Beyond Ground Zero Network

Compensating Construction (and Other) Workers

“A dangerous business,” said Mayor Michael Bloomberg. Yes indeed. In the fallout from the second fatal crane accident in three months he and construction professionals are telling us that such events are inevitable. While erecting skyscrapers is surely a perilous enterprise, the people who risk their lives to undertake it should not be regarded simply as the human detritus of a building boom.

It’s not just crane accidents. In the last year in New York City more than two dozen construction workers have died, according to “Insurance Journal,” falling from office towers and apartment buildings, being hit by collapsing walls and scaffolds. Lesser injuries occur more frequently but are reported rarely; the major exception is the claim against the city of nearly 8000 workers who spent months cleaning up the rubble of September 11 and who now suffer from respiratory ailments, cancers, and psychological trauma.

The buck stops with the Mayor when preventing workplace accidents is the challenge. But protecting workers who have been injured is primarily a state responsibility. Governor David Patterson included some big-ticket items in his new budget—education, economic development, children’s health care. He should now turn his attention to reform of New York’s Workers’ Compensation system.

Workers’ Compensation has had a checkered career in New York. Initially proposed in 1907 by an idealistic young lawyer as a way to keep families afloat when workers were injured, it has not lived up to its protective promise. Seventy years ago New York workers and their families were filing almost 200,000 claims annually, a number that continues to shrink although there are many more workers. This decrease can be attributed in part to less dangerous working conditions. But the decline in filings reflects justifiable cynicism on the part of workers who feel that a system designed to provide medical benefits or adequate compensation for lost wages has abandoned them.

To apply for benefits is to submit to a tedious and sometimes humiliating process. Workmens’ Compensation judges often presume that workers’ claims are baseless or fraudulent. Until very recently the maximum benefit for lost wages was $400 per week (capped at two-thirds of the worker’s weekly wage), less than half of what Connecticut provides and two-thirds of New Jersey’s maximum benefit—and few receive that much.

Delays in processing claims are also powerful deterrents to asking for assistance. A recent report by the New York State Insurance Department found that the average length of time to resolve a claim opposed by the employer or the insurance carrier is almost eight months, and a decision on an appeal from an initial judgment will take, on average, more than five months. Even when a case is resolved in favor of the worker payment can take many weeks. New York’s performance in this area is among the worst in the country.

New York’s system confounds workers in other ways. While the Workers’ Compensation Board has been trying to speed up its claims process—substituting administrative decisions on individual cases for judgments based on hearings on the evidence—this worthy goal may reflect an interest in saving money more than concern for workers’ needs. What the system gains in efficiency—a reduction of a month or two in the time it takes to get benefits to workers—it loses in transparency and clarity; one critic calls the administrative decisions “largely comprised of boilerplate language that is unintelligible to most injured workers.” Many of these reviews simply end in a determination that “no further action” is necessary. While this phrase does not mean that the door has been closed to appeals or future claims, workers often understand it that way.

Former Governor Spitzer could have brightened this picture. In March 2007 he signed the Workers’ Compensation Reform Act, which ostensibly benefited workers by raising both minimum and maximum benefit levels for injuries incurred from July of that year. But the minimum level—the likely benefit for low-wage workers—is still only $100 per week and the $500 maximum is therefore fantasy for most claimants. The legislation also capped benefits that can be paid to someone who is partially but permanently disabled.

The Governor’s real purpose, apparently, was to benefit employers and insurance carriers; in July he boasted in an op-ed piece that one of his early achievements was “a 20% cut in workers’ compensation rates.” The administrative reforms to expedite the processing of claims—the so-called “rocket docket”—are likely to be a boon to businesses by giving them more information at earlier stages, strengthening their hand in resisting claims.

Nonetheless, Spitzer did put some reform-minded officials at the helm of the Workers’ Compensation Board. After the first crane accident in March the Board’s new chair, Zach Weiss, was quick to announce that he had called on his “rapid response team…to advance the claims of deceased and injured workers.”

Governor Paterson has an opportunity to build on this more worker-friendly approach and deliver on the promise of reform suggested by the new legislation. He can appoint judges who are sympathetic to the claimants’ injuries and diseases and who will resist the efforts of insurance carriers to evade liability. He can act administratively to see that his aides make the “rocket docket” work for claimants, especially for the 9/11 cleanup crews and first responders who helped bring the city back to life but have yet to receive the compensation they deserve. He can pressure the state legislature to raise the minimum benefit level again and repeal the unfair cap that limits the duration of benefits to the person who can still work but whose post-injury job does not pay a living wage.

Finally, Governor Paterson can balance the need to reduce costs with the humanitarian duty to ease the pain and loss of workers and their families. This is the least that should be done for New Yorkers whose jobs have cost them their lives or their health.

Diana R. Gordon
Professor Emerita of Political Science, CUNY

Tammy Kim
Attorney, Community Development Project, Urban Justice Center