New York Workers Compensation Reform Act 2007 Update October 2007

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1 Casualty New York Workers Compensation Reform Act 2007 Update October 2007 The New York Workers Compensation Reform Act was signed into law on March 13, and Governor Spitzer s first press release indicated that it would result in savings that are projected to be well over 10 percent of system costs. Although more than six months have elapsed since that press release, some important procedural details of the Act still need to be ironed out, and various ongoing procedural projects on claims handling remain unresolved leaving both employers and carriers with questions regarding the interpretation and application of many of its provisions. However, many... companies purchase loss-sensitive Workers Compensation programs... where premium is only one component in the cost of the program; therefore the rate reduction may not provide the same level of benefit to these buyers... On July 11, 2007, Governor Spitzer announced an overall 20.5 percent premium reduction (which includes a reduction in charge for New York State Assessments from 18.6 percent to 15.5 percent of standard premium) for all new and renewal policies and an overall 16.1 percent premium reduction for all outstanding policies effective October 1, These premium reductions will have the biggest impact on those employers purchasing guaranteed-cost Workers Compensation insurance. However, many medium-size and Fortune 1000 companies purchase loss-sensitive Workers Compensation programs (in the form of paid or incurred loss retros, or large deductibles) where premium is only one component in the cost of the program; therefore, the rate reduction may not provide the same level of benefit to these buyers, as the interplay of each employer s wage distribution and frequency of non-scheduled permanent partial disability (NS PPD) claims will govern the degree of savings. There is even some speculation that these changes might actually increase the ultimate cost of risk for employers, insurance carriers and qualified self insurers. If, as a result of inadequate rates, insurance carriers are put in the position of having to incur underwriting losses, they may consider exiting the New York Workers Compensation market. Cost, Performance and Efficiency The governor stated that the lower rates are possible largely because the act includes a number of reforms which are designed to substantially decrease costs as well as improve system performance and efficiency. Here are the main provisions that are expected to generate these costs savings. Newly created limits on the duration of NS PPD indemnity benefits are intended to offset the 75 percent increase in the weekly maximum benefit. 1

2 Elimination of the Second Injury Fund is intended to create a much stronger incentive for carriers and employers to control risk, reduce claim frequency and settle cases at reduced cost. In addition, the annual pay-as-you-go New York Workers Compensation Assessments are to be leveled through bonding to minimize any future impact of assessment on annual Workers Compensation costs. Speedier resolution of disputes is intended to lower the administration costs of the New York Workers Compensation system. Evidence-based treatment guidelines are intended to provide more effective medical care at lower cost. More effective medical care should allow injured workers to recover faster and more fully so they can return to work sooner and be more productive when they are back on the job. New pharmaceutical and durable medical equipment (DME) fee schedules and networks are intended to reduce the cost of drugs and equipment charges. New diagnostic fee schedules and networks are intended to reduce the cost of MRIs, CAT scans and other tests. Tougher anti-fraud provisions are designed to reduce fraudulent claims and other forms of misconduct and increase premium collections from employers who heretofore did not pay all (or any) of their annual premiums. This is an impressive list of reform actions, but at this point, it is very difficult for New York employers and insurers to accurately quantify the financial impact of these changes. Percentage Loss of Wage Earning Capacity Number of Weeks Compensable >95% 525 >90% 500 >85% 475 >80% 450 >75% 425 >70% 400 >60% 375 >50% 350 >40% 300 >30% 275 >15% % or lower 225 The previous Workers Compensation Medical Guidelines, which essentially operated as regulations, only had three classifications levels for NS PPD: mild, moderate or marked. These classifications were determined by applying published medical guidelines with disability ratings centering on 25 percent, 50 percent or 75 percent respectively. What Form of Disability? The act introduced a limit on the number of weeks a claimant can receive NS PPD indemnity benefits. The new legislation does not change existing law in setting no limit on indemnity or duration for: Temporary total disability (TTD) Temporary partial disability (TPD) Permanent total disability (PTD) As the cap on indemnity only applies to the classification of PPD, there may be increased litigation regarding claimant status. The statute dictates that the benefit duration, or number of weeks compensable, is directly related to the actual percentage loss of wage earning capacity permanently sustained. For accidents occurring on or after March 13, 2007, the weekly benefits for NS PPD claims are capped according to the following chart: Under the new law there are 12 categories of disability ratings for NS PPD claims, each providing a different maximum number of weeks of benefits. New medical guidelines for determining the degree or percentage of the loss of earnings capacity have yet to be issued. The legislation does indicate that these new 2

3 medical guidelines will be issued by December 1, 2007, but it is likely that there will be additional litigation to determine exactly which loss of earnings capacity applies, since a small increase in the level of impairment could provide as much as an additional 50 weeks of benefits. Since most claims under the old system started at close to a 25 percent disability rate, the addition of lower tiers of NS PPD disability may cause additional low end claims to emerge. Additionally, when a claimant is determined to have sustained a loss of earnings capacity of 80 percent or more, and if the claimant can prove extreme hardship or demonstrate other factors warranting continued benefits, the claimant can apply for a reclassification as PTD with lifetime weekly benefits upon reaching the last year of NS PPD benefits. Unfortunately, there are no guidelines to determine what constitutes extreme hardship; however, it is probable that the inability to find appropriate work would qualify. The legislated limitation on weekly indemnity benefits will not affect an injured worker s medical treatment, which will continue to be paid as long as needed. (It is interesting to note that the Insurance Institute of America (IIA) recently published statistics indicating that Workers Compensation medical costs on a nationwide basis have increased from 48 percent of overall claim costs in 1996 to 59 percent in 2006.) Aggregate Trust Fund Perhaps one of the more controversial elements of the new law is the Aggregate Trust Fund (ATF) provision. The ATF provision mandates that once a claimant is classified as having a PPD after July 1, 2007, regardless of when the injury occurred, the carrier must deposit the present value of that award in the ATF. Under a large deductible insurance plan, the insured is reimbursing the insurance carrier for losses paid within their deductible. Therefore, the ATF provision will accelerate the insured payment to the carrier for the reimbursement of indemnity losses. After this payment is made, the carrier will no longer be responsible for making indemnity payments to the claimant. However, the carrier making the deposit will continue to be responsible for paying medical bills. Once an ATF deposit has been made, the carrier (and insured) loses all rights to negotiate a settlement with the claimant, since these rights are then transferred to the benefit of the ATF. With cash in hand, the ATF is empowered to settle claims at a discount under Section 32, and the ATF is not required to refund any of these savings to the carrier. Depending on the timing of the settlement, the interest earned on the funds, and the discounted settlement value in relation to the discounted (present value) of the indemnity losses paid by the carrier, the ATF may actually become a profit center for the State of New York. Unfortunately, this profit would be at the expense of the carriers and insureds. The State Insurance Fund and qualified self insurers are exempted from the ATF requirements. Mandatory Carrier Settlement Offers Another significant and somewhat contradictory provision relates to mandatory carrier settlement offers pursuant to Section 32. This states that each carrier and qualified self insurer must make a settlement offer to each claimant two years from the date the claim is indexed by the Workers Compensation Board (WCB), or six months after the claimant is found to have a permanent partial disability, whichever is later. In death claims the offer must be made within six months after the entitlement to benefit is established for the beneficiary. Such settlement offers must clearly designate the portion of the settlement representing indemnity, medical and prescription benefits and any attorney s fees. The offer must be communicated to the claimant s legal representative, or if the claimant is not represented, it must be accompanied by a statement of rights and obligations if the offer is accepted. There is no requirement as to the amount of the offer, or as to whether or not the offer has to even be reasonable. There is an unresolved issue regarding the timing of the carrier s obligation to make a settlement offer. The carrier has to wait until 3

4 the claimant has been classified as having a NS PPD before making their Section 32 offer (the current medical guidelines suggest that classifications should not be assigned sooner that two years postinjury), but they are also required to calculate the present value and make a mandatory payment into the ATF immediately after the claimant is found to have a PPD. While it is clear the present value is to be calculated immediately, the WCB presumably will exercise discretion as to when the payment must be made. It is believed that this mechanism is intended to maximize settlements to claimants, and we can only assume these were intended to be sequential first the carrier is obligated to try to settle, and then they are obligated to make the ATF deposit, if they are not successful. Better clarification of these provisions is required. Second Injury Fund One of the key cost savers of the Act is the elimination of the Second Injury Fund (Section 15-8), which will be phased out in several stages as follows. Every Form C 250 filed on or after March 13, 2007 notifying the Second Injury Fund of a potential claim must be accompanied by a $250 filing fee. If, upon final ruling, a claim is found eligible for reimbursement, $200 will be refunded to the claimant. It is unclear whether claimant refers to the carrier/employer or the injured employee. No claim for Second Injury Fund relief can be filed for any claim with an accident date on or after July 1, Any claim for Second Injury Fund reimbursement of benefits paid a claimant or medical provider must be made within one year of the date of service of the payment or within one year of the effective date of this legislation. No written submissions or evidence in support of a claim for Second Injury Fund reimbursement can be submitted after July 1, One of the key cost savers of the act is the elimination of the Second Injury Fund (Section 15-8), which will be phased out in several stages. Abolishing the Second Injury Fund does not affect the amount of benefits that an injured worker will receive. It simply means that going forward, all benefits for new claims will be paid by employers and carriers instead of being apportioned throughout the marketplace via a pooling process. Repealing the Second Injury Fund did not eliminate the assessment. Today, the Second Injury Fund is operating at a financial deficit. Its unpaid claim liabilities must still be funded by continuing the existing assessments until all outstanding claims are paid and deficits are resolved. The assessment will be reduced on October 1, 2007, but not because of the law change. It would have dropped without the law change simply because disbursements in the past year were less than expected. However, it is too early to speculate how these assessments will be impacted in the future. Abolishing the Second Injury Fund does not affect the amount of benefits that an injured worker will receive. It simply means that going forward, all benefits for new claims will be paid by employers and carriers instead of being apportioned throughout the marketplace via a pooling process. Requirements for Out-of-State Businesses Operating in New York State Effective September 9, 2007, all out-of-state employers with employees working in New York State (NYS) are required to carry a full, statutory NYS Workers Compensation insurance policy. An employer has a full, statutory NYS Workers Compensation insurance policy when New York is listed in Item 3A on the Information Page of the employer's Workers Compensation insurance policy. 4

5 If a private carrier is not willing to add New York to Item 3A on the Information Page of a policy, the employer may purchase a New York Workers Compensation policy from the State Insurance Fund. Budgetary Realities Generally, employers with higher wage earners will probably see increased costs, primarily because weekly Workers Compensation maximum benefits have increased from $400 to $500 effective July 1, 2007 and will continue to increase to two-thirds of the state s average weekly wage (likely close to $800 per week) by July 1, Therefore, employers with significant numbers of higher wage employees can expect higher indemnity costs, since the maximum weekly benefit levels will double by Contacts For further information, please contact any of the following: Pam Ferrandino Executive Vice President Casualty Co-Practice Leader Paul Smith Executive Vice President Casualty Co-Practice Leader Bob Davis Senior Vice President Casualty Practice Gene Buerle Senior Vice President Casualty Claims Manager As certain key components of this reform remain undefined, it might be premature for employers to lock in budgetary reductions in their cost of risk as a result of the New York Workers Compensation Reform Act As many benefit levels changes have been identified, we encourage employers to take a pro-active position with regard to claims management in order to minimize disputes and help injured workers return to work before permanency is established. 5

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