New York Injured Workers' Alliance

NYS WCB GOES "ROGUE"

Troy Rosasco — Fri, 07 Oct 2011 17:04:06 -0500

NY INJURED WORKERS’ ALLIANCE CALLS FOR OPPOSITION TO WCB PROPOSAL TO INITIATE ELECTRONIC RECORDING

Two years ago in October 2009, the Senate Labor Committee under the chairmanship of George Onorato conducted a hearing on the WCB proposal to introduce electronic recordings of hearings. The Committee concluded that the Board’s action contravened WCL §122 which:

“requires the use of stenographers to record and transcribe the hearings and to certify to the accuracy of the hearings transcripts. Previously in 2006, the Legislature rejected an effort by the Workers’ Compensation Board to amend section 122 to allow the electronic recording of hearings.” [2009-2010 Report of the New York State Senate Standing Committee on Labor, p.6]

Notwithstanding the Senate Labor Committee’s admonishment, the WCB

“went ahead and signed a 3-year contract for $916,960 to use electronic recording at at workers’ compensation hearings throughout the state. The Senate responded to the Committee’s findings that the digital-audio program was not allowed without legislative authorization by recommending that $916,160 be cut from the proposed state budget,” [Report, p. 7]. As it turned out, the contract was with a Canadian company!!

In this instance, the WCB assumed budget authority equaled legal authority. Nearly $1 Million does not excuse bad behavior even for a state agency. Rogue conduct may be fashionable elsewhere but not in NYS.

The WCB has published proposed regulations in the State Register to accomplish by regulation that which the Legislature clearly has opposed and, in fact, determined to be contrary to the law. What part of “no” does the Board not understand!!!!

This is merely one more example of an agency that has gone “rogue” to accomplish its own agenda. This action is not unlike the WCB’s determination to make the new Medical Treatment Guidelines retroactive to time immemorial. And don’t forget that the WCB still has a “MAP” up its tricky sleeve.

JOIN NYIWA IN OPPOSING THIS “ROGUE” EFFORT. SUBMIT YOUR COMMENTS TO THE WCB AND THE STATE REGISTER!!

WCL DEATH TAX!!!!! AN OPINION COLUMN

Troy Rosasco — Fri, 07 Oct 2011 13:33:36 -0500

WCL DEATH TAX!!

By Ron Balter, Louis Dauerer, and James McCarthy

You and Your Client

Have you sensed a bit of unease in attempting to explain to your client the Surviving Spouse offset off WCL §16? “Well,” you might humbly state with your best attorney countenance, “it’s the law.”

Legislative History

The offset provision [50%] on workers’ compensation of WCL §15.3(v) is based upon receipt or qualification for SS disability benefits and terminates the WC disability benefit upon receipt or entitlement to receive old-age SS benefits. This provision raises a question of age discrimination. Together with WCL §16, these reductions are characterized as “reverse offsets” as distinguished from the SS offset where the combination of workers’ compensation and SS benefits are greater the 80%. This latter “default offset” was authorized by Congress in 1965.

Prior to the enactment of the 2007 [WCL 15.3(w)] duration limits on workers’ compensation, the 80% default offset often operated to spur a compromise of the workers’ compensation indemnity rate from total to a partial rate despite evidence of a higher indemnity rate. Commentators observed that the duration limits of the 2007 reform statute “effectively removes this possibility for compromise.” [NYS WC Handbook, 5.52(4)].

In 1981, Congress eliminated “reverse offset” provisions, but grandfathered those in NY and fourteen other states. WCL §16 was enacted in 1977. Among others, the legislative purposes cited: “tax incentives for employers”; “creates jobs”; and “dependents are not without other financial support.” In 1977, the maximum statutory indemnity for a death claim was $125 per week for an Average Weekly Wage [AWW] of $187.50 compared to the 2011 maximum of $772.96.

Effects of the “Reverse Offset”

Recent AWW data [Joint Report of the NYS Insurance Department and NYS Workers’ Compensation Board, (March, 2009, p. 21)] indicates that of 83,830 Claims With First Indemnity Benefits paid in 2007-08, 34,022 [69.1%] were male and 13,841 [28.1%] were female, or a ratio of more than two to one.

Thus, the “reverse offset” disproportionately affects the female surviving spouse likely in a similar ratio. [See Data Below]

DISTRIBUTION OF AWW BY GENDER
JOINT REPORT

RANGE	TOTAL	MALE	PER CENT	FEMALE	PER CENT	UNK
<$224	5431	2776	51.1%	2556	47.1%	99
>$224	29171	14915	51.1%	13581	46.6%	675
$600+	49228	34022	69.1%	13841	28.1%	1365

TOTALS	83830	51713	61.7%	29978	35.8%	2139

Based upon the criteria of WCL §16 [Table 1: Sole Surviving Spouse, no children] the workers’ compensation indemnity reduction ranges from 5% to 50% depending upon the AWW range from $$100 to $200 per week.

The data further demonstrate that 78,339 claims have an AWW in excess of $224, representing 93.5% of the total number of claims potentially subject [in a death claim] to a “reverse offset.” If the AWW is $450 [$300 per week statutory benefit] , a sole surviving spouse [over age 60] with a SS Survivor Benefit of $1200 per month is subject to a “reverse offset” of $138.46 per week [$1200 x 12/52 x .50] or nearly $7200 per year. This represents a 46.15% reduction. In the national debate, this would be characterized as “confiscatory” or a death tax.

Time To Act

It’s been over 30 years since Congress prohibited (and grandfathered) “reverse offsets” and thirty-four since New York passed its legislation. Rescission of New York’s “death tax” is long overdue and the Legislature needs to determine whether WCL §16 has met its purposes. It’s difficult to imagine those goals have been achieved. While death and taxes may be inevitable, they ought not be even more distressing and painful to surviving spouses.

Since the “reverse offset” is by operation of law, the reduction occurs without a hearing on the issue. Due Process is at stake:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].

The "offset provisions" are more than anachronisms. They are punitive and survivors of deceased workers need not be victims. It's time for these provisions to be repealed!!!

NYS AFL-CIO : Guest Editorial on Group Self-Insured Trusts (GSIT's)

NYIWA — Mon, 14 Mar 2011 14:13:30 -0500

Seems to NYIWA the AFL-CIO has hit the nail on the head in plain language. Unless the new Governor and legislative leadership fully appreciate the financial finagling that has plagued the trusts, taxpayers and innocent participants will pay the price.

PONZI, MADOFF and WORKERS’ COMPENSATION

Somebody (over a decade ago) made a decision to permit a proliferation of self-insured trusts to be created in lieu of the requirement to have an insurance policy providing workers’ compensation before a business could operate. For some years there had been a couple of such trusts successfully operating in New York and various schemers recognized opportunity when it presented itself. The opportunity, of course, occurred simultaneously with the collapse of the self-insured trusts for workers’ compensation insurance in almost every other state in the union. The structure and the supervision of the group trusts in New York led to abuse. In one particularly outrageous case, a trust administrator who had been thrown out of Pennsylvania set up shop in New York without further adieu. He also published an opinion piece in a professional journal touting all the money to be made in this emerging industry.

Because the group trusts are not legally insurance entities, the supervision of them fell to the Workers’ Compensation Board which was ill equipped to keep an eye on them. Some trusts were created in a proprietary fashion by brokers who set them up in order to maximize their own personal gain from the trusts. One of the typical tricks was to undervalue potential losses from claims so as to bait the trusts with low premiums for participants. Another trick was to declare large dividends for group members without regard for building up reserves. These practices were common knowledge in New York State among interested parties. Many trusts soon were insolvent. Many failed to contribute necessary assessment payments to maintain the solvency of the entire industry. The Workers’ Comp Board deferred required assessment payments to the insolvent trusts, some of which were collapsing on the spot. In one instance, a particularly notorious and politically connected to a broker and trust administrator had his license to administer trusts, (but not his broker’s license) revoked by the Workers’ Comp Board. The assets of the plan under supervision failed to be recovered. The solution to this debacle is still ongoing albeit very slowly.

Unpaid assessments are piling up, and no real effort at collection has been initiated. Injured workers have been waiting for another shoe to drop if their cases were initiated against an employer participating in these “trusts”. The latest turn is an Article VII bill, S.2807A/A.4007A which contains in part G, language that causes the debt incurred by the defaulted trusts to be assumed by every other group trust, individual self insurer, private and public workers’ compensation carriers, as well as by the special funds of the industry. In other words, the special interests want every other entity which paid inflated workers’ compensation premium assessments because of the group trusts to now pick up the tab for the entire remaining debt. This debt could be well above a billion dollars when all is said and done.

In the most recent development, insurers statewide are unhappily opening envelops announcing their share of an industry-wide additional assessment; funding the uninsured employers’ fund to make up for the shortfall resulting, in large part, from the insolvency of the self-insured group trusts. The hit is estimated at some $30 million.

Tunnel Vision - Another Illness Plaguing the New York Workers' Compensation Board

NYIWA — Tue, 07 Dec 2010 19:36:10 -0500

Having been previously diagnosed with “lameduckedness”, the New York Workers’ Compensation Board [WCB] appears to have incurred a new malady --- tunnel vision !

Among others, the promise and public policy underlying development and implementation of New York’s New Medical Treatment Guidelines [MTG] were:

Medical Care and treatment required as a result of a work-related injury, should be focused on restoring functional ability required to meet the patient’s daily and work activities and return to work, while striving to restore the patient’s health to its pre-injury status in so far as is feasible.

Those same General Principles declare that, under the MTG's, workers’ compensation claimants are patients, acknowledging their rights as equal to those of all insurance subscribers in need of medical care and treatment.

The Guidelines, which contain quality standards for medical care of injured workers, should encourage accelerated delivery of quality medical services to injured workers and reduce disputes and costs. [ See Transmittal letter from Superintendent of Insurance, 12/07/07]

“Putting medical treatment guidelines in place will mean injured workers get faster and more effective medical care at a lower cost to employers,”Dinallo said. “These guidelines will standardize treatments so injured workers get quality and appropriate care for their condition. Without guidelines, disputes and inappropriate treatments can lead to higher cost but not better care. [Department of Insurance, Press Release, 12/07/07]

However, just three years later, the promise and public policy did not anticipate the kind of “tunnel vision” that the WCB would apply upon writing regulations, interpreting, and implementing the Medical Treatment Guidelines under its Subject Numbers [a/k/a “fiats” ]. Check this out directly from the WCB web site:

If a Workers' Compensation Law Judge had previously rendered a decision authorizing ongoing or symptomatic treatment, would the treatment have to follow the Medical Treatment Guidelines?
Yes. The Medical Treatment Guidelines will apply to cases with orders for ongoing or symptomatic treatment. If such treatment is not consistent with the Medical Treatment Guidelines, the Carrier may object. If treatment exceeds the amount recommended under the Guidelines, the treating medical provider must show that there is a need for continuing treatment through the variance process.

Ugh!! What may have been a clear interpretation by the WCB to apply the Medical Treatment Guideliness to all claims, regardless of injury date, has mushroomed into wholesale conflict and confusion. Despite strong objections from the state AFL-CIO and Medical Society of the State of NY [MSSNY], the WCB’s implementation of the guidelines has resulted in almost a universal chorus of complaint.

Across the state, attorneys are reporting dozens of calls from claimants and medical providers on a daily basis seeking assistance in negotiating medical issues through the WCB’s torturous “variance” process. Worse, due to retroactive application of the MTGs, claimants and physicians are experiencing interruption of existing medical treatment plans previously authorized by a judge or carrier or pursuant to statute. A recent communication from the an insurance carrier advised:

This injury is now over two years old and [patient] continues to receive…treatment. Based on the NYS Medical Treatment Guidelines no further treatment is approved. We trust you understand our position. Thank you.

Thank you, indeed! “Trust”??! A workers’ compensation patient requiring medical care to continue working (and was previously promised such medical care by a Judge as part of the "deal" closing his case) must now be cleared through the “variance” process to maintain his/her capacity to work. Trust??!

The objective and goal to reduce disputes and speed deliver of medical treatment is replaced by the continuing necessity to obtain approvals for treatment previously authorized. Bureaucratic absurdity in it's finest hour!

Many are urging legal action against the WCB to rectify its “tunnel vision.” Such may be the antidote or “variance” required to cure the malady and restore the promise and public policy that was supposed to guide the MTG's.

The existing statutory provision WCL §13 states:

The employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment...necessitated by the injury of an employee for such period as the nature of the injury or the process of recovery may require..."

The statute seems pretty clear to us. ( Also see Matter of Stajanov [AD3d, filed April 1, 2010] where the Court found the WCB could not trump it's interpretation of statutory construction with a subsequent regulation).

We can perhaps understand applying the new guidelines prospectively to all injuries on or after 12/01/2010. But to apply them to injured workers who have made life decisions based upon the Board's own prior promises of medical care in cases that can be 20 years old or more and were part of a legally negotiated arms length bargain - well, that's just cruel and unfair.

Shame on the New York Workers' Compensation Board for this fiasco!

Thanksgiving (?) News from the New York Injured Workers' Alliance (NYIWA)

NYIWA — Tue, 23 Nov 2010 17:41:48 -0500

BUSTED SELF-INSURED BUSTED AGAIN FOR IMPROPER POLITICAL CONTRIBUTIONS

A forensic audit submitted to the WCB on 09/21/10 revealed that Health Care Providers Self-Insurance Trust [HCPSIT] channeled $900,000 to the Health Care Providers PAC between 1995 and 2008. The trust was put out of business by the agency on July 1, 2009.

A New York Workers' Compensation Board spokesperson stated that it had issued oral and written warnings to HCPSIT as early as 2004 that its political activities violated state law. No comment was made as to the Board’s subsequent actions over the five-year span or whether the Board informed other agencies concerning its findings.

In God We Trust, All Others Pay Cash...

IMPLEMENTATION OF TREATMENT GUIDELINES PROSPECT DIFFICULTIES FOR PHYSICIANS

The Medical Society of the State of NY [MSSNY] and the state AFL-CIO challenged the WCB’s intent to apply the newly adopted medical treatment guidelines effective 12/01/10 to all claims regardless of when they occurred or the date of accident.

The two organizations pointed to the disruption of existing and approved treatment plans and protocols and called upon the WCB to apply the new guidelines only to claims after the effective date to avoid overloading the newly created “variance” appeal process (see "Variance" form here). MSSNY characterized the Board’s plan as one that will create “bottlenecks” in the system requiring treating physicians to revamp existing treatment plans.

The WCB’s spokesperson indicated the agency is adamant and intends to apply the guidelines to all claims. It appears the Board continues its headlong determination not to hear any criticisms, suggestions, or complaints.

It’s always good to be correct 100% of the time...

CONGRESS INQUIRES ABOUT STATE COST SHIFTING WC TO FEDERAL SOCIAL SECURITY DISABILITY PROGRAM

A Congressional subcommittee [Workforce Protection] of the House Labor Committee has launched an inquiry into cost-shifting from state workers’ compensation programs to Social Security and Medicare.

One mechanism cited by critics was the AMA whole person impairment process adopted in many states. Witnesses, including the Iowa State Workers' Compensation Commisioner, testified that the AMA guides were developed in “near secrecy” and have become a means for a non-governmental organization’s publication, developed without public comment, to transfer costs to the federal government.

Although invited by Congress, the AMA declined to testify...

Rep. Lynn Woolsey (D-CA) said: “Beginning in the 1990’s, changes in state workers’ compensation laws –brought about by the lobbying efforts of employers and insurance companies – have resulted in stricter eligibility requirements and the reduction in both the amount and duration of benefits, particularly for those workers with permanent partial disabilities. Unfortunately, this grand bargain of the 20th century is not so grand any more, especially for injured workers.”

The cost-shifting prospect of NY’s 2007 reforms effecting duration limits on indemnity benefits was pointed out in late 2006 as rumors of the pending durations surfaced.

So much for history and the grand bargain...Stay tuned.

The Park Street Gang: They Were Blind and Deaf ... Now They Are Lame

NYIWA — Tue, 28 Sep 2010 11:58:49 -0500

Op-ed by James McCarthy, Esq.

While it is essential to sustain a dialogue and cooperative relationship with the New York State Workers' Compensation Board, it is unfortunate that the current administration, as well as its predecessors, have been largely “deaf and blind” to the rights of injured workers. Now, a lame duck administration appears poised to implement “legacy” policies and procedures. Might these actions be about protecting political job at the Board?

Since the 1996 Omnibus Reform Act, the bureaucracy that has settled and propagated itself at the WCB headquarters in Albany (20 Park Street) has created a hegemony over the state’s workers’ compensation system. An entrenched junta of anti-claimant civil servants has continued to impose its vision of a legal system that defies legislative purpose and compromises the rights of injured workers.

Within the last month, Park Street issued its list of items for its Streamlined Conciliation Process after its leadership met with a NYS Bar Committee of claimant and defense attorneys. This list was never discussed with the committee members. At the same time, a proposed draft of regulations surfaced concerning cross-examination procedures, an issue that certainly should have been discussed with the State Bar committee.

This behavior has also been evident recently in the Park Street revision of the procedure for decisions concerning schedule loss of use claims. Without consultation, the WCB gang has determined – by administrative fiat – how to implement permanency benefits without a hearing and in ways that violate existing law.

These documents are in the context of previous intransigent conduct. Despite strong objections from state legislators and their committees, the Park Street gang has spent nearly $1 million for a digital recording system to replace live stenographers; defied the legislature’s interpretation of the right to a hearing; failed to create a process for WAMO settlements; failed to seek advice and counsel from claimant and defense attorneys; diminished the independence of its judiciary; and radically altered the system’s jurisprudence, among others.

Now, with only a few months remaining in the present state leadership, the Park Street gang is preparing a series of “legacy” proposals to encumber the system into the future. These proposals appear as lame as the ducks who author them. It’s axiomatic that bureaucratic cleansings are most thorough upon the succession of the same party to leadership.

This may be the major motivation that surrounds the secrecy that the Park Street gang’s behavior. On one day, it meets with a NYS Bar group to discuss an issue and, on the next, it releases a different set of agenda items. At the same time, the gang is developing regulations for cross-examination without seeking consideration of the attorneys who are to be bound by them. There is no reason to believe the gang does not understand what it is doing. This behavior has typified Park Street’s modus operandi since the mid-1990’s.

Those in the Park Street bureau who may survive in the post-November era will be a signal as to the direction of the new administration. Who guards the guardians?

New York Workers' Compensation Board Receives Long Awaited "Disability Duration Guidelines"

NYIWA — Thu, 16 Sep 2010 14:15:08 -0500

The New York State Insurance Department just released their Proposed "Disability Duration Guidelines" to the New York State Workers Compensation Board along with the Disability Duration Guidelines Transmittal Letter to Chairman Beloten.pdf. This 108 page proposal is the result of nearly three years of work by the "Medical Guidelines Task Force", created by the 2007 Workers' Compensation Reform Law, to implement fair impairment guides in permanent partial disability (PPD) cases.

Our own New York Injured Workers Alliance Treasurer, James McCarthy, Esq., participated on this task force at the request of the New York State AFL-CIO and will be present a Continuing Legal Education Seminar (CLE) on the new Guidelines at the upcoming New York Injured Workers' Bar Association in Albany on October 2, 2010.

Until then, please read the new Disability Duration Guidelines carefully and feel free to post comments below. In addition, bring your questions to the IWBA Conference on October 2nd so that we may benefit from every one's input on this major potential change in the way permanent partial disabilities are determined at the New York Workers Compensation Board. Hope to see you there!

New York Injured Workers' Alliance Remembers 9/11 Ground Zero Victims and Families

NYIWA — Fri, 10 Sep 2010 17:05:33 -0500

The New York Injured Workers Alliance (NYIWA), the common voice for injured workers in New York State, remembers the over 2700 victims (mostly civilian and rescue workers) who perished nine years ago on 9/11/2001 as a result of the terrorist attacks on the World Trade Center. Our ongoing support and prayers go out to their families and loved ones.

In addition, the NY Injured Workers Alliance continues to support and pray for those who were injured or have become sick as a result of their volunteer, rescue, recovery or cleanup work at Ground Zero. They are true heroes and will continue to need our support and assistance with World Trade Center cases at the New York Workers' Compensation Board in the future. God bless you.

The Reign of the New York Workers' Compensation Board Bureaucrats

NYIWA — Fri, 03 Sep 2010 10:00:00 -0500

New 2010 Schedule Loss of Use Proposed Decisions: Idea! - why don't we (the WCB) increase the amount of depositions in some of the most easily resolved cases at the New York State Workers" Compensation Board? That will be our legacy!

So now the Workers' Compensation Board, without any input from either claimant or defense lawyers who are "in the trenches" each day making the system work despite the unnecessary hurdles invented by a "Park Street Albany" cabal, wants to throw another rock in the gears of justice.

The new Proposed SLU Decisions take away the ability of Workers' Compensation Compensation Law Judges (WCLJ's) to "knock heads" and broker fair settlements between the parties, which is the standard in most judicial and administrative adjudicatory systems across the US. The new procedure essentially says: settle directly with the insurance company claims adjuster without court intervention, or you have no choice but to proceed to the time consuming and costly deposition process.

The deposition process before the New York Workers' Compensation Board is widely accepted as an utter failure, hence the need for deposition regulations which are yet to be promulgated. In addition, depositions in SLU cases often times produce wildly unfair decisions (both for claimants and insurance carriers) due to the vagaries of medical opinion and the testimonial competence of the doctor being deposed.

For example, under current Board practice, if a claimant produces an SLU report giving a 25% loss of use of an arm, and the insurance carrier produces a report indicating a 10% loss of use of an arm, the Workers' Compensation Law Judge must choose one finding or the other, even if the Judge believes that a percentage between the two numbers would be a more fair result.

Given the new maximum workers' compensation rate effective 7/1/2010 of $739.83 per week, the difference in cash benefits between these two easily bridged (before a WCLJ) extremes is approximately a whopping $34,000! Therefore, if the claimant's doctor cannot make himself available for a deposition due to medical emergency, the claimant will get almost $34,000 less!

Not only is this assembly line appoach inefficient, it is unfair to all parties and capable of producing absurd results. But then again, we are currently under the reign of Albany bureaucrats who are desperate for a "legacy" of reform (or deform) prior to the November elections, when many will be washed out to sea.

New York Injured Workers Alliance (NYIWA) formed to Protect Rights of Injured Workers at the Workers Compensation Board

NYIWA — Mon, 30 Aug 2010 11:25:26 -0500

It's as simple as that. We are a new "grass roots" Political Action Committee (PAC) open to any and all who believe that the New York Workers' Compensation Board should serve injured workers first. We are the official political arm of the New York Injured Workers' Bar Association, whose members have been fighting for injured workers "in the trenches" at the Workers Compensation Board for generations.

Although we will be supported by our well known and long time lobbyist in Albany, the New York Injured Workers Alliance will also use all available Social Media tools, including our Facebook page, Twitter posts found at @NYInjuredWorker, Cap Wiz to contact your elected representatives directly, and Constant Contact to inform NYIWA members of the most recent political news regarding workers' compensation claims. Our message will be heard loud and clear across New York State.

Please sign up for our email list today and become a fan on our NYIWA Facebook page so we can communicate with you directly. Also, do not hesitate to leave us helpful comments and/or suggestions on how we can make this site work better for your needs. We hope you take a minute and a few clicks to become a member of our organization - at no cost! Thanks in advance for supporting our fight to protect injured workers in New York State.