Employers will be affected by the ending of a little understood law: The Second-Injury Fund, scheduled for termination of payments on July 1, 2010.
The law (Sect. 15-8 of the Workers’ Compensation Law) protected employers from the higher costs of compensation in juries where the employee had a prior permanent disability at the time of a work injury. Common examples were workers who had been in auto accidents and who later were hurt at work.
In such situations, the employer (through its compensation carrier) only paid for the first 2 years (recently changed to five years) after which payments would be reimbursed from the Second-Injury Fund. However, many states, New York included, are experiencing rising costs in all areas of workers’ compensation, resulting in closing down of these funds. The New York fund will terminate payments on 7/1/10.
What impact will this have on employers? There will be both increased litigation on nearly half of all claims involving serious injuries, as well as increased litigation of claims involving workers over 50 years of age.
A publication by the Surgeon General 20 years ago showed nearly 30% of the workforce had a permanent medical impairment. This is precisely the group most likely to sustain a later career-ending work injury.
In New York, compensation claims will be heavily litigated on the effects of prior injuries which, until now, were covered by the Fund. Employers must anticipate this and document periods of lost time from work due to permanent injuries prior to an accident. If there was no such lost time for years prior, there is a good chance a workers’ compensation rate will not be lowered by apportionment with a prior injury. (workersxzcompxzkit)
It is certain the most helpful testimony will come from the employer who can honestly testify a prior injury did not noticeably affect the worker’s job performance. Employees will need the employer’s loyal support more than ever.
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.
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