On August 15, 2013, the Workers’ Compensation Board announced a “business process re-engineering” initiative “designed to significantly improve the experience of injured workers and employers in the New York workers' compensation system.” The Board has asked “stakeholders” (injured workers, employers, doctors, lawyers, insurance carriers and others) for their views of the system.
The WCA believes that that some of the basic components of a good workers’ compensation system would be:
1. Clear communication to injured workers about the existence of the workers’
compensation system, availability of benefits, rights (including the right to counsel) and obligations.
2. Timely delivery of indemnity benefits to injured workers; consistent and effective
penalties for non-compliance.
3. Strict enforcement of injury reporting and filing requirements.
4. Medical reporting that transmits necessary claim information without imposing
undue burdens on health care providers.
5. Initial formal hearings that ensure worker access to benefits in all cases.
6. Access to high-quality medical care resulting from outreach, regulation, and fee
schedules that encourage provider participation.
7. Consistent interpretation and enforcement of statutory and regulatory provisions.
8. Discouragement of frivolous litigation.
9. Timely scheduling of hearings when required.
10. Testimony before the trier of fact to enhance credibility determinations.
11. Timely decision of claims at the hearing level and on appeal.
12. Data collection to inform public policy, legislation, regulation and administration.
13. Professional and respectful communication among the agency, injured workers,
employers, insurers, and attorneys.
When we compare those components to the current workers’ compensation system, a number of specific concerns emerge.
1. The number of claims indexed or assembled by the Board declined from 174,802 in 2001 to 123, 245 in 2011. Although there is a long-term trend in declining frequency of claims, it is unlikely that this accounts for the extraordinary decline in indexed/assembled claims. It is probable that there is a significant lack of information and access to benefits by low-wage workers, and that the decline in claims is partially representative of a loss of benefits by this population.
2. There are significant obstacles to claim filing. These obstacles disproportionately impact the group of workers that is most likely to require access to the system. The cumbersome C-3 form and the hypertechnical requirements for case assembly/indexing are significant factors. The lack of direct outreach by the state agency to injured workers, as well as the absence of a requirement that employers distribute information are also relevant.
3. Communication about worker rights in the system is ineffective. The use of non-hearing determinations is problematic as they cannot and do not effectively provide information to injured workers due to language, literacy and other obstacles.
4. There is inadequate access to medical care in the workers’ compensation system. From 2004 to date the Board has removed 330 doctors from its provider lists (through suspension and voluntary resignation). 306 of the 330 have been removed since 2007. There is a clear relationship between the loss of providers and the mushrooming of the number, length, and content of medical reporting forms. The Board’s web site currently lists 37 forms for use by health care providers, virtually all of which are multi-page forms.
5. Benefits remain inadequate despite the increase in the statutory maximum rate. From 1992 -2006 the minimum rate of $40 was 10% of the maximum rate of $400. The increase of the minimum rate to $100 in 2007 made it 20% of the maximum rate of $500. However by 2012 it had declined to 12% of the maximum rate of $792.07 due to the failure to index the minimum rate. The 2013 increase to $150 has restored the minimum rate to 18% of the maximum rate (still short of its 2007 percentage). However, it will inevitably sink back into irrelevance until it is indexed to the maximum rate.
6. The standard for temporary disability must be revisited. The general principle of total disability is that a worker must be unemployable. However, in cases of temporary disability a worker’s hypothetical ability to perform other work is largely irrelevant. As a matter of practicality, it is unreasonable to expect a temporarily disabled worker to seek out other employment or to engage in vocational retraining when that worker has a reasonable expectation of returning to his or her previously employment (and employer) and in fact may be prohibited from seeking other employment due to a collective bargaining agreement, employer policy, or employment contract. A temporarily disabled worker should be paid for total disability as long as they are unable to return to their former employment or any modified duty position reasonably offered by the employer.
7. Data must be collected and oversight brought to the use of so-called “independent medical examiners” by insurers. The frequency and extent to which IMEs report disability and need for treatment should be tracked, as well as the frequency with which their opinions are accepted following litigation.
8. Administrative inefficiency must be eliminated. Hearing requests must be processed in a timely manner. Litigation should be discouraged in the absence of a “joined issue,” as should duplicative or “investigatory” testimony. Depositions should be eliminated in favor of in-person testimony, or restricted to extraordinary circumstances. To the extent that depositions are retained, regulatory guidance must be provided as well as real-time access to a WCL Judge to obtain rulings on disputed matters. Reserved decisions should be issued within 30 days. Appeals should be decided within 60 days.
9. A worker-friendly culture consistent with the intent of the statute should be encouraged on the part of Board personnel, including WCL Judges. In the current environment RFA-2 forms are treated as credible, while RFA-1 forms are treated with skepticism. Insurer lack of compliance is routinely excused. Current statutory and regulatory provisions are inconsistently enforced.
10. The Medical Treatment Guidelines should be withdrawn.
11. The 2012 Guidelines should be applied as intended, and supplemented with a consistent mechanism that creates predictability of claim values and which can be effectively implemented by WCL Judges and attorneys.
There are many subsidiary issues that must be considered in correcting the systemic problems that obstruct access to benefits for injured workers; our list is not intended to be comprehensive. Any initiative to “re-engineer” the system must restore its original purpose: protecting and compensating those who are injured or become ill in the course of their employment. Over the past twenty years, this purpose has been obscured by disingenuous and well-orchestrated campaigns to boost insurer profits at the expense of worker benefits. It is time for the system to “get back to basics” and take care of injured workers.