Montemaggi Law - Workers Compensation Attorneys

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23 Mar 2015

History of Workers' Comp

Posted by Paul J. Antonowicz

I recently came across the blog entry at the link below which brought to my mind the importance of understanding why we have Workers' Compensation laws. The horrific working conditions of the nineteenth century brought about political instability, terrible injuries and uncertainty for everyone. This is why it is so important to reign in the current Workers' Compensation "reforms" so that they do not result in a return to the bad old days. Civilization and stability are good for everyone.

http://www.insurancejournal.com/blogs/academy-journal/2015/03/19/360273.htm

20 Mar 2015

NPR/Propublica Chart on WC changes by state

Posted by Paul J. Antonowicz

Below is a link to an interesting interactive chart that shows recent changes in Workers' Compensation laws by state. While I am not sure it is as easy to characterize these changes as is done in the chart (for example, in NY there were some types of benefits reduced and others increased), you can click on each state to see the exact changes.

 

http://projects.propublica.org/graphics/workers-comp-reform-by-state?state=

19 Mar 2015

A Brief Explanation Of Mental Health Coverage Under Workers' Compensation in New York

Posted by Paul J. Antonowicz

Recently, changes were propsed to the Workers' Compensation system in Connecticut which would allow for coverage of PTSD for first responders.  It reminded me that we already have broader coverage for such injurioes in New York.

New York law allows for coverage of causally related mental health conditions with certain exceptions such as psychological conditions that result from normal workplace stress or lawful employment actions by an employer.

This means that if you witness a traumatic event or are assaulted or have legitimate mental health ramifications from a work injury or even suffer a purely mental health injury from harassment or some unusual or extreme event, it can be covered.  These types of cases are not easy to litigate and are usually fought by the employer and insurance company.

However if you suffer stress because your job is difficult or demanding or your boss is a little mean or you are legitimately disciplined or legitimately fired, you would not have a case.   The coverage is limited to try and weed out cases that are simply filed for spite or where the individual suffers from an underlying mental health condition.

17 Mar 2015

Coverage for mental health issues

Posted by Paul J. Antonowicz

Below is a link an interesting article about some proposed changes to the Workers' Compensation system in Connecticut. It would allow for coverage of PTSD in limited circumstances. New York law allows for coverage of causally related mental health conditions with certain exceptions such as psychological conditions that result from normal workplace stress or lawful employment actions by an employer.

http://www.claimsjournal.com/news/east/2015/03/17/262339.htm

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.]

16 Mar 2015

The Dangers For Business When Workers' Compensation Gets Drastically Cut

Posted by Paul J. Antonowicz

 

http://www2.ljworld.com/news/2015/mar/16/kansas-workers-comp-changes-raise-lawsuit-fears/

The above link is to an article regarding the possibility of lawsuits arising from severe curtailment of Worker's Compensation benefits in Kansas.  The concern is that under the "grand bargain" that lead to Workers' Compensation benefit systems workers' rights to sue their employers were restricted in exchange for a guarantee of sufficient benefits.  If those benefits are reduced enough, workers essentially get nothing in exchange for being unable to sue.  The issue is whether the law would be considered unconstitutional if benefits drop to low.  If a court were to make such a finding, it would open businesses up to direct lawsuits that could cost millions of dollars and leave injured workers who cannot prove negligence without recourse for their injuries, dumping them onto public benefit programs and, again, shifting the cost of  injuries to taxpayers.

 

13 Mar 2015

Responsible Employer Leaves State of Wisconsin Over So-called "Right to Work" Law

Posted by Paul J. Antonowicz

Kudos to this responsible employer. Right to work is really "right to get paid low wages" "right to work in unsafe conditions and get injured". It is a misleading name for these laws because they are all about eroding workers' rights , not giving them rights. Follow the link below.

http://www.dailykos.com/story/2015/03/10/1369994/-First-WI-casualty-of-Right-to-Work-Major-company-moving-to-Minnesota#

12 Mar 2015

Watch Out! Employers May Be Trying a New Trick To Control Your Benefits

Posted by Paul J. Antonowicz

I am posting a disturbing article about proposed legislation in Tennessee that would allow employers to "opt-out" of the official Workers' Compensation system. While cloaked in language that this would some how supposedly benefit injured workers, it appears to be an attempt to cut employer costs at the expense of injured workers. As pointed out in the article, it would remove employer's from oversight and create a situation where injured workers are almost entirely at the mercy of their employers. Of course, the fallacy of high and/or out of control costs is used to justify this idea. Apparently Texas and Oklahoma have already implemented a system like this. It appears that there is an effort to spread this to other states. It appears that the burden of paying for what these employers get out from under would fall on the taxpayers in general and the premium costs for businesses who remain within the system would go up. I also question why writing your own policy would save money for a company unless it offers much decreased benefits since the premiums are generally set taking into consideration the nature of the industry, the claims history and not every premium is the same.

 

09 Mar 2015

OSHA Adds its voice on erosion of workers' protections

Posted by Paul J. Antonowicz

Here is a link to an OSHA report discussing the same issues as the NPR/Propublica report in the last blog entry. The most troubling part of this erosion of protections for injured workers is that the taxpayers end up subsidizing the expense of workplace injuries to the benefit of employers who escape responsibility for the sometimes devastating effect of these injuries.

http:www.dol.gov/osha/report/20150304-inequality.pdf

 

04 Mar 2015

The Dismantling of Your Rights; You do have a voice.

Posted by Paul J. Antonowicz

Propublica.org and NPR recently published an article about changes in Workers' Compensation benefits nationwide. The article underscores a growing decline in Workers' Compensation benefits and the growing inadequacy of those benefits. The article is available to review at http://www.propublica.org/article/the-demolition-of-workers-compensation. I encourage anyone reading this to review the article.

The key points made in the article are:

1- Some states have cut benefits to the point that workers are virtually certain to plummet into poverty. In New York, this was already the case for some workers before the 2007 reforms. The 2007 changes in the law actually increased maximum benefits but implemented a cap that is likely to have devastating effects of workers who are unable to find jobs with their disabilities.

2- Getting medical benefits has been made more difficult. This, at least in some ways, has been the result of the implementation of the Medical Treatment Guidelines in New York. And the business community (or at least the insurance companies) are continuing to seek ways to further limit access to benefits solely to save costs at the expense of injured workers'.

3- All of the cuts that have already taken place and further cuts in benefits being sought are being justified by claims of "out of control" or high costs. However, this is simply untrue. The Propublica/NPR story highlights the savings already had by industry which seriously calls into question claims that costs are "out of control".

4- The cost of all these cuts ends up cost you, I and other taxpayers because these costs get picked up by programs like Medicare, Medicaid and Social Security Disability. Meanwhile, the insurance industry experiences increased profits at the expense of injured workers and taxpayers.

The reforms that have already been passed in New York are, on balance, not that unreasonable from an objective standpoint. There certainly are some problems from the perspective of both sides that could be tweaked. But, we have to guard against further cuts in benefits that would erode benefits to the point that we reach the depths of inhumane and immoral treatment of injured workers in other places that are described by this article. I urge you to contact your state legislators and senators to speak out in defense of your rights and to stop any further unfair erosion of those rights.  If we say nothing, we will always lose.

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