Workers’ Compensation AMA Guidelines Dead in New York; IWBA Issues Legislative Proposals to Improve System

Amid growing opposition to the AMA Guidelines to Permanent Impairment in a multitude of states across the country ( see the excellent blog post from our distinguished New Jersey colleague, Jon Gelman, Esq.  here), the New York Workers' Compensation Alliance can safely predict that the Sixth Edition of the AMA Guides are totally, unequivocally, 100% dead as a door nail in New York.  You can take that to the undertaker!

Good riddance to Bruce Topman and the New York State Insurance Department who tried to sneak this one past the AFL-CIO and our AllianceWe only wish we had caught them sooner before they  wasted $163,000 of taxpayer money hiring insurance company hack, Dr. Christopher Brigham.  In addition, there is a move afoot by New York Injured Workers' Bar Association President, Barbara Levine, to ask the American Medical Association to remove their support for this anti-worker and anti-doctor publication.  She has written to the current AMA President asking that this prestigious organization remove its imprimatur from this anti-patient document.  Congrats to Barbara and the entire IWBA for their initiative on this issue!

Interestingly, Mr. Topman and his boss, Eric Dinallo, have been nowhere to be seen on this issue since the Spitzer scandal and have canceled multiple meetings with the AFL-CIO to discuss where to go from here to implement fair medical guidelines. 

The bottom line is that the New York Workers' Compensation System is now in a complete state of chaos.   Former Governor Spitzer pushed through his anti-worker reforms over a year ago and established an awkward rating scale for permanent partial disabilities which was tied to a presumed promulgation of new medical guidelines.    Because of Mr. Topman's wrong turn detour down the AMA road, New York workers, lawyers, insurance carriers, employers and judges now have a reform law that is impossible to implement!   The only fix is a revision of the existing 1996 Medical Guidelines by a distinguished panel of fair New York doctors.

Essentially, Judges at the New York Workers' Compensation Board are being asked to play a new game with the same old playbook.  Workers' Compensation Board members, many of whom are lay people holdovers from the Pataki administration, will now be interpreting the disgraced former Governor Spitzer's reform law.  It will be "bedlam times 10" unless new Governor David Patterson and his senior staff take control of the situation - and fast!

In an effort to assist the new Governor and his senior staff in fixing this broken system with all deliberate speed, the New York Injured Workers' Bar Association recently issued a draft of its 2008 Legislative Proposals to fix the mess created in the last year.  They are even-handed proposals that restore the "worker" element to the New York State Workers' Compensation Law (which many had mockingly started to call the "New York State Employers' Compensation Law" ).   The new Governor and his senior staff could ameliorate some of the damage caused in the last year by carefully reviewing and implementing some of these proposals. Here they are:

1. Amend WCL to correct effective date to July 1, 2007 for dates of accident from 3/13/07 to 6/30/07

2. Eliminate “caps” upon expiration as cost-shifting tax burden from employers and carriers to NYS

3. Reduce from 80% to 40% threshold for application for lifetime indemnity

4. Appointment( s) of a more diverse Workers’ Compensation Board to include representatives from labor and minority communities

5. Emergency creation of a panel of NYS medical professionals to revise 1996 Medical Guidelines regarding permanency

6. Adoption of regulation authorizing attorney fees in “medical only” claims

7. Elimination of HIPAA release filing with C-3

8. Amend WCL Sec. 29 language to clarify attorney responsibility for securing consent to third party action and negotiating apportionment of costs

9. Amend NYCR&R Sec 325-1.3(b)(3) to extend from 22 days to 90 days submission of current medical reports from a treating physician

10. Amend WCL Sec 15.5-a to include a presumption that receipt and/or award of Social Security disability benefits is prima facie evidence of total disability and such benefits are not subject to offset against workers’ compensation indemnity payments

11. Support passage of S.6325 requiring mandatory ATF deposits by SIEs and SIF

12. Amend WCL 13(a) to specify the right of an injured worker to continuing, symptomatic medical care and treatment in all claims

13. Amend WCL Sec 23 to make the WCB liable for costs and attorney fees upon reversal of a Board Panel decision following submission of a perfected record to the appellate court

14. Seek restoral of the participation of the NYS Attorney General in review of appeals for Full Board Review and to the appellate division

15. Amend appropriate sections of the WCL to restore claimant choice of provider

16. Create participation procedure for attorney professional evaluation of WCLJs

17. Advocate mandatory annual CLE for licensed representatives

18. Amend the WCL to provide for a “whistle blower” protection for employees and employers who provide information concerning workers’ compensation fraud, especially failure to carry coverage and mis-classification of employees

19. Amend NYCRR section 325-1.24(c)( 1) to require payment of a medical bill within 30 (currently reads 45) days after the bill has bee submitted.

20. Amend WCL section 16 to modify the offset for Social Security Survivor’s Benefits. Section 16 (1-c) applies to accidents after July 1, 1978. Two hundred dollars (the AWW at which compensation benefits are reduced by 50%) in 1978 was worth $615.00 in 2006 using the Consumer Price Index.

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