Posted by
Spencer D. Parr, Esq. on Tuesday, September 05, 2006 12:42:00 AM
The upcoming election for Governor has broad implications for the future of Workers' Compensation law in New York. It turns out that our virtually-uncontested gubernatorial race is producing a lifeless political climate in which our near governor-elect, Spitzer, has no motivation whatsoever to stick his political neck out before strolling to an assured victory in November. As a result, don't expect any reforms from Albany in the near term, as those would otherwise be most powerfully driven by an election cycle momentum that will now be absent. Such is our plight in this de facto one-party state, with a risk-averse gonnabe, future Governor.
So, what reforms would I suggest were there a more lively political atmosphere, with a more lively slate of Gubernatorial candidates? Well, my first 3 wishes for common sense reforms, as a Republican who works in the Workers' Compensation litigation trenches nearly every single day, would be as follows:
First, raise the maximum average weekly wage payable to the injured worker under the Workers' Compensation Law. Currently, an injured worker can receive only $400 per week in Workers' Compensation benefits, a rate that has remained the same for far too many years,
even if the injured worker is totally and permanently disabled. A climate of true respect for valuable work is not one in which only the lowest wage earners obtain full coverage for work-related injuries, as is the case under present law. Instead, even workers who currently earn the state's average income (a little less than $1,000 per week), or even better, should be covered to the same 2/3rds of their pre-injury income just as the very lowest wage earners are under present law. Can anyone please say "vertical equity" in our public policy, or must we all continue to suffer the stifling political mediocrity now gripping the party of Albany?
Second, strike the present statutory requirement that injured workers provide constant medical proofs of the degree of their disability or else face the alternative that the sick or injured worker's insurance payments for lost wages will automatically be terminated. This stupid, inefficient rule that exists at present creates an inflexible situation in which the recovery from a spinal neurosurgery is treated no differently than the recovery from a simple sprained ankle. Again, we should all say "thank you very little" to the mediocre politicians now in Albany, as well as those seeking to be on their way. This is because the present Workers' Compensation law often forces claimants to return to a physician's office for no useful medical purpose, which is a situation despised both by medical professionals and suffering claimants alike, even as this thoughtless mechanism of law forces incredible additional costs into the current system.
Instead, medical providers should be allowed the flexibility to prescribe, based upon sound medical judgement alone, the date upon which a particular claimant, suffering a particular injury or occupational disease, should return for an up-to-date evaluation of disability status. In this way, excess costs could be eliminated from the Workers' Compensation system at the same time as injured and sick workers could be treated in a more humane, and reasonable, fashion. That's a win-win in my book, and it would come at no Due Process expense to the defense insurance carriers since these defendants would still retain the statutory right to compel an Independent Medical Exam whenever that might seem appropriate to the defense (which gives the defense insurance carrier a way to obtain a second opinion, without forcing excess costs associated with the current, brainless mandates). Can we please treat our injured and sick workers more humanely in this state?
Hey, Spitzer, what do you say? Third, allow the injured worker to temporarily bill a private insurance carrier for the costs of any disputed medical procedure, rather than litigate for perhaps many months, or even well over a year, whether or not the desired procedure must be covered by the Workers' Compensation insurance carrier. If liability is eventually found by the Workers' Compensation Board (or some higher court), the Workers' Compensation insurance carrier may merely then be forced to reimburse the private health insurance plan at the statutory rates. If liability is eventually defeated, on the other hand, then at least the injured or sick worker was allowed to proceed with a recommended therapy or procedure in a timely and humane fashion. Such an obvious reform would produce myriad social policy benefits in terms of better recovery times, better rates of rapid return to work, lower rates of forced bankruptcy as a result of a work-related injury or disease, a greater sense of justice under the law, etc., etc.. Even the long-term stability of families would be made vastly more secure if this simple, commonsense reform is adopted by the party now in dominating control in Albany.
Hey, Spitzer-Elect! Where do you stand? Will you do anything for the injured and sick workers of this state once you are made governor?
Spencer D. Parr, Esq., is a graduate of UCLA School of Law and currently works as an Associate Attorney with the law firm of
Vincent J. Criscuolo & Associates in Rochester. Contact him at (585) 232-3240 to respond to this blog or to ask him a question regarding Workers' Compensation law. Otherwise, please contact him through the web site located at
criscuololaw.com.