Tag Archives: Workers’ Compensation Board

New York State Workers’ Compensation Board Proposes Broad Anti-Worker Changes

There is a phrase in politics known as Friday News Dump or Take out the Trash Day. In other words, the act of releasing certain news items at the end of the work week in an attempt to avoid media scrutiny. In the case of the New York State Workers’ Compensation Board, the public servants that they are, the News Dump occurred at 11:00 pm on the Friday of Labor Day Weekend. As you may recall in April as part of the horse trade known as the New York State Budget, injured workers’ benefits were used as  bargaining chips. The Business Counsel had argued that schedule loss of use awards which are given to workers’ for permanent injuries to the extremities were suddenly unfair to the employer. The original guidelines they argue were outdated and did not take into consideration new advances in medicine. One of the Budget provisions directed the Board to “consult” with a group stacked with pro-business and insurance interests to re evaluate the current guidelines. Well at 11:00 before the holiday weekend they issued their proposed changes and like the impact of Hurricane Harvey and Irma, no one could have foreseen the complete and utter destruction these proposals would have on injured workers benefits. Rather than addressing how advances in modern medicine enhances healing or create better outcomes, the Board totally disregarded the legislation’s directive and instead simply rewrote the entirety of the guidelines to create a new evaluation process which would destroy previously awarded benefits for permanent injuries.

These changes are arbitrary and capricious and an abuse of discretion. The legislature had previously established a fixed period of compensation based upon a specific injury but the board has taken it upon themselves to reduce or eliminate many of the benefits previously awarded for an injury. Additionally the Board has proposed provisions which are punitive in nature against the injured worker, bordering on being downright insulting, which only provide more opportunities for insurance companies to deny benefits.

One of the amendments submitted allows the insurance carrier to go on a fishing expedition to obtain information that is privileged, irrelevant or against the injured workers’ interest and penalizes them for failing to comply. These “questionnaires” if not completed to the satisfaction of the insurance carrier can be negatively inferred against the injured worker. The carrier can deny benefits simply by stating that the injured worker was uncooperative. This new amendment seems to be in direct violation of HIPPA privacy laws. 

There are many who will be affected. Anyone who has been injured or knows someone who has been injured on the job should be appalled that their family and friends, when they are at their most vulnerable, would be attacked by the same State Agency that was established to protect them. Shocking as it is, these guidelines are being proposed by the Workers’ Compensation Board. The name itself implies it is for the benefit and protection of the Worker. Perhaps the name should be changed to the Business Council and Insurance Defense Agency as it appears their agenda has changed. Unions, particularly those that have workers who engage in any type of physical or hazardous activity should be outraged that their members will again be attacked financially when they are injured. The New York Daily News recently spoke to Mario Cilento, the President of the NY AFL-CIO, who commented that “the plan is an insult to all working men and women. Benefit cuts for injured workers are wholly unjustifiable.” 

Legislators, in particular should be infuriated knowing that a governmental agency has usurped their authority in an attempt to dismantle a system that has been statutorily in place for over 100 years.     

When will these attacks end if ever?  Who is the driving force behind these attacks? One of the unfortunate consequences of a typical day is that some people go to work healthy one day and leave as a casualty of a work place injury the next. Some of us will be permanently injured or even killed. Regulating away benefits will not prevent injuries but will only result in someone else paying for benefits -usually tax payers.  The slashing and burning must end.  All of us must take a stand to protect those of our society who did nothing wrong except be one of the unfortunate victims of a workplace injury. How ironic that this bomb was dropped upon the working men and women of New York State on a holiday weekend dedicated to honoring the working people of this country.  

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A Win For Workers – Albany’s Proposed Benefit Reduction Is Dropped

Last week Governor Andrew Cuomo announced he reached an agreement with legislative leaders on his 2016-2017 budget, touting the final version as a victory for working and middle class families. Some of the beneficial provisions for working class families include an increase in the minimum wage to $15 per hour, a new family medical leave act granting workers up to 12 weeks to care for family members, an increase in state aid to schools, an allocation of funds to improve infrastructure of our roads and rail systems that will create thousands of additional union jobs, and the reduction in the personal income tax that will save working people billions of dollars in the next 10 years. All of these initiatives will create opportunities for working and middle class families, and many in the labor movement are thrilled.

As many of you know, I have been highlighting during the last couple of months the controversial proposals regarding Workers’ Compensation benefits in the original budget. The Business Council was looking for a reduction in the overall cost of business and was proposing changes to the current system that would negatively impact injured workers, as they are an easy target. Many injured workers don’t have the financial ability or the time to fight back, particularly when they are concerned with recovery and paying bills. 

As the Governor has been courting business interests for most of his tenure, it seemed almost inevitable that the attacks on injured workers would continue and the negative proposals would be enacted. During the last couple of months, members of labor, the medical community, and representatives of injured workers united in their opposition to these proposals. There were online petitions, requests to contact elected officials, and meetings with members of the State Senate and Assembly by dozens of advocates with the goal to educate and explain the negative ramifications of those specific sections on the Workers’ Compensation law. This coalition, along with members of the public, made their voices heard and we are relieved to report that those sections of the budget that would have hurt injured workers were removed from the final version. We truly thank our elected officials for seeing the proposals for what they were and for understanding that the final agenda for big business was at too high of a cost for working and middle class people.

This is a major victory for injured workers and their families, and one that we do not take lightly.  The battle was rough and the stakes were high, but we cannot let down our guard yet. The Business Council’s mission to attack the limited benefits available to those injured on the job will continue.  The Business Council and the insurance industry together have been very successful in making sure the focus of Workers’ Compensation reform stays on the costs of the system rather than on what will be provided to the injured worker. They will continue their rallying cry that the current Workers’ Comp system is what leads to the high cost of doing business in New York.   

The system is not perfect. It is in need of reform but the reform should be to benefit injured workers. They are the ones who have lost the most. Their medical benefits have been reduced, their doctors’ opinions have been undermined, the amount of time they can receive indemnity benefits has been slashed, and they are forced to navigate through a system that is bloated with bureaucracy, convoluted, and almost impossible for the average person to understand. That is the area that really needs reform. Workers’ Compensation is for assisting the injured worker and that’s where the focus should stay.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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On The Ground In Albany: Lobbying To Preserve Your Benefits

The New York State Capitol

For the last five years, lawyers practicing in the field of Workers’ Compensation have used their voices to educate our State Senators and Assembly members on issues impacting injured workers. In keeping with this strategy, last week I attended Lobby Day in Albany with 70 other colleagues, including 11 members from my law firm, and we met with more than 50 of our state leaders. There was an added sense of urgency this time as Governor Cuomo has proposed a number of changes in the budget that would adversely affect those who get injured on the job.

In past few weeks, I have written about these budget proposals as part of the continuing attacks on injured workers and the less-than-adequate benefits they currently receive. The proposed budget amendment would grossly and negatively impact the ability of an injured worker to get a full and fair settlement. The law currently directs the insurance carrier to deposit the present value of a settlement into a fund to ensure that this money is available in the future or in the alternative, to settle the claim with the injured worker. Many insurance carriers opt to pay the money to the injured worker instead of depositing it into a fund. Without the worry of this deposit, there is less of an incentive for the insurance company to settle a claim that could lead to lengthy and time-consuming litigation with the injured worker receiving minimal or no benefits until the law judge makes a decision.

One of the proposed measures would give the Workers’ Compensation Board the power to qualify doctors and to bar them from the system. This is unacceptable. Doctors should be regulated by other doctors instead of by bureaucrats.

Even more egregious are the attacks and restrictions on due process. Injured workers should be entitled to a fair and impartial hearing. The budget proposals would remove the right of injured workers to have their cases heard by the same judge. The ability to direct policy and decisions would open the door to potential abuse. Additionally, if injured workers wish to appeal a detrimental decision, the appeal would be decided by one individual as opposed to the current three-panel of commissioners. Current law provides for the appointment of commissioners by the governor with approval by the legislature, which provides for some checks and balances. The Workers’ Compensation Board would instead be given unchecked power to control the outcome of every decision.

The Business Counsel was in favor of many of these changes as it felt they would help decrease costs and increase profit margin. However, an analysis by the New York Compensation Insurance Rating Board (NYCIRB) of the expected financial impacts of the governor’s proposed reforms found no solid evidence that these changes would result in any meaningful cost savings. At this juncture, one has to wonder why these proposed changes are still being pursued by the governor. Anyone who has been injured on the job, or knows someone who has been injured, knows that it has become more and more difficult to navigate the process to obtain benefits. We do need reform, but it should be done to improve the lives of those injured at work. These proposals are certainly not in workers’ best interest. If you agree and want to know what you can do, please click here to sign the petition to stop the further erosion of workers’ compensation. We need to insure that those vulnerable members of our families, community, and state are not abandoned by their government for wrongly perceived cost- cutting measures.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy  Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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New York – Open For Business But What About The Workers?

As an attorney who has been practicing in the field of Workers’ Compensation for more than 25 years, I have seen many changes in this area of law. When I first started as a young attorney, my mentor explained to me that the Workers’ Compensation law was designed to compensate injured workers for their lost wages and provide them with prompt medical treatment.

Injured workers may not be compensated commensurate to their salary, but the law provided a safety net for them while they were unable to work, and a lifetime benefit if their injuries prevented them from obtaining gainful employment. I knew that insurance carriers understood their role was to provide indemnity and medical benefits while mitigating costs to their assured. The Workers’ Compensation Board employed judges and commissioners to make sure that injured workers received fair and impartial oversight of their claims. Unfortunately, the Workers’ Compensation system in New York has now become a bargaining chip in Albany politics. Governor Cuomo has long been courting businesses to New York. Many of the state’s ad campaigns are geared toward showing how favorable the climate can be for doing business here. In 2011, Cuomo announced that he launched “New York Open for Business,” which was designed to demonstrate to business leaders all across the world the benefits of doing business in New York. He pitched the idea of redesigning the way state government works in order to drive economic growth and create jobs so that not only will businesses come to New York, they will stay in New York.

This seemed like a great idea, especially when you saw the slick advertising campaign costing more than $140 million. What could be wrong with New York being more attractive to business and industry as this would translate into more jobs and more money to the state? Unfortunately, the Business Counsel has complained to Governor Cuomo that the cost of Workers’ Compensation is too high despite major reforms in 2007 and is now lobbying to make additional reforms more favorable to business interests. A study performed by the Workers’ Compensation Alliance, as well as New York Committee for Occupational Safety (NYCOSH), concluded that the 2007 reforms offered no benefit to low-wage workers and even those who did benefit short-term on the increase continued to suffer high rates of wage loss. It is clear the reforms benefited business interests over labor concerns. Even the administration that was designed to oversee the system, the New York State Workers’ Compensation Board, has now created many roadblocks for the injured worker to navigate.    

Earlier this year, the Board issued a policy advising that it no longer will be issuing administrative decisions for claims having no lost time and no disputes. The Board notes that approximately 25% of the decisions issued by them are for no lost-time claims. Workers who sustain a permanent injury but don’t lose any time from work are entitled by law to receive a monetary award for their injury.

Those represented by experienced counsel are guaranteed that their case will handled properly and maximum benefits are obtained. For those unrepresented injured workers, their fate remains cloudy. In the past, the Board used to schedule hearings before a law judge who would give them adequate information about their claim, their rights, and their benefits. Many take the position that  the Workers’ Compensation Board  has been directed to make the system more user friendly to business interests by reducing the number of hearings and decisions that are issued, which might result in a reduction in the number of claims paid. Unfortunately, this is all at the expense of the injured worker at a time when they are most vulnerable.  If you think this is wrong, let your voice be heard by contacting the Governor and your state representatives.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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