1. A state agency that ignores legal mandates and when the mandates are finally dealt with are done so with out conviction or determination.
In 2007 New York passed a major piece of "reform" legislation (aka "Spitzer reforms" after former Governor Mark Spitzer). As a part of that legislation the SWCB was tasked with devising and implementing a new permanent partial disability (PPD) rating system along with payment capitations.
A task force appointed by Spitzer rolled out the first two components of the impairment guides in September 2010. The components established the method for determining medical impairment and set out criteria for considering the affect on workers' ability to function. But the task force declared an impasse on the means of translating impairment into a percentage of lost wage-earning capacity and asked the SWCB to complete the final component of the guides.
SWCB Chairman Robert Beloten released the final version of the Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity last Thursday, but defers the most important elements of rating to the administrative law judges that oversee litigation in the system, thus denying all system participants of any stability or reliability in the outcomes of PPD awards.
Robert Grey, chairman of the New York Workers' Compensation Alliance, which represents claimants' attorneys, told out news reporter that the board tossed the issue of lost earning capacity into the worker's compensation court system by failing to provide weights for factors such as age and occupation.
"People are going to have to go into court and make their arguments. This will have to develop under the litigation process," Grey said.
This process is no different than what has been going on 3500 miles to the left in the Golden State, where a new PD rating schedule should have been implemented by state law in 2010, and here we are going into 2012 with no respect for the law because, apparently, since there is no penalty for not adhereing to the law the administrators who are tasked with the project are beholden to the executive branch, which has decided that the laws aren't in the people's best interests without any adjudication of rights, responsibilities or liabilities.
2. Litigation drives disability, pushing a class of people into a state of being that would not otherwise occur.
While the guides were in progress, the SWCB has relied on a set of New York-specific impairment guides adopted in 1996 and on board precedent. Duration caps have been slow in coming because of the board's failure to complete the impairment guides and its reliance on the 1996 guides.
Claimants' attorneys have not been complaining. "From the standpoint of a claimant's attorney, it is not in my client's interest to push a case for classification [the process of determining a workers' loss of wage-earning capacity based on impairment]. The best thing for my clients is not to be classified for as long as possible," Grey told WorkCompCentral.
So, the financial interest of the claimant attorney, and not the health (physical and mental) well being of the injured worker is paramount in the workers' compensation system, and the parties acknowledge that and do nothing to reverse what some have called the crippling of America with needless disability outcomes.
3. The government is business' worst enemy with self-serving, non-responsive agencies.
The New York Labor Department reported last December that, based on lost wage-earning capacity, duration caps were ordered for only 606 PPD claims between March 13, 2007, the day Spitzer signed the reforms, and June 30, 2009. The board typically hears tens of thousands of PPD claims each year.
What this means is that not only are injured workers' being needlessly pushed further into non-productive disability status, but employers continue to pay unreasonably high rates based on experience modification factors that are out of control due to governmental paralysis.
John Sciortino, president of the New York Injured Workers' Bar Association, and Albany defense lawyer Peter Walsh, who serves on a workers' compensation committee of the New York State Bar Association, said the board dragged its feet on completing the guides and allowed too little time for final comments.
"There has been no back-and-forth and no exchange of ideas," Sciortino said on Tuesday. "There has been no opportunity whatsoever for dialogue."
This seems to be the culture of the SWCB. Any regular reader of WorkCompCentral's coverage of New York issues will note a regular sentence in these stories: "SWCB spokesman Brian Keegan did not return a telephone call from WorkCompCentral...".
It seems that WorkCompCentral wrote a story some time ago that Mr. Keegan took issue with. Because the reporter would not retract what was written Mr. Keegan threatened, and thus far has made good on his threat, to not respond to any requests for comment by WorkCompCentral.
Some spokesperson Keegan is. His excommunicado position is simply a reflection of a state agency that does not hold its constituency in high regard, and prefers to operate in as secretive, selective manner as possible.
Claimants' attorneys have not been complaining. "From the standpoint of a claimant's attorney, it is not in my client's interest to push a case for classification [the process of determining a workers' loss of wage-earning capacity based on impairment]. The best thing for my clients is not to be classified for as long as possible," Grey told WorkCompCentral.
So, the financial interest of the claimant attorney, and not the health (physical and mental) well being of the injured worker is paramount in the workers' compensation system, and the parties acknowledge that and do nothing to reverse what some have called the crippling of America with needless disability outcomes.
3. The government is business' worst enemy with self-serving, non-responsive agencies.
The New York Labor Department reported last December that, based on lost wage-earning capacity, duration caps were ordered for only 606 PPD claims between March 13, 2007, the day Spitzer signed the reforms, and June 30, 2009. The board typically hears tens of thousands of PPD claims each year.
What this means is that not only are injured workers' being needlessly pushed further into non-productive disability status, but employers continue to pay unreasonably high rates based on experience modification factors that are out of control due to governmental paralysis.
John Sciortino, president of the New York Injured Workers' Bar Association, and Albany defense lawyer Peter Walsh, who serves on a workers' compensation committee of the New York State Bar Association, said the board dragged its feet on completing the guides and allowed too little time for final comments.
"There has been no back-and-forth and no exchange of ideas," Sciortino said on Tuesday. "There has been no opportunity whatsoever for dialogue."
This seems to be the culture of the SWCB. Any regular reader of WorkCompCentral's coverage of New York issues will note a regular sentence in these stories: "SWCB spokesman Brian Keegan did not return a telephone call from WorkCompCentral...".
It seems that WorkCompCentral wrote a story some time ago that Mr. Keegan took issue with. Because the reporter would not retract what was written Mr. Keegan threatened, and thus far has made good on his threat, to not respond to any requests for comment by WorkCompCentral.
Some spokesperson Keegan is. His excommunicado position is simply a reflection of a state agency that does not hold its constituency in high regard, and prefers to operate in as secretive, selective manner as possible.
New York's problems won't go away with a state agency as arrogant as SWCB. Governor Mario Cuomo would do well to scrap the entire SWCB and get people in there that are going to respond to the people of New York, and not hold those people hostage to its own agenda.workers compensation, work comp, injured worker
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