Workers Compensation Update. Lev Ginsburg, Esq. Director of Government Affairs

Transcription

1 Workers Compensation Update Lev Ginsburg, Esq. Director of Government Affairs

2 Bill Introduction S.4014 (DeFrancisco)/A.5977 (Woerner) Called for the immediate release/adoption of Impairment Guidelines for SLUs. S.4554 (Amedore)/A.6218 (McDonald) Limits SLUs to 85% impairment and above while the remainder of claimants would receive PPDs for time lost from work. The current SLU system costs over $1.2 billion annually, $934 million of which is for no lost time awards. S.4520 (Akshar)/A.6602 (Woerner) Applies start date to existing durational caps as "date of injury." The average time from the date of injury to the date of disability rating in New York had skyrocketed to almost 7 years after the 2007 reforms. This is due to system manipulation meant to extend the total time of benefits far beyond the 10 year cap. This bill would have corrected the flaw in drafting in the 2007 reforms and begin the 10 year duration clock at the date of injury.

3 Coalition Building

4 2017/18 Budget Part NNN of Chapter 59, Laws of 2017 Effective April 10, 2017

5 Cost Saving Provisions Non Schedule PPD Credit for Temporary Disability benefits beyond 2.5 years Permanent Impairment Guidelines to be adopted by the WCB by January 1, 2018 Adoption of a comprehensive pharmacy prescription drug formulary by December 31, 2017

6 PPD Credit Creates a credit for TD benefits paid beyond 2.5 years (130 weeks) for dates of injury on or after April 10, 2017 from the date of injury to be applied against the LWEC Cap. (Current average time to classification is 4.5 years average claim is approximately $30,000/year). Safety Valve: extends the period of TD benefits beyond 2.5 years when the Workers Compensation Board ( WCB ) makes a determination that a claimant hasn t actually reached Maximum Medical Improvement ( MMI ) on that date. (guidance forthcoming)

7 Permanent Impairment Guidelines for SLUs Requires the WCB to adopt Permanent Impairment Guidelines by January 1, The new guidelines must incorporate advances in medicine that result in better healing and outcomes for injured workers to use in evaluations and determinations for SLUs. The process will involve consultation with labor, business, medical providers, insurance carriers and self insured employers and be published for public comment on or before September 1, In the event the WCB does not adopt guidelines by January 1, 2018, the WCB to adopt interim regulations as current guidelines become void on the same date.

8 Drug Formulary Requires the WCB to adopt a comprehensive pharmacy prescription drug formulary by December 31, Drugs found in the formulary may be prescribed for a causally related condition Non preferred drugs may only be prescribed when a variance has been granted Methodology to review requests to add pharmaceuticals to the preferred list, handled through the Medical Director s Office, effective on December 31, 2017.

9 Potential New Costs Post PPD Labor Market Attachment Extreme Hardship Determination Safety Net Threshold 80% to 75% First Responder Stress Claims

10 Post PPD Labor Market Attachment Claimants who have received a determination of PPD AND are entitled to benefits at the time of such classification will no longer be required to demonstrate an ongoing attachment to the labor market. This does not impact the question of attachment during periods of temporary disability prior to classification. NYCIRB has priced this as too negligible to count toward a loss cost increase.

11 Extreme Hardship Determination Lowering the safety net threshold from greater than 80% to greater than 75% for determining when a claimant with a PPD may apply to the WCB for a redetermination due to extreme financial hardship. The change applies retroactively. In the event that a WCB Appeal Panel reduces a LWEC finding that is above the safety net threshold by a Workers Compensation Law Judge to a LWEC finding that is below the safety net threshold, any request for Full WCB Board Review will receive a mandatory full Board review. Safety net cases will be cases of first impression the WCB will be issuing guidelines regarding applications and hearings for extreme financial hardship determinations.

12 First Responder Stress Claims First responders who encounter extraordinary stress in a work related emergency who file a claim for mental injury will no longer be barred from a claim because the stress they encountered in dealing with an extraordinary work related emergency is no greater than the stress encountered by other similarly situated first responders.

13 Other Provisions IME Study Requires the WCB to conduct a study on IMEs in An IME Advisory Committee will convene in 2019 to review the WCB s findings and make recommendations to improve the overall IME system. Mandatory 45 Day Hearing where there is medical evidence of a work related disability, the Claimant is not working and is not receiving benefits, and the claim is not controverted, the Claimant may request a hearing within a 45 day period. Penalties The $300 penalties issued pursuant to WCL 25(2)(a) may now be imposed without a hearing against a carrier who has failed to pay or controvert a claim within 18 days. Performance Standards The WCB will establish performance standards, by regulation, and issue aggregate penalties against carriers or self insured employers to more effectively regulate carrier behavior with respect to timely filing, payment, and controversy.

14 Other Provisions WCB Assessments and Assumption of Liability Policies WCB may execute assumption of workers compensation Liability Policies for any claims the Board is responsible to administer, including WCL 15(8), 25 a, and Uninsured Employer Fund claims and may use bonding authority to aid solvent, inactive, group self insured trusts in executing ALPs by borrowing from the self insurance bond funds with a pledge to repay, prior to actually becoming insolvent. Extends the Compensation Insurance Rating Board (NYCIRB) position as a rate service organization until Requires that Workers Compensation rate filings with 5% or greater increase over prior year s loss costs have a public hearing. Requires a NYCIRB public actuary to release an annual report on the savings to the industry related to the 2017 Reforms in each of the next 10 years. Requires carriers to refund current year savings due to the caps on injuries no later than December 31, Reduces the WCB s assessment fund balance allowance is reduced from up to 10% to no more than 5%.

15 Paid Family Leave The act applies to nearly all private sector employers of one or more employees Leave may be taken to participate in providing care, including physical or psychological care for a family member, to bond with the employee s child during the first twelve months after the child s birth, or the first twelve months after the placement of the child for adoption or foster care; or to prepare for a qualified military exigency as defined by the FMLA

16 Family Member Family member means a spouse, child, parent, grandparent*, grandchild*, or domestic partner* Child means a biological, adopted, or foster son or daughter, a stepson or stepdaughter, a legal ward, a son or daughter of a domestic partner, or the person to whom the employee stands in loco parentis. Parent means a biological, foster, or adoptive parent, a parent in law, a stepparent, a legal guardian, or other person who stood in loco parentis to the employee when the employee was a child Grandparent means a parent of the employee's parent Grandchild means a child of the employee's child Spouse/Domestic Partner

17 Benefits January 1, 2018; up to 8 weeks of leave at 50% of the employees average weekly wage to a maximum of 50% of the state s average weekly wage; January 1, 2019; up to 10 weeks of leave at 55% of the employees average weekly wage to a maximum of 55% of the state s average weekly wage; January 1, 2020; up to 10 weeks of leave at 60% of the employees average weekly wage to a maximum of 60% of the state s average weekly wage; January 1, 2021 and thereafter; up to 12 weeks of leave at 67% of the employees average weekly wage to a maximum of 67% of the state s average weekly wage.

18 Eligibility Full Time: Defined as those regularly working 20 or more hours per week After 26 weeks of employment Part Time: Defined as those regularly working less than 20 hours per week After 175 days of employment

19 Contribution June 1, 2017 (and September 1 thereafter); Superintendent of Financial Services shall set the maximum employee contribution 2018: 0.126% of an employee s weekly wage up to the maximum of the state s average weekly wage ($1, x 0.126%=$1.65) Employers may begin deducting employee contributions July 1, 2017

20 Taxes Premiums will be deducted from employees after tax wages Employers should report employee contributions on Form W 2 using Box 14 State disability insurance taxes withheld Benefits paid to employees will be taxable non wage income that must be included in federal gross income Taxes will not automatically be withheld from benefits; employees can request voluntary tax withholding Benefits should be reported by the State Insurance Fund on Form 1099 G and by all other payers on Form 1099 MISC

21 Voluntary Coverage 12 NYCRR Section Voluntary coverage for family leave when already providing voluntary disability benefits coverage. c. An employer who provides voluntary disability benefits to its employees on December 1, 2017, and is permitted under sections 212, 212 a and 212 b of the Workers' Compensation Law to provide only disability benefits or family leave benefits to its employees, must notify its employees and the Board that it will or will not be providing family leave benefits to its employees prior to December 1, 2017.

22 Lev Ginsburg, Esq. Director of Government Affairs The Business Council of New York State, Inc. 152 Washington Avenue Albany, NY T