New York Injured Workers' Alliance - Advocacy for injured workers

 WCL DEATH TAX!!

By Ron Balter, Louis Dauerer, and James McCarthy

 You and Your Client

Have you sensed a bit of unease in attempting to explain to your client the Surviving Spouse offset off WCL §16?  “Well,” you might humbly state with your best attorney countenance, “it’s the law.”

Legislative History

The offset provision [50%] on workers’ compensation of WCL §15.3(v) is based upon receipt or qualification for SS disability benefits and terminates the WC disability benefit upon receipt or entitlement to receive old-age SS benefits.  This provision raises a question of age discrimination.  Together with WCL §16, these reductions are characterized as “reverse offsets” as distinguished from the SS offset where the combination of workers’ compensation and SS benefits are greater the 80%.  This latter “default offset” was authorized by Congress in 1965.

 Prior to the enactment of the 2007 [WCL 15.3(w)] duration limits on workers’ compensation, the 80% default offset often operated to spur a compromise of the workers’ compensation indemnity rate from total to a partial rate despite evidence of a higher indemnity rate.  Commentators observed that the duration limits of the 2007 reform statute “effectively removes this possibility for compromise.”  [NYS WC Handbook, 5.52(4)].

 In 1981, Congress eliminated “reverse offset” provisions, but grandfathered those in NY and fourteen other states.  WCL §16 was enacted in 1977.  Among others, the legislative purposes cited:  “tax incentives for employers”; “creates jobs”; and “dependents are not without other financial support.”  In 1977, the maximum statutory indemnity for a death claim was $125 per week for an Average Weekly Wage [AWW] of $187.50 compared to the 2011 maximum of $772.96.

 Effects of the “Reverse Offset”

Recent AWW data [Joint Report of the NYS Insurance Department and NYS Workers’ Compensation Board, (March, 2009, p. 21)] indicates that of 83,830 Claims With First Indemnity Benefits paid in 2007-08, 34,022 [69.1%] were male and 13,841 [28.1%] were female, or a ratio of more than two to one.

Thus, the “reverse offset” disproportionately affects the female surviving spouse likely in a similar ratio.  [See Data Below]

Based upon the criteria of WCL §16 [Table 1: Sole Surviving Spouse, no children] the workers’ compensation indemnity reduction ranges from 5% to 50% depending upon the AWW range from $$100 to $200 per week.

The data further demonstrate that 78,339 claims have an AWW in excess of $224, representing 93.5% of the total number of claims potentially subject [in a death claim] to a “reverse offset.”  If the AWW is $450 [$300 per week statutory benefit] , a sole surviving spouse [over age 60] with a SS Survivor Benefit of $1200 per month is subject to a “reverse offset” of $138.46 per week [$1200 x 12/52 x .50] or nearly $7200 per year.  This represents a 46.15% reduction.  In the national debate, this would be characterized as “confiscatory” or a death tax.

 Time To Act

It’s been over 30 years since Congress prohibited (and grandfathered) “reverse offsets” and thirty-four since New York passed its legislation.  Rescission of New York’s “death tax” is long overdue and the Legislature needs to determine whether WCL §16 has met its purposes.  It’s difficult to imagine those goals have been achieved.  While death and taxes may be inevitable, they ought not be even more distressing and painful to surviving spouses.

Since the “reverse offset” is by operation of law, the reduction occurs without a hearing on the issue.  Due Process is at stake:

"To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].

The "offset provisions" are more than anachronisms.  They are punitive and survivors of deceased workers need not be victims.  It's time for these provisions to be repealed!!!

Having been previously diagnosed with “lameduckedness”, the New York Workers’ Compensation Board [WCB] appears to have incurred a new malady --- tunnel vision ! 

Among others, the promise and public policy underlying development and implementation of New York’s New Medical Treatment Guidelines  [MTG] were: 

• Medical Care and treatment required as a result of a work-related injury, should  be focused on restoring functional ability required to meet the patient’s daily and work activities and return to work, while striving to restore the patient’s health to its pre-injury status in so far as is feasible. 

Those same General Principles declare that, under the MTG's, workers’ compensation claimants are patients, acknowledging their rights as equal to those of all insurance subscribers in need of medical care and treatment. 

The Guidelines, which contain quality standards for medical care of injured workers, should encourage accelerated delivery of quality medical services to injured workers and reduce disputes and costs. [ See Transmittal letter from Superintendent of Insurance, 12/07/07]

• “Putting medical treatment guidelines in place will mean injured workers get faster and more effective medical care at a lower cost to employers,”Dinallo said. “These guidelines will standardize treatments so injured workers get quality and appropriate care for their condition. Without guidelines, disputes and inappropriate treatments can lead to higher cost but not better care.   [Department of Insurance, Press Release, 12/07/07]

However, just three years later, the promise and public policy did not anticipate the kind of “tunnel vision” that the WCB would apply upon writing regulations, interpreting, and implementing the Medical Treatment Guidelines under its Subject Numbers [a/k/a “fiats” ]. Check this out directly from the WCB web site:

• If a Workers' Compensation Law Judge had previously rendered a decision authorizing ongoing or symptomatic treatment, would the treatment have to follow the Medical Treatment Guidelines?
•       Yes. The Medical Treatment Guidelines will apply to cases with orders for ongoing or symptomatic treatment. If such treatment is not consistent with the Medical Treatment Guidelines, the Carrier may object. If treatment exceeds the amount recommended under the Guidelines, the treating medical provider must show that there is a need for continuing treatment through the variance process.

Ugh!! What may have been a clear interpretation by the WCB to apply the Medical Treatment Guideliness to all claims, regardless of injury date, has mushroomed into wholesale conflict and confusion.  Despite strong objections from the state AFL-CIO and Medical Society of the State of NY [MSSNY], the WCB’s implementation of the guidelines has resulted in almost a universal chorus of complaint.

Across the state, attorneys are reporting dozens of calls from claimants and medical providers on a daily basis seeking assistance in negotiating medical issues through the WCB’s torturous “variance” process.  Worse, due to retroactive application of the MTGs,  claimants and physicians are experiencing interruption of existing medical treatment plans previously authorized by a judge or carrier or pursuant to statute.  A recent communication from the an insurance carrier advised:

• This injury is now over two years old and [patient] continues to receive…treatment. Based on the NYS Medical Treatment Guidelines no further treatment is approved. We trust you understand our position. Thank you.

Thank you, indeed!  “Trust”??!  A workers’ compensation patient requiring medical care to continue working (and was previously promised such medical care by a Judge as part of the "deal" closing his case) must now be cleared through the “variance” process to maintain his/her capacity to work.  Trust??!

The objective and goal to reduce disputes and speed deliver of medical treatment is replaced by the continuing necessity to obtain approvals for treatment previously authorized. Bureaucratic absurdity in it's finest hour!

Many are urging legal action against the WCB to rectify its “tunnel vision.”  Such may be the antidote or “variance” required to cure the malady and restore the promise and public policy that was supposed to guide the MTG's. 

The existing statutory provision WCL §13 states:

• The employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment...necessitated by the injury of an employee for such period as the nature of the injury or the process of recovery may require..." 

The statute seems pretty clear to us. ( Also see Matter of Stajanov [AD3d, filed April 1, 2010] where the Court found the WCB could not trump it's interpretation of statutory construction with a subsequent regulation).  

We can perhaps understand applying the new guidelines prospectively to all injuries on or after 12/01/2010. But to apply them to injured workers who have made life decisions based upon the Board's own prior promises of medical care in cases that can be 20 years old or more and were part of a legally negotiated arms length bargain - well,  that's just cruel and unfair. 

Shame on the New York Workers' Compensation Board for this fiasco!

Op-ed by James McCarthy, Esq.

While it is essential to sustain a dialogue and cooperative relationship with the New York State Workers' Compensation Board, it is unfortunate that the current administration, as well as its predecessors, have been largely “deaf and blind” to the rights of injured workers.  Now, a lame duck administration appears poised to implement “legacy” policies and procedures.  Might these actions be about protecting political job at the Board?   

Since the 1996 Omnibus Reform Act, the bureaucracy that has settled and propagated itself at the WCB headquarters in Albany (20 Park Street) has created a hegemony over the state’s workers’ compensation system.  An entrenched junta of anti-claimant civil servants has continued to impose its vision of a legal system that defies legislative purpose and compromises the rights of injured workers. 

Within the last month, Park Street issued its list of items for its Streamlined Conciliation Process after its leadership met with a NYS Bar Committee of claimant and defense attorneys. This list was never discussed with the committee members. At the same time, a proposed draft of regulations surfaced concerning cross-examination procedures, an issue that certainly should have been discussed with the State Bar committee. 

This behavior has also been evident recently in the Park Street revision of the procedure for decisions concerning schedule loss of use claims.  Without consultation, the WCB gang has determined – by administrative fiat – how to implement permanency benefits without a hearing and in ways that violate existing law. 

These documents are in the context of previous intransigent conduct.  Despite strong objections from state legislators and their committees, the Park Street gang has spent nearly $1 million for a digital recording system to replace live stenographers; defied the legislature’s interpretation of the right to a hearing; failed to create a process for WAMO settlements; failed to seek advice and counsel from claimant and defense attorneys; diminished the independence of its judiciary; and radically altered the system’s jurisprudence, among others. 

Now, with only a few months remaining in the present state leadership, the Park Street gang is preparing a series of “legacy” proposals to encumber the system into the future.  These proposals appear as lame as the ducks who author them.  It’s axiomatic that bureaucratic cleansings are most thorough upon the succession of the same party to leadership.   

This may be the major motivation that surrounds the secrecy that the Park Street gang’s behavior.  On one day, it meets with a NYS Bar group to discuss an issue and, on the next, it releases a different set of agenda items.  At the same time, the gang is developing regulations for cross-examination without seeking consideration of the attorneys who are to be bound by them.  There is no reason to believe the gang does not understand what it is doing.  This behavior has typified Park Street’s modus operandi since the mid-1990’s. 

Those in the Park Street bureau who may survive in the post-November era will be a signal as to the direction of the new administration.  Who guards the guardians?

The New York Injured Workers Alliance (NYIWA), the common voice for injured workers in New York State, remembers the over 2700 victims (mostly civilian and rescue workers) who perished nine years ago on 9/11/2001 as a result of the terrorist attacks on the World Trade Center. Our ongoing support and prayers go out to their families and loved ones.

In addition, the NY Injured Workers Alliance  continues to support and pray for those who were injured or have become sick as a result of their volunteer, rescue, recovery or cleanup work at Ground Zero. They are true heroes and will continue to need our support and assistance with World Trade Center cases at the New York Workers' Compensation Board in the future.  God bless you.

It's as simple as that.  We are a new "grass roots" Political Action Committee (PAC) open to any and all who believe that the New York Workers' Compensation Board should serve injured workers first. We are the official political arm of the New York Injured Workers' Bar Association, whose members have been fighting for injured workers "in the trenches" at the Workers Compensation Board for generations. 

Although we will be supported by our well known and long time lobbyist in Albany, the New York Injured Workers Alliance will also use all available Social Media tools, including our Facebook page, Twitter posts found at @NYInjuredWorker, Cap Wiz to contact your elected representatives directly, and Constant Contact to inform NYIWA members of the most recent political news regarding workers' compensation claims. Our message will be heard loud and clear across New York State.

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