The New York Workers Compensation Board has announced a new initiative to measure the effectiveness of carriers and TPAs in prompt filing of first reports of new injuries and effective denials of compensation claims. In 2015, data on all carriers/TPAs will be kept. Eventually, there will be unspecified penalties imposed on carriers/TPAs for poor performance.

Carriers Can Speed Up Handling By Receiving Better Information From Employers

Carriers/TPAs, however are linked to employers. Carriers can speed up their own handling, and contest unwarranted claims with greater chance of success with proper preparation but they just necessarily rely to a large degree on information provided by employers. This presents employers with opportunities never before seen in New York.

Since the carriers/TPAs will be under scrutiny they will gratefully accept efforts by employers to speed up and present useful information. An employer can do this in one obvious way (far better first reports to the carrier/TPA) and one which is not at all obvious (employer completion of a Ph 16.1 form which the carrier, not the employer, normally completes on contested claims).

Both of these measures will receive more detailed discussion in soon to be written posts. They are extremely important for employer control of compensation costs and need more explanation. However, for the present, employers should be aware of the following in NY.

First Report in New York is Form C-2

The employer’s first report to the carrier is the NYWCB Form C-2. This form should be completed in less than 10 days following a reported injury or illness. Many are not – and that is easily correctible. With a little effort, it can be completed in 48 hours, which will make a great difference in results for employer and carrier.

Then, most C-2s submitted by employers have a number of boxes left blank. A blank box is an invitation to disaster. A fully completed C-2 is not at all difficult to submit, but a few more explanations on how to do that are needed.

Completing Form 16.1 Will Greatly Enhance Success

For contested compensation claims there is a simple way that the employer can effectively organize information being sent to the carrier which will greatly enhance chance of success and greatly diminish unnecessary contests. That is for the employer to complete a form normally completed by only the carrier (NYWCB Form 16.1). The form must be submitted by the carrier alone, but there is nothing wrong with the employer filling out the same form and sending it to the carrier alone. This will organize the information needed by the carrier and make it possible for the carrier to get additional information, if needed, in a fraction of the time.

The benefits from such cooperation? Well, an employer/carrier team doing this will easily be in the top 10% on the performance results being measured by the NYWCB. (Top 1% is more likely, but let’s be conservative.) Well worth the effort.

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

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Medical treatment of NY comp claims was virtually unlimited two decades ago, but that has changed. Not all at once, but gradually and, with some proactive participation by employers, with opportunities for significant cost containment.

In prior years, there were no guidelines regarding medical treatment of NY comp claims. This was especially troublesome with old claims, which could be reopened at any time for almost any reason, or occasionally for no reason at all. However, perusing the Board’s new guidelines for treating flare ups of old injuries is like a person who has never played bridge trying to read the rules for the game. It is surely difficult for a medical office, and what will it be like for the injured workers.

Confusion, bottlenecks and uncertainty are the raw material for lawyer participation – UNLESS a bit of help is provided to the worker.

Uncertainty Will Quickly Grow Small Claims To Expensive Propositions

Employers with 100-200 employees rarely have even a dozen active claims in progress, and most of those will be for medical care. An employer who stays in active interaction with its claims will find that small claims stay small. But uncertainty will quickly grown the smallest claims into expensive propositions.

Therefore, the employer should be aware of measures which can keep the size of claims within reasonable limits.

Communication

The first is reaching out to persons with claims and ask if they are having problems. Be especially on the lookout for delays in payment of benefits or denials of medical care. Then call the carrier and ask for their version.  This type of communication will have a positive effect.

Going the Extra Mile

The second measure is to go to a Board office and review the Board electronic file for a claim that is being delayed. You will need a request to review the file signed by an officer of the business and notarized. Once it’s in the file, the file can be reviewed by the employer in the future as well. The employer should than call the carrier and inform it that the file has been reviewed and the employer has some questions. An employer going the extra mile will receive a much better reception by the carrier.

A Small Presence Can Make A Large Difference

The employer should then let the employee know that the employer has made efforts to limit further misunderstandings. Large employers are more likely to do these things but smaller employers seldom do. Even a small  presence will make large differences.

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

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

Until a decade ago, the NY comp board was all but insensate to many of the provisions of the Workers Compensation Law, a tradition which began with the 1947 changes in the law. The result was that clear provisions in the law were ignored in favor of informal “traditions”. That led to a degradation of adherence to the statute which led in turn to presentation of “close is good enough” facts and law.

Employers Receive Much Value From A Proactive Role

Employers, in turn, justifiably began to feel that their input was of little value in the outcome of claims, but that has changed in the last decade. Unfortunately, employers have rarely been informed of the renewed value of a more proactive role.

Recently, a new decision discloses the changes that have been occurring. An attorney who requested that the hearing point be changed, without sufficient cause, was fined $500, which was upheld by the court, even though the attorney had taken care to have his client request, in writing, the change. That may not seem to be a game-changing decision but the practices of just a few years ago show that it is.

Small Change In NYC Practice Means Large Opportunity For Employers

In the not so distant past, requesting a change of hearing point could yield large differences, especially for large firms with high volume. In particular, asbestosis claims which had a chance of being held outside of NYC, were invariable allowed to be changed if the hearing change request was to NYC. Normally, the hearings were scheduled for the hearing point closest to the workers residence but asbestosis claims originating hundreds of miles from NYC were routinely being rescheduled to the city.

The most recent case penalized the attorney for requesting a change of hearing point which was 25 miles away from the original, an unthinkable outcome less than 10- years ago.

What does this have to do with employers? It demonstrates that seemingly small details are now relevant. The employer’s role is important, but only if the employer participates. “Participation”, for employers, means forwarding information to the carrier, and not just the information requested on the employer’s report of injury form C-2.

All Claims Can Be Legitimate Unless Employer Becomes Involved

In the late 1990’s, a comp claim was disallowed because the worker’s uniform contained a label which said the garment was machine washable. The worker had been hit by a car while taking his laundry, including the uniform, to a dry cleaner. The worker tried to make the incident a comp claim by alleging that care of his uniform was a necessary job duty. The court said it wasn’t, based on that label. Details like that can only come from the employer, but now they make a big difference.

Employers have been allowed to believe that completing a C-2 form is sufficient, but there are no boxes on the form to describe cleaning instructions for work clothes. Nor are there any boxes which ask the employer to list possible defenses. The form, in fact, seems to assume that all claims are legitimate. And so will everyone else, unless the employer becomes involved.

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

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

New York comp claims, even the simplest ones, can take a shocking amount of time to work their way through the claims process. No one is more shocked, and too often financially ravaged, by the unexpected glacially slow flow than the injured workers and their families. But what accounts for this?

The law used to have an obscure section that required a decision to be formally made by the Board no later than 30 days after it received notice of a claim. If the Board backlog exceeded 30 days, the commissioners could be required to work extra hours, six days a week, until the backlog was eliminated. That section mysteriously disappeared sometime in the late 90’s.

 
Abuse of the System

One abuse, nearly universal with copying services, can serve to show how clear provisions of law can be ignored with resulting disasters to workers and the employers, and why such abuses result in inexplicable delays.

Comp claims exist on medical records. Without the records proceedings and decisions are meaningless. Therefore, the NY Board sees hundreds of thousands of requests for medical records each year. But before a custodian of records will comply it must receive the copy fee. The Public Health Law provides for a payment of 75 cents per page.

However, copying services, which are NOT legally the owners of such medical records and act only on behalf of the custodian, regularly charge three times that, also adding arbitrary miscellaneous charges. If the request for records is made by subpoena, these charges are entirely in violation of the law.

This abuse alone can add months to the life of a claim. But what is the redress? There are two: first, a motion in Supreme Court for contempt can be made, second, the Board has the power and the obligation to notify and refer to the Attorney General patterns of widespread abuses for widespread investigation and enforcement procedures. The Board, unfortunately, only suggests that the maker of the subpoena enforce one violation at a time in Supreme Court. The costs per contempt proceeding are far more than simply paying the extortionate charges. The elevated costs, eventually, become part of the employers’ premiums.

This is an isolated example of work comp abuse, which has been allowed to grow into a lucrative industry. But the abuse also adds to delay of benefits and increases the number of hearings per claim.

 
Abuses In The Court System

The point is that abuses of the system are many and that each type of abuse, each in its own way, adds to delay. Judges for decades have resorted to the expedient of making no decision, especially where wrongdoing might be involved, and simply granted “adjournments” hoping that the parties will just pay the charges and move on.

Other types of abuse have resulted in eyebrow raising consternation. A key stroke error by a Board typist placed the wrong carrier on notice. The error could have been corrected with a simple phone call by the judge or any party. Instead, two law firms “tried” the case, from start to finish, for NINE years. (If this seems unbelievable, see “Manticoff v American Building Maintenance”, 63 AD3d 1308 (2009))

Another abuse, which can serve as an example for tens of thousands of others, was a claim in which a worker was granted 11 “final” opportunities to appear. This went on for years. Neither the lawyer nor the judge knew where the claimant was, and what, if anything, he might be doing.

 
Stay Informed And Active On Your Claims To Avoid Problems

An employer would be wise to stay involved with its claims. An occasional attendance at a hearing, especially if delays are developing, can work wonders. Not to mention a polite letter and phone call.

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

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

The NY Workers Comp Board, on 4/4/14, issued a bulletin warning employers that attempts to describe delivery drivers as “independent contractors” will be subject to the NY 2014 Commercial Goods Transportation Act which will carry severe penalties for violations.

Employers should be aware that the definition of “commercial goods” includes all forms of fuel delivery, even though oil, propane and gasoline are not normally thought of as goods.

Goods delivered by heavy trucks, subject to federal DOT regulations have drivers whose pay is in the $100,000/yr range, with comp premiums of $10,000-$20,000/yr per driver. Thus, the temptations to reclassify drivers will be great.

New Law Written In Response of Trend to Misclassify Truck Drivers

This new law was written in response to a growing trend in NY to reclassify drivers of heavy vehicles in an effort to avoid the soaring costs of comp premiums. It will go into effect on 4/10/14. However, this comes at a time when the NYC DA, Cyrus Vance, Jr., also issued, last month, a grand jury report recommending enhanced penalties for employers attempting to reclassify workers in general as “independent contractors”.0

But such efforts are not new; they have been around since the comp law was passed in 1914. What the new law, and grand jury report, signal is that reclassification efforts have grown to the point of endangering the solvency of the NY State Insurance Fund (NYSIF). The figures cited in the grand jury report are that NY has a $6 billion/yr comp market, with $500 million/yr in fraudulent misclassification of workers and/or unpaid premiums. NYSIF currently insures 40% of the comp market and has the bulk of the misclassified workers and unpaid premiums.

Grand Jury Report Recommends Upgrading Penalties For Misclassification

The grand jury report recommends upgrading of criminal penalties for misclassifications, up from a class E felony (the lowest level of felony) to class D and, perhaps, even class C. This would be far more severe than the penalties in the 2014 Commercial Goods Transportation Act. Both would apply and employers should not think that penalties under one would rule out the other, although the changes advised by the grand jury are not yet law.

The new law and the grand jury report signal that the economic climate in NY work comp is in for changes not seen for decades and that the changes will be felt hardest in transportation. These, in turn, will be coming at a time when health care costs for drivers will also be rising at unprecedented rates.

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

©2014 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law.

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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker, attorney, or qualified professional.

The highest court in NY recently upheld a long standing rule that death claims in comp are not apportioned. (Hroncich v. Con. Ed.) If a work condition contributes to or accelerates death, however slightly, death benefits are paid entirely by the employer, notwithstanding that unrelated, non-work, conditions were overwhelmingly responsible.

Long-Standing Death Claim Rule Potentially Being Challenged

In NY, that is not new; it has been the rule for decades. What is new is that the New York’s Court of Appeals is not precisely backing that result. Instead, it is acknowledging the rationality of apportionment but saying that the legislature must change the law.

The case itself involved an old asbestosis claim which was allowed, but the former employee later died from an unrelated cancer. However, there was testimony that the earlier asbestosis diminished lung capacity and, therefore, contributed to the death.

The court seems to have realized that in the past virtually all claims for asbestosis were allowed, even though most resulted in little “disability” until retirement age, at which time claims for what were actually supplements to retirement were made.

Cost of Old Death Claims Could Exceed $10 Billion

Currently, there are tens of thousands, or more, of such old claims for chronic conditions that have been allowed, not just asbestosis, all of which can later be said to contribute to, or accelerate, death. This has been no secret to NY comp lawyers, who have been quite willing to close these claims, often with little lost time, knowing that all will eventually mature into a death claim.

The aggregate cost of these warehoused claims could exceed 10 billion dollars at present value. This could easily account for the court’s new found wariness.

Court Suggests Legislature Rewrite Law

The court has gently suggested to the legislature that this might be a section of the law that it should wish to consider rewriting. Such suggestions are not easily ignored. The long term potential of staying the course will add greatly to the problems of the NY comp system. One dissenting judge hinted that many of these claims, rather than be allowed or apportioned, should be dismissed entirely.

Employers should be aware that what are treated as nuisance claims often mature decades later into claims with potential costs expressed in fractions of a million dollars.

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

Editor Michael B. Stack, CPA, Director of Operations, Amaxx Risk Solutions, Inc. is an expert in employer communication systems and part of the Amaxx team helping companies reduce their workers compensation costs by 20% to 50%. He is a writer, speaker, and website publisher. www.reduceyourworkerscomp.com. Contact: mstack@reduceyourworkerscomp.com.

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