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New York unions push back on proposed comp rules

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The New York State Workers’ Compensation Board is receiving pushback from labor unions on proposed workers compensation regulations that they say would reduce benefits for injured workers in New York.

The impairment guidelines, released in draft form on Sept. 1, are mandated by statute by a workers compensation reform package signed by New York Gov. Andrew Cuomo in April.

The guidelines revamp long-standing guidance created in the early 1900s and “establish the methodology for evaluation of medical impairment, i.e. the permanent residual physical deficit as it exists at the time of maximum medical improvement. The finding of permanency is to be made by the Board, based on the evidence of the permanent medical impairment’s measured impact on the earning power of the disabled claimant,” according to guidelines provided by the New York State Workers’ Compensation Board.

Experts say that the New York business community has pushed for workers comp reform to drive down the state’s comp costs.

However, labor unions say that this measure will cut benefits for injured workers.

“Earlier this year, the Governor and the Legislature directed the Workers’ Compensation Board to update its schedule loss of use impairment guidelines to reflect advances in modern medicine that enhance healing and result in better outcomes,” Mario Cilento, New York-based president of the New York State AFL-CIO, said in an emailed statement. “Instead, the Board took it upon itself to totally rewrite the guidelines and propose other regulatory changes with an eye toward slashing benefits. If enacted, this package would drastically reduce awards for workers that lose the use of a body part and introduce changes to the process that would lead to ever increasing uncertainty, delay, and litigation for injured workers. This proposal runs counter to the intent of the legislation.”

Lev Ginsburg, Albany, New York-based director of government affairs for the Business Council of New York State, said several cost drivers were isolated.

“We isolated a number of the major cost drivers and one of them was scheduled loss of use awards and with scheduled loss of use of awards,” Mr. Ginsberg said. “Even more so, we isolated extremely high payments for injuries that did not lead to any significant lost time from work. What was problematic about the way SLUs were being paid out in the state was that when the system was designed over 100 years ago, there was a logic to if you severely injured your hand or foot you were going to have limited ability to earn a living. In many cases, this just isn’t the case in modern times with modern medicine. There is no question that there are injuries to these extremities that could be catastrophic for an injured worker and there is no question ... that those severely injured workers should continue to receive robust benefits. We are concerned with those who have minor injuries ... who are returning to work in very near time and were receiving 5- and 6-digit payoffs.”

New York labor unions argue that there was no need to cut benefits.

“This is especially true, considering that premiums would have fallen without the legislation enacted earlier this year, that other parts of the legislation have already created even greater savings and, that there is still no guarantee that those savings will be passed on to employers,” Mr. Cilento said in his email.

In 2015, state employers, small government and local government, paid $1.3 billion in scheduled loss of use awards, $9 million of which were for people who missed less than 2 weeks of work, said Mr. Ginsburg.

“These guidelines were meant to modernize the medicine ... with an eye on bringing the assumptions about recovery into reality. As far as the unions saying that the regulations will reduce benefits for injured workers, we are not reducing benefits for injured workers that are severely injured. The point was to make benefits more properly adjusted to the severity of the injury or the ability of an injured worker to make a living,” said Mr. Ginsburg.

The NYS AFL-CIO has stated it opposes the plan and calls on the board to abandon it and publish a proposal, “within the scope of its legislative mandate,” said Mr. Cilento.