Comments add insult to injury on comp cases

A commentary headlined “Workers’ Compensation Reform — we need it now,” by Todd J. Tranum, president and CEO of the Chautauqua County Chamber of Commerce appeared on March 19 in the OBSERVER. In his comments, Tranum calls for reform of the New York Workers’ Compensation Law on the premise that “costs are out of control.” He refers generally to three initiatives backed by the business and insurance lobby, which would roll back benefits to injured and permanently disabled workers and their families.

First, the statement that “costs are out of control” in New York in reference to the cost of workers’ compensation is not supported by any reliable data, particularly as it pertains to costs associated with benefits paid to injured workers. In fact, data shows that costs to employers are lower while benefits to disabled workers have become more inadequate than in prior years.

These fact are supported by an October 2016 U.S. Department of Labor study, a study by the National Academy of Insurance undertaken in 2013 and the New York state Compensation Rating Board’s 2016 State of the System report, all of which support the facts that workers’ compensation is not a high cost to employers, that any increases in costs are attributable to increased employment and increased wages, not increases in benefits to injured or disabled workers, that only a small fraction of increases in employer costs are passed through to worker benefits and finally, that worker benefits are inadequate and difficult for injured or disabled workers to access.

In reality, as the board’s report found, over 85 percent of employers in New York pay less than $5,000 a year toward workers’ compensation insurance.

In spite of this data, the insurance and business lobby are actively funding and pushing for changes in the law which would roll back benefits to injured and disabled workers; benefits that are already deemed “inadequate” according to the Department of Labor. The call by Mr. Tranum to address “Limit ‘schedule loss of use’ awards to cases with 85 percent impairment ratings” is not directly correlative with any projected savings to employers in terms of workers’ compensation costs. However, such a change to the law would have a profound impact on benefits paid to permanently disabled workers and would, in some circumstances, send a disabled worker and his or her family on a trajectory toward seeking tax supported public assistance in the absence of these benefits.

Mr. Tranum observes that the workers’ compensation law needs to be changed to “correct a flaw in the 2007 workers’ compensation reform that have allowed claimant attorneys to extend the total time of benefits beyond the 10 year cap.” This observation is simply untrue. Prior to the 2007 workers’ compensation reform, there were no caps on benefits. Permanently disabled workers could receive out-of-work benefits or reduced earnings benefits without any limitation in terms of time.

The 2007 reform was a deal struck by labor and the business lobby whereby in exchange for capping permanent partial disability benefits at the time a claimant is determined to be permanently partially disabled by the Workers’ Compensation Board, maximum weekly benefit rates payable to injured workers would be equalized to current actual average earnings as maximum weekly rates prior to the 2007 reform were capped at $400 per week no matter what a claimant’s average weekly was. The proposal Mr. Tranum calls for here would be a further concession by permanently disabled workers to manipulate the start date for these caps back to the original date of injury, with nothing given in return.

Lastly, Mr. Tranum asks for the New York Workers’ Compensation Board to “adopt the already completed Impairment Guidelines for ‘schedule loss of use’ awards.” Likewise, this statement is incorrect. The impairment guidelines referred to are not “completed” and in fact, there has been no public airing of the appropriateness of these guidelines.

The New York State Workers’ Compensation Board presented proposed changes to current impairment guidelines in a meeting with stakeholders in January 2016. The board did not distribute copies of these guidelines, nor did they allow stakeholders to make copies of them thereby blunting any serious opportunity for study or opportunity for substantial public input or commentary. Blindly adopting these “impairment guidelines” without proper public vetting is contrary to basic principles of a representative democratic government.

The proposals called for are a repudiation of the agreement reached by employers and labor represented by the 2007 reform and are an unmitigated assault on New York’s injured and disabled workers and their families.

Any further efforts to retract worker benefits should be opposed as they are not based upon any legitimate policy.

Thomas F. Ferris, Esq., is a partner in Connors & Ferris, LLP in Cheektowaga.