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Subject Number 046-936 2017 Workers’ Compensation Reform

Board Bulletins and Subject Numbers

Date: April 25, 2017

The 2017-2018 executive budget (Part NNN of Chapter 59, Laws of 2017), enacted effective April 10, 2017, includes meaningful workers' compensation reforms that generate cost savings for employers while providing better protections for injured workers. The reform legislation also requires updates to medical guidelines that reflect advances in modern medicine and requires the Board to adopt a prescription drug formulary by the end of the year. Below is an overview of the key pieces of the reform legislation.

Permanent Partial Disability (PPD) (non-schedule PPD)

The reforms amend Workers’ Compensation Law (WCL) § 15(3)(w) to provide a credit for periods of temporary disability that extend beyond 2.5 years (130 weeks) from the date of injury. Insurance carriers may receive a credit against the maximum benefits payable for permanent partial disability for any periods of temporary disability paid beyond the 2.5 years (130 weeks). This rule applies to all injuries with dates of accident or disability after April 9, 2017.

Permanent Impairment Guidelines

New Permanent Impairment Guidelines will be adopted by the Chair of the Workers’ Compensation Board by January 1, 2018. The new guidelines will incorporate advances in medicine that result in better healing and outcomes for injured workers to use in evaluations and determinations for schedule loss of use awards. The Permanent Impairment Guidelines will be published after consultation with labor, business, medical providers, insurance carriers and self-insured employers. The statutory change requires the Chair to publish the Impairment Guidelines for public comment pursuant to the State Administrative Procedure Act on or before September 1, 2017. In the event the Chair does not adopt guidelines by January 1, 2018, the statutory change requires the Board to adopt interim regulations. New Impairment Guidelines will be effective on January 2, 2018.

Drug Formulary

The Board is required to adopt a comprehensive pharmacy prescription drug formulary by December 31, 2017. Under the formulary, drugs listed in the formulary may be prescribed for a causally-related condition. Any non-preferred drugs may only be prescribed when a variance has been granted. There will also be a method to review requests to add pharmaceuticals to the preferred list, which will be handled through the Medical Director’s Office (MDO). This change will be effective on December 31, 2017.

Mandatory 45-Day Hearing

Where there is medical evidence of a work-related disability, and claimant is not working, and not receiving benefits, and the claim is not controverted, the claimant may request a hearing, which shall occur within 45 days of the Board’s receipt of the RFA-1. The Board is in the process of revising the RFA-1 to accommodate this request and will issue the updated form and further guidance on the hearing process in the near future. This change is effective immediately.

Penalties

First Responder Stress Claims

First responders (police officers and firefighters, EMTs, paramedics, certified emergency medical providers, emergency dispatchers, and those with similar titles) who encounter extraordinary stress in a work-related emergency who file a claim for mental injury will not be barred from a compensable work-related stress claim because the stress they encountered in dealing with an extraordinary work-related emergency is “no-greater-than” the stress encountered by other similarly situated first responders. For police and firefighters, WCL § 30 remains fully in effect, i.e., if a municipal entity provided workers compensation coverage, there is a full credit for any General Municipal Law (GML) §§ 207-a or 207-c benefits received. This provision takes effect immediately.

Workers’ Compensation Board Assessments

The Board may execute Assumption of workers’ compensation Liability Policies (ALPs) for any claims the Board is responsible to administer, including WCL §§ 15(8), 25-a, and Uninsured Employer Fund (UEF) claims. The change also allows inactive group self-insured trusts that are winding down but remain solvent to execute an ALP by borrowing from the self-insurance bond funds with a pledge to repay, prior to actually becoming insolvent.

Various Provisions Related to Insurance

Independent Medical Examination (IME) Study

The Board must conduct a study on IMEs in 2018. A new IME Advisory Committee will convene in 2019 to review the Board’s findings and make recommendations to improve the overall IME system.

Kenneth J. Munnelly
Chair