Andrew P. Gould, Associate Attorney
Increasingly, legislation is making its way through Albany to the governor’s desk before many carriers, self-insured employers and defense attorneys even know it was proposed. Most notoriously, Senate Bill S768 proposes to change the definition of total disability to “the inability of an employee to perform his or her pre-injury employment or any modified duty.” The means the issue would no longer be a medical determination and would shift the burden to employers to provide light duty work. It would create a significant burden for employers, one that would be unreasonable for small businesses. Further, it would render the partial disability finding and labor market attachment—current tools that provide incentives for claimants to find some type of work—totally meaningless in the New York Worker’s Compensation system. Now it should be noted that neighboring New Jersey has a similar definition, but the difference is that, in the Garden State, the employer controls treatment deciding with whom the worker treats. That and, if the provider decides the claimant has reached maximum medical improvement, the carrier may stop temporary disability payments immediately without a hearing and it would then be the worker’s burden to get a second opinion and file a motion for more treatment and disability benefits. So, while supporters of Senate Bill S768 may point across the Hudson, there are very significant tradeoffs that are not being proposed in New York.
In addition, there is also Senate Bill S6373, which would lower the bar to make it easier to prove a mental stress injury. Currently, it must be proven that work-related stress was greater than that of workers in similar situations. This will increase the number of mental stress injury cases in New York. All objective standards on what would be considered a situation to cause mental stress would be replaced by an entirely subjective standard. It would be hard to imagine that anyone and everyone could not successfully bring a claim. This could flood the system with new mental stress claims that would be difficult, if not impossible, to defend.
It is past time for all defense attorneys, carriers, and self-insured employers to get organized and stand up to these bills and other really bad ideas being proposed. In addition to state legislation, we should cooperate on other issues like trends from the Board, law judges acting as bullies, novel issues of law, and any other issue where we all share common interest. Worker’s Compensation Defense of New York unite! You have a state to gain and nothing to lose but your chains!