Earlier this year, Governor Cuomo and the New York State Legislature made several changes to the New York WC Law. It is unclear how all these changes will affect injured workers.
Here is a summary of changes that affect injured workers:
Looking for Work: Before the law changed on April 10, 2017, injured workers were required to prove that they were looking for work AFTER they were found to have had a permanent partial disability [“PPD”] by the WC Board [“WCB”]. Failing to produce such proof jeopardized the right of an injured worker to collect lost income benefits into the future.Because of the changes to the law, injured workers who have been classified with a PPD –and who were entitled to lost income benefits at the time of classification—NO LONGER MUST PROVIDE PROOF THAT THEY ARE LOOKING FOR WORK. This requirement was difficult for many injured workers and put them at risk of losing lost income benefits.
First Responder Stress Claims: Before the law changed, first Responders (police, firemen, EMTs, paramedics, certified emergency medical providers, emergency dispatchers and other similar workers) who filed a WC claim for a mental injury were often barred from collecting because the stress they encountered was deemed to be “no-greater-than” the stress encountered by other similarly situated first responders. Such an argument will no longer defeat a WC claim. This change should allow more first responders who suffer mental injuries from work duties to collect WC benefits.
Shortening the Path to Permanency: Before the law changed, there was no specific deadline in the law for an injured worker to reach “maximum medical improvement” (aka MMI). The WC Board will not decide whether an injured worker has had a permanent injury until he has reached MMI. Once permanency has been decided, most injured workers who are classified with a PPD begin to use the set number of future weeks of lost income benefits that they are entitled to collect. For example, an injured worker classified with a 50% PPD is entitled to 300 weeks (5 years and 40 weeks) of lost income benefits from the date of classification.
For workers injured after April 9, 2017, the WC Law will presume that they are at MMI no later than two and one-half years (130 weeks) from the date of their injury. Thus, if an injured worker is not classified with a PPD within two and one-half years from the date of his injury, the insurance carrier may reduce the number of weeks of future lost income benefits that they otherwise would owe the injured worker. For example, an injured worker first classified with a 50% PPD three years (156 weeks) from the date of his injury will “lose” 26 weeks (156-130 = 26) of lost income benefits that they otherwise would have collected in the future.
There is a “safety valve” in the changed law that allows MMI to be delayed beyond two and one-half years from the date of the injury without loss of future benefits. The WC Board will issue further guidance on this safety valve provision in the future.
Other changes may harm injured workers. For example, the WC Board is required to adopt new permanent impairment guidelines by January 1, 2018. If it fails to do so, “interim regulations” will be imposed as of January 2, 2018. We have no insight regarding what changes may occur and how they may affect injured workers.
The WC Board is also required to adopt a drug formulary by December 31, 2017. That formulary will list drugs that may be prescribed without preauthorization for specific work-related conditions and injuries. The formulary will also identify “non-preferred drugs” that may only be prescribed after a variance request is issued and approved. As of now, we do not know what drugs will be pre-approved and which will require preauthorization.
Several other changes have been made regarding extreme hardship determinations, mandatory 45-day hearings (in cases where the injured worker is not receiving benefits and not working), penalties and more. These reforms are not yet fully developed and will be subject to change as time goes on.
Because of these changes and the uncertainty that they present, it is important you talk to us. Please reach out if you have qustions about how these changes may affect your case.