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17 Mar 2015

Business Council 2015 Agenda for Workers' Compensation

Posted by Paul J. Antonowicz

The NYS Business Council has released its legislative agenda for 2015.  It includes a number of proposals for Workers' Compensation "reforms"  which it describes as having the following goal:

"6. Enact statutory and regulatory workers compensation reforms that will lower employer costs while preserving quality care for workers injured on the job."

Below are the proposals with my translation for the layman:

Workers’ Compensation The costs of the state’s workers’ comp system continue to grow year to year, due the more than doubling of maximum benefits and slow implementation of cost-saving reforms. Additional reform measures are needed to ensure that intended cost savings are achieved. The Business Council:

[Translation: While a matter of perspective, it is simply untrue that cost savings have not been attained.  Insurance premiums for employers initially dropped close to 25% after the 2007 reforms and remained below 1999 levels as of 2102. See the report by NYS at this link: http://www.wcb.ny.gov/content/main/TheBoard/Post2007Reform.pdf.]

Supports updating the Workers’ Compensation Board’s (WCB) scheduled loss of use awards impairment guidelines.

[Translation: Cut, cut, cut. While it is true that the guidelines for scheduled loss of use have never been very clear or adequately explained how to arrive at a percentage and could use some clarification and updating, I am leary of the fairness of anything The Business Council would support.  the rumblings I have heard are that the goal is to eliminate certain schedule loss cases entirely.]

Supports mandating the use of panel providers for the first ninety days of medical treatment.

[Translation: Hire doctors beholden to the emploters and insurance companies who will say that no one has any significant disability and release everyone to return to work as quickly as possible without regard to safety or any consideration other than money.  This is an exaggeration and not always the case.  But, my experience with the current system that allows for some employers to driect treatment for the first 30 days is that it is like putting the cat in charge of the canary or your kids in charge of the cookie jar.  The care given can be ok, but it often is minimal.  But the real problem comes when you start to look at the legal issues that are impacted by the medical opinions.  Frequently, these doctors give opinions on disability that are clearly designed to please the employer and not based on actual capabilities or medical considerations.  This impacts how much an individual is paid while out of work.]

Supports repealing the Aggregate Trust Fund Deposit mandate on commercial workers’ comp carriers.

[The goal here is to lower settlement amounts.  Although not explicitly stated, the goal of implementing the mandatory Aggregate Trust Fund payments, which involve paying an estimated present value of future monetary benefits to a fund which then pays the claimant, was to encourage settlement of cases at reasonable amounts.  In 1996, it became possible for claimants to waive future benefits in exchange for an upfront payment.  Unfortunately, insurance carriers decided that they generally would not pay more than 5.5 years worth of the current benefit level to close cases, regardless of their future liability or present value of the future benefits.  This resulted in two poor outcomes from the perspective of the system.  First, many cases that could have settled simply didn't because the money wasn't enough.  Second, some claimants in dire financial straights accepted ill-advised settlements.  The point of wanting to get rid of this is to save money, of course.  The effect will be to drive some claimants into poverty and onto public assistance programs.]

Supports continuing in the WCB process “re- engineering” process, to ensure that the proposed changes benefit employers.

[This involves administrative/procedural changes that I suspect they mean exactly what they say.  Hopefully, the changes would simplify procedures to everyones benefit.]

Supports either de-indexing or adoption of regional indexing for workers’ comp program maximum weekly benefits, or elimination of high and low-wage outlier sectors from index calculation.

[This is a blatant attempt to take-back half the bargain made in the 2007 change to the law without giving back the other half.  Obviously, this would be terrible for injured workers and patently unfair.  Part of the 2007 changes was the implementaion of caps or limits on permanent partial disability benefits in exchange for increased maximum payment rates and the indexing of those rates.  The indexing of the rates is extremely important because before 2007, the rates had a flat maximum that would require specific action by the legislature to change.  The last change before 2007 was in 1992 which lead to an abismally low maximum rate since it was never looked at again.]

Supports allowing apportionment of death benefits in cases where a non-compensable disability/injury is the basis of apportionment.

[Again, this is an attempt to cut costs to the detriment of the estate/survivors that are killed while working for employers.  So if someone has a heart attack triggered by work activities and dies as a result of that heart attack, they want to whittle down the benefit received by the survivors if the person had, for example, high blood pressureb or some other heart disease.  For shame.  While this may seem to make some sense in extreme cases, the bottom line is that the employee died as a result of their work.]

Supports creating a rebuttable presumption of achievement of maximum medical improvement at two years from the date of injury, or alternative trigger for PPD classifications.

[This is an attempt to implement the caps as quickly as possible without regard to the individual circumstanmces of each case.  This seems unnecessary because if the insurance compant reps are doing their job, they will obtain the necessary medical opinion that a case is ready for classification (a finding about permanent disability).  This is an attempt to create an automatic system because they are incapable of keeping track of their claims.]

Opposes any rollback of 2007 cost-savings measures, such as restrictions or delays in permanent partial disability classifications, restrictions on the use of pharmaceutical networks, or others.

[They want to take back any benefit to injured workers from the 2007 changes to the law, but not lose any of the benefits they gained. 'Nuff said.]