I defend a lot of workers’ compensation (“WC”) claims against employers who operate in high-risk industries and can’t secure affordable WC insurance without agreeing to pay high deductibles. There are a number of reasons their accident rates are higher and more expensive than for other employers (e.g., machine malfunction, machinery used, worker independence, worker skill). There are ongoing studies exploring how to make safer even work we consider dangerous by nature, and I urge you to continue exploring this. Of course, the first and most important reason is that you want to keep people safe and happy with their work. This keeps your business running smoothly so you can provide the quality goods and services your customers want. This also keeps you out of an administrative system heavily-weighted against you.
Here are three reasons you want to keep your workers safe and avoid the New York WC system:
- Employers are treated as unnecessary parties in the claims against them. Despite the Employer Rights statement on the WC Board’s website, there tend to be audible sighs and eyes rolling when employers are perceived to be too involved in the cases against them. They are often left off the service list and not sent Notices of Hearing. They are presumed liable (and treated more like convicted, willful criminals than allegedly negligent tortfeasors) from the outset of the claims, even when there is evidence that the claimant has misrepresented the history of the alleged accident. Even the smallest business owner will likely be seen in the same manner as a large, greedy corporation that has dismissed the risks of harm to their innocent, helpless employees.
- The judges are not always unbiased and impartial, especially not when dealing with employers. In the attorneys’ rooms, there are often discussion of judges as “claimant-friendly” or “carrier-friendly”. This, of course, does not make the label accurate, yet you will notice after hearing these assessments enough that not one is described as “employer-friendly”. In a recent trial–without any evidence to support the allegation–a judge accused an employer of intentionally allowing a Notice of [WC Policy] Cancellation to be returned to the sender because “he was probably afraid he’d have to pay some money.” The judge effectively testified for the employer. Then, he made a decision based in part on his testimony. This is, of course, grounds for an appeal, but the appeal would not be necessary if he had honored his judicial responsibilities.
- Some judges do not like to do trials. I have heard one judge consistently complain that he had trials to oversee, as if he didn’t know when he applied for the position that trials would be part of the job. In two recent trials scheduled for 90 to 120 minutes (which is very short when compared to a civil trial), the judges interrupted testimony and limited the evidence because it was taking too long. Both trials ended in approximately half of the scheduled time and allowed the judges to “complete” their calendar calls for those days. There are still a few judges who avoid trials by facilitating settlement, which is not always ideal, but it’s better than a rushed result based on incomplete facts that will probably end up in the year-long appellate process.
In short, you are almost always going to get a better result for your business when you can resolve the conflicts within in it without the services of an outside governmental body. You should be reviewing your overall safety procedures at least annually, training your employees on the process one to two times per year and correcting process errors immediately upon discovering them. Train your supervisors to recognize such errors, and ensure they are effective at communicating the safety concerns. Under the stress of the day and focus on meeting measurable goals, they may forget that the purpose of safety goals is to protect the workers. They might focus too much on the effects an error has on their performance measures, which leaves the employees feeling dismissed if not disgruntled. A disgruntled employee is probably your next permanent partial disability (“PPD”) claim…