Reforms to New York State workers’ compensation case determinations were made in 2017. These new rules are the first changes to be made since the New York State Workers’ Compensation Reform Act of 2007. The Buffalo Law Journal spoke to attorney Thomas C. Burnham about these changes and how they could be detrimental to workers. The full story is available on the Buffalo Law Journal website.
Obligation to look for work
Mr. Burnham told the Law Journal that, if someone is not working because of a partial disability, that person has an obligation to search for work. “If the (Workers’ Compensation Board) determines that you’re not making a good-faith effort, they can stop your payments until you show that you are making a good-faith effort,” he explained. Under the changes to the way workers’ compensation is determined, workers who are permanently disabled no longer have to show that they are looking for work. Mr. Burnham explained to the Law Journal that this means that “in almost every case now, the carrier or the employer is raising this issue before permanent disability is assessed.”
This is a problem for workers, Mr. Burnham said, because “it’s one of those use-it-or-lose-it things. In cases in the past where they could have raised it at any time, or sometimes didn’t raise it at all, now when you’re getting ready to litigate permanent disability you can generally assume that you’re going to be litigating labor market attachments.” The Buffalo Law Journal reports that, when judges make decisions regarding a worker’s permanent disability status and their lost wage replacement, an insurer that does not like the outcome can appeal the disability assessment or say that the worker is not entitled to the money because they are not looking for work. “There’s protection, but the issue is being raised in the vast majority of cases where permanent disability is being assessed and benefits are being paid,” Mr. Burnham said.
Medical advances
Mr. Burnham explained to the Law Journal that protecting workers is supposed to be the point of the law, but there are possible side effects that negatively affect workers when the law is changed. Under the 2017 reform, the Workers’ Compensation board is now required to reassess the permanent impairment guidelines for scheduled loss-of-use awards and make changes to reflect advances in modern medicine. According to Mr. Burnham, the new guidelines removed benefits for such injuries as tearing your rotator cuff or a meniscal tear in the knee. “The impacts are for the most common types of injuries,” he said.
“The new guidelines removed percentages of loss that were assigned for just having the tear. You still get compensated for having range-of-motion difficulties, but not for having the tear. You’re seeing a reduction in the percentage of loss of use now as a result of that,” Mr. Burnham went on. Some tears, such as bicep tears, are still covered, but others are not. “I’m not aware of any advances in modern medicine that explain why you remove the percents for a rotator cuff tear or a meniscal tear to justify why those changes were made,” Mr. Burnham said.
Savings to insurance companies
Where rotator cuff injuries used to account for 10-15% loss of use of a worker’s arm, which is just over 31 weeks of payment at total disability rate, the maximum rate is now $870 per week. “That would equate to a little over $27,000 that would have been compensated if you were evaluated on December 31, 2017, that’s not included now,” Mr. Burnham told the Law Journal. “It’s a very significant cost savings to the insurance company and a loss to the injured worker.”
These insurance savings are an impetus to this law, the Law Journal reports. “Sometimes,” Mr. Burnham said, “it’s lost that this is a workers’ compensation law.”
About Thomas C. Burnham
Thomas C. Burnham is the head of the Workers’ Compensation department at Lipsitz Green Scime Cambria. He focuses on several areas of disability law, including Social Security Disability, Workers’ Compensation, Supplemental Security Income, and Veterans’ Disability. He prides himself on helping clients in need of medical treatment and wage replacement benefits.
