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Suffolk County Bar Association

Chase Sensale In The Suffolk Lawyer

 MEET THE NEW BOSS . . . SAME AS THE OLD BOSS*
*The Who-Won't Get Fooled Again-The Kids Are Alright (1979)
by Dennis R. Chase, Esq.

The Court of Appeals, in Johannesen v. Dept. of Housing Preservation and Development, 84 N.Y.2d 129, 638 N.E.2d 981, 615 N.Y.S.2d 336 (1994) reminded us, most recently, the Workers' Compensation Law ("WCL") is remedial in character and it is to be construed broadly and liberally to accomplish its economic and humanitarian objectives.  Unfortunately, since the last major changes to the WCL in 1996, this seemed to be hardly the case.  When Governor Spitzer promised historic changes in the WCL, we were cautiously optimistic . . . we needed to be.  We also needed to work tirelessly to ensure these historic changes would further the goals as set forth by the Court in Holcomb . . . and we did.  We were actively engaged on a local level and in Albany, speaking with members of the Senate and Assembly to ensure these historic changes that Governor Spitzer promised would not only truly benefit the injured worker, moreover, effectuate changes in the current system relative to the interpretation and administration of new and existing laws with the Holcomb decision firmly in mind.

On February 27, 2007, the Governor, legislative leaders, the Business Council, and union leaders announced an agreement designed to increase benefits while also saving employers 10-15% in premiums.  The Governor would announce later, on July 11, 2007, the savings to employers would actually be closer to 20.5%, but at what cost?  The Act was passed by both the Senate and the Assembly and quickly signed in to law by the Governor on March 13, 2007.  The Bill, essentially a compromise between all parties involved in the negotiations, is a trade-off.  Many familiar with the system agree, however, when all things are considered, the changes will not only make it more difficult to secure indemnity benefits for all periods in which the injured party cannot work, moreover, make it even more difficult to ensure quality medical care without interruption.

For many, the most immediate impact of the new statute is the incremental weekly indemnity benefit rate increase raising the maximum weekly benefit rate from the current $400 per week to 2/3 of the New York State average weekly wage for accidents or deaths on and after July 1, 2010 (to be re-indexed to the State's average weekly wage annually on July 1 thereafter).  In exchange for this long overdue benefit increase, however, injured workers will no longer be entitled to weekly indemnity benefits for the entire period of their disability.  Formerly, when injured workers were unable to return to work, they were entitled to these weekly indemnity benefits for the rest of their lives or until such time as they were able to return to work.  For accidents on or after March 13, 2007, weekly indemnity benefits are capped based upon the injured worker's wage earning capacity with a maximum of approximately 10 years of benefits.  Only for those the Board deems permanently totally disabled will these caps in benefits not apply.

Unfortunately, wage earning capacity is not currently defined by statute.  Although the WCL has always stated that permanent partial disability rates are based on loss of wage earning capacity, in practice, weekly indemnity benefit rates were based upon medical opinions expressed in terms of the injured worker's degree of disability defined the WCB's Medical Guidelines (1996).  A task force appointed by the Governor to design new medical guidelines set a December 1, 2007 target date for their completion.  To date, such guidelines have not as yet been promulgated.  There is some hope the new guidelines will be based solely upon objective medical criteria.  Even with the most learned Law Judges, and the most objective medical guidelines, the final determination of wage earning capacity may effectively lead to even more litigation and delay for the injured worker.  As these caps will only be calculated from the date the injured worker is classified permanently partially disabled, the workers' compensation insurance carriers would seemingly have a vested interest in ensuring injured workers reach maximum medical improvement as quickly as possible by affording them all the necessary medical care as expeditiously as possible following a job related injury.  That, however, remains to be seen.

Furthermore, in an attempt to curb alleged spiraling medical costs, workers' compensation carriers and employers can require injured workers to receive all prescription medical supplies from a pharmacy with which the carrier or employer has contracted, except in cases of emergency.  The practical result for injured workers is not only the loss in their freedom of choice, moreover, the injured worker may have a difficult time securing much needed prescription medications if the carrier believes these medications are unwarranted.  Additionally, injured workers will be required to use the carrier's network of diagnostic testing facilities.  For the uninitiated, the results of a magnetic resonance imaging scan is not completely objective and is under the direct control of the facility, the technician performing the test, and the radiologist interpreting the results.  All facilities, technicians, and radiologists are not created equal.

There will be those reading this article who think, "it's about time they clamped down on the fraud being perpetrated in the system."  Nearly everyone believes there is widespread workers' compensation fraud perpetrated by allegedly injured workers costing employers a small fortune . . . forcing employers, big and small, to move out of the state to conduct business.  Unfortunately, however, neither the facts nor the available statistics support these extremely common myths.  What is readily apparent, however, now more than ever, is how essential it becomes for injured workers to immediately seek to advice of effective, experienced, and respected legal counsel to ensure receipt of all benefits for which they are entitled.  The new statute now essentially requires injured workers to retain an attorney to assist them in the mind boggling maze that may include not only workers' compensation benefits, but disability retirement, social security, and perhaps even long term disability benefits, as well. With more than fifty years of combined legal experience, the attorneys at The Chase Sensale Law Group, L.L.P. are always available to assist you with all of your questions.  Our staff is specially trained and ready to conquer the challenges in the administration and interpretation of the new statute.  With offices conveniently located throughout the greater metropolitan area and Long Island, the staff of The Chase Sensale Law Group is there to help you.  Present WCL ensures all workers' compensation matters are to be handled by attorneys on a strictly contingent basis, meaning there will essentially be no out-of-pocket legal expenses.  Call our office for a free consultation.  Why take any chances with your future?

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