to adopt findings made by the federal Social Security Administration;
  • reduce litigation by establishing a standard for labor market attachment by partially disabled workers;
  • strengthen the right to a hearing, preserving due process rights of workers and employers; and
  • restore workers’ rights to appropriate medical treatment.
In the area of indemnity benefits, the NYWCA agenda would streamline delivery of compensation to injured workers by:
  • ensuring full payment of awards for permanent injury to limbs;
  • instituting a cost-of-living adjustment for permanently totally disabled workers and beneficiaries in death cases so that their weekly benefit amounts do not fall into irrelevance;
  • correct an error in the law by unifying the dates for rate raises and caps on permanent partial disability benefits;
  • indexing the minimum benefit rate to coincide with existing indexing of the maximum benefit rate;
  • increasing so-called “no dependency” awards in death claims, which are unchanged since 1996;
  • eliminating discrimination against immigrant workers; and
  • expanding the Board’s discretion to use existing safety net provisions to keep permanently disabled workers from poverty and welfare.
In the area of administrative procedure, the NYWCA agenda would create efficiency by:
  • encouraging legal representation of injured workers in “medical only” cases;
  • establishing rules for legal representation in connection with appeals;
  • extending deadlines for World Trade Center responders to register for benefits;
  • eliminating wasteful and abusive litigation tactics;
  • expanding availability of mental health services;
  • creating oversight for alternative dispute resolution programs;
  • providing a framework for use of impartial specialists; and
  • developing data regarding use of “independent medical examinations.”
In the area of personal injury litigation, the NYWCA agenda would reduce complexity by:
  • unifying the definition of “basic economic loss” for No-Fault and workers’ compensation purposes;
  • preventing windfalls to workers’ compensation carriers from personal injury recoveries by injured workers, while preventing double-recoveries by workers; and
  • clarifying the law regarding insurer liens and credits for personal injury recoveries
Grey said: “These steps -- supported by stronger oversight of the Compensation Insurance Rating Board, existing downward trends in workers’ compensation costs, and the Governor’s recent proposals to increase the minimum benefit rate, close the Special Funds, streamline assessments and resolve the group self-insurance trust crisis -- will continue to establish New York as a national leader in delivering benefits to injured workers while preserving efficiency for employers.” The full 2013 WCA Legislative Agenda is here.