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. Because sound public policy must be based on facts, not propaganda, the WCA has released a report that sets the record straight.

The key points of the WCA report are:

- Assessments are not a “tax.” In fact, the opposite is true – assessments exist so that New Yorkers are not taxed to run the workers’ compensation system. Instead, employers and insurers who benefit from the system – in many cases receiving cash reimbursement or passing on liability to Special Funds – pay the costs of running the system.

- Assessments are not skyrocketing. Assessments – which are set by CIRB, an agent of the insurance industry, not the Workers’ Compensation Board.

– Assessments have historically fluctuated within a relatively narrow range, and they remain within that range today.

- Almost 80% of assessments go to two Special Funds, which make payments to employers and insurers and take over responsibility for old claims from them. One of those funds has already been eliminated, and eventually the assessment for that fund will drop to zero. The WCA believes that the other fund should also be eliminated – even though PERMA did not call for that action.

- The Special Funds send money back to employers out of the assessments they receive. In many cases, employers receive more money back from the Special Funds than the assessments they pay. PERMA only wants to count the money it pays in assessments, ignoring the money it gets back.  Of course, that only provides half of the picture about its net costs – if there are any.

You can read the full WCA report here.

Today is a sad day for the many friends and colleagues of John Sciortino among the New York Workers’ Compensation Bar.  John was a consummate workers’ compensation attorney and tireless volunteer leader at the Bar in protecting the rights of injured workers.

In the winter of 2006 John traveled to Albany in a blizzard for the founding meeting of the New York Workers’ Compensation Alliance, to which he was elected co-Chair, along with Troy Rosasco.  John led the WCA for four years during a period of organizational learning and growth, while fighting a successful battle to defeat the introduction of the AMA Guides to Permanent Impairment in New York.

After leading the WCA, John was elected President of the New York Injured Workers’ Bar Association, serving in that capacity until his death.   He also served as the Chair of scholarship committee for the Triangle Factory Shirtwaist Fire Memorial, which provides college scholarships to the children of disabled workers.

John’s selfless dedication to causes beyond his busy law practice included more than professional organizations.  In his personal life, John was deeply involved in his church and chaired the Board of various Rochester health care institutions and charities, He was particularly proud of his recent election to the Board of Trustees of his alma mater, Union College in Albany.   

John was also a loving husband to Michelle and a doting father to his teenage daughter, Andrea.   He was immensely proud of both her academic accomplishments and her numerous national equestrian awards.  

In the words of Troy Rosasco, who served as WCA co-Chair with John, “John was larger than life and always pursued both his professional and personal passions to the fullest.  Although he died far too early, his long list of accomplishments could generously fill the lives of three men.  John was a great guy who left an unforgettable positive mark on the many lives he touched, and we will all miss him.”

           There is fresh evidence supporting the passage of S3741, which would prohibit the Workers’ Compensation Board from continuing its retroactive implementation of the Medical Treatment Guidelines.

            The Board now admits that in the first full year of the Guidelines it has received 202,643 variance applications and another 28,901 applications for optional prior approval of treatment – almost a quarter million requests to depart from the Guidelines.  The Board has rejected almost 28% of the variance requests (about 50,000 applications) and more than half of the applications for prior approval (another 15,000 applications).  The Board has held almost 20,000 hearings on the remaining 165,000 applications and continues to schedule about 2,000 hearings per month on variance applications.  The data can be found here.

            The WCA has estimated that the paperwork and process associated with Medical Treatment Guidelines costs employers almost $60 million annually.  These costs are far greater than the cost of the treatment that is being denied to injured workers.  The full WCA analysis can be found here.
            The data clearly demonstrates that S3741 will reduce costs for employers and make more medical treatment available to injured workers.  The WCA calls on the Legislature to pass of S3741 for the benefit of all parties in the workers' compensation system.

The original intent of the Legislature in authorizing the Board to create a list of "pre-approved" medical treatment and surgery was to expedite medical treatment to injured workers, reducing red tape and litigation.  It was expected that both injured workers and insurers would benefit not only from the reduction in litigation costs but also from speedier return to work.

In practice, the Medical Treatment Guidelines have vastly expanded red tape and litigation, slowed and limited medical treatment for injured workers, and dramatically increased costs for insurers.

The WCA analysis shows that - measured conservatively and using the Board's own data - the cost of the litigation process associated with the Medical Treatment Guidelines is twice the cost of the medical treatment the Guidelines cut off. 

Instead of reducing costs and speeding medical care to injured workers, the Medical Treatment Guidelines have expanded costs and slowed treatment.  In view of the evidence, the WCA has called on the Board to withdraw the Guidelines and all associated process and to reconsider how to best achieve the Legislature's intent.  In the interim, the WCA has called on the Legislature to prohibit the Board from retroactive application of the Guidelines as a matter of justice and due process.

The WCA analysis can be found here.

2012 LEGISLATIVE AGENDA

TOP PRIORITIES

1.         A6294/S3746 - the Medical Treatment Guidelines Retroactivity Bill.

On December 1, 2010, the Workers’ Compensation Board implemented Medical Treatment Guidelines intended to establish a standard of medical care in workers’ compensation cases.  The Board further stated that these Guidelines – which substantially restricted the availability of pain medication, physical therapy, and chiropractic treatment – would be applied to all workers’ compensation claims, regardless of the date of accident.  The WCA wrote to the Board expressing grave concern about the retroactive application of the Guidelines.

As predicted by the WCA, the retroactive application had the effect of terminating treatment for thousands of injured workers.  In many instances, the treatment had been approved or agreed upon years or even decades prior to the implementation of the Guidelines.

The Medical Treatment Guidelines developed by a New York State Insurance Department Task Force were never intended to be applied in a retroactive fashion, and the Board’s interpretation and application of the Guidelines has been an unmitigated disaster for injured workers, health care providers, employers, carriers, attorneys, and the Board’s own staff.

The WCA supports A6294/S3746, which would prohibit the Board from applying the Medical Treatment Guidelines in a retroactive fashion.

            2.         A2135/S2781 - the Social Security Presumption Bill. 

The Workers’ Compensation Board has issued new guidelines for awarding benefits in cases of permanent injury.  These guidelines require consideration of the injured worker’s medical impairment, functional loss, and vocational factors.  The Board’s guidelines envision prolonged and substantial litigation regarding these issues in each permanent disability case.

Most workers who are permanently disabled apply for Social Security Disability benefits.  On applications for disability benefits, the Social Security Administration considers the same medical, functional, and vocational factors that the Board has included in its new guidelines.  If a worker has been approved for Social Security Disability benefits based primarily on the compensable injury, then re-litigation of the same issues in the workers’ compensation case serves little or no purpose.  Instead, adoption of the Social Security decision will streamline the process and avoid needless litigation costs that burden injured workers, employers, and the Board.

The WCA supports A01235, which would streamline the system by providing that that a worker who is approved for Social Security Disability benefits is totally disabled for workers’ compensation purposes.

            3.         A2135/S2781 A11337- the Right to a Hearing Bill. 

The Workers’ Compensation Board continues to deny injured workers their right to a hearing before a Workers’ Compensation Law Judge, despite existing statutory language that guarantees that right.  The Board has replaced hearings with a variety of administrative processes and non-judicial decisions that deny claimants and employers substantive and due process rights and which deliver inferior justice to the parties in the system.

It is clear that the legal protection for the right to a hearing must be strengthened in order to prevent the further denial of the due process rights of injured workers.   A11337 would require the Board to schedule a hearing where a request is filed together with substantiating evidence, thus limiting the Board’s increasing administrative denial of the basic due process right to a hearing.

The WCA supports A11337.

INDEMNITY BENEFIT LEGISLATION

1.         A03117-B - a cost-of-living adjustment for permanently totally disabled workers and dependents in death cases.

Unlike Social Security Disability benefits, workers’ compensation benefits do not rise as the cost of living rises over time.  Workers who were injured years ago are still receiving the benefit rates in effect at the time of their accidents - in some cases less than $150 per week.  These workers include the most seriously injured, who have been found permanently totally disabled, and the surviving spouses and children of workers who were killed on the job.

A3117-B would provide a cost of living adjustment for those who are most in need – workers who are permanently totally disabled and the dependents of those who died on the job.  This much-needed adjustment would further the basic purpose of the Workers’ Compensation Law, which is to provide economic support to injured workers and their dependents.

The WCA supports A3117-B.

2.         Amending WCL Sections 15(3)(w) and 15(6) to harmonize the effective dates of the caps on permanent partial disability benefits and increased benefit rates.

The 2007 amendments to the Workers’ Compensation Law imposed time limitations, or caps, on permanent partial disability benefits for workers injured on or after March 13, 2007.  That same legislation increased the maximum weekly benefit rate for workers injured on or after July 1, 2007.

It is fundamentally unfair for workers who were injured between March 13, 2007 and July 1, 2007 to be subject to the permanent partial disability “caps” while being denied the benefit of increased maximum weekly rates.  The basic compromise of the 2007 legislation was a trade – increased weekly maximum rates for time limits on permanent partial disability benefits.  The workers who fall in the “gap” between March 13, 2007 and July 1, 2007 are victimized by suffering all of the considerable downside of that trade, while reaping none of the benefits.

The WCA supports amending the 2007 legislation to make the permanent partial disability caps effective for accidents occurring on or after July 1, 2007, which is the same date as the increased maximum rates became effective.

3.         Amending WCL Section 15(6) to index the minimum benefit rate.

The 2007 amendments to the Workers’ Compensation Law “indexed” the maximum weekly workers’ compensation rate for accidents occurring on or after July 1, 2010.  As a result of the indexing provision, the maximum weekly benefit rate for accidents occurring between July 1, 2010 and June 30, 2011 is now $739.83, compared to $400 for accidents occurring prior to July 1, 2007.

While the 2007 legislation did raise the minimum weekly benefit from $40 per week to $100 per week, it did not index the minimum rate as it did the maximum rate.  The minimum rate is crucial to tens of thousands of low-wage workers.  Just as the maximum weekly benefit rate was indexed to prevent it from falling into economic irrelevance (as occurred when it was not raised from 1992 – 2007), the minimum weekly benefit should also be indexed.

The WCA supports amending the Workers’ Compensation Law to provide that the minimum weekly benefit shall be 25% of the maximum weekly benefit beginning July 1, 2010, the effective date of indexing for the maximum weekly benefit.

4.         Amending WCL Section 16(4)(b) to increase no dependency awards

to $100,000 and indexing same.

Workers’ Compensation Law Section 16(4)(b) provides for an award of $50,000 payable to a workers’ parents or estate in cases of work-related death where there is no surviving spouse or other dependents.  This provision was added to the law in 1990, and has remained unchanged since that time.  In the interim, the maximum weekly workers’ compensation benefit rate has nearly doubled. 

It is plainly inequitable for the award in a death case to remain unchanged for over twenty years.  This award should be increased in accordance with the increase in other workers’ compensation benefit rates, and should be similarly indexed.

The WCA supports an amendment to WCL Section 16(4)(b) that would increase the “no dependency” death case award to $100,000 and index that award in future years.

5.         Amending WCL Section 15(3)(v) to prevent discrimination against

immigrant workers.

            Workers’ Compensation Law Section 15(3)(v) provides crucial protection for some of the most seriously injured workers.  Under this statute, workers who lose more than 50% of the use of an extremity (arm, leg, hand or foot) and who would ordinarily be deprived of wage replacement benefits beyond the statutory “schedule loss” award are potentially entitled to additional compensation.  In order to be eligible for such additional benefits, the worker must “participate in a board approved rehabilitation program; or shall have demonstrated cooperation with efforts to institute such a board approved program and shall have been determined by the board not to be a feasible candidate for rehabilitation.”

            In Matter of Ramroop v Flexo-Craft Print, Inc., 11 NY3d 160, 866 NYS2d 586, 896 NE2d 69 (2008), the Court of Appeals upheld the Board’s determination that injured workers who are precluded from participating in board approved rehabilitation programs by virtue of their immigration status are not entitled to benefits under Section 15(3)(v), notwithstanding the provisions of Workers’ Compensation Law Section 17, which provides that “compensation under this chapter to aliens not residents or about to become nonresidents of the United States or Canada, shall be the same in amount as provided for residents.”  The Ramroop decision effectively provides unequal compensation based on immigration status, in direct contradiction of the purpose of the Workers’ Compensation Law, which is intended to protect and compensate injured workers.  Moreover, the very workers most likely to be maimed by industrial machinery, and most in need of the protection offered by WCL Section 15(3)(v), are the ones excluded from coverage under this decision.

            The WCA supports an amendment to WCL Section 15(3)(v) to overrule the Ramroop decision and provide proper and adequate compensation for severely injured workers, regardless of immigration status.        

6.         Amending WCL Section 35(3) to reduce the threshold for Safety Net consideration from an 80% loss of wage earning capacity to a 50% loss of wage earning capacity.

            The 2007 amendments to the Workers’ Compensation Law imposed time limits on permanent partial disability benefits.  Prior to these reforms, workers who were permanently partially disabled from work could receive benefits for the duration of their disability, unencumbered by artificial time restrictions.  The 2007 legislation also provided a “safety net” for workers who suffered more than an 80% loss of wage earning capacity.  Under the safety net provisions, within one year of his or her benefits being exhausted, the injured worker may apply to the Board for re-classification as industrially totally disabled, showing “extreme hardship.”

            To date, the Board has yet to issue any meaningful guidance regarding the evaluation of loss of wage earning capacity.  As a result, the workers’ compensation system continues to rely on medical impairment determinations based on the 1996 Workers’ Compensation Board Medical Guidelines, which divide disability into “mild” (25%), “moderate” (50%), “marked” (75%) and “total” (100%).  Under this regime, it is unlikely that any injured worker will reach the 81% threshold for safety net eligibility.  Moreover, many workers who are deemed “50% disabled” under the present system are not employable in a meaningful fashion.  New York State Department of Labor statistics demonstrate that most workers who are found to be permanently partially disabled with at least a 50% disability do not return to work in any capacity, and other evidence indicates that most of such workers qualify for Social Security disability benefits due to unemployability.  It is therefore clear that the 81% threshold is too high to provide meaningful protection to workers whose benefits will be terminated through the 2007 caps on permanent partial disability benefits.

            The WCA supports an amendment to WCL Section 35 that would create eligibility for the safety nets with a finding of a 50% loss of wage earning capacity.

ADMINISTRATIVE PROCEDURE LEGISLATION

1.         S7900 - the Reporter Bill.

For decades, hearings at the Workers’ Compensation Board have been recorded by court reporters, or stenographers.  Stenographic recording – which is what is used in civil and criminal cases throughout the State of New York – provides a reliable, accurate means of recording judicial proceedings and trial testimony. 

The Workers’ Compensation Board has suggested that court reporters can be replaced with electronic recording equipment.  The WCA supports the stenographic recording of hearings by court reporters, and opposes the use of electronic recording equipment.  The Workers’ Compensation Board has suggested that it may try to exploit a potential loophole in the law, which already requires that hearings be “transcribed” by reporters, by taking the position that a court reporter may not be necessary to “record” the hearing.

The WCA supports S07900, which would require hearings to be “recorded and transcribed” by court reporters, thus closing this loophole.

2.         Amending WCL Section 24 to provide for attorneys fees in cases involving medical treatment. 

For injured workers, access to benefits in an increasingly complex workers’ compensation system depends largely on the availability of representation.  Within the system, claimant attorney fees are awarded by the Workers’ Compensation Board as a lien on the awards made by the Board.  “Medical only” claims, in which no indemnity benefits are payable because there is no wage loss or “schedule loss” award due, are the largest category of claims in which workers lack representation.  This shortfall is due to the Board’s interpretation of its authority under WCL Section 24 to consider only the value of indemnity benefits as part of an “award,” and to limit attorney fees to cases in which an indemnity award is entered.

This approach is both archaic and deprives injured workers of access to benefits by depriving them of representation that would otherwise be available.  In 2010, the value of medical benefits paid in workers’ compensation claims exceeded the value of indemnity benefits paid – yet the value of medical benefits was wholly excluded from consideration by the Board in awarding attorney fees. 

The New York State Department of Labor, in its Report of the Commissioner on Return to Work, recommended that the Board provide compensation to attorneys in medical only cases.  The Commissioner observed that the lack of representation deprives injured workers of needed benefits and disadvantages them in the system.

The WCA supports an amendment to WCL Section 24 that would permit and encourage the Workers’ Compensation Board to consider the value of medical benefits in workers’ compensation cases and to award claimant attorney fees in connection therewith.

3.         Amending WCL Sections 23 and 24 to provide for the provision of attorney fees to claimant attorneys in connection with appeals to the Appellate Division.

Workers’ Compensation Law Section 24 provides that a claimant’s attorney in a workers’ compensation case may only be paid for representation before the Workers’ Compensation Board when the Board awards a fee, and that such fee is a lien on the award.  The attorney may not charge or receive a fee directly.  Pursuant to WCL Section 23, appeals from decisions of the Workers’ Compensation Board are heard by the Supreme Court, Appellate Division, Third Judicial Department.

Although the Third Department hears appeals in workers’ compensation matters, representation in connection with such appeals is not representation before the Board.  In a letter dated November 22, 2010, the Chair of the Workers’ Compensation Board implied that the Board may be of the opinion that it retains jurisdiction over attorney compensation related to matters pending before the Appellate Division.  While those matters are concerned with workers’ compensation issues, they are by definition not before the Board (from whose decision the appeal was taken), but rather are before the Court.

The ambiguity created by the Board’s assertion of potential jurisdiction over attorney fees in appeals to the Appellate Division has had a chilling effect on the ability of injured workers to pursue appeals from the Board’s decisions.  Attorneys in such matters must either prosecute appeals pro bono, or reject the Board’s apparent interpretation of the statute and charge a fee to the injured worker – many of whom can ill afford the cost of an appeal.  Insurance carriers, however, suffer no such disadvantage.

The WCA supports an amendment to WCL Sections 23 and 24 that would clarify the Board’s jurisdiction over attorney fees in appeals to the Appellate Division and the Court of Appeals and provide for payment to claimant attorneys in such matters.

4.         Amending WCL Section 162 to extend the time frame for filing WTC-12 registration forms.

The September 11^th attacks killed thousands of New York workers and injured tens of thousands of workers who heroically participated in rescue, recovery and clean-up activities.  In August, 2006 the Legislature added Article 8-A to the Workers’ Compensation Law.  Article 8-A permits those who participated in rescue, recovery and clean-up operations to file a WTC-12 registration form.  The deadline to file a WTC-12 form expired on September 11, 2010.

The WCA, labor unions, and other organizations that protect the rights of injured workers have made extensive efforts to publicize the registration provision and to register injured workers.  Unfortunately, hundreds of these workers did not file registrations before the deadline and are now denied benefits.

The WCA supports an amendment to WCL Section 162 to extend the deadline to file WTC-12 registration forms so that those who participated in rescue, recovery and clean-up operations at the World Trade Center and related sites can register and preserve their right to claim workers’ compensation benefits.

5.         Enacting regulations that prohibit unfettered cross-examination of injured workers and health care providers in the absence of contrary evidence submitted by the employer or carrier.

            The Appellate Division has held that “in the absence of a viable difference in the expert opinions expressed in the medical reports, no prejudice accrues as a result of the denial of the right to cross-examine a medical expert.” Bryan v. Borg-Warner Automotive, 293 A.D.2d 856, 742 N.Y.S.2d 393 (3rd Dept. 2002); see also, Robideau v. Van Rensselaer Manor, 56 A.D.3d 866, 866 N.Y.S.2d 457 (3rd Dept. 2008).  The reason that there is no right to cross-examination in the absence of a joined issue is that the Workers’ Compensation Board has no right to fashion its own medical opinion. If there is only medical opinion in the record, then the Board’s decision must be in accord with the substantial evidence. Cerami v. City of Rochester School District, 82 N.Y.2d 809, 604 N.Y.S.2d 543 (1993); see also, Findling v. Comm. General Houses, 288 A.D.2d 798, 720 N.Y.S.2d 630 (3rd Dept., 2001). 

Although the Board has exposure to cases involving medical questions and a “certain expertise” in such matters, this expertise is to be employed in weighing and balancing evidence with appropriate regard for its probative character, not in fashioning the Board’s own medical opinion.” Doersam v. Oswego Co. Dep. of Soc. Servs., 171 A.D.2d 934, 566 N.Y.S.2d 978 (3rd Dept., 1991); Smith v. Bell Aerospace, 125 A.D.2d 140, 512 N.Y.S.2d 541 (3rd Dept. 1987). The Board may not fashion a medical opinion of its own. Lincoln v. Con Ed., 46 A.D.3d 1176, 848 N.Y.S.2d 418 (3rd Dept., 2007); Sullivan v. Sysco, 199 A.D.2d 849, 606 N.Y.S.2d 77 (3rd Dept., 1993); Knouse v. Millshoe, 260 A.D.2d 948, 689 N.Y.S.2d 266 (3rd Dept., 1999).

Notwithstanding the law set forth by the Appellate Division, the Board has often concluded that one of its rules, 12 NYCRR Section 300.10, requires it to grant requests for cross-examination even in the absence of contrary evidence.  This approach encourages frivolous and dilatory litigation, delaying the payment of benefits to injured workers and imposing an unnecessary burden and cost on the Board.

The WCA supports an amendment to 12 NYCRR Section 300.10 that would permit the Board to deny a request for cross-examination where no contrary evidence is submitted.

6.         A01972/S3056 - expanding the availability of medical care for psychological injury and disability by authorizing treatment by certified social workers.

            Injured workers who require psychological or psychiatric care have few available resources.  There is an extremely limited number of psychiatrists who are “coded’ by the Workers’ Compensation Board and who are willing to accept new patients.  Factors which contribute to this situation include inadequate reimbursement for treatment under the workers’ compensation fee schedule and the high controversy rate associated with claims for mental illness.  Although the availability of psychiatric care is somewhat expanded by existing statutory authorization for treatment by licensed psychologists, referral from a medical doctor is required for such treatment and the same disincentives that discourage psychiatrists from participating in the workers’ compensation system affect psychologists.

            Authorizing certified social workers to provide treatment in workers’ compensation cases under the same ground rules that are applicable to psychologists would expand the availability of medical care for work-related psychological injuries.  In addition, social workers are uniquely suited to address the secondary consequences of work-related injury and disability on family dynamics.

            The WCA supports A01972/S3746.

7.         Enacting regulations that govern employer and carrier relationships with diagnostic test networks, notice of such relationships, quality care standards, and provision of diagnostic test reports.

            The 2007 amendments to the Workers’ Compensation Law authorized employers and insurance carriers to enter into contracts with diagnostic test networks for the performance of radiological and other diagnostic tests in workers’ compensation cases.  The amendments were intended to provide cost savings to employers and carriers while preserving quality of care for injured workers.

            Five years of experience under the statutory amendments has highlighted the need for additional regulation under the statute.  Among other matters, provision must be made for (1) notice of the required use of the employer or carrier’s network to the injured worker and the treating physician(s); (2) proximity of the test facility to the injured worker’s residence; (3) provision of reports and films to the injured worker and the treating doctor; and (4) filing and public disclosure of contracts between employers, carriers, and diagnostic test facilities.

            The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to employer and carrier diagnostic test networks.

8.         Enacting regulations that govern the Board’s use of impartial specialists, guaranteeing the impartiality of such specialists and providing oversight.

            The Workers’ Compensation Law authorizes the Workers’ Compensation Board to utilize impartial specialists in cases involving questions of diagnosis or causal relationship.  The Board’s use of such specialists is, however, wholly unregulated.  This has called into question the impartiality and qualifications of physicians selected by the Board to serve as impartial specialists, undermining the confidence of the parties in the system.

            This oversight should be remedied with regulations addressing, among other items, (1) the circumstances in which impartial specialist examinations are appropriate; (2) the circumstances in which the authority to direct such examination may rest with a WCL Judge or with the Board; (3) qualifications to serve as an impartial specialist and periodic re-certification of same; (4) the mechanism for a party to object to the direction for an impartial specialist examination or the qualifications or appointment of a particular impartial specialist; (5) the conduct of impartial specialist examinations; (6) filing and service of impartial specialist reports; (7) cross-examination of impartial specialists.

The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to the use of impartial specialists.

9.         Adopting regulations governing “independent medical examinations,” delineating permissible relationships between medical consultants, IME vendors, and carriers, establishing data tracking for the reports of such physicians, and strengthening and clarifying existing regulations regarding IME examinations and reports.

The use by employers and insurance carriers of “independent medical examinations” is pervasive in the workers’ compensation system.  Reports resulting from these examinations are used to reduce and deny medical and indemnity benefits to injured workers. 

            The IME process has historically been the source of substantial abuse by employers and insurance carriers.  In 2000, the Workers’ Compensation Law was amended in an effort to remedy that abuse, and the Workers’ Compensation Board subsequently issued regulations in furtherance of the statutory amendment.  Although the statute and existing regulations have been beneficial, the use of “IME vendors” continues to result in the submission of inaccurate and sometimes fraudulent IME reports.

            Among other matters, provision must be made to address (1) relationships between insurers and IME companies; (2) disclosure of such relationships; (3) relationships between IME companies and IMEs; (4) disclosure of such relationships; (5) permissible fees for the conduct of independent medical examinations; (6) restriction of the application of the regulations to employer and carrier consultants; (7) data collection regarding the outcome of IME examinations by IME, IME company, and carrier; (8) service and filing of IME reports.

            The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to the conduct of independent medical examinations.

THIRD PARTY LITIGATION

1.         Amending Insurance Law § 5102 to define basic economic loss as the maximum monthly workers’ compensation benefit rate.

            Insurance Law § 5102 defines “basic economic loss” as wage loss up to $2,000 per month.  Workers’ Compensation Law § 29(1-a) provides that a workers’ compensation carrier has no lien on a personal injury recovery to the extent that its payments are equivalent to basic economic loss.  This provision is intended to assure that those who are injured in work-related motor vehicle accidents are not disadvantaged by the creation of liens that would not otherwise exist.

            The current weekly workers’ compensation benefit rate exceeds $2,000 per month for some injured workers.  As a result, these workers are subject to partial workers’ compensation liens.  Given the various relationships between the Workers’ Compensation Law and the No-Fault Law, it is logical and reasonable to co-ordinate the definition of basic economic loss with the maximum workers’ compensation benefit rate.

            The WCA therefore supports amending Insurance Law § 5102 to define basic economic loss as the maximum monthly workers’ compensation benefit rate.

2.         Amending WCL § 29 to limit workers’ compensation liens to matching categories of personal injury recovery.

            Workers’ Compensation Law § 29 permits a worker who is injured by the negligence of a third party to accept workers’ compensation benefits from his or her employer and also pursue a personal injury lawsuit against the tortfeasor.  The law further provides the workers’ compensation carrier with a lien on “any” recovery from the tortfeasor, regardless of whether the recovery from the tortfeasor bears any relation to the workers’ compensation benefits paid. 

            It is patently unjust and inequitable to afford the workers’ compensation carrier a lien for benefits it paid against an unrelated personal injury recovery.  Workers’ compensation benefits are payable solely for lost wages and medical expenses, while a personal injury recovery may include payment for pain and suffering not covered under the Workers’ Compensation Law.  Providing the workers’ compensation carrier with a lien against a personal injury recovery to the extent that such is for wage loss or medical expenses is logical and serves to prevent duplication of benefits.  However, providing the workers’ compensation carrier with a lien against a personal injury recovery for pain and suffering that was not the subject of the workers’ compensation claim unjustly enriches the compensation carrier at the expense of the injured worker.

            The WCA supports an amendment to WCL Section 29 that limits the compensation carrier’s lien to those portions of a personal injury recovery that compensate wage loss or medical expenses.  

The WCA recognizes that the medical impairment guidelines are adopted in their entirety from the September, 2010 report from the New York State Insurance Department.  The WCA comments regarding that report can be found here.  The Board has, however, added a “crosswalk” that permits severity ratings for different body parts to be compared on a 0-6 scale. 

The 2012 Guidelines repeatedly state that medical impairment does not translate into loss of wage earning capacity, and that worker’s compensation benefits depend on the loss of wage earning capacity, rather than medical impairment.  This represents a significant shift from present workers’ compensation practice, which tends to minimize the consideration of functional loss and vocational factors except in rare instances (claims for total industrial disability).

The Insurance Department’s Task Force and Advisory Group specifically designed its medical impairment guidelines to prevent comparison of severity rankings across body parts in order to assist in shifting the system’s focus from medical impairment to loss of wage earning capacity.  The WCA is concerned that the Board’s creation of a “crosswalk” will undermine this goal.  Instead of converting medical impairment into a series of letter rankings that cannot be translated into traditional “degrees of disability” as intended by the Task Force and Advisory Group, the “crosswalk” facilitates such translation.  It is therefore of critical importance that in training its personnel the Board place a strong emphasis on the multiple portions of the 2012 Guidelines that prohibit conversion of medical impairment into compensation benefits and which require consideration of other factors.

The WCA is generally supportive of those portions of the 2012 Guidelines that mandate evaluation of the impact of functional loss and vocational characteristics on loss of wage earning capacity.  The WCA commends the Board for recognizing that there are few employment options available for many workers who are limited to sedentary work as the result of occupational injury.  Such workers have little if any earning capacity and must be protected by the workers’ compensation system.

The WCA regrets the lack of guidance in the 2012 Guidelines regarding the respective weight of medical impairment, functional loss, and vocational factors, as well as the specific weight to be accorded to any given vocational factor.  The WCA recognizes that this approach permits an individualized assessment of each injured worker.  However, the absence of guidance may well result in dissimilar outcomes in otherwise similar cases due to the variability inherent in the litigation process. 

If the 2012 Guidelines are applied so that full and fair weight is given to the impact of functional loss and vocational factors on wage earning capacity, then the system may well achieve more substantial justice than it has in the past when inquiry was limited largely to medical impairment.  If, however, the Board fails to properly emphasize the impact of functional loss and vocational factors, or if those factors are accorded insufficient weight in the ultimate determination, then substantial loss of benefits may occur due to the minimization of medical impairment under the new guidelines.

The WCA will continue to monitor the implementation of the 2012 Guidelines and comment as appropriate.

Special Note:  The WCA will be conducting its second Continuing Legal Education Seminar (in conjunction with ACE-CLE) on November 18, 2011. 

The New York Workers Compensation Alliance Blog has been selected as a LexisNexis Top 25 Blog for Workers’ Compensation and Workplace Issues – 2011, in the State-Specific Blogs category.

Selections were made by the LexisNexis Workers’ Compensation Law Community staff using feedback from community members and Larson’s National Workers’ Compensation Advisory Board members.

The Top 25 Blogs contain some of the best writing out there on workers' compensation and workplace issues in general. They contain a wealth of information for the workers' compensation community with timely news items, practical information, expert analysis, practice tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers' compensation and workplace issues.

You can read the full announcement and list of honorees here.