May 09, 2007

Health and Safety Legislative Updates

Source: NYSUT Health and Safety Newsletter

Major reform to the New York workers compensation was signed into law by Gov. Eliot Spitzer last month. The final legislation was a result of hard negotiations on the part of both the state AFL-CIO and the New York State Business Council, the governor and Legislature. Some of the most important changes are summarized below.

The good news

Robert Grey, workers comp attorney and a member of the workers compensation committee of the New York Committee for Occupational Safety and Health (NYCOSH), is cautiously optimistic about many of the changes, but says it may take a few years before the impact is clear.

Probably the most significant improvement is the wage rate increase. Before the changes, the $400-a-week maximum benefit was worse than 48 out of 50 states. The increase will be very important for workers who make more than $600 a week. Injured workers who qualify can get up to two-thirds of their weekly pay up to the current $400 a week. The rate will increase over a three-year period, after which it will be indexed to the state average weekly wage. The rate increases will not help those who earn less than $600 a week and only affect people injured after July 1. In addition, an injured worker's rate is fixed at the time of injury and does not increase over time; a real-dollar benefit reduction due to inflation.

Before the new amendments, workers who needed medical procedures or diagnostic testing costing more than $500 hadn't been able get them unless approved by the insurance company. Starting July 12, they can get procedures/testing costing up to $1,000 without insurance approval. Dental treatment and prosthetic devices will now be added and fee schedules will be established for many services. Prescription drugs must now be reimbursed within 45 days or an explanation provided, unless the case is contested or the prescription is not causally related to the injury/illness. Until the changes, insurance companies did not have to reimburse in a timely manner. There are also some procedural changes that should speed the resolution of contested claims.

Some bad news

Workers compensation reform was a priority for Spitzer and it was obvious to the labor community that the benefit of indefinite payments to workers with permanent partial disabilities was targeted for elimination. They were right.

Changes to the workers compensation law cap the length of time those workers can receive workers compensation wage replacement benefits. Only permanent total disability benefits are not time limited. All other levels of disability now have a scale of time limits. The more disabled you are, the longer you can collect compensation benefits. The maximum time the most disabled worker can receive monies is 10.10 years. Exceptions can be made for extreme hardship cases for people more than 80 percent disabled. The effect of the limits is somewhat balanced by a new section called "Safety Net."

The first part of "Safety Net" requires the commissioner of labor to issue a report by December of this year on how to assure that permanently partially disabled workers can "...return to employment to the greatest extent practicable." Second, existing case law that permits workers with medically defined partial disabilities to claim total disability based on industrial factors is codified and preserved. Third, is the extreme hardship exception for workers more than 80 percent disabled mentioned previously. Fourth, the status of permanently partially disabled claimants will be tracked and an annual report given beginning December 2008.

Ithaca Teachers Association President Susan Mittler expressed disappointment in capping payments for permanent partial disability. "Who says, after 10 years, you're no longer disabled? You may not be eligible to retire. If the disability is long term, there's an assumption of fraud and deceit. I don't have a problem if they decided to review workers' conditions after a certain amount of time but we need to be fair; we need to be just."

The future

A mitigating factor is if the Workers Compensation Board takes steps within its power to make the system friendlier to injured workers. As attorney Grey says, we have to wait to see how the changes are implemented and who will be the next chair of the Workers Compensation Board.