NYWCA APPLAUDS GOVERNOR CUOMO FOR REDUCING EMPLOYER WORKERS’ COMPENSATION COSTS BY $300 MILLION

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.

WCA Releases 2014 White Paper

The New York Workers’ Compensation Alliance has released a White Paper authored by WCA Chair Robert Grey.  The paper was cross-endorsed by the New York Committee for Occupational Safety and Health (NYCOSH) and the National Economic and Social Rights Initiative (NESRI).

The 2014 White Paper reviews the current legislative, regulatory and administrative status of the New York State workers’ compensation system.  The system has undergone significant changes in the past two decades.  There were major changes as a result of the reform legislation enacted in 2007.  In addition, some trends that pre-dated the 2007 legislation have subsequently accelerated.

            The paper considers developments in the workers’ compensation system over the past six years in three primary areas:  (1) benefits for injured workers; (2) costs for employers; and (3) administration by the state (primarily by the Workers’ Compensation Board).  It will address areas of improvement, stagnation, and deterioration in the system’s core mission of delivering compensation and medical benefits to injured workers.

             The 2014 paper is the third in a series of papers released by the WCA and NYCOSH about the state of the system.  Workers’ Compensation:  State of the System, 2006 (“the 2006 White Paper”), was written to contribute to the discussion leading to the 2007 legislation.  The 2006 White Paper identified the main problems in the New York workers’ compensation system as “the amount of benefits injured workers receive, delays in medical treatment, cost to employers, lack of transparency regarding insurance carrier financial information, and the state Workers’ Compensation Board’s administrative procedures.”  The paper made a number of recommendations to resolve these problems.

              Workers’ Compensation:  State of the System, 2008 (“the 2008 White Paper”) reviewed the 2007 legislation and the Task Forces that were created to implement the statutory changes.  The 2008 White Paper identified continuing problems in the system and made recommendations about modifying and implementing the legislation and the suggestions of the Task Forces. 

            The 2014 White Paper is available here.

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.

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 2015 Legislative Agenda

The New York Workers’ Compensation Alliance has released its 2015 Legislative Agenda, titled “Protect New York Workers.” The agenda calls attention to the fact that as employer costs have been reduced, injured workers have suffered. Benefits for lost wages remain inadequate for both the maximum and minimum rates, and the Workers’ Compensation Board has failed to develop systems to meaningfully address loss of wage earning capacity, to determine when an injured worker’s “labor market attachment” should be relevant, or to create meaningful return to work programs. No consideration has been given to implementing the statutory safety net for the most severely disabled workers, and benefits for lost wages are still unfairly deducted from awards for “schedule loss.” Meanwhile, medical treatment for injured workers has been constricted by the Board’s Medical Treatment Guidelines, and the Board proposes to further restrict injured workers’ access to medical care by reducing reimbursement rates for health care providers and expanding employer-managed care through “preferred provider organizations.

The WCA Legislative Agenda calls on New York State government to restore balance to the system. The goal of the workers’ compensation system should not be the creation of profits for insurance companies at the expense of workers and employers. Instead, it has always been, and should continue to be, protecting injured workers.

The 2015 WCA Legislative Agenda can be found here:
www.nyworkerscompensationalliance.org/pdf/WCA2015LegislativeAgenda.pdf

WCA Releases 2013 Legislative Agenda

The New York Workers’ Compensation Alliance, a coalition of injured workers and those committed to protecting the rights of injured workers, has released its 2013 Legislative Agenda covering a host of issues ranging from Social Security Disability Presumption to Medical Treatment Guidelines.

“New York State has made significant strides in the past year to save money for responsible employers while continuing to deliver appropriate benefits to injured workers,” said NYWCA Chair Robert Grey. “We are confident that our legislative agenda will further strengthen and streamline the workers’ compensation system.”

The NYWCA legislative agenda identifies four areas in which the law can be strengthened and improved. NYWCA “top priorities” would:

  • reduce litigation by requiring the Workers’ Compensation Board to adopt findings made by the federal Social Security Administration;
  • reduce litigation by establishing a standard for labor market attachment by partially disabled workers;
  • strengthen the right to a hearing, preserving due process rights of workers and employers; and
  • restore workers’ rights to appropriate medical treatment.

In the area of indemnity benefits, the NYWCA agenda would streamline delivery of compensation to injured workers by:

  • ensuring full payment of awards for permanent injury to limbs;
  • instituting a cost-of-living adjustment for permanently totally disabled workers and beneficiaries in death cases so that their weekly benefit amounts do not fall into irrelevance;
  • correct an error in the law by unifying the dates for rate raises and caps on permanent partial disability benefits;
  • indexing the minimum benefit rate to coincide with existing indexing of the maximum benefit rate;
  • increasing so-called “no dependency” awards in death claims, which are unchanged since 1996;
  • eliminating discrimination against immigrant workers; and
  • expanding the Board’s discretion to use existing safety net provisions to keep permanently disabled workers from poverty and welfare.

In the area of administrative procedure, the NYWCA agenda would create efficiency by:

  • encouraging legal representation of injured workers in “medical only” cases;
  • establishing rules for legal representation in connection with appeals;
  • extending deadlines for World Trade Center responders to register for benefits;
  • eliminating wasteful and abusive litigation tactics;
  • expanding availability of mental health services;
  • creating oversight for alternative dispute resolution programs;
  • providing a framework for use of impartial specialists; and
  • developing data regarding use of “independent medical examinations.”

In the area of personal injury litigation, the NYWCA agenda would reduce complexity by:

  • unifying the definition of “basic economic loss” for No-Fault and workers’ compensation purposes;
  • preventing windfalls to workers’ compensation carriers from personal injury recoveries by injured workers, while preventing double-recoveries by workers; and
  • clarifying the law regarding insurer liens and credits for personal injury recoveries

Grey said: “These steps — supported by stronger oversight of the Compensation Insurance Rating Board, existing downward trends in workers’ compensation costs, and the Governor’s recent proposals to increase the minimum benefit rate, close the Special Funds, streamline assessments and resolve the group self-insurance trust crisis — will continue to establish New York as a national leader in delivering benefits to injured workers while preserving efficiency for employers.”

The full 2013 WCA Legislative Agenda is here.

WCA Releases 2012 Legislative Agenda

2012 LEGISLATIVE AGENDA

TOP PRIORITIES

1.         A6294/S3746 – the Medical Treatment Guidelines Retroactivity Bill.

On December 1, 2010, the Workers’ Compensation Board implemented Medical Treatment Guidelines intended to establish a standard of medical care in workers’ compensation cases.  The Board further stated that these Guidelines – which substantially restricted the availability of pain medication, physical therapy, and chiropractic treatment – would be applied to all workers’ compensation claims, regardless of the date of accident.  The WCA wrote to the Board expressing grave concern about the retroactive application of the Guidelines.

As predicted by the WCA, the retroactive application had the effect of terminating treatment for thousands of injured workers.  In many instances, the treatment had been approved or agreed upon years or even decades prior to the implementation of the Guidelines.

The Medical Treatment Guidelines developed by a New York State Insurance Department Task Force were never intended to be applied in a retroactive fashion, and the Board’s interpretation and application of the Guidelines has been an unmitigated disaster for injured workers, health care providers, employers, carriers, attorneys, and the Board’s own staff.

The WCA supports A6294/S3746, which would prohibit the Board from applying the Medical Treatment Guidelines in a retroactive fashion.

   2.         A2135/S2781 – the Social Security Presumption Bill.

The Workers’ Compensation Board has issued new 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.

The WCA supports A01235, which would streamline the system by providing that that a worker who is approved for Social Security Disability benefits is totally disabled for workers’ compensation purposes.

   3.         A2135/S2781 A11337- the Right to a Hearing Bill

The Workers’ Compensation Board continues to deny injured workers their right to a hearing before a Workers’ Compensation Law Judge, despite existing statutory language that guarantees that right.  The Board has replaced hearings with a variety of administrative processes and non-judicial decisions that deny claimants and employers substantive and due process rights and which deliver inferior justice to the parties in the system.

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.

INDEMNITY BENEFIT LEGISLATION

1.         A03117-B – a cost-of-living adjustment for permanently totally disabled workers and dependents in death cases.

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.  This much-needed adjustment would further the basic purpose of the Workers’ Compensation Law, which is to provide economic support to injured workers and their dependents.

The WCA supports A3117-B.

2.         Amending WCL Sections 15(3)(w) and 15(6) to harmonize the effective dates of the caps on permanent partial disability benefits and increased benefit rates.

The 2007 amendments to the Workers’ Compensation Law 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.

3.         Amending WCL Section 15(6) to index the minimum benefit rate.

The 2007 amendments to the Workers’ Compensation Law “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.

4.    Amending WCL Section 16(4)(b) to increase no dependency awards to $100,000 and indexing same.

Workers’ Compensation Law Section 16(4)(b) provides for an award of $50,000 payable to a workers’ parents or estate in cases of work-related death where there is no surviving spouse or other dependents.  This provision was added to the law in 1990, and has remained unchanged since that time.  In the interim, the maximum weekly workers’ compensation benefit rate has nearly doubled.

It is plainly inequitable for the award in a death case to remain unchanged for over twenty years.  This award should be increased in accordance with the increase in other workers’ compensation benefit rates, and should be similarly indexed.

It is plainly inequitable for the award in a death case to remain unchanged for over twenty years.  This award should be increased in accordance with the increase in other workers’ compensation benefit rates, and should be similarly indexed.

5. Amending WCL Section 15(3)(v) to prevent discrimination against immigrant workers.

Workers’ Compensation Law Section 15(3)(v) provides crucial protection for some of the most seriously injured workers.  Under this statute, workers who lose more than 50% of the use of an extremity (arm, leg, hand or foot) and who would ordinarily be deprived of wage replacement benefits beyond the statutory “schedule loss” award are potentially entitled to additional compensation.  In order to be eligible for such additional benefits, the worker must “participate in a board approved rehabilitation program; or shall have demonstrated cooperation with efforts to institute such a board approved program and shall have been determined by the board not to be a feasible candidate for rehabilitation.”

In Matter of Ramroop v Flexo-Craft Print, Inc., 11 NY3d 160, 866 NYS2d 586, 896 NE2d 69 (2008), the Court of Appeals upheld the Board’s determination that injured workers who are precluded from participating in board approved rehabilitation programs by virtue of their immigration status are not entitled to benefits under Section 15(3)(v), notwithstanding the provisions of Workers’ Compensation Law Section 17, which provides that “compensation under this chapter to aliens not residents or about to become nonresidents of the United States or Canada, shall be the same in amount as provided for residents.”  The Ramroop decision effectively provides unequal compensation based on immigration status, in direct contradiction of the purpose of the Workers’ Compensation Law, which is intended to protect and compensate injured workers.  Moreover, the very workers most likely to be maimed by industrial machinery, and most in need of the protection offered by WCL Section 15(3)(v), are the ones excluded from coverage under this decision.

The WCA supports an amendment to WCL Section 15(3)(v) to overrule the Ramroop decision and provide proper and adequate compensation for severely injured workers, regardless of immigration status.

6.         Amending WCL Section 35(3) to reduce the threshold for Safety Net consideration from an 80% loss of wage earning capacity to a 50% loss of wage earning capacity.

The 2007 amendments to the Workers’ Compensation Law imposed time limits on permanent partial disability benefits.  Prior to these reforms, workers who were permanently partially disabled from work could receive benefits for the duration of their disability, unencumbered by artificial time restrictions.  The 2007 legislation also provided a “safety net” for workers who suffered more than an 80% loss of wage earning capacity.  Under the safety net provisions, within one year of his or her benefits being exhausted, the injured worker may apply to the Board for re-classification as industrially totally disabled, showing “extreme hardship.”

To date, the Board has yet to issue any meaningful guidance regarding the evaluation of loss of wage earning capacity.  As a result, the workers’ compensation system continues to rely on medical impairment determinations based on the 1996 Workers’ Compensation Board Medical Guidelines, which divide disability into “mild” (25%), “moderate” (50%), “marked” (75%) and “total” (100%).  Under this regime, it is unlikely that any injured worker will reach the 81% threshold for safety net eligibility.  Moreover, many workers who are deemed “50% disabled” under the present system are not employable in a meaningful fashion.  New York State Department of Labor statistics demonstrate that most workers who are found to be permanently partially disabled with at least a 50% disability do not return to work in any capacity, and other evidence indicates that most of such workers qualify for Social Security disability benefits due to unemployability.  It is therefore clear that the 81% threshold is too high to provide meaningful protection to workers whose benefits will be terminated through the 2007 caps on permanent partial disability benefits.

The WCA supports an amendment to WCL Section 35 that would create eligibility for the safety nets with a finding of a 50% loss of wage earning capacity.

ADMINISTRATIVE PROCEDURE LEGISLATION

1.         S7900 – the Reporter Bill.

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.

2.         Amending WCL Section 24 to provide for attorneys fees in cases involving medical treatment

For injured workers, access to benefits in an increasingly complex workers’ compensation system depends largely on the availability of representation.  Within the system, claimant attorney fees are awarded by the Workers’ Compensation Board as a lien on the awards made by the Board.  “Medical only” claims, in which no indemnity benefits are payable because there is no wage loss or “schedule loss” award due, are the largest category of claims in which workers lack representation.  This shortfall is due to the Board’s interpretation of its authority under WCL Section 24 to consider only the value of indemnity benefits as part of an “award,” and to limit attorney fees to cases in which an indemnity award is entered.

This approach is both archaic and deprives injured workers of access to benefits by depriving them of representation that would otherwise be available.  In 2010, the value of medical benefits paid in workers’ compensation claims exceeded the value of indemnity benefits paid – yet the value of medical benefits was wholly excluded from consideration by the Board in awarding attorney fees.

The New York State Department of Labor, in its Report of the Commissioner on Return to Work, recommended that the Board provide compensation to attorneys in medical only cases.  The Commissioner observed that the lack of representation deprives injured workers of needed benefits and disadvantages them in the system.

The WCA supports an amendment to WCL Section 24 that would permit and encourage the Workers’ Compensation Board to consider the value of medical benefits in workers’ compensation cases and to award claimant attorney fees in connection therewith.

3.         Amending WCL Sections 23 and 24 to provide for the provision of attorney fees to claimant attorneys in connection with appeals to the Appellate Division.

Workers’ Compensation Law Section 24 provides that a claimant’s attorney in a workers’ compensation case may only be paid for representation before the Workers’ Compensation Board when the Board awards a fee, and that such fee is a lien on the award.  The attorney may not charge or receive a fee directly.  Pursuant to WCL Section 23, appeals from decisions of the Workers’ Compensation Board are heard by the Supreme Court, Appellate Division, Third Judicial Department.

Although the Third Department hears appeals in workers’ compensation matters, representation in connection with such appeals is not representation before the Board.  In a letter dated November 22, 2010, the Chair of the Workers’ Compensation Board implied that the Board may be of the opinion that it retains jurisdiction over attorney compensation related to matters pending before the Appellate Division.  While those matters are concerned with workers’ compensation issues, they are by definition not before the Board (from whose decision the appeal was taken), but rather are before the Court.

The ambiguity created by the Board’s assertion of potential jurisdiction over attorney fees in appeals to the Appellate Division has had a chilling effect on the ability of injured workers to pursue appeals from the Board’s decisions.  Attorneys in such matters must either prosecute appeals pro bono, or reject the Board’s apparent interpretation of the statute and charge a fee to the injured worker – many of whom can ill afford the cost of an appeal.  Insurance carriers, however, suffer no such disadvantage.

The WCA supports an amendment to WCL Sections 23 and 24 that would clarify the Board’s jurisdiction over attorney fees in appeals to the Appellate Division and the Court of Appeals and provide for payment to claimant attorneys in such matters.

4.         Amending WCL Section 162 to extend the time frame for filing WTC-12 registration forms.

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 deadline to file a WTC-12 form expired on 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.  Unfortunately, hundreds of these workers did not file registrations before the deadline and are now denied benefits.

The WCA supports an amendment to WCL Section 162 to extend the deadline to file WTC-12 registration forms so that those who participated in rescue, recovery and clean-up operations at the World Trade Center and related sites can register and preserve their right to claim workers’ compensation benefits.

5.         Enacting regulations that prohibit unfettered cross-examination of injured workers and health care providers in the absence of contrary evidence submitted by the employer or carrier.

The Appellate Division has held that “in the absence of a viable difference in the expert opinions expressed in the medical reports, no prejudice accrues as a result of the denial of the right to cross-examine a medical expert.” Bryan v. Borg-Warner Automotive, 293 A.D.2d 856, 742 N.Y.S.2d 393 (3rd Dept. 2002); see also, Robideau v. Van Rensselaer Manor, 56 A.D.3d 866, 866 N.Y.S.2d 457 (3rd Dept. 2008).  The reason that there is no right to cross-examination in the absence of a joined issue is that the Workers’ Compensation Board has no right to fashion its own medical opinion. If there is only medical opinion in the record, then the Board’s decision must be in accord with the substantial evidence. Cerami v. City of Rochester School District, 82 N.Y.2d 809, 604 N.Y.S.2d 543 (1993); see also, Findling v. Comm. General Houses, 288 A.D.2d 798, 720 N.Y.S.2d 630 (3rd Dept., 2001).

Although the Board has exposure to cases involving medical questions and a “certain expertise” in such matters, this expertise is to be employed in weighing and balancing evidence with appropriate regard for its probative character, not in fashioning the Board’s own medical opinion.” Doersam v. Oswego Co. Dep. of Soc. Servs., 171 A.D.2d 934, 566 N.Y.S.2d 978 (3rd Dept., 1991); Smith v. Bell Aerospace, 125 A.D.2d 140, 512 N.Y.S.2d 541 (3rd Dept. 1987). The Board may not fashion a medical opinion of its own. Lincoln v. Con Ed., 46 A.D.3d 1176, 848 N.Y.S.2d 418 (3rd Dept., 2007); Sullivan v. Sysco, 199 A.D.2d 849, 606 N.Y.S.2d 77 (3rd Dept., 1993); Knouse v. Millshoe, 260 A.D.2d 948, 689 N.Y.S.2d 266 (3rd Dept., 1999).

Notwithstanding the law set forth by the Appellate Division, the Board has often concluded that one of its rules, 12 NYCRR Section 300.10, requires it to grant requests for cross-examination even in the absence of contrary evidence.  This approach encourages frivolous and dilatory litigation, delaying the payment of benefits to injured workers and imposing an unnecessary burden and cost on the Board.

The WCA supports an amendment to 12 NYCRR Section 300.10 that would permit the Board to deny a request for cross-examination where no contrary evidence is submitted.

6.         A01972/S3056 – expanding the availability of medical care for psychological injury and disability by authorizing treatment by certified social workers.

Injured workers who require psychological or psychiatric care have few available resources.  There is an extremely limited number of psychiatrists who are “coded’ by the Workers’ Compensation Board and who are willing to accept new patients.  Factors which contribute to this situation include inadequate reimbursement for treatment under the workers’ compensation fee schedule and the high controversy rate associated with claims for mental illness.  Although the availability of psychiatric care is somewhat expanded by existing statutory authorization for treatment by licensed psychologists, referral from a medical doctor is required for such treatment and the same disincentives that discourage psychiatrists from participating in the workers’ compensation system affect psychologists.

Authorizing certified social workers to provide treatment in workers’ compensation cases under the same ground rules that are applicable to psychologists would expand the availability of medical care for work-related psychological injuries.  In addition, social workers are uniquely suited to address the secondary consequences of work-related injury and disability on family dynamics.

The WCA supports A01972/S3746.

7.         Enacting regulations that govern employer and carrier relationships with diagnostic test networks, notice of such relationships, quality care standards, and provision of diagnostic test reports.

The 2007 amendments to the Workers’ Compensation Law authorized employers and insurance carriers to enter into contracts with diagnostic test networks for the performance of radiological and other diagnostic tests in workers’ compensation cases.  The amendments were intended to provide cost savings to employers and carriers while preserving quality of care for injured workers.

  Five years of experience under the statutory amendments has highlighted the need for additional regulation under the statute.  Among other matters, provision must be made for (1) notice of the required use of the employer or carrier’s network to the injured worker and the treating physician(s); (2) proximity of the test facility to the injured worker’s residence; (3) provision of reports and films to the injured worker and the treating doctor; and (4) filing and public disclosure of contracts between employers, carriers, and diagnostic test facilities.

The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to employer and carrier diagnostic test networks.

8. Enacting regulations that govern the Board’s use of impartial specialists, guaranteeing the impartiality of such specialists and providing oversight.

The Workers’ Compensation Law authorizes the Workers’ Compensation Board to utilize impartial specialists in cases involving questions of diagnosis or causal relationship.  The Board’s use of such specialists is, however, wholly unregulated.  This has called into question the impartiality and qualifications of physicians selected by the Board to serve as impartial specialists, undermining the confidence of the parties in the system.

This oversight should be remedied with regulations addressing, among other items, (1) the circumstances in which impartial specialist examinations are appropriate; (2) the circumstances in which the authority to direct such examination may rest with a WCL Judge or with the Board; (3) qualifications to serve as an impartial specialist and periodic re-certification of same; (4) the mechanism for a party to object to the direction for an impartial specialist examination or the qualifications or appointment of a particular impartial specialist; (5) the conduct of impartial specialist examinations; (6) filing and service of impartial specialist reports; (7) cross-examination of impartial specialists.

The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to the use of impartial specialists.

9.         Adopting regulations governing “independent medical examinations,” delineating permissible relationships between medical consultants, IME vendors, and carriers, establishing data tracking for the reports of such physicians, and strengthening and clarifying existing regulations regarding IME examinations and reports.

The use by employers and insurance carriers of “independent medical examinations” is pervasive in the workers’ compensation system.  Reports resulting from these examinations are used to reduce and deny medical and indemnity benefits to injured workers.

The IME process has historically been the source of substantial abuse by employers and insurance carriers.  In 2000, the Workers’ Compensation Law was amended in an effort to remedy that abuse, and the Workers’ Compensation Board subsequently issued regulations in furtherance of the statutory amendment.  Although the statute and existing regulations have been beneficial, the use of “IME vendors” continues to result in the submission of inaccurate and sometimes fraudulent IME reports.

Among other matters, provision must be made to address (1) relationships between insurers and IME companies; (2) disclosure of such relationships; (3) relationships between IME companies and IMEs; (4) disclosure of such relationships; (5) permissible fees for the conduct of independent medical examinations; (6) restriction of the application of the regulations to employer and carrier consultants; (7) data collection regarding the outcome of IME examinations by IME, IME company, and carrier; (8) service and filing of IME reports.

The WCA calls on the Workers’ Compensation Board to promulgate and issue for public comment regulations related to the conduct of independent medical examinations.

THIRD PARTY LITIGATION

1.         Amending Insurance Law § 5102 to define basic economic loss as the maximum monthly workers’ compensation benefit rate.

Insurance Law § 5102 defines “basic economic loss” as wage loss up to $2,000 per month.  Workers’ Compensation Law § 29(1-a) provides that a workers’ compensation carrier has no lien on a personal injury recovery to the extent that its payments are equivalent to basic economic loss.  This provision is intended to assure that those who are injured in work-related motor vehicle accidents are not disadvantaged by the creation of liens that would not otherwise exist.

The current weekly workers’ compensation benefit rate exceeds $2,000 per month for some injured workers.  As a result, these workers are subject to partial workers’ compensation liens.  Given the various relationships between the Workers’ Compensation Law and the No-Fault Law, it is logical and reasonable to co-ordinate the definition of basic economic loss with the maximum workers’ compensation benefit rate.

The WCA therefore supports amending Insurance Law § 5102 to define basic economic loss as the maximum monthly workers’ compensation benefit rate.

2.         Amending WCL § 29 to limit workers’ compensation liens to matching categories of personal injury recovery.

Workers’ Compensation Law § 29 permits a worker who is injured by the negligence of a third party to accept workers’ compensation benefits from his or her employer and also pursue a personal injury lawsuit against the tortfeasor.  The law further provides the workers’ compensation carrier with a lien on “any” recovery from the tortfeasor, regardless of whether the recovery from the tortfeasor bears any relation to the workers’ compensation benefits paid.

It is patently unjust and inequitable to afford the workers’ compensation carrier a lien for benefits it paid against an unrelated personal injury recovery.  Workers’ compensation benefits are payable solely for lost wages and medical expenses, while a personal injury recovery may include payment for pain and suffering not covered under the Workers’ Compensation Law.  Providing the workers’ compensation carrier with a lien against a personal injury recovery to the extent that such is for wage loss or medical expenses is logical and serves to prevent duplication of benefits.  However, providing the workers’ compensation carrier with a lien against a personal injury recovery for pain and suffering that was not the subject of the workers’ compensation claim unjustly enriches the compensation carrier at the expense of the injured worker.

The WCA supports an amendment to WCL Section 29 that limits the compensation carrier’s lien to those portions of a personal injury recovery that compensate wage loss or medical expenses.

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