In NY workers comp, “return to work” measures (RTW) can achieve unprecedented savings – for the employer and the employee but only if the employer takes the initiative. Employer involvement is many times more effective than what a carrier, TPA, consultant, etc. can provide especially with restoring a worker to employment.
Recently in NY, new court decisions point to a recognition that a worker collecting wage loss benefits cannot lightly refuse a job offer without risking reduction of benefits. But the cases involve claims where the original employers made the offers. Those employers, of course, were in a far better position to know what offer would be within the capabilities of one of their employees. (WCxKit)
Many employers have ignored the advantages of proactive job offers. The reasons lie in the fact that any program will fail sometime, in someplace, for many reasons. But that is no reason to balk. What is not tried will ALWAYS fail. If the employer will not make the effort, who will?
This will be the opening of a series which will outline the steps for an employer-initiated return to work program. A series has to begin somewhere and the starting point must be to stress that the employer’s role is central and cannot be delegated. The employer alone has the knowledge of the person, the job, the requirements and the ability to make essential modifications often necessary for success.
Editor's Note: The next part of our Tips from Ted, will deal with pre-incident planning.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.
2012 will be the major year for “Return to Work” (RTW) discussions in New York. A major decision on RTW will be coming from the Court of Appeals in early spring. (Zamora v NY Neurologic is set for argument on February 15, 2012.)
The Zamora decision is expected to resolve many of the claims involving voluntary withdrawal from work, but only on those claims where there were no valid offers by the employer. The case will most likely deal with people who have made little demonstrable effort to return to work, even though the employer has made no offers.
It is no exaggeration to say that an offer by the employer is 99% of the battle in RTW. The employer, alone among the nearly 100,000 employers in New York, knows the injured worker, the former job duties and the best fit for a sllight modification which would permit, at least, a trial RTW effort. Where employees are left to search on their own, among strangers offering strange jobs, the chances of success are slim.
How much different the interactions are when the employer is directly involved. All parties, carriers/TPA, lawyers and the Board included, are much more likely to get a detailed description of the efforts when the employer is the entity making the offer. All other employers are outsiders in the claim and what they offer or why they refuse is information obtained only after great effort, if ever obtained at all.
The real message of the coming decision will be that an employer who chooses not to be active in the RTW process will be missing the greatest single cost containment tool they possess – the ability to assist (not necessarily guarantee) the effort to return the worker to a job.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.
“Return to Work” (RTW) will achieve unprecedented attention in the coming year, largely due to a series of recent decisions and an upcoming argument in the state’s highest court, the Court of Appeals. The issue will be defining better the standards for “voluntary withdrawal” from the labor force. Such withdrawals can result in halting of future payments.
If an employer makes a job offer a return to work is far more likely to result in success than if a worker tries to find a job. To help employers implement a RTW program, the Board has on its website an outline of an RTW program. One of the sections deals with “partners” in the return to work process. Nine people and entities are listed, but the most important is not present on the list. Who might that be? The SPOUSE!
In order to appreciate the role and importance of the spouse in managing disability it helps to have been as close to the problem as possible, but with professional expertise. That means being the treating doctor or the lawyer representing the worker. Only in that way are you likely to witness first hand the role that is played by the spouse.
People who have become cynical and jaded by the administrative handling of comp claims would be surprised to learn that the spouse is the person least likely to favor extended disability, no matter what the final settlement figure might be. The spouse, above all others, knows, and lives with, the consequences of extended absence from work. Even the children, who share the consequences, can only guess at the downside nature of disability though they quickly learn what it is like to have an additional parent commenting on their every move.
Why would the Board outline omit all references to a spouse? Perhaps because the very nature of the relationship is private and beyond the Board’s comment or control. But that is no reason for others to fail to involve that most important person.
In any enlightened RTW program by the employer a face to face discussion with the employee should be had as quickly as possible. The spouse should be present and participating in the discussion with, of course, the permission of the worker.
There is a good chance that the employer already knows the spouse, which makes the efforts far more effective. Leaving the efforts to a carrier or administrative board makes for a poor communication network which usually omits family members from the process. But the employer has an excellent functioning, and supportive, network when the family is directly involved.
A RTW discussion should not focus on the claim. The effort is part of the employer/employee relationship and such discussions can, and often are, had even in the absence of any kind of claim. Having such discussions when no claim has been filed will often result in lowering claims in the future. (Many disability claims – comp, LTD, Social Security disability – are triggered by uncertainty about future earnings or medical payments. A sooner, rather than later, meeting with the employer will greatly reduce that uncertainty.)
In short, the employer participates not as a surrogate for the carrier but as the other major player in the family’s security. (WCxKit)
The first rule of disaster management and control is to maximize the immediate use of all available tools. Do not wait for a third-party to appear with another tool, which is seldom as effective as those already in place and not nearly as timely.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100.
medsearch7@optonline.net
One of our readers, Tom Gassaway of Arthur J. Gallagher, found this article of particular interest and offered this example.
I received your newsletter this morning and found one article that I felt was long overdue. The article was “The Spouse Might Be the most Important Partner in NY Workers Comp.” I spent 17 years working at Liberty Mutual and remember hearing this mentioned, for the very severe cases, as far back as 1978. I was told they need to be involved in the psychological and emotional recovery from an accident, no matter in what state the accident occurred. I even saw it used for a claim involving one of my insureds.
The claim involved a worker who lost both hands in a punch press accident. He was due to be married within a few months of the accident and the obvious questions arose:
Would the wedding even take place?
Would the future spouse still want him?
Would the future spouse be able to assist with all of his needs?
What about income and medical bills?
Liberty immediately got him to their rehabilitation center in Boston and started to work on this whole process. Somewhere along the way the fiancé was asked to take part. The good news was she was agreeable and it went well. She was there through the fitting of the “hooks” for hands and other key milestones. The good news was they were able to be married on time and the they returned to Boston after the wedding to finish the rehabilitation. Overall, it was a good outcome and I heard later they even had two children.
Thanks for the article.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2012 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact us at: Info@ReduceYourWorkersComp.com.
Two recent decisions, and an outline posted on the WCB website, indicate that there is a shift in New York workers comp towards employer return to work offers.
The court decisions “Browne v Medford Multicare” and “Smith v TWA, Inc” dealt with workers who refused return to modified work. (WCxKit)
The refusal of the offers was treated in both cases as voluntary withdrawal from the labor market – a conclusion that would have been unthinkable years ago. In addition, the Board has posted a return-to-work guide for employers on its website, another departure from past practices.
The decisions point to the emergence of a very different comp system. In the past, a claimant could refuse all offers of work without jeopardizing further compensation, which led to the final settlements which accounted for 60% of all attorney fees. The new model will substantially reduce comp costs and xmods for proactive employers.
The Board outline of return-to-work proposals makes it clear that, in the future, the worker’s attorney is expected to support prompt return to work even if a settlement fee is lost in the process. Hopefully, the Board will find a way to award fees for cooperating with a return-to-work program. Such cooperation, in the past, has been viewed as worth less than service which led to protracted disability.
Tellingly, the Board sites statistics in its RTW outline which claim that successful work rehabilitation has only a 1% chance of success for an injury which has resulted in two years of lost time. In the past, only disabilities resulting in two years lost time were considered for lump sum settlement. The Board construed years of lost time as a perversely positive result.
But all this is a potential reform. It is only as inevitable as the willingness of employers to become involved and do it right. All the decisions will mean nothing to an employer who imagines that, somehow, a carrier or the Board will do the heavy lifting for it. (WCxKit)
Will all, or even most, employers become “return to work” conscious? No. Certainly not. The chances that a claimant, chosen at random, will work for an employer diligently pursuing ways to reduce employee lost time will be substantially less than 50%, perhaps much less. Even so, the playing field is different. The employer making the effort will achieve the savings. And its workers will share in those savings in a wide variety of ways.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
Benjamin Lawsky, superintendent of the Financial Services, recently reported that 18 people in 13 New York counties have been arrested in the latest effort to save businesses money by cracking down on workers compensation fraud.
The arrests were the result of a series of joint investigations led by the Department of Financial Services (DFS). Joining DFS in the investigations were the Office of the Inspector General (OIG) of the New York State Workers Compensation Board, the New York State Insurance Fund (NYSIF) and other insurers. (WCxKit)
The 18 arrests included:
Albany County — Charles Foster, 48, of Hoosick Falls, collected $22,800 in benefits after hurting his leg when cutting down a tree while employed by the Village of Hoosick Falls in February 2010. However, investigators found that he was managing a storage facility and running a scrap metal business while collecting the benefits from NYSIF. He is charged with workers comp fraud.
Schenectady County — Lee Kittle, 49, of Scotia, collected $22,600 in compensation from NYSIF after suffering an injury while employed at a mill in 1993. He was found to be working at Schenectady County Community College as a tutor and the Saratoga Race Track as a teller. He gave authorities a written confession. He is charged with offering a false instrument for filing in the first degree and workers comp fraud.
Erie County – John Czechowski, 45, of West Seneca, collected $12,000 from NYSIF after he was classified as totally disabled for a back injury he suffered working as a roofer. However, investigators discovered he was working off the books for a contracting company while collecting the benefits. He is charged with third degree insurance fraud, grand larceny, offering a false instrument for filing and workers comp fraud.
Onondaga County — Kemberlei Senke, 44, of Liverpool, is accused of claimant fraud for collecting $26,000 in benefits issued by NYSIF between June 2009 and January 2011. She reported suffering a knee injury while employed by Artistry in Wood. The investigation disclosed that she falsified reports to the NYSIF to inflate her wages and employment status. She is charged with insurance fraud in the third degree, offering a false instrument for filing in the first degree and workers comp fraud.
Onondaga County — Cheryl LaQuay, 62, of Calcium, is accused of fraudulently collecting $53,000 in benefits from the NYSIF between Oct. 2006 and Sept. 2011, while working as a home health aide. She is charged with insurance fraud in the second degree, offering a false instrument for filing in the first degree and workers comp fraud.
Oneida County — Aaron McElhinney, 26, of Vernon, is accused of collecting $11,600 in benefits from Chartis Insurance Company after falsely reporting that he suffered a work-related injury. Investigators found that he told his girlfriend and her mother that he was going to fake the injury so he could go to Florida. Co-workers corroborated that he did not hurt himself. He is charged with insurance fraud in the third degree and workers comp fraud.
Oneida County — William Ellis, 43, of Utica, admitted working for a construction company from 2004 through 2007 doing roofing, siding, plumbing and masonry while collecting $15,000 in benefits from NYSIF for an injury he suffered while working for a paving and excavating company in 1993.
Oneida County – William O'Neil, 30, of Rome, is accused of collecting $1,790 in benefits from 21st Century North American Insurance Company while working for a moving company. He was collecting benefits after suffering an injury while working as a carpenter. He is also accused of giving false testimony at a workers compensation hearing and causing a false independent medical examination report to be prepared and filed as part of his claim. He is charged with perjury in the first degree and workers comp fraud.
Ulster County — Sergio Cortez, 37, of Rosendale, collected $6,800 in benefits from NYSIF after claiming he suffered a slip and fall injury while working as a carpenter for ABD Stratford LLC in September 2009. However, investigators found that he was working as a landscaper while collecting benefits. He is charged with insurance fraud in the third degree and workers comp fraud.
Ulster County — Willie Dixon, 47, of New Paltz, collected benefits from NYSIF for an injury he reportedly suffered while working for the New York State Office of Family and Children Services in May 2010. An investigation revealed he failed to disclose on work activity reports that he was employed as a coach while collecting $4,700 in benefits. He is charged with insurance fraud in the third degree and workers comp fraud.
Ulster County – James Roy, 51, Hyde Park, is accused of attempting to collect benefits after falsely reporting that he suffered a work-related injury while employed by a tool-making company. He claimed that the injury occurred when he slipped on ice in the company’s parking lot, but witnesses contradicted his claim. He never received compensation because his claim was discovered to be false before benefits were issued. He is charged with workers comp fraud.
Otsego County — Susan Gridley, 61, of Schuyler Lake, started collecting benefits after an injury she sustained while working at a horse farm in 1986. She later failed to disclose on work activity reports submitted to the NYSIF that she was working as horse boarder and trainer while collecting $4,700 in benefits.
Oswego County — Kimberly Harrington, 53, of Lacona, is accused of cashing her dead husband’s workers comp benefit checks totaling $2461.90. The checks were issued by the NYSIF. She is charged with grand larceny in the fourth degree.
Warren County — Jeffrey Hamblin, 45, of Glens Falls, reportedly suffered a knee injury while employed as a truck driver for HR Logic/Doberts Dairy in November 2001. An investigation revealed he was employed as a general contractor for Painters Plus and worked for a doctor while collecting $7,700 in benefits from Liberty Mutual Insurance Company. He is charged with falsifying business records in the first degree and insurance fraud in the third degree.
Chenango County – Patricia Wilcox, 60, of Oxford, started collecting benefits from NYSIF after claiming she suffered a broken ankle while working as a teacher’s aide at the Chenango County Head Start program. Investigators found that her injury actually occurred at her home. She fraudulently collected $12,900 in benefits. She is charged with falsifying business records in the first degree and workers comp fraud.
Tompkins County – Steven Odum, 65, of Ithaca, is accused of failing to disclose work activity as the lead guitarist with the “Steve Odum Trio” on reports he sent to the NYSIF while collecting $11,300 in benefits after suffering an injury in 1988 while working at a residential child care institution. He is charged with offering a false instrument for filing in the first degree and workers comp fraud.
Clinton County – Leonard Drown, 63, of Morrisonville, is accused of collecting $25,500 in benefits from Pennsylvania Manufacturers Association Insurance Company after claiming that he was not working because of an injury. Investigators found that he was, in fact, working while collecting the benefits. (WCxKit)
Broome County – Olga Shelestovsky, 43, of Johnson City, is accused of working as a waitress while collecting $2,200 in benefits from NYSIF and claiming that she was unable to do any physical work. She is charged with offering a false instrument for filing in the first degree and workers comp fraud.
All of the accused are innocent until proven guilty.
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He recommends the #1 selling book on cost containment, Manage Your Workers Compensation: Reduce Costs 20-50% www.WCManual.com. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
The Clinton County (New York) District Attorney’s office recently announced an arrest associated with workers compensation and insurance fraud.
Robert Deyo, 34, of Plattsburgh was arrested and arraigned in Plattsburgh City Court before the Honorable Penelope Clute and charged with one count of Perjury in the First Degree and one count of Committing a Fraudulent Practice. (WCxKit)
The charges stem from allegations that Deyo was receiving workers comp benefits he was not entitled to by continuing to work as a contractor, and not reporting that fact to his employer or the insurance carrier.
“Workers compensation fraud takes hard-earned money from honest businesses, workers and consumers alike,” said New York State Insurance Fund Chief Executive Deputy Director Dennis Hayes. “Through the assistance of local law enforcement and cooperation with our partner agencies, NYSIF has and will continue to aggressively fight workers compensation fraud.”
Deyo was remanded to the Clinton County Jail in lieu of $2,000 bail – $4,000 bond.
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
The average active measures used by an employer on a New York comp claim consist of filling out the three most common forms (C-2, C-11 and C-240) and little else, unless they are called to testify.
Employers are rarely asked to do more. But doing more lowers costs, reduces litigation, prevents fraudulent claims and gets the proper benefits faster to the honest workers. (WCxKit)
There are many things an employer can do, but the five most basic are:
1. Have a plan for dealing with the worker, starting as soon as a report of injury is received
2. Know how to fully complete the first report (C-2) and know what additional document should be attached to the C-2 and forwarded to all parties.
3. Have a plan for a return to work (RTW) meeting with an employee out of work due to a work related (or allegedly work related) injury.
4. Have a plan for communicating with the law firm that will be handling the comp hearings for the carrier.
5. Know how to detect and make inquiries about possibly fraudulent activity on the work comp claims.
There are many other things that an employer can do, but the above are indispensably important.
A full description of how the above five can be carried out will vary from employer to employer but the basic measures will serve the following purposes:
1. Dealing with the worker.
Many claims that are filed are due to improper understanding of comp by the employee, or poor leadership by the employer. A surprising number of potential claims are never pursued with proper employer handling. This is called the post injury process, by cost containment experts such as Rebecca Shafer, and should be a tightly controlled process of each step that takes place after an injury. Of course, the process must be in place before the injury occurs, so planning ahead is critical.
2. Completing and documenting the first report (C-2).
A C-2 form must be filed for all reports of an injury involving more than first aid. However, much more information is usually required for proper handling. That can only be put into the WCB’s, or the carrier’s, file if additional documents are attached. The C-2 form simply does not have enough space to properly report for all claims. Never leave spaces blank because that gives the other side an opportunity to provide such information, and that might not be good for the employer.
3. A return to work (RTW) meeting.
In the past, return to work discussions rarely occurred until after a major claim was settled and closed. That, however, is far too late to achieve positive results. A return to work meeting should be held with the worker no later than 6-9 months after the date of accident and ALWAYS before the carrier makes a settlement offer for a serious claim.
4. Communicating with the carrier selected law firm.
If there are hearings, and most claims have hearings, the employer will be represented by a law firm selected by the carrier. In NY, the law firm represents the employer, not the carrier, but that is frequently forgotten and the employer then loses most of its opportunities to engage in a useful way.
The employer should always know who is representing their company and should communicate frequently.
5. Being active in reporting and suppressing fraud.
Most information necessary to defeat a pattern of fraud will come from the employer’s files. Employers frequently suspect fraud, but few are trained in how to detect it and defeat it. Anti-fraud measures require a certain amount of special training to be effective. (WCxKit)
An employer who incorporates the above into its workers comp plan will see a dramatic decrease in comp costs. The measures do not cost much and do not require much effort, with proper training.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com.
New York Attorney General Eric Schneiderman recently announced that his office has filed a lawsuit against a New York City-based company behind an employment scam.
According to a report from the AG’s office, the company known as both C.P. International Security Inc. (C.P.I.) and Gateway Production Security Inc., tricked out-of-work consumers into paying for expensive security guard training courses with false promises of employment. The lawsuit also names the individuals who have operated the company, Charles Pierre and Nicole Pierre. (WCxKit)
The Attorney General’s office has already secured a temporary restraining order freezing any assets the company or Pierres may have, and temporarily barring them from advertising job openings or selling security guard training courses.
After receiving numerous complaints from victims of the fraudulent job scam, the Attorney General’s office conducted an undercover investigation that confirmed that the company posted phony security guard job listings online and in newspapers. The company targeted Spanish and Chinese-speaking consumers in particular by placing ads in Spanish and Chinese-language newspapers. C.P.I. would then tell consumers who responded to the advertisements that they had been selected for the positions, but first needed to complete a series of security guard training courses, at a cost of $399.
However, after paying for and completing the expensive training, consumers discovered that the jobs did not exist. Though C.P.I. had promised employment, it instead would offer “graduates” worthless “referrals” to security guard companies. When consumers attempted to pursue those referrals, they found that the companies that they were referred to had no knowledge of C.P.I., and were neither expecting the candidate for an interview, nor hiring.
In addition to making false promises of employment, C.P.I. also falsely represented that consumers must complete the entire $399 package of courses to be eligible to work as a security guard. In fact, only one of the three security courses in the series — the eight hour pre-assignment training course – is required to begin working as a security guard. In addition, C.P.I.’s training courses do not comply with state requirements for security guard training courses, including requirements for minimum hours of instruction and topics that must be covered.
The Attorney General’s lawsuit seeks restitution for the thousands of consumers defrauded in the scheme, as well as penalties and injunctive relief prohibiting the company from continuing to operate this scam. (WCxKit)
Consumers seeking to enroll in security guard training courses should keep in mind that low-cost and even free security guard training courses may be available. For example, the State University of New York’s Manhattan Educational Opportunity Center offers free security guard training courses for individuals who meet certain income guidelines, and many community colleges offer low-cost security guard training courses.
Author Robert Elliott, executive vice president, Amaxx Risk Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers Compensation costs, including airlines, healthcare, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. See www.LowerWC.com for more information. Contact: Info@ReduceYourWorkersComp.com.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact
Info@ReduceYourWorkersComp.com.
1. Introduction
This is an outline of measures that can be taken by employers to reduce NY comp expenses. The measures outlined have been undertaken by employers in the past with success. The measures do not come at the expense of workers and worthy claims; they limit delay and arrive at correct payments without enlargement due to inefficiency and insufficient information.
2. The NY workers compensation system since 1947
The present compensation system was largely created by the 1947 changes, the most significant of which was enlarging the number of lump-sum settlements. Although only 1% of all claims resulted in a lump sum, these claims carrier 60% of all attorney fees awarded. (WCxKit)
The second significant change occurred in the 1960s when the Board declared that its medical guidelines were obsolete but failed to adopt new guidelines until the 1990s. In the intervening period, this led to decades of litigation with a “blank yardstick” resulting in the majority of settlements clustering at 50% disability on PPD claims.
3. Recent attempts at reform
In 1984, a compensation commission report called for creation of objective medical guidelines to limit the growing number of trials, appeals and prolonged adjudications of claims which resulted in frustration of workers and dubious accuracy in results. The then proposed changes threatened to radically alter the practice of comp law for both claimant and defense lawyers and were resisted, as have recent changes.
Currently, extensive guidelines have been enacted for medical treatment and evaluation of permanent disability, but there are still no published methods for measuring post-injury loss of wage earning capacity a claimant has returned to work or has received a valid offer of work within residual capacities. Such offers will be one of the methods for cost reduction described in this outline.
4. Reasons for prolonged litigation in New York
New York has had an anomalous workers compensation system for decades. The reasons have to do with the politics of the 1940s which, after a generation, were forgotten, but the residua have remained.
The system became marked by an elevated number of hearings, trials and appeals. Law, regulations and court decisions were seldom cited and the proceedings were seemingly governed by informal customs rather than law and fact.
That is currently changing, with restrictions on litigating issues without cause or preparation, but the generally casual atmosphere has remained. However, parties making efforts to diligently investigate all facts and research law to prepare claims – especially prior to the first hearing – will realize advantages and results.
5. Opportunities for employers
There are a number of critical points in a New York claim where an employer’s efforts can achieve unexpected results. The results can take many forms reaching a correct resolution months or years sooner, limiting unnecessary testimony, reducing adjournments to obtain material that should have been available at the first hearing and reducing unwarranted awards.
The Principal Employer Initiatives
- Use of OSHA for investigation of problematic claims. (29 CFR 1904.5 can be used to obtain HIPAA releases and schedule an early IME exam.)
- Enhanced preparation of the first report (C-2) with location and attachment of supporting documents for defense.
- On PPD claims,
- a search for prior medical conditions to be conducted 6-9 months after date of injury,
- an ADA conference with worker, with spouse present,
- offers of modified or full RTW prior to Sect 32 settlement discussions,
- for certain acute conditions, employer assistance and support for SSDB
- claims although no comp claims have been contemplated.
Initiative A (OSHA)
permits HIPAA releases and an IME exam, by the employer,
Far faster than is possible under the NY WCL by a carrier or TPA. The OSHA records remain separate and are not automatically released to the comp file
but, with proper efforts, can be used in in the compensation claim. The HIPAA releases produce information that is a highly effective method for keeping unrelated conditions from becoming merged into the comp claim.
The active role by an employer in the beginning of a claim is, in fact, appreciated by most employees.
Initiative B (enhanced C-2)
is designed to utilize the employer’s superior background knowledge and access to relevant documents. These assets are not developed simply by completion of a C-2. Often, a claim will come to a successful conclusion at the first hearing solely because a fact is identified, explored and developed before hearings start.
Initiative C
contains three separate parts for limiting PPD claims.
- A. The location of prior medical records which can support a reduction, or halting, of future wage loss payments, per the April, 2011 “Poli” decision.
- B. An ADA conference, so that the claimant, and spouse, may hear of RTW possibilities prior to any Sect 32 settlement offers. (Spouses are usually supportive of RTW rather than settlement and should be present at the conference.)
- C. An offer of limited or modified work which, if refused, can be construed as a voluntary withdrawal from labor. The offer also acts as an objective measure of wage earning capacity and can supplant Board guidelines for medical evaluation of PPD final rates. (WCxKit)
Initiative D
employer SSDB assistance for certain medical conditions such as heart attacks, can reduce comp claims filed later. Many workers comp heart attack claims are not filed until after a worker has consulted an SSDB attorney, most of who are also comp attorneys, and the time to file a compensation claim has not yet expired. Workers frequently resist filing claims against employers who have been supportive.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
©2011 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@WorkersCompKit.com
Hope v. Warren County Board of Elections, 2011 NY Slip Op 08543, was decided this week. The decisions carries far reaching consequences to businesses employing part-time workers.
The claimant, employed a day or two a year, had an average weekly wage as a poll inspector of $3.56 per week. The claimant had another part time job which generated an average weekly wage of, roughly, $77 per week.
The New York compensation law provides that person with concurrent employments have the average weekly wage from ALL employments combined. The rate of compensation is paid by the employer on whose job the injury occurred. Prior to changes in the law in 2007, the employer would be reimbursed for payments made higher by the combined wages from the special funds. In the above case, the employer would have been ultimately liable for only $3.56 per week, using the law prior to 2007.
However, NY WCL Sect 14(6), which granted the reimbursement, was repealed in 2007. Therefore, the employer, without reimbursement, paid the full award at $80 per week. (The “two-thirds” calculation does not apply to weekly wages less than $150 per week, which have a minimum of $100 per week, unless the wages are below $100 per week, in which case the minimum rate is the average weekly wage.)
In the present case, the employer paying $80 per week will not cause much worry, but what will happen when the second job has wages which exceed (roughly) $60,000 per year? In that case, the present employer, properly liable for only $3.56 per week, could be required to pay the current maximum of over $770 per week – about 216 times the weekly wage on the job where the injury occurred.
These hypothetical scenarios are not far fetched. Many employees at higher paying jobs have occasional part time work for far less. In the case of poll inspectors, many view the day or two per year as “civic duty.” Nevertheless, injuries do occur.
What of businesses that prefer to hire workers looking for a second job part time? These businesses will have consequences which can be disastrous. Workers, depending on what other employment they may have, can cause an employer to pay many multiples of the wages for a single comp claim.
Businesses that have come to see part time workers as essential (the part time holiday season workers are the best example) may find that the x-mod calculations cannot bear the strain of this new decision. For workers, this could result in substantially fewer holiday part-time opportunities in New York. Truly a “Grinch” decision.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net
WORKERS COMP 101 (BOOK): www.WCManual.com
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers comp issues.
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