New York Trend Shows Support for Work Comp Return to Work Programs

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.