The Business Council strongly opposes this legislation, whose effect–if not its explicit intent– is to undermine the permanent partial disability duration limits adopted as part of the state's 2007 comprehensive workers' comp reform legislation and the intent to lessen the financial burdens of the workers' comp system on employers found in the 2013 comp reform package. Key among the 2007 reforms was a duration limit on non-scheduled permanent partial disability awards of up to ten years, this legislation would in practice remove any durational cap.
While cost-savings based on the PPD caps has not yet been realized and has been undermined by a significant increase in the average time it takes for maximum medical improvement classification (prior to any cap) to approximately 6 ½ years, this legislation would guarantee that promised cost-savings in the system would never occur. The legislation would tilt the state's comp system toward awarding permanent total, rather than permanent partial, disability awards by establishing a legal presumption that any comp claimant that has been approved for Social Security Disability (SSDI) benefits has a permanent total disability under New York's Workers' Compensation Law.
While both SSDI and workers' compensation have similar definitions of total disability, there is little relevance between findings of social security disability and permanent total disability under workers' compensation law.
Data published by the Department of Financial Services and Workers' Compensation Board shows that while about 25 percent of workers' compensation claimants receive SSDI benefits at some point during their disability, only about 1 percent of comp claimants who do receive SSDI benefits are classified as permanent total disability under workers' compensation.
In a drastic change to current state law, this bill would give a presumption of permanent total disability to the other 99 percent of comp claimants who receive any SSDI benefits, and who in fact do not qualify for permanent total disability benefits under New York's workers' comp law.
The logic behind this proposal is severely flawed. There are major differences between SSDI and workers' compensation that make this approach both inappropriate and unsupportable.
- SSDI determinations are based on disabilities from any cause, not just workplace injuries, as is the case under workers' compensation. This bill could lead to presumptive comp determination based on non-workplace injuries.
- SSDI determinations can be made within five months of an injury; workers' compensation classifications are made after a claimant reaches maximum medical improvement. (Note that workers' comp claimants are eligible for both medical care and temporary total disability benefits prior to MMI and classification).
- The workers' compensation law already provides for a process to transition claimants from temporary to permanent classifications.
- SSDI determinations, upon which this presumption of permanent workplace-related disability is based, are made in a non-adversarial setting, and provide no opportunity for input by the claimant's employer or its carrier.
This legislation would severely disrupt any attempt to control the costs of New York's comp system by undercutting the most significant program reform included in the 2007 reforms. It would ultimately result in massive program cost increases and an entirely uncompetitive state workers' compensation system.
For these reasons The Business Council strongly opposes the enactment of S.76 (Peralta) / A.6862 (Rosa).