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Author Pain and Injury Categories News 0 comment

NY Workers Compensation Reforms

In 2007, the New York Legislature unanimously passed sweeping reforms to the states workers compensation laws. Included among the reforms was a requirement that insurers deposit the present value of permanent partial disability awards into the New York Workers Compensation Aggregate Trust Fund. Injured workers will then be paid by the trust fund instead of by the insurance company.

The reform is definitely a boon to injured workers. Prior to the change, insurance companies generally decided how and when a workers’ compensation settlement would be paid. Further, if the insurance company went out of business or became insolvent before the entire award was paid, the injured worker could be left in the lurch.

Insurance companies have not been keen on the provision, since it requires them to pay an entire award up front instead of spacing payments out over months or years. In the wake of the reforms, insurance companies challenged the law, arguing that it is unconstitutional and that it was being unfairly applied to past awards.

In a recent unanimous decision, New York’s highest court disagreed with the insurance companies and upheld the law. Raynor v. Landmark Chrysler The leading case on this issue involved a man who had suffered an on-the-job back injury prior to the 2007 reforms.

However, he did not receive a determination of permanent partial disability until 2008 — nearly three years after his initial injury. When the judge ordered the insurance company to deposit the award in the trust fund, the insurer balked, arguing that the new rule shouldn’t be applied to worker injuries that occurred before the reforms were passed. The Court of Appeals disagreed. It found that the legislature intended all awards to be deposited in the trust fund, regardless of when the initial injury occurred.

The company also made several challenges to the law’s constitutionality. Namely, it argued that it violated the Due Process, Equal Protection, Contracts and Takings clauses of the United States Constitution. The court found these claims to be largely without merit. It noted that the insurance company had plenty of opportunities to contest the award and that depositing the award into the trust fund is not akin to the government unjustly taking the insurance company’s property.

Further, it noted that the law did not impair the insurance company’s ability to enter into a contract, stating that “at most, the carrier’s contract has become less profitable — not a substantial impairment.”

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Colin Hoobler: Shoulder exercises take time to master

Dear Colin: I’m 33 years old and tired of having shoulder pain. After nine months and multiple tests (MRI, X-ray), my doctor diagnosed me with “impingement syndrome” and referred me to physical therapy. It helped a little, but the worst part is the 20 exercises I’m supposed to do at home. The PT says all of these exercises are required for me to get better, but I simply don’t have the time (or desire) to do them all. Is this customary and, if so, how do most people succeed in PT? The time commitment seems ridiculous.
— Larry, McMinnville

Shoulder pain is one of the most common musculoskeletal problems medical providers see and usually doesn’t spontaneously resolve without the right form of physical therapy (Spine 2005; The Rheumatologist 2006).

Not being involved in your care prevents me from providing specific treatment advice, but shoulder impingement syndrome is when the relatively small space between the top of your upper arm bone (humerus) and your shoulder blade (scapula) is too small to allow adequate space for tissue between them when moving your arm out to the side and/or above your head. There are multiple possible causes, which may include muscle weakness (Journal of Orthopaedic & Sports Physical Therapy 2006), abnormal bone anatomy (Clinical Orthopaedics and Related Research 1983), tightness of muscles and/or ligaments (American Journal of Sports Medicine 1998) and/or posture (Manual Therapy 2005).

The key to overcoming shoulder impingement syndrome (as well as many other causes of shoulder pain) is a thorough physical examination to find out the specific cause(s) of impingement. For example, a weakened rotator cuff can allow your upper arm bone to move excessively upward during certain arm motions, thus compressing sensitive tissues and causing pain. There are four rotator cuff muscles, so it’s important to identify which of the four should be targeted so you don’t waste time doing exercises for muscles that aren’t impaired. Tightness of the chest muscles is also a common culprit and must be carefully screened for in the examination (Archives of Physical Medicine and Rehabilitation 2002).

When prescribed appropriately, physical therapy exercises and stretches have been shown to significantly reduce pain associated with shoulder impingement syndrome. However, a common mistake is prescribing too many exercises that can quickly sap anyone’s motivation to follow through with a program.

Prescribing exercises for any condition should always take safety and effectiveness into consideration. A great physical therapist will choose exercises that effectively strengthen multiple muscles simultaneously to reduce the time requirement. The only potential drawback is that these more effective exercises require more time to learn to do correctly. A great example is the prone arm press, an exceptional shoulder exercise that safely strengthens the rotator cuff, upper middle back muscles (rhomboids, middle and upper trapezius), back of the shoulders (posterior deltoid), neck (upper trapezius) and lower back (paraspinals).

Important things to note:

1. Very little weight is needed;

2. Tightness in your shoulders and chest will make the exercise more difficult;

3. Keep your head completely still, and;

4. Keep your head, chest, shoulders and arms close to the ground but don’t touch it.

Sets and repetitions should be established by your physical therapist.

With any rehabilitation, try to keep an open, honest dialogue with your physical therapist to help facilitate success. If you’re told to do a program that takes more time than you’re willing to commit to, it probably will be a waste of time.

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Worker injured on break entitled to workers comp benefits: Court

ALBANY, N.Y.—A car salesperson injured while driving to retrieve spaghetti dinners on a break is entitled to workers compensation benefits, a New York appellate court ruled Thursday.

The claimant in Richard Potter Jr. vs. Paolozzi Imports Inc. suffered an injury while driving his personal car after receiving a supervisor’s permission to leave work briefly.

Mr. Potter was returning to his worksite after retrieving two spaghetti dinners when the accident occurred, court records show. A finance manager where he worked had purchased the dinners as part of a fundraiser sponsored by a football team that Mr. Potter helped run on a voluntary basis.

No interruption of employment

A workers comp judge found that Mr. Potter’s injuries arose from his employment and awarded him benefits. In October 2010, a workers comp board affirmed the judge’s finding, and Paolozzi Imports appealed.

But the 3rd Judicial Department of the New York Supreme Court’s Appellate Division agreed with the workers comp board.

The appellate court cited case law finding that short breaks are so closely related to job performance that they do not constitute an interruption of employment, and another finding that benefits are awarded on the theory of an employer’s control of the employee during off-premises activity.

In this case, the appellate court said it found substantial evidence supporting the board’s determination that claimant’s short break did not constitute an interruption of employment.

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Court reporter can receive workers comp benefits for on-the-job aneurysm

ALBANY, N.Y.—A court reporter’s brain aneurysm should be presumed compensable because she collapsed at her high-stress job, even though there were no witnesses, a New York court has ruled.

The New York State Unified Court System failed to prove that Vanessa Richman’s ruptured aneurysm was unrelated to her work, according to a unanimous decision last week from an appellate division of the New York Supreme Court.

Ms. Richman was found unconscious at work in August 2007 and diagnosed with a brain hemorrhage caused by a ruptured aneurysm, according to court records. The injury left Ms. Richman unable to communicate.

A medical expert for the Unified Court System argued that Ms. Richman’s condition should be considered non-work-related. But a workers compensation law judge awarded benefits to Ms. Richman, and the decision was upheld in 2010 by the New York Workers’ Compensation Board.

Compensability presumed

The appellate court affirmed the workers comp board ruling on Thursday. The court said that New York workers comp law presumes compensability when “an unwitnessed or unexplained injury occurs during the course of the affected worker’s employment.”

The ruling also said that the medical expert was “evasive” when asked whether Ms. Richman’s ruptured aneurysm could have been caused by job-related high blood pressure.

“The record establishes that, prior to claimant’s collapse, she was under considerable stress at work and her workplace was loud and overheated,” the ruling reads.

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Workers compensation market pricing slowly beginning to firm

After years of declining workers compensation rates, experts say the comp market is slowly starting to firm—though most say the languid economy is still holding prices relatively steady.

Renewal prices for most workers comp policies have stayed flat or increased less than 10% on average nationwide, said Pamela F. Ferrandino, casualty practice leader, placement for Willis North America in New York.

Cubic Corp. saw a nearly 2% increase in its rate when it renewed its workers comp policy this fall with Chicago-based CNA Financial Corp., said Dominic Zullo, director of risk management for the San Diego-based defense and transportation contractor.

Mr. Zullo noted that CNA and other insurers who provided quotes appeared less willing to budge on price, though Cubic initially expected an increase of 5% to 10%.

“I didn’t see the marketplace being as aggressive this year,” he said.

In California, some employers are seeing guaranteed rate increases of 16% to 25% when experience modification rates are factored in, said Jamie Knoop, senior vp of the construction services team for Lockton Cos. L.L.C. in Irvine, Calif. That’s after the state’s Department of Insurance approved a nearly 36% increase in its advisory pure premium rate for 2012.

About 10% of employers nationwide still are seeing year-over-year rate reductions, including global companies that can handle large self-insured retentions for their workers comp programs, said Ms. Ferrandino.

Though insurers largely have been able to push for higher rates on recent renewals, workers comp prices remain relatively soft, said Tom Fitzgerald, chief broking officer for commercial risk at Aon Risk Solutions in Chicago.

“Insurers are, in my opinion, walking that razor edge of trying to price to expected losses and make a profit,” Mr. Fitzgerald said.

Accident Fund Insurance Co. of America in Lansing, Mich., has seen rates increase 3% to 4% for recent comp renewals. Much of that has been driven by the insurer’s focus on customer segmentation, said Al Gileczek, the insurer’s vp of business development.

“It is a market that’s bottomed out and is showing some signs of tightening,” Mr. Gileczek said. “But by no means would I call it a hard market.”

David Sandler, New York-based president of general casualty and chief operating officer of Chartis Inc.’s commercial casualty unit, said the rate environment is driving insurers to offer more favorable terms for large-deductible policies than for guaranteed-rate policies.

Guaranteed workers comp policy prices for Chartis are up about 6% from last year, while large-deductible policy rates for the New York-based insurer are up between 3% to 5% for jumbo employers and 10% to 12% for smaller firms.

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