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Report Calls Workers’ Comp Protections ‘Seriously Eroded’

June 5, 2019

By Steve Wishnia

Construction workers on the job near City Hall.
Disturbing new Workers Compensation report has major implications for workers throughout the state.

NEW YORK, N.Y.—More than 100,000 workers in New York State are injured each year badly enough to miss time at work, but the state’s workers’ compensation system has been “seriously eroded,” according to a report released May 30 by the New School’s Center for New York City Affairs.

“Legislative and administrative changes have focused on curtailing benefits rather than minimizing injuries, adequately compensating injured workers, or fostering return to work,” says the report, “Time for a Real Look at How the New York State Workers’ Compensation System Treats Workers.” “Fairly compensating injured workers used to be the guiding principle for workers’ compensation; for the last several years, changes have been geared to minimizing employer costs and have boosted insurance company profits.”

The system is intended to cover injured workers’ medical expenses and replace some of the wages they lose, in exchange for them not suing their employer for damages. But New York’s minimum benefit is only $150 a week, the report notes, less than half the $339 average in the five neighboring states. Its maximum, set to two-thirds of the state’s average weekly wage, ranked 29th nationally in 2017-18, when it was $871 a week—despite the state average wage ranking in the top three. (It’s going up to $934 on July 1.) 

That New York’s benefits are even that high is the result of changes made in 2007, when its payments were barely above Mississippi’s. But the political compromises made in exchange for those increases included cutting off benefits for workers who are “permanently partially disabled” after four to 10 years. Those workers, with disabilities such as 40% loss of range of motion in their right arm, account for more than 70% of workers’ compensation payments.

The rationale for those limits, the report says, was that they would give injured workers an incentive to return to work. But “the evidence that is available suggests that relatively few permanently partially disabled workers do in fact return to work,” it says.

In 2017, the state capped payments for temporary disability at 2½ years.

“There is ample evidence,” the report says, that the 2007 and 2017 changes “further lessened the adequacy of benefits provided to workers suffering workplace injuries,” both depriving them of their livelihoods and weakening incentives for employers to maintain safe working conditions.

Meanwhile, it adds, the amount paid out in benefits fell by 15% from 2014 to 2017, while insurance-company profits rose 92%, to more than $1 billion in 2017.

Workplace injuries overall in New York have declined significantly since 1996, but the number of fatal ones rose sharply from 2013 to 2017, particularly in construction. In private-sector jobs in 2017, about half the 69,000 injuries severe enough to require a day off came in retail trade, hospitals, transportation and warehousing, nursing homes, and construction. The highest rates of injuries, in 2016, were in warehousing and nursing homes.

Most of the injured are low-wage workers. In 2017, 52% of the 80,000 workers whose claims were recognized as work-related injuries made less than $900 a week.

“Injured workers face a host of barriers to accessing benefits,” the report adds. Workers classified as independent contractors, except for black-cab drivers, are not eligible. Somewhere between one-third and two-thirds of injuries are not reported, the report estimates, and as many as three-fourths of the injured may never file for workers’ compensation. 

Some of those who don’t apply fear retaliation. Because the number of injuries reported affects insurance costs, the report says, “employers have a financial incentive to discourage or prevent workers from receiving benefits.”

“Generally, injured worker claimants without legal counsel face a daunting challenge,” it adds. Since 2008, the state Workers’ Compensation Board has required claimants to submit a medical report before their employer or insurance carrier has to respond to their claim. The board often denies claims administratively, without a formal hearing. Interpretation services are limited for workers who don’t speak much English.

In recent years, the report says, insurance carriers have spent 12% of their revenue from premiums on challenging worker claims. One way they do this is by having injured workers see an “independent medical examiner” several weeks after they are awarded benefits, “a practice that often results in workers’ comp benefits being reduced after the initial assessment.” (One Staten Island independent medical examiner was nicknamed “Dr. Says-No,” according to a woman who saw him.) 

The report recommends that the state raise both the minimum and maximum weekly benefit levels, basing them at more than two-thirds of the average weekly wage and allowing them to go up based on the worker’s projected earnings if they hadn’t gotten hurt. It also urges improving access to benefits, particularly for low-wage workers; funding return-to-work programs; ensuring that businesses invest in enhancing workplace safety; and stronger enforcement against “the misclassification of workers as independent contractors that allows some employers to evade paying workers’ compensation.”

“Getting injured on the job should not push a worker into poverty. This report shows that the worker’s compensation benefit structure is broken and needs to be overhauled for all of New York’s workers,” Charlene Obernauer, executive director of the New York Committee on Safety and Health, said in a statement. 

June 5, 2019

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