WCA Comments on Loss of Wage Earning Capacity

The 2007 amendments to the workers’ compensation law imposed caps on permanent partial disability awards.  As part of that process, a number of Task Forces were created and routed through the New York State Insurance Department.  Three of those Task Forces were assigned to address the question of how to award benefits in capped permanent partial disability cases.

One such Task Force was the Earning Capacity Task Force, which did not come to a consensus on a method to award benefits for loss of wage earning capacity. The document that the Insurance Department issued can be read here: www.nyworkerscompensationalliance.org/uploads/file/Proposed Disability Duration Guidelines - Sept 2010.pdf

The Insurance Department delegated the issue of how to determine benefits based on loss of wage earning capacity to the Workers’ Compensation Board, which requested comments on the subject.

On October 27, 2010, the Workers' Compensation Alliance joined the New York State AFL/CIO, the Injured Workers' Bar Association, the New York Committee for Occupational Safety and Health, and the Western New York Committee For Occupational Safety and Health in endorsing a set of comments written by Robert Grey, the WCA Chair.

The comments can be read here: www.nyworkerscompensationalliance.org/uploads/file/AFL-LWEC-COMMENTS-Final.pdf

WCA Comments on Proposed Cross-Examination Regulations

he Workers’ Compensation Alliance has reviewed the proposal to amend 12 NYCRR Section 300.10 to delete subdivision (c), to amend 12 NYCRR Section 300.38 and to add 12 NYCRR 300.39 in the interest of regulating cross-examination of medical witnesses in the workers’ compensation system. Subject to the concerns expressed below, the WCA generally supports the reduction of unnecessary litigation that serves only to delay the payment of benefits to injured workers and needlessly increases the burden on claimant attorneys.

Proposed Section 300.39(a) requires requests for cross-examination to be submitted in writing no later than 45 days after the Board receives the report.

The WCA does not support this provision. It is our considered opinion that the provision will result in both sides filing requests for cross-examination for every report that is received in order to preserve the right to cross-examination, regardless of whether cross-examination is actually desired. It would require carriers to file cross-examination requests for each C-4 that was filed, and would require claimant attorneys to file a request for almost every IME report that was filed.

There is no need to burden the parties or the Board with the volume of paperwork that would be required to comply with this provision. To the extent that the timeliness of cross-examination requests is an issue, the issue does not relate to the length of time that passes between the filing of the report and the request for cross-examination. Instead, the timeliness issue relates to the circumstances in which cross-examination is requested. Issues arise when the carrier appears for a hearing without a consultant’s report and requests cross-examination of the treating physician, or where the WCL Judge makes a decision from the bench and the carrier’s attorney requests cross-examination simply to provide a basis for appeal. Setting a time frame after a report is filed to request cross-examination and requiring that a form be filed does not address these issues in an effective manner. Instead, we believe that the issue can be addressed under proposed Section 300.39(b).

With regard to proposed Section 300.39(b), we believe that it can potentially address the issues related to cross-examination. The draft regulation should, however, be supplemented with examples so that its message is clearly communicated to the WCL Judges and the parties.

The WCA believes that there are three primary circumstances in which cross-examination should be denied.

(1) Where there is no genuine issue. The best example of this is where the claimant’s medical report is uncontradicted.

(2) Where the requested testimony would be unnecessary because it is irrelevant, cumulative, or duplicative. Examples of such conduct would be (a) cross-examination of multiple doctors in the same practice, instead of one doctor with the office chart; (b) cross-examination of doctors who did not file reports expressing an opinion on the issue in controversy; (c) cross-examination of multiple doctors on the identical issue, such as a neurologist, chiropractor, and two orthopedists on the issue of degree of disability involving a single site of injury which all three are treating.

(3) The request is belated (as described above, where it is made simply to create a “due process” issue for appeal in the absence of a genuine reason for the request beyond a fishing expedition).

Proposed Section 300.39(b) specifically addresses item (1). It also addresses item (3) by specifically referring to the failure “to timely request cross-examination.” While that language may have been intended to refer back to 300.39(a), it is satisfactory standing alone in section 300.39(b), as it affords the WCL Judge latitude to decide whether a request is timely (as opposed to dilatory).

The WCA believes, however, that the proposed regulation should be amended to include language specifically addressing the set of circumstances described in item (2).

The WCA believes that the 45 day time limit in proposed Section 300.39(c) is inadequate and that at least 60 days should be provided for cross-examination.

The WCA also requests that proposed Section 300.39(d) be amended. The carrier has no right to have its witness testify. It is the claimant’s right to cross-examine. Therefore the clause “or to have the witness testify at a hearing or by deposition” should be deleted.

Read the proposed regulation here