2010 Workers’ Compensation Alliance Legislative Agenda

NEW YORK WORKERS’ COMPENSATION ALLIANCE 2010 LEGISLATIVE AGENDA

INTRODUCTION

The New York Workers’ Compensation Alliance recognizes that the so-called Workers’ Compensation “Reform” Act of 2007 left much to be done by the Workers’ Compensation Board, the New York State Insurance Department, the New York State Department of Labor, and the Legislature. In the three and a half years since the “Reform” Act was signed into law by then-Governor Spitzer, many Task Forces have considered topics assigned to them by the legislation. Few of those Task Forces have issued reports, and over time areas that require legislative correction have become apparent.

The WCA’s 2010 Legislative Agenda calls for the production of the missing Task Force reports so that they can be subject to public review and comment, for the passage of certain pending legislation regarding the workers’ compensation system, and for the amendment of existing statutory provisions in order to reduce inequity and unfairness in the system.

Our legislative priorities are:

  1. Restoring the safety net for permanently partially disabled workers through passage of the Social Security Presumption Bill and the adoption of guidelines for the determination of loss of wage earning capacity that are fair to injured workers.
  2. Preserving the right to due process for injured workers by ensuring the right to a hearing before a Workers’ Compensation Law Judge, as embodied in the Right to a Hearing Bill and the Reporter Bill.
  3. Protecting the right to appropriate medical treatment for injured workers through the careful implementation of the Medical Treatment Guidelines.
  4. Repairing gaps in the law by passing a cost-of-living adjustment for permanently totally disabled workers and dependents in death cases, harmonizing the effective dates of the caps on permanent partial disability benefits and increased benefit rates, and indexing the minimum benefit rate.
  5. Preventing threats to the financial stability of the workers’ compensation system by terminating the group self-insurance program as recommended by the New York State Insurance Department Task Force.
I.          RESTORING THE SAFETY NET FOR PERMANENTLY PARTIALLY DISABLED WORKERS.

A. Social Security Disability Presumption Bill

Many workers who apply for workers’ compensation benefits also apply for Social Security Disability benefits. The process used by the Social Security Administration is more objective, impartial, and thorough than that used by the Workers’ Compensation Board. If the Social Security Administration awards benefits, it has determined that the worker has a significant medical impairment and that he or she is unable to perform any substantial gainful activity in employment in the local or regional economy.

A worker who meets the stringent standard to receive Social Security Disability benefits is not employable in any meaningful way, which means he or she is totally disabled. The workers’ compensation system spends considerable resources adjudicating the question of whether injured workers are “totally” or “partially” disabled. Countless hours are devoted to taking medical testimony on this issue, providing a market for insurance company medical consultants and enriching defense attorneys, while delaying and denying justice for injured workers.

The WCA supports A01235, which would replace this litigation system with a simple presumption that a worker who is approved for Social Security Disability benefits is totally disabled for workers’ compensation purposes.

B.        Loss of Wage Earning Capacity Guidelines

The 2007 changes to the Workers’ Compensation Law imposed caps on permanent partial disability benefits. The WCA opposed (and still opposes) the decision to place a time limit on the length of time a permanently disabled worker can collect benefits. If a worker is permanently disabled because of an on-the-job injury, that worker should receive benefits for as long as the disability lasts – permanently.

The way the workers’ compensation system decides how “disabled” a worker is has long been unfair and inequitable. Rather than considering how an injury affects a worker’s ability to earn a living, the system often looks at the medical “disability,” except in rare cases. What this means is that a lawyer and a construction worker who have the same back injury are often considered to be equally “disabled,” even though the lawyer may be able to do his or her job while the construction worker is completely laid up.

Workers’ compensation is supposed to cover lost wages due to on-the-job injury. The question should not be how “severe” the medical problem is – the question should be the extent to which it prevents the injured worker from earning a living.

The 2007 legislation resulted in the creation of a group of Task Forces in the New York State Insurance Department that were assigned the responsibility of recommending a way to refocus the workers’ compensation system on awarding benefits for loss of wage earning capacity, not medical disability. Over three years later, the Insurance Department has still not issued a report. Meanwhile, workers are unable to pursue classifications of permanent disability because there is no guidance on how to determine their loss of wage earning capacity due to the compensable injuries.

The WCA Position. The WCA calls on the New York State Insurance Department to issue its report on Loss of Wage Earning Capacity Guidelines, and for the Workers’ Compensation Board to review and implement such guidelines in a way that will restore the focus of the system on compensating injured workers for loss of wage earning capacity. The WCA calls on the Board to make substantial use of the safety net provisions of the 2007 statutory amendments that relieve permanently disabled workers from the caps on their benefits, and to expand consideration of industrial total disability, as intended by the Legislature when it specifically incorporated that provision in the 2007 amendments.

II         PRESERVING DUE PROCESS FOR INJURED WORKERS.

A.        Right to a Hearing Bill

Over the past decade, the Workers’ Compensation Board has increasingly denied injured workers their right to a hearing before a Workers’ Compensation Law Judge, despite a provision of the Workers’ Compensation Law that guarantees that right. The Board has issued “desk decisions” by non-judicial Board employees that decide legal issues, expanded the use of “conciliation,” a process in which cases are decided without a formal hearing and without a stenographic record, and has increasingly denied applications for hearings filed by claimants and other parties to workers’ compensation claims.

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.

B.        Stenographic Recording of Hearings

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.

III.       PROTECTING THE RIGHT TO MEDICAL TREATMENT.

A.        Medical Treatment Guidelines

The Workers’ Compensation Board has recently posted Medical Treatment Guidelines on its web site. http://www.wcb.state.ny.us/content/main/wclaws/Proposed/Proposed_Part324_325.jsp. The WCA is concerned about both the concept and the implementation of the Treatment Guidelines.

The Treatment Guidelines represent the Board’s effort to address chronic insurance company delay and denial of authorization for medical treatment and testing for injured workers. The Board was required to make this effort as a result of the 2007 amendments to the Workers’ Compensation Law.

The WCA shares the Board’s concern about the difficulty injured workers face in obtaining medical treatment for their injuries and illnesses as a result of employer and carrier misbehavior, and we applaud the Board for focusing on this issue. We are concerned, however, about the use of Medical Treatment Guidelines to address this problem.

The Workers’ Compensation Law has always provided injured workers with their choice of physician. Implicit in the legal right to choose one’s physician is the right of the doctor and the patient to select the best course of medical treatment. The Medical Treatment Guidelines abrogate this right, instead replacing the freedom of choice of medical treatment with a system of State regulation that tells doctors how to treat their patients.

The WCA Position. The WCA calls on the Board to use the Medical Treatment Guidelines as a floor for medical treatment, preventing employers and carriers from delaying, denying or contesting medical testing and treatment covered by the Guidelines. The WCA calls on the Board to interpret the Guidelines to permit treating physicians to request authorization for and render treatment beyond the Guidelines in accordance with all current practice and procedure.

The WCA also calls on the Board to increase the fee schedule for payments to treating physicians. After the 2007 legislation, the Board issued time-consuming new forms to be completed by treating doctors. While requiring the doctors to do more work and fill out more paperwork, the Board has done nothing to compensate the doctors for these increased demands on their time. It is essential for the medical fee schedule to be increased so that doctors are fairly compensated for the time they spend treating injured workers, complying with the Medical Treatment Guidelines, and completing forms prescribed by the Board. Failure to increase the medical fee schedule will result in the continued departure of doctors from the workers’ compensation system, further eroding benefits for injured workers.

IV.       REPAIRING GAPS IN THE LAW.

A.        Cost of Living Adjustment for Injured Workers

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. The WCA supports A3117-B.

B.        Close the Gap

The 2007 legislation 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.

C.        Index the Minimum Rate

The 2007 legislation “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.

V.        PREVENTING THREATS TO THE SYSTEM.

A.        Group Self-Insurance Trusts

In June, 2010, the Task Force on Group Self-Insurance reported a crisis in the group self-insurance program for workers’ compensation. Prior to 2006, there had never been a group default in New York State. However, audits of the group self-insurers beginning in 2006 revealed that many of them were significantly underfunded, and by 2010 fifteen had become insolvent. The Task Force projects that the total deficit for the fifteen insolvent groups is close to $500 million. The solvent group self-insurers have resisted the Workers’ Compensation Board’s efforts to ensure payment to workers insured by these insolvent groups through legal assessment mechanisms.

The Task Force recommended strengthening existing provisions of the Workers’ Compensation Law permitting the Board to collect from solvent employers and group self-insurers, to increase enforcement actions against uninsured employers, and to terminate the group self-insurance program by the end of 2010. Employers would be permitted to purchase insurance policies or self-insure individually upon meeting the necessary financial criteria.

The WCA supports the recommendations of the Task Force on Group Self-Insurance, and urges the Legislature to protect the payments due to injured workers now and in the future.