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Inside WorkersCompNY
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InsideWorkersCompNY is the creation of Michael T. Berns, former Board Member/Commissioner of the New York State Workers Compensation Board, based on the insight developed during 12 years of service including participation in more than 40,000 decisions and 10,000 hearings.
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Updated weekly, this free website gives insight into the NYS WCB to help the workers comp community understand why the WCB does what it does and how to deal with its inconsistencies and bureaucratic obfuscations as well as giving the community and Board staff an anonymous bulletin board.
COURT DECISIONS: weekly updates of workers comp related decisions from the New York’s various courts and a list of the “winningest” attorneys for the year. NEWSWIRE: weekly listings of key developments from the media as well as various state agencies. COMMENTARY: my comments on key topics, major court decisions,board policies, and answers to questions from my readers. BIOS: The commissioners’ official and unofficial biographies.
Michael T. Berns, The Insider, Commissioner 1996-2008, NYS Workers Compensation Board
. . .
May 17, 2012
Volume 178 Issue 1
. . .
Board Affirmed in 7 of 8 Cases by 3rd A.D.
“Salvet Soper, Esq”
COMMENTARY To the attorney who wrote me last week in response to my guest writer’s COMMENTARY on Schmidt v LaCroix“You have been duped. There is no attorney admitted to practice in New York State by the name of Salvet Soper. The name is bogus and based upon the Salvet case that Miller sought to overrule.” No kidding! I wonder if it took you more time to look the name up than it did for the writer to come up with the pseudonym. To eliminate confusion, I have just put quote marks near that name.
DECISIONS The Board had a good week, being affirmed in 7of 8 decisions issued by the Appellate Court this week. While four of the cases dealt with procedures, two involved the Fund winning on §15(8)(d): one Bard decision affirmed and a second reversed. The Board issued two contrary decisions on identical §15(8)(d) indicia and, as usual, shows confusion on the issue §15(8) reimbursements or perhaps it is just a failure to read the doctors’ testimony and reports. The VFBL case was in keeping with prior decisions but the one unique case dealt with §16 survivor benefits and the 2007 Amendments. And both pro-se claimants lose their cases.
► 2008 to date Appellate Court & Court of Appeals decisions
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► The Insider’s look at the NYS Workers Compensation Board
May 17, 2012: The Board had a good week, being affirmed in 7of 8 decisions issued by the Appellate Court this week. While four of the cases dealt with procedures, two involved the Fund winning on §15(8)(d): one affirmed and one reversed. The Board issued two contrary decision on identical facts and as usual shows confusion on the issue §15(8) reimbursements. The VFBL case was in keeping with prior decisions but the one unique case dealt with §16 survivor benefits and the 2007 Amendments. All eight cases are summarized below. And two pro-se claimants lose their cases.
These free weekly postings cover all Workers Compensation Board and workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Angelo v Occidental Chem May 17, 2012 NYS Appellate Division, Third Department 5187…§16 Death Benefits 5187…§16 Death Benefits post-2007
AFFIRMED the Board’s ruing that the maximum death benefits payable to the surviving spouse under WCL §16(5)(1) are those in effect at the time of death, not the date of the underlying accident. The previously-established underlying asbestos-related claim of John Angelo (hereinafter decedent)was given a disablement date of May 27, 1994. On October 12, 2007, decedent died due to what was later determined to be asbestos-related pleural disease. After claimant, decedent’s widow, filed this claim for death benefits, a Law Judge established and a Board panel affirmed, an average weekly wage of $838.46 “per payroll in the underlying [occupational disease] case” and awarded benefits at the statutory maximum rate of $500 per week. The Fund posited that claimant was entitled to the maximum benefit rate in effect, not on the date of decedent’s death and, at the lower statutory maximum rate applicable on the date of disablement in the underlying occupational disease claim. The Court stated that the Board correctly found that the unambiguous language of this statutory provision in §16(5)(1), “where the death occurs on or after [July 1, 2007],” encompasses all qualifying deaths occurring in the applicable time frame, regardless of the date of disablement. The decision ended with “Contrary to the Special Fund’s argument, our decision in Matter of House v International Talc Co. (261 AD2d 687, 689 [1999]) does not compel a different result.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Ellen O. Paprocki, Richard A. Bell WCB #003 1691[25178-7729]
Pettit v Scipio VFD May 17, 2012 NYS Appellate Division, Third Department 3200…VFBL3200…VFBL
AFFIRMED the Board decision that claimant’s injuries occurred in the course of her duties as a volunteer firefighter and emergency medical technician (EMT) for the Scipio VFD. In October 2009, the District’s EMTs were informed that the swine flu vaccine was going to be provided for them at a clinic the following week. Claimant was refused the vaccine at that clinic, but attended a different clinic in December 2009 to receive her vaccination. On her way home from that clinic, claimant was involved in a one-car accident that resulted in multiple injuries, subsequently filing a successful claim which determined that her claim fell within the provisions of the Volunteer Firefighters’ Benefit Law (FVBL). Citing case law, “‘[W]hether a given activity of a volunteer fire fighter falls within the line of duty is a question of statutory construction particularly within the Board’s expertise’”, the Court agreed with the Board that participation in a “supervised physical fitness class, group session or program for the purpose of promoting or maintaining the performance of their duties as firefighters, as well as necessary travel to and necessary travel from such activity” is an activity covered by VFBL §5(1)(p). Prevailing party represented by: Michael J. Welch of counsel to Nicholas, Perot, Smith, Welch & Smith (Liverpool) for Sharon Pettit and Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent . Commissioners of Record: Lower, Finnegan, Foster WCB #00 0128 [25178-7728]
Burris v Olcott May 17, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR 7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling that denied claimant’s request to reopen his workers’ compensation claim. Although his claim for a 1996 injury was established in 2003, his request to amend his claim in 2004 was time-barred, denied per WCL §28, a decision he did not appeal. His appeal on this issue was denied in 2006 per §23 and again in 2010. In writing that “[T]he Board’s determination not to reopen claimant’s case is subject to judicial review only for an abuse of discretion,” the Court found that the claimant had a full opportunity to litigate his claim for a causally-related neck injury before a Law Judge in 2004, and he did not seek Board review of the Law Judge’s decision denying his claim. Accordingly, claimant’s challenges to that determination were not properly before the Court. Also, the Court agreed with the Board that claimant’s request for further action did not contain any new material evidence warranting a reconsideration. Prevailing party represented by: Jeffrey M. Fox of counsel to Walsh and Hacker (Albany) for Time Warner Satellite Services and another, respondents. Commissioners of Record: Lobban, Paprocki, Bell WCB #5961 4641 [25178-7727]
Francis v Jewelry Box 3rd JMay 17, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR 7050…Procedure: Denial FBR
AFFIRMED the Board’s decision to deny pro-se claimant’s application to reopen his claim. After his case was closed in May 1993 when claimant settled his August 1987 injury claim with a lump-sum non-schedule adjustment, claimant made several applications attempting to reopen his claim, all rejected because he did not demonstrate a change in condition that was not contemplated at the time of the original settlement. Contending he now suffered from chronic major depression, posttraumatic stress disorder and chronic pain disorder stemming from the 1987 accident, the Board “noting that claimant previously waived his right to have his case established for psychiatric injury, ruled that the proof submitted was insufficient to support his request to reopen his claim. . . . While claimant is attempting to expand his claim to include a consequential psychiatric the transcript of the May 24, 1993 lump-sum hearing establishes that claimant, whose physician had recommended psychiatric counseling, unequivocally stated that he wished to settle his case at that time and was waiving any right to have his case additionally established for a consequential psychiatric injury. Under the circumstances, there is substantial evidence supporting the Board’s conclusion that claimant did not sufficiently allege an unanticipated change in his medical condition warranting the reopening of his claim.” Prevailing party represented by: Shayne L. Dorr of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelry Box Corporation of America and another, respondents and Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Bargnesi, Higgins, Bell WCB#0877 5710 [25178-7726]
Spaulding v Lowes May 17, 2012 NYS Appellate Division, Third Department Procedure: Denial FBRs 7050…Procedure: Denial FBR
AFFIRMED the Board’s rulings (1) which ruled that pro-se claimant had no further causally related disability, and (2) which denied pro-se claimant’s request for reconsideration or full Board review. Fifteen months after a work related injury to her left foot, claimant filed a C-3 seeking to add her right foot to the established claim, an amendment denied by the Law Judge and Board panel with the Board subsequently denying reconsideration or full Board review (FBR). Although claimant separately appealed from both the Board’s underlying decision and the denial of reconsideration or full Board review, she failed to timely perfect her appeal from the underlying decision. Consequently, the Court did not review that appeal. In supporting the denial of FBR, the Court found that the Board’s denial was neither capricious, arbitrary, nor an abuse of discretion as the claimant did not proffer any new evidence that was unavailable at the time of the hearings.Prevailing party represented by: John B. Paniccia of counsel to Stockton, Barker & Mead (Albany) for Lowe’s and another, respondents. Commissioners of Record: Lower, Bell, Finnegan WCB# 005 9899.[25178-7725]
Southard v Corning Hotel May 17, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund 3110…§15(8) Reimbursement Special Fund
AFFIRMED the Board’s decision which discharged the Special Disability Fund (Fund) from liability under WCL §15(8)(d). In April 2004, claimant suffered a work-related injury to her back and left hip and was awarded workers’ compensation benefits. The carrier unsuccessfully sought reimbursement from the Fund, asserting that claimant’s preexisting arteriovenous malformation had contributed to her disability. While the carrier’s medical export opined that claimant’s preexisting condition “constituted a permanent disability that was materially and substantially greater than that caused solely by” the work-related injury. BUT “[t]he mere fact that the sum of the disabilities is materially greater than the subsequent disability alone is not sufficient to hold the . . . Fund liable” but, instead, the preexisting impairment “must increase the compensation liability above that which the employer would have incurred as a result of the subsequent injury alone. . . . In fact, the employer’s expert stated that claimant’s headaches, which she has suffered from throughout her life, did not increase her overall disability.” Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB #7040 6570 [25178-7724]
►The case that follows had almost identical indicia yet that Board panel ruled against the Special Fund and was reversed by the Appellate Court. One can only hope that there were two writers in the Administrative Review Division that drafted these Board panel decisions.
Weiner v Glenman Indus May 17, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Fund 3110…§15(8) Reimbursement Special Fund
REVERSED the Board by ruling that the carrier is not entitled to reimbursement from the Special Disability Fund (Fund). On November 15, 2006, claimant sustained work-related injuries and was later classified as having a permanent partial disability. The carrier’s medical expert noted that claimant suffered from various preexisting physical impairments, including asthma, lyme disease, migraines and cervical disc herniation, prompting the carrier to to seek reimbursement from the Fund per WCL §15(8)(d). The Board concluded that “claimant suffered from a prior permanent condition of asthma, and as a result, the claimant’s current disability was materially and substantially greater than that which could be ascribed to the compensable injury alone”, later amending the decision adding certain additional facts and analysis, and denied the Fund’s application for full Board review. Inasmuch as the record lacks proof “that claimant suffered from a preexisting permanent impairment that hindered her job potential, … [or was] was under any restrictions at work because of the asthma or that it had presented any “hindrance to her employment”, The Court found that the Board’s determination was not supported by substantial evidence” and reversed it. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, appellant. Commissioners of Record: Bargnesi, Higgins, Bell WCB#5070 1647[25178-7723]
Zhang v Tonys Marble May 17, 2012 NYS Appellate Division, Third Department §23: Late Appeal 7010…§23: Late/Interlocutory/Frivolous Appeal
AFFIRMEDthe Board’s rulings (1) that the application of the employer for review of a Law Judge’s decision was untimely, and (2) which denied a request for reconsideration and/or full Board review (FBR). Forty six days after a Law Judge determined that claimant sustained a work-related injury and awarded benefits, the employer submitted an appeal from that decision. The Board deemed the appeal as untimely and also denied a subsequent application for FBR. Although the employer notified the Board of its intent to appeal by letter within the 30-day §23 time limit, the employer did not meet the requirements of §23 as the formal application f or review must be in writing, accompanied by a cover sheet form prescribed by the chair, specify the issues and grounds for such review, and include proof of service upon all parties in interest; this was not done until after the deadline. Hence the Board’s denial of review was neither arbitrary and capricious nor an abuse of discretion. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Bell, Finnegan WCB#0082 7791[25178-7722]
PENDING CASES - Appellate Court 3rd Dept
May 18, 2012 - Thursday: The following are pending a decision from the Appellate Court, Third Department.
04/20/12 Connolly v Hubert’s Service
04/19/12 Kirisits v Durez Plastics
04/17/12 Prather v Amerada Hess
04/23/12 Roman Catholic Diocese v NYS WCB
04/18/12 Stenson v NYS DOT
04/17/12 Wiess v Arcelor Mittal
PENDING CASES - Court of Appeals
May 18, 2012 - Thursday: No new cases have been set for argument at the Court of Appeals since this list was posted April 26, 2012.
Howard v Stature Electric . Disqualification for false representation - collateral estoppel - whether claimant’s Alford plea to a charge of insurance fraud, which arose from evidence allegedly revealing that he was employed while collecting workers’ compensation benefits, is entitled to collateral estoppel effect with respect to the Board’s determination whether claimant violated WCL §114-a; App. Div. reversed decision of the Board, which determined that claimant violated Workers’ Compensation Law § 114-a, and remitted for reconsideration.[ED. NOTE:]On November 30, 2011, a Board panel affirmed the Law Judge’s decision that there was insufficient evidence to warrant a finding of §114-a(1).
Weiner v NYC: 2nd Dept. App. Div. Order of 4/26/11; ▲Argued February 14, 2012▲. Municipal corporations - tort liability - whether NYC EMT injured in the line of duty on municipal property may maintain an action against his municipal employer under general municipal law § 205-a despite his eligibility for workers’ comp benefits - WCL §11. Supreme Court, Kings County denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7) ; App. Div.reversed and granted defendants’ motion.
► Prior Postings ◄
Spinnato v GE Advanced Materials May 10, 2012 NYS Appellate Division, Third Department Causal Relationship: Aggravation or New1135…Causal Relationship: Aggravation or New
REVERSED the Board, thus affirming the Law Judge, by finding that the additional injury was not new but consequential, thus passing liability on to the Special Fund for Reopened Cases. Although the claimant had no lost time from an established back injury in August 1995, he subsequently would frequently experience back pain due to sciatica, which would occasionally cause his right knee to give out. After he experienced a sharp pain in his right knee that caused it to buckle, and he caught himself with his left knee in August 2006, claimant filed a new claim. A Law Judge disallowed the new claim and amended claimant’s 1995 claim for consequential injuries to his knees as a result of the 2006 incident, a decision reversed by a Board panel, resulting in this appeal by both the Fund and the claimant, although each for different objectives. The Court wrote that, “Whether or not a claimant’s disability is consequentially related to a previously established injury is a factual question for the Board to resolve, but its determination must not rely on a speculative medical opinion.” They noted that the only medical opinion supporting the ‘new injury’ was by a doctor who was unaware that, since 1995, claimant had experienced frequent episodes where his knee would give out relative to his sciatica, and after being informed that claimant had received no treatment from 1998 forward, stated further that, “without looking at the documentation relative to these episodes, he would be unable to render a medical opinion.” The court summarized its reversal by writing, “. . . given the lack of reliable medical evidence, we cannot say the Board’s decision is supported by substantial evidence.”Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB#5952 1219[25177-7721]
[ED. NOTE:] It is worth noting how the Board uses cases like these to enhance is alleged efficiency. Both the Fund and Claimant appealed the Law Judge decision on the sole issue that the injuries were consequential and not a new injury. The Board, for statistical purposes, writes that the decision was ‘modified’ yet the decision ‘reverses’ the only issue in the law judge decision on appeal. This use of the word ‘modify’ rather than ‘reverse’ is an example of how the Board ‘cooks the books’ in terms of it own record of Board panel decisions/reviews of Law Judge decisions. The actual number of Board panel decisions reversing Law Judges (whether or not the reversal is ultimately upheld) is probably closer to 15% than the 6% the Board reports.
Zamora v New York Neurologic May 1, 2012 Court of Appeals 5110…Voluntary Withdrawal 5110…Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market, by REVERSING the Third Department’s December 3, 2010 decision, which found for the claimant and reversed the Board panel. After her case was established for 2003 work-related injuries, claimant returned to work until 2007 when she became too ill to continue to work; asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. She then sought other employment. But the Board panel (Ferrara, Henry, Paprocki), in reversing the Law Judge, unanimously found that “Between her work stoppage in December of 2007 and her testimony on August 5, 2008, the claimant only posted her resume on the internet. The jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition.”
The Appellate Court, in a 3-2 split decision, reversed today, ruled
. . . an inference arises that subsequent loss of wages was attributable to her disability, making it incumbent upon the employer “to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability“. This inference arises regardless of whether the Board’s finding of involuntary withdrawal from the labor market was caused by retirement or, as here, simply a failure to return to work. While a claimant’s failure to look for work may be relevant in challenging a claimant’s continued right to benefits in these situations, such evidence, standing alone, is insufficient to rebut the inference. Indeed, the employer must show “that the failure to seek employment was the sole cause of the subsequent reduction”. Here, claimant not only sought work after leaving employment but found it on two occasions, only to discover that her disability prevented her from performing her new duties. As the employer produced nothing to show that any inadequacies in claimant’s job search were the sole cause of her continued unemployment, substantial evidence does not support the Board’s determination.
The dissent at the Appellate Court opined that the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Only after the non-retired claimant has met that burden does the inference arise that the subsequent loss of or reduction in wages, if any, was caused by the permanent partial disability. The Court of Appeals made its decision by determining that
“. . . a claimant’s work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations”. Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that “once claimant’s work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations“. . . .The correct principle [is] that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. … There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer.”
This then leaves the decision to the Board as the Court wrote, as it does in so many ‘discretionary’ cases, “We may not weigh the evidence or reject the Board’s choice simply because a contrary determination would have been reasonable.” Finding that the Board has reasonable evidence to make it decision, the Court of Appeals affirmed the find that the claimant had voluntarily withdrawn from the labor market. Prevailing party represented by: Michael F. Vecchione PPPPPP of Vecchione, Vecchione & Connors, Garden City Park for New York for Neurologic and Paul Groenwegen 1of counsel to the NYS Attorney General for WCB [25176-7720]
►A lengthy COMMENTARY on this decision and its ramifications for the future of injured workers can be found by clicking here.
Schmidt v Falls Dodge May 1, 2012 Court of Appeals §15(6): overlapping SLU & PPD 5185…§ 15(6): overlapping SLU & PPD
REVERSED the ruling of both the Appellate Court - 3rd Department and the Board both of whom required that the carrier pay both the maximum allowed weekly comp rate in addition to an SLU. As the result of three accidents, a Law Judge ordered the carrier to pay claimant a total of $400 per week, the maximum allowed. Subsequently, a Law Judge made an award for a hearing loss claim, permanent partial disability, entitling claimant to a schedule loss of use award per WCL §15(3). The Judge concluded that the schedule award was “currently payable in full,” notwithstanding the fact that claimant had was still receiving $400 per week for his other claims. The Board found the issue to be controlled by Matter of Miller v North Syracuse Cent. School Dist., in which the Appellate Division held that because a schedule award “is not allocable to any particular period,” it “cannot be deemed to overlap with” a temporary total disability award.
This Court essentially determined Miller is “incorrect and should not be followed“. The Miller court erred in allowing a claimant to recover both at the same time, with the result that weekly payments, $800, exceeded the statutory cap. The Court of Appeals explained that §15(6) provides a cap for payments of compensation and that the schedule award is not nullified by the other awards, but must be deferred until the time comes when the cap will not be exceeded.“A contrary holding would not only contradict the plain language of section 15 (6), but would produce anomalous results. A worker who was permanently totally disabled in 2005 — a quadriplegic, for example — can receive no more than $400 per week for his or her disability. It makes no sense for a worker who suffered a hip injury, lower back pain and a hearing loss in that year to receive $800 per week. Nor can it be said that time will eliminate the anomaly — i.e., that in the long run no claimant will recover an average of more than $400 per week — because no one can say when, if ever, a ‘temporary’ disability will end“.
Justice Cipatrick, in her dissent, posited that
a “schedule loss of use award” for a permanent partial disability is not linked to a particular time period, but rather is compensation for future loss of earnings without regard to present ability to work. She wrote that the 2007 Amendment to WCL took into account the issue of payments. Because the Legislature is presumed to be aware of the decisions in Matter of Miller and Matter of Lansberry, and as it did not comment on or make any change to blunt the effects of these decisions, it must be assumed that it intended to incorporate the holdings — that schedule awards do not overlap with temporary total disability awards — into the existing law. That the Legislature did not intend to overturn the holdings in Matter of Miller and Matter of Lansberry is even more evident when considering the 2009 revision to Workers’ Compensation Law. That revision was made in direct response to our holding in Matter of LaCroix v Syracuse Exec. Air Serv. Accordingly, I would permit the overlap of payments, although currently exceeding the statutory maximum, and affirm the order of the Appellate Division. The question of whether such overlap is permissible allowing for the “anomalous” situation identified by the majority is best left to the Legislature to determine.
The Court of Appeals finished its reversal by writing, “We therefore hold that periodic payments of a schedule loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would exceed the cap imposed by §15(6). We hold no more than this, and do not decide what implications, if any, our holding may or may not have for cases governed by the 2009 amendment to §25(b): that section, as amended, now says that schedule loss of use awards ‘shall be payable in one lump sum, without commutation to present value upon the request of the injured employee.’” Prevailing party represented by: John R. Gibbon for appellants. [25176-7719]
►While this case does not have the same impact as Zamora in terms of claimants impacted upon, the 2009 Appellate Court decision was hailed as a major victory for injured workers. Whether or not the legislature will address this issue as specifically as inferred from the arguments by both the majority and the dissent at the Court of Appeals remains to be seen.
Forsyth v Staten Island DDSO May 3, 2012, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment 5170…§ 14(6): Concurrent Employment
AFFIRMED the Board’s substantively amended ruling which determined that claimant was concurrently employed and established his average weekly wage (AWW). After claimant’s case was established for an injury occurring, in the Winter - January 20, while a week-end employee of the Staten Island DDSO, his annual AWW was established by a Law Judge using earnings from concurrent seasonal employment as a lifeguard for the City of New York. The record demonstrates that claimant was employed on weekends by the employer year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978. Claimant worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury. IN effect, although the claimant was not receiving benefits from his concurrent employment at the time of his accident, his income from that employment was properly considered in setting his AWW. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #010 8704 [25176-7718]
►The only Appellate Court cases prior cases on concurrent employment involved the issue of reimbursement from the Special Disability Fund.
Hahn v Brylin Hosp May 3, 2012 NYS Appellate Division, Third Department 5160…§ 14: Average Weekly Wage 5160…§ 14: Average Weekly Wage
AFFIRMED the Board’s ruling which established claimant’s average weekly wage as a part-time worker. Although the carrier did not controvert the establishment of the claim for the part-time nurse, it objected to the Law Judge’s calculation of her average weekly wage (AWW) by using WCL §14(3), which the Court noted is applicable to part-time employees. This provision does not apply, however, where the claimant voluntarily limits his or her participation in the labor market. The carrier contended that claimant voluntarily limited her hours whereas Claimant explained that she was not seeking to limit her hours. And, her testimony “that she did not want to work full time and felt ‘fortunate’ to have a job that required her to work only three days a week did not disqualify her from the provisions of §14(3).” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Finnegan, Foster WCB #013 0308 [25176-7717]
►There have been no prior cases on the issue of AWW.
Kasic v Bethlehem Steel April 25, 2012 NYS Appellate Division, Third Department §28: time bar 1210…§ 28: time bar
REVERSED the Board’s ruling, and affirmed the Law Judge, that claimant’s application for death benefits was time-barred by WCL §28. During his 22 years employment at Bethlehem Steel, decedent was exposed to Benzene and other chemicals. After he was diagnosed with acute myelogenous leukemia, he filed a workers comp claim alleging that his illness was caused by his “exposure to Benzene.” The employer controverted his claim, asserting that decedent had not presented competent medical evidence establishing causal relationship. Three years after decedent’s death in 2006, the claimant’s spouse filed a claim for death benefits. The carrier argued that this second claim was untimely because, per §28, it was filed more than two years after decedent’s death.
A Law Judge disagreed and found for claimant, concluding that her claim was timely because it was filed within two years of her receiving a written medical opinion citing causal relationship. A Board panel reversed, disallowing the claim on the ground it was untimely as more than two years had passed after decedent’s death. The carrier argued that, because of the decedent’s own claim contending causal relationship, his wife should have filed within two years of his death, as those contentions put claimant on notice at that time as to what allegedly caused decedent’s death. In disagreeing with the employer and the Board, the Court wrote:
There is no doubt that, prior to and at the time of decedent’s death, decedent and claimant suspected that he contracted leukemia as a result of conditions at his place of employment. However, it does not necessarily follow that simply because claimant harbored such suspicions, she knew or had reason to know what caused decedent to contract leukemia.
The Court noted that the carrier had always contended that there was no causal relationship and none had been presented prior to his death.
In fact, claimant only obtained such evidence when she received a letter dated September 9, 2008 from a physician indicating that the leukemia that caused decedent’s death was a result of him being exposed to chemicals at the work place. Since claimant filed for death benefits within two years of the date of this letter, her claim was timely, and the Board’s decision to the contrary was not supported by substantial evidence.
Prevailing party represented by: John A. Collins of counsel to Lipsitz, Green, Scime & Cambria (Buffalo) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #003 6004 [24175-7716]
►This is the second case out of seven since Fall 2009 that the Board has been reversed on this issue.
Lue v Finkelstein & Partners April 25, 2012 NYS Appellate Division, Third Department 7110…Legal Malpractice 7110…Legal Malpractice
The key issue was the claim of legal malpractice brought about when the injured worker’s first attorney failed to preserve injured worker’s Labor Law § 240 claim against K-Mart when, as an employee of O’Connell Electric, he fell from a scissor lift rented by United Rentals at a site owned by K-Mart Corporation. K-Mart was in the midst of chapter 11 bankruptcy, resulting in the claim initially being reduced to zero dollars by the Bankruptcy Court in 2004 and next dismissed by Supreme Court based upon the Bankruptcy Court’s order; h did not pursue an appeal. After hiring new counsel and successfully suing United Rental, he brought this action asserting that he would have had a larger recovery if his §240 strict liability claim against K-Mart had been preserved by his former attorneys.
The record did show that there were contractual agreements between K-Mart and O’Connell requiring indemnification insurance which O’Connell never acquired. Since there is no proof of any kind in the record showing the existence of such a policy, the Court ruled “that this record does not support the conclusion that the contractual indemnification claim was established as a matter of law as a way that injured worker could have reached the funds of Interstate Insurance Group.” On the other hand, the Court found “unpersuasive the original attorney’s assertion that injured worker’s strict liability claim under Labor Law § 240 would not have had potential additional value in the underlying litigation. Further, injured worker submitted evidence which, when viewed most favorable to him, indicated that his injuries potentially had value beyond the amount for which he settled.” [24175-7715]
Dingman v Lake Luzerne April 12, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
REVERSED the Board’s ruling that claimant continued to suffer from a mild causally related disability and awarded him workers’ compensation benefits. The employer voluntarily paid workers cop Awarding continuing benefits at a moderate disability rate, the Law Judge, affirmed by a Board panel, denied the employer’s request to suspend payments pending development of the record with regard to claimant’s attachment to the labor market. The Court reversed the Board, writing that the C-4 form and narrative report of claimant’s orthopedic surgeon, the basis for the Board’s decision, contained inherent contradictions, thus these documents could not serve as a proper basis for the Board’s decision. The Court affirmed both the Board panel and the Law Judge in rejecting the carrier’s request to suspend payment pending claimant’s attachment to the labor market as this issue was not raised until the last hearing, thus giving the claimant no notice that he had to prepare a response. Prevailing party represented by: Danielle M. Barone of counsel to Lemire Johnson (Malta) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #021 9208 [24173-7713]
[ED. NOTE:]t was just over one year ago, in the Matter of DeFayette v Verizon, that the decision on the same issue was reversed for the same reason: ‘no reasoning’.
Fetter v Verizon April 12, 2012 NYS Appellate Division, Third Department Interlocutory Appeal «»7010…§ 23: Late/Interlocutory/Frivolous Appeal
DISMISSED employer’s appeal of a Board Panel decision to return the decision for further development of the issue after the Law Judge found no §120 discrimination. The Court stated that since the Board had determined that the Law Judge failed to render “a reasoned oral or written decision upon the contested points” as required by 12 NYCRR 300.5 (a), the cases was returned for further development of the record. The Court reasoned that “Inasmuch as the Board’s decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [24173-7712]
Nepomuceno v NYC April 5, 2012 NYS Appellate Division, First Department
§11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the Supreme Court, New York County stating that the Supreme Court was in error denying the defendant hospital’s motion for summary judgment in a case in which the plaintiff, a registered nurse employed by defendant, alleges that she was injured when she slipped on a piece of fruit that had fallen behind a fruit stand on the sidewalk abutting the hospital while on her way to start her morning shift. “[T]he availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law,” such that the matter must, in the first instance, be determined by the Workers’ Compensation Board, thus staying the matter pending resolution by the Workers’ Compensation Board. Prevailing party represented by: John J. Burnett of counsel to Scott Baron & Associates, P.C., Howard Beach for respondent. [24172-7709]
Guideone Specialty Mut v NYSIF JApril 3, 2012 NYS Appellate Division, Second Department §11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the King County Supreme Court’s denial of a motion to dismiss the Plaintiff’s complaint. The Appellate Court reaffirmed that defendant’s position that “The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court.” As to the timeliness of the defense, the Court added that, “Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers, a court’s lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time.” Prevailing party represented by: Elizabeth A. Fitzpatrick and Seth M. Weinberg of counsel to Lewis Johs Avallone Aviles (Melville) for appellant. [24172-7708]
InsideWorkersCompNY is the creation of Michael T. Berns, former Board Member/Commissioner of the New York State Workers Compensation Board, based on the insight developed during 12 years of service including participation in more than 40,000 decisions and 10,000 hearings.
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Michael T. Berns, The Insider, Commissioner 1996-2008, NYS Workers Compensation Board
. . .
May 10, 2012
Volume 177 Issue 1
. . .
A Reversal for the WCB; Guest Commentary on Schmidt
COMMENTARY This week we have guest COMMENTARY from Salvet Soper, Esq. about last week’s Schmidt decision and its relationship to LaCroix. Obviously the legislative intent of pre-200 WCL and the 2007 Amendment are so craftily written that they are open to interpretation: lawyers passing laws requiring lawsuits (and lawyers) to fight over for the supremecy of their interpretation.
DECISIONS The New York State Workers Compensation Board got a another reversal from the NYS Appellate Court, Third Department, this time “given the lack of reliable medical evidence” to support the Board’s decision. As I note in my EDITOR’S NOTE, this case exemplifies how the Board fudge’s statistics to make itself look good.
► 2008 to date Appellate Court & Court of Appeals decisions
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Board publishes CTS Medical Guidelines
THE BOOK: BEHIND THE CLOSED DOORS
► The Insider’s look at the NYS Workers Compensation Board
May 10, 2012: This week features another reversal for the Board from the Appellate Court, Third Department, this time on the question as to whether an injury was new or consequential. More important, however, is the GUEST COMMENTARY on last week’s Court of Appeals decision in Schmidt v Falls Dodge as it related to the earlier LaCroix decision on SLU payments.
These free weekly postings cover all Workers Compensation Board and workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Spinnato v GE Advanced Materials May 10, 2012 NYS Appellate Division, Third Department Causal Relationship: Aggravation or New1135…Causal Relationship: Aggravation or New
REVERSED the Board, thus affirming the Law Judge, by finding that the additional injury was not new but consequential, thus passing liability on to the Special Fund for Reopened Cases. Although the claimant had no lost time from an established back injury in August 1995, he subsequently would frequently experience back pain due to sciatica, which would occasionally cause his right knee to give out. After he experienced a sharp pain in his right knee that caused it to buckle, and he caught himself with his left knee in August 2006, claimant filed a new claim. A Law Judge disallowed the new claim and amended claimant’s 1995 claim for consequential injuries to his knees as a result of the 2006 incident, a decision reversed by a Board panel, resulting in this appeal by both the Fund and the claimant, although each for different objectives. The Court wrote that, “Whether or not a claimant’s disability is consequentially related to a previously established injury is a factual question for the Board to resolve, but its determination must not rely on a speculative medical opinion.” They noted that the only medical opinion supporting the ‘new injury’ was by a doctor who was unaware that, since 1995, claimant had experienced frequent episodes where his knee would give out relative to his sciatica, and after being informed that claimant had received no treatment from 1998 forward, stated further that, “without looking at the documentation relative to these episodes, he would be unable to render a medical opinion.” The court summarized its reversal by writing, “. . . given the lack of reliable medical evidence, we cannot say the Board’s decision is supported by substantial evidence.”Prevailing party represented by: Leith Carole Ramsey of counsel to Stockton, Barker & Mead (Albany) for appellants. Commissioners of Record: Lobban, Paprocki, Higgins WCB#5952 1219[25177-7721]
[ED. NOTE:] It is worth noting how the Board uses cases like these to enhance is alleged efficiency. Both the Fund and Claimant appealed the Law Judge decision on the sole issue that the injuries were consequential and not a new injury. The Board, for statistical purposes, writes that the decision was ‘modified’ yet the decision ‘reverses’ the only issue in the law judge decision on appeal. This use of the word ‘modify’ rather than ‘reverse’ is an example of how the Board ‘cooks the books’ in terms of it own record of Board panel decisions/reviews of Law Judge decisions. The actual number of Board panel decisions reversing Law Judges (whether or not the reversal is ultimately upheld) is probably closer to 15% than the 6% the Board reports.
PENDING CASES - Appellate Court 3rd Dept
May 19, 2012 - Thursday: The Court has yet to post new cases for May arguments. The following are pending a decision.
04/17/12 Angelo v Occidental Chemical
04/20/12 Burris v Olcott
04/20/12 Connolly v Hubert’s Service
04/23/12 Francis v Jew Elry Box Corp
04/19/12 Kirisits v Durez Plastics
04/19/12 McCorkle-Spaulding v Lowe’s
04/16/12 Pettit v Scipio Volunteer Fire
04/17/12 Prather v Amerada Hess
04/23/12 Roman Catholic Diocese v NYS WCB
04/18/12 Stenson v NYS DOT
04/24/12 Weiner v Glenman Industrial
04/17/12 Wiess v Arcelor Mittal
04/23/12 Zhang v Tony’s Marble
PENDING CASES - Court of Appeals
May 10, 2012 - Thursday: No new cases have been set for argument at the Court of Appeals since this list was posted April 26, 2012.
Howard v Stature Electric . Disqualification for false representation - collateral estoppel - whether claimant’s Alford plea to a charge of insurance fraud, which arose from evidence allegedly revealing that he was employed while collecting workers’ compensation benefits, is entitled to collateral estoppel effect with respect to the Board’s determination whether claimant violated WCL §114-a; App. Div. reversed decision of the Board, which determined that claimant violated Workers’ Compensation Law § 114-a, and remitted for reconsideration.[ED. NOTE:]On November 30, 2011, a Board panel affirmed the Law Judge’s decision that there was insufficient evidence to warrant a finding of §114-a(1).
Weiner v NYC: 2nd Dept. App. Div. Order of 4/26/11; ▲Argued February 14, 2012▲. Municipal corporations - tort liability - whether NYC EMT injured in the line of duty on municipal property may maintain an action against his municipal employer under general municipal law § 205-a despite his eligibility for workers’ comp benefits - WCL §11. Supreme Court, Kings County denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7) ; App. Div.reversed and granted defendants’ motion.
► Prior Postings ◄
Zamora v New York Neurologic May 1, 2012 Court of Appeals 5110…Voluntary Withdrawal 5110…Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant voluntarily withdrew from the labor market, by REVERSING the Third Department’s December 3, 2010 decision, which found for the claimant and reversed the Board panel. After her case was established for 2003 work-related injuries, claimant returned to work until 2007 when she became too ill to continue to work; asked what injuries contributed to her disability, she mentioned her neck and shoulder, as well as health issues that she said were unrelated to her workplace accident, namely migraines, hernias, and pinched nerves in her lower back. She then sought other employment. But the Board panel (Ferrara, Henry, Paprocki), in reversing the Law Judge, unanimously found that “Between her work stoppage in December of 2007 and her testimony on August 5, 2008, the claimant only posted her resume on the internet. The jobs under consideration by the claimant were not reasonable given her work restrictions, which primarily involve her unrelated low back condition.”
The Appellate Court, in a 3-2 split decision, reversed today, ruled
. . . an inference arises that subsequent loss of wages was attributable to her disability, making it incumbent upon the employer “to rebut the inference of causation or prove that the reduction in employment was solely due to factors unrelated to the disability“. This inference arises regardless of whether the Board’s finding of involuntary withdrawal from the labor market was caused by retirement or, as here, simply a failure to return to work. While a claimant’s failure to look for work may be relevant in challenging a claimant’s continued right to benefits in these situations, such evidence, standing alone, is insufficient to rebut the inference. Indeed, the employer must show “that the failure to seek employment was the sole cause of the subsequent reduction”. Here, claimant not only sought work after leaving employment but found it on two occasions, only to discover that her disability prevented her from performing her new duties. As the employer produced nothing to show that any inadequacies in claimant’s job search were the sole cause of her continued unemployment, substantial evidence does not support the Board’s determination.
The dissent at the Appellate Court opined that the claimant has an obligation to demonstrate attachment to the labor market with evidence of a search for employment within medical restrictions. Only after the non-retired claimant has met that burden does the inference arise that the subsequent loss of or reduction in wages, if any, was caused by the permanent partial disability. The Court of Appeals made its decision by determining that
“. . . a claimant’s work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations”. Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that “once claimant’s work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations“. . . .The correct principle [is] that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. … There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer.”
This then leaves the decision to the Board as the Court wrote, as it does in so many ‘discretionary’ cases, “We may not weigh the evidence or reject the Board’s choice simply because a contrary determination would have been reasonable.” Finding that the Board has reasonable evidence to make it decision, the Court of Appeals affirmed the find that the claimant had voluntarily withdrawn from the labor market. Prevailing party represented by: Michael F. Vecchione PPPPPP of Vecchione, Vecchione & Connors, Garden City Park for New York for Neurologic and Paul Groenwegen 1of counsel to the NYS Attorney General for WCB [25176-7720]
►A lengthy COMMENTARY on this decision and its ramifications for the future of injured workers can be found by clicking here.
Schmidt v Falls Dodge May 1, 2012 Court of Appeals §15(6): overlapping SLU & PPD 5185…§ 15(6): overlapping SLU & PPD
REVERSED the ruling of both the Appellate Court - 3rd Department and the Board both of whom required that the carrier pay both the maximum allowed weekly comp rate in addition to an SLU. As the result of three accidents, a Law Judge ordered the carrier to pay claimant a total of $400 per week, the maximum allowed. Subsequently, a Law Judge made an award for a hearing loss claim, permanent partial disability, entitling claimant to a schedule loss of use award per WCL §15(3). The Judge concluded that the schedule award was “currently payable in full,” notwithstanding the fact that claimant had was still receiving $400 per week for his other claims. The Board found the issue to be controlled by Matter of Miller v North Syracuse Cent. School Dist., in which the Appellate Division held that because a schedule award “is not allocable to any particular period,” it “cannot be deemed to overlap with” a temporary total disability award.
This Court essentially determined Miller is “incorrect and should not be followed“. The Miller court erred in allowing a claimant to recover both at the same time, with the result that weekly payments, $800, exceeded the statutory cap. The Court of Appeals explained that §15(6) provides a cap for payments of compensation and that the schedule award is not nullified by the other awards, but must be deferred until the time comes when the cap will not be exceeded.“A contrary holding would not only contradict the plain language of section 15 (6), but would produce anomalous results. A worker who was permanently totally disabled in 2005 — a quadriplegic, for example — can receive no more than $400 per week for his or her disability. It makes no sense for a worker who suffered a hip injury, lower back pain and a hearing loss in that year to receive $800 per week. Nor can it be said that time will eliminate the anomaly — i.e., that in the long run no claimant will recover an average of more than $400 per week — because no one can say when, if ever, a ‘temporary’ disability will end“.
Justice Cipatrick, in her dissent, posited that
a “schedule loss of use award” for a permanent partial disability is not linked to a particular time period, but rather is compensation for future loss of earnings without regard to present ability to work. She wrote that the 2007 Amendment to WCL took into account the issue of payments. Because the Legislature is presumed to be aware of the decisions in Matter of Miller and Matter of Lansberry, and as it did not comment on or make any change to blunt the effects of these decisions, it must be assumed that it intended to incorporate the holdings — that schedule awards do not overlap with temporary total disability awards — into the existing law. That the Legislature did not intend to overturn the holdings in Matter of Miller and Matter of Lansberry is even more evident when considering the 2009 revision to Workers’ Compensation Law. That revision was made in direct response to our holding in Matter of LaCroix v Syracuse Exec. Air Serv. Accordingly, I would permit the overlap of payments, although currently exceeding the statutory maximum, and affirm the order of the Appellate Division. The question of whether such overlap is permissible allowing for the “anomalous” situation identified by the majority is best left to the Legislature to determine.
The Court of Appeals finished its reversal by writing, “We therefore hold that periodic payments of a schedule loss of use award must be deferred to the extent that those payments, when combined with payments of another disability award, would exceed the cap imposed by §15(6). We hold no more than this, and do not decide what implications, if any, our holding may or may not have for cases governed by the 2009 amendment to §25(b): that section, as amended, now says that schedule loss of use awards ‘shall be payable in one lump sum, without commutation to present value upon the request of the injured employee.’” Prevailing party represented by: John R. Gibbon for appellants. [25176-7719]
►While this case does not have the same impact as Zamora in terms of claimants impacted upon, the 2009 Appellate Court decision was hailed as a major victory for injured workers. Whether or not the legislature will address this issue as specifically as inferred from the arguments by both the majority and the dissent at the Court of Appeals remains to be seen.
Forsyth v Staten Island DDSO May 3, 2012, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment 5170…§ 14(6): Concurrent Employment
AFFIRMED the Board’s substantively amended ruling which determined that claimant was concurrently employed and established his average weekly wage (AWW). After claimant’s case was established for an injury occurring, in the Winter - January 20, while a week-end employee of the Staten Island DDSO, his annual AWW was established by a Law Judge using earnings from concurrent seasonal employment as a lifeguard for the City of New York. The record demonstrates that claimant was employed on weekends by the employer year round for 12 years and had been seasonally employed for the City of New York between the months of May and September since 1978. Claimant worked for both employers concurrently during the previous 12 summers, participated in training and received a promotion with respect to his seasonal employment during the off season and returned to his seasonal lifeguard position following the injury. IN effect, although the claimant was not receiving benefits from his concurrent employment at the time of his accident, his income from that employment was properly considered in setting his AWW. Prevailing party represented by: Donya Fernandez of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #010 8704 [25176-7718]
►The only Appellate Court cases prior cases on concurrent employment involved the issue of reimbursement from the Special Disability Fund.
Hahn v Brylin Hosp May 3, 2012 NYS Appellate Division, Third Department 5160…§ 14: Average Weekly Wage 5160…§ 14: Average Weekly Wage
AFFIRMED the Board’s ruling which established claimant’s average weekly wage as a part-time worker. Although the carrier did not controvert the establishment of the claim for the part-time nurse, it objected to the Law Judge’s calculation of her average weekly wage (AWW) by using WCL §14(3), which the Court noted is applicable to part-time employees. This provision does not apply, however, where the claimant voluntarily limits his or her participation in the labor market. The carrier contended that claimant voluntarily limited her hours whereas Claimant explained that she was not seeking to limit her hours. And, her testimony “that she did not want to work full time and felt ‘fortunate’ to have a job that required her to work only three days a week did not disqualify her from the provisions of §14(3).” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Lower, Finnegan, Foster WCB #013 0308 [25176-7717]
►There have been no prior cases on the issue of AWW.
Kasic v Bethlehem Steel April 25, 2012 NYS Appellate Division, Third Department §28: time bar 1210…§ 28: time bar
REVERSED the Board’s ruling, and affirmed the Law Judge, that claimant’s application for death benefits was time-barred by WCL §28. During his 22 years employment at Bethlehem Steel, decedent was exposed to Benzene and other chemicals. After he was diagnosed with acute myelogenous leukemia, he filed a workers comp claim alleging that his illness was caused by his “exposure to Benzene.” The employer controverted his claim, asserting that decedent had not presented competent medical evidence establishing causal relationship. Three years after decedent’s death in 2006, the claimant’s spouse filed a claim for death benefits. The carrier argued that this second claim was untimely because, per §28, it was filed more than two years after decedent’s death.
A Law Judge disagreed and found for claimant, concluding that her claim was timely because it was filed within two years of her receiving a written medical opinion citing causal relationship. A Board panel reversed, disallowing the claim on the ground it was untimely as more than two years had passed after decedent’s death. The carrier argued that, because of the decedent’s own claim contending causal relationship, his wife should have filed within two years of his death, as those contentions put claimant on notice at that time as to what allegedly caused decedent’s death. In disagreeing with the employer and the Board, the Court wrote:
There is no doubt that, prior to and at the time of decedent’s death, decedent and claimant suspected that he contracted leukemia as a result of conditions at his place of employment. However, it does not necessarily follow that simply because claimant harbored such suspicions, she knew or had reason to know what caused decedent to contract leukemia.
The Court noted that the carrier had always contended that there was no causal relationship and none had been presented prior to his death.
In fact, claimant only obtained such evidence when she received a letter dated September 9, 2008 from a physician indicating that the leukemia that caused decedent’s death was a result of him being exposed to chemicals at the work place. Since claimant filed for death benefits within two years of the date of this letter, her claim was timely, and the Board’s decision to the contrary was not supported by substantial evidence.
Prevailing party represented by: John A. Collins of counsel to Lipsitz, Green, Scime & Cambria (Buffalo) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #003 6004 [24175-7716]
►This is the second case out of seven since Fall 2009 that the Board has been reversed on this issue.
Lue v Finkelstein & Partners April 25, 2012 NYS Appellate Division, Third Department 7110…Legal Malpractice 7110…Legal Malpractice
The key issue was the claim of legal malpractice brought about when the injured worker’s first attorney failed to preserve injured worker’s Labor Law § 240 claim against K-Mart when, as an employee of O’Connell Electric, he fell from a scissor lift rented by United Rentals at a site owned by K-Mart Corporation. K-Mart was in the midst of chapter 11 bankruptcy, resulting in the claim initially being reduced to zero dollars by the Bankruptcy Court in 2004 and next dismissed by Supreme Court based upon the Bankruptcy Court’s order; h did not pursue an appeal. After hiring new counsel and successfully suing United Rental, he brought this action asserting that he would have had a larger recovery if his §240 strict liability claim against K-Mart had been preserved by his former attorneys.
The record did show that there were contractual agreements between K-Mart and O’Connell requiring indemnification insurance which O’Connell never acquired. Since there is no proof of any kind in the record showing the existence of such a policy, the Court ruled “that this record does not support the conclusion that the contractual indemnification claim was established as a matter of law as a way that injured worker could have reached the funds of Interstate Insurance Group.” On the other hand, the Court found “unpersuasive the original attorney’s assertion that injured worker’s strict liability claim under Labor Law § 240 would not have had potential additional value in the underlying litigation. Further, injured worker submitted evidence which, when viewed most favorable to him, indicated that his injuries potentially had value beyond the amount for which he settled.” [24175-7715]
Dingman v Lake Luzerne April 12, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
REVERSED the Board’s ruling that claimant continued to suffer from a mild causally related disability and awarded him workers’ compensation benefits. The employer voluntarily paid workers cop Awarding continuing benefits at a moderate disability rate, the Law Judge, affirmed by a Board panel, denied the employer’s request to suspend payments pending development of the record with regard to claimant’s attachment to the labor market. The Court reversed the Board, writing that the C-4 form and narrative report of claimant’s orthopedic surgeon, the basis for the Board’s decision, contained inherent contradictions, thus these documents could not serve as a proper basis for the Board’s decision. The Court affirmed both the Board panel and the Law Judge in rejecting the carrier’s request to suspend payment pending claimant’s attachment to the labor market as this issue was not raised until the last hearing, thus giving the claimant no notice that he had to prepare a response. Prevailing party represented by: Danielle M. Barone of counsel to Lemire Johnson (Malta) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #021 9208 [24173-7713]
[ED. NOTE:]t was just over one year ago, in the Matter of DeFayette v Verizon, that the decision on the same issue was reversed for the same reason: ‘no reasoning’.
Fetter v Verizon April 12, 2012 NYS Appellate Division, Third Department Interlocutory Appeal «»7010…§ 23: Late/Interlocutory/Frivolous Appeal
DISMISSED employer’s appeal of a Board Panel decision to return the decision for further development of the issue after the Law Judge found no §120 discrimination. The Court stated that since the Board had determined that the Law Judge failed to render “a reasoned oral or written decision upon the contested points” as required by 12 NYCRR 300.5 (a), the cases was returned for further development of the record. The Court reasoned that “Inasmuch as the Board’s decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [24173-7712]
Nepomuceno v NYC April 5, 2012 NYS Appellate Division, First Department
§11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the Supreme Court, New York County stating that the Supreme Court was in error denying the defendant hospital’s motion for summary judgment in a case in which the plaintiff, a registered nurse employed by defendant, alleges that she was injured when she slipped on a piece of fruit that had fallen behind a fruit stand on the sidewalk abutting the hospital while on her way to start her morning shift. “[T]he availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law,” such that the matter must, in the first instance, be determined by the Workers’ Compensation Board, thus staying the matter pending resolution by the Workers’ Compensation Board. Prevailing party represented by: John J. Burnett of counsel to Scott Baron & Associates, P.C., Howard Beach for respondent. [24172-7709]
Guideone Specialty Mut v NYSIF JApril 3, 2012 NYS Appellate Division, Second Department §11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the King County Supreme Court’s denial of a motion to dismiss the Plaintiff’s complaint. The Appellate Court reaffirmed that defendant’s position that “The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court.” As to the timeliness of the defense, the Court added that, “Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers, a court’s lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time.” Prevailing party represented by: Elizabeth A. Fitzpatrick and Seth M. Weinberg of counsel to Lewis Johs Avallone Aviles (Melville) for appellant. [24172-7708]
Another Former Commissioner Agrees on Commissioner Salaries
Patronage, Commissioners, & Salaries
Judge Russak’s 7/25 Party
Six month review of 3rd AD Cases
PART III: Reducing Controverted Cases
Who’s minding the Candy Store?
Part II: ‘O pesce fete d’ ‘a capa
Part I: The WCB - An Amateur Archaeologist’s Dream
Temporary Total Industrial Disability
Are 5,000+ §32’s Null & Void?
Court’s Reversal Again Shows WCB Weaknesses
100th Anniversary of the Triangle Shirtwaist Fire
Awards for Minors: Who gets paid?
WCB seeks a new Claims Management System
Legal Fee Committee: Why? & Why Not!
Medical Guidelines: So much done - So far to go
Voluntary Withdrawal: A Review Of Recent Case Law
An Attorney Writes “Don’t Move the Buffalo Office”
An Attorney’s Review of Managed Adjudication Path (MAP)
Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable
The Insider’s Recommendations to Improve Board Procedures
Eliminating Oral Arguments: A MAP or a PIG?
A Reader’s Opinion of the Appellate Court, Third Department
The Quality of WC Board Decisions Reviewed in 2009 by the Courts
Answers to Your E-Mails
Legals Fees On Medical Expenses?
Project 2015: The end of the WCB Board
The New Medical Guidelines(?!)
The Appellate Court’s Split Decision
Comp Board Blocks “The Insider” as Spam!
Part III: More Comments on “bench briefs”
Part II: Reader Comments on “bench briefs”
Reader Comments on “bench briefs”
Should the Board present “bench briefs” [pro and con opinions] to panels??
Who’s Left to Sign Decisions?
The Legacy of Zach Weiss
Judicial Economy vs Judicial Integrity
A Guest Commentary on Board Doctors
Mirror Mirror on the Wall! Who’s the Fairest Doctor of them all?
Who wins the most appeals: Claimants or Carriers
LEGAL FEES: What’s fair, history, Can Bd set fees, etc?
Legal Reasoning vs Intuition
How do get paid on medical bills with the HP-1J
Who actually decides the decisions?
Rebuttals: a waste of time?
To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, injured workers, court decisions, or any other subject you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com
An Attorney Comments on Schmidt & LaCroix
May 9, 2012: Salvet Soper, Esq., a “well-known” attorney in the New York State Workers’ Compensation field has submitted the following for your consideration:1
“I have just reviewed the Court of Appeals decisions in LaCroix and Schmidt and I have nothing to add to the discourse. The LaCroix decision was completely in accord with my opinion when this decision was first issued by the Court as to why the Board’s decision in that case was wrong. I had wished the Court there would have gone beyond stating ‘Assuming that Miller is correct’ and would have overruled it, but it finally did so in Schmidt. The Court in Schmidt even took the surprising step of making the forbidden observation that a ‘temporary’ designation for a disability does not mean disability will not end.
“Nevertheless, Judge Ciparick, in her dissenting opinion, correctly points out all bets are off with the passing of the so-called LaCroix bill. The Workers’ Compensation Law was a deal with employers that immunized them from lawsuits that exposed them to more than just lost wage claims (notwithstanding Dole v. Dow) in exchange for allowing claims against them for lost wages even when they were not negligent. Schedule awards conflict with the philosophy of replacing lost wages and are more like pain and suffering awards which were not supposed to part of Workers’ Compensation legislation. This is probably why there has been so much litigation concerning how they are to be paid. It was never clearly set forth in the statute, and it has been left to the Courts to determine the method of payment based upon other parts of the Workers’ Compensation Law. The Court’s decisions were governed by the intent of the workers’ compensation law to replace lost wages only, and by the desired social benefit to New York State of having injured workers paid by their employers rather than the taxpayers for their lost time.
“As stated by Judge Ciparick, the business community agreed to the 2009 amendment as part of a greater negotiation. Thus, it cannot be said that it conflicts with the deal struck between government and business when Workers’ Compensation legislation was first passed. The drafting of the 2009 amendment leaves a lot to be desired. It lets stand the provisions that direct consecutive rather than concurrent payment of schedule awards, that allow continuing payments after the payment period for certain schedule awards has ended, and that provide for no further payments where a claimant has died without the necessary heirs. It also has not addressed whether schedules can be paid when a claimant is already receiving awards on another claim. Schmidt may continue to hold despite the legislation. Finally, the legislature has not considered the impact on taxpayers when a claimant who receives his schedule award in a lump sum immediately spends it and comes to the welfare department for lack of resources.
“It should be very interesting to see how the drama unfolds when post - 2009 schedule awards start to be litigated. At this point, I don’t have very much to say about the LaCroix and Schmidt decisions other than I believe they completely comport with prior decisions on the issues addressed. However, the original deal struck to create the Workers’ Compensation Law guided the Courts and it has changed with the LaCroix bill. What matters going forward is how the rationales in both decisions will stand up to post LaCroix bill appeals.”[25177-4067]
1Editor’s note: On May 17, I added quotes around the word “well-known” as apparently there are some people who tried to contact Salvet Soper and, not finding a listing, questioned me if that person was real. The person is real - just the name isn’t.
The Court of Appeals Zamora Decision:
Solves Nothing
May 1, 2012, 2012: Now that the Court of Appeals has issued its long-awaited decision on voluntary withdrawal from the labor market in the Matter of Zamora v New York Neurological, let the debate and interpretations fly forth.
Earlier today, the Court of Appeals, in a split 4-3 decision, reversed the Appellate Court’s decision in which the Appellate Court reversed a Board panel. The bottom line is that the Court of Appeals and the Board determined that a voluntary withdrawal from current employment due to a work-related injury does not mean a claimant with a permanent partial disability does not have the responsibility to seek employment, if necessary, in a position different from that in which they were injured.
From a legal perspective, I find the decision quite interesting but from the perspective of achieving the economic and humanitarian principles of the workers compensation system, so clearly highlighted in Chief Justice Lippman’s dissent, this decision leaves a lot to be desired.
The Decision
The Court Of Appeals made its decision by determining that:
‘a claimant’s work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations’. Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that ‘once claimant’s work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations’. . . .The correct principle [is] that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. … There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer.”
This then leaves the decision to the Board as the Court wrote, as it does in so many ‘discretionary’ cases, “We may not weigh the evidence or reject the Board’s choice simply because a contrary determination would have been reasonable.”
The Reality
Rather than resolving this issue once and for all, this decision will create far more controversy than ever. Now that the Court of Appeals has stated that there are conditions under which a claimant with a permanent partial disability must seek employment, we can look forward to hundreds if not thousands of challenges by carriers seeking to stop compensation payments to injured workers.
Unfortunately, with 60 administrative law judges, 40 to 50 writers in the Administrative Review Division drafting opinions, and probably no more than half of the12 commissioners reading proposed decisions, the future will see hundreds of identical case histories with decisions all over the place, from the strictest interpretations on behalf of injured workers sought by the injured worker’s bar to the strictest interpretations sought by carriers. As noted in Chapter 14 “Both Sides of the Coin” of my first book, Behind The Closed Doors, some commissioners sign decisions taking exactly opposite in case with identical fact patterns.
A Proposal
After 12 years of service at the Board and four years of contact with injured workers through my website, I am more convinced than ever that voluntary withdrawal is not an issue to be decided by splitting hairs on word usage.
The real questions are what are the responsibilities (1) of the injured worker to seek alternate employment and (2) the employer and/or carrier to assist the injured worker in that endeavor.
It is true that the answers to these questions will vary not only on the type of injury, level of disability, and skill set of the injured worker, but also the economic conditions that exist in both the injured workers immediate community and throughout the State of New York.
The concept of Industrial Disability does apply to some extent in that there are some older workers whose skill set and relearning abilities are so limited that alternate employment is hard to find. But then there are others who have been in the workforce for 30 or more years and for whom retirement seems preferable to seeking out a new type of employment and starting at the bottom of the payroll “totem” pole: on which die of the line are they?
On the other hand, despite the economic woes faced more so in New York than elsewhere in the country, this is still the land of opportunity and there are many examples of people, injured or debilitated by non-workers comp related disabilities, who have found employment.
MY SUGGESTIONS
I suggest a number of formal conferences in which the participants will include attorneys for claimants and carriers (only one of each) as well as representatives of those third-party firms who do job-training and seek work for injured workers as well as medical practitioners specializing in rehabilitation services. The agenda would be to establish a timeline or series of steps to be taken by both the claimant and carrier to help the claimant reenter the job market. And I offer my services as the moderator: contrary to the opinions of some, I believe that this is not a black and white issue but one which needs to help all parties draw a line, fuzzy as it may be, in the sand.
There must be regular communication between employer and the injured worker regarding changes in the claimant’s medical condition and their current ever-changing level of restrictions with regards to their prior job activities and possible changes in those activities to allow them to return to work despite their disability. Too often in the past this has become a sort of “gocha” game where legal one-upmanship interferes with the humanitarian aspects of workers compensation. This is not to minimize the contribution of both the law and legal arguments to the system but, if the pre-board and oral arguments I attended were any example, far too often the legal jousting lost sight of the injured workers and employers whose fates were determined by these debates.
Some system has to be devised so that shortly after their accident, depending on the injury and degree of disability, the claimant starts to prepare for the probability that they cannot return to their prior job. They must understand that in exchange for their receiving their compensation they have the responsibility in terms of both physical and educational training to prepare themselves to reenter the labor market in a different capacity than the one they previously had, including the possibility that their new income may be lower than it was at the time of their injury. And it is essential that they understand that workers compensation does award “reduced earnings” for those who are earning less a new job because of the injuries they sustained at their old job.
While the vast majority of injured workers do ultimately return to their prior employment, sufficient numbers are unable to do so. Thus, it only makes sense that a program be put in place so that as soon after the injury as is appropriate, steps can be taken to prepare the injured worker for reemployment. This is a far better use of resources than preparing to do battle in the field of law before law judges, board panels, and the courts of the State of New York, battles which delay a just resolution of the injured workers economic needs and ultimately give all parties the impression that the Board’s interest is its own aggrandizement rather than humanitarian principles so clearly reiterated by Chief Justice Lippman in his rebuttal.[25176-4066]
Carriers’ ATF Silent Friend
April 26, 2012: In an unusual turn of events for the Board, a carrier appeal is supersonically moved through the system and the decision on the carrier’s appeal is issued by the Board within five weeks. And although Chartis Claims was instructed in a Board panel decision of March 3, 2009, to make the mandatory deposit into the Aggregate Trust Fund, it has yet to deposit any percentage of the amount even though the three (3) year anniversary has come and gone.
Christopher Richmond, Esq., attorney for the claimant, confirms that Chartis Claims, the carrier in WCB #60405635 for Plainville Turkey Farm Inc., has challenged every calculation of the Aggregate Trust Fund as to the amount of money it must deposit into the ATF under the well-established doctrines set by Court of Appeals in the Matter of Raynor V Landmark Chrysler on November 15, 2011 (18 NY3d 48 (2011), 2011 NYWCLR (LRP) LEXIS 255; 111 NYWCLR (LRP) 228).
Unfortunately this case seems to characterize so much of what the Board has been doing, or not doing, in the past few years.
(1) There is a triage system, or used to be, and issues such as surgery disputes, death claims were at the top of the list followed by decisions which stopped claimant awards. At the bottom of the list were disputes between carriers. In this case, the bottom has magically risen to the top.
(2) Case law versus law of the case. While there are occasions when a particular case seems to be contrary to established case law, it is not challenged as not being worth the cost and time and effort. But here we have an issue that has been a major issue of the Board for years, ever since the 2007 Amendments were passed. For years, Commissioner Paprocki, who rather lucidly first raised the argument at a pre-board meeting that mandatory deposits were contrary to law, proceeded for the next few years to be the dissent on over 60 ATF cases. In fact, in the earlier Board panel decision in this case, she also dissented - March 3, 2009.
And here again, she is on the panel, perhaps the lead, for again not demanding even so much as a 10% payment of the undisputed amount into the ATF.
(3) For as long as I can remember, the Board refused to hear appeals when the appellant offered no alterative to the decision being appealed. The Board has always required a definitive objection in order to consider an appeal, lest it get an appeal of every Law Judge decision on the legal grounds “I don’t like the decision - do it again until do.” For example, in the Matter of Capalbo v Stone & Webster (2012 NYWCLR (LRP) LEXIS 18; 111 NYWCLR (LRP) 285 of January 26, 2012) the NYS Appellate Division, Third Department, in affirming the Board’s denial of a full Board review wrote, “the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable.”
Yet in this the most recent Board panel decision, the Board writes
The Board form C-40 filed on February 14, 2012 provides ample explanation of the calculation of the ATF deposit. Although the carrier has questioned the calculation, it has failed to make an offer of proof providing an alternate calculation and should be afforded an opportunity to do so.
Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence that development of the record is warranted to allow the carrier to produce an alternate calculation of the ATF deposit.
Summary
Charits (F/K/A AIG) has had three (3) years not to make their own calculations on the record and three(3) years not to make payment to the ATF. This Panel feels this Carrier is entitled to additional time to produce an “alternate”.
Whether it be a hidden agenda of the Board to favor a few carriers or the Board has become so mismanaged that one or two commissioners can thwart legal precedent, a triage system designed for the benefits of injured workers and not carriers, or just administer law in their own “mini-state’ is a question that others will have to answer. The Notice of Appeal to the Appellate Division has already been filed.
But to paraphrase Marcellus in Hamlet in act I, scene IV, “Something’s rotten in the state of the WCB.”
Perhaps this commentary will let in a little light and fresh air and help remove some of the ‘stink’ that appears to have permeated so much of the decision making by the upper level of the Board’s management.[24175-4065]
Cappellino v Baumann Part II
& The Invisible Target
March 1, 2012: I received a number of comments on the the Matter of Cappellino v Baumann & Sons Bus in terms of what is the Board’s current interpretation of the rules regarding the timing of the presentation of evidence. I must admit that the first sentence in the second paragraph below includes me and probably all the commissioners. the comment is:
There has obviously been a lot of confusion and controversy about which issues are barred against the carrier when they violate WCL Sec. 25(2)b (when they file the C7 more than 25 days after the EC-84 Notice of Indexing). Whether causal relationship is barred or not is the main bone of contention. Apparently, in the Cappellino decision, the Ct. of Appeals is saying that it IS barred. They ruled that the employer/carrier cannot introduce any medical evidence and the case must be decided on the claimant’s medical evidence alone.
I’m not sure I understand your comments about how long the carrier has to introduce medical evidence in a C7 case. It seems that what the Ct. of Appeals has now decided is that if Sec. 25(2)b is violated, then that’s it - the carrier cannot introduce any medical evidence at all on causal relationship. If they file their C7 within the 25 days, then they can submit their IME on causal relationship or anything else whenever they want to. No one is saying that the carrier must submit medical evidence within 25 days of the opening of the case. They just have to file the C7 within 25 days and they’ve “ante’d up” and can fight the case. Likewise, in a non-C7 case, the carrier can get an IME pretty much whenever they want to. So there’s no “rush to insist that all evidence be available immediately.” I think that the intent of the legislature in passing Sec. 25(2)b was, like Zach Weiss seemed to want, that the carrier should investigate all new claims promptly and either accept or controvert them w/in 25 days.
While some may argue to the contrary, it is my sense that the Board (the Commissioners and Administrative Review Department) are making up their interpretation of the rules as they go along and/or are seeking to find justification for picking winners first and then looking at the evidence. As I noted in my summary of today’s Appellate Court opinion in Wheeler v Bloomingdales, the Board seems to have taken the position again of doing what it wants when it favors one of the parties, by wrapping itself in the robe of ‘interests of justice’ or using its Appellate Court supported ‘discretion’ to make decisions. Several of us fought for years to enforce the 30-day time limit for filing appeals and to allow rare exceptions, not in the amorphous, capricious, and arbitrary ‘interests of justice’, but with a verbal justification that sets that exception apart for all the other denials. But reverting back to a lose ‘interpretation’ of the rules and laws, the Board is further supporting complaints from claimants and employers that the Workers Compensation Board is unfair.
The Board seems to have misunderstood the intent of Chairman Weiss’ changes by assuming that his attempt to speed up the process of finalizing the decision did not mean driving hell-bent as fast as possible running over everyone and justice in an attempt to close a case. I expect that in the future, the Board’s interpretation of evidence will continue to be one in which they throw their dart (the winner’s name) against the wall and then paint the target (evidence) around it or just tell everyone that the dart would be in the bullseye if there was one, i.e. the ‘invisible’ ‘interests of justice.’[22167-4064]
Cappellino v Baumann & Sons Bus
Does this follow the law?
February 23, 2012: “The Court of Appeals quoted the statute but the statute on late C-7 only bars the issues of employer-employee relationship, accident and accident arising out of/course of employment. I’ve never understood the bar to extend to the medical issue of causal relationship. . . . I’m sure there will be some discussion on this case which I think the Board and 3rd Dept got right.”
First I must point out that this is one of those decisions in which I could take either side depending on which side I was representing. But as a commissioner who had this case, I would have to consider some other factors originally brought to my attention by former Chairman Zack Weiss.
When Zach Weiss first came to the Board, before he became its chairman, I joined him when he went to a number of law judge hearings. He felt that the decisions were taking far too long, much longer than he experienced as a litigator in civil court and determined that something had to be done to speed up resolution of controverted cases. The results were changes in the law and the rules and regulations that govern the opening phases of the claim. One of these changes he proposed was to require that the carrier, if they were going to controvert a case, present all their arguments at the beginning of the claim, that the failure to do so would prohibit the carrier from raising that issue sometime later during subsequent hearings. As to whether or not the intent of the changes he sought meant that medical evidence in defense of the carrier’s position had to be presented in a timely basis was never clearly stated.
Therefore one can argue that the failure to present such medical evidence at the beginning of the case meant that evidence could not be used and one can equally argue that since there was no specific deadline listed for the presentation of such determination, there was no time limit.
Apparently the Board and the Appellate Court felt that there was no deadline after the opening of the case for the carrier to present contrary medical evidence whereas the Court of Appeals felt there was. By the way, I would have signed the original Board panel decision.
Not being a lawyer and never having been sued in court, I had no experience whatsoever with civil cases and how they proceeded to in civil court. Since my departure from the Board, I have been personally involved in a civil case in which 1½ years after the incident in question there have been seven adjournments and, to the best of my knowledge, there have been no depositions of the major parties to this action. I’ve also been following the class-action case in The Matter of Munter v CRM Holdings, LTD at the United States District Court Southern District of New York and this case, more than two years old, is not yet set for a hearing.
So maybe the rush to insist that all evidence be available immediately is not the best way to handle workers compensation claims. In addition, how fair is it worthy Board to insist that the carrier have all of its evidence ready in 30 or 60 days while the Board, more specifically the commissioners, are now taking almost a year to issue decisions on appeal of a Law Judge’s decision?[22166-4063]
Challenging the WCB’s GSIT Assessments
Part II
February 16, 2012: In response to my commentary last week regarding the calculation of future assessments on members of the failed Group Self-Insured Trusts (GSITs), a number of firms who what it medical bills and workers compensation claims reported to me that many of the claims they are receiving apparently had never been challenged in any way whatsoever by the now bankrupt trust administrators and even some of their replacements.
In one case, I was told that one claimant had a broken finger and for more than one year has been receiving full benefits as a temporary total disability. My contacts based remarked that it was astonishing to see how many claims there were of this nature in which the former trust administrators accepted every claim for any sites of injury Pat any average weekly wage for any degree disability without questioning any aspect of the client.
As a result, if one were to extrapolate future expenses for this claim, the amount needed probably would be the maximum for someone who had not yet been declared as having a permit total disability, well into the six figures. Yet, this injured worker should have gone back to work within weeks if not days of the date of injury.
If, as I have suggested, a thorough audit were made of all aspects of the claims accepted by these bankrupt trust administrators, including some which the Board would consider as “closed” as there are no outstanding issues, it is possible that thousands of claims with six figure reserves would be found to have no future liability or reserves of $10,000 or $20,000.
In fact it has been alleged that one of the contract trust administrators recently hired by the Board to take over the management of some of these failed trusts is basically doing the same thing: they are processing the paperwork, approving the documentation, but not actually examining and reviewing the validity of the claims and/or the need for I’m going medical treatment for which expenses are being submitted.
It may well be that a proper analysis may reduce the future liabilities of the trusts to the extent that the Board may be more successful in effecting the transfer of liabilities to a commercial insurer by way of an assumption of liability policy.
Unfortunately, if in fact there are excessive amounts of compensation and medical expenses being paid out because of the failure to properly audit and examine these claims, there is no way to seek recoupment of these funds from either the claimants or the medical providers. So the longer some of these state contracted group administrators are allowed to simply process claims and not examine or audit them, the greater will be the retroactive payment claims against the group members and the higher the extrapolated reserves.
1And, as I have noted on more than one occasion and stressed last week with my citation of two Appellate Court decisions, while the trust members appear to be legally responsible for retroactive payments, the Board does have an ongoing responsibility, particularly now, to make certain that these current trust members are not being taken advantage of in what could be considered a kind of Ponzi scheme.[22165-4062]
Challenging the WCB’s GSIT Assessments
February 9, 2012: A big THANK YOU to those who responded to my request for names of law firms who have experience in dealing with the attempts by the New York State Workers Compensation Board to bring legal action against members of the 24 underfunded group self-insured trusts.
One attorney responded “I, too, have been contacted by companies similarly situated and have not been able to give them any positive advise as to how to proceed as the Board’s attitude is simply pay me or have a judgment entered against you which probably could not be discharged in bankruptcy.”
Unfortunately there is a great deal of validity in this statement and it is for this reason I’ve decided not to publish a list of attorneys. I have spoken to and received many emails on this subject but the bottom line is quite simple.
When each employer joined a self-insured trust, they signed a contract which among other aspects gave them joint and several liability. As “joint and several liability” is defined, relevant to this case, the Board may pursue an obligation against any one member of the trust as if they were jointly liable and it becomes the responsibility of all the members of the trust to sort out their respective proportions of liability and payment. This means that if the Board pursues one member of the trust and receives payment, that member must then pursue the other obligors/members for a contribution to their share of the liability.
This concept was quite clearly affirmed by the New York State Appellate Division, Third Departments, in two decisions:
January 27, 2011 NYS WCB v 26-28 Maple Ave.: Defendants, members of the Manufacturing Self-Insurance Trust (hereinafter MSIT) were informed by the Board that the group self-insured trust was operating with a significant deficit, did not meet financial standards, and could not be restored to financial stability. After the Board then resumed control of the trust, it commenced this action to recover a multimillion dollar fund reserve deficit from numerous former MSIT members . . . The potential for joint and several liability inherent in membership in a workers’ compensation group self-insured trust is mandated by statute (see WCL §50[3-a]; Matter of Aides At Home, Inc. v State of N.Y. Workers’ Compensation Bd., 76 AD3d 727 , 728 [2010]) Thus, [the plaintiff] could reasonably have obtained this information from another source. Moreover, upon joining MSIT, [the plaintiff’s] officers executed participation agreements acknowledging, among other things, that [the plaintiff] would be jointly and severally liable for all participants’ workers’ compensation obligations during its membership and that it might be required to pay additional amounts to meet these obligations.
August 5, 2010 Aides At Home v State of New York Workers’ Compensation Bd.: Although petitioner was not a member of the Trust when the assessment was levied, petitioner nevertheless remained jointly and severally liable for the liabilities of the Trust that were incurred during petitioner’s membership until such time that those liabilities were satisfied (see WCL §50 [3-a] [former (2), (3)]) [Court Note: WCL §50(3-a)(3) was amended in 2008 to clarify that a member of a group self-insured trust remains jointly and severally liable for unpaid claims that accrued during the period of membership even after the member leaves the trust (see L 2008, ch 139, § 1)].A key fact supporting the Board’s appropriate interpretation of the statute was that the petitioner, upon joining the Trust, accepted this statutory mandate which was explicitly articulated in the trust and indemnity agreements along with a provision that petitioner was liable for its share of a deficiency assessment “for any Trust year or part thereof that [it] participated in the Trust,” . . .
As a result, the Board is not just unwilling but unable to settle with any one member of the trust because that firm would only give a check to the Board if it received a release from the Board, which the Board is not going to do lest other members of that trust are unable to meet the totality of their retroactive assessments. The only way that an individual member of the trust would be able to settle a claim against them is if a settlement is reached with all the members of that trust.
In fact, there have been instances in which some employers have submitted six and seven figure checks to the Board to cover their retroactive payments and to get a release from further litigation, checks which were rejected due to the joint and several liability.
Therefore, based on conversations I’ve had with many parties to this issue, it would be of minimal practical value of an individual member of the trust to hire an attorney to argue that they are not liable for retroactive payments. Therefore, I’m not listing any attorneys.
As to the amount due, that is another matter.
There are other issues which may well be subject to litigation one of which I was informed by a contact in California, a state which is also a major participant in settlement talks with some of the trust managers, in particular CRM. It seems that there is litigation in New York being taken to the federal court in order to have the assessments or other aspects of the Board’s position rejected. The fact that all of these trusts were established and managed under various laws of the State of New York raises the question of what the federal issue is being used to pursue this matter. But that is an issue to be argued by the parties to this particular litigation.
In my opinion, there are two issues that would be opened to litigation. The first deals with the level of responsibility the Board had in reviewing these funds which could result in a decrease in the value of the retroactive claims. The second deals with the validity of the claims accepted by the various trust managers: was their acceptance rate of claims, sites of injury, and average weekly wage higher than those of regular self-insureds, private carriers, and the State Insurance Fund? If it was, then the projected exposures would be in excess of what would be considered the norm and thus have resulted in a higher demand for retroactive payment.
As I delve further into this subject with what I would like to think is an unprejudiced perspective, I sense that many of those from involved in this battle have drawn their lines in the sand, while those seeking to find a solution are met with disdain by both sides. And although it may well be appropriate to point the finger of blame at the Board, as I have done here and in many of my prior postings on this subject, the fact remains that the members of trust, when they joined, did agree to accept retroactive assessments. The issue that must be resolved is what is the proper amount. Fortunately, there are a number of individuals seeking as fair a resolution of this incredible mess as they can within the legal obligations contracted to by all parties.
As get more information, I will keep everyone up-to-date.[22164-4061]
2011 Review of Appellate Court Decisions
Part I
February 3, 2012: In its review of a Board’s administrative review decision, the Court wrote, “Regrettably, [the Board] has almost wholly failed to submit such evidence, and has often failed even to respond to [plaintiff’s] arguments. Whether this failure reflects a tactical error, laziness, an implicit concession that the Code cannot withstand constitutional scrutiny, an erroneous assumption that [the Board] is entitled to special treatment, or a mere oversight, the Court cannot say.”
Looking back on the Workers Compensation Board’s record for last year, this quote seems quite accurate. However, when it was published on December 19, 2011, U.S. District Judge Sam Sparks of Austin, Texas was referencing the Texas Alcoholic Beverage Code interpretation of its own codes.
As I noted last month, the Board’s decisions were rejected by the New York State Appellate Court, Third Department, more than 30% of the time in the 138 issues covered in 114 decisions, a failing grade in any college or law school.
Over the last few years, the Board’s record at the Appellate Court has been getting increasingly worse while the number of cases being heard on appeal by the commissioners is being reduced. When one considers that the number of commissioners has not changed and that it is now taking twice as long for them to complete a review of an appeal, one could only expect that the commissioners would be paying more attention to the details of each decision. Evidence proves otherwise as the following numbers show that the affirmance rate has been consistently dropping.
Based on the issue codes I assign to the cases (and some cases have more than one issue being reviewed), there were 49 issues reviewed last year; the Board’s decision was successfully challenged on 27 of these issues. The attached chart lists the issue codes and the results of the decisions for each issue code.
Some facts:
67 of the 114 cases involved claimant versus carrier, with carriers winning 35 and claimant 32.
The Board prevailed in 25 of 39 cases, claimants in 36 of 76, and carriers in 44 of 97.
In the four categories of issues, the Board was affirmed more often in those two categories in which the Court tends to give the Board discretion. The high rejection rate in the other two categories, “Who Pays” and “Legal Procedures Followed”, which require both a knowledge of the law and an understanding of the concept ‘precedent’, really demonstrate the Board’s failure to properly adjudicate.
Just as last year, this year’s initial analysis shows that the Board is inconsistent on a very wide variety of issues but it appears to have the most problems with the issues pertaining to the Special Funds (§15(8) and §25-a) and the interpretation of §23.
Equally important is the number of times that the Court addressed the Board’s failure to be consistent from case to case on the same issue and/or its failure to explain its reasoning in its decision-making process.
Having been at the Board during years when the affirmance rate was consistently well above 90%, it is my impression that the fault lies with three parties. The first party is those commissioners,the insouciants, who do not read the decisions and are therefore unaware of the fact that a decision they are signing Monday morning at 10:00am written by staff writer #1 contradicts a second decision they are signing at 10:01am on the identical issue written by staff writer #2. When these insouciants are on the same panel, there is apparently no one making sure that the decisions are legal, consistent, and coherent. The second party is the head of the Administrative Review Bureau, who more often than not has moved on elsewhere before these decisions, drafted under their oversight, have been formally reviewed by the Court. (The current head of the department who has only recently taken over certainly has his hands full.)
And the third party responsible for this real travesty is the Chairman who is responsible for making sure that the Board meets its responsibilities. As a former highly respected law judge, one would have assumed, apparently incorrectly, that the Chairman’s attention to judicial accuracy would be a top priority.
Unfortunately the statistics issued by the Board regarding the ‘affirm, reverse, modify’ results of the Board panel reviews of administrative law decisions gives totally inaccurate and unreliable information. For example, if a law judge’s decision regarding determination of five facts (date of injury, sites of injury, average weekly wage, employer’s name, and that the accident occurred of and in the course of employment) is appealed on the last and only major legal issue and the Board panel reverses it, the Board statistics show that the decision was ‘modified. ‘ Thus, this decision is categorized the same as the correction of a typo in a law judge’s decision. My personal records of approximately 15,000 cases shows a 10% to 20% discrepancy in the number of ‘affirm, reverse, modify’ decisions. it is likely that even the Board panels’ reviews the administrative law judges decisions, which are not appealed, also reflect a high “poorly done” rate.
Add to this the abuse of §114-a (3 ) penalties on many appeals, attorneys are placed in a difficult position of either having to face an angry client by not proceeding with an appeal or being hit by a penalty by the Board which apparently has neither the time or patience to consider that it is its own inconsistencies and incoherence that results in the dissatisfaction with both administrative decisions and Board panel decisions.
While it seems easy to attack the Board, the real emphasis has to be on both claimants and employers who really have no assurance that the Board has issued a fair decision in their case, let alone even reviewed it. This inconsistency and occasional incoherence leads not just to anxiety on the part of injured workers, but also gives them a justifiable distrust of the fairness of the system and the sense that nobody cares. It also places many attorneys in the unfortunate position of having to explain, usually without success, to their clients why the clients are correct even though the Board has ruled against them. This inconsistency by the Board forces many attorneys to appeal decisions because the Board’s record demonstrates that far too often it is luck of the draw (the writer and the panel) and not legality what justice which determines who gets a favorable decision.
Next week, I will review in detail some of the more contentious issues of the 2011 and analyze the Board’s direction for 2012.[22163-4060]
Reader Comments on my Zamora Analysis
Voluntary Withdrawal
December 8, 2011: My commentary on voluntary withdrawal from the labor market relative to the Zamora v New York Neurologic resulted in far more comments that any other posting I have done. But I was surprised that those who represented the claimant side were not as lengthy in their comments as those who favored the concept of VWLM. For those of you who would like to make a few points from the claimants’ perspective (as you do when we meet), I offer you space here.
While I am not much for ‘talking heads’ on the TV public opinion shows, I feel strongly that we really need some discussions around the state to, dispassionately as possible, consider how to solve the problems noted below. And as the economy, not only in New York but all over the U.S., continues on its current trend, it becomes increasingly difficult to draw clear lines what the injured worker must do to be considered having been involuntarily removed from the labor market and what are the responsibilities of the employer and the government to find employment opportunities.
The following are some of those comments, edited for brevity and anonymity.
Wonderful, Thanks!
A neighboring state faces the same problems of finding a fair ‘line in the sand’.
In Pennsylvania, this issue was before the Supreme Court in October in the case of Robinson v. City of Pittsburgh. Essentially, the rule had been that the burden shifted to the claimant after accepting retirement benefits to show either (1) total disability from any level of work; or (2) a good faith job search after retirement. However, in Robinson the Commonwealth Court imposed a nebulous “totality of the circumstances” test putting the onus on the employer to establish that it was the intent of the claimant to remove themselves from the workforce.
And again from New York:
All your “What if…” scenario’s are based on only one presumption about the injured worker - that they have a desire and motivation to return to work. You are missing a very large segment of the injured worker population…The one’s with no desire or motivation to work any longer.
The VR defense has been pursued heavily by carriers because they are seeing (through surveillance, activity checks, database and social media searches, etc.) a relatively alarming number of worker’s who for whatever reason simply don’t want to work any more. These reasons run the spectrum from a late 50’s year old who has been chronically under-employed or employed in low paying, physically demanding, unskilled and unfulfilling work to a 20-something college graduate who can’t find work or who is starting a family and has a need for one parent to stay at home - It’s less costly to stay at home on tax-free partial WC benefits (Plus extended unemployment that when added to the WC pays more than former wages) than it is to work and pay for child care.
The reasons are economic and if the economy in the state doesn’t improve to offer decent well paying jobs, this will only get worse as disaffected workers realize they can “go on” comp rather than continue a long-term struggle with demeaning, under-paying, and unfulfilling work.
But the issue is best summarized by one reader as follows:
Judge’s decision vary greatly from district to district and judge to judge. As you can imagine, we live and die by the rulings that come down from the courts. The contradictions make our job very difficult and the appellate process takes so long that I don’t think either party is served waiting for the final decision.
I would like add a couple of points of observations that I have made from working the system from my point of view:
Retraining: what is the responsibility of a person without a high school diploma or limited English to get the education they need to improve their chances to get a job. Same with computer skills – many high schools and libraries offer free courses. I have a 1995 case of a guy who says he can’t read or write – so in 15 years he couldn’t work on this?
Is it the employer’s responsibility to continue benefits for the overweight or morbidly obese person who can’t get a surgery or has other health problems that add to their physical restrictions? (I would say 90% of my cases are overweight people.)
Transportation: they were able to get to work before, but now they can’t afford to pay for a car or get it fixed. Is that responsibility of the employer?
Relocation: an injured worker worked in the Bronx and now moves to Nowheresville where there is little to no commerce. Wages are affected as well even if they can find a job.
And then there was the case about which the I wrote last week, the worker who due to a work injury became severely mentally disabled (and classified without controversy as totally permanently disabled), who after his minimum wage job in a non-for-profit mail room was terminated, was reclassified as partially disabled. And then he was expected to seek employment in order to keep his compensation!
Yes, there are extremes for every issue. But, like the Bell curve, within the standard deviation are 68% of the cases. We should be able to develop some sort of method/indicia/rules to resolve the 16% on each end and work to slowly close the gap on the other 68% rather than fighting to the death on every case.
I look forward to your additional comments. [1N155-4059]
The Court of Appeals’ Zamora Decision
December 1, 2011: In the next few weeks, the New York State Court of Appeals will issue a decision in one of the most hotly argued issues that has come before the Court in years:
voluntary withdrawal from the labor market
Although Appellate Court decisions on this issue, such as Okonsk, v Pollio Dairy Products Corporation et Al., 184 A.D.2d 871; 585 N.Y.S.2d 121; 1992 N.Y. App. Div. LEXIS 8001, predate my arrival at the Worker’s Compensation Board, as someone who has been given credit/blame for the proliferation of cases on this issue, I feel it is appropriate at this time for me to discuss this issue prior to what may be a precedent setting decision about to be issued by the Court of Appeals in the Matter of Zamora v New York Neurologic.
Philosophy
The purpose of workers compensation insurance is not to provide medical insurance or to supplement lost income to injured workers. It is to provide medical treatment and supplement lost income to workers whose need for medical treatment and supplementary income is a direct result of a work-related injury. This last point has been affirmed innumerable times by cases in which certain legitimate injuries of injured workers, wages lost due to them, and relevant medical expenses are denied coverage under workers compensation because those additional sites of injury are not accepted as either causally related or consequential.
This concept, lost on a number of my former colleagues as well as some practitioners on both sides of issue, raises two central questions:
Is there some point at which the loss of income and/or medical treatment is no longer the responsibility of the workers compensation insurance carrier?
And, if there is such a point, how is it determined and who determines it?
“[I]t is well established that a partially disabled claimant has an obligation to look for employment within her physical limitations, and that benefits may be discontinued if the claimant is unable to establish that the limitations on her employment due to the disability were a cause of her subsequent loss of wage-earning capacity or inability to obtain employment . .”
The above statement of purpose, often quoted in decisions from the Board and the Appellate Court, confirm that there is a responsibility by the claimant to return to the workplace. And there are other cases, i.e., Matter of Wilkins V. New York Power Auth., 3rd A.D. 2011-03-31, in which claimants can be denied compensation if they refuse medical treatment.
Policy
But the underlying problem is that the attorneys and very often members of the Board see this as a black-and-white issue. Yet there are several shades of gray. For during the history of the case and due to the changing economic climate which we have been experiencing the last few years, the responsibility of the injured worker and the employer for enabling a return to work is a pendulum that is swinging both ways, and erratically so. Thus, one must pose the following questions:
What happens if the job, employer, or industry in which the injured worker was employed at the time of the injury no longer exists when the injured worker is prepared, with or without a temporary or permanent disability, to return to the workplace?
What is the responsibility of the claimant to train for other types of employment that would be within their new restricted abilities? The Matter of Zamora involves the claimant who appears to no longer be able to do the job for which she was trained.
What is the responsibility of the claimant if they can only find a part-time job? The Matter of Leslie v Eastman Kodak (3rd A.D. 2011-11-17) deals with an injured worker who sought employment in a wide variety of positions in a wide variety of industries but could not find full-time work.
Is it the claimant’s fault and therefore sufficient reason for denial of benefits if his employer, the only one in economically deprived upstate New York, closes or reduces its staff by 80% and there is no other employment in the area? Should this claimant be treated the same as others who would now be going on unemployment or does the work injury and temporary removal from the labor market warrant special consideration?
Does the large employer who more often than not has many people doing the same work have a greater responsibility to seek a position for the injured worker then does a small company with only four or five employees?
What happens when an employer comes to town and seeks to hire 200 people but the worker cannot apply because he is not ready to return to work yet but, when he is ready, all those positions have been filled?
Does the employee’s union have a greater responsibility to an injured worker than other members when both are seeking reentry into the labor market?
I remember discussions on the issue of notice under §28 in which one of the Carey/Cuomo appointed commissioners would tell me that it is the purpose of the Worker’s Compensation Board to find a way around the time limits under §28 to make sure the claimants would be covered because we have a responsibility to help injured workers. Then again, I heard the very same philosophy in later years from some of the Pataki-appointed commissioners, that the workers compensation system was a safety net for injured workers in the State of New York.
But that is not correct. The mere fact that cases can be settled forever under a §32 waiver agreement implies that at some point during the course of the claim, the injured worker becomes removed from the safety net of the workers compensation system.
This next raises the additional question of what happens to those claimants who have a need for medical treatment for which there were insufficient medical set-asides in the agreement and/or were not covered by Medicare or Medicaid. And then there is the question of what happens to those claimants who are unable to find work and have used up the compensation portion of their settlement. Workers compensation is not available to them.
Although there have been 24 decisions on the issue of voluntary withdrawal from the labor market issued by the Appellate Court since the fall of 2009 and hundreds of decisions issued by the Commissioners at the Board, there really are no clear-cut guidelines as to what constitutes voluntary withdrawal from the labor market.
A great deal of the fault for this lies with the Commissioners too many of whom failed to read the cases, relying on the writers of whom there are somewhere between 50 and 70, to make that decision for them. As a result, there are dozens of contradictory decisions such that, if so inclined and having the time, one can find case law to support both sides of the issue in any case in which voluntary withdrawal from the labor market is being controverted; I am not talking about cases supporting the concept being argued, I am referring to prior cases in which the claimants have the same medical problems and same employment and yet the decisions are different. But I’m not going to further belabor the failure of the Commissioners and the Board to resolve that problem because history shows the current Board considers such issues unworthy of their attention.
Practice
If I were in charge of the Board, I would make it my business to visit all of the district offices and set aside time to meet with attorneys on both sides as well as having people from the Department of Labor, unions, and the business community discuss this issue and get a better sense of the many questions that must be answered. The purpose of these meetings would not be to solve the problem as I am afraid that lines would be drawn in the sand before the first words were spoken. It would be for the sole purpose of having an open-ended discussion without seeking a solution in the hope that in the course of these discussions some specific fact patterns or ideas may arise that would help get the injured worker back into the workplace thereby enhancing their own economic independence and minimizing the cost to not only to the employers in the State of New York but also to the taxpayers.
Prediction
As to the decision to be issued by the Court of Appeals in the matter of the Matter of Zamora v New York Neurologic, I would not all be surprised if it were either a very narrow decision or a general decision with at least one dissent and possibly one concurring opinion.
As a result, I do not see this issue being resolved. Yet the issue of helping the injured worker return to the work place and earn a living and maintain their self-respect is at the heart of the workers compensation system, a concept too often lost in the battles that take place in the hearing parts and appears to be outside the intellectual interest of the current Board.
Comments and criticisms are welcome from all parties as well as anyone interested in making a prediction as to how the Court will rule.[1D154-4058]
Raynor & ATF
More Questions than Answers?
With the matter of mandatory deposits into the ATF finally resolved by the Court of Appeals on November 15, 2011, perhaps this matter will come to a conclusion.
But it will not . . . .
On November 15, 2011, in the Matter of Raynor v Landmark Chrysler, the Court of Appeals ruled that the Board’s interpretation of the 2007 Amendments in §§27(2) and 15(3)(w) which mandates that private carriers make deposits into the Agrregate Trust Fund is correct. (The matters of Collins v Dukes Plumbing, Hardy v Trico, Parkhurst v United Rentals;, and Salgy v Halsted Communications were covered by the Raynor decision.)>
This will lead to two major issues: unpaid balances in the ATF and alleged unfair settlement options foisted off on the private carriers as compared to the State Insurance Fund and self-insureds.
UNPAID BALANCES
As I wrote in my Editor’s Note at the bottom of my summary of the case on the DECISIONS page, I see a potential legal issue arising when the ATF settles a claim with a §32 settlement for a sum less than what has been deposited. To whom does the balance of the money belong? The fund or the carrier? In its decision on Line #177, the Court of Appeals wrote:
The Takings Clause prohibits the government from taking private property for public use without providing just compensation. The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier’s assets for the use of the State (see Connolly v Pension Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State’s general fund]). Here, there is no such diversion, the mandatory deposit only reflects the present value of what is owed to an injured worker.
I read this to state that these funds are held in trust by the ATF for the beneficiary, the injured worker. When events transpire that end that relationship and the terms of the trust, i.e., the trustee’s responsibilities have been completed but the fund not depleted, it seems that the remaining balance of the fund is to be returned to the depositor and not the trustee.
For what other purpose would the ATF hold these funds? But with the State’s overreaching on ‘surplus’ insurance funds, such as those held by the State Insurance Fund, will the State simply move the unused funds into the general budget? This is a question I have been asking practitioners for months and not one of them, probably 40 in total, can answer that question other than to assume that the State will, one way or the other, keep the funds.
UNFAIR SETTLEMENT OPTIONS
Historically §32 settlements have been for payment of compensation equal to 4 to 7 years. But the mandatory deposits to the ATF are based on actuarial tables and can be for up to 20 years or more worth of payments. The mandatory payments, however, are limited to private carriers. Therefore the cost to a private carrier can be 4 to 5 times that of the cost to the State Insurance Fund or self-insured, thus putting the private carrier at a substantial financial disadvantage not just in terms of reserves but in the terms of the need to have higher rates to cover the additional financial exposure.
An interesting question which will undoubtedly occur within the next few months is a §32 settlement which has been apportioned, hypothetically, 50% either in one case or because it involved several cases, between a private carrier and the State Insurance Fund (SIF). What will happen when SIF offers five years ($30,000) and the carrier 10 years ($60,000)? Will it be written into the agreement that SIF is to pay $30,000 and the private carrier $60,000?
If I were a claimant, I would want to know why SIF is only paying $30,000 while the private carrier is paying $60,000. Since the carrier is responsible for 50% and is paying $60,000, why am I being cheated by SIF? This is a question whose answer I shall leave to those with more wisdom than have I.
And what impact this will have on the ability of cases of this nature to be resolved, I do not know although I can anticipate there will be some sort of impact. As to whether or not this could result in another case going to the court I cannot anticipate.
CONCLUSION
While I know that I am preaching to the converted (the workers compensation community) who will consider this problem, it is the deaf (the Board) who should be looking at how these issues will be resolved since it is the Board’s law judges and, ultimately, commissioners will be responsible for making decisions on these issues.[1N151-4057]
The NYSBA CLE Report
Board Staff Should Attend These
October 27, 2011: I had the opportunity last week to attend the New York Bar Association’s CLE on workers compensation. And although I have attended about eight CLE courses at the Board, given by Board attorneys for Board staff, this was my first ‘independent’ CLE. It was also interesting that about half the attendees were attorneys who did not practice workers compensation law but were there to use the requirement that they get credits to learn a new area of practice. My impression?
V E R Y I M P R E S S I V E
My first observation is that Board staff, including commissioners and law judges, should be required to attend the NYSBA’s CLE and not the Board’s internal CLE’s.
First of all I would like to thank Carl Copps from the NYSBA who helped organize this. And a thanks to the following speakers:
David Goldsmith: What is NYS Workers Compensation ** James McCarthy: Workers Compensation Issues ** Michael Chechanover: Ethical Consideration in a Workers’ Compensation Claim ** William Jones: Medical Treatment Guidelines ** Catherine Stanton: Section 32 Settlements ** Hal Friedman: 3rd Party Actions.
As to the presentation itself, it showed that all the practitioners, as noted on more than on occasion by the speakers, have difficulties dealing with the law and rules and regulations as currently interpreted by the Board. Equally frustrating to them was the fact that there does not appear to be any consistency in the way that the Board operates nor does there seem to be some direction in which the Board is heading, both of which need to be corrected so that the practitioners know how to best handle their claims.
Probably the area of workers compensation that attracted the most discussion dealt with not only the new medical guidelines but what appears to be an inability of the Board to develop a system that accurately reflects the degree of physical disability, degree of wage loss suffered by injured workers, and how to handle medical issues not properly addressed, if at all, in the medical guidelines. But there were other issues discussed at length, such as Medicare Off-sets. But these will be covered by me in future commentaries.
The reason that the Board attorneys and commissioners should attend is that they are currently hidden away in their ivy towers, made even more distant from the world by the Board’s trend to eliminating hearings. Added to the fact that the vast majority of commissioners only go to the Board offices for the one every other month oral argument or the once a month Full Board Meeting, they do not even have the opportunity of hearing differing points of view or interpretations on major issues in which they issue decisions every day. Fortunately the law judges do have the opportunity to speak to claimants but they are under time constraints and also, as one law judge put it in the minutes a few years ago, “I can do what is right but I know that I will be reversed so I have no choice in what I am about to do.”
Neither the papers presented to the commissioners for decisions nor the brief argument they hear at oral arguments touch upon the problems discussed by all the attorneys: from the blatant abuse of opiates to the difficulty getting the Board to understand that by setting a minimum of 10 visits to a chiropractor for a bad back, they have also set a maximum: the carrier informs the doctor to stop treating and the doctor, unless he is willing to take the financial risk of treating without authorization, then stops, even though many claimants still need treatment.
In discussing how to deal with certain Board rules and regulations, it was obvious that the participants have various interpretations of the Board’s rules. And any attempt to get a clarification from the Board resulted in the Board’s failure to respond.
The Board needs to meet regularly with practitioners for an exchange of ideas and thoughts in order to insure that the rules and regulations and the interpretation of the law are consistent and make sense. As I have argued for years and the Third Department of the New York State Appellate Court has opined quite frequently this year, the Board must be consistent in its interpretations and in its use of the underlying facts in the case.
I do remember being told, by someone further up the food chain than was I, that commissioners do not make policy. I responded that every time we interpret the law or move the gray line one way or the other, we are making policy. The law is not dry and deals with real people with real problems and it is important that we understand what happens out in the real world. That is why some of us felt that oral arguments and §32 hearings were so important: we got to see the face of the person whose fate in life we were determining. They would talk to us and let us know their concerns. After all, the difference between a 45% CLU and a PPD is not just a legal definition: it could be a life altering decisions. It was obvious from the lecture and Q&A that the attorneys for both sides understood this.
Attendance by board staff at these CLE would be a first step in the Board’s decisions makers understanding this as well.[11104056]
I Answer Your E-Mails
October 20, 2011
Oops - A Reader is Right
A reader writes:
I take umbridge at your characterization of the death tax as “more importantly” in comparison to the layoff issue. The layoff issue affects whether certain Board employees keep their jobs at all, while the “death tax” issue is only about valuation of benefits. Both issues are indeed important, but don’t devalue state workers.
My reply:
Point well taken and accepted. I certainly did not mean to disparage or minimize what could have been a serious problems for those effected by the budget games being played. Yes, there are a few ‘turkeys’ at the Board but the overwhelming number of the Board’s staff, as well as at most state agencies, do their jobs well. Unfortunately some of those who are positions of authority (but minimal responsibility) by virtue of their political connections often seem exempt from the games being played.
Getting Stats on MG-2 Variances
A reader writes:
How many MG 2 variances have been filed for low back pain as of September 1, 2011?
b) How many MG 2 variances for back pain were from medical physicians?
c) How many MG 2 variances for back pain were from orthopedists? How many were approved?
d) How many MG 2 variances for back pain were for active therapies? How many were approved?
e) How many MG 2 variances for back pain were from chiropractors? How many were approved?
f) How many MG 2 variances for back pain were for spinal manipulation? How many were approved?
The data will speak for itself.
My reply:
No!
The Board will not publish any statistics that do not show results which meet the projections they made when they originally proposed changes in the polices and procedures. And this assumes that they even both to not only run reports internally but look at these numbers.
But if they did want to issue these statistics, it would be quite easy to do so. The Board uses a multi-relational database. What this means is that they can take the data off of one form and match it up to data from another form so that the combined data will give results that looking only at one form at a time will not. I know from my own ability to convert the date the Board gave me during my 12 years there, into something meaningful I could use to track not only decisions but the result of changes in the administrative practices of the Board. But should you be able to actually speak to someone who will tell you that they have the authority to answer you, they will tell you that the data people are very busying updating the system, doing reports for someone important, designing new security software, working on the budget, ….
Another comment on Medical Variances
A reader writes:
I recently read you September 1, 2011 edition of The Insider. I also read the newswire article quote in the Daily New from a Mr Brian Keegan regarding the recent treatment guidelines and variance requests. I was astonished to hear Mr Keegan state that more than two thirds of the variances have been approved. These approvals must be taking place outside the Albany district, as virtually every variance hearing that I have attended has been denied, and I hear that same result from attorneys, and other licensed hearing reps who represent claimants in the Albany district. His claim is in direct contrast to the reality that I experience at variance hearing in the Albany district.
Other than the first e-mail, these are a random selection of e-mails I receive. Keep them coming as they suggest new commentaries. Thanks.[11104055]
WCB Layoffs: A Charade
October 13, 2011: This week the New York State Workers Compensation Board is announcing layoffs, rumored at this time, to be 27 people, due to the need by Cuomo to find savings in this year’s state budget.
But this is a charade!
The cost of running the Board does not come out of NYS’ operating budget, a budget which is paid for with tax dollars (or debt, which is ultimately paid for with tax dollars).
It is paid for out of assessments against insurance companies and is, therefore, an ‘off the budget’ agency, one of the few that generates its own operating income.
Whether or not the Board’s income from assessment against carriers has decreased, just has the State’s income from taxpayers decreased, does not mean that the Board has to layoff workers to help balance the State budget. Whether the Board lays off 27 people, 200 people, or hires an additional 27 people will have no impact on the state’s budget.
Whether this be a sop to PEF or other unions or the state legislature remains to be seen but it is not going to have any dollar impact on the state budget.
Is there anyone at the Board who will stand up on this issue or are they keeping their heads low, hoping Governor Cuomo does not notice them and cut off some of those useless heads. [11104054]
WCL DEATH TAX!!
By Ron Balter, Louis Dauerer, and James McCarthy
September 22, 2011:Have you sensed a bit of unease in attempting to explain to your client the Surviving Spouse offset off WCL §16? “Well,” you might humbly state with your best attorney countenance, “it’s the law.”
LEGISLATIVE HISTORY
The offset provision [50%] on workers’ compensation of WCL §15.3(v) is based upon receipt or qualification for SS disability benefits and terminates the WC disability benefit upon receipt or entitlement to receive old-age SS benefits. This provision raises a question of age discrimination. Together with WCL §16, these reductions are characterized as “reverse offsets” as distinguished from the SS offset where the combination of workers’ compensation and SS benefits are greater than 80% of the historic earnings record when combined. This latter “default offset” was authorized by Congress in 1965.
Prior to the enactment of the 2007 [WCL 15.3(w)] duration limits on workers’ compensation, the 80% default offset often operated to spur a compromise of the workers’ compensation indemnity rate from total to a partial rate despite evidence of a higher indemnity rate. Commentators observed that the duration limits of the 2007 reform statute “effectively removes this possibility for compromise.” [NYS WC Handbook, 5.52(4)].
In 1981, Congress eliminated “reverse offset” provisions, but grandfathered those in NY and fourteen other states. WCL §16 was enacted in 1977. Among others, the legislative purposes cited: “tax incentives for employers“; “creates jobs“; and “dependents are not without other financial support.” In 1977, the maximum statutory indemnity for a death claim was $125 per week for an Average Weekly Wage [AWW] of $187.50 compared to the 2011 maximum of $772.96.
EFFECTS OF THE “REVERSE OFFSET”
Recent AWW data [Joint Report of the NYS Insurance Department and NYS Workers’ Compensation Board, (March, 2009, p. 21)] indicates that of 83,830 Claims With First Indemnity Benefits paid in 2007-08, 34,022 [69.1%] were male and 13,841 [28.1%] were female, or a ratio of more than two to one.
Thus, the “reverse offset” disproportionately affects the female surviving spouse likely in a similar ratio. [See Data Below]
DISTRIBUTION OF AWW BY GENDER
Based upon the criteria of WCL §16 [Table 1: Sole Surviving Spouse, no children] the workers’ compensation indemnity reduction ranges from 5% to 50% depending upon the AWW range from $$100 to $200 per week.The data further demonstrate that 78,339 claims have an AWW in excess of $224, representing 93.5% of the total number of claims potentially subject [in a death claim] to a “reverse offset.” If the AWW is $450 [$300 per week statutory benefit] , a sole surviving spouse [over age 60] with a SS Survivor Benefit of $1200 per month is subject to a “reverse offset” of $138.46 per week [$1200 x 12/52 x .50] or nearly $7200 per year. This represents a 46.15% reduction. In the national debate, this would be characterized as “confiscatory” or a death tax.
TIME TO ACT
It’s been over 30 years since Congress prohibited (and grandfathered) “reverse offsets” and thirty-four since New York passed its legislation. Rescission of New York’s “death tax” is long overdue and the Legislature needs to determine whether WCL §16 has met its purposes. It’s difficult to imagine those goals have been achieved. While death and taxes may be inevitable, they ought not be even more distressing and painful to surviving spouses.
Since the “reverse offset” is by operation of law, the reduction occurs without a hearing on the issue. Due Process is at stake:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].
What do you think? Feel free to submit comments, take action, and offer your own “OpEd” column. As always, thank you for your support.
September 22, 2011: A review of the Board’s public records show that the Board is taking twice as long to do its work in 2011 as in 2009 but accomplishing only half as much.¹
During this past July, the Board issued 549 Memorandum of Decisions, decisions that were to resolve appeals made by injured workers or carriers dissatisfied with the decision of an administrative law judge. Two years earlier, in 2009, the Board issued 1,235 Memorandum of Decisions. Thus, in 2011 they issued only 44% as many Memorandums of Decision as they did two years earlier.
This certainly appears to be encouraging, perhaps a sign of less appeals, the Board’s oft pronounced goal … except for one additional fact:
The average MOD in 2011 took nearly nine months to get issued whereas in 2009, when there were more than twice as many appeals to review, the Board issued them in less than four months.
This explains why there is such a large backlog of cases: 17% of the July 2011 decisions took more than one full year to be issued whereas in 2009 only 1% of the decisions required more than nine months.
It is likely that the 2011 performance figures would have been far worse except for one anomaly: an inordinately large number of appeals from the month of April 2011 appear to have moved to the top of the pile and had their cases resolved by Board panels in July. As you can see from the chart, the 2009 figures (black) show a standard Bell curve whereas 2011 (blue) show a great degree of irregularity, aside from the longer duration to resolve appeals as compared to July 2009.
Unfortunately, the Board no longer publishes any numbers of this nature, number such as those I posted in my Commentary of September 8, 2011 “An Attorney Questions Board’s Response on ‘Variance Requests’” in my letter to the Board Chairman.
Basically, the Board is spending its time resolving issues by forcing cases to be closed rather than using its resources to make decisions. I do not know how many people are employed in the Administrative Review Bureau (a ‘state’ secret?!?) But the number of commissioners on the payroll has not changed although the number of working commissioners appears to have decreased.
Medical variances appear to be suffering from the same problem. Claimant attorneys are complaining about the delays that they are encountering in seeking to reopen cases when medical treatment is terminated because the Medical Guidelines have determined that the injured worker has been cured or perhaps only stabilized. One can only assume, since the Board issues no data, that the requests for medical variance are treated with the same case as the appeals of law judge decisions: months if not years in the making.
But rather than address the issue of why the decision making process has crawled to a virtual stop, the Board is pursing a new debacle for the coming year: MAPP.
When is Governor Cuomo going to step in and clean house? [11094052]
¹[ED. NOTE:] Detailed statistics are attached. The statistics are based on an analysis of 148 decisions for 2009 and 2011 for July 1 to July 31 as listed in Lexis and based on the difference between the date of the decision that was being appealed and the date the MoD was filed. The date of the underlying law judge decision was used as that date appears in all the MoD whereas the dates of the appeal are often not in the MoD. But since there are only 30 days to appeal the law judge decision, any adjustment that could be made, assuming it did not average out, would not significantly reduce the time differences between 2009 and 2011. In both 148 MoD’s review in 2009 and 2011, there are RFA’s (actually only showed up in the 2009 cases), Full Board Reviews and reconsideration of Appellate Court decisions, all of which were done faster than the average for cases in that time period but with a relatively minor effect on the final numbers. As I started with July 2011, I decided to take a 25% sample of the 549 cases, i.e. 148; as a result I used same absolute number, 148, for July 2009 rather than 25% of 1,235
Patient Died BUT the case is closed!
September 15, 2011: In its 2010 Annual Report, the New York State Workers Compensation Board states that the number of pending claims is going down every year for a seven-year average of 7.5% (Chart 2). And this is all due to the new procedures to force both sides to set the issues before a law judge so that these matters can be settled.
However, that same Annual Report shows that, while fewer cases are being indexed every year, down 25% from 2002 to 2010, the number of cases being reopened has increased by 25% in the same period of time. In fact, as my charts show (all using the statics from the Annual Report), the number of cases that require the Board’s attention each year is increasing. Equally important, whereas in 2002 reopened cases were only 49% of the total number of cases handled by the Board, by 2010, reopened cases were 62% of the total and are increasing every year.
More importantly, if you take a look at the last column in Chart 2, you will see that the Board claims to have closed 72% of all cases it had in 2010. At this rate, by 2014, the Board will be closing more cases than it has. Each chart on its own, one on page 3 of the Annual Report and the other on page 21 of the Annual Report show that the Board is accomplishing its goal of speeding up the process. But putting the charts together shows something different.
What does this really mean?
Essentially you can cut down the number of hospitals beds you need and improve the morbidity rate of your hospital by releasing every patient in 10 days, whether or not they are cured. Just state that they are. Hence, a smaller patient population, a need for fewer beds, and no reports of anyone dying in the hospital.
By closing cases as fast as they can, the claims pending is reduced and the number for claims resolved increases. This is done by closing a case if a question comes up that can not be answered at a hearing. “Don’t adjourn - just close.”
Unfortunately, when either party wants to reopen a workers compensation case, the Board, in order to cut down on paper work by cutting down on hearings, now requires all sorts of documents to support the request for a reopening. And after a few weeks, or more likely months, if the Board approves a reopening, the clerical staff must set up hearing dates, schedule a law judge, etc. How much easier would it have been for a law judge to say, “Let’s adjourn until 2:30 next Tuesday which should give you enough time to either settle this issue or have all the facts I need to make a decision.”
But the Oligarchic Cabal, in Albany, who trust (do they have a choice) the law judges to make what are sometimes complex medical and legal decision on cases do not feel confident that the law judges are capable of determining which cases should be adjourned to give the parties time to resolve a case and which cases should be closed.
Is this really true?
Near the end of time that the commissioners were doing §32’s, a complaint arose that was discussed at our monthly preboard meeting. The complaint from the Cabal was that some districts had too many §32 hearing adjourned, thus cluttering up the calendar. The hearings were supposed to either approve or reject the settlement. It was obvious from the districts mentioned that reference was being made to New York City and one update district office. (At that time, most districts, other than Brooklyn, only had one commissioner handle all the hearing.) I was the one commissioner pointed by name out for criticism.
I gave an example of an issue that came up at a hearing. It was a technical issue in which the agreement had to be redrafted to change a few words; the improper words could not simply be crossed out but had to be typed into the agreement as original text and not handwritten as was usually the case with changes. I adjourned the case for the agreement to be rewritten and set the next hearing for 10 days later when I was doing another §32 calendar. I instructed all the parties I would proceed now with the balance of the settlement hearing so that at the next hearing, we would need only a few minutes to tie up everything, that they could just show up during my calendar whether or not a Hearing Notice was ever issued and I would take them right away. Ten days later, the §32 was approved and the case closed.
At that preboard meeting, I was told I was supposed to have rejected the §32. The parties could then apply to reopen the case. When I raised the point that rejecting the agreement, closing the case, and then requiring them to formally seek a new hearing would take about four or five different filings, lots of board staff (examiner) time, and delay the settlement another two or three months, I was told that my argument did not address the issue. It simply did not look good that there were so many open cases and unresolved §32’s. I was to understand that the policy was “Approve or Reject”; there was no third option.
I have been told by several law judges as well as attorneys from both sides that this policy, ‘Approve or Reject’, still seems to be the rule.
And it is the case that this same policy applies to ordinary hearings as well. If the parties have just received some new information and need another week to resolve the issue, the judge is instructed to close the case: “There are no unresolved issues because neither side has presented conflicting information that requires a decision today.”
In the meantime, the number of open cases is skyrocketing. More often than not, claimants are being denied compensation or medical treatment while the Board awaits the proper filing of forms, and the Board proclaims “We have closed all ur cases and discharged all our patients/claimants. Look at our morbidity rare - No one has died in our hospital.”
The Invisible Gorilla
Too bad they do not leave their ivy towers and see all the bodies in the street. But then again, as noted in “The Invisible Gorilla” by Chabris and Simons, some people do not see that which is in front of their eyes even if they look at it: they have conditioned themselves to believe that what is in front of their eyes does not exist.
Next week, I will publish data from the Board regarding the time it takes for the Board to review an appeal. [11094051]
An Attorney Questions Board’s Response on ‘Variance Requests’
September 8, 2011 Last week I received the following letter from John Klee, Esq. With his permission, I sent a copy of that letter along with some Board statistics on time delays for Board panel reviews to the following staff at the New York State Workers’ Compensation Board: Chairman Robert Beloten, Vice Chairman Francis Libous (within whose area of responsibility is managing the commissioners), and Brian Keegan, the Board’s spokesman. While I expect that neither Beloten nor Libous will read the e-mails, I certainly hope that Keegan is not just a spokesman but also an ‘answerman’.
A Letter from Jonathan Klee, Esq.
“Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board. Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board.”
I find this statement by Mr. Keegan interesting and misleading. The interesting part is that based on the numbers provided by the Board at least 26,059 variances requests were denied. That is an exorbitant number of denials of treatment when compared to the system in place prior to December 2010. The misleading part is I’m sure these figures do not include the thousands of other requests for treatment which were denied because the medical provider failed to request the treatment properly since they failed to follow the complex rules of the variance process or medical providers who just refuse to treat patients who need care because they don’t want to deal with the complex rules of workers’ compensation anymore.
The approval time of variance requests by the Board is also an issue. We have had a number of cases where variances were requested. It took the Board a number of months to put the issue on calendar and decide the variance. Finally, after this delay, caused by the Board, the medical treatment was deemed necessary. However, all treatment rendered up to the Variance hearing was denied since it was not pre-approved. So, for example, variance for treatment was requested in January. The Board does not place the case on calendar and decide the issue until April. In April the Board approves the treatment from April forward as necessary and in the same Decision denies the medical provider payment of all medical bills rendered between January and April since they did not receive pre approval. Can anyone at the Board explain the logic of these Decisions? Last I looked, if treatment is necessary treatment is necessary. The only point of these decisions is to force medical providers out of the workers’ compensation system, force delay in treatment since maybe the claimant will just give up and deny payment of bills so Insurance Companies can pad their already bloated profits.
Mr. Keegan, what is the Board’s response to this issue? Please don’t tell me expediting variance hearings because the Board is already flooded and back logged with thousands of requests and thousands more still to come. Attorneys who practice Workers’ Compensation everyday at the Board know that is not a realistic response. That answer would just show how the Board does not really care about providing prompt and efficient treatment to injured workers (What you claim is the goal of the Variance process) and an insult to the medical providers who are underpaid already for the valuable services they provide.
Please Respond to: Jonathan Klee, Esq. Klee & Woolf, LLP 350 Willis Avenue Mineola, New York 11501 (516) 294-5775
My Letter to the Board’s Executive Staff
Dear Chairman Beloten, Vice-Chairman Libous, General Counsel Munnelly, and Executive Director Fenster
September 8, 2011: In response to Brian Keegan’s comments which appeared on the September ,2011 article in the New York Daily News about the delays in the NYS Workers Compensation Board’s handling of medical variance requests, John Klee, Esq. asked me to publish the attached letter [posted above], for which I am now asking for your response.
Even members of your own executive staff, when asked about expediting appeals, have told those phoning for assistance that there is an ever growing backlog in the appeals unit and that, as a result, variance requests are taking many months to review and relevant decisions to be issued.
In addition to responding to Mr. Klee’s letter, I also ask that you publish every month statistics showing the status of appeals per the attached worksheet which used to be distributed to the Commissioners at pre-board meetings when I was on the Board. The letter codes represent categories of cases, with death claims and requests for surgery being the top two.
When Carl Copps took over the review bureau (or whatever is name for this month), he cut the review backlog down to only a few months. Since his departure, it is alleged to have increased back up to 6-8 months.
In view of your recent statement as to how well the new medical guidelines are working and considering Brian Keegan’s comments, I ask that an up-to-date set of statistics, similar to the attached, be made available monthly on the Board’s website and a statement made as to the specific steps to be taken by the Board to reduce the backlog.
It is a disservice to injured workers that their request for continued medical treatment be put on hold because the review bureau and the commissioners have other priorities.
Sincerely yours
Michael T. Berns
The Insider
Former Commissioner 1996-2008
New York State Workers Compensation Board [19142-4050]
MEDICARE SET ASIDE
An Issue Carriers & Injured Workers Can Agree On
Commentary courtesy of David J. Depaolo, President of WorkCompCentral which is a subscription based online publication of workers’ compensation news, education and data services and can be reached at david@workcompcentral.com
July 1, 2011: Typically employer/carriers and injured workers are on opposite sides of any given issue in workers’ compensation, but a recent move by the federal government should align the two interests.
In January the Obama Administration instructed federal agencies to identify regulations that place an unreasonable burden on businesses. The U.S. Department of Health and Human Services responded to that order on June 6 by publishing a list of dozens of regulations that it intended to review for possible streamlining or elimination.
Medicare Secondary Payer Act rules were not on the target list.
The American Insurance Association (AIA) sent a letter to the department on Tuesday, urging it to review the burdensome reporting rules imposed by Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA).
All states are affected by the MMSEA, and it is no secret that these provisions slow down, sometimes dramatically, the claims resolution process leaving injured workers hanging without compensation many times and employer/carriers incurring needless additional expense.
The regulations that the Centers for Medicare and Medicaid Services (CMS) operates under often lack clarity, are changed frequently without sufficient notice, and overall fail to reflect the operating standards in the insurance and workers’ compensation industries (e.g. what CMS considers a “mass tort claim” is substantially different than what the insurance industry does).
While the AIA deals with the regulators, a coalition of insurers and employers has also been lobbying Congress to reform Medicare reporting requirements. The Medicare Advocacy Recovery Coalition supports adoption of House Resolution 1063, known as The Strengthening Medicare and Repaying Taxpayers (SMART) Act, which would require CMS to give insurers and claimants firm guidance about how much money should be set aside in future medical settlements to protect Medicare’s interest.
The likelihood of getting Congress’ attention on this issue during this legislative session is not high, nevertheless the efforts of the insurance industry should be supported by groups advocating for the rights of injured workers.
I urge both insurance and injured worker lobbying groups to join the efforts to persuade the DHHS to include the MMSEA in the list of regulations that should be reviewed for efficiency modification.[18140-4049]
Another Former Commissioner Agrees on Commissioner Salaries
August 18, 2011: After my first year at the Board, I felt as if I was the last of the Four Horsemen of the Apocalypse )who were appointed, along with Chairman Robert Snashall, to bring back energy to the Board and help newly elected Governor George Padaki achieve his goals for the agency. Vice chairman Jeff Sweet, Commissioner Karl Henry, and Commissioner Carol McManus were appointed prior to my arrival at the Board.
Unfortunately with only a few exception, most of the new appointees were examples of the complaints raised by Rick Karlin in the Albany Times Union, which, in turn, prompted my COMMENTARY last week after Governor Cuomo proposed cutting commissioner salaries
Weighing in in today’s COMMENTARY is Carol McManus, one of the Four Horsemen, whose letter speaks for itself.
As you must know, I agree with your commentary completely. However, I would add just a few notes, having participated in the Workers’ Compensation Commissioner’s role for a full 8 years, myself.
Oh, for the good old days, when Commissioners actually talked to one another (and even the draft writers) about any conflict(s) they perceived in agreeing with a draft decision. Even though some were less interested in dialogue than others (don’t confuse me with the facts, my mind is already made up!) most tough decisions were arrived at only after collegial discussion.
With the dawn of e-case, we know that Commissioners access their caseloads with a click of a computer button. They sit alone in front of their screens, clicking their agreement on individual cases and only rarely pick up the phone or write a comment to anther panel member to request further discussion on a matter.
While “signing” the case is the end goal, (thereby agreeing with the writer of the draft decision in all respects as to the content and conclusions drawn) actually reading and understanding the issue on appeal, reading and understanding the rationale(s) utilized by the drafter to reach his/her conclusions, and possessing enough information on the facts and the law pertaining to the matter to make a judgment and cogent decision to agree or disagree with the draft findings is the real goal of the Commissioners’ work.
No one, even a speed-reader, in my opinion, can access a case, read the draft decision, digest its contents and formulate a decision to agree or disagree in the span of 1 minute. If the Chair or his/her designee would only review the statistics (which are available to them) of how much time each Commissioner spends on 1 case, let alone an entire caseload or day’s work, it would become obvious that those who click through the entire computer queue of cases in 15 minutes should be called into account to answer for their amazing ability to complete the above-mentioned cognitive exercises in the blink of an eye. That is clearly a managerial responsibility which has not been exercised, to my knowledge, in the span of my history with the Board up until today.
When Commissioners are allowed to work or not work accountably by their own decision, mind-numbing mismanagement is the only conclusion I can reach. For those who do perform admirably, there is no incentive other than their own pride and work ethic to guide them. Real reform won’t come by just slashing salaries. True management oversight of agency Commissioners is the only path to better, more accurate, justifiable decisions.
Thanks for letting me “ring in” on this issue. You know it’s been a thorn in my saddle for a long time!
Regards,
Carol McManus
President
Carol G. McManus Consulting, LLC
17 Pine Cone Dr.
Pittsford, NY 14534
Ph: (585) 465-2365
www.CarolGMcManus.com
Another Former Commissioner Agrees on Commissioner Salaries
Patronage, Commissioners, & Salaries
Judge Russak’s 7/25 Party
Six month review of 3rd AD Cases
PART III: Reducing Controverted Cases
Who’s minding the Candy Store?
Part II: ‘O pesce fete d’ ‘a capa
Part I: The WCB - An Amateur Archaeologist’s Dream
Temporary Total Industrial Disability
Are 5,000+ §32’s Null & Void?
Court’s Reversal Again Shows WCB Weaknesses
100th Anniversary of the Triangle Shirtwaist Fire
Awards for Minors: Who gets paid?
WCB seeks a new Claims Management System
Legal Fee Committee: Why? & Why Not!
Medical Guidelines: So much done - So far to go
Voluntary Withdrawal: A Review Of Recent Case Law
An Attorney Writes “Don’t Move the Buffalo Office”
An Attorney’s Review of Managed Adjudication Path (MAP)
Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable
The Insider’s Recommendations to Improve Board Procedures
Eliminating Oral Arguments: A MAP or a PIG?
A Reader’s Opinion of the Appellate Court, Third Department
The Quality of WC Board Decisions Reviewed in 2009 by the Courts
Answers to Your E-Mails
Legals Fees On Medical Expenses?
Project 2015: The end of the WCB Board
The New Medical Guidelines(?!)
The Appellate Court’s Split Decision
Comp Board Blocks “The Insider” as Spam!
Part III: More Comments on “bench briefs”
Part II: Reader Comments on “bench briefs”
Reader Comments on “bench briefs”
Should the Board present “bench briefs” [pro and con opinions] to panels??
Who’s Left to Sign Decisions?
The Legacy of Zach Weiss
Judicial Economy vs Judicial Integrity
A Guest Commentary on Board Doctors
Mirror Mirror on the Wall! Who’s the Fairest Doctor of them all?
Who wins the most appeals: Claimants or Carriers
LEGAL FEES: What’s fair, history, Can Bd set fees, etc?
Legal Reasoning vs Intuition
How do get paid on medical bills with the HP-1J
Who actually decides the decisions?
Rebuttals: a waste of time?
To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, injured workers, court decisions, or any other subject you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com
Carriers’ ATF Silent Friend
April 26, 2012: In an unusual turn of events for the Board, a carrier appeal is supersonically moved through the system and the decision on the carrier’s appeal is issued by the Board within five weeks. And although Chartis Claims was instructed in a Board panel decision of March 3, 2009, to make the mandatory deposit into the Aggregate Trust Fund, it has yet to deposit any percentage of the amount even though the three (3) year anniversary has come and gone.
Christopher Richmond, Esq., attorney for the claimant, confirms that Chartis Claims, the carrier in WCB #60405635 for Plainville Turkey Farm Inc., has challenged every calculation of the Aggregate Trust Fund as to the amount of money it must deposit into the ATF under the well-established doctrines set by Court of Appeals in the Matter of Raynor V Landmark Chrysler on November 15, 2011 (18 NY3d 48 (2011), 2011 NYWCLR (LRP) LEXIS 255; 111 NYWCLR (LRP) 228).
Unfortunately this case seems to characterize so much of what the Board has been doing, or not doing, in the past few years.
(1) There is a triage system, or used to be, and issues such as surgery disputes, death claims were at the top of the list followed by decisions which stopped claimant awards. At the bottom of the list were disputes between carriers. In this case, the bottom has magically risen to the top.
(2) Case law versus law of the case. While there are occasions when a particular case seems to be contrary to established case law, it is not challenged as not being worth the cost and time and effort. But here we have an issue that has been a major issue of the Board for years, ever since the 2007 Amendments were passed. For years, Commissioner Paprocki, who rather lucidly first raised the argument at a pre-board meeting that mandatory deposits were contrary to law, proceeded for the next few years to be the dissent on over 60 ATF cases. In fact, in the earlier Board panel decision in this case, she also dissented - March 3, 2009.
And here again, she is on the panel, perhaps the lead, for again not demanding even so much as a 10% payment of the undisputed amount into the ATF.
(3) For as long as I can remember, the Board refused to hear appeals when the appellant offered no alterative to the decision being appealed. The Board has always required a definitive objection in order to consider an appeal, lest it get an appeal of every Law Judge decision on the legal grounds “I don’t like the decision - do it again until do.” For example, in the Matter of Capalbo v Stone & Webster (2012 NYWCLR (LRP) LEXIS 18; 111 NYWCLR (LRP) 285 of January 26, 2012) the NYS Appellate Division, Third Department, in affirming the Board’s denial of a full Board review wrote, “the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable.”
Yet in this the most recent Board panel decision, the Board writes
The Board form C-40 filed on February 14, 2012 provides ample explanation of the calculation of the ATF deposit. Although the carrier has questioned the calculation, it has failed to make an offer of proof providing an alternate calculation and should be afforded an opportunity to do so.
Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence that development of the record is warranted to allow the carrier to produce an alternate calculation of the ATF deposit.
Summary
Charits (F/K/A AIG) has had three (3) years not to make their own calculations on the record and three(3) years not to make payment to the ATF. This Panel feels this Carrier is entitled to additional time to produce an “alternate”.
Whether it be a hidden agenda of the Board to favor a few carriers or the Board has become so mismanaged that one or two commissioners can thwart legal precedent, a triage system designed for the benefits of injured workers and not carriers, or just administer law in their own “mini-state’ is a question that others will have to answer. The Notice of Appeal to the Appellate Division has already been filed.
But to paraphrase Marcellus in Hamlet in act I, scene IV, “Something’s rotten in the state of the WCB.”
Perhaps this commentary will let in a little light and fresh air and help remove some of the ‘stink’ that appears to have permeated so much of the decision making by the upper level of the Board’s management.[24176-4065]
Cappellino v Baumann Part II
& The Invisible Target
March 1, 2012: I received a number of comments on the the Matter of Cappellino v Baumann & Sons Bus in terms of what is the Board’s current interpretation of the rules regarding the timing of the presentation of evidence. I must admit that the first sentence in the second paragraph below includes me and probably all the commissioners. the comment is:
There has obviously been a lot of confusion and controversy about which issues are barred against the carrier when they violate WCL Sec. 25(2)b (when they file the C7 more than 25 days after the EC-84 Notice of Indexing). Whether causal relationship is barred or not is the main bone of contention. Apparently, in the Cappellino decision, the Ct. of Appeals is saying that it IS barred. They ruled that the employer/carrier cannot introduce any medical evidence and the case must be decided on the claimant’s medical evidence alone.
I’m not sure I understand your comments about how long the carrier has to introduce medical evidence in a C7 case. It seems that what the Ct. of Appeals has now decided is that if Sec. 25(2)b is violated, then that’s it - the carrier cannot introduce any medical evidence at all on causal relationship. If they file their C7 within the 25 days, then they can submit their IME on causal relationship or anything else whenever they want to. No one is saying that the carrier must submit medical evidence within 25 days of the opening of the case. They just have to file the C7 within 25 days and they’ve “ante’d up” and can fight the case. Likewise, in a non-C7 case, the carrier can get an IME pretty much whenever they want to. So there’s no “rush to insist that all evidence be available immediately.” I think that the intent of the legislature in passing Sec. 25(2)b was, like Zach Weiss seemed to want, that the carrier should investigate all new claims promptly and either accept or controvert them w/in 25 days.
While some may argue to the contrary, it is my sense that the Board (the Commissioners and Administrative Review Department) are making up their interpretation of the rules as they go along and/or are seeking to find justification for picking winners first and then looking at the evidence. As I noted in my summary of today’s Appellate Court opinion in Wheeler v Bloomingdales, the Board seems to have taken the position again of doing what it wants when it favors one of the parties, by wrapping itself in the robe of ‘interests of justice’ or using its Appellate Court supported ‘discretion’ to make decisions. Several of us fought for years to enforce the 30-day time limit for filing appeals and to allow rare exceptions, not in the amorphous, capricious, and arbitrary ‘interests of justice’, but with a verbal justification that sets that exception apart for all the other denials. But reverting back to a lose ‘interpretation’ of the rules and laws, the Board is further supporting complaints from claimants and employers that the Workers Compensation Board is unfair.
The Board seems to have misunderstood the intent of Chairman Weiss’ changes by assuming that his attempt to speed up the process of finalizing the decision did not mean driving hell-bent as fast as possible running over everyone and justice in an attempt to close a case. I expect that in the future, the Board’s interpretation of evidence will continue to be one in which they throw their dart (the winner’s name) against the wall and then paint the target (evidence) around it or just tell everyone that the dart would be in the bullseye if there was one, i.e. the ‘invisible’ ‘interests of justice.’[22167-4064]
Cappellino v Baumann & Sons Bus
Does this follow the law?
February 23, 2012: “The Court of Appeals quoted the statute but the statute on late C-7 only bars the issues of employer-employee relationship, accident and accident arising out of/course of employment. I’ve never understood the bar to extend to the medical issue of causal relationship. . . . I’m sure there will be some discussion on this case which I think the Board and 3rd Dept got right.”
First I must point out that this is one of those decisions in which I could take either side depending on which side I was representing. But as a commissioner who had this case, I would have to consider some other factors originally brought to my attention by former Chairman Zack Weiss.
When Zach Weiss first came to the Board, before he became its chairman, I joined him when he went to a number of law judge hearings. He felt that the decisions were taking far too long, much longer than he experienced as a litigator in civil court and determined that something had to be done to speed up resolution of controverted cases. The results were changes in the law and the rules and regulations that govern the opening phases of the claim. One of these changes he proposed was to require that the carrier, if they were going to controvert a case, present all their arguments at the beginning of the claim, that the failure to do so would prohibit the carrier from raising that issue sometime later during subsequent hearings. As to whether or not the intent of the changes he sought meant that medical evidence in defense of the carrier’s position had to be presented in a timely basis was never clearly stated.
Therefore one can argue that the failure to present such medical evidence at the beginning of the case meant that evidence could not be used and one can equally argue that since there was no specific deadline listed for the presentation of such determination, there was no time limit.
Apparently the Board and the Appellate Court felt that there was no deadline after the opening of the case for the carrier to present contrary medical evidence whereas the Court of Appeals felt there was. By the way, I would have signed the original Board panel decision.
Not being a lawyer and never having been sued in court, I had no experience whatsoever with civil cases and how they proceeded to in civil court. Since my departure from the Board, I have been personally involved in a civil case in which 1½ years after the incident in question there have been seven adjournments and, to the best of my knowledge, there have been no depositions of the major parties to this action. I’ve also been following the class-action case in The Matter of Munter v CRM Holdings, LTD at the United States District Court Southern District of New York and this case, more than two years old, is not yet set for a hearing.
So maybe the rush to insist that all evidence be available immediately is not the best way to handle workers compensation claims. In addition, how fair is it worthy Board to insist that the carrier have all of its evidence ready in 30 or 60 days while the Board, more specifically the commissioners, are now taking almost a year to issue decisions on appeal of a Law Judge’s decision?[22166-4063]
Challenging the WCB’s GSIT Assessments
Part II
February 16, 2012: In response to my commentary last week regarding the calculation of future assessments on members of the failed Group Self-Insured Trusts (GSITs), a number of firms who what it medical bills and workers compensation claims reported to me that many of the claims they are receiving apparently had never been challenged in any way whatsoever by the now bankrupt trust administrators and even some of their replacements.
In one case, I was told that one claimant had a broken finger and for more than one year has been receiving full benefits as a temporary total disability. My contacts based remarked that it was astonishing to see how many claims there were of this nature in which the former trust administrators accepted every claim for any sites of injury Pat any average weekly wage for any degree disability without questioning any aspect of the client.
As a result, if one were to extrapolate future expenses for this claim, the amount needed probably would be the maximum for someone who had not yet been declared as having a permit total disability, well into the six figures. Yet, this injured worker should have gone back to work within weeks if not days of the date of injury.
If, as I have suggested, a thorough audit were made of all aspects of the claims accepted by these bankrupt trust administrators, including some which the Board would consider as “closed” as there are no outstanding issues, it is possible that thousands of claims with six figure reserves would be found to have no future liability or reserves of $10,000 or $20,000.
In fact it has been alleged that one of the contract trust administrators recently hired by the Board to take over the management of some of these failed trusts is basically doing the same thing: they are processing the paperwork, approving the documentation, but not actually examining and reviewing the validity of the claims and/or the need for I’m going medical treatment for which expenses are being submitted.
It may well be that a proper analysis may reduce the future liabilities of the trusts to the extent that the Board may be more successful in effecting the transfer of liabilities to a commercial insurer by way of an assumption of liability policy.
Unfortunately, if in fact there are excessive amounts of compensation and medical expenses being paid out because of the failure to properly audit and examine these claims, there is no way to seek recoupment of these funds from either the claimants or the medical providers. So the longer some of these state contracted group administrators are allowed to simply process claims and not examine or audit them, the greater will be the retroactive payment claims against the group members and the higher the extrapolated reserves.
1And, as I have noted on more than one occasion and stressed last week with my citation of two Appellate Court decisions, while the trust members appear to be legally responsible for retroactive payments, the Board does have an ongoing responsibility, particularly now, to make certain that these current trust members are not being taken advantage of in what could be considered a kind of Ponzi scheme.[22165-4062]
Challenging the WCB’s GSIT Assessments
February 9, 2012: A big THANK YOU to those who responded to my request for names of law firms who have experience in dealing with the attempts by the New York State Workers Compensation Board to bring legal action against members of the 24 underfunded group self-insured trusts.
One attorney responded “I, too, have been contacted by companies similarly situated and have not been able to give them any positive advise as to how to proceed as the Board’s attitude is simply pay me or have a judgment entered against you which probably could not be discharged in bankruptcy.”
Unfortunately there is a great deal of validity in this statement and it is for this reason I’ve decided not to publish a list of attorneys. I have spoken to and received many emails on this subject but the bottom line is quite simple.
When each employer joined a self-insured trust, they signed a contract which among other aspects gave them joint and several liability. As “joint and several liability” is defined, relevant to this case, the Board may pursue an obligation against any one member of the trust as if they were jointly liable and it becomes the responsibility of all the members of the trust to sort out their respective proportions of liability and payment. This means that if the Board pursues one member of the trust and receives payment, that member must then pursue the other obligors/members for a contribution to their share of the liability.
This concept was quite clearly affirmed by the New York State Appellate Division, Third Departments, in two decisions:
January 27, 2011 NYS WCB v 26-28 Maple Ave.: Defendants, members of the Manufacturing Self-Insurance Trust (hereinafter MSIT) were informed by the Board that the group self-insured trust was operating with a significant deficit, did not meet financial standards, and could not be restored to financial stability. After the Board then resumed control of the trust, it commenced this action to recover a multimillion dollar fund reserve deficit from numerous former MSIT members . . . The potential for joint and several liability inherent in membership in a workers’ compensation group self-insured trust is mandated by statute (see WCL §50[3-a]; Matter of Aides At Home, Inc. v State of N.Y. Workers’ Compensation Bd., 76 AD3d 727 , 728 [2010]) Thus, [the plaintiff] could reasonably have obtained this information from another source. Moreover, upon joining MSIT, [the plaintiff’s] officers executed participation agreements acknowledging, among other things, that [the plaintiff] would be jointly and severally liable for all participants’ workers’ compensation obligations during its membership and that it might be required to pay additional amounts to meet these obligations.
August 5, 2010 Aides At Home v State of New York Workers’ Compensation Bd.: Although petitioner was not a member of the Trust when the assessment was levied, petitioner nevertheless remained jointly and severally liable for the liabilities of the Trust that were incurred during petitioner’s membership until such time that those liabilities were satisfied (see WCL §50 [3-a] [former (2), (3)]) [Court Note: WCL §50(3-a)(3) was amended in 2008 to clarify that a member of a group self-insured trust remains jointly and severally liable for unpaid claims that accrued during the period of membership even after the member leaves the trust (see L 2008, ch 139, § 1)].A key fact supporting the Board’s appropriate interpretation of the statute was that the petitioner, upon joining the Trust, accepted this statutory mandate which was explicitly articulated in the trust and indemnity agreements along with a provision that petitioner was liable for its share of a deficiency assessment “for any Trust year or part thereof that [it] participated in the Trust,” . . .
As a result, the Board is not just unwilling but unable to settle with any one member of the trust because that firm would only give a check to the Board if it received a release from the Board, which the Board is not going to do lest other members of that trust are unable to meet the totality of their retroactive assessments. The only way that an individual member of the trust would be able to settle a claim against them is if a settlement is reached with all the members of that trust.
In fact, there have been instances in which some employers have submitted six and seven figure checks to the Board to cover their retroactive payments and to get a release from further litigation, checks which were rejected due to the joint and several liability.
Therefore, based on conversations I’ve had with many parties to this issue, it would be of minimal practical value of an individual member of the trust to hire an attorney to argue that they are not liable for retroactive payments. Therefore, I’m not listing any attorneys.
As to the amount due, that is another matter.
There are other issues which may well be subject to litigation one of which I was informed by a contact in California, a state which is also a major participant in settlement talks with some of the trust managers, in particular CRM. It seems that there is litigation in New York being taken to the federal court in order to have the assessments or other aspects of the Board’s position rejected. The fact that all of these trusts were established and managed under various laws of the State of New York raises the question of what the federal issue is being used to pursue this matter. But that is an issue to be argued by the parties to this particular litigation.
In my opinion, there are two issues that would be opened to litigation. The first deals with the level of responsibility the Board had in reviewing these funds which could result in a decrease in the value of the retroactive claims. The second deals with the validity of the claims accepted by the various trust managers: was their acceptance rate of claims, sites of injury, and average weekly wage higher than those of regular self-insureds, private carriers, and the State Insurance Fund? If it was, then the projected exposures would be in excess of what would be considered the norm and thus have resulted in a higher demand for retroactive payment.
As I delve further into this subject with what I would like to think is an unprejudiced perspective, I sense that many of those from involved in this battle have drawn their lines in the sand, while those seeking to find a solution are met with disdain by both sides. And although it may well be appropriate to point the finger of blame at the Board, as I have done here and in many of my prior postings on this subject, the fact remains that the members of trust, when they joined, did agree to accept retroactive assessments. The issue that must be resolved is what is the proper amount. Fortunately, there are a number of individuals seeking as fair a resolution of this incredible mess as they can within the legal obligations contracted to by all parties.
As get more information, I will keep everyone up-to-date.[22164-4061]
2011 Review of Appellate Court Decisions
Part I
February 3, 2012: In its review of a Board’s administrative review decision, the Court wrote, “Regrettably, [the Board] has almost wholly failed to submit such evidence, and has often failed even to respond to [plaintiff’s] arguments. Whether this failure reflects a tactical error, laziness, an implicit concession that the Code cannot withstand constitutional scrutiny, an erroneous assumption that [the Board] is entitled to special treatment, or a mere oversight, the Court cannot say.”
Looking back on the Workers Compensation Board’s record for last year, this quote seems quite accurate. However, when it was published on December 19, 2011, U.S. District Judge Sam Sparks of Austin, Texas was referencing the Texas Alcoholic Beverage Code interpretation of its own codes.
As I noted last month, the Board’s decisions were rejected by the New York State Appellate Court, Third Department, more than 30% of the time in the 138 issues covered in 114 decisions, a failing grade in any college or law school.
Over the last few years, the Board’s record at the Appellate Court has been getting increasingly worse while the number of cases being heard on appeal by the commissioners is being reduced. When one considers that the number of commissioners has not changed and that it is now taking twice as long for them to complete a review of an appeal, one could only expect that the commissioners would be paying more attention to the details of each decision. Evidence proves otherwise as the following numbers show that the affirmance rate has been consistently dropping.
Based on the issue codes I assign to the cases (and some cases have more than one issue being reviewed), there were 49 issues reviewed last year; the Board’s decision was successfully challenged on 27 of these issues. The attached chart lists the issue codes and the results of the decisions for each issue code.
Some facts:
67 of the 114 cases involved claimant versus carrier, with carriers winning 35 and claimant 32.
The Board prevailed in 25 of 39 cases, claimants in 36 of 76, and carriers in 44 of 97.
In the four categories of issues, the Board was affirmed more often in those two categories in which the Court tends to give the Board discretion. The high rejection rate in the other two categories, “Who Pays” and “Legal Procedures Followed”, which require both a knowledge of the law and an understanding of the concept ‘precedent’, really demonstrate the Board’s failure to properly adjudicate.
Just as last year, this year’s initial analysis shows that the Board is inconsistent on a very wide variety of issues but it appears to have the most problems with the issues pertaining to the Special Funds (§15(8) and §25-a) and the interpretation of §23.
Equally important is the number of times that the Court addressed the Board’s failure to be consistent from case to case on the same issue and/or its failure to explain its reasoning in its decision-making process.
Having been at the Board during years when the affirmance rate was consistently well above 90%, it is my impression that the fault lies with three parties. The first party is those commissioners,the insouciants, who do not read the decisions and are therefore unaware of the fact that a decision they are signing Monday morning at 10:00am written by staff writer #1 contradicts a second decision they are signing at 10:01am on the identical issue written by staff writer #2. When these insouciants are on the same panel, there is apparently no one making sure that the decisions are legal, consistent, and coherent. The second party is the head of the Administrative Review Bureau, who more often than not has moved on elsewhere before these decisions, drafted under their oversight, have been formally reviewed by the Court. (The current head of the department who has only recently taken over certainly has his hands full.)
And the third party responsible for this real travesty is the Chairman who is responsible for making sure that the Board meets its responsibilities. As a former highly respected law judge, one would have assumed, apparently incorrectly, that the Chairman’s attention to judicial accuracy would be a top priority.
Unfortunately the statistics issued by the Board regarding the ‘affirm, reverse, modify’ results of the Board panel reviews of administrative law decisions gives totally inaccurate and unreliable information. For example, if a law judge’s decision regarding determination of five facts (date of injury, sites of injury, average weekly wage, employer’s name, and that the accident occurred of and in the course of employment) is appealed on the last and only major legal issue and the Board panel reverses it, the Board statistics show that the decision was ‘modified. ‘ Thus, this decision is categorized the same as the correction of a typo in a law judge’s decision. My personal records of approximately 15,000 cases shows a 10% to 20% discrepancy in the number of ‘affirm, reverse, modify’ decisions. it is likely that even the Board panels’ reviews the administrative law judges decisions, which are not appealed, also reflect a high “poorly done” rate.
Add to this the abuse of §114-a (3 ) penalties on many appeals, attorneys are placed in a difficult position of either having to face an angry client by not proceeding with an appeal or being hit by a penalty by the Board which apparently has neither the time or patience to consider that it is its own inconsistencies and incoherence that results in the dissatisfaction with both administrative decisions and Board panel decisions.
While it seems easy to attack the Board, the real emphasis has to be on both claimants and employers who really have no assurance that the Board has issued a fair decision in their case, let alone even reviewed it. This inconsistency and occasional incoherence leads not just to anxiety on the part of injured workers, but also gives them a justifiable distrust of the fairness of the system and the sense that nobody cares. It also places many attorneys in the unfortunate position of having to explain, usually without success, to their clients why the clients are correct even though the Board has ruled against them. This inconsistency by the Board forces many attorneys to appeal decisions because the Board’s record demonstrates that far too often it is luck of the draw (the writer and the panel) and not legality what justice which determines who gets a favorable decision.
Next week, I will review in detail some of the more contentious issues of the 2011 and analyze the Board’s direction for 2012.[22163-4060]
Reader Comments on my Zamora Analysis
Voluntary Withdrawal
December 8, 2011: My commentary on voluntary withdrawal from the labor market relative to the Zamora v New York Neurologic resulted in far more comments that any other posting I have done. But I was surprised that those who represented the claimant side were not as lengthy in their comments as those who favored the concept of VWLM. For those of you who would like to make a few points from the claimants’ perspective (as you do when we meet), I offer you space here.
While I am not much for ‘talking heads’ on the TV public opinion shows, I feel strongly that we really need some discussions around the state to, dispassionately as possible, consider how to solve the problems noted below. And as the economy, not only in New York but all over the U.S., continues on its current trend, it becomes increasingly difficult to draw clear lines what the injured worker must do to be considered having been involuntarily removed from the labor market and what are the responsibilities of the employer and the government to find employment opportunities.
The following are some of those comments, edited for brevity and anonymity.
Wonderful, Thanks!
A neighboring state faces the same problems of finding a fair ‘line in the sand’.
In Pennsylvania, this issue was before the Supreme Court in October in the case of Robinson v. City of Pittsburgh. Essentially, the rule had been that the burden shifted to the claimant after accepting retirement benefits to show either (1) total disability from any level of work; or (2) a good faith job search after retirement. However, in Robinson the Commonwealth Court imposed a nebulous “totality of the circumstances” test putting the onus on the employer to establish that it was the intent of the claimant to remove themselves from the workforce.
And again from New York:
All your “What if…” scenario’s are based on only one presumption about the injured worker - that they have a desire and motivation to return to work. You are missing a very large segment of the injured worker population…The one’s with no desire or motivation to work any longer.
The VR defense has been pursued heavily by carriers because they are seeing (through surveillance, activity checks, database and social media searches, etc.) a relatively alarming number of worker’s who for whatever reason simply don’t want to work any more. These reasons run the spectrum from a late 50’s year old who has been chronically under-employed or employed in low paying, physically demanding, unskilled and unfulfilling work to a 20-something college graduate who can’t find work or who is starting a family and has a need for one parent to stay at home - It’s less costly to stay at home on tax-free partial WC benefits (Plus extended unemployment that when added to the WC pays more than former wages) than it is to work and pay for child care.
The reasons are economic and if the economy in the state doesn’t improve to offer decent well paying jobs, this will only get worse as disaffected workers realize they can “go on” comp rather than continue a long-term struggle with demeaning, under-paying, and unfulfilling work.
But the issue is best summarized by one reader as follows:
Judge’s decision vary greatly from district to district and judge to judge. As you can imagine, we live and die by the rulings that come down from the courts. The contradictions make our job very difficult and the appellate process takes so long that I don’t think either party is served waiting for the final decision.
I would like add a couple of points of observations that I have made from working the system from my point of view:
Retraining: what is the responsibility of a person without a high school diploma or limited English to get the education they need to improve their chances to get a job. Same with computer skills – many high schools and libraries offer free courses. I have a 1995 case of a guy who says he can’t read or write – so in 15 years he couldn’t work on this?
Is it the employer’s responsibility to continue benefits for the overweight or morbidly obese person who can’t get a surgery or has other health problems that add to their physical restrictions? (I would say 90% of my cases are overweight people.)
Transportation: they were able to get to work before, but now they can’t afford to pay for a car or get it fixed. Is that responsibility of the employer?
Relocation: an injured worker worked in the Bronx and now moves to Nowheresville where there is little to no commerce. Wages are affected as well even if they can find a job.
And then there was the case about which the I wrote last week, the worker who due to a work injury became severely mentally disabled (and classified without controversy as totally permanently disabled), who after his minimum wage job in a non-for-profit mail room was terminated, was reclassified as partially disabled. And then he was expected to seek employment in order to keep his compensation!
Yes, there are extremes for every issue. But, like the Bell curve, within the standard deviation are 68% of the cases. We should be able to develop some sort of method/indicia/rules to resolve the 16% on each end and work to slowly close the gap on the other 68% rather than fighting to the death on every case.
I look forward to your additional comments. [1N155-4059]
The Court of Appeals’ Zamora Decision
December 1, 2011: In the next few weeks, the New York State Court of Appeals will issue a decision in one of the most hotly argued issues that has come before the Court in years:
voluntary withdrawal from the labor market
Although Appellate Court decisions on this issue, such as Okonsk, v Pollio Dairy Products Corporation et Al., 184 A.D.2d 871; 585 N.Y.S.2d 121; 1992 N.Y. App. Div. LEXIS 8001, predate my arrival at the Worker’s Compensation Board, as someone who has been given credit/blame for the proliferation of cases on this issue, I feel it is appropriate at this time for me to discuss this issue prior to what may be a precedent setting decision about to be issued by the Court of Appeals in the Matter of Zamora v New York Neurologic.
Philosophy
The purpose of workers compensation insurance is not to provide medical insurance or to supplement lost income to injured workers. It is to provide medical treatment and supplement lost income to workers whose need for medical treatment and supplementary income is a direct result of a work-related injury. This last point has been affirmed innumerable times by cases in which certain legitimate injuries of injured workers, wages lost due to them, and relevant medical expenses are denied coverage under workers compensation because those additional sites of injury are not accepted as either causally related or consequential.
This concept, lost on a number of my former colleagues as well as some practitioners on both sides of issue, raises two central questions:
Is there some point at which the loss of income and/or medical treatment is no longer the responsibility of the workers compensation insurance carrier?
And, if there is such a point, how is it determined and who determines it?
“[I]t is well established that a partially disabled claimant has an obligation to look for employment within her physical limitations, and that benefits may be discontinued if the claimant is unable to establish that the limitations on her employment due to the disability were a cause of her subsequent loss of wage-earning capacity or inability to obtain employment . .”
The above statement of purpose, often quoted in decisions from the Board and the Appellate Court, confirm that there is a responsibility by the claimant to return to the workplace. And there are other cases, i.e., Matter of Wilkins V. New York Power Auth., 3rd A.D. 2011-03-31, in which claimants can be denied compensation if they refuse medical treatment.
Policy
But the underlying problem is that the attorneys and very often members of the Board see this as a black-and-white issue. Yet there are several shades of gray. For during the history of the case and due to the changing economic climate which we have been experiencing the last few years, the responsibility of the injured worker and the employer for enabling a return to work is a pendulum that is swinging both ways, and erratically so. Thus, one must pose the following questions:
What happens if the job, employer, or industry in which the injured worker was employed at the time of the injury no longer exists when the injured worker is prepared, with or without a temporary or permanent disability, to return to the workplace?
What is the responsibility of the claimant to train for other types of employment that would be within their new restricted abilities? The Matter of Zamora involves the claimant who appears to no longer be able to do the job for which she was trained.
What is the responsibility of the claimant if they can only find a part-time job? The Matter of Leslie v Eastman Kodak (3rd A.D. 2011-11-17) deals with an injured worker who sought employment in a wide variety of positions in a wide variety of industries but could not find full-time work.
Is it the claimant’s fault and therefore sufficient reason for denial of benefits if his employer, the only one in economically deprived upstate New York, closes or reduces its staff by 80% and there is no other employment in the area? Should this claimant be treated the same as others who would now be going on unemployment or does the work injury and temporary removal from the labor market warrant special consideration?
Does the large employer who more often than not has many people doing the same work have a greater responsibility to seek a position for the injured worker then does a small company with only four or five employees?
What happens when an employer comes to town and seeks to hire 200 people but the worker cannot apply because he is not ready to return to work yet but, when he is ready, all those positions have been filled?
Does the employee’s union have a greater responsibility to an injured worker than other members when both are seeking reentry into the labor market?
I remember discussions on the issue of notice under §28 in which one of the Carey/Cuomo appointed commissioners would tell me that it is the purpose of the Worker’s Compensation Board to find a way around the time limits under §28 to make sure the claimants would be covered because we have a responsibility to help injured workers. Then again, I heard the very same philosophy in later years from some of the Pataki-appointed commissioners, that the workers compensation system was a safety net for injured workers in the State of New York.
But that is not correct. The mere fact that cases can be settled forever under a §32 waiver agreement implies that at some point during the course of the claim, the injured worker becomes removed from the safety net of the workers compensation system.
This next raises the additional question of what happens to those claimants who have a need for medical treatment for which there were insufficient medical set-asides in the agreement and/or were not covered by Medicare or Medicaid. And then there is the question of what happens to those claimants who are unable to find work and have used up the compensation portion of their settlement. Workers compensation is not available to them.
Although there have been 24 decisions on the issue of voluntary withdrawal from the labor market issued by the Appellate Court since the fall of 2009 and hundreds of decisions issued by the Commissioners at the Board, there really are no clear-cut guidelines as to what constitutes voluntary withdrawal from the labor market.
A great deal of the fault for this lies with the Commissioners too many of whom failed to read the cases, relying on the writers of whom there are somewhere between 50 and 70, to make that decision for them. As a result, there are dozens of contradictory decisions such that, if so inclined and having the time, one can find case law to support both sides of the issue in any case in which voluntary withdrawal from the labor market is being controverted; I am not talking about cases supporting the concept being argued, I am referring to prior cases in which the claimants have the same medical problems and same employment and yet the decisions are different. But I’m not going to further belabor the failure of the Commissioners and the Board to resolve that problem because history shows the current Board considers such issues unworthy of their attention.
Practice
If I were in charge of the Board, I would make it my business to visit all of the district offices and set aside time to meet with attorneys on both sides as well as having people from the Department of Labor, unions, and the business community discuss this issue and get a better sense of the many questions that must be answered. The purpose of these meetings would not be to solve the problem as I am afraid that lines would be drawn in the sand before the first words were spoken. It would be for the sole purpose of having an open-ended discussion without seeking a solution in the hope that in the course of these discussions some specific fact patterns or ideas may arise that would help get the injured worker back into the workplace thereby enhancing their own economic independence and minimizing the cost to not only to the employers in the State of New York but also to the taxpayers.
Prediction
As to the decision to be issued by the Court of Appeals in the matter of the Matter of Zamora v New York Neurologic, I would not all be surprised if it were either a very narrow decision or a general decision with at least one dissent and possibly one concurring opinion.
As a result, I do not see this issue being resolved. Yet the issue of helping the injured worker return to the work place and earn a living and maintain their self-respect is at the heart of the workers compensation system, a concept too often lost in the battles that take place in the hearing parts and appears to be outside the intellectual interest of the current Board.
Comments and criticisms are welcome from all parties as well as anyone interested in making a prediction as to how the Court will rule.[1D154-4058]
Raynor & ATF
More Questions than Answers?
With the matter of mandatory deposits into the ATF finally resolved by the Court of Appeals on November 15, 2011, perhaps this matter will come to a conclusion.
But it will not . . . .
On November 15, 2011, in the Matter of Raynor v Landmark Chrysler, the Court of Appeals ruled that the Board’s interpretation of the 2007 Amendments in §§27(2) and 15(3)(w) which mandates that private carriers make deposits into the Agrregate Trust Fund is correct. (The matters of Collins v Dukes Plumbing, Hardy v Trico, Parkhurst v United Rentals;, and Salgy v Halsted Communications were covered by the Raynor decision.)>
This will lead to two major issues: unpaid balances in the ATF and alleged unfair settlement options foisted off on the private carriers as compared to the State Insurance Fund and self-insureds.
UNPAID BALANCES
As I wrote in my Editor’s Note at the bottom of my summary of the case on the DECISIONS page, I see a potential legal issue arising when the ATF settles a claim with a §32 settlement for a sum less than what has been deposited. To whom does the balance of the money belong? The fund or the carrier? In its decision on Line #177, the Court of Appeals wrote:
The Takings Clause prohibits the government from taking private property for public use without providing just compensation. The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier’s assets for the use of the State (see Connolly v Pension Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State’s general fund]). Here, there is no such diversion, the mandatory deposit only reflects the present value of what is owed to an injured worker.
I read this to state that these funds are held in trust by the ATF for the beneficiary, the injured worker. When events transpire that end that relationship and the terms of the trust, i.e., the trustee’s responsibilities have been completed but the fund not depleted, it seems that the remaining balance of the fund is to be returned to the depositor and not the trustee.
For what other purpose would the ATF hold these funds? But with the State’s overreaching on ‘surplus’ insurance funds, such as those held by the State Insurance Fund, will the State simply move the unused funds into the general budget? This is a question I have been asking practitioners for months and not one of them, probably 40 in total, can answer that question other than to assume that the State will, one way or the other, keep the funds.
UNFAIR SETTLEMENT OPTIONS
Historically §32 settlements have been for payment of compensation equal to 4 to 7 years. But the mandatory deposits to the ATF are based on actuarial tables and can be for up to 20 years or more worth of payments. The mandatory payments, however, are limited to private carriers. Therefore the cost to a private carrier can be 4 to 5 times that of the cost to the State Insurance Fund or self-insured, thus putting the private carrier at a substantial financial disadvantage not just in terms of reserves but in the terms of the need to have higher rates to cover the additional financial exposure.
An interesting question which will undoubtedly occur within the next few months is a §32 settlement which has been apportioned, hypothetically, 50% either in one case or because it involved several cases, between a private carrier and the State Insurance Fund (SIF). What will happen when SIF offers five years ($30,000) and the carrier 10 years ($60,000)? Will it be written into the agreement that SIF is to pay $30,000 and the private carrier $60,000?
If I were a claimant, I would want to know why SIF is only paying $30,000 while the private carrier is paying $60,000. Since the carrier is responsible for 50% and is paying $60,000, why am I being cheated by SIF? This is a question whose answer I shall leave to those with more wisdom than have I.
And what impact this will have on the ability of cases of this nature to be resolved, I do not know although I can anticipate there will be some sort of impact. As to whether or not this could result in another case going to the court I cannot anticipate.
CONCLUSION
While I know that I am preaching to the converted (the workers compensation community) who will consider this problem, it is the deaf (the Board) who should be looking at how these issues will be resolved since it is the Board’s law judges and, ultimately, commissioners will be responsible for making decisions on these issues.[1N151-4057]
The NYSBA CLE Report
Board Staff Should Attend These
October 27, 2011: I had the opportunity last week to attend the New York Bar Association’s CLE on workers compensation. And although I have attended about eight CLE courses at the Board, given by Board attorneys for Board staff, this was my first ‘independent’ CLE. It was also interesting that about half the attendees were attorneys who did not practice workers compensation law but were there to use the requirement that they get credits to learn a new area of practice. My impression?
V E R Y I M P R E S S I V E
My first observation is that Board staff, including commissioners and law judges, should be required to attend the NYSBA’s CLE and not the Board’s internal CLE’s.
First of all I would like to thank Carl Copps from the NYSBA who helped organize this. And a thanks to the following speakers:
David Goldsmith: What is NYS Workers Compensation ** James McCarthy: Workers Compensation Issues ** Michael Chechanover: Ethical Consideration in a Workers’ Compensation Claim ** William Jones: Medical Treatment Guidelines ** Catherine Stanton: Section 32 Settlements ** Hal Friedman: 3rd Party Actions.
As to the presentation itself, it showed that all the practitioners, as noted on more than on occasion by the speakers, have difficulties dealing with the law and rules and regulations as currently interpreted by the Board. Equally frustrating to them was the fact that there does not appear to be any consistency in the way that the Board operates nor does there seem to be some direction in which the Board is heading, both of which need to be corrected so that the practitioners know how to best handle their claims.
Probably the area of workers compensation that attracted the most discussion dealt with not only the new medical guidelines but what appears to be an inability of the Board to develop a system that accurately reflects the degree of physical disability, degree of wage loss suffered by injured workers, and how to handle medical issues not properly addressed, if at all, in the medical guidelines. But there were other issues discussed at length, such as Medicare Off-sets. But these will be covered by me in future commentaries.
The reason that the Board attorneys and commissioners should attend is that they are currently hidden away in their ivy towers, made even more distant from the world by the Board’s trend to eliminating hearings. Added to the fact that the vast majority of commissioners only go to the Board offices for the one every other month oral argument or the once a month Full Board Meeting, they do not even have the opportunity of hearing differing points of view or interpretations on major issues in which they issue decisions every day. Fortunately the law judges do have the opportunity to speak to claimants but they are under time constraints and also, as one law judge put it in the minutes a few years ago, “I can do what is right but I know that I will be reversed so I have no choice in what I am about to do.”
Neither the papers presented to the commissioners for decisions nor the brief argument they hear at oral arguments touch upon the problems discussed by all the attorneys: from the blatant abuse of opiates to the difficulty getting the Board to understand that by setting a minimum of 10 visits to a chiropractor for a bad back, they have also set a maximum: the carrier informs the doctor to stop treating and the doctor, unless he is willing to take the financial risk of treating without authorization, then stops, even though many claimants still need treatment.
In discussing how to deal with certain Board rules and regulations, it was obvious that the participants have various interpretations of the Board’s rules. And any attempt to get a clarification from the Board resulted in the Board’s failure to respond.
The Board needs to meet regularly with practitioners for an exchange of ideas and thoughts in order to insure that the rules and regulations and the interpretation of the law are consistent and make sense. As I have argued for years and the Third Department of the New York State Appellate Court has opined quite frequently this year, the Board must be consistent in its interpretations and in its use of the underlying facts in the case.
I do remember being told, by someone further up the food chain than was I, that commissioners do not make policy. I responded that every time we interpret the law or move the gray line one way or the other, we are making policy. The law is not dry and deals with real people with real problems and it is important that we understand what happens out in the real world. That is why some of us felt that oral arguments and §32 hearings were so important: we got to see the face of the person whose fate in life we were determining. They would talk to us and let us know their concerns. After all, the difference between a 45% CLU and a PPD is not just a legal definition: it could be a life altering decisions. It was obvious from the lecture and Q&A that the attorneys for both sides understood this.
Attendance by board staff at these CLE would be a first step in the Board’s decisions makers understanding this as well.[11104056]
I Answer Your E-Mails
October 20, 2011
Oops - A Reader is Right
A reader writes:
I take umbridge at your characterization of the death tax as “more importantly” in comparison to the layoff issue. The layoff issue affects whether certain Board employees keep their jobs at all, while the “death tax” issue is only about valuation of benefits. Both issues are indeed important, but don’t devalue state workers.
My reply:
Point well taken and accepted. I certainly did not mean to disparage or minimize what could have been a serious problems for those effected by the budget games being played. Yes, there are a few ‘turkeys’ at the Board but the overwhelming number of the Board’s staff, as well as at most state agencies, do their jobs well. Unfortunately some of those who are positions of authority (but minimal responsibility) by virtue of their political connections often seem exempt from the games being played.
Getting Stats on MG-2 Variances
A reader writes:
How many MG 2 variances have been filed for low back pain as of September 1, 2011?
b) How many MG 2 variances for back pain were from medical physicians?
c) How many MG 2 variances for back pain were from orthopedists? How many were approved?
d) How many MG 2 variances for back pain were for active therapies? How many were approved?
e) How many MG 2 variances for back pain were from chiropractors? How many were approved?
f) How many MG 2 variances for back pain were for spinal manipulation? How many were approved?
The data will speak for itself.
My reply:
No!
The Board will not publish any statistics that do not show results which meet the projections they made when they originally proposed changes in the polices and procedures. And this assumes that they even both to not only run reports internally but look at these numbers.
But if they did want to issue these statistics, it would be quite easy to do so. The Board uses a multi-relational database. What this means is that they can take the data off of one form and match it up to data from another form so that the combined data will give results that looking only at one form at a time will not. I know from my own ability to convert the date the Board gave me during my 12 years there, into something meaningful I could use to track not only decisions but the result of changes in the administrative practices of the Board. But should you be able to actually speak to someone who will tell you that they have the authority to answer you, they will tell you that the data people are very busying updating the system, doing reports for someone important, designing new security software, working on the budget, ….
Another comment on Medical Variances
A reader writes:
I recently read you September 1, 2011 edition of The Insider. I also read the newswire article quote in the Daily New from a Mr Brian Keegan regarding the recent treatment guidelines and variance requests. I was astonished to hear Mr Keegan state that more than two thirds of the variances have been approved. These approvals must be taking place outside the Albany district, as virtually every variance hearing that I have attended has been denied, and I hear that same result from attorneys, and other licensed hearing reps who represent claimants in the Albany district. His claim is in direct contrast to the reality that I experience at variance hearing in the Albany district.
Other than the first e-mail, these are a random selection of e-mails I receive. Keep them coming as they suggest new commentaries. Thanks.[11104055]
WCB Layoffs: A Charade
October 13, 2011: This week the New York State Workers Compensation Board is announcing layoffs, rumored at this time, to be 27 people, due to the need by Cuomo to find savings in this year’s state budget.
But this is a charade!
The cost of running the Board does not come out of NYS’ operating budget, a budget which is paid for with tax dollars (or debt, which is ultimately paid for with tax dollars).
It is paid for out of assessments against insurance companies and is, therefore, an ‘off the budget’ agency, one of the few that generates its own operating income.
Whether or not the Board’s income from assessment against carriers has decreased, just has the State’s income from taxpayers decreased, does not mean that the Board has to layoff workers to help balance the State budget. Whether the Board lays off 27 people, 200 people, or hires an additional 27 people will have no impact on the state’s budget.
Whether this be a sop to PEF or other unions or the state legislature remains to be seen but it is not going to have any dollar impact on the state budget.
Is there anyone at the Board who will stand up on this issue or are they keeping their heads low, hoping Governor Cuomo does not notice them and cut off some of those useless heads. [11104054]
WCL DEATH TAX!!
By Ron Balter, Louis Dauerer, and James McCarthy
September 22, 2011:Have you sensed a bit of unease in attempting to explain to your client the Surviving Spouse offset off WCL §16? “Well,” you might humbly state with your best attorney countenance, “it’s the law.”
LEGISLATIVE HISTORY
The offset provision [50%] on workers’ compensation of WCL §15.3(v) is based upon receipt or qualification for SS disability benefits and terminates the WC disability benefit upon receipt or entitlement to receive old-age SS benefits. This provision raises a question of age discrimination. Together with WCL §16, these reductions are characterized as “reverse offsets” as distinguished from the SS offset where the combination of workers’ compensation and SS benefits are greater than 80% of the historic earnings record when combined. This latter “default offset” was authorized by Congress in 1965.
Prior to the enactment of the 2007 [WCL 15.3(w)] duration limits on workers’ compensation, the 80% default offset often operated to spur a compromise of the workers’ compensation indemnity rate from total to a partial rate despite evidence of a higher indemnity rate. Commentators observed that the duration limits of the 2007 reform statute “effectively removes this possibility for compromise.” [NYS WC Handbook, 5.52(4)].
In 1981, Congress eliminated “reverse offset” provisions, but grandfathered those in NY and fourteen other states. WCL §16 was enacted in 1977. Among others, the legislative purposes cited: “tax incentives for employers“; “creates jobs“; and “dependents are not without other financial support.” In 1977, the maximum statutory indemnity for a death claim was $125 per week for an Average Weekly Wage [AWW] of $187.50 compared to the 2011 maximum of $772.96.
EFFECTS OF THE “REVERSE OFFSET”
Recent AWW data [Joint Report of the NYS Insurance Department and NYS Workers’ Compensation Board, (March, 2009, p. 21)] indicates that of 83,830 Claims With First Indemnity Benefits paid in 2007-08, 34,022 [69.1%] were male and 13,841 [28.1%] were female, or a ratio of more than two to one.
Thus, the “reverse offset” disproportionately affects the female surviving spouse likely in a similar ratio. [See Data Below]
DISTRIBUTION OF AWW BY GENDER
Based upon the criteria of WCL §16 [Table 1: Sole Surviving Spouse, no children] the workers’ compensation indemnity reduction ranges from 5% to 50% depending upon the AWW range from $$100 to $200 per week.The data further demonstrate that 78,339 claims have an AWW in excess of $224, representing 93.5% of the total number of claims potentially subject [in a death claim] to a “reverse offset.” If the AWW is $450 [$300 per week statutory benefit] , a sole surviving spouse [over age 60] with a SS Survivor Benefit of $1200 per month is subject to a “reverse offset” of $138.46 per week [$1200 x 12/52 x .50] or nearly $7200 per year. This represents a 46.15% reduction. In the national debate, this would be characterized as “confiscatory” or a death tax.
TIME TO ACT
It’s been over 30 years since Congress prohibited (and grandfathered) “reverse offsets” and thirty-four since New York passed its legislation. Rescission of New York’s “death tax” is long overdue and the Legislature needs to determine whether WCL §16 has met its purposes. It’s difficult to imagine those goals have been achieved. While death and taxes may be inevitable, they ought not be even more distressing and painful to surviving spouses.
Since the “reverse offset” is by operation of law, the reduction occurs without a hearing on the issue. Due Process is at stake:
To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].
What do you think? Feel free to submit comments, take action, and offer your own “OpEd” column. As always, thank you for your support.
September 22, 2011: A review of the Board’s public records show that the Board is taking twice as long to do its work in 2011 as in 2009 but accomplishing only half as much.¹
During this past July, the Board issued 549 Memorandum of Decisions, decisions that were to resolve appeals made by injured workers or carriers dissatisfied with the decision of an administrative law judge. Two years earlier, in 2009, the Board issued 1,235 Memorandum of Decisions. Thus, in 2011 they issued only 44% as many Memorandums of Decision as they did two years earlier.
This certainly appears to be encouraging, perhaps a sign of less appeals, the Board’s oft pronounced goal … except for one additional fact:
The average MOD in 2011 took nearly nine months to get issued whereas in 2009, when there were more than twice as many appeals to review, the Board issued them in less than four months.
This explains why there is such a large backlog of cases: 17% of the July 2011 decisions took more than one full year to be issued whereas in 2009 only 1% of the decisions required more than nine months.
It is likely that the 2011 performance figures would have been far worse except for one anomaly: an inordinately large number of appeals from the month of April 2011 appear to have moved to the top of the pile and had their cases resolved by Board panels in July. As you can see from the chart, the 2009 figures (black) show a standard Bell curve whereas 2011 (blue) show a great degree of irregularity, aside from the longer duration to resolve appeals as compared to July 2009.
Unfortunately, the Board no longer publishes any numbers of this nature, number such as those I posted in my Commentary of September 8, 2011 “An Attorney Questions Board’s Response on ‘Variance Requests’” in my letter to the Board Chairman.
Basically, the Board is spending its time resolving issues by forcing cases to be closed rather than using its resources to make decisions. I do not know how many people are employed in the Administrative Review Bureau (a ‘state’ secret?!?) But the number of commissioners on the payroll has not changed although the number of working commissioners appears to have decreased.
Medical variances appear to be suffering from the same problem. Claimant attorneys are complaining about the delays that they are encountering in seeking to reopen cases when medical treatment is terminated because the Medical Guidelines have determined that the injured worker has been cured or perhaps only stabilized. One can only assume, since the Board issues no data, that the requests for medical variance are treated with the same case as the appeals of law judge decisions: months if not years in the making.
But rather than address the issue of why the decision making process has crawled to a virtual stop, the Board is pursing a new debacle for the coming year: MAPP.
When is Governor Cuomo going to step in and clean house? [11094052]
¹[ED. NOTE:] Detailed statistics are attached. The statistics are based on an analysis of 148 decisions for 2009 and 2011 for July 1 to July 31 as listed in Lexis and based on the difference between the date of the decision that was being appealed and the date the MoD was filed. The date of the underlying law judge decision was used as that date appears in all the MoD whereas the dates of the appeal are often not in the MoD. But since there are only 30 days to appeal the law judge decision, any adjustment that could be made, assuming it did not average out, would not significantly reduce the time differences between 2009 and 2011. In both 148 MoD’s review in 2009 and 2011, there are RFA’s (actually only showed up in the 2009 cases), Full Board Reviews and reconsideration of Appellate Court decisions, all of which were done faster than the average for cases in that time period but with a relatively minor effect on the final numbers. As I started with July 2011, I decided to take a 25% sample of the 549 cases, i.e. 148; as a result I used same absolute number, 148, for July 2009 rather than 25% of 1,235
Patient Died BUT the case is closed!
September 15, 2011: In its 2010 Annual Report, the New York State Workers Compensation Board states that the number of pending claims is going down every year for a seven-year average of 7.5% (Chart 2). And this is all due to the new procedures to force both sides to set the issues before a law judge so that these matters can be settled.
However, that same Annual Report shows that, while fewer cases are being indexed every year, down 25% from 2002 to 2010, the number of cases being reopened has increased by 25% in the same period of time. In fact, as my charts show (all using the statics from the Annual Report), the number of cases that require the Board’s attention each year is increasing. Equally important, whereas in 2002 reopened cases were only 49% of the total number of cases handled by the Board, by 2010, reopened cases were 62% of the total and are increasing every year.
More importantly, if you take a look at the last column in Chart 2, you will see that the Board claims to have closed 72% of all cases it had in 2010. At this rate, by 2014, the Board will be closing more cases than it has. Each chart on its own, one on page 3 of the Annual Report and the other on page 21 of the Annual Report show that the Board is accomplishing its goal of speeding up the process. But putting the charts together shows something different.
What does this really mean?
Essentially you can cut down the number of hospitals beds you need and improve the morbidity rate of your hospital by releasing every patient in 10 days, whether or not they are cured. Just state that they are. Hence, a smaller patient population, a need for fewer beds, and no reports of anyone dying in the hospital.
By closing cases as fast as they can, the claims pending is reduced and the number for claims resolved increases. This is done by closing a case if a question comes up that can not be answered at a hearing. “Don’t adjourn - just close.”
Unfortunately, when either party wants to reopen a workers compensation case, the Board, in order to cut down on paper work by cutting down on hearings, now requires all sorts of documents to support the request for a reopening. And after a few weeks, or more likely months, if the Board approves a reopening, the clerical staff must set up hearing dates, schedule a law judge, etc. How much easier would it have been for a law judge to say, “Let’s adjourn until 2:30 next Tuesday which should give you enough time to either settle this issue or have all the facts I need to make a decision.”
But the Oligarchic Cabal, in Albany, who trust (do they have a choice) the law judges to make what are sometimes complex medical and legal decision on cases do not feel confident that the law judges are capable of determining which cases should be adjourned to give the parties time to resolve a case and which cases should be closed.
Is this really true?
Near the end of time that the commissioners were doing §32’s, a complaint arose that was discussed at our monthly preboard meeting. The complaint from the Cabal was that some districts had too many §32 hearing adjourned, thus cluttering up the calendar. The hearings were supposed to either approve or reject the settlement. It was obvious from the districts mentioned that reference was being made to New York City and one update district office. (At that time, most districts, other than Brooklyn, only had one commissioner handle all the hearing.) I was the one commissioner pointed by name out for criticism.
I gave an example of an issue that came up at a hearing. It was a technical issue in which the agreement had to be redrafted to change a few words; the improper words could not simply be crossed out but had to be typed into the agreement as original text and not handwritten as was usually the case with changes. I adjourned the case for the agreement to be rewritten and set the next hearing for 10 days later when I was doing another §32 calendar. I instructed all the parties I would proceed now with the balance of the settlement hearing so that at the next hearing, we would need only a few minutes to tie up everything, that they could just show up during my calendar whether or not a Hearing Notice was ever issued and I would take them right away. Ten days later, the §32 was approved and the case closed.
At that preboard meeting, I was told I was supposed to have rejected the §32. The parties could then apply to reopen the case. When I raised the point that rejecting the agreement, closing the case, and then requiring them to formally seek a new hearing would take about four or five different filings, lots of board staff (examiner) time, and delay the settlement another two or three months, I was told that my argument did not address the issue. It simply did not look good that there were so many open cases and unresolved §32’s. I was to understand that the policy was “Approve or Reject”; there was no third option.
I have been told by several law judges as well as attorneys from both sides that this policy, ‘Approve or Reject’, still seems to be the rule.
And it is the case that this same policy applies to ordinary hearings as well. If the parties have just received some new information and need another week to resolve the issue, the judge is instructed to close the case: “There are no unresolved issues because neither side has presented conflicting information that requires a decision today.”
In the meantime, the number of open cases is skyrocketing. More often than not, claimants are being denied compensation or medical treatment while the Board awaits the proper filing of forms, and the Board proclaims “We have closed all ur cases and discharged all our patients/claimants. Look at our morbidity rare - No one has died in our hospital.”
The Invisible Gorilla
Too bad they do not leave their ivy towers and see all the bodies in the street. But then again, as noted in “The Invisible Gorilla” by Chabris and Simons, some people do not see that which is in front of their eyes even if they look at it: they have conditioned themselves to believe that what is in front of their eyes does not exist.
Next week, I will publish data from the Board regarding the time it takes for the Board to review an appeal. [11094051]
An Attorney Questions Board’s Response on ‘Variance Requests’
September 8, 2011 Last week I received the following letter from John Klee, Esq. With his permission, I sent a copy of that letter along with some Board statistics on time delays for Board panel reviews to the following staff at the New York State Workers’ Compensation Board: Chairman Robert Beloten, Vice Chairman Francis Libous (within whose area of responsibility is managing the commissioners), and Brian Keegan, the Board’s spokesman. While I expect that neither Beloten nor Libous will read the e-mails, I certainly hope that Keegan is not just a spokesman but also an ‘answerman’.
A Letter from Jonathan Klee, Esq.
“Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board. Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board.”
I find this statement by Mr. Keegan interesting and misleading. The interesting part is that based on the numbers provided by the Board at least 26,059 variances requests were denied. That is an exorbitant number of denials of treatment when compared to the system in place prior to December 2010. The misleading part is I’m sure these figures do not include the thousands of other requests for treatment which were denied because the medical provider failed to request the treatment properly since they failed to follow the complex rules of the variance process or medical providers who just refuse to treat patients who need care because they don’t want to deal with the complex rules of workers’ compensation anymore.
The approval time of variance requests by the Board is also an issue. We have had a number of cases where variances were requested. It took the Board a number of months to put the issue on calendar and decide the variance. Finally, after this delay, caused by the Board, the medical treatment was deemed necessary. However, all treatment rendered up to the Variance hearing was denied since it was not pre-approved. So, for example, variance for treatment was requested in January. The Board does not place the case on calendar and decide the issue until April. In April the Board approves the treatment from April forward as necessary and in the same Decision denies the medical provider payment of all medical bills rendered between January and April since they did not receive pre approval. Can anyone at the Board explain the logic of these Decisions? Last I looked, if treatment is necessary treatment is necessary. The only point of these decisions is to force medical providers out of the workers’ compensation system, force delay in treatment since maybe the claimant will just give up and deny payment of bills so Insurance Companies can pad their already bloated profits.
Mr. Keegan, what is the Board’s response to this issue? Please don’t tell me expediting variance hearings because the Board is already flooded and back logged with thousands of requests and thousands more still to come. Attorneys who practice Workers’ Compensation everyday at the Board know that is not a realistic response. That answer would just show how the Board does not really care about providing prompt and efficient treatment to injured workers (What you claim is the goal of the Variance process) and an insult to the medical providers who are underpaid already for the valuable services they provide.
Please Respond to: Jonathan Klee, Esq. Klee & Woolf, LLP 350 Willis Avenue Mineola, New York 11501 (516) 294-5775
My Letter to the Board’s Executive Staff
Dear Chairman Beloten, Vice-Chairman Libous, General Counsel Munnelly, and Executive Director Fenster
September 8, 2011: In response to Brian Keegan’s comments which appeared on the September ,2011 article in the New York Daily News about the delays in the NYS Workers Compensation Board’s handling of medical variance requests, John Klee, Esq. asked me to publish the attached letter [posted above], for which I am now asking for your response.
Even members of your own executive staff, when asked about expediting appeals, have told those phoning for assistance that there is an ever growing backlog in the appeals unit and that, as a result, variance requests are taking many months to review and relevant decisions to be issued.
In addition to responding to Mr. Klee’s letter, I also ask that you publish every month statistics showing the status of appeals per the attached worksheet which used to be distributed to the Commissioners at pre-board meetings when I was on the Board. The letter codes represent categories of cases, with death claims and requests for surgery being the top two.
When Carl Copps took over the review bureau (or whatever is name for this month), he cut the review backlog down to only a few months. Since his departure, it is alleged to have increased back up to 6-8 months.
In view of your recent statement as to how well the new medical guidelines are working and considering Brian Keegan’s comments, I ask that an up-to-date set of statistics, similar to the attached, be made available monthly on the Board’s website and a statement made as to the specific steps to be taken by the Board to reduce the backlog.
It is a disservice to injured workers that their request for continued medical treatment be put on hold because the review bureau and the commissioners have other priorities.
Sincerely yours
Michael T. Berns
The Insider
Former Commissioner 1996-2008
New York State Workers Compensation Board [11094050]
MEDICARE SET ASIDE
An Issue Carriers & Injured Workers Can Agree On
Commentary courtesy of David J. Depaolo, President of WorkCompCentral which is a subscription based online publication of workers’ compensation news, education and data services and can be reached at david@workcompcentral.com
July 1, 2011: Typically employer/carriers and injured workers are on opposite sides of any given issue in workers’ compensation, but a recent move by the federal government should align the two interests.
In January the Obama Administration instructed federal agencies to identify regulations that place an unreasonable burden on businesses. The U.S. Department of Health and Human Services responded to that order on June 6 by publishing a list of dozens of regulations that it intended to review for possible streamlining or elimination.
Medicare Secondary Payer Act rules were not on the target list.
The American Insurance Association (AIA) sent a letter to the department on Tuesday, urging it to review the burdensome reporting rules imposed by Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA).
All states are affected by the MMSEA, and it is no secret that these provisions slow down, sometimes dramatically, the claims resolution process leaving injured workers hanging without compensation many times and employer/carriers incurring needless additional expense.
The regulations that the Centers for Medicare and Medicaid Services (CMS) operates under often lack clarity, are changed frequently without sufficient notice, and overall fail to reflect the operating standards in the insurance and workers’ compensation industries (e.g. what CMS considers a “mass tort claim” is substantially different than what the insurance industry does).
While the AIA deals with the regulators, a coalition of insurers and employers has also been lobbying Congress to reform Medicare reporting requirements. The Medicare Advocacy Recovery Coalition supports adoption of House Resolution 1063, known as The Strengthening Medicare and Repaying Taxpayers (SMART) Act, which would require CMS to give insurers and claimants firm guidance about how much money should be set aside in future medical settlements to protect Medicare’s interest.
The likelihood of getting Congress’ attention on this issue during this legislative session is not high, nevertheless the efforts of the insurance industry should be supported by groups advocating for the rights of injured workers.
I urge both insurance and injured worker lobbying groups to join the efforts to persuade the DHHS to include the MMSEA in the list of regulations that should be reviewed for efficiency modification.>[11084048]
Another Former Commissioner Agrees on Commissioner Salaries
August 18, 2011: After my first year at the Board, I felt as if I was the last of the Four Horsemen of the Apocalypse )who were appointed, along with Chairman Robert Snashall, to bring back energy to the Board and help newly elected Governor George Padaki achieve his goals for the agency. Vice chairman Jeff Sweet, Commissioner Karl Henry, and Commissioner Carol McManus were appointed prior to my arrival at the Board.
Unfortunately with only a few exception, most of the new appointees were examples of the complaints raised by Rick Karlin in the Albany Times Union, which, in turn, prompted my COMMENTARY last week after Governor Cuomo proposed cutting commissioner salaries
Weighing in in today’s COMMENTARY is Carol McManus, one of the Four Horsemen, whose letter speaks for itself.
As you must know, I agree with your commentary completely. However, I would add just a few notes, having participated in the Workers’ Compensation Commissioner’s role for a full 8 years, myself.
Oh, for the good old days, when Commissioners actually talked to one another (and even the draft writers) about any conflict(s) they perceived in agreeing with a draft decision. Even though some were less interested in dialogue than others (don’t confuse me with the facts, my mind is already made up!) most tough decisions were arrived at only after collegial discussion.
With the dawn of e-case, we know that Commissioners access their caseloads with a click of a computer button. They sit alone in front of their screens, clicking their agreement on individual cases and only rarely pick up the phone or write a comment to anther panel member to request further discussion on a matter.
While “signing” the case is the end goal, (thereby agreeing with the writer of the draft decision in all respects as to the content and conclusions drawn) actually reading and understanding the issue on appeal, reading and understanding the rationale(s) utilized by the drafter to reach his/her conclusions, and possessing enough information on the facts and the law pertaining to the matter to make a judgment and cogent decision to agree or disagree with the draft findings is the real goal of the Commissioners’ work.
No one, even a speed-reader, in my opinion, can access a case, read the draft decision, digest its contents and formulate a decision to agree or disagree in the span of 1 minute. If the Chair or his/her designee would only review the statistics (which are available to them) of how much time each Commissioner spends on 1 case, let alone an entire caseload or day’s work, it would become obvious that those who click through the entire computer queue of cases in 15 minutes should be called into account to answer for their amazing ability to complete the above-mentioned cognitive exercises in the blink of an eye. That is clearly a managerial responsibility which has not been exercised, to my knowledge, in the span of my history with the Board up until today.
When Commissioners are allowed to work or not work accountably by their own decision, mind-numbing mismanagement is the only conclusion I can reach. For those who do perform admirably, there is no incentive other than their own pride and work ethic to guide them. Real reform won’t come by just slashing salaries. True management oversight of agency Commissioners is the only path to better, more accurate, justifiable decisions.
Thanks for letting me “ring in” on this issue. You know it’s been a thorn in my saddle for a long time!
Regards,
Carol McManus
President
Carol G. McManus Consulting, LLC
17 Pine Cone Dr.
Pittsford, NY 14534
Ph: (585) 465-2365
www.CarolGMcManus.com
April 19, 2012 (Thursday): Today’s story deals with sex and workers compensation benefits .
This week’s news joins our weekly postings of news reports, press releases, legislative updates, and background stories of concern to those who participate in the State of New York Workers Compensation system: injured workers, carriers and employers, their attorneys, Workers Compensation Board staff, and third party vendors. This page also posts ‘insider’ information about proposed changes in practice and procedures at the NYS Workers Compensation Board, information not available anywhere else. If you would like to be added to our weekly e-mail alert list or have any submissions or suggestions, they can be sent to me at TheInsider@InsideWorkersCompNY.com.
A link to the index of all items posted to this page in 2009 and 2010 can be found below.
April 19, 2012: It has been reported that Federal Court Justice John Nicholas over ruled the Workers Compensation Bard by determining that a woman, injured while having sex in a motel room while on a work trip, qualified for workers compensation.
The judge’s decision was based on the fact that the injury occurred out of and in the course of employment.
“If the applicant had been injured while playing a game of cards in her motel room she would have been entitled to compensation, even though it could not be said that her employer induced or encouraged her to engaged in such an activity. . . . In the absence of any misconduct or an intentionally self-inflicted injury, the fact that the applicant was engaged in sexual activity rather than some other lawful recreational activity does not lead to any different result.”
While this case took place in Australia, similar such cases, with the same result, have occurred throughout the U.S. [24174-5330]
Cuomo picks Peters to preside over AD’s Third Dept.
April 12, 2012: As reported over the weekend by Casey Seiler, Times-Union Capitol bureau chief, Governor Cuomo has announced the appointment of Justice Karen K. Peters to serve as the Presiding Justice of the Appellate Division of the Supreme Court for the Third Judicial Department. In 1994, Peters was the first woman elected a Supreme Court Justice in the Third Department, and will now be the first woman to preside over the department.
In addition to performing the duties of an Appellate Division Justice, incoming Presiding Justice Peters will be responsible for serving as the Third Department’s Chief Administrator. As Presiding Justice, she will help shape statewide judicial policy as a member of the Administrative Board. For a sense of her position in the past, I have listed below the six cases in 2011 in which she authored the majority/unanimous decision of the Court.
Prior to joining the Appellate Division since 1994, she was a Justice of the Supreme Court, Third Judicial District from 1991-1992 and served on the Family Court, Ulster County, from 1984-1991. Prior to serving on the bench, Justice Peters worked for the Assembly in as the Director of the Standing Committee on Governmental Operations in 1983 and prior to that was Counsel to the State Division of Alcoholism and Alcohol Abuse from 1979-1983. Prior to formerly joining public service, Justice Peters was a visiting Assistant District Attorney in Dutchess County in 1979 and in private practice concentrating on criminal defense and family law from 1973 to 1979 at the law firm Peters and Weiner. Justice Peters received her Bachelor of Arts degree from The George Washington University in 1969 and her Juris Doctor from New York University School of Law in 1972.
Some of Peters’ Prior Opinions
Dickerson v Thompson, 2011 NY Slip Op 06009 [88 AD3d 121], July 21, 2011: Approved dissolution of a same sex marriage performed in Vermont. Key position: “While plaintiff lacks a remedy at law, the dissolution of a civil union falls squarely within the scope of Supreme Court’s broad equity jurisdiction.“
Matter of Doe v O’Donnell, 2011 NY Slip Op 04804 [86 AD3d 238], June 9, 2011: Confirmed that the legal requirement under NYS Law to register as a sex offender under the Sex Offender Registration Act is not negated by another state’s determination that registration is that state is no longer required.
Signature Health Ctr., LLC v State of New York, 2011 NY Slip Op 09058 [92 AD3d 11], December 15, 2011: Affirmed a decision by a medical provider that there is no authority in the Medicaid statutes, either express or implied, for the recovery of interest for delayed or wrongfully withheld reimbursement payments
Matter of Soares v Herrick, 2011 NYSlipOp 511105, 08/04/2011: In an Article 78 proceeding rejected a lower court’s ruling which stated that District Attorney Soares could not enforce two orders which, among other things, disqualified Soares and his staff from further prosecuting a criminal case against respondents
Matter of Bowman v Bowman, 2011 NY Slip Op 01101 [82 AD3d 144], February 17, 2011: Ruled that the NYS Family Court possessed jurisdiction to modify a Washington State child support order due to change in residency of the parties, thus resolving differences between FFCCSOA and UIFSA.
Hurrell-Harring v State of New York, 2011 NY Slip Op 00072 [81 AD3d 69], January 6, 2011: After a lower court denied a putative class action alleging that the current system of public defense is systemically deficient and poses a grave risk that indigent criminal defendants are being or will be denied their constitutional right to counsel., this decision reversed the lower court on the basis that the unique circumstances of this case render a class action superior to other methods of adjudicating this controversy. [24173-5329]
Budget Relief for GSITs
April 4, 2012: New York State Workers’ Compensation Board Chairman Robert Beloten today announced that the newly adopted New York State budget includes more than $200 million in assessment relief for thousands of small businesses who are members of a defaulted or inactive Group Self-Insurance Trust (GSIT).
In addition to getting $200 Millions, the budget requires that the Board, this time, takes steps necessary to insure that the trusts remain solvent. And the Board itself is now required to make a formal report to the Governor and legislature every six months as to the total amount of claims liability of insolvent group trusts; the degree to which each qualifying group trust is fully funded; and the actions the Board has taken to extinguish outstanding liabilities thorough settlements, loss portfolio transfers, and collections from defaulted group trust members. Apparently, this oversight, as in the past, does not appear to include trusts which are, for the current time, solvent.
Also, the Board has approved a private carrier’s assumption of one trust’s liabilities through an Assumption of Workers’ Compensation Liability Policy (ALP). ALPs mitigate self-insurers’ long term liabilities associated with both claims and assessments by transferring that liability to a private insurance carrier. This remedy allows businesses that were part of a defaulted GSIT to settle long term exposure for a fixed price.
Not mentioned in the press release is the fact that although ALP’s have been proposed for several years, Board management had been unable to come to any internal understanding of how to proceed and/or approve this solution as an alternative to forcing many of the trust members (both employers and the business owners) into bankruptcy.[24173-5328]
Gov Names Comm of Labor
Can the WCB Be next?
March 26, 2012: According to the Casey Seiler, Capitol bureau chief of the Albany Times-Union, Gov. Andrew Cuomo, appearing Saturday night, March 24, 2012, at the Somos El Futuro gala, announced the nomination of Assemblyman Peter M. Rivera, D-Bronx, to serve as Commissioner of the state Department of Labor. Colleen Gardner, a holdover from the Paterson administration, had been serving as commissioner at Labor. Assemblyman Rivera’s nomination is subject to confirmation by the New York State Senate. He will serve in the Assembly for the remainder of the 2012 legislative session, during which Commissioner Gardener will continue to serve in her current role.
A number of people who are involved in these political machinations have been telling me since last year that the Department of Labor and the Workers Compensation Board are near the bottom of the list of Governor Cuomo’s interests. But it seems he has finally arrived.
Now that he has selected someone to run labor, albeit not until this summer when the current legislative session ends (June, July, August ??), can the WCB be far behind? And in the remaining few months, how many more monuments will be erected by the current staff so that they can show their great successes before leaving for another agency or the private sector just before the facades of the Potemkin Village they have left be find fall to the ground?[23170-5327]
John Sciortino, 1959 - 2012
March 22, 2012: I regret to inform you of the passing of John Sciortino.
John Sciortino passed away suddenly, at much too young an age, Monday evening, March 12, at his home in Penfield. John was born in Buffalo and grew up in Schenectady where he graduated from Mohonasen High School in 1977. John is deeply mourned by the many he so profoundly touched. He was a man of many varied and diverse passions and talents. He loved life and lived it large in every way. He possessed the rare qualities of a good listener and great storyteller. He was funny. Above all, he was a loving husband to Michele and a doting father to his teenage daughter Andrea.
John served was chair of the Parish Pastoral Council and led an involved and successful expansion project at St. Joseph’s Catholic Church of Penfield. He is past Chairman of the Board of Governors for Seniors First Communities & Services, is a member of Wakan-Hubbard Lodge No. 154 F.&A.M. He served for almost 25 years on the Boards at Valley Manor and Kirkhaven Nursing Home and was recently appointed to the Board of Trustees at his alma mater, Union College.
After graduating from Union, John earned his law degree from Albany Law School , he was a founding partner in the law firm of Segar & Sciortino. At the time of his death, he was President of the New York State Injured Workers’ Bar Association, a founding member of the Board of Governors of the New York Injured Workers’ Alliance and founding member and former State Co-Chair of the New York Workers’ Compensation Alliance. He was a member of the Board of Directors of the Triangle Shirtwaist Factory Fire Memorial.
Described as “one of the foremost advocates for Workers’ Compensation reform”, John was invited in 2006 to participate as a panelist at a NYS Senate Workers’ Compensation Reform Round Table to offer insight into ways to improve the Workers’ Compensation system. In 2007, John served as an advisor to the New York State Department of Insurance Task Force. In 2008, he was awarded a Clara Lemlich Public Service Award for his outspoken efforts on behalf of the rights of injured workers in New York State. John has been annually recognized by Super Lawyers. Last weekend he was inducted as a Fellow of the College of Workers’ Compensation Lawyers.
The full obituary can be found at the web site of Segar & Sciortino.[23170-5326]
More Board Forms: too Many?
March 22, 2012: The New York State Workers Compensation Board has just announced six new substantially changed forms, under Subject Number 046-1.16, bringing the total number of new and revised forms issued since January 2011 to a total of 86 forms.
And yet while the Board develops new, and required, forms to expedite the handling of claims, the Board itself it getting slower and slower in meeting one of its primate duties: the adjudication of cases.
As noted on the DECISIONS page, in the Matter of Pelaez v Sliverstone, the decision on an appeal for a full Board review of a Board panel Memorandum of Decision dated March 1, 2010 was not issued until March 13, 2011. And, more to the point, this document required the signature of only one Board Member: Vice Chairman Fran Libous. If the person allegedly in charge of the Commissioner takes that long to sign a denial, it is no wonder it can take up to a year when three commissioners are required to review an appeal of a Law Judge decision.
The new forms this week are:
C-4.3 was modified to accommodate the 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.
PH-16.2 was modified to accommodate implementation of the 2010 New York State Construction Industry Fair Play Act (Labor Law § 861).
RFA-1LC and RFA-2 were reorganized to allow parties to identify the issue involved and to instruct parties as to what evidence is required for further development of the issue.
SI-10.1 was updated to reflect cumulative compensation payments through 9/30/11.
VDF-1 was created to accommodate the 2012 Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.
W-32R was updated to reflect changes within the Board’s WAMO office.
The complete list and links to all these forms can be found on the Board’s site.[23170-5325]
Triangle Shirtwaist Factory Fire Memorial
March 6, 2012: The Directors of the Triangle Shirtwaist Factory Fire Memorial have announced that its annual dinner, marking the 101st year anniversary of the Triangle Shirtwaist factory fire, will be held in New York City on March 22, 2012. It was on March 25, 1911 that New York’s landmark industrial disaster killed 146 of the factory’s 500 employees, most of them young immigrant women and girls of Italian and European Jewish descent.
Proceeds from the dinner in 2011 enabled TSFFM to provide 25 scholarships to the Triangle Scholars Class of 2012 and brought the total of awards to over $300,000 since 2002. John Sciortino, a Rochester attorney and Chair of the Scholarship Committee, noted that 11 of this year’s recipients have been previous recipients and 6 are in their fourth year of study. “We are proud of the students and believe that those completing their degree studies represent the aspirations of their families who are dependent upon workers’ compensation to survive in this dreadful economy,” Sciortino said. “The arithmetic is simple: these students range in age from 17 -21 which means their families may be receiving compensation benefits as little as $200-300 per week,” he continued referring to the benefit limits in effect in previous years.
This year’s class of scholars pursues studies in institutions of higher education from Buffalo, to Rochester, to Potsdam, to St. John’s on Staten Island, to SUNY at Stony Brook and is in attendance at six private colleges and eight public institutions.
Tickets are $450 per person. The dinner includes Cocktail Reception; Hors d’oeurves; Museum Exhibits; Sounds of Old New York Klezmer Music; NYFD Pipes & Drums; Five Star Dinner and cabaret songs and performances. Payment for Eleventh Annual Dinner Tickets, Memorial Journal Ad Placement, and Triangle Scholarships can be placed online using EpochReg.com. For additional information please contact James M. McCarthy (718-830-3200) jmccarthy@nycomplawyers.com or Barbara B. Levine at Barlaw8@aol.com.[23168-5324]
NYS Workers’ Comp Assessments: The Hidden Tax
March 7, 2012: On February 22, 2012, the Workers’ Compensation Policy Institute reported that the surcharge added to workers’ compensation costs for all New York State employers is nearly five times the average of the same surcharge imposed in other states and twice as high as the assessment in the nation’s second highest state.
These surcharges are the assessment made by the New York State Workers Compensation Board against all carriers, self-insureds, and the New York State Insurance Fund (SIF) to fund the operations of the Board. The report goes on to state that this ‘tax’ was increased by 10.4% in 2010 and 27% in 2011. Just one part of the assessment burden, a 10.1 percent tax on premium, is assessed to support just one fund, the Second Injury Fund, which although closed to new claims will continue over the next few years to pay out on existing claims.
While the reforms of 2008 were supposed to reduce the costs of insurance, by reducing the Workers Compensation Board’s administrative costs, the reverse has been the case as the Board sets forth more and more increasingly complex maze of rules and regulations.[23168-5323]
[ED. NOTE:And these assessments do not include the costs added to the carriers , TPA’s, medical providers, and attorneys’ administrative expenses in trying to comprehend and then adhere to these new ‘cost cutting’ measures, while being hit by the Workers Compensation Board with ever more frequent procedural penalties. And this report does not even reference the above average staff salaries at the Board as noted in the following news item.]
WCB Salaries: A Big $100K+ Club
March 7, 2012: While most of us worry about keeping our jobs and earning as much this year as we did last year, those at the New York State Workers Compensation Board are doing better than even.
The website seethroughny.net lists the salaries for the last four years of tens of thousands of state workers and it is from their website that I learned that there were just over 130 people, approximately 10% of the WCB workforce, who earn more than $100,000. It is interesting to note that other than the Chairman ($120,800) and Vice Chairman ($101,600 ), none of the other commissioners nor the writers in the Administrative Review Division (other than top managers) are in the $100K+Club. While many of the salaries are covered by either union contracts and legislation, there are a few who managed to get a nice increase last year. In fact, the highest paid employee also got the biggest raise - Jeffrey Fenster who earned $146,637 in 2011 was the recipient of a 3.5% increase from 2010.
Attached is a list of job titles and, where it exists, a range of pay. I have not included any names as well as having removed from the list positions in computer services as they usually have skill levels and therefore pay levels that would be pretty much the same in any other state agency. For those of you who wish to look up the full details, be forewarned: the website,which does list names, is not easy to navigate.[23168-5322]
Is SIF Being a Bully in Amherst?
March 6, 2012: On February 8, 2012, the Appellate Court, Fourth Department heard the arguments in the Matter of Bissell v Town of Amherst, et al., whose misleading title obscures the fact that it is really the New York State Fund (SIF) who is being sued by the Town of Amherst.
According to an editorial in the the Buffalo News, the Town of Amherst has brought this action to retrieve $23 million in court-ordered personal injury payments from SIF. Two courts have ruled that the State Insurance Fund, one of the largest workers’ compensation insurers in the country, must reimburse the town for a $23.4 million judgment paid to a Sanborn man, Peter E. Bissell, who suffered crippling injuries when he fell from a ladder while examining the roof of a town-owned building in 2002.
Amherst’s carrier covered $10 million, and the town borrowed the rest - $13.4 million - to pay the award in 2008 without significant extra charges or damage to its credit rating. Amherst, in turn, sued Bissell’s employer, McGonigle & Hilger Roofing, and two separate courts ruled that the company - not the town - was responsible for Bissell’s severe spinal injuries, including paralysis in both legs. This past December, State Supreme Court Justice Paula L. Feroleto ordered the claim be covered by the Fund, per its insurance agreement with the roofing company. But, apparently, the Fund just is not paying but appealing every lower court decision.
The editor then adds:
The Attorney General’s Office entered the picture last week, requesting more time from the state Court of Claims to examine the town’s charges that SIF was engaging in deceptive acts and unlawful practices. But the AG’s Office wasn’t weighing in to represent the interests of Amherst taxpayers, as town officials had hoped. In fact, the state’s primary legal watchdog was doing just the opposite. Because SIF is considered a state agency, the AG’s Office is required by state law to defend it in litigation, as opposed to exploring whether town taxpayers were being taken for a ride. Given the clear facts of the case and the exhaustion of all liability appeals, we [the newspaper] would expect AG Schneiderman to recommend that SIF dig into its considerable coffers, reimburse the town and move on.[23168-5321]
Per Fenster: WCB move is just rumors!
Oops! It’s True!
February 16, 2012: In response to rumors circulating at the Workers Compensation Board and Park Street in particular, Executive Director Jeffrey Fenster sent an e-mail to the staff Monday, February 13 stating, in part, “While there have been preliminary discussions about the Board’s future at Park Street, no decision has been reached as to whether the Board will remain here, move to another downtown Albany location, or move some of its administrative operation outside the City of Albany. However, no move is imminent.”
Then just two days later on Wednesday, February 15, Fenster sent out a second e-mail stating, “the Board has decided to move our primary administrative offices from 20 Park Street to 328 State Street in Schenectady. A specific time frame for the move has not yet been determined.”, adding “Pursuant to the Workers’ Compensation Law, the Board will continue to maintain a presence in the City of Albany.”
This e-mail was copied in its entirety in a story issued by the Albany Times-Union just a few hours later that afternoon. The Times-Union also reported that the WCB is moving into office space soon-to-be vacated by the Department of Transportation whose staff is moving from Schenectady to a DOT building on Wolf Road which is in Albany.
[ED. NOTE: WCL §146 states “The principal office of the Board shall be in the city of Albany.” So it will be interesting to learn who of the current Park Street staff will remain in Albany. Perhaps the Chairman, the Secretary, and a small office for Fenster, who as Executive Director, mainly works out of Brooklyn. Equally of interest is where will that office be located. Prior to the administration of Gov. George Pataki, the Workers Compensation Board’s main office was at 180 Livingston Street in Brooklyn; Menands, where the Board still maintains an office, was at that time represented as being within the Albany city limits in order to comply with §146. Perhaps, as has been rumored for years, the Board’s executive offices in Albany will be located somewhere in the bowels of the New York State Department of Labor.
I am sure that the Park Street staff will be given notice of the date of the move when they show up at Park Street to find the moving trucks busy loading up for the move to the new office, which according to Google maps is approximately a 30 minute drive almost due west from Albany although Google does not note as to whether or not this is during rush-hour. Interestingly, the DOT office is moving approximately a 30-minute drive in the exact opposite direction.[22165-5320]
On Feb 7th 12th, 2012,
Board publishes 2009 fee schedules
February 12, 2012: One week after its February 7, 2012 announcement of the 2009 REVISED reimbursement rates for inpatient hospital care with discharge dates of January 1, 2009 through November 30, 2009, the NYS Workers Compensation Board is announcing a revision of the revisions. These rates are determined using the Medicaid inpatient methodology, All Patients Refined – Diagnostic Related Groups (APR-DRG). These rates also apply to treatment provided under the Comprehensive Motor Vehicle Reparations Act, Volunteer Firefighters’ Benefit Law, and Volunteer Ambulance Workers’ Benefit Law. The new rates are now posted on the Board’s website located under Health Care Information, Medical Care Fee Schedules, under 2009 Medical Fee Schedules.
[ED. NOTE: Considering that it has only taken just over two years to get this revised fee schedule completed, albeit with an almost immediate corrected, is it any wonder that it takes 12 months to 18 months to compete reviews of claimant and carrier appeals of administrative law decisions? Yes, it is correct that the Workers Compensation Board had to await the revisions from another state agency. But I bet had the information that the Board had been awaiting covered salary increases for the commissioners and executive staff, the Board would have been on the phone in January 2010 and not waited until February 2012.[22165-5319]
Wrynn resigned as NYS Superintendent of Insurance
February 9, 2012: Goldberg Segalla LLP is pleased to announce James J. Wrynn will join the law firm March 5. He will run the firm’s New York office and will be a senior partner in its Global Insurance Services Practice Group. Wrynn served as the 40th and last Superintendent of Insurance in the State of New York until it merged with the New York State Department of Banking to form the new Department of Financial Services. He then served as the first Deputy Superintendent of the new department. Prior to serving as Superintendent, Wrynn served as the Executive Director of the New York State Insurance Fund, New York’s largest workers’ compensation and disability benefits carrier. [22165-5318]
Time for a Virtual Office?
February 7, 2012: The New Jersey Law Journal reports that a committee of the New Jersey Supreme Court is considering changing the requirement that attorneys have a ‘brick and mortar’ office and, instead, to have a virtual office. This change in the rules has recently been published for comment. Can New York be far behind?[22165-5317]
The State Taketh (SIF)
& The State Taketh (GSITs)
December 13, 2011: According to the financial people helping solve New York State’s budget woes, the plan is to balance the State’s budget deficit and cover up its fiscal misjudgement and oversight failures by using premiums from those firms who are required to have workers compensation insurance.
According to James M. Odato, of the Albany Times Capitol Bureau, “the Division of Budget has changed its tune whether the surplus funds at the State Insurance Fund can be used for budgeting.” According to them, the surplus at the State Insurance Fund is an asset of the state to be used at the discretion/whim of those who are given the responsibility to balance the budget. As previously pointed out in this website, Gov. Cuomo has just recently ordered the private health insurance companies to repay to its policyholders funds that were collected in excess of what would have been the appropriate premium rate. Today no distinction has been made as to why premiums collected in excess of the premium rate belonging to policyholders of health insurance and not to policyholders of workers compensation insurance of which 55% of the payouts are for medical expenses.
At the same time it is looking at taking a $1.3 billion asset from one insurance company, it is now taking steps to attach the assets of thousands of small businesses who were victims of the fraud perpetrated by a number of group self-insured trusts whose financial worthiness was regularly affirmed by the New York State Worker’s Compensation Board and other state agencies. As a result of the fraud perpetrated, insufficient premiums were collected to offset liabilities from the workers compensation claims the trusts were established to manage. Yet the amount of money being demanded by the Worker’s Compensation Board was less than that which the State is looking to take from the State Insurance Fund.
Unfortunately, the Worker’s Compensation Board’s responses are, “All of this will be avoided if they simply contribute towards the workers’ compensation obligations of their own employees.” and “That’s kind of what they signed up for.”
Small businesses facing judgments say they are victims of a corporate Ponzi scheme and shouldn’t be asked to pay more than they already have in premiums.
Unlike some of the investment Ponzi schemes we are seeing, such as those perpetrated by Madoff and allegedly Corzine, the government who failed in its responsibility to oversee the insurance fraud also manages a fund which has also set premium levels incorrectly although in this case that error generated a surplus.
One could argue, certainly on a moral and ethical level, that since the State of New York failed in its supervisory capacity regarding the premium rates charged by various entities, that its “windfall” in one failure to supervise premium rates should be offset by the losses incurred by its failure to supervise premium rates in another.
Phillips Lyle in Albany, under the direction of Rich Honed, currently represents many of the businesses being sued by the state of New York.
Although the media has been filled with stories as to how one trust administrator, Compensation Risk Managers, formerly of Poughkeepsie, accounted for a majority of the bankruptcies and has since gone bankrupt, it appears that no legal action has been taken against the principles of CRM and its parent company who allegedly made several millions of dollars in salary, benefits, and dividends as a result as their work as trust administrators.[1D155-5316]
Board Agrees on Med Guidelines’ Fee:
You Must Pay to Play
The issue came to light when the American College of Occupational and Environmental Medicine (ACOEM) who worked with the Board in the development of the guidelines, in coordination with its commercial partner, the Reed Group, sent letters to nearly 300 New York carriers, third-party administrators, and large employers asking for a $99 licensing fee for each user of the guidelines.
The objection to the licensing fee was first raised by the New York Insurance Association, whose Vice President, Marc Craw, stated, “NYIA firmly believes that carriers should be allowed to use the medical treatment guidelines without incurring any additional costs. The cost of doing business in New York State is already high enough without having additional fees and assessments imposed on insurers.“
As was noted in my posting last week, the Workers Compensation Board continues to respond to formal requests for information by not returning phone calls, so it has been difficult to find out the Board’s official position on this issue. But the record speaks for the Board:
According to Whitely’s investigation, ACOEM released a letter, dated April 21, 2008, from ACOEM Executive Director Barry Eisenberg to Cheryl Wood, former general counsel for Board whose most recent responsibility was to make sure that the Group Self-Insured Trusts met their financial obligations. The letter granted the Board the right to use all or portions of the guides but prohibited the Board from allowing use of the guides for commercial applications.
And, yes, the Workers Compensation Board’s website does state that the guides are limited to ‘fair use.’
Dr. Jon Seymour, president of guidelines for the Reed Group, has indicated that since insurance companies can save money using the guidelines, they should be expected to pay to use them. Left unmentioned is access by law firms, medical providers, and even pro-se claimants. Interestingly, Seymour did state that Reed/ACOEM have signed agreements with the State Insurance Fund and one medical society to allow them free access to the guides.
This leaves open a number of questions:
Since no one in the workers comp community works for free, does this mean they are all using the guidelines for commercial application and must pay a fee?
Even pro-se claimants trying to get an increase in their award?
Does this mean that individual law firms, medical practitioners, etc. must directly negotiate to get free access to the guides?
Does this mean that when the New York State Legislature passes a law mandating use of certain medical, technical, or legal guidelines which are developed under the direction of a state agency, that practitioners, users, and licensees who by law are mandated to use those guidelines must pay a fee for the sole purpose of accessing what is, in essence, access to state rules and regulations?
From where did ACOEM get that mailing list? Are the Board’s lists available to anyone? Free or at what cost?
How could the executive staff and legal counsel at the Workers Compensation Board sign such an agreement? Did they actually understand what they were signing or did they feel they would get credit for having developed the guidelines but then get out of town before the reality of what they did hit the pocketbooks of the New York State workers compensation community? As John Sciortino, president of the New York Injured Workers’ Bar Association, said, “If the guidelines are going to be made part of the law, then everybody should have access.”
Whitely then quotes Seymour as saying, “This might have been resolved with a little more clarification (by SWCB) in the early days of the discussions. But the discussions are ongoing right now, and we feel like New York is really on the right track.”
I.P.F. Owens, a behavioral psychologist, noting that his field was being overwhelmed with ideas but no results, observed that “key theoretical models [and policy decisions] seem to be produced at a much faster rate than empirical studies can test them [for practical results].“ Same for the current staff at the Board who appear to be running theoretical models as to how to run the Board but without any practical experience to know what works and what does not. This debacle on a mandated fee to access Board mandated guidelines poses the question:
When will Governor Cuomo put adults in charge of the Board?
Whiteley’s article has links to the ACOEM letter to carriers et al asking for the fee as well as its April 21, 2008 letter to Cheryl Wood.[1N153-5315]
Nature vs Nuture vs Hiring Tests
November 21, 2011: A recent article in Medical Xpress.com indicates that it may be possible to anticipate which individual from a group may be subject to significantly increased risk of developing abnormal lung function.
In a study of 327 non-smoking members of the New York Fire Department who worked at Ground Zero, their blood serum was taken and stored five to six months after exposure. Substantial differences were later found in the members of this control group. “Study participants with dyslipidemia, elevated heart rate or elevated leptin levels had a significantly increased risk of developing abnormal lung function during follow-up,” said Anna Nolan, MD, MS, assistant professor of Medicine and Environmental Medicine at NYU Langone Medical Center. “In contrast, elevated amylin levels reduced the risk of developing abnormal FEV1 levels.”
“Most people who are doing this type of work are always looking for things that can be simply measured in people’s blood that can be used to eventually predict a medical outcome—in this case, bad lung disease. One of the reasons why we want to find those things is we can potentially treat those individuals earlier,” said Dr. Nolan.
Does this mean that genetic testing will be used to determine which individuals have a lower risk of occupational diseases and thus have a higher probability of being hired for jobs which historically have higher level of specific occupational disease than other jobs or the general population? And does the mean that the balance of individuals in that group will not be hired?
Much has been written in the past few years about the threats posed by health insurance companies using genetic markers and access to individuals’ health histories to learn which of their applicants for health insurance have a significantly increased risk of developing medical conditions which are expensive to treat.
But can and should these same tests be used in the workplace?
Aside from the issue of discrimination against job seekers, the question rises, “Would the job seeker want to take the job after being made aware of the higher than average risk of developing a serious if not fatal medical condition.”
Also, will the next set of medical guidelines allow or require similar tests of all workers filing claims for lung disease? And if you, as new tests develop for stress, heart conditions, etc., will those also be allowed or required?
November 17, 2011: Apparently there is a question as to whether access to the Medical Treatment Guidelines to be required by the New York State Workers Compensation Board (NYS WCB) requires a formal licensing agreement.
Apparently the American College of Occupational and Environmental Medicine (ACOEM) or one of its business partners has been sending letters to insurers stating that, per the agreement that ACOEM has with the NYS WCB, access to the WCB’s treatment guidelines, developed by the NYS WCB with ACOEM, will be on a licensing basis only.
However, sources have reported that Jeffery Fenster, Executive Director of the NYS WCB, has indicated that the Board not only did not authorize ACOEM to charge a fee for access to these guidelines but that the Board was unaware of the proposed fee schedule until complaints starting pouring in from carriers.
The American Insurance Association has been in contact with both the Board and ACOEM in order to get a quick resolution to this issue.
One carrier stated that he was under the impression that, while the fee was not authorized by the WCB, the WCB never stated in its agreement with ACOEM that they could not charge a fee for access. So, apparently ACOEM is sending out the letter calculating that, while they can not require payment of a fee for access to these guidelines, that they may be able to ‘bluff’ some carriers into paying it.
While as one carrier stated, if there is no fee, then this has just been an exercise in spinning wheels, it would seem that whoever at the WCB drafted the contract with ACOEM either had no experience drafting a contract with an outside party to develop resources for the Board or just didn’t pay enough attention to what was going on.
As of the date of this posting, there are various interpretations being offered as to what was the agreement, in wiring or verbally, between the NYS WCB and ACOEM. Hopefully, this matter will be resolved in the next few days.[1N152-5313]
PEF Approved Contract - Layoffs Averted
Furloughs still in Effect?!?
Nov 10, 2011: As has been noted in all the media, the PEF members have voted to accept the contract on the table, after having voted ‘no’ a few weeks ago.
This means that the proposed layoffs at the Workers Compensation Board, along other agencies, have been cancelled.
But, the WCB staff is still subject to the same furloughs as all the staff whose agencies are paid for out of the state budget. So the question remains, “Why doesn’t the executive staff at the Workers Compensation Board ask for a waiver?” Unfortunately, as is the case with every question asked of the Board, the answer to that question remains, not “No Comment”, but “no answer.”
Since the furloughs appear not to extend to the political appointees, who are not members of PEF, it seems that the generals are adding more medals to their chests by making some sacrifices: of their staff.[1N155-5312]
When Reform Doesn’t Reform
November 8, 2011: As noted in the headline above, Albany Time Union’s Rick Karlin detail’s another failure of the New York State Workers Compensation Board to fulfill its stated obligations.
“New York’s workers’ compensation system has long been criticized as slow, costly and unresponsive to the needs of employees and employers alike. More than three years after the latest dose of reform, things haven’t markedly improved.”
In this article, Karlin explains that the Board’s failure to hold hearings and resolve cases has resulted in a staggering 12,000 case backlog leaving thousands of injured workers in a “legal limbo” while costing employers millions of dollars that the legislation on compensation caps was supposed to save. Add this to the Board’s back log of thousands of requests for medical variances and one has to question if the leadership of the Board understands what is the purpose of their employment.
As I wrote in my commentary of September 22, 2011, The Board’s Not Working, this backlog is due solely to incompetence and lack of leadership at the Board and the focus on the future careers and the political fortunes of those who run the board while the interest of injured workers and the employers is secondary.
This article in the Times Union by Rick Karlin gives additional support for my recommendation to Governor Andrew Cuomo that he take a broom to the Workers Compensation Board. [1N150-5311]
New Disability/Impairment Guidelines
November 3, 2011: The New York State Workers Compensation Board today announced the publication of its 125-page 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity for use by medical professionals, carriers, attorneys, and the Board in the evaluation of permanent disabilities. The 2012 Guidelines will replace the existing 1996 Medical Impairment Guidelines and will take effect January 1, 2012.
However, for claims that already have at least one medical opinion finding a permanent impairment with a rating based on the 1996 Guidelines on or before January 1, 2012, the Workers Compensation Board will determine the claimant’s degree of permanent disability using the 1996 Guidelines.
The 2012 Guidelines address the evaluation of both schedule loss of use awards and non-schedule permanent disabilities. The portion devoted to schedule loss of use awards (Chapters 2-8) is taken unchanged from the 1996 Guidelines. The non-schedule permanent disability sections (Chapters 9-17) are largely based on the work of the Insurance Department’s Workers’ Compensation Reform Task Force and Advisory Committee (Task Force). It includes guidance for medical professionals on how to evaluate medical impairment and physical function and guidance for the Board on how to determine loss of wage earning capacity. It is expected that attorneys, claims professionals, and others will utilize these new standards in an attempt to evaluate and settle claims.
The balance of the Workers Compensation Board’s announcement can be found at the following link: Board’s Announcement.[1N150-5310]
Board Layoffs: Legal Or Political?
Layoff 27 to save 1
October 25, 2011: According to an article in Crain’s, today there is a question about the validity of the 27 layoffs in process at the New York State Workers Compensation Board, an issue that has been raised to me directly by some of my contacts at PEF and the Board.
The Board is funded by assessments against carriers and does not come from the New York State Budget.
As for proof positive of this fact, consider that during the Pataki’ years, when the New York State Legislature was late in submitting a budget to Governor Pataki, he simply stopped all payments including payroll to all state employees, state employees paid out of the state’s budget.
What did this mean? Every state employee whose agency/board/etc. was funded by the state budget had their salary checks withheld. The Workers Compensation Board’s staff, on the other hand, got their paychecks because the funding did not come out of the state budget. So while the state does review the Board’s budget, it does not fund it.
The same is true now.
In fact, the Workers Compensation Board could easily have, as did the State Insurance Fund, asked for a waiver for the layoffs. It did not. As Crain reports,
The appointment last year of Fenster, then 29, drew criticism because he was put in charge of an organization in crisis although he had no workers’ comp experience. Among the challenges was a spate of bankruptcies among the state-regulated, self-insured trusts that have a liability that may reach $1 billion. Cuomo has yet to replace Fenster with his own hire. An administration official said earlier this year that the governor is still “going through appointments … and evaluating existing employees.” An insider said, “I think Fenster is so afraid for his job [that] he agreed to have layoffs.” [ED. NOTE:]I am not that insider, although I have said the same to others when discussing this issue.
In addition, the article goes on to state that early this year the Board transferred $80,000,000 into the State’s General Fund in December 2010.
In the past I have questioned this as the funds that Workers Compensation Board gets are not from the State or the taxpayers but from carriers. So it seems that the Board has this program of “If there is a surplus, use it to buy favor with the Governor and State Legislature. If there is a deficit, make the carriers pay up the difference.”
Let’s see: Save money on payroll and get rid of reporters. Save money on administration and cut down on hearings. Save Money on travel and do more and more videos. And what do we do with the money that we save. Cut fees to the carrier and hope that workers compensation insurance rates will decrease and reduce the cost to doing business in New York State for employers? No, use it to buy favor.
[1N148-5309]
Medicare Secondary Payer Program
Important Updates
October 18, 2011: On September 30, 2011, the Centers for Medicare & Medicaid Services (CMS) made several important announcements that impact liability settlements involving Medicare beneficiaries.
As part of the Centers for Medicare & Medicaid Service (CMS) efforts to continuously improve its Medicare Secondary Payer (MSP) program; CMS has posted the following information to the MSP websites:
1. An ALERT delaying the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) Section 111 MSP reporting requirement for certain liability insurance (including self-insurance) settlements, judgments, awards, or other payments is posted posted at www.cms.gov/MandatoryInsRep on the Additional NGHP Alerts section page.
3. An ALERT related to Qualified Settlement Funds, under Section 468B of the Internal Revenue Code, is now posted at www.cms.gov/MandatoryInsRep/MMSEA 111 Alerts section page.
4. A policy memorandum, for liability insurance (including self-insurance), on the acceptance of the treating physician’s certification, and its impact on the issue of protecting Medicare’s interests with respect to future medicals is now posted at www.cms.gov/COBGeneralInformation.
In addition, on September 30, 2011, the Medicare Secondary Payer Recovery Contractor will implement a self-service information feature to its customer service line. This feature gives callers the ability to get the most up-to-date Demand/Conditional Payment amounts, and the dates that those letters were issued, without having to speak to a customer service representative. The self-service feature will be available for extended hours, and callers will have the option of requesting information on multiple cases during one phone call.
Beginning in October 2011, CMS will implement an option to pay a fixed percentage of certain physical trauma-based liability cases with settlement amounts of $5000 or less. Detailed information on this option will be posted as an ALERT, on or before October 21, 2011, on the MSPRC website at www.MSPRC.info.
Upcoming improvements to the MSP program, expected within the next 3-9 months, include the following:
The implementation of a MSPRC portal, where the beneficiary/representative can obtain information about Medicare’s claim payments, demand letters, etc., and input information related to a settlement, disputed claims, etc.
The implementation of an option that allows for an immediate payment to Medicare for future medical costs that are claimed/released/effectively released in a settlement.
The implementation of a process that provides Medicare’s conditional payment amount, prior to settlement in certain situations.
[ED. NOTE:]I will report next week how much of this has been covered at the New York State Bar Association’s CLE lecture being held Friday October 21, 2011 in Manhattan.[1n148-5308]
Still time for NYS Bar Assoc CLE Classes
October 13, 2011: It is not too late to register for the Workers’ Compensation Law Update – 2011 prepared by the New York State Bar Association and sponsored by the Torts, Insurance and Compensation Law Section and the Committee on Continuing Legal Education of the New York State Bar Association.
Details on the October 18 (Rochester) and October 21 (NYC) are noted below.
Medical Treatment Guidelines For CTS
October 4, 2011: Workers Compensation Board Chairman Robert Beloten announced that the proposed medical treatment guidelines for carpal tunnel syndrome (TS) Guidelines from Superintendent of Insurance James Wrynn they are now ready for review.
The Workers Compensation Board anticipates promulgating regulations to adopt the 20-page CTS Guidelines. Before doing so, however, the Board would like to receive specific feedback from stakeholders on the carpal tunnel syndrome guidelines to produce final proposed CTS Guidelines. All stakeholders, including medical providers, are encouraged to review the proposed guidelines and to submit any comments, with supporting medical literature, to the Board’s Medical Director’s Office. Please send your comments in electronic form to the Board at CTSGuidelines@wcb.state.ny.us on or before December 1, 2011.
The CTS guidelines have been done in accordance with the Workers’ Compensation Reform Legislation of 2007 and the former Governor’s letter of March 13, 2007, to develop quality standards for medical care of injured workers and that should encourage accelerated delivery of that care with an accompanying reduction in disputes and costs. The Guidelines were developed in cooperation with an Advisory Committee designated in the March 13th letter. The labor and business designees selected as advisors highly-qualified medical professionals to participate in the development process.
The process for developing medical treatment guidelines for CTS was similar to that employed for the earlier Guidelines, using the same medical and other professionals that participated in developing the earlier guidelines.
The working group considered three state-developed guidelines, a guideline developed in the private sector and used by other states, and a guideline from the American College of Occupational and Environmental Medicine (ACOEM). The state guidelines of Colorado and Washington were selected for development of the NYS guidelines. Various parts of the two guidelines were selected and combined into a single NYS guideline. The medical professionals recognize that medical science and practice may change over time and that medical opinions may differ on various subjects. The guidelines should keep pace with these changes.
The working group also recommends that all medical care consistent with the NYS CTS Medical Treatment Guidelines costing more than one thousand dollars be included on the pre-authorized procedures list, except for the three instances in these CTS Guidelines that specifically provide otherwise. All these details can be found in the Guidelines.
October 6, 2011: The statistics published two weeks ago under the story The Board’s Not Working, were the basis of a story by Michael Whiteley, Eastern Bureau Chief of www.workcompcentral.com titled “ Former Workers Compensation Board Member Says SWCB’s Handling of Appeals Slowing.”
Whiteley reported that the troubling trend indicated by the above statistics was supported by Robert Grey, a claimant’s attorney and chairman of the New York Workers’ Compensation Alliance, who stated, “Under the old system, the case was either closed or it was continued. What this means is that the board is closing cases it shouldn’t be closing. This is a philosophical shift from the board being motivated to ensure people get the treatment they’re entitled to.”
Grey said the Workers Compensation Board is closing some cases by declaring them as requiring no further action (NFA). For example, he said, cases are closed once a judge approves surgery for a worker who probably will need to reopen the claim later to establish future medical benefits and lost wages.
John Sciortino, president of the Injured Workers’ Bar Association, said the number of reopened cases will grow even more because of the state’s new medical treatment guidelines, which WCB implemented last Dec. 1. Both carriers and workers are seeking to reopen cases to get rulings from judges on disputes over limits to chiropractic treatment and other services in cases predating the guidelines, which include all injuries regardless of the date of occurrence. “What we’re seeing is that cases that have been closed are now being reopened in what in my experience is an unheard of pace,” Sciortino said. “We’re seeing a lot of closed cases that used to sit in closed filing cabinets being dusted off.”
The Board’s response to the points raised by Grey and myself was in keeping with its standard practice: “WCB spokesman Brian Keegan did not return a call for comment on Wednesday.”
The full text of the article is attached.[10146-5305]
New CLE Courses Available
October 7, 2011: Belatedly, The Insider is posting information on the last two CLE classes for its Workers’ Compensation Law Update – 2011 prepared by the New York State Bar Association and sponsored by the Torts, Insurance and Compensation Law Section and the Committee on Continuing Legal Education of the New York State Bar Association.
In addition to receiving 7.0 credit hours in New York, this program has been approved for MCLE credit by the State Bar of California and the Pennsylvania Continuing Legal Education Board for 5.0 credit hours of substantive law and 1.0 credit hour of ethics.
The program’s last two dates are set for Rochester October 18 and New York City October 21. Full details and ‘sign-up’ information are in the attached brochure from the NYSBA.
Among the many items are on the agenda are:
Basic issues encountered in all cases
Navigating the sea of forms and information to be produced by claimants and and employers
Understanding and applying the new Medical Treatment Guidelines
Negotiating settlement of claims, including Medicare Setaside Agreements
Compensation liens: the interplay of Workers’ Compensation, No-Fault and Personal Injury practice
Ethical issues faced in workers’ compensation cases
September 8, 2011: I am pleased to report that Carl Copps, former head of the Office of Appeals/Review Bureau at the NYS Workers Compensation Board, has recently become Staff Attorney at the New York State Bar Association in the Continuing Legal Education (“CLE”) Dept.
His new position at the Bar Association involves coordinating seminars on multiple topics to be presented statewide. Fittingly, the first program he is coordinating is entitled “Workers’ Compensation Law Update-2011.” The program will be given at 6 locations across the state beginning September 27th in Melville and concluding October 21st in NYC. He will be one of the speakers at the October 7th presentation in Albany, discussing Third Party Actions
From 2008 to 2011 he was the Director of the Waiver Agreement Management Office (WAMO) at the Workers Compensation Board. In 1988,just prior to the move of the Board’s executive and state-wide administrative offices from Brooklyn to Albany, he recruited, trained and supervised a staff of 70 in creating the Office of Appeals. Staff included over 40 attorneys serving as law clerks to the Commissioners, reducing the pending case count from approximately 13,000 to just over 4,000 cases; thereby reducing time between submission of appeal to resolution from 14 months to 4.5 months.
Prior to joining the Board in 1988, he was at the State Insurance Fund which he joined after earning his JD from the Albany Law School in 1980.
He stated, “It was an honor and privilege to have worked for NYS for those 31 years. My years in the Board’s Office of Appeals were most satisfying, as I, along with a dedicated staff and the strong leadership of Chairman Robert Snashall, was presented with the opportunity to truly make an impact on the adjudication of WC claims. Dealing with the cases arising from the tragedy of 9/11/01 may have been our finest hour, though it goes without saying that we all wish that the events of that day had never occurred.”
His departure from the Board ends 31 years of public service all in the Worker’s Compensation field. As he explains it, “my involvement with WC actually dated back to 1958, when my father was nearly killed as the result of an industrial accident. He was actually given last rites, but he survived. Moreover, he exceeded his doctors’ expectations and resumed walking in a relatively short time; and he was able to return to work and worked continuously until his retirement at age 65. His WC benefits helped keep our family afloat following his injury and his third party recovery was the nest egg for college educations for my brother and me. Thus, I always considered myself to be a “return on investment” for the Board. I leave it to others to decide whether the Board “invested” wisely.”
Having worked with Carl during my entire tenure at the Workers Compensation Board, I can say that not only did the Board “invest’ wisely, but once again this year it has lost an important member of its executive staff.[19146-5303]
New WC Med Rules Compromises Claimants’ Health
September 1, 2011: According to Glenn Bain from the Albany Bureau of the NY Daily News, the recent change in the medical guidelines puts the health of injured workers at jeopardy.
Bain writes that “New treatment guidelines quietly enacted by the Workers Compensation Board late last year limit coverage to therapies that yield ‘functional improvement’ in patients - leaving out people with chronic pain conditions, say labor leaders and care givers.”
The push to publicize this issue comes from the New York State Chiropractic Association’s President Bruce Silber who stated “They basically tried to throw out all injured workers with chronic conditions,” a position agreed to by Robert Grey, a lawyer who specializes in workers’ compensation cases who told Bain, “The agency now views itself as the protector of insurers and employers. Clearly, someone thinks cutting off medical treatment will save money for employers and insurance companies.”
In defense of the Workers Compensation Board’s position, Board spokesman Brian Keegan replied, “In the past, there was no objective and consistent standard for determining whether the care was effective, which can lead to potential fraud, delay and mismanagement of the system.” He noted that people denied coverage can appeal for a variance so long as they can show “objective evidence that a treatment medically benefits their patient.” Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board.
In order to push its lobbying efforts the Chiropractic Association has a form on its website and, presumably available at the offices of all its members, a WORKERS COMPENSATION COMPLAINT FORM.
Legislation that would have stopped the Workers Compensation Board from applying its new guidelines retroactively was approved by the Assembly this spring but stalled in the GOP-controlled Senate. Upstate Republican Sen. George Maziarz, the bill’s sponsor, said he’s pressing to have the Senate take up the measure at a yet-to-be-called session this fall - or in January. “People are being denied care that is inexpensive and that I think helps them,” Maziarz said.[19141-5302]
NYS Injured Workers
High on Narcotics Usage
September 1, 2011: According to a new study, Interstate Variation in Use of Narcotics, by the Workers Compensation Research Institute (WCRI), New York State is among those ranked highest in what appears to be the over reliance on narcotics prescriptions.
The report states that many physicians who prescribed narcotics to injured workers were not using the recommended tools to monitor use, abuse, and diversion as recommended by medical treatment guidelines.
WCRI’s study also identified certain states where patients who began treatment with narcotics were more likely to end up using narcotics on a longer-term basis—California, Louisiana, Massachusetts, New York, North Carolina, Pennsylvania, and Texas. For example, in Louisiana 1 out of 6 injured workers who were given narcotics initially still received 3 or more narcotics prescriptions 6 months after the injury. In the typical state, the figure was 1 out of 20. The study examined interstate differences in the use of narcotics, based on nonsurgical workers’ compensation claims that had more than seven days of lost time and received prescription pain medications, to help state officials and system stakeholders better target their efforts to address issues related to the use of narcotics. The 17 states included in this study are: California, Florida, Illinois, Indiana, Iowa, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, North Carolina, Pennsylvania, Tennessee, Texas, and Wisconsin.
WCRI is based in Cambridge, MA and is a nonpartisan, not-for-profit membership organization supported in its public policy research by employers, insurers, insurance regulators and state regulatory agencies as well as several state labor organizations. The report is available by PDF for $75 to non-members.[19141-5301]
Rating Board Increases
WC Rates 9.1%
September 1, 2011: New York State Insurance Superintendent James J. Wrynn announced an average 9.1% increase in the workers compensation loss-cost rate, to take effect on October 1.
The New York Insurance Compensation Rating Board had initially proposed a 10.4% loss-cost increase in May, but reduced it to the amount approved by the superintendent. The superintendent cited several factors including increased benefits and medical fees in his order calling for the increase.
To justify these increases, supporting documentswere issued on two dates (attached as one document):
July 27, 2011
Explanatory Memorandum
Percentage Loss Cost Change by Classification
August 4, 2011
Table I – Revised Expected Loss Rates and D-Ratios for each employment classification
Table II – Revised Weighting (W) values
Table III – Revised Ballast (B) values
Since October 2000, New York state’s workers compensation insurance rates have decreased an average of 10%, according to the New York State Insurance Department.[19141-5300]
Public Hearings set for NYCIRB 10.4% Rate Increase
May 26, 2010: The New York State Insurance Department will hold a public hearing on Thursday, June 23, 2011 to consider the application of the New York Compensation Insurance Rating Board (NYCIRB) for a workers’ compensation loss cost increase of 10.4 percent which is used by workers’ compensation insurance companies in setting rates, which would be effective October 1, 2011.
The rate application, submitted by NYCIRB, was based on statistics sent by all workers’ compensation insurers to the NYCIRB, which compiles and evaluates data and proposes loss cost changes that are subject to the Insurance Department’s prior approval.
Information about the hearing and the complete loss cost increase application is available at the Department’s website, www.ins.state.ny.us. Testimony can be scheduled and written testimony submitted through the website. Written comments for the hearing record also may be submitted to Workers’ Compensation Loss Cost 2011 Hearings, Public Affairs Bureau, New York State Insurance Department, 25 Beaver Street, New York, NY 10004, or e-mailed to PublicHearingsComments@ins.state.ny.us with the subject line “WORKERS’ COMPENSATION LOSS COST 2011 HEARINGS.”
The hearing will begin at 11 a.m. in the Neil Levin Hearing Room (Room 510) at the Manhattan offices of the Insurance Department, 25 Beaver Street.[15127-5299]
Board Loses Two Key Staff
May 19, 2011: According to Workers Compensation Board sources in Albany, Jean Kneiss is leaving the Workers Compensation Board to become a judge in the New York State court system. Kneiss has served the Board in a number of capacities as a member of the executive staff in Albany, including, during my term at the Board, as the director of the law judges.
A great loss for those of us who have worked in Brooklyn is the pending departure of Law Judge Jack Russak who is becoming a judge in the New Jersey Court System. New Jersey’s gain is the Board’s loss. Judge Russak was,in my opinion, one of the best law judges with whom I have ever worked, whose counsel helped contribute to my own contributions to the Board.[15126-5298]
Proposed NY Senate Laws Protect Workers, & Stenographers, Too
May 3, 2011: There are a number of bills that have been presented to the NYS Senate Standing Committee on Labor: saving stenographers, submission of IME reports, medical treatment guidelines, unfair labor practices, and medical reimbursement rates.
Senator Diane Savino (D, IP, WF) sponsored S4112 which is an act to amend the workers’ compensation law, in relation to requiring hearings and pre-hearing conferences to be recorded by a stenographer in the employ of the wWorkers Compensation Board, referred to the Finance Committee.
Senator Savino also sponsored S2138 which is an act to amend the workers’ compensation law, in relation to eliminating the requirement that copies of the report of independent medical examination must be submitted to all parties in the same manner.
Senator George Marziarz (R) sponsored S3741, an act to amend the workers’ compensation law, in relation to application of guidelines for medical treatment for injured workers, also referred to the Finance Committee.
Senator Martin Golden (R,C) sponsored S4016, an act to amend the labor law, in relation to powers of the public employment relations board to investigate unfair labor practices.
And Senator Joseph Robach (R,C,IP) sponsored S4559A, an act to amend the workers’ compensation law, in relation to the rates of payment for the treatment and care of injured employees; and providing for the repeal of such provisions upon expiration thereof, referred to the Rules Committee.[15124-5297]
AWW Maximum for Coming Year
May 3, 2011: FINALLY, the NYS Workers Compensation Board published the maximum weekly nenefor for the coming year. The $1,159.44 figure has been public for months and everyone knows that the maximum rate is 2/3’s of that amount: $772.96. Perhaps it has taken the Board all this time to do the arithmetic. The formal announcement:
Beginning July 1, 2010, the maximum weekly benefit rate for workers’ compensation is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor. Workers’ Compensation Law §§ 2(16); 15(6). On March 31, 2011, the Department of Labor reported to the Superintendent of Insurance that the New York State average weekly wage for 2010 was $1,159.44. Accordingly, for workers’ compensation claims with dates of accident or dates of disablement during the period from July 1, 2011 through June 30, 2012, the maximum weekly benefit rate will be $772.96.[15123-5296]
Maximum AWW for 07/01/2011 - 06/30/2012
April 14, 2011: The information necessary for the Workers Compensation Board to post the maximum AWW for the year running from July1, 2011 to June 30, 2012 has a March 31, 2011 deadline for its submission by the Department of Labor to the Superintendent of Insurance, which was done just a week ago. The formal notice should be forthcoming from the WCB no later than the end of next week.[14121-5295]
Law Suit vs Queens Soc Sec Law Judges
New York Times writer Sam Dolnick reports that The Queens office that hears appeals of Social Security disability cases is well known to lawyers, judges and many other New Yorkers as an inhospitable place to seek benefits. This office which had the 10th highest rejection rate in the U.S. has been the subject of a class-action lawsuit filed on Tuesday in Federal District Court in Brooklyn, aimed at five administrative law judges: David Z. Nisnewitz, Michael D. Cofresi, Seymour Fier, Marilyn P. Hoppenfeld and Hazel C. Strauss.
The law suit claims that these judges are “not just difficult, but also biased against the applicants — many of whom are poor or immigrants —and have systematically denied benefits to the disabled by making legal and factual errors.” Well-know workers compensation attorney, Troy G. Rosasco, who also handles disability cases but is not involved in the case stated, “Queens is not just far and away the worst: It would be the Social Security system’s Superfund site.”
Together, the five have rejected an average of 63 percent of the cases they have heard in the fiscal year that began in September, compared with a national average of 36 percent, according to an analysis of data by The New York Times.
For a detailed list, go to my October 7, 2010 posting listing the statistics for the Social Security Law Judges in New York.
[ED. NOTE:]If publishing this information is good enough for the Federal Government, why does not the NYS WCB also publish similar statistics on its law judges? And why not internally on the writers in the Administrative Review Bureau where I kept such stats and had some writers with a 25% reject rate for their proposed Memorandums of Decisions. Yes I know, while the Federal Government does pay attention to the Sunshine laws, the only ‘shine’ we get from the WCB is from the ‘moon’.[14121-5294]
UPDATE New Law on GSIT’s Passed
April 1, 2011 (UPDATE) the NYS Legislature has just passed Senate Bill S2807 which addresses the the state’s group self insured trust workers’ compensation system, which has amassed about $800 million in unfunded liabilities. The language is in Part G of a 25-page budget bill, Part G requiring 11 pages; the actual text of Part G is attached.
Art Wilcox, a consultant on workers’ comp issues for the New York State AFL-CIO, has stated that the new law will give an incentive to these groups, many of which are underfunded, to alleviate their liabilities through loss portfolio transfers. The legislation, Wilcox says, would put in recess for three years all assessments the group trusts would be mandated to pay over that time period. Group trusts that are able to become fully funded in those three years or eliminate their liabilities through loss portfolio transfers would be exempt from paying back those assessments. Group trusts that cannot transfer those liabilities would have to pay back the assessments to the state. “So there is a real incentive for folks to do a loss portfolio transfer,” Wilcox says.[14119-5293]
New Law on GSIT’s Passed
April 1, 2011 Apparently a bill which addresses the the state’s group self insured trust workers’ compensation system, which has amassed about $800 million in unfunded liabilities has been passed by the State Legislature late yesterday.
Art Wilcox, a consultant on workers’ comp issues for the New York State AFL-CIO, has stated that the new law will give an incentive to these groups, many of which are underfunded, to alleviate their liabilities through loss portfolio transfers. The legislation, Wilcox says, would put in recess for three years all assessments the group trusts would be mandated to pay over that time period. Group trusts that are able to become fully funded in those three years or eliminate their liabilities through loss portfolio transfers would be exempt from paying back those assessments. Group trusts that cannot transfer those liabilities would have to pay back the assessments to the state. “So there is a real incentive for folks to do a loss portfolio transfer,” Wilcox says.
March 4, 2011: This week a new Workers Compensation Board rule, an Appellate Court decision, and an editorial should raise the caution flag to those practicing workers compensation law, or for that matter involved in any legal, business, or financial activity.
In an editorial dated February 23, 2011, Bob Wilson, President & CEO of WorkersCompensation.com, LLC, “seriously question[s] the wisdom” of the new rules regarding the use of e-mails to submit documents to the WCB, under the recently published guides.
What makes his warning apropos is the recent Appellate Court decision in the Matter of Parnes v Parnes (Appellate Court, Third Department January 13, 2011) in which the wife supplied her attorney with confidential e-mails she ‘acquired’ from her husband’s e-mail account between him and his divorce attorney, Van Ryan. The husband moved to, inter alia, preclude his wife from using any privileged communications between defendant and his attorney Van Ryn, strike the portions of the amended complaint based on privileged information, and disqualify plaintiff’s counsel. The Supreme Court found that the e-mails between Van Ryn and defendant were protected by the attorney-client privilege, prohibited plaintiff from using those documents or any information gleaned from them, struck the offending paragraphs of the amended complaint, quashed the subpoena issued to Van Ryn and disqualified plaintiff’s counsel. But the Appellate Court ruled that, “[c]onsidering all of the circumstances here, we find that Supreme Court abused its discretion in imposing the harsh sanction of disqualification of plaintiff’s counsel in addition to suppressing the confidential e-mails.” Of course, there are more details and explanation in this five-page decision.
Wilson writes that, “Standard email [currently envisioned by the Board] is by no means a secure method to transmit critical, sometimes highly sensitive data. Unless an email transmission is secured with acceptable encryption methods, it is potentially accessible to prying eyes with less than honorable intent. Encrypted email is considered safe, but only works if both parties, sender and receiver, have access to the same ‘key’ to encode and authenticate messages. The New York WCB announcement makes no such mention of encryption, and clearly it is not set up to be so protected.” He then adds, “The announcement mentions forms that do not contain the most critical elements necessary for identity thieves, such as birth date and social security numbers. However, the program allows for all documents related to a claim. These documents could include court documents, medical records and more, any of which could contain critical, personal data; the transmission of which, in my view, exposes said claimant to unacceptable risk.”
It is not just a question of medical reports but sending e-mails can result in embarrassing disclosures in a WCB case, such as internal notes about financial issues and legal strategies.
So while the Appellate Court in Parnes v Parnes stated that such documents and the information therein can not be used in a trial/hearing, it would be impossible for someone who has read such a document to erase that information from their minds. One initially obvious solution would be to recuse the particular attorney from handling the case. And while this may well work for a carrier’s or self-insured’s attorney, it could wreck havoc on a claimant’s attorney who often has a personal relationship with their client.
This is another case of when”The devil is in the details.”[13119-5292]
>Insurance Company Fines: Whose money is it?
December 30, 2010: New York Attorney General Andrew M. Cuomo said four insurers agreed to pay almost $120 million to settle claims they collected too much in workers compensation fees.
The Workers’ Compensation Board charges annual fees to workers’ compensation insurers, and insurers cover these costs by collecting a surcharge on premiums from policyholders. The Board changed its formula for calculating surcharges in 2000, Mr. Cuomo said, with the result that some insurers collected too little in surcharges from their policyholders, while others–including ACE, Zurich, Pennsylvania Manufacturers, and CNA–collected too much.
Although laws were changed to prevent the overcharging, a change in the law in 2009 and 2010 allowed the state to recover the excess funds that the insurers had collected.
[ED. NOTE: So why does the State get to keep this $120 million? If a class action suit for prescription drugs that I used to take just settled and could find and then pay me $15.65, me out of hundreds of thousands of users of that drug, why can’t these insurers be told they must reimburse the policy holders that $120 million. As for those who say, “What’s $20 in the overall scheme of things?”, please note my POB to the left - I will take cash or check for that $20. [0D1065291]
Additional Definition of Employee: Exotic Dancers
December 30, 2010: In a case that may have further implication for the issue of independent contractor, in a case heard before the United States District Court for the Southern District of New York, it was determined that exotic dancers are employees of their clubs where they work, not independent contractors. Although this case involved the issue of wagers, it is undoubtedly the case that an individual deemed to be an employee for wage purposes will also be deemed to be an employee in the case of a workers compensation/injury claim.
In the Matter of Hart v. Rick’s Cabaret Int’l Inc., 09 Civ. 3043, Judge John G. Koeltl has certified a class complaining of several violations of state and federal law committed by Rick’s Cabaret International Inc., the parent company of an adult club on West 33rd Street, and rejected the parent company’s claim that it was not an employer, and thus the dancers were not employees entitled to the laws’ protection.
The class certification could cover as many as 1,700 exotic dancers under New York Labor Laws §190 et seq., §650 et seq. and the federal Fair Labor Standards Act (FLSA). This decision mirrors that of Morse and Bennington v M E R Corporation (Filed October 14, 2008 in the Indiana Southern District Court).
While there are basic indicia that should be used in determining if an injured worker is an employee or an independent contractor,, having specific indicia list by type of business will help insure a consistency in decision making, a consistency referenced by the New York State Appellate Court, Third Department in its decision this past week in the Matter of Cardone v Interstate Drywall. [0D106-5290]
Fraud Investigator’s a Fraud
December 21, 2010: This week, it was announced that two years ago, an investigator for the Office of the Workers’ Compensation Board Fraud Inspector General had his employment terminated for knowingly fabricating entries in reports he filed with OFIG regarding investigations he had conducted.
According to a report issued by the state Inspector General’s office, OFIG investigator Brian Cody had admitted fabricating information in his investigative reports addressing allegations of fraud by employees, health care providers, and others
According to the story in the North Country Gazette, Cody had remarked to colleagues that in order to close cases, they should do what he does and “make up” information. Based upon that remark, OFIG reviewed a sample of 41 of Cody’s closed cases from the previous year, and memorialized its findings in a report dated Sept. 29, 2008. The review revealed that in eight cases Cody had manufactured information about his investigations in official reports. OFIG also determined that, in seven of the 41 cases, Cody had entered incorrect or misleading, though not materially false, information.
Workers’ Compensation Board Fraud Inspector General William Gurin stated, “Cases that Cody investigated and closed over the past several years are being examined by OFIG to determine whether or not they should be reopened and processed anew.”
This is no information in this article as to whether or not, in the past two years since Cody was terminated, any of the individuals found guilty of fraud have been contacted. Or for that matter whether any of those who did not commit fraud were told that the prosecution of their case was based, apparently, on fraudulent evidence.[0D106-5289]
Higher WC Med Rates =
High Auto Insurance Costs
November 24, 2010: As an interesting by-product of the Workers Compensation Board’s plans to increase medical fees for workers’ comp doctors, the Property Casualty Insurance Association of America stated that this could result in high car issuance rates for New Yorkers.
In a Nov. 8 letter to the New York State Workers Compensation Board, the association said the workers compensation fee schedule for medical, podiatry and chiropractic services is applicable to services rendered under the state’s no-fault car insurance system. As a result, proposed changes, such as a 30 percent increase in evaluation and management fees, as well as changes to the way chiropractic services are billed, would impact auto insurance rates. More details are included in their recent press release.[0N101-5288]
Workers’ Com A ‘Time Bomb’ For Insurers
November 18, 2010: According to an article in the Wall Street Journal, Edmund Kelly, Liberty Mutual’s chief executive, is quoted as call workers compensation insurance a “Time Bomb”that will become even more costly for insurers when inflation shoots up, perhaps a public forewarning that more CRM’s may not be far behind.>
Kelly complains that workers’ compensation coverage is already being sold at a loss, with a combined ratio of 119, Kelly said. Combined ratios are a measure of underwriting profit, and numbers over 100 indicate the company is paying more in claims that it is taking in via premiums. Insurers, until just the last few years, been making more than enough money on their investment to make up for the shortfall in revenue from premiums. But with the increase I medical expenses, well out pacing inflation, unless carriers start to increase their rates, there will be severe financial problems.[0N101-5287]
A History of CRM
November 14, 2010: Craig Wolf in a lengthy article in the Poughkeepsie Journal gives an indepth history of the failure of CRM, detailing the internal problems created when CRM management realized there was not enough money to pay their bills.
As previously noted in this website, CRM, now known as Majestic Capital Ltd., has announced a proposed settlement of a lawsuit by the state Workers’ Compensation Board and an investigation by the Attorney General’s Office that it values at $41 million.
The lawsuit filed by the Workers’ Compensation Board in December asserts the company routinely discounted too far the insurance premium rates it set for the eight self-insurance trusts that it managed on behalf of thousands of employers who used CRM to arrange workers’ compensation insurance, the kind that pays workers injured on the job. The board was seeking $472 million in damages to cover bills for the former CRM trusts it had taken over. The board claims CRM charged “inadequate member contribution rates” and that it recruited as members employers “with known poor loss histories and failed to maintain adequate reserves to cover such losses.” The suit claims CRM “failed to promptly investigate claims,” that CRM “engaged in dilatory tactics,” that it “failed to pay awards and installments of compensation to injured workers in a timely fashion” and that it “delayed claims proceedings and settlements.”[0N101-5286]
Legal Fee Meeting was #%#&!$@
November 11, 2010: I understand that the first meeting of the committee established by Chairman Beloten to review attorney fees was not particularly ‘successful’. In fact, one participant described it as a total ‘melt down’ and that, as of today’s date, the next meeting has not been scheduled. Perhaps this should await the installation of the new governor and his new choices to lead the Workers Compensation Board.
Does anyone know if the Department of Labor, for example, is planning meeting to discuss how much attorneys who practice before them will make?.[0N99-5285]
New Commissioner in Holding Pattern
November 12, 2010: It appears that in what may be one of this last acts as governor, Paterson is trying to appoint as a commissioner at the NYS Workers Compensation Board a Republican who is not only a lobbyist but a former counsel to Senator Joe Bruno, when Bruno headed the State Senate, as wella s having been the former Rensselaer County Republican chairman. Interestingly, Dudley was one of the lobbyist who worked for the long sought after raises for the Court’s judges, a raise the WCB’S commissioner have also sought for years. But whether Dudley or many of the other 143 nominees are confirmed is up in the air at this point. Even setting aside the disputed results of last week’s elections, there has been no indication of when the Senate may return to the Capitol between now and Jan. 1 — and whether they will take up the nominations if they do. Dudley graduated 40 years ago from the Albany Law School.[0N99-5284]
Florida Compliance Deadline
November 8, 2010: In what may soon impact in New York, Frances Ford writes that November 8, 2010 is the effective date for all Florida carriers, self insureds and TPA’s to comply with the Department of Education’s (DOE) administrative rules to begin electronic filling of all case management and rehabilitation provider invoices.
While the rule became effective 18 months ago, it still has some caught off guard. Some carriers are still struggling to establish internal processes. First, they have to designate someone in their company to be the contact person to retrieve notification of electronically filed invoices for case management and rehabilitation services. Then that individual must find a way to send it to the claim processor to pay the bill off the claim file and once payment is completed, they must complete the electronic filing process to the state. More confusing still are the dozens of independent case managers and vocational rehab specialists that know nothing about the process of how to enter a bill in the web portal. They will continue mailing in their bills but this could create a huge problem. Add to that the administrative burden for small businesses and independent providers to comply with the electronic filing rules and enter every service line by line into a web portal.
Many question the need for such an arduous process for the DOE to collect data electronically that puts great economic stress on small independent case managers and vocational professionals. Yet, the obvious reason is to get on the penalty assessment bandwagon.”
The NYS Workers Compensation Board should take a close look at the impact this is having are small medical providers and other small stakeholders as Board considers the new computerized system it envisions for the Board and its stakeholders over the next few years.[0N99-5283]
The Rise and Fall of Second Injury Funds
November, 2010: In an interesting article in MoneyWatch.com, Robert K. Briscoe and Robert J. Meyer, actuaries with Milliman, write that he history of so-called second injury funds demonstrates, among other things, how unintended consequences can thwart even the best intentions of workers’ compensation policymakers.
The July 1, 2007, closure by New York state to new claims against its second injury fund , often referred to as the Special Disability Fund or the 15-8 Fund in reference to its section in the controlling statute, illustrates this phenomenon and highlights the financial and administrative issues common to most states looking to close their second injury funds.
The second injury fund story in New York should also capture the attention of public-policy decision-makers across the country, at least some of whom may face similar choices and outcomes down the road.
Each state that enacted a second injury fund created unique rules. One such rule was that the prior permanent physical impairment must also have “hindered” the claimant’s employment, a provision thought to be unique to New York. The expansion of the definition of first injuries to include soft-tissue medical problems, which are often neither obvious nor acknowledged by workers, made it difficult to meet another requirement of the law–that employers have knowledge of an employee’s first injuries. Inevitably, the ambiguity over what constituted “employer knowledge” gave rise to extensive litigation. However, one thing became clear. When employer knowledge is held to a high standard of proof, second injury funds have low claim-acceptance rates.
Such was the case in New York until 1987, when the state removed the requirement for employer knowledge of first injuries. Since then, the scope of the SDF has greatly expanded and with it, the number of claims submitted. From 1945 to 1987, the average annual number of claims submitted was less than 500. Since 1990, the SDF has averaged approximately 4,000 submitted claims annually. As of January 2007, there were 214,500 pending claims.
The article continues with its analysis of how changes in legislation and the interpretation of that legislation led to the need to end the second injury fund in New York[0N98-5282]
► The Insider’s look at the NYS Workers Compensation Board
April 19, 2012: The New York State Workers Compensation Board was not a party f interest in the one case decided by the Appellate Court this week, which involved a claimant whose claim for the amputation of his lower arm was accepted by the Board could not then sue his employer, their parent company, or the manufacturer of the equipment. The one case just accepted by the Court of Appeals considers whether an Alford plea in a fraud case in criminal court warrants an automatic finding of §114-a(1) at the Board. In this weeks NEWSWIRE I post a case in which an employee, injured while having sex “out of and in the course of employment” received workers comp.
And for those who participate in §32 settlements, my new 158-page book, Workers Compensation Section 32 Settlements: A Treasure or A Trap answers all the concerns that injured workers and their families have about these agreements. From explaining what is a ‘fair‘ settlement to why an attorney is a ‘must’ to chapters solely on Medicare, giving claimants a copy of this book (custom imprinted with your name) will convince them that they can feel comfortable working with you to close their claim. Table of contents, quantity pricing and custom imprinting are detailed on the Section 32 Book page.
These free weekly postings cover all Workers Compensation Board and workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Coonjbeharry v Altone Elec April 19, 2012 NYS Appellate Division, Third Department §11: Jurisdiction3005…§ 11: Jurisdiction
AFFIRMED defendants’ motions for summary judgment dismissing the complaint. Plaintiff was seriously injured when, in employed by defendant New York Rubber (NYR), a wholly-owed subsidiary of defendant Permalife Products, he caught his arm in in an auger, resulting in the amputation of his lower right arm. Thereafter, plaintiff – designating Permalife as his employer– after receiving benefits under the Workers’ Comp Law, commenced this action for damages against Permalife, NYR, and Altone Electric alleging negligence, strict products liability and failure to warn. Permalife and NYR successfully moved for summary judgment on the ground that plaintiff’s claim was barred against his employers by the exclusive remedy provisions of the WCL §11). Altone also moved for and was granted summary judgment on the grounds that it did not owe plaintiff a duty of care and could not be held liable because it did not work on the machine that caused plaintiff’s injury. Prevailing party represented by: Matthew S. Lerner of counsel to Goldberg Segalla (Albany) for Altone Electric; Daisy Ford Paglia of counsel to Thuillez, Ford, Gold, Butler & Young (Albany) for Permalife Products; Leah Walker Casey of counsel to Pennock Law Firm (Clifton Park) for New York Rubber Recycling. 24174-7714]
PENDING CASES - Appellate Court 3rd Dept
April 19, 2012 - Thursday: None of the cases on last week’s ‘pending” at the Third in which the Board is a party of interest had decisions issued and the Court has yet to post new cases for May arguments.
04/17/12 Angelo v Occidental Chemical
04/20/12 Burris v Olcott
04/20/12 Connolly v Hubert’s Service
03/20/12 Forsyth V Staten Island DDSO
04/23/12 Francis v Jew Elry Box Corp
03/20/12 Hahn V Brylin Hospital
03/23/12 Kasic V Bethlehem Steel
04/19/12 Kirisits v Durez Plastics
04/19/12 McCorkle-Spaulding v Lowe’s
04/16/12 Pettit v Scipio Volunteer Fire
04/17/12 Prather v Amerada Hess
04/23/12 Roman Catholic Diocese v NYS WCB
04/24/12 Spinnato v General Electric
04/18/12 Stenson v NYS DOT
04/24/12 Weiner v Glenman Industrial
04/17/12 Wiess v Arcelor Mittal
04/23/12 Zhang v Tony’s Marble
PENDING CASES - Court of Appeals
April 19, 2012 - Thursday: the Court of Appeals has listed a new case they will be hearing which involves a Board hearing as it related to an Alford plea and WCL §114-a(1).
Howard v Stature Electric . Disqualification for false representation - collateral estoppel - whether claimant’s Alford plea to a charge of insurance fraud, which arose from evidence allegedly revealing that he was employed while collecting workers’ compensation benefits, is entitled to collateral estoppel effect with respect to the Board’s determination whether claimant violated WCL §114-a; App. Div. reversed decision of the Board, which determined that claimant violated Workers’ Compensation Law § 114-a, and remitted for reconsideration.[ED. NOTE:]On November 30, 2011, a Board panel affirmed the Law Judge’s decision that there was insufficient evidence to warrant a finding of §114-a(1).
Zamora v New York Neurologic Assoc. ▲Argued March 20, 2012▲- Attachment to the Labor Market: 79 AD3d 1471; 3rd Dept. App. Div. order of 12/23/10; Filed week of 01/28/11-02/03/11. On April 5, 2011, motions to dismiss the appeals, filed by the NYS WCB and by the NY Neurologic Assoc, were denied.
Weiner v NYC: 2nd Dept. App. Div. Order of 4/26/11; ▲Argued February 14, 2012▲. Municipal corporations - tort liability - whether NYC EMT injured in the line of duty on municipal property may maintain an action against his municipal employer under general municipal law § 205-a despite his eligibility for workers’ comp benefits - WCL §11. Supreme Court, Kings County denied defendants’ motion to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7) ; App. Div.reversed and granted defendants’ motion.
Schmidt v Falls Dodge, Inc. et al.: ▲Argued March 21, 2012 ▲Workers’ compensation - award - whether schedule loss of use award is subject to non-schedule awards in other workers’ comp cases where awards were made at the maximum statutory rate and cover the same periods - WCL §15(6).
► Prior Postings ◄
Dingman v Lake Luzerne April 12, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
REVERSED the Board’s ruling that claimant continued to suffer from a mild causally related disability and awarded him workers’ compensation benefits. The employer voluntarily paid workers cop Awarding continuing benefits at a moderate disability rate, the Law Judge, affirmed by a Board panel, denied the employer’s request to suspend payments pending development of the record with regard to claimant’s attachment to the labor market. The Court reversed the Board, writing that the C-4 form and narrative report of claimant’s orthopedic surgeon, the basis for the Board’s decision, contained inherent contradictions, thus these documents could not serve as a proper basis for the Board’s decision. The Court affirmed both the Board panel and the Law Judge in rejecting the carrier’s request to suspend payment pending claimant’s attachment to the labor market as this issue was not raised until the last hearing, thus giving the claimant no notice that he had to prepare a response. Prevailing party represented by: Danielle M. Barone of counsel to Lemire Johnson (Malta) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #021 9208 [24173-7713]
[ED. NOTE:]t was just over one year ago, in the Matter of DeFayette v Verizon, that the decision on the same issue was reversed for the same reason: ‘no reasoning’.
Fetter v Verizon April 12, 2012 NYS Appellate Division, Third Department Interlocutory Appeal «»7010…§ 23: Late/Interlocutory/Frivolous Appeal
DISMISSED employer’s appeal of a Board Panel decision to return the decision for further development of the issue after the Law Judge found no §120 discrimination. The Court stated that since the Board had determined that the Law Judge failed to render “a reasoned oral or written decision upon the contested points” as required by 12 NYCRR 300.5 (a), the cases was returned for further development of the record. The Court reasoned that “Inasmuch as the Board’s decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [24173-7712]
Nepomuceno v NYC April 5, 2012 NYS Appellate Division, First Department
§11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the Supreme Court, New York County stating that the Supreme Court was in error denying the defendant hospital’s motion for summary judgment in a case in which the plaintiff, a registered nurse employed by defendant, alleges that she was injured when she slipped on a piece of fruit that had fallen behind a fruit stand on the sidewalk abutting the hospital while on her way to start her morning shift. “[T]he availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law,” such that the matter must, in the first instance, be determined by the Workers’ Compensation Board, thus staying the matter pending resolution by the Workers’ Compensation Board. Prevailing party represented by: John J. Burnett of counsel to Scott Baron & Associates, P.C., Howard Beach for respondent. [24172-7709]
Guideone Specialty Mut v NYSIF JApril 3, 2012 NYS Appellate Division, Second Department §11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the King County Supreme Court’s denial of a motion to dismiss the Plaintiff’s complaint. The Appellate Court reaffirmed that defendant’s position that “The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court.” As to the timeliness of the defense, the Court added that, “Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers, a court’s lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time.” Prevailing party represented by: Elizabeth A. Fitzpatrick and Seth M. Weinberg of counsel to Lewis Johs Avallone Aviles (Melville) for appellant. [24172-7708]
► The Insider’s look at the NYS Workers Compensation Board
April 12, 2012: Although several new cases have been added to the April hearing calendar for the Third Department and its new Chief Justice (see below), the three rulings today were relatively insignificant, except of course to the parties involved in the cases: one reversal, one dismissal and one affirmance.
And for those who participate in §32 settlements, my new 158-page book, Workers Compensation Section 32 Settlements: A Treasure or A Trap answers all the concerns that injured workers and their families have about these agreements. From explaining what is a ‘fair‘ settlement to why an attorney is a ‘must’ to chapters solely on Medicare, giving claimants a copy of this book (custom imprinted with your name) will convince them that they can feel comfortable working with you to close their claim. Table of contents, quantity pricing and custom imprinting are detailed on the Section 32 Book page.
These free weekly postings cover all Workers Compensation Board and workers compensation related cases issued since 2008, not only by the Third Department but also the New York State Appellate Division’s First, Second, and Fourth Departments, the New York State Court of Appeals, various Supreme Courts throughout the State, and relevant out-of-state cases. To receive our weekly e-mail alerts or post a comment, contact TheInsider@InsideWorkersCompNY.com.
Dingman v Lake Luzerne April 12, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
REVERSED the Board’s ruling that claimant continued to suffer from a mild causally related disability and awarded him workers’ compensation benefits. The employer voluntarily paid workers cop Awarding continuing benefits at a moderate disability rate, the Law Judge, affirmed by a Board panel, denied the employer’s request to suspend payments pending development of the record with regard to claimant’s attachment to the labor market. The Court reversed the Board, writing that the C-4 form and narrative report of claimant’s orthopedic surgeon, the basis for the Board’s decision, contained inherent contradictions, thus these documents could not serve as a proper basis for the Board’s decision. The Court affirmed both the Board panel and the Law Judge in rejecting the carrier’s request to suspend payment pending claimant’s attachment to the labor market as this issue was not raised until the last hearing, thus giving the claimant no notice that he had to prepare a response. Prevailing party represented by: Danielle M. Barone of counsel to Lemire Johnson (Malta) for appellant. Commissioners of Record: Lower, Finnegan, Foster WCB #021 9208 [24173-7713]
[ED. NOTE:]t was just over one year ago, in the Matter of DeFayette v Verizon, that the decision on the same issue was reversed for the same reason: ‘no reasoning’.
Fetter v Verizon April 12, 2012 NYS Appellate Division, Third Department Interlocutory Appeal «»7010…§ 23: Late/Interlocutory/Frivolous Appeal
DISMISSED employer’s appeal of a Board Panel decision to return the decision for further development of the issue after the Law Judge found no §120 discrimination. The Court stated that since the Board had determined that the Law Judge failed to render “a reasoned oral or written decision upon the contested points” as required by 12 NYCRR 300.5 (a), the cases was returned for further development of the record. The Court reasoned that “Inasmuch as the Board’s decision is interlocutory in nature and neither disposes of all the substantive legal issues nor addresses a threshold legal issue that may be dispositive of the underlying claim, it is not the proper subject of an appeal.” Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. [24173-7712]
Nepomuceno v NYC April 5, 2012 NYS Appellate Division, First Department
§11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the Supreme Court, New York County stating that the Supreme Court was in error denying the defendant hospital’s motion for summary judgment in a case in which the plaintiff, a registered nurse employed by defendant, alleges that she was injured when she slipped on a piece of fruit that had fallen behind a fruit stand on the sidewalk abutting the hospital while on her way to start her morning shift. “[T]he availability of workmen’s compensation hinges upon the resolution of questions of fact or upon mixed questions of fact and law,” such that the matter must, in the first instance, be determined by the Workers’ Compensation Board, thus staying the matter pending resolution by the Workers’ Compensation Board. Prevailing party represented by: John J. Burnett of counsel to Scott Baron & Associates, P.C., Howard Beach for respondent. [24172-7709]
Guideone Specialty Mut v NYSIF JApril 3, 2012 NYS Appellate Division, Second Department §11: Jurisdiction «»3005…§ 11: Jurisdiction
REVERSED the King County Supreme Court’s denial of a motion to dismiss the Plaintiff’s complaint. The Appellate Court reaffirmed that defendant’s position that “The State Insurance Fund is a state agency, and, consequently, claims against it for money damages must be litigated in the Court of Claims, rather than in the Supreme Court.” As to the timeliness of the defense, the Court added that, “Although the plaintiffs correctly note that the appellant raised this issue for the first time in its reply papers, a court’s lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time.” Prevailing party represented by: Elizabeth A. Fitzpatrick and Seth M. Weinberg of counsel to Lewis Johs Avallone Aviles (Melville) for appellant. [24172-7708]
Bissell v Town of Amherst March 27, 2012 NYS Court of Appeal 3160…§ 29: 3rd Party future liens «»3160…§ 29: 3rd Party/MVA liens
The Court of Appeals concluded that when, the future medical benefits that a compensation carrier has been relieved of paying due to a claimant’s successful prosecution of a third-party action are “so speculative that it would be improper to estimate and assess litigation costs against [that] benefit to the carrier” the carrier need only pay its equitable share of attorneys’ fees and costs incurred in the future by a claimant once the claimant incurs and pays each medical expense.
In this case, after the Board concluded that Bissell’s injuries resulted in a permanent total disability and awarded him $400 a month for the duration of his life, he commenced a third-party action against the employer per WCL §29(1), ultimately winning $4,259,536 in damages over 32.7 years to cover future medical expenses. The carrier asserted a lien against the judgment for $219,760, representing $154,880 in past workers’ comp benefits and $64,880 for past medical expenses and acknowledged its Kelly obligation to contribute towards attorneys’ fees relative to the present value of the lost wages compensation benefit; however, the carrier refused Bissell’s request that it pay that share of attorneys’ fees relative to the recovery of the future medical expenses awarded him, offering to pay its share of the cost when Bissell actually incurred each medical expense.
In Bissell’s action per §29(1) to extinguish the carrier’s $219,760 lien against the third-party recovery and demand for $1,399,734 in “fresh money” representing the carrier’s c share of the cost of recovery of the future medical expenses, Bissell contended that the amount of future medical expenses cannot be deemed speculative since the benefit to the farrier can be “quantified by actuarial or other reliable means“. Therefore, the present value of the future medical expenses should be included as part of the Kelly calculation, entitling him to an immediate payment of the attorneys’ fees expended in obtaining that portion of the award.
In disagreeing with Bissell’s position, the Court wrote:
We held in Burns that “if a claimant does not receive benefits for death, total disability or schedule loss of use, the carrier’s future benefit cannot be quantified by actuarial or other means“. Similarly, future medical expenses cannot reliably be calculated . . . because it is impossible to reliably predict the future medical care the claimant will need, when the expenses from such care will accrue and how much it will cost when it does. While some of those items may reasonably be ascertained by a jury in a third-party action, there is a distinction between a non-speculative future medical expenses award made by a jury and the benefit that the carrier receives under the WCL as a by-product of that award.
In a third-party action, the injured employee will have only one opportunity to obtain a recovery for future medical expenses, and the jury assessing the medical evidence will have the chance to make but one award for such expenses, if any. By contrast, in the workers’ comp context, it is possible to wait and see what happens, and to require the carrier to pay its share of litigation costs when that share can be accurately calculated - i.e., when the actual medical expenses that the carrier has been relieved from paying are known. Moreover, whether the claimant is entitled to medical treatment pursuant to WCL is a determination that must be made by the Board, and such determination is not dependent upon the jury’s verdict in the third-party action.
The Court then ruled that the lower court has option to design a program, (e.g., by court order or stipulation of the parties, to “fashion a means of apportioning litigation costs as they accrue”. Prevailing party represented by: Hal Friedman [23171-7707]
[ED. NOTE:]Two weeks ago, I published an editorial from the Buffalo News which stated that the Carrier (NYSIF) refused to pay it fair share of the cost for the 3rd party settlement. Now that I have access to the Court’s decision and the underlying issue, it is obvious that the editors of the Buffalo News did not understand the legal issue.
Pelaez v Silverstone March 22, 2012 NYS Appellate Division, Third Department Employment: Who is
Procedure: Denial FBR «»3030…Employment: Who is or dual 7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling that (1) claimant was an employee of Silverbrook Farm and (2) denied Silverbrook’s request for reconsideration and/or full Board review. The issue was whether the claimant was an employee of Silverstone Corporation or Silverbrook Farms, a d/b/a/ for Silverstone and whether or not Silverbrook and Silverstone were sufficiently related to be covered by Silverstone’s WC policy; while Silverstone had WC coverage, Silverbrook Farm did not. Ultimately the Board found that all the pay slips, financial records, and other documents relating to the claimant were all in the name of Silverbrook Farm, determined that (1) for WC purposes Silverstone and Silverbrook were separate entities, (2) Silverbrook Farms was the uninsured employer, and that there was an employee/employer relationship between Silverbrook Farm and the claimant. An interesting fact pointed by the Court is that Silverstone and Silverbrook had separate legal representation. As to the Board denial of Full Board Review, the Court found that Silverbrook had given no indication why the additional evidence submitted in its request for review was not available at the time of the hearing. Prevailing party represented by: Patricia M. Barry of counsel for State Insurance Fund and another respondents. Commissioners of Record: Ferrara, Foster, Libous WCB #5080 1648 [23170-7706]
[ED. NOTE:]It is interesting to note that the Full Board review decision was issued March 19, 2011, just over ONE YEAR after the underlying March 1, 2010 decision, thus taking the Board one year to complete a hearing, the same Board that imposes $1000 fines on carriers and claimant attorneys for taking too long to process their paper work. And perhaps this is the reason that the Board does not publish denials of FBR’s: they would be (not them, but anyone else) embarrassed by such long delays.
Woods v NYS Thruway Auth March 22, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR «»7050…Procedure: Denial FBR
AFFIRMED the Board’s ruling to deny claimant’s application for reconsideration and/or full Board review on the basis that “our review of the record reveals that the Board considered all of the evidence and issues before it and claimant did not seek to present newly discovered evidence or allege a material change in condition in support of his application for reconsideration and/or full Board review.” Prevailing party represented by: Rudolph Rosa DiSant of counsel to State Insurance Fund for New York State Thruway Authority and another, respondents. Commissioners of Record:Denials of request for Full Board Review are signed only by Vice-Chairman Libous - the Commissioners on the original panel are usually not informed of the request nor the denial. [23170-7705]
Inter-Community Mem Hosp v Hamilton March 16, 2012 NYS Appellate Division, Fourth Department Self-Insured Trusts «»3195…Self-Insured Trusts
The Court allowed a member of one of the many defunct Group Self-Insured Trusts (GSIT) to bring action against The Hamilton Wharton Group, Inc. (HWG) and Walter B. Taylor, HWG’s sole owner and controlling principal(collectively, HWG and Taylor), as program administrator and managing director of the trust for negligence, gross negligence, breach of contract, and breach of fiduciary duty and against the individual trustees for breach of contract. The defendants defense of a possible ‘time bar’, since the plaintiff dropped out of the pans many years earlier, was dismissed. The Court ruled that “Although plaintiffs withdrew from active participation in the trust in 2001, they continued to have claims with the trust, and they continued to be jointly and severally liable for the deficits of the trust. Thus, the obligations of the parties as set forth in the operative trust documents continued beyond the period of plaintiffs’ active membership. . . . The plaintiff’s causes of action may contemplate as a component of damages the pro rata deficit assessments against plaintiffs. Damages are an essential element of a breach of contract cause of action and, here, plaintiffs could not allege damages for the pro rata deficit assessments until those assessments were levied against them by the Workers’ Compensation Board.” Prevailing party represented by: Joseph E. Zdarsky of Counsel to Zdarsky, Sawicki & Agostinelli (Buffalo) for Inter-Community Mem Hosp., et al [23170-7704]
[ED. NOTE:] The repercussions of the Board’s failure to supervise these trusts continues to reverberate throughout the legal system and its potential impact on every participant in the trust program .. except that is the Board’s employees who were supposed to be in charge of the program.
Runge v National Baseball March 15, 2012 NYS Appellate Division, Third Department §123 Stale Claims «»3178…§123 Stale Claims
AFFIRMED the Board’s ruling that Workers’ Compensation Law §123 does not bar further proceedings regarding the claim, for uncontroverted 1992 and 1997 injuries, which dealt with medical issues and bills, as it appears that no compensation was ever paid. At that time, the Board did not reach the merits of the claim and closed the case “without prejudice until [a] proper medical report is filed.” Having paid medical bills without dispute through 2003, the employer then disputed certain medical bills, seeking reimbursement from the Special Fund for Reopened Cases (Fund) per WCL §25-a, it raised the issue that the claim was barred pursuant to Workers’ Compensation Law § 123. Although a Law Judge withheld decision pending claimant’s submission certain documents, no further action was taken until 2009, when the employer again raised §123 after claimant submitted medical evidence of his injury. The Law Judge found that §123 was inapplicable. The key issue stated by the Court, was “no claim for compensation . . . that has been otherwise disposed of without an award after the parties in interest have been given . . . [an] opportunity to be heard and for which no determination was made on the merits, shall be reopened after a lapse of seven years from the date of the accident. . . .As a factual determination for the Board to make, whether such cases fall within the ambit of this statute depends on whether they were truly closed, that is, if further proceedings, such as the submission of additional medical evidence, were contemplated by the Board.” Essentially, since the Law Judge, finding insufficient medical evidence in the record to make a determination, concluded that no further action was planned until such evidence was presented. Since the submission of additional medical evidence was contemplated in 1992 and 2005, the Court agreed with the Board that the case was not truly closed. Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Bell WCB #0923 3492 [23169-7703]
►This is the first opinion issued by the Appellate Court on this issue in several years.
Rodriguez v City of New York March 2, 2012 NYS Supreme Court, New York County
This following text is included on this page as the legal concept of ‘timeliness’, unlike the current Board’s interpretation, does have a clearly defined meaning. In this case, the delay was occasioned by the plaintiff’s failure to find the name of the employer until after the time limit for filing. The Court, quoting an earlier decision, wrote:
“[Llaw office failure, whether premised on an inadvertent clerical mishap or on an error in ascertaining the correct party to sue,” does not constitute a reasonable excuse for failing to file timely a notice of claim. (Quinn v Manhattan & Bronx Surface Tr. Operating Auth., 273 AD2d 144 [ 1 st Dept 20001).
Canfora v Goldman Sachs March 8, 2012 NYS Appellate Division, Third Department §25-a: Reimbursement Period «»3130…§ 25-a: Reimbursement Period
REVERSED the Workers Compensation Board’s ruling, which in turn reversed the Law Judge, that transferred retroactive liability to the Special Fund for Reopened Cases (Fund) per WCL §25-a. On May 29, 2008, the carrier requested that liability for a 2001 injury be transferred to the Fund per §25-a. Ultimately, the Board transferred liability to the Fund effective retroactive to May 30, 2006, which is two years prior to the date of the carrier’s application, but within seven years of the date of injury. Here, it is uncontested that the carrier’s application was filed more than seven years after the date of injury and three years from the last payment of compensation. The sole issue on appeal is the proper date for liability to be transferred to the Special Fund. The Board transferred liability retroactive to May 30, 2006, which was two years prior to the date the carrier filed its application. The Special Fund had argued that this is precluded by §25-a, inasmuch as May 30, 2006 falls within seven years of the date of the underlying injury. The Board rejected this argument, concluding that once the statutory time limits regarding the date of injury and last payment of compensation have been met, §25-a does not preclude a transfer of liability retroactive to a time period within seven years of the underlying injury.
[ED. NOTE:]The Board panel in its decision wrote:
The Fund argues that it can not be held responsible for awards prior to May 3, 2008 because awards cannot be directed against the Fund within seven years of the date of accident. However, the statute does not indicate this; rather, §26-a only permits the transfer of liability once the timeframe of seven years after the date of accident and three years after the last payment of compensation has been satisfied. As noted above, once liability has been transferred to the Fund per §25-a, awards can be retroactively directed against it beginning two years prior to the date of the carrier’s application. In this matter, the carrier filed its application for §25-a relief on May 30, 2008. Accordingly, the Fund is liable for the claim beginning on May 30, 2006.]
In ruling against the Board, the Court pointed out, “It is well settled that a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious” The Board has previously determined that, although the effective date of liability may be made retroactive up to two years from the date of the application to reopen, “said look-back period remains limited by the provisions of Workers’ Compensation Law [§ ] 25-a, which requires that both the [seven]-year and [three]-year periods set forth therein have expired before [the] Special Fund[] may properly assume liability on the claim“. Consequently, the Board determined that liability may not be transferred until “the first date, within the look-back period, where both the [seven]-year and [three]-year periods had expired.” Inasmuch as the Board has not, in the instant matter, provided a rational explanation for departing from its own precedent, the decision must be reversed. Apparently the Law Judge who made the underlying decision and was reversed by the Board panel actually either knew the law or knew how to research such a relatively simple issue. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0013 9089 [23168-7702]
Wheeler v Bloomingdales March 1, 2012 NYS Appellate Division, Third Department §15(8) Reimbursement Special Funds «»3110…§ 15(8) Reimbursement Special Fund
AFFIRMED the Workers Compensation Board’s ruling that the workers’ comp carrier was entitled to reimbursement from the Special Disability Fund (Fund) for deficiency compensation payments subject to certain restrictions. After claimant’s 1992 claim was established, the carrier filed a notice of claim for §15(8)(d) reimbursement from the Fund but liability of the Fund was not established at that time. With the consent of the carrier, claimant subsequently settled a personal injury action in which the employer had been impleaded as a third-party defendant. Liability of the Fund pursuant to §15(8)(d) was established approximately one year later. On May 11, 2001 [ten years to the day before the decision being appealed], the Board ruled that, when the carrier consented to the settlement, it had failed to reserve its right to receive credit for deficiency compensation payments against claimant’s net proceeds and, thus, per §29(4) such credit was waived.
In 2009, the carrier alleged that the Fund was refusing to reimburse it despite the prior finding of the Fund’s liability. The Workers Compensation Board found that, because the Fund’s liability had not been determined at the time of the settlement, the carrier was not required to obtain the Fund’s consent to it. As a result, the Board further found that, although the Fund was not liable for reimbursement to the carrier for payments made beyond the statutory retention period, which were encompassed by the carrier’s lien waiver, the carrier was nonetheless entitled to reimbursement per §29(4) by the Fund for deficiency compensation payments.
The Court, in affirming and in rejecting the Funds reliance on the Matter of Bertone v La Cal Causle Corp. (26 NY2d 147, 149 [1970]) , wrote, “Because the issue of the Fund’s liability had not been established at the time the settlement was reached, we find no basis upon which to disturb the Board’s determination that the Fund’s consent to the settlement was not necessary. Finally, when it consented to claimant’s settlement, the carrier neglected to reserve its offset rights under §29(4). Thus, as the Board found, the carrier is not entitled to reimbursement from the Fund for payments that it made beyond the statutory retention period until the time when claimant’s proceeds from the settlement would have been exhausted.“ Prevailing party represented by: Sean J. McKinley of counsel to Vecchione, Vecchione & Connors (Garden City) for Bloomingdales and another, respondents. Commissioners of Record: Bargnesi, Higgins, Foster WCB #0926 9826 [23167-7701]
►This is the first case dealing with two aspects of reimbursement: before §29(4) consent and for periods thereafter. What is of interest is that the claimant’s appeal covered by another Workers Compensation Board panel’s May 11, 2001 decision was filed late but accepted by the Board panel under the often misused “interests of justice” by which it waives legal errors without giving any explanation as to what “interests of justice’ have been served, thereby perpetuating the generally accepted opinion that the Board acts capriciously and arbitrarily.
— — FEBRUARY 2012 — —
Eccles v Truck Lite February 23, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Workers Compensation Board’s decision, which reversed the Law Judge, that the claimant’s fall from a chair was in the course of employment and not due to a diabetically-induced hypoglycemic episode precipitating the fall and injury. The Law judge originally disallowed the claim but the Board, editorializing in its reversal, determined that “ the findings of the Law Judge were based in part on mischaracterizations of the medical evidence that were perpetuated by the carrier’s attorney during the deposition testimony of [claimant’s doctor].” it appears that, while the Law Judge based his decision on the results of a report of a blood test, the Board panel not only could not find the source of the crucial report but found that the few medical reports in the file supported a contrary conclusion: no hypoglycemic episode. The Court also denied the carrier’s claim of §114-a. [ED. NOTE:] §114-a was not referenced in the underlying Board panel decision.] Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Ferrara, Libous, Williams WCB #8071 2227 [22166-7700]
Cappellino v Baumann & Sons Bus February 9, 2012 NYS Court of Appeals Untimely Submissions/Defenses 7025…Untimely Submissions/Defenses
REVERSED the Appellate Court, 3rd Department’s affirmance of the Workers Compensation Board’s ruling that death was not casually related. The Court of Appeals determined that the Board improperly relied on medical reports which should have been precluded as evidence. The issue of the acceptability of the carrier’s medical report has been the subject of five Board Memorandum of Decisions in this case (11/06/2002, 12/12/2003, 07/30/2004, 09/12/2005, and 06/15/06), decisions which were based the Board’s interpretation of §137, NYCRR 300.2.3(1), §25(2)(b), and §25-3(c). Ultimately the Court of Appeals determined that the C-7 was filed late: the “Notice of Indexing Case” was mailed on January 11, 2002, and the carrier’s form C-7 “Notice That Right To Compensation Is Controverted” was not filed until February 11, 2002. Essentially, the Court of Appeals determined that, since the C-7 was filed late, the carrier should have been denied the opportunity to present any medical evidence, evidence that was used by the Board in its determination that the death was not causally related. The Court remanded the case back to the Board for it to consider only the medical evidence submitted by the claimant, the decedent’s widow.. Prevailing party represented by: Joel M. Gluck (NYC) for appellant. Commissioners of Record: Bargnesi, Henry, Libous WCB #4020 0210 [22164-7699]
►The decisions from both the Court of Appeals and the Appellate Court are available through the following link. And on February 23, 2012, a COMMENTARY has been posted on this case based on a comments from one of this site’s readers.
McLeod v Ground Handling February 9, 2012 NYS Appellate Division, Third Department Course of Employment: Location of MVA 1120…Course of Employment: Egress/Ingress
AFFIRMED the Workers Compensation Board’s ruling that claimant’s auto accident on the way to work did not arise out of and in the course of employment. Claimant was en route to her job at the Westchester Airport when she was injured in an automobile accident on Airport Access Road, a county road. Thereafter, a Board panel reversed a Law Judge who had ruled that claimant was traveling to work at the time of the accident and, therefore, her injuries arose out of and in the course of her employment. The Board panel determined that in order for a compensable accident and risk of employment to exist, “there must be (1) a special hazard at the particular off-premises point and (2) a close association of the access route with the premises, so far as going and coming are concerned” and that did not occur here. There was no indication that there was a special hazard at the point where the accident occurred. Although claimant used Airport Access Road to reach the employee parking lot, the record establishes that the road is a county road used by the general public to get to and from the airport and is not controlled by the employer. The Court agreed that “substantial evidence supports the Board’s finding that claimant did not sustain an injury arising out of and in the course of her employment.” Prevailing party represented by: Rudolph Rosa Disant of counsel to the NY State Insurance Fund for Ground Handling and another, respondents. Commissioners of Record: Bargnesi, Higgins, Bell WCB #017 5904 [22164-7698]
Searchfield v Lowes Home Ctrs February 9, 2012 NYS Appellate Division, Third Department § 28: time bar
Causal Relationship: PFME, et al 1210…§ 28: time bar; 1030…Causal Relationship: PFME, et al
AFFIRMED the Workers Compensation Board’s decision that (1) claimant’s application for workers’ compensation benefits was not time barred by §28 and (2) the additional site of injury was causally related. In October 2005, after injuring himself lifting a hot water heater, claimant was initially diagnosed with a “myofascial strain of legs [and] hips” and then after a second exam was diagnosed with hip/thigh sprain and sciatica. Later physician reports, however, focused on complaints of groin, lower back and leg pain. In 2006, a Law Judge established a work-related injury to claimant’s lower back and found prima facie medical evidence of groin strain. After claimant reported worsening symptoms, an MRI of claimant’s sacrum revealed signs of, among other things, “a possible paralabral or synovial cyst” and an orthopedic surgeon, in a January 2009 report, opined that claimant had, among other things, a right hip labral tear, also reporting claimant was originally misdiagnosed and had sustained injuries to his right hip. A WCLJ found that the claim was time-barred per §28 and, in any event, the condition was not causally related to the subject accident. Upon review, a Board panel reversed on both issues. The Board, in adding the hip as an original site of injury, determined that the claimant’s ongoing pain was actually the result of a labral tear in the right hip, an injury which is often misdiagnosed as a low back injury. The testimony of the claimant’s doctors confirmed that the claimant’s injury was consistent with the mechanism of the work injury of lifting a water tank.Given that “the resolution of conflicting medical opinions is within the province of the Board, particularly where the conflict concerns the issue of causation” the Court found substantial evidence supporting the Board’s ruling as to causation. Prevailing party represented by: Thomas N. Kaufmann of the Law Office of Thomas N. Kaufmann (Fayetteville) of counsel to Richard Searchfield, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent . Commissioners of Record: Bargnesi, Higgins, Finnegan WCB #6051 0082 [ [22164-7697]
— — JANUARY 2012 — —
Capalbo v Stone & Webster January 26, 2012 NYS Appellate Division, Third Department Procedure: Denial FBR «»7050…Procedure: Denial FBR
AFFIRMED the Workers Compensation Board’s ruling which denied the request of the carrier for reconsideration or full Board review (FBR). In seeking to deny the claim, the carrier requested in a February 10, 2010 hearing that it be allowed to submit its medical report well beyond the initial 45-day time period noted in the Law Judge’s November 2009 decision. After the Law Judge agreed, the claimant appealed and the Board reversed the Law Judge, determining that it was too late to submit the medical report. The carrier unsuccessfully sought FBR. The Court determined that the Board discretion was supported as “the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable.” Prevailing party represented by: Steven Segall of counsel to the NYS Attorney General, for WCB, respondent and Joseph A. Romano of the Law Office of Joseph A. Romano (NYC) for Joseph Capalbo. Commissioners of Record: Lower, Williams, Finnegan WCB #017 0651 [21162-7696]
►Since October 2009, all 20 prior Appellate Court decisions on this issue have affirmed the Board, 8 favoring claimants, 11 for carriers and the 20th between two carriers.
Hroncich v Con Edison January 19, 2012 NYS Appellate Division, Third Department Apportionment: Death «»3070…Apportionment: Death
AFFIRMED the Workers Compensation Board’s decision that that decedent’s death, causally related to his occupational illness, was not apportionable. In 1993, decedent was diagnosed with asbestosis and asbestos-related pleural disease ultimately found to have a permanent partial disability, and, as a result, developed thyroid cancer, which progressed into his lungs, dying in 2007. At the hearing on the death claim, a physician testified that decedent’s death was attributable 20% to his work-related illness and 80% to thyroid cancer. [ED. NOTE: not identified in the Board’s decision as being the claimant’s or the carrier’s.] A Law Judge found that decedent’s death was causally related to his work-related illness and that apportionment was not available. The employer argued that death benefits should be apportioned in the same manner as decedent’s lifetime benefits were apportioned.
“However, as the employer correctly notes, this Court rejected the identical argument in Matter of Webb v Cooper Crouse Hinds, explicitly holding that “apportionment is not available between work-related and non-work-related causes of death“. We are not persuaded by the employer’s arguments urging us to re-examine and overrule Webb. . . . Accordingly, inasmuch as the record concededly contains substantial evidence supporting the Workers Compensation Board’s determination that decedent’s occupational illness contributed to his death, claimant is entitled to death benefits without apportionment. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent and Jill B. Singer of counsel to the Special Funds. Commissioners of Record: Foster, Higgins, Bargnesi WCB #2070 8165 [21161-7695]
►The prior case is Webb v Copper Crouse Hinds with the link noted above.
Ramadhan v Morgans Hotel January 19, 2012 NYS Appellate Division, Third Department Schedule Loss of Use v PTD «»5050…Schedule Loss of Use issues
REVERSED the Workers Compensation Board’s ruling that claimant was not entitled to a mandatory finding of permanent total disability (PTD) pursuant to WCL §15(1), based on the Board’s not infrequent failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. After claimant, suffering injury to his eyes, was awarded a 100% schedule loss of use of both eyes, he unsuccessfully argued that he was entitled to a mandatory finding of PTD per §15(1). The Board concluded that claimant did not qualify for PTD because, even though he qualified for a 100% schedule loss of use of both eyes (WCL §15[3][p]), he still had some vision. Claimant, relying on a 1993 Board decision, argued that he sustained the “loss of both eyes” as required for total disability. The Court agreed that the 1993 Board decision found a PTD on facts that appear to be substantially similar to those in this case and concluded that the Board was required to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so. Prevailing party represented by: Michael K. Gruber of counsel to Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano (NYC) for appellant. Commissioners of Record: Ferrara, Libous, Paprocki WCB #0065 1079 [21161-7694]
►There have been no recent Appellate Court decisions on this issue.
Thomas v Warren County DPW January 19, 2012 NYS Appellate Division, Third Department §14(6): Concurrent Employment «»5170…§ 14(6): Concurrent Employment
AFFIRMED the Workers Compensation Board’s decision that the employer was not entitled to §14(6) reimbursement from the Special Disability Fund (Fund). Claimant who was injured in 2009 concurrently had a second job working for a janitorial service. The employer in whose employment claimant was injured was directed to pay benefits based upon claimant’s average weekly wages from both employments per §14(6). Prior to the §14(6) being amended in 2007, the statute provided that an employer required to pay compensation to a concurrently employed worker based on the average weekly wages of all concurrent employments was eligible for reimbursement from the Fund for any additional benefits paid in excess of the benefits that would have been paid without concurrent employment. The 2007 amendment provided that the Fund would only be available for claims presented in accordance with the newly enacted §15(8)(h)(2)(A) which, as relevant here, bars an employer from filing a claim for reimbursement from the Fund for an injury with a date of accident or disablement on or after July 1, 2007. The employer contends that either (1) without the ability to be reimbursed by the Fund, it is no longer required to pay those additional benefits or (2) the Fund has not been closed to requests for reimbursements in that the amendment only places a time limit on applications for reimbursement. The Court noted that it has already considered and rejected these arguments, most recently in Hope v Warren County Bd Elec Prevailing party represented by: Michael S. Joseph of counsel to James Trauring & Associates (Schenectady) for William A. Thomas, respondent and Steven Segall of counsel to the NYS Attorney General, for WCB, respondent Commissioners of Record: Ferrara, Williams, Higgins WCB #011 9384 [21161-7693]
Sangare v Edwards January 19, 2012 NYS Appellate Division, First Department §11: Election of Remedies «»3001…§ 11: Election of Remedies
AFFIRMED the Supreme Court, New York County denial of defendant (Dermer) motion to refer the matter to the New York State Workers Compensation Board to determine whether plaintiff was Dermer’s special employee at the time of his injury. The Court’s denial was based on the late filing of the motion. Other than amending its defense ito include a workers’ comp defense, asserting that as a special employee of Dermer, plaintiff’s sole and exclusive remedy was workers’ compensation, Dermer did not otherwise raise or pursue the workers’ comp issue during the course of the litigation. The Appellate Court explained that “that Dermer was attempting to obtain via this motion relief it could no longer obtain by motion for summary judgment. Dermer may not, at this belated juncture, invoke the primary jurisdiction of the WCB as a means of further delaying the litigation.” [21161-7692]
Engoltz v Stewarts January 12, 2012 NYS Appellate Division, Third Department §114-a: Fraud «»5130…§114-a: Fraud
REVERSED the Workers Compensation Board’s decision that claimant violated WCL § 114-a and was disqualified from receiving additional wage replacement benefits. The Court determined that the Board’s determination that the claimant “knowingly [made] a false statement or representation as to a material fact” for the purpose of receiving benefits” was based on the Board’s misinterpretation of the claimant’s response to the carrier questionnaire. The questionnaire asked if he had been “receiving any earnings”, to which he responded in the negative as he had not, even though the Board, based on the claimant’s own testimony, described his volunteer activities for which he did not get paid as the equivalent of work. The Court added a footnote which is basis for their reversal:
It is notable in this case that, instead of asking whether claimant was or had been employed or had returned to work in any capacity (see e.g. Matter of Bottieri v New York State Dept. of Taxation & Fin., 27 AD3d 1035 [2006]), the questionnaire here asked only whether claimant had been receiving “earnings,” which was specifically defined as “cash, wages, or salary received from self-employment, any employer other than the employer where you were injured, commissions or bonuses, cash value for all payments received in any other method other than cash (such as a building custodian receiving an apartment rent free).”
Prevailing party represented by: Mary J. Mraz of the Law Office of Mary J. Mraz & Associates (Albany) for appellant Commissioners of Record: Ferrara, Libous, Paprocki WCB #5941 2939 [21160-7691]
►The Appellate Court has affirmed the Workers Compensation Board on the three §114-a fraud cases that came before it in 2011: two for the claimant and one for the carrier.
Johnson v Anheuser Busch January 12, 2012 NYS Appellate Division, Third Department Aggregate Trust Fund
Decision Inadequately/Poorly Written «»5250…Aggregate Trust Fund 7200…Decision Inadequately/Poorly Written
REVERSED the Workers Compensation Board’s ruling that directed the carrier to make a deposit into the aggregate trust fund (ATF) pursuant to WCL §27(2). After a Law Judge in 2005 determined that claimant had a PPD and therefore, per §27(2) directed the carrier to make a mandatory deposit of the full present value of claimant’s future benefits into the ATF, the Special Disability Fund (Fund) conceded that it would be liable for reimbursement of 50% of the award per WCL §15[8]. [ED. NOTE: Although the appeal in this decision was on a November 3, 2010 MoD, the carrier and Fund also had appeals on this issue to which the Board responded in MoD’s on August 6, 2008 and February 2, 2010, the latter resulting in the non-FBR review but nonetheless amended decision subject to this appeal.] In light of the concession by the Fund, the Board found that, while a deposit into the ATF by the carrier was no longer mandatory, it was nevertheless within its discretion to order the carrier to deposit the full amount of the benefits into the ATF. However, finding that an order to deposit the full amount would not be “an equitable application of the statute,” the Board directed the carrier to deposit only its 50% share of the award into the ATF. The Court ruled, “While it is within the Board’s discretion to direct the carrier to make a deposit into the ATF in this case, it must iterate the basis for doing so in its decision. Here, as the Board did not provide any rationale for exercising its discretion to order the carrier to make a deposit into the ATF, its decision is insufficient to permit meaningful appellate review” and must be remitted for further findings. Prevailing party represented by: Robert E. Geyer of counsel to Wolff, Goodrich & Goldman (Syracuse) for appellants. Commissioners of Record: Lower, Foster, Bell WCB #6040 3990 [21160-7690]
►This is the first time since this site has been tracking cases that the Workers Compensation Board has been reversed on an ATF issue.
Blotko v Solomon Oliver January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Workers Compensation Board’s ruling that claimant was not an employee of Solomon Oliver Mechanical Contracting (SOMC). Claimant sustained injuries at a building that was being demolished by SOMC who won the contract with a lower bid than the claimant’s own firm. Claimant then spoke with SOMC’s about whether some of the laborers who had worked for his company could work at the demolition site to which SOMC agreed. Although claimant contended that SOMC also hired him, a Law Judge found that an employer-employee relationship did not exist between claimant and SOMC. Despite proof in the record that would support a contrary conclusion, the Court found no basis to disturb the Board’s decision that claimant was not SOMC’s employee. Prevailing party represented by: Michael J. Reynolds of counsel to Weiss, Wexler & Wornow (NYC) for SOMC and another, respondents. Commissioners of Record: Foster, Higgins, Libous WCB #0082 7054 [21158-7689]
►With the exception of Choto v Consolidated Lumber (3/10/2011), The Workers Compensation Board has always been affirmed in its decisions on this issue.
Cary v Salem CSD January 5, 2012 NYS Appellate Division, Third Department Medical Exams: Frequency «»5200…Medical Exams: Appointments
REVERSED the Workers Compensation Board’s decision which incorrectly rescinded awards made by a Law Judge and which denied claimant’s request for a Full Board Review because of gaps in medical reports. After suffering injuries in June 2003 and then returning to work with restrictions in November 2003, a Law Judge in 2009 awarded reduced earnings benefits from January 2004 to July 2009, with the awards to continue forward, a decision reversed by a Board panel who concluded that claimant had not submitted medical evidence in the form of progress reports from her treating physician supporting a finding of a continuing causally related disability every 45 days as required and, rescinded claimant’s R/E awards for various time periods between April 11, 2005 to July 10, 2009 representing gaps between the submission of the progress reports that were greater than 45 days.
The Court recognized that “there is no presumption of continuing disability under the Workers’ Compensation Law” and that a claimant’s treating physician is required to submit progress reports reflecting a continuing disability “at intervals of not less than three weeks apart or at less frequent intervals if requested on forms prescribed by the [C]hair” although “[t]he [B]oard may excuse failure to give such notices within the designated periods when it finds it to be in the interest of justice to do so” (WCL §13-a[4][a]). And while there were gaps between the submissions of the medical reports to the Workers Compensation Board, the unequivocal and unchallenged medical evidence in the record establishes that claimant was disabled during that entire time period such that “The gaps in the reports, standing alone, do not constitute substantial evidence supporting the recision of claimant’s reduced earnings awards under these circumstances.” Prevailing party represented by: Christopher R. Lemire of counsel to Lemire & Johnson (Malta) for appellant. Commissioners of Record: Bargnesi, Higgins, Foster WCB #5030 9752 [21158-7688]
Catapano v Jaw January 5, 2012 NYS Appellate Division, Third Department § 29: 3rd Party/MVA liens «»3160…§ 29: 3rd Party/MVA liens
AFFIRMED the Workers Compensation Board’s decision which, found that the Special Disability Fund’s (Fund) consent to a third-party settlement was required, a decision issued by the Board after this same Court on May 20, 2010 reversed the Board’s November 24, 2008 ruling against the Fund. After the claimant was injured, the claim established, and §15(8)(d) liability established, claimant settled a 3rd party law suit with the consent of the carrier but not the Fund. After the Board initially held that the Fund’s consent was not required, the Court returned it to the Board determining that its decision was inconsistent with Board precedent and because the Board did not set forth its reasons for deviating from the precedent. Now the Board ruled that the Fund’s consent to the settlement was required and the carrier’s failure to obtain such consent resulted in a forfeiture of further reimbursement from the Fund. The Court added, “Inasmuch as the Board’s decision [ED NOTE: this time] represents a rational, consistent interpretation and application of the relevant statute, we will not disturb it.“ Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee Commissioners of Record: Ferrara, Libous, Higgins WCB #0952 8461 [21158-7687]
►In 2010 and 2011, the Workers Compensation Board has been affirmed only 3 times in its 9 decisions on §29 issues.
Eaton v Dellapenna Assoc January 5, 2012 NYS Appellate Division, Third Department Disability: Degree of «»5020…Disability: Degree of or R/E
AFFIRMED the Workers Compensation Board’s decision that claimant sustained a permanent total disability. After claimant’s 2001 injury prevents him from returning to work, medical treatment authorized and awards were made at a tentative rate. In 2003, he began receiving Social Security disability benefits and underwent surgery, which only relieved his pain temporarily. After claimant was classified in 2009 with a permanent partial disability, the case was continued on the issue raised of claimant’s attachment to the labor market, after which a Law Judge modified claimant’s prior classification and determined that he had a permanent total disability. The claimant’s treating physician testified given, among other things, claimant’s detailed physical restrictions and the fact that his chronic pain is controlled by narcotic medications, it was his opinion that claimant was disabled from even sedentary employment, regardless of the fact that not all of these concerns were addressed by the Board’s medical guidelines. While claimant testified that he had sporadic good days when the pain was not as severe and the record contains medical proof that could support a finding that claimant continued to suffer only a permanent partial disability, the Board specifically found the physician’s testimony regarding claimant’s limitations and unemployability to be credible. Prevailing party represented by: Anna Dmitriev of counsel to Coughlin & Gerhart (Endicott) for Larry Eaton, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #9010 5224 [21158-7686]
►The Workers Compensation Board’s decisions on this issue have always been confirmed (1 in 2011 and 5 in 2010).
Franco v Peckham Ind January 5, 2012 NYS Appellate Division, Third Department Disability: Further Causally Related «»5030…Disability: Further Causally Related/Comp
AFFIRMED the Workers Compensation Board’s decision that claimant’s newly developed medical condition was not consequential and thus he had no further causally related disability. After injuring his back in April 2004, claimant’s case was established, and awards made. In September 2004, he received epidural steroid injections to relieve his back pain. After he was hospitalized and treated for tuberculosis myelitis in October 2004, he sought to amend his claim to include tuberculosis myelitis as a consequential injury. The Board, based on reports from an impartial specialist, concluded that there was insufficient evidence of a causal relationship to include tuberculosis myelitis. Then it determined claimant’s had no further work-related injury subsequent to June 9, 2006. The Court ruled that, “inasmuch as claimant did not appeal from the Board’s determination not to amend the claim to include consequential tuberculosis myeletis and did not re-present the issue in its application for Board review, such claim is unpreserved.” The Board’s final decision was that claimant’s present disability was not related to his workplace injury but was solely due to the subsequent, unrelated tuberculosis myeletis condition. Prevailing party represented by: Sara Thomas of counsel to Jones, Jones (NYC) for Peckham Industries, Inc. and another, respondents. Commissioners of Record: Ferrara, Libous, Paprocki WCB #3040 4511 [21158-7685]
►The Workers Compensation Board’s decisions on this issue have been confirmed in 5 of 6 cases in 2011/2010 with one being rescinded.
Hosey v Central NY DDSO January 5, 2012 NYS Appellate Division, Third Department § 25-a: True Closing «»3140…§ 25-a: True Closing
AFFIRMED the Workers Compensation Board’s decision that WCL §25-a is not applicable. After receiving benefits for a 2000 back injury, in 2009 the carrier sought to have liability shifted to the Special Fund for Reopened Cases (Fund) per WCL §25-a. While a Law Judge agreed, a Board panel found that the case had not truly been closed and, reversed the Law Judge. In this case, even though the claimant had been working continuously with the same restrictions since 2002, had no compensable lost time, and was receiving ongoing payments for medical treatment, and his treating physician in 2002 indicated claimant had a permanent disability, the issue of permanency was not formally addressed and therefore remained unresolved and thus, legally, still open. Prevailing party represented by: Jill B. Singer of counsel to the Special Funds Conservation Committee. Commissioners of Record: Lower, Paprocki, Bell WCB #6011 2921 [21158-7684]
Jennings v Avanti Express January 5, 2012 NYS Appellate Division, Third Department Employment: Who is «»3030__Employment: Who is or dual
AFFIRMED the Workers Compensation Board’s ruling that claimant’s decedent husband was an employee. After decedent died in an MVA, the employer contended that the claimant, a courier, was an independent contractor, not an employee. In affirming the Board, the Court noted that a Law Judge, affirmed by a Board panel, found there was an employer-employee relationship based on a record which revealed that the employer determined the decedent’s delivery schedule, provided decedent with a vehicle, an E-Z Pass for the payment of tolls, and GPS device. Further, the employer required decedent to dress in a certain manner and the employer paid decedent through a payroll service on a weekly basis according to a formula devised by the employer. Prevailing party represented by: Marjorie S. Leff of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Bargnesi, Higgins, Foster WCB #3080 6361 [21158-7683]
Nassar v Masri Furniture January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Workers Compensation Board’s ruling that claimant sustained a causally related injury. Claimant injured his back in April 2005 while working the employer, a furniture company, monitoring warehouse stock and making deliveries while he was lifting furniture. The pain increased such that two weeks later, while claimant was unloading furniture from more containers, the pain was such that he was unable to continue working, after which he did not return to work and filed a workers comp claim. The Board ruled that claimant sustained a causally related injury. Both claimant and a coworker testified that claimant was working for the employer lifting furniture when he hurt his back and neck and both further stated that the pain continued thereafter, requiring claimant to cease working. The Court agreed with the Board that (1) inconsistencies in the testimony or contrary testimony given by the employer presented a credibility issue for the Board to resolve and (2) uncontradicted medical evidence established a causal relationship between claimant’s injury and the disability to his back and neck.. Prevailing party represented by: Mark Du of counsel to Law Office of Joseph A. Romano (NYC) for Sam Nassar, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lobban, Paprocki, Higgins WCB #0051 8317 [21158-7682]
►Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
Nichols v Hale Creek ASACT January 5, 2012 NYS Appellate Division, Third Department Course of Employment: Special Events «»1110…Course of Employment: Special Events
AFFIRMED the Workers Compensation Board’s decision that claimant’s injury, coaching company volleyball team, arose out of and in the course of his employment and awarded workers’ compensation benefits. Claimant, the superintendent of a correctional facility, suffered an injury while coaching an employee volleyball team preparing to compete in the “Department of Correction Olympics“, a claim unsuccessfully controverted by the carrier. Although WCL §10 states that an injury is not compensable when it is sustained during voluntary participation in an off-duty athletic activity that does not constitute part of an employee’s work-related duties, the record in this case supported the Board’s decision that this was not a purely voluntary participation, to wit, claimant was given specific direction to improve staff morale including encouraging employee participation and his coaching the volleyball team. Moreover, claimant’s supervisor testified that she evaluated staff morale as part of her assessment of superintendents’ leadership ability and that there is an expectation that superintendents be involved with as many facility-related events as possible. Prevailing party represented by: Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #006 9793 [21158-7681]
►There were no Workers Compensation Board cases on this issue in 2009 to 2011.
Potter v VM Paolozzi January 5, 2012 NYS Appellate Division, Third Department Course of Employment: in and out of «»1100…Course of Employment: in and out of
AFFIRMED the Workers Compensation Board’s ruling that claimant’s injury, on a dinner ‘run’ arose out of and in the course of his employment. Claimant, an automobile salesperson, was injured while driving his personal car while on an authorized break for which he had requested and received permission from his supervisor to briefly leave work to go to pick up and bring back two spaghetti dinners for the employer’s finance manager. The finance manager had purchased the dinners as part of a fundraiser sponsored by a football team that claimant helped run on a voluntary basis. The Court wrote “Accidents that occur during an employee’s short breaks, such as coffee breaks, are considered to be so closely related to the performance of the job that they do not constitute an interruption of employment.” Among other indicia, claimant’s supervisor testified that it was customary to allow salespeople to leave the dealership on short paid breaks, thus providing substantial evidence to support the Board’s determination that claimant’s short break did not constitute an interruption of employment. Prevailing party represented by: Timothy J. McMahon of counsel to McMahon, Kublick & Smith (Syracuse) for Richard Potter, respondent and Iris A. Steel of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #014 8055 [21158-7680]
►Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2009, 2010, and 2011, splits between claimants and carriers.
Richman v NYS Unified Court January 5, 2012 NYS Appellate Division, Third Department § 21: Unwitnessed Death/accident «»1001…§ 21: Unwitnessed Death/accident
AFFIRMED the Workers Compensation Board’s ruling that §21 presumption supported establishing the claim despite the paucity of evidence. [ED. NOTE: As you can read below, this case has a rather interesting history.] Claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although she remains in a comatose state, a claim which was filed was controverted by the carrier, asserting that the ruptured aneurysm was not related to claimant’s employment. A Law Judge and the Board panel found that the employer did not overcome the presumption of compensability set forth in WCL §21(1). While the employer’s expert opined that claimant’s ruptured aneurysm was unrelated to her employment, the Board agreed with the Law Judge that the expert’s report and testimony were not credible – in large measure because he was evasive when questioned as to whether work-induced stress could raise a person’s blood pressure high enough to cause an aneurysm to rupture. Contrary to the employer’s argument, the Board, which “is the sole arbiter of witness credibility” was not required to wholly credit the expert’s opinion on this point simply because it was the only expert proof presented. Prevailing party represented by: Felice Sontupe of counsel to the NYS Attorney General, for WCB, respondent. Commissioners of Record: Lower, Finnegan, Foster WCB #0074 3840 [21158-7679]
►The only other case on this issue in 2011 was also affirmed but favored the carrier.
[ED. NOTE: On April 23, 2008, a Law Judge denied the claim for lack for prima facie medical evidence (PFME). On November 24, 2008, the Workers Compensation Board denied an appeal as being late: “Further, since the claimant’s attorneys fail to indicate why a timely application could not have been filed in this matter, the Board Panel declines to exercise its discretionary authority under Workers’ Compensation Law 123.” But then, in a Full Board Review, the Board, without giving any reason other than its continuing jurisdiction under §123, reversed itself, accepted the appeal, and returned it to the Law Judge to again reconsider the PFME, at which point the Law Judge did just that, accepting the claim. When I was at the Board, I was one of several commissioners who fought to keep a strict interpretation of 30 days for §23 appeals, unless there was some exceptional reason to excuse a late appeal, the exceptional reason to be clearly noted in the Board panel decision so as not to give the impression of arbitrariness or capriciousness by the Board. In this case, no reason was given for the Board’s total about face on this issue from which one can infer it was not any fact in this case that prompted the reconsideration,
Satalino v Dans Supreme January 5, 2012 NYS Appellate Division, Third Department Causal Relationship: PFME, et al «»1030…Causal Relationship: PFME, et al
AFFIRMED the Workers Compensation Board’s ruling that claimant did not suffer a causally related disability. Working at a grocery store for 35 years, claimant’s duties included unloading delivery trucks, stacking boxes and stocking store shelves. In January 2009, he had the first of two surgeries on his lumbar spine, never returning to work and filing a comp claim in November 2009, alleging that his condition was causally related to his employment. Although a Law Judge determined that he suffered an occupational disease to his lumbar spine, a Board panel reversed. Pursuant to the WCL §2[15], an occupational disease is “a disease resulting from the nature of employment and contracted therein“. Further, to be entitled to benefits based upon an occupational disease, “the claimant must establish a recognizable link between his or her condition and a distinctive feature of his or her employment” Finally, medical opinions regarding a causal relationship “must signify ‘a probability as to the underlying cause’ of the claimant’s injury which is supported by a rational basis”. Although claimant’s physicians found disc herniation, arthritis, spondylolisthesis and stenosis, one testified that he could not find a relationship between claimant’s condition and his employment and he could not opine whether the herniations were related to claimant’s work or chronic disc degeneration, further testifying that claimant’s arthritis, stenosis and spondylolisthesis could be related to claimant’s age and not his job. Although his surgeon suggested possible causal relationship, he had initially indicated in an application for disability benefits that claimant’s condition was unrelated to his employment. Noting that the Board is free to reject medical opinions where an expert does not testify convincingly in support of a causal relationship, The Court “conclude[d] that the Board did not abuse its discretion in determining that claimant failed to establish a recognizable link between his condition and his employment.” Prevailing party represented by: Elissa Landa of counsel to Fisher Brothers (NYC) for Dan’s Supreme Supermarket and another, respondents Commissioners of Record: Bargnesi, Higgins, Bell WCB #019 2244 [21158-7678]
►Because the Court gives discretion to the Workers Compensation Board, the Court has affirmed the Board on all cases on this issue in 2010 and 2011, all but three for the claimant.
