New York Workers Comp: Truth Stranger than Friction

April 1st, 2009 by

The New York Times has a fascinating, two-part article about serious problems in New York’s workers comp system (parts one and two). New York has long been famous for its bizarre system, which is among the most expensive in the nation, even though its benefits have been among the lowest. There’s a lot of money moving around, but not much of it ends up benefitting injured workers.
New York’s system is the most frictional in America: virtually every step of every claim is reviewed by a judge. The lawyers make their money simply by showing up at hearing after hearing.
This cumbersome system routinely results in inordinate delays for injured workers. In a review of 2007 claims, AIG found that even unchallenged cases plod on much longer than necessary. Lost time claims took on average 802 days to reach a final stage, 30 percent longer than in the rest of the country. In comp, time is money, but not necessarily money well spent.
The Times article zeroes in on an area where you do not expect to find friction: the independent medical exam (IME).
In most states, IMEs are commonly used to establish a (relatively) objective profile of an injury. Representing neither the injured worker nor the insurer, IMEs try to separate fact from fiction and provide a road map to future management of the claim. It is in the best interests of insurers, employers and injured workers to make the IME process as objective as possible.
In New York, the IME system is corrupt and chaotic. IMEs are routinely performed by retired doctors who have little or no interest in fair outcomes. It appears that many IME doctors slant their results toward the insurer, under the dubious notion that “he who pays gets his way.”
The NY statute allows injured workers to videotape the IME exams: based upon the findings in these articles, this is a right that every injured worker should exercise routinely, even if it means using the taping capabilities of a cell phone.
Here’s just one of a number of appalling examples of IME corruption in New York:

Dr. Hershel Samuels, 79, with a radiant smile and a burst of snowy hair, stopped doing surgery years ago. Until recently he commonly filled his days performing insurance exams on workers, sometimes as many as 50 in an afternoon, he said in his small office in Borough Park, Brooklyn. [Fifty exams in one day!]

“You obviously can’t spend a lot of time with that volume pushing up your back,” he said. “You have to assume there are going to be errors. Look, there are a lot of holes in this thing.”

At times, evidence shows, Dr. Samuels’s official reports were quite different from what he appeared to find during an exam.

Consider his 2007 examination of Johanne Aumoithe, a pastry chef who said she had hurt her arm and neck. On a videotape that Ms. Aumoithe recorded on her cellphone, Dr. Samuels comments that she had limited range of motion. His written report concluded the opposite.

Asked about the discrepancy in an interview, Dr. Samuels chuckled and said he could not even recall the people he saw yesterday. The way he worked, he said, was to submit a checklist to a Queens company called All Borough Medical, which transformed it into a narrative.

“I never write a sentence,” he said. “It’s really crazy, but that’s how it’s done.”

He often inserted numbers in the checklist — say, a measure of hand strength — after the person left, rather than as he performed the tests.

Was he sure they were correct? “I’m not sure of anything,” he said. “They’re just a guess in the first place.” [I wonder how occupational doctors feel about that.]

The law requires a doctor to attest to the accuracy of a finished report before signing it, but Dr. Samuels said he rarely read them. He doubted he had read the Aumoithe report. “I just sign them,” he said.

If he seldom read them, how did he know they were correct?

“I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. [Kudos to Dr. Samuels for wanting to talk to his wife!] They want speed and volume. That’s the name of the game.”

Dr. Samuels said he generally received about $100 for one of these exams.[That’s about $95 too much. And by the way, Dr. Samuels is no longer performing IMEs.]

Under the circumstances, IMEs should be dubbed “insurer medical exams” or perhaps just “Incoherent Mediocre Estimates.” It is not surprising to find that many judges in the New York system ignore IME results and rule in favor of injured workers. But that begs the question: why does New York tolerate a system that routinely delivers unreliable information? Zach Weiss, the new chairman of the workers’ compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was “off the charts.” But then again, there is a limit to how many problems he can tackle at one time.
The Burden of History
New York’s comp system grew directly out of the adversarial relationship between labor and management that characterized the early years of the 20th century (and which still exists in many places today). The continuing, pervasive use of judicial review for routine claim transactions is an indication that distrust between workers and management is built into the system’s archaic infrastructure. (As appalling as the pro-management corruption of the IME process is, I am sure that equally repellant stories about worker fraud can be uncovered in the Empire state.)
When Barack Obama was elected president of the United States, the satirical Onion News headlined, “Black man given worst job in America.” With all the problems facing the New York Comp Board, Zach Weiss can make the case that his job is ridiculously difficult, too. And, alas, it comes with no where near the perks.

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