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State Drops Drastic Cuts to Workers’ Comp; Proposes Lesser Changes

December 2, 2017

By Steve Wishnia

ALBANY, N.Y.—After a storm of criticism, the New York State Workers Compensation Board has dropped a proposal to slash

Revised Workers Comp guidelines are still a “loss for workers.”

awards for workers who suffer permanent injuries on the job, replacing it with one much closer to the current standards.

“It’s a substantial improvement on the last proposal, which cut everything by 90%,” says Robert Grey, chair of the Workers Compensation Alliance, a group of about 150 lawyers and law firms who represent injured workers. But smaller changes mean that “it’s still a loss for workers,” he adds.

The revised proposal, issued Nov. 22, deals with guidelines for awards for “scheduled loss of use”—injuries that permanently impair sight, hearing, or the use of a limb. Under workers’ compensation, injured workers get their medical bills for the injury paid, part of their salary, and a lump-sum award based on the degree of permanent impairment, in exchange for not suing their employer.

To calculate the lump-sum award, doctors and medical examiners assess the degree of impairment as a percentage. That percentage is then multiplied by the number of weeks of pay state law sets for the injured body part. For example, 50% loss of use of an arm is worth 156 weeks, and 50% loss of use of a leg is worth 144 weeks.

The two main changes in the revised proposal, says Donald Crouch of the Manhattan firm Fine, Olin & Anderman, are about shoulder and knee injuries. The current guidelines presume that a person who suffers a torn rotator cuff or meniscus cartilage will automatically have a 10-15% impairment, with an additional award based on how much range of motion they’ve lost. The new proposal, he explains, eliminates that 10-15% baseline and bases awards for those injuries only on range of motion.

The previous proposal, released Sept. 1, would have revised the guidelines to define scores of impairments as much less severe. For example, Grey told LaborPress in September, they would have defined being unable to lift your arm above your shoulder because of a torn rotator cuff as a 1% loss of use, instead of 40%—reducing the injured worker’s lump-sum award from 125 weeks of benefits to three weeks. As the amount of lost wages already paid—up to two-thirds of the workers’ last salary or $870 a week, whichever is less—is deducted from that sum, he added, in practice that would mean that many people would get nothing for being permanently injured.

Insurance companies were the main group supporting those changes, the Workers Compensation Board said, but they drew intense criticism from labor unions, legislators, injured people, and the lawyers who represent them. The board said the majority of the public comments it received on the September proposal—about 400 formal written comments, 2,400 form letters, petitions with more than 8,000 signatures, and more than 18,000 postcards—opposed it. Labor organizations, it said, objected to the reduction in awards, a proposed reduction if the claimant is deemed uncooperative, and a requirement that injured workers be examined by an independent medical examiner and not a health-care provider of the employee’s choice.

An October letter from the 21 official Democrats in the state Senate said that the September proposal would in many cases “wholesale eliminate compensation for seriously injured workers.” Later in October, a letter signed by 95 of the 106 Assembly Democrats, including Speaker Carl Heastie, said the board had not revised the existing guidelines to reflect “advances in modern medicine” as required by law, but instead “took the liberty to completely rewrite and restructure the guidelines without evidence.”

“In response to the comments received,” the Board said, it “is replacing the proposed guidelines and providing a new proposal.”

“It’s clear that the new chair heard what injured workers had to say,” says Grey. Former District Council 37 legal-services staffer Clarissa M. Rodriguez became chair in September, after Kenneth J. Munnelly retired.

The public-comment period on the new proposal ends Dec. 22.

December 2, 2017

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