The Employer Is The Last To Know

When you are the only one paying in an expensive, complex problem, it helps greatly to know what is going on and to participate in the problem solving. But what if you are the employer in a NY comp claim?

Amazingly, the employer in NY is not even notified that a hearing will occur, or what the results of the last hearing were; unless, the employer is self-insured or has given instructions to the carrier that it is to be notified of all hearings and decisions.[WCx]

Larger employers make sure to be kept in the loop and notified, but nearly all but the very largest do not. And the results are horrific for both the employer and the employee. The degradation of relevant material at hearings results in far too many hearings, far too late, to correct problems whose answer is only a phone call, email or FAX (and a few minutes, instead of months) away. A small, additional benefit is that comp costs to the employer would be 20-30% less, or more– much more.

How did all this come to be? When workers comp hearings began after 1914, for more than a decade employers, not carriers, attended the hearings. Employers often paid awards, sometimes in cash, at the hearings and sent a reimbursement request to the carrier. That practice gradually changed, although the law remained the same.

Eventually, the presence of the employer at hearings was assumed to be largely irrelevant and employers were no longer automatically placed on notice. That led to a drastically diminished role.

Several years ago, a case was reported in the courts where two carriers argued for nine years about who the correct carrier was. The problem was caused by a key stroke error by a Board employee on a hearing notice. A phone call to the employer could have resolved the problem in a few minutes, but the call was never made.

Similar, but less dramatic, errors such as this are frequent to the point of being routine in NY comp proceedings. What can the employer do, short of forcing the system to reverse 80 years of drift?

The employer can realize that the law does not prohibit it, no matter what an attorney, carrier or judge might say, from full participation. An employer can be given access to the Board e-file on its claims, although a bit of work will be involved. An employer can also request the carrier to keep it informed.[WCx]

Is the employer concerned about a gently soaring x-mod? The answers will be had through much greater involvement, much sooner, in claims. That will only happen if the employer gets into, and stays in, the information loop. And that means being the first, NEVER the last to know.

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. [email protected]

WORKERS COMP MANAGEMENT MANUAL: www.WCManual.com
MODIFIED DUTY CALCULATOR: www.LowerWC.com/transitional-duty-cost-calculator.php

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.