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WCA Releases White Paper on 2016 Executive Budget

On January 13, 2016, the Governor's office released the 2016 Executive Budget for New York State.  The Budget included a number of proposals that would make significant changes to the workers' compensation system. 

The WCA has reviewed the Executive Budget and is deeply concerned about the aspects of it that impact due process and benefits for injured workers.  In particular, the WCA believes that the following proposals would adversely affect injured workers:

1.  The elimination of the Aggregate Trust Fund.  The 2007 reform legislation slashed benefits for permanently partially disabled workers, but preserved their ability to obtain fair settlements of their now-limited benefits by requiring insurers to make deposits into the Aggregate Trust Fund.  The Budget proposal to eliminate the ATF deposit requirement would still further diminish benefits for these workers, and also undermine benefits for widows, dependent children, and those who are permanently totally disabled.

2.  The elimination of the right to hearings before a single judge.  The Budget proposes to allow the Workers' Compensation Board to re-assign any case at any time to any judge in the state.  This could result in judges in distant parts of the state deciding claims of workers they have never seen, based on the opinions of medical witnesses with whom they are totally unfamiliar.  This proposal raises serious concerns about due process for both injured workers and employers.

3.  The elimination of appeals heard by an appeals panel.  The Budget proposes to allow appeals from decisions of Workers' Compensation Law Judges to be heard by a single lawyer employed by the Board, or by a single Commissioner.  This proposal would deprive injured workers and employers of their right to a meaningful appeal, and again raises serious concerns about due process.

There are many other provisions of the Budget that would result in major changes to the workers' compensation system and the rights of those who participate in it.  The full WCA White Paper can be found here.

WCA Thanks the NYS Legislature

In the newly enacted budget for New York State’s 2016/17 fiscal year, the Legislature rejected proposals that would have reduced benefits for injured workers and deprived them of their fundamental right to due process.

 

The WCA thanks the Legislature for re-affirming the principle that those who are injured on the job have the right to fair and adequate compensation, the right to choose their own doctors and to participate in their own health care decisions, and the right to a fair hearing and a meaningful appeal when legal action is needed. 

 

For too long, too much of the conversation about workers’ compensation has centered around costs for employers and profits for insurers.  The truth is that employer costs are low and insurer profits are high.  It’s time to turn our attention to the injured workers who suffer the real cost of inadequate benefits and a broken system.

 

The WCA salutes the Governor, Assembly Speaker Heastie, Senate Majority Leader Flanagan, and the Legislature for their efforts on behalf of low wage and immigrant workers by increasing minimum wage and adopting paid leave.  Each of these initiatives helps New Yorkers while they are employed.  Now an equal effort must be dedicated to helping and protecting New Yorkers who are hurt on the job and lose their employment benefits.  Injured workers need more compensation, more health care options, and more access to a fairer, faster, and more transparent system.

 

The WCA looks forward to working with the Legislature and all who speak for injured workers in this campaign.

New York State Senate Confirms Zachary S. Weiss as New Chairman of Workers’ Compensation Board

Zachary S. Weiss, Esq, a lawyer and long time confidant to Governor Eliot Spitzer, was confirmed late last night as the new Chairman of the New York State Workers' Compensation Board.  See Mr. Weiss' biography here.  The New York Workers' Compensation Alliance wishes him well in his new position and pledges to work with him and his administration to better the plight of New York's injured workers.

Despite his new position, the Workers' Compensation Alliance (WCA) has been working with the new Chair since earlier this year on such issues as the "Rocket Docket Task Force" while he was Special Counsel in the New York State Insurance Department.  In recent conversations with the Workers' Compensation Alliance leadership, the new Chair has stated a strong willingness to work with injured workers and their representatives to improve a system that has taken a decidedly "employer turn" in the previous administration.   

The twin goals of speeding benefits to injured workers and lowering employers costs are attainable. For instance, eliminating costly and unnecessary medical depositions would help both injured workers and employers.  In addition, the Chair will be overseeing the implementation of revised medical and vocational guidelines to help determine an injured workers' true level of disability and potential to return to work.

Again, the WCA welcomes Zachary "Zack" Weiss as the new Chair of the venerable and prestigious New York Workers' Compensation Board.  He is a sharp, well seasoned professional. Injured workers need a strong advocate in their corner.

New York 9/11 First Responder Hospital Worker Bill Gives Workers 75% Workers’ Comp Benefits

Private hospital workers, emergency medical technicians (EMT's) and paramedics who were dispatched  to Ground Zero after 9/11 will be potentially the first workers in New York State Workers' Compensation history to receive 75% of their lost wages, as opposed to the traditional 66 2/3% rate of compensation, based on a new bill passed last week in Albany

This is a significant victory for these forgotten heroes of 9/11 and another victory for the hospital workers' unions in Albany.  As reported in Workers' Comp Central:

  • >New York Workers Compensation Alliance, which includes claimants' attorneys and other workers' advocates, praised the compromise bill Thursday.

    Troy Rosasco, co-chairman of the alliance, said a board member of the organization helped draft the legislation.

    "It is a great victory for some of the forgotten heroes of 9/11," Rosasco said. He said the bill will help bring parity with benefits already paid to public employees. "

WCA Calls on NYS Workers’ Compensation Board to Publicize September 11th Registration Deadline

The September 11th 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 current deadline to file a WTC-12 form is 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.  Information about registering for benefits in connection with September 11th rescue, recovery, and cleanup operations is available at:

http://www.wcb.state.ny.us/content/main/SubjectNos/sn046_159.jsp

http://nycosh.org/environment_wtc/WTC/911WCrev818.pdf

http://www.nyc.gov/html/doh/wtc/html/home/home.shtml

http://www.wtcexams.org/

 The WCA Position.  The WCA calls on the Board to publicize the September 11th registration deadline on its web site and at hearing points, and to make WTC-12 forms readily available so that participants in rescue, recovery and clean-up operations can register and preserve their right to claim workers’ compensation benefits.

Restore the Safety Net: 2016 WCA Legislative Agenda

Over the past two decades, the social safety net has been steadily eroded for working New Yorkers who are injured on the job. The workers’ compensation system is the first – and many times the only – resource for lost wages and medical treatment caused by workplace injuries and illnesses. Sadly, these protections have been drastically reduced as the result of past legislation, regulation, and administrative change.

It is vitally important that the social safety net, and particularly the workers’ compensation system, be restored to protect vulnerable injured and disabled workers. These workers are entitled to due process of law and to meaningful compensation for their lost wages, medical treatment. And because the workers’ compensation system no longer provides an adequate remedy for their loss of other legal remedies, the system must be reformed to permit these workers to be made whole where their employer broke the law or was grossly negligent. We therefore propose eight meaningful legislative reforms that will help to restore the safety net for working New Yorkers who are injured on the job.

1.Reduce the threshold for safety net eligibility. The threshold for safety net consideration should be reduced from loss of wage earning capacity in excess of eighty percent to loss of wage earning capacity in excess of fifty percent. Workers who have been determined to lose more than half of their pre-accident wage earning capacity and have been unable to return to work should be eligible for safety net evaluation.

2.“Voluntary withdrawal from the labor market” should be defined. The statute should be amended to define the circumstances in which an injured worker must demonstrate that he or she is “attached to the labor market” as a condition of receiving benefits.

3.Index the minimum weekly rate to the maximum weekly benefit rate. The failure to index the minimum benefit rate ensures that it will become inadequate in the intermediate or long term absent continued legislative oversight and statutory correction. This can be obviated by fixing the minimum rate at 25% of the maximum rate.

4.The Medical Treatment Guidelines should be eliminated. The existing statutory procedure makes more treatment available to injured workers with less administrative process and at a lower expense than that directed by the Medical Treatment Guidelines. The WCA supports A3356.

5.Schedule loss awards should be in addition to awards for temporary disability. The current schedule loss evaluation system should be preserved, but schedule loss awards should be paid in addition to compensation for temporary disability (as under the Longshore & Harbor Workers’ Compensation Act), rather than having such compensation deducted from the schedule loss award.

6.The Board should hold an initial hearing in every case. Participants in the system are in substantial agreement that holding an initial hearing is more efficient than the use of non-hearing determinations. More importantly, an initial hearing ensures that unrepresented workers are given adequate information about their claim, their rights, and system benefits, and that they have a meaningful opportunity to be heard by the Board.

7.Limit “exclusive remedy” protection for employers. The law prohibits injured workers from suing their employer, on the theory that the workers’ compensation system offers an adequate replacement. Given the caps on permanent partial disability benefits, this is no longer true in cases where the worker is significantly disabled. There is also no justification to insulate employers from liability where the worker is injured because the employer violated a statute or regulation.

8.Adopt a presumption that workers deemed totally disabled by the Social Security Administration are totally disabled in the workers’ compensation system. The Workers’ Compensation Board issued 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.

WCA, NYCOSH Release State of the System 2016

On June 21, 2016 the WCA and the New York Committee for Occupational Safety and Health released Workers' Compensation in New York State:  State of the System 2016.  This is the fourth in a series of white papers released by the two organizations in the past decade.

State of the System 2016 is based primarily on data obtained from the Workers' Compensation Board in several areas, although there were many data points about which the Board declined to provide information.

 The conclusions and recommendations of the paper are:

  1. It appears that workers are generally able to file claims, although the Board’s inclusion of extraneous forms in its FOIL response precludes an accurate assessment of how many individual claims are being filed.  It is clear from the data, however, that workers who are not fluent in English face significant obstacles in claim filing. Recommendation:  The Board should review its compliance with the Governor’s Executive Order regarding language access.  Printed and electronic forms should be more readily accessible in multiple languages.  Outreach efforts to immigrant communities and worker centers should be significantly expanded to increase the visibility and accessibility of the workers’ compensation system to workers who are not fluent in English.
  2. The Board’s division of its file creation process into “assembly” and “indexing” sows confusion among injured workers and delays insurer response to claims.  It seems likely that the Board is simply not indexing many of the claims that are filed, notwithstanding its regulation to the contrary.  This defers the insurer’s obligation to accept or contest claims.  An additional issue is presented by the Board’s issuance of these complex notices in English, without regard to the injured worker’s language or literacy issues. Recommendation:  All claims should be indexed immediately upon receipt of a claim or employer’s report of injury and the filing of a medical report.  The language used on a Notice of Indexing should be simplified, and the information about rights and benefits under the law should be expanded.  Notices should be issued in the language spoken by the injured worker as indicated on his or her claim form.
  3. The Board’s use of Administrative and Proposed Decisions is instrumental in denying benefits to injured workers.  These documents do not provide adequate information to injured workers either about the benefits being awarded or their entitlement to further benefits.  They also suffer from the same deficiency as Notices of Assembly and Indexing, in that they use complex language and are issued only in English.  This has a significant impact on access to benefits by workers with language or literacy issues.  These issues are exacerbated by the Board’s recently adopted policy to issue no decision at all in certain cases and its apparent disregard of the statutory requirement that it schedule conciliation meetings prior to issuing Proposed Decisions. Recommendation:  The use of Administrative and Proposed Decisions should be discontinued.  Injured workers should be afforded a hearing before a WCL Judge in every case so that information about their rights and available benefits can be communicated to them in a meaningful fashion and in an appropriate language.
  4. The Medical Treatment Guidelines have resulted in a flood of variance requests, creating an enormous administrative burden for health care providers, employers, carriers, attorneys and the Board, while causing the widespread delay and denial of medical care. Recommendation:  The use of the Medical Treatment Guidelines should be restricted to the purpose outlined in the law, which is to “pre-approve” medical care.  The MTG should not be used to pre-determine or pre-deny the need for treatment, which is governed by existing statutory provisions.  This interpretation of the law would eliminate the extensive bureaucratic procedure created by the current regulations, and would enable workers to receive needed treatment while preserving the ability of employers and carriers to contest medical bills.
  5. Despite increases in the maximum weekly benefit rate and periodic one-time increases in the minimum benefit rate, wage replacement benefits remain inadequate.  Workers who are injured on the job suffer from significant uncompensated wage loss due to the inadequacy of workers’ compensation benefits, especially in cases of permanent partial disability under the caps. Recommendation:  The minimum benefit rate should be set at 25% of the maximum benefit rate.  This will reduce uncompensated wage loss for low wage workers.
  6. Schedule loss of use awards have not increased since 1992 for workers who earn less than $600 per week, and have not increased since 2009 for workers who earn less than $900 per week.  From July of 2015, the value of schedule loss awards will only improve for the 25% of workers who earn more than $1,200 per week.  Meanwhile, payments for time lost from work are deducted from these awards.  This includes wage payments that are returned to employers out of the injured worker’s award. Recommendation:  Schedule loss awards should be payable additional to wage loss benefits, as is currently the case under the Longshore and Harbor Workers Compensation Act and in many other states.
  7. The PPD caps have slashed payments to injured workers by 70% or more.  The impact of this was intended to be assessed by the issuance of an annual Safety Net Report to consider the impact of the PPD caps on return to work.  Regrettably, the Safety Net Report has not been publicly issued since 2008, the recommendations of the Return to Work Task Force have never been implemented, and the Board declined to provide any information on its policies or implementation of the statutory safety net provision. Recommendation:  The Safety Net Reports for the years 2009 through 2015 should be issued.  The recommendations of the Return To Work Task Force should be implemented.  The threshold for safety net eligibility should be reduced to 50% loss of wage earning capacity, and the Board should issue meaningful guidelines for safety net eligibility as suggested in the 2014 White Paper.
  8. The number of settlements under Workers’ Compensation Law § 32 is increasing for private carriers, especially as a percentage of PPD claims.  This creates savings for insurers as injured workers settle their claims out of economic necessity created by the PPD caps.  However, this trend does not apply equally to the State Insurance Fund and self-insured employers, who settle relatively few claims.  This is likely due to their exemption from liability to the Aggregate Trust Fund. Recommendation:  The Board should enforce the statutory requirement for employers and carriers to make mandatory settlement offers.  The Aggregate Trust Fund deposit requirement should be expanded to the State Insurance Fund and to self-insured employers.

WCA Opposes 9.3% WC Rate Hike; Business Council Supports It

On June 28, 2016, the New York State Department of Financial Services held a public hearing on the Compensation Insurance Rating Board’s request for a 9.3% hike in workers’ compensation costs.  The WCA, NYCOSH and others submitted testimony opposing the request, and WCA Chair Robert Grey appeared to testify against the insurer group’s request.

The bulk of CIRB’s filing was based on supposed increases in insurer costs related to permanent partial disability and schedule loss cases.  The WCA pointed out that the facts show that PPD costs have plummeted because of the PPD caps that were part of the 2007 reforms.  The WCA also showed that schedule loss awards have not increased for the vast majority of workers in five years.  For the past several years, only 25% of workers have seen increases in their schedule loss awards as a result of increases in the maximum benefit rate – and those increases have been small and incremental.

NYCIRB contends that indemnity claims are 40% of the claims in the system, and that 28% of indemnity claims involve schedule loss.  This means that schedule loss cases are about 11% of the cases in the system (.40 x .28 = 11.2).  Only 25% of those cases have seen increases in the past four years, which is 2.8% of the claims in the system.  Those increases have averaged about 2%.  As a result, cost increases in schedule loss cases are about one-half of one percent (2.8 x. 02).

Meanwhile, the Business Council of New York State also appeared at the hearing and testified in favor of increasing its own member's insurance costs.  Ken Pokalski stated that "the system costs what it costs," and that employers' rates should be increased to account for those costs.  Pokalski also advocated for drastic reductions in awards for schedule loss and in payment for temporary disability from work, claiming that employers' rates can always be scaled back later, after benefits are taken away from injured workers.

Real Business Groups Oppose Rate Hike

Last week, WCA posts observed that the Business Council of New York State was inexplicably supporting a 9.3% increase in workers' compensation costs for the members it supposedly speaks for - New York State employers.  The WCA also noted that there is no credible data showing that claims by injured workers support the rate filing supported by the Business Council.  To the contrary, claim costs are down.  We can only conclude that the "employers" the Business Council speaks for are really insurance companies, and not Main Street businesses.

This week, two groups that represent real New York employers publicly objected to the very same rate filing the Business Council supports.  In a press release on its web site, the Retail Council called for "an industry-wide actuarial study before DFS considers any further rate increases," citing specific concerns it has with lack of data provided by the State Insurance Fund.  The Retail Council's press release can be found at:

Retailers bash bid for 10% workers’ comp rate hike

Meanwhile, the Business and Labor Coalition of New York (BALCONY) also opposed to rate filing.  In its press release, BALCONY said that it "oppose[s] the request filed by the New York Compensation Insurance Rating Board for a 9.3% increase ... [because] there is no justification for such a steep increase."  BALCONY also noted that "workers' compensation insurance is a relatively small part of our business members' costs," but that there is no "reasonable or proven justification" to increase rates.  The BALCONY press release can be found at:

http://www.balconynewyork.com/2016/07/05/12242/ The WCA applauds the Retail Council and BALCONY for giving voice to the interest of New York employers over the multinational insurance industry.

WCA and NYCOSH Issue a New Report on Uncompensated Wage Loss

On February 1, 2016 the Workers' Compensation Alliance and the New York Committee for Occupational Safety and Health released a report showing the stark consequences of on-the-job injury for workers.

The report outlines the consequences of the 2007 workers compensation "reforms" for injured workers.  Among its conclusions, the report finds that (1) the 2007 "reforms" offered no benefit to low-wage workers; (2) even workers who benefited from the 2007 reforms continue to suffer high rates of uncompensated wage loss; and (3) the workers' compensation system now replaces less than 10% of the lost wages of permanently disabled workers.

The report further concludes that proposals made by the Business Council, some of which are included in the 2016 Executive Budget, would render the workers' compensation virtually meaningless as a source of wage replacement benefits for injured workers.

The report can be found here.