Contributed by Pasternack Tilker Ziegler Walsh Stanton & Romano
There is a phrase in politics known as Friday News Dump or Take out the Trash Day. In other words, the act of releasing certain news items at the end of the work week in an attempt to avoid media scrutiny. In the case of the New York State Workers’ Compensation Board, the public servants that they are, the News Dump occurred at 11:00 pm on the Friday of Labor Day Weekend. As you may recall in April as part of the horse trade known as the New York State Budget, injured workers’ benefits were used as bargaining chips. The Business Counsel had argued that schedule loss of use awards which are given to workers’ for permanent injuries to the extremities were suddenly unfair to the employer. The original guidelines they argue were outdated and did not take into consideration new advances in medicine. One of the Budget provisions directed the Board to “consult” with a group stacked with pro-business and insurance interests to re evaluate the current guidelines. Well at 11:00 before the holiday weekend they issued their proposed changes and like the impact of Hurricane Harvey and Irma, no one could have foreseen the complete and utter destruction these proposals would have on injured workers benefits. Rather than addressing how advances in modern medicine enhances healing or create better outcomes, the Board totally disregarded the legislation’s directive and instead simply rewrote the entirety of the guidelines to create a new evaluation process which would destroy previously awarded benefits for permanent injuries.
These changes are arbitrary and capricious and an abuse of discretion. The legislature had previously established a fixed period of compensation based upon a specific injury but the board has taken it upon themselves to reduce or eliminate many of the benefits previously awarded for an injury. Additionally the Board has proposed provisions which are punitive in nature against the injured worker, bordering on being downright insulting, which only provide more opportunities for insurance companies to deny benefits.
One of the amendments submitted allows the insurance carrier to go on a fishing expedition to obtain information that is privileged, irrelevant or against the injured workers’ interest and penalizes them for failing to comply. These “questionnaires” if not completed to the satisfaction of the insurance carrier can be negatively inferred against the injured worker. The carrier can deny benefits simply by stating that the injured worker was uncooperative. This new amendment seems to be in direct violation of HIPPA privacy laws.
There are many who will be affected. Anyone who has been injured or knows someone who has been injured on the job should be appalled that their family and friends, when they are at their most vulnerable, would be attacked by the same State Agency that was established to protect them. Shocking as it is, these guidelines are being proposed by the Workers’ Compensation Board. The name itself implies it is for the benefit and protection of the Worker. Perhaps the name should be changed to the Business Council and Insurance Defense Agency as it appears their agenda has changed. Unions, particularly those that have workers who engage in any type of physical or hazardous activity should be outraged that their members will again be attacked financially when they are injured. The New York Daily News recently spoke to Mario Cilento, the President of the NY AFL-CIO, who commented that “the plan is an insult to all working men and women. Benefit cuts for injured workers are wholly unjustifiable.”
Legislators, in particular should be infuriated knowing that a governmental agency has usurped their authority in an attempt to dismantle a system that has been statutorily in place for over 100 years.
When will these attacks end if ever? Who is the driving force behind these attacks? One of the unfortunate consequences of a typical day is that some people go to work healthy one day and leave as a casualty of a work place injury the next. Some of us will be permanently injured or even killed. Regulating away benefits will not prevent injuries but will only result in someone else paying for benefits -usually tax payers. The slashing and burning must end. All of us must take a stand to protect those of our society who did nothing wrong except be one of the unfortunate victims of a workplace injury. How ironic that this bomb was dropped upon the working men and women of New York State on a holiday weekend dedicated to honoring the working people of this country.