Workers' Compensation Committee Update

March 25, 2011

Legislative Update 

State Budget

Legislators continue to negotiate various aspects of Governor Cuomo's 2011-12 budget. Specific workers' comp related items include:

State Legislature

The chairs for the Labor Committees in each house --Senator Joe Robach and Assemblyman Keith Wright - have their committees underway; expect committee activity to ramp up once a budget is enacted. Over a hundred bills have been introduced which propose changes to the workers' comp law -- some of the “usual suspects” and some new bills which will warrant close monitoring. Of particular interest:


For the Data Wonks

For those looking to make informed practice and policy decisions, getting aggregate data from the WCB continues to be a challenge. The WCB did not issue a 2010 “Joint Data Report”, building from the 2008 and 2009 reports on data issued with the Insurance Department; and it is unclear whether a 2011 report will be issued.  This leaves the system with little tangible public data to evaluate aspects of the 2007 reforms.

The Department of Labor, however, has met its statutory obligations in issuing its Annual Safety Net Report of the Commissioner which provides the only public data on PPD cases classified since the 2007 reforms. Some quick takeaways:

Earlier this month, the Social Security Administration released its 2010 Annual Statistical Supplement, which includes states' workers' comp data.  The supplement data caught the eye of the Wall Street Journal for a different reason:  New York is among the easiest of states to qualify for SSDI. Given the more than precarious state of the SSDI Trust Fund (some would say insolvency), the need for better state-level data to conduct better evaluations on the links between SSDI and WC couldn't be more needed.

In the Works

The workgroup convened to write the Medical Treatment Guideline for Carpal Tunnel expects to complete its work in the next couple of weeks. Incorporate that MTG into the existing framework will be handled through regulation. This also opens the opportunity to propose modifications to the MTG process regulations that may have been well intended, but are in fact having unintended consequences.

The Board continues to convene its Attorney Fee Panel, which met at the request of the Chair starting last November. Ostensibly this group was to address two issues of concern o the Chair; the agenda which was never formalized by the chair morphed into a wish list for special interests. The group meets next on April 1 and although no agenda has yet been sent, some expect claimants' attorneys to present the need for guidance on the payment of attorney fees in variance cases. At the February meeting of the group, claimants' attorneys raised the issue related to the “volume” of work around variance requests and the lack of a process for them to get compensated.  BCNYS will oppose any such fee and will continue to monitor closely activities of this ad-hoc Panel. The Board reports, FYI, that the preponderance of variance requests are from chiropractors and physical therapists.

With the issuance of the MTG on Carpal Tunnel, we're interested in hearing from members about Scheduled Loss of Use cases and any trends they may have noticed recently on these.  Some members are reporting increased “class action” type SLU activity exacerbating outdated SLU guidelines and positing whether medical treatment advancements call for a revisiting of the schedules and their appropriateness.

In the News…

The New York Times, in a piece focused on Washington State's Health Technology Assessment Committee, which is tasked with identifying which medical devices and procedures will be authorized for public employees, injured workers, and the state's Medicaid recipients. Some of the procedures not authorized by this Committee reflect some of the findings as well by those who developed New York's MTGs - which doesn't mean those whose practices are impacted will not be making noise.

And while I suspect many of you see cases each day that make you shake your head, this case from Montana takes to a new level how not to “get ready” for work.