COMMENTARY & REPORTS
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
The Hidden Meaning of Bleakley v Verizon
March 28, 2012: In the Matter of Bleakley v Verizon decided today by the New York State Appellate Court, Third Department, an interesting incident has taken place at the New York State Workers Compensation Board which either bodes well for the future or proves that the Board, under its current leadership, does not understand what is its mission.
A Board panel had originally ruled that, because there was no money moving to the claimant, a legal fee could not be awarded. The claimant appealed and the Court was reviewing the case when the Board issued an amended decision, allowing the fee, thus rendering the appeal moot.
Had the Board not amended its earlier decision, the Board would have been reversed.
Why is this interesting?
The Board has been reversed in a increasing number of cases every year, in the last four years. And in most of the reversals, the Court noted that the Board has contradicted earlier decisions on the same issue, failed to explain why its decision was different from prior decisions, or just failed to consider evidence that “was staring the Board in the face.”
For example, in 1997 and 1998, on this very issue, there were extensive communications between some of the commissioners and the Office of the General Counsel (OGC) resulting in the drafting of a memo clarifying payment of fees on “credits versus moving money”, on deficiency compensation, reimbursement to the employer, and when no money is moving.
These issues were important enough to warrant 10 pages in the 550-page CaseNotes legal handbook I wrote while at the Board to give me quick access to precedents on hundreds of issues and to know what facts were required to make a proper decision:
In some cases, it has been argued that since there is no additional/fresh money moving to the claimant, an award of legal fees in not appropriate. References are usually made to both Scandale and Dickman but in #09610566 Westbury (Feb 2001), the Board Panel distinguishes the prior two cases from Westbury: while a fee was due, due to the specific facts in this case, it was to come from future payments to the claimant, not by the carrier/self-insured.
In Rodd ex rel. Rodd v. Coram Fire Dist., 12 A.D.3d 890, 785 N.Y.S.2d 753 (2004), the Court agreed with the Board that legal fees could come out of awards not yet made or necessarily contemplated. The Board found that the award of counsel fees was not presently payable, but rather would be applied as a lien against any future payments of compensation the carrier would be obligated to make to claimant[ in this case, presumably upon the exhaustion of the third-party settlement proceeds.] The claimant’s attorney appealed, seeking immediate payment of their fees. Here, there is no dispute that claimant’s attorneys were awarded a fee. The dispute lies with the timing of its payment. As the Board is vested with “broad discretion with regard to the approval and manner of payment of counsel fees” (Matter of Marchese v New York State Dept. of Correctional Servs., 293 A.D.2d 920, 921, 741 N.Y.S.2d 306 ), we do not view its determination to be inconsistent with our prior holdings. In our view, this case distills to the manner of the payment of claimant’s counsel fees, not whether any such fees should have been awarded in the first instance.
As a result, one must look at how the Board purportedly operates to understand the significance of final sentence in the Court’s opinion and ask, “Why did the Board change its position?”
Since the losing party on an appeal to a Board panel can either appeal for a Full Board review or appeal to the Appellate Court or both, it should be obvious that in all instances, the appeal goes to the Board’s OGC and/or to the Administrative Review Division (ARD).
In my 12 years at the Board, historically, the OGC/ARD had shown minimal interest in reviewing cases on appeal to the Appellate Court; this observation is based on the fact that we commissioners were never apprised of the fact that on an issue we were discussing at Full Board Review (FBR) there was a similar case working its way to the Appellate Court.
One point that came to the active commissioners was that many cases were being decided at the Appellate Court that were not being addressed by a FBR. We would find about these cases and issues only after the Court issued its decisions. This meant that when we had an appeal at FBR, even if there was a similar case before the Appellate Court, the Board would issue a FBR and not wait for the Court. In fact, the commissioners were never aware of the fact that a similar case was before the Appellate Court, which would have allowed us to make sure both decisions were the same.
The concern here is not that the Board gets reversed but that many of these reversals were unnecessary as the Board could/should have found the same contradictions in its decision making process as did the Appellate Court.
The result is that disputes languish for another year or so until the Court makes its decision. A claimant can never be certain that what the Board awarded them will be something on which that injured worker and their family can rely. And there are also financial costs involved. When a case goes to the Appellate Court, even if the motion is denied, there are costs for both the claimant and the employer/carrier; even if the loser must pay the winner, it just shifts an unnecessary expense from one party to the other. And FBR also cost both sides money, to write the appeals and rebuttals and file, etc.
The Board also has costs for WCB staff necessary to review the probably 100 cases a month, of the 1000 a month that are appealed to a Board panel, that could be avoided if the Board, on Tuesday, looked at what it wrote on Monday.
As I noted in my book, Behind The Closed Doors [page 76], in 2004 my panel found newly discovered medical evidence to establish a consequential condition which had previously been rejected for lack of such scientific evidence. When I suggested to the then Office of Appeals that we either reopen those previously denied 20-30 other cases for consequential medical problems, I was told that it was not our problem; it was the responsibilities of the claimant attorneys to do that work.
That attitude goes to the heart of the problem with the Board: whom do they serve?
As noted above, it is the Board’s responsibility not only to adjudicate controverted cases but to take steps necessary to minimize such controversy. And they can and must do this, by being consistent in their decision making, looking not only at their own prior decisions and Court opinions but looking at all the facts in the file. And, yes, this may even require that all of the commissioners read all their cases and not just sign them, 50-60 an hour, planning to use their computer to prepare their next shopping expedition to the Styvesant Mall or their home away from home in Florida
One can only hope that the decision of the Board to reconsider it erroneous ruling in the Matter of Bleakley v Verizon was done not because of its prior policy of CYA but because of the newly discovered understanding that the Board has a responsibility to insure justice to all parties: fair, consistent, and prompt.>[33223-4076]
The Board’s Continuing “Disfunctionality”
February 14, 2013: Today’s Appellate Court, Third Department, decision in the Matter of Jarovic v Icon Restoration & Contr. highlights a typical ‘disfunctionality’ at the New York State Workers Compensation Board, a ‘disfunctionality’ which only serves to increase the length of time necessary to resolve controverted cases and adds unnecessary legal expenses for both the carrier and claimant sides. And this does not even account for the emotional stress caused to the claimant in these cases. (Go to the DECISIONS page for these cases.)
In fact, the Court, in a second ruling today, in the Matter of Wieneck v Bakery, points out the Board’s continuing failure to look at its own prior decisions before issuing its ruling.
On March 31, 2011, the Appellate Court ruled, in the in the Matter of Stenson v New York State Dept. of Transp, that the Board had made an error in the legal basis with which it determined whether or not a carrier qualified to take credit for a third-party settlement. And the Court, in its decision today, noted that “the Board has since changed its approach to such issues to conform to the holding in Stenson.”
Yet the Board failed to take notice of both this Appellate Court case and its own decisions when, a few months later, an appeal was made for a Board panel review on this issue in the Matter of Jarovic.
When I was at the Board, I asked (actually pleaded) that the Board take a look at appeals made for either Full Board Review or to the Appellate Court in the event that, prior to the underlying decision having been made by a Board panel, the Court (Appellate or Court of Appeals, among others) had rendered a decision that would result in a change in the Board panel’s decision. I was told that this was not the Board’s business, that it was the responsibility of the carrier’s or claimant’s attorney.
I thought the purpose of the Board was to minimize controverted case and, for those cases which were controverted, to help expedite a decision.
There were many times when I and other ‘engaged’ commissioners, as compared to the insourciants¹, would advise the legal department that a decision was in the works on the exact same issue as given to us for review and that we should await that decision before issuing a Memorandum of Decision on an appeal. Far too often, our requests were denied and a decision issued only to be reversed months or years later, at considerable cost to the parties in the case.
If the Board’s appeals personnel (writers of the proposed decisions for the commissioners and the commissioners themselves) were working for a private law firm, I am quite sure that at least a third would have long since been fired while a few would be made partner.
With the millions of dollars that Board spends on computerizing, one would think that they could find a few dollars to spend to develop a case management system to help catch such errors. In fact, I will even give them the system I used when I was at the Board which helped me manage the 20,000± cases I reviewed, a DOS-based program last updated in 1992 that I have used to manage a database with 1 million records.
In the meantime, I am sure we can look forward to the continued mismanagement of the appeals process. For proof consider that eight years ago, it took about four months to review appeals 92% of which were upheld by the Appellate Court, as compared to these days when it take nearly year to do the same work but with an approval rate of just over 70%.[32217-4075]
¹A better explanation of ‘engaged’ commissioners versus ‘insouciants’ is in my book “Behind The Closed Doors“, $19.95
The Aging of Appeals
January 24, 2013: In 1996, one of the goals set by the New York State Worker’s Compensation Board in converting all its files to a computer-based system was to enable it to better manage cases. And this also meant to better manage the actual files and their respective documents as well. One result was the first accurate inventory of open workers compensation cases that had ever been done at the Board and, at the same time, the calculation of the average age of cases.
Board statistics show that, on December 31, 1999, there were 12,572 pending cases at the Office of Appeals (now called the Administrative Review Division - ARD). In 1999 as now in 2013 the average number of appeals being sent to the Board for review was approximately 1,000 month. Hence in 1999 the average age of pending cases would have been approximately one year.
This April 2007 table and chart are from materials distributed every month at the Board meetings up to at least April 2007. This is the kind of information that should be published every month by the Board on its website, a far better measure of the Board’s effectiveness than a list of doctors who have been suspended from practicing worker’s compensation medicine.
At the direction of Chairman Robert Snashall, and under the day-to-day management of Vice Chairman Jeffrey Sweet and Office of Appeals manager Carl Copps, by December 31, 2002 inventory was reduced to 5,346 cases and by the end of 2003 down to 4,638 cases. From that day on, at least through April of 2007, the number of pending cases averaged approximately 4,000 per month. In addition, under a triage system established several years earlier, by 2007, only 224 cases were older than eight months and, of those, only 24 older than 12 months. Of course, it was not Sweet and Copps alone who accomplished this goal. It was the 11 other commissioners most of whom took their responsibilities seriously and worked very hard to get their assigned work done as quickly but efficiently as possible.
If I were to extrapolate from the phone calls and e-mails I have been receiving, it seems that the review process at the end of 2012 is back where it was 15 years ago. When a claimant tells me that he is facing bankruptcy and possible loss of his home while he awaits for nearly a year for decision on an appeal by carrier and his call to the Public Advocates Office resulted in a comment, “Well, you’re not the only one with this financial problem. It will probably take another three or four months to get your case because of the backlog.”, one has the sense there are just too many people (virtually all political appointees) at the Board who do not care or can not figure out what to do, starting with the Chairman and Executive Director and, unfortunately, a good number of the commissioners.¹
And I do not know how effective is the Administrative Review Division or the one or two attorneys at the General Counsel’s office who are responsible for appeals going to the Appellate Court.
But the fact that appeals are taking nearly a year to get completed and the affirmance rate by the Appellate Court is still well under 80% one cannot argue that the delay in completing appeals is due to thoughtful deliberation by the Board.
The Board can demand computerization of all incoming documents as much as it wants but truth be told it is not the input of information to the Board that is the real problem. It is the simple fact that no matter what information the Board has it moves as slow as molasses on a brisk winter day.
As shown by the efforts of the Board in the late 1990s and early 2000’s, the answer is not more computers or more digital input, but management who both care and are capable of converting that concern into action.[1N155-4074]
¹For those who you who will be sending me emails as to how nice are some of the people I am criticizing, let me be the first to say the vast majority of these people are very personable and very nice. But as chief executive, a position I have held in many organizations, I will take ‘competence’ over ‘nice’ every day. And if you think I am wrong ‘sue me’ and I will get a competent but unpleasant attorney and you can have the nice/personable but incompetent one.
Like Father, Like Son -Part II
January 24, 2013: In Cuomo’s Executive Budget Financial Plan, page 46 does have the following notes:
General Fund FY 2014 receipts have been revised downward by $154 million. Tax revisions account for more than the net decrease but were partially offset by a $314 million increase in miscellaneous receipts, largely resulting from the release of certain State Insurance Fund reserves.
Then again, the Multi-year Financial Plan Projections (page 64) states:
General Fund FY 2016 miscellaneous receipts and Federal grants are projected to be $2.8 billion, down $194 million from FY 2015, resulting from the loss of certain receipts from the State Insurance Fund which are partially offset by increased receipts from the New York Power Authority.
As more specific information is made available, it will be posted here..
Like Father, Like Son -Part I
January 23, 2013: In a more detailed report on his proposed budget for this coming year, Governor Andrew Cuomo, as did his father Governor Mario Cuomo many years ago, proposes tapping the reserves of the State insurance Fund to cover the State’s other expenses
Major Reform of Workers’ Compensation System: The Executive Budget includes a sweeping reform of the state’s complex and inefficient Worker’s Comp system that will provide $900 million in savings to employers, local governments, and school districts without affecting the rights of workers. The reform plan will allow the State Insurance Fund to release reserves no longer needed to fund future liabilities, which will be used to fund job-creating capital projects and help reduce the state’s debt.¹
At my initial confirmation in 1996, I stated that workers compensation insurance was a ‘tax’, for which I was loudly castigated by Democratic State Senators.
I define a ‘tax’ as a payment required to be made to the government which is excess of the actual cost of the specific services provided when the ‘assessment’ is made.
One can argue (and should argue) that if there are “reserves no longer needed to fund future liabilities” then one of several factors has taken place:
The fund’s assessments were too high and the overcharges should be returned to the policy holders.
The law was changed regarding the monies to be paid out in claims, in which case the overcharges should be returned to the policy holders.
The State requires businesses in New York to buy WC insurance. The rates for private carriers are set by the State. The rates for NYSIF are set by the state: NYSIF is a creature of the state and thus by definition when it sets its rates, it is the Sttate, acting through a proxy, setting the rates.
The NYSIF is not supposed to be a profit-making company but an agency which is the insurer of last resort to allow small business to get insurance they could not afford to buy or even get from private carriers.
In essence, the State of New York has given NYSIF a license to ‘hold up’ private business for larger than necessary premiums and then periodically pocket the difference.
As a result, monies required to be paid by businesses to a state agency, in excess of that agency’s financial requirements, in order for these businesses to operate in NY, are used by the state government to fund its general operations.
That is a tax!.[1N155-4043]
¹There is no reference in the 326-page State of the State itself to anything dealing with this subject or even any mention of the State Insurance Fund.
Cuomo’s State of the Union & The WCB
January 17, 2013: In his 236 page (very wide margins, doubled spaced) ) State of the Union speech, Governor Cuomo noted that “significant improvements to the New York State workers’ compensation system are still needed to restore the State as a national model.”
Among the changes he will propose are:
- steps to limit exposure to members of underfunded group self insured trusts
- combine all of the workers’ compensation assessments into one assessment and create a single process for calculating assessments irrespective of how an employer maintains workers’ compensation coverage
- closing unnecessary funds, i.e. the fund for reopened cases.
As to how these will have a meaningful impact on costs need to be further detailed. After all, eliminating assessments for a reopened case only means that now the carrier must make 100 payments to 100 claimants rather than paying one assessment to the fund. Or could the fund’s overhead be that high? And, members of the trusts still have to pay for the Workers Comp Boards’ failure to properly supervise or audit the GSIT’s trustees who allegedly got rich while ‘fudging’ numbers.
Details of Cuomo’s remarks on workers compensation can be found on this link; his entire speech can be found here.[31213-4072]
Higher Pay for Commissioners
Or ‘per diem’?
August 21, 2012: Several months ago, Governor Cuomo proposed that commissioners on various government boards throughout the State of New York be switched from an annual salary to a per diem wage basis. At the same time, there have been discussions about increasing the salaries of the state legislators at which time the salaries for commissioners and agency heads throughout New York State government are also increased.
I categorically reject both a pay increase for the commissioners at the New York State Workers Compensation Board and a switch to a per diem basis
How would this work for a commissioner who is allowed to work from home, be it in New York or Florida? Those commissioners with the SF syndrome (‘sign fast’) would simply go on the computer for 10 minutes and, as is their practice, click their approval of one or two proposed memorandums of decision without reading them and then sign off for the day. Do these 10 minutes of ‘work‘ qualify for a per diem payment?
Also, it would not work to pay them on an hourly basis for two reasons. First, one commissioner would sign on to a memorandum of decision and then go on the phone for 15 to 20 minutes, take care of some business on the Internet, and then go back and click his approval of the memorandum of decision without reading it. The computer would show that the folder was open for 40 minutes, implying 40 minutes spent reviewing the decision. Second, their time spent in the office would not be a reliable indicator of work done as some commissioners, like a number of executive level appointees, come into the office at ten o’clock and then disappear for three or four hours of cocktails or shopping, returning to make personal phone calls and then sign out at four o’clock. Those commissioners and executive staff members are/were well-known to their colleagues in the management but, being appointees themselves, were unable to do anything about it.
My own experience in reviewing proposed decisions, comparing notes with a few commissioners who actually worked, disclosed that some decisions could be read and approved in about 4-5 minutes. However, a number, in which there were questions necessitating a review of both the decision and underlying documents, could take 35 to 40 minutes, and some were put aside for further review and discussion with fellow commissioners and the writers. A per diem payment system would not be fair for the ‘engaged’ commissioners who would need many hours to sign off on 20 decisions while an ‘insouciant’ commissioner, suffering from the SF Syndrome could do 40-50 in an hour but leave their computer on for the full day.
(A more compete review of the differences between the ‘engaged’ commissioners and the ‘insouciants’ can be found in Chapter 4 “How Commissioners are Selected” in my book Behind The Closed Doors.)
Unlike some other commissioners and board members at other agencies for whom substantial reading requirements are not the main focus and responsibility of their job, for commissioners at the Workers Compensation Board, reading those decisions should be a major and nearly full-time responsibility.
Hence, a per diem pay basis is not appropriate for the commissioners/board members at the New York State Workers Compensation Board.
While there are a few ‘engaged’ commissioners who actually work, it now appears that the ‘insouciants’ rule the Board. It would be a disgrace and certainly a slap in the face of injured workers to pay the commissioners more money than they currently get: $90,800 a year. After all, the injured workers rely on the good faith review of the cases to insure that they get proper wage replacement when they are unable to work. Certainly those making such a decision should be ‘conscientious/conscious’ when making that decision, particularly if they are being paid to do so.
When I first joined the Board approximately 3 months after informing the governor’s office I would like to fill the one vacancy on the Board, I did not realize that there was a long waiting list of people seeking to be commissioners. Many of their patronage bosses were upset not only by my being moved to the top of the list but my being approved so readily. Apparently the job had a reputation of essentially being a ‘minimal work’ position if that is how the appointee wished to treat it. Several years later, I was told of an appointee who met with the board chairman before being offered the position. According to what the chairman told me, that individual indicated that now that he was retired, as a Commissioner, he had no intention of traveling to Albany for the monthly board meetings nor did he have any intention to learn how to use a computer even though all the decisions he was to review were on the computer and all communications were done by e-mail. Fortunately that Chairman was dedicated to the Board’s goals and informed the Governor’s office that that particular proposed appointee was totally unacceptable.
Now, however, it seems that such an attitude is not only acceptable but perhaps even appreciated by the Oligarchic Cabal that runs the Board. “God forbid that a commissioner should delay a case being closed based on their disagreement with a proposed decision written by the civil service attorneys who populate the administrative review division.” The fact that a commissioner could read the proposed decision that was loaded into the computer and write a coherent and legally sustainable objection that same afternoon was considered to be an egregious act of disloyalty slowing down the system whereas taking four weeks to affirm 200 decisions that had piled up in a ‘insouciant’s’ work queue was acceptable for the reason it did not generate any work for the writers or require fellow commissioners to have to ‘review’ a case a second time. Apparently those who suffer from the SF syndrome have a monthly limit as to how often their symptoms can occur. I do remember a complaint made at our monthly pre-board meeting that I was rejecting too many decisions thus making extra work for one of the commissioners who was on my panel
There is also a second reason a raise is not warranted: there are dozens of people throughout the State of New York who want a job as a commissioner at the Board and there are plenty of political deal makers who would love to settle up a favor by placing one of their own on the Board.
Not only is a higher salary not necessary to attract people to this position but I sincerely doubt there is a single person on the Board who would resign if they did not get a salary increase. In fact, even if the salary were cut by $5000, who would resign? And the list of those who want that job would certainly not diminish.
One could easily compare an appointment to the WCB to tenure for a teacher but for a fixed term, not life (unless related to a legislator): a guaranteed $90,800 a year salary plus a great medical plan (±$40 a month) and a non-contributory pension fund (no more 1% contribution required after 10 years) and no possibility of being fired. But unlike teachers, no rubber room either. Some gig!
Until such time as there is leadership at the Board which is able to get a full day’s work or even four hours a day work out of all the commissioners, an increase in salary for the commissioners (including the Chair and Vice Chair) is inexcusable.[28193-4071]
Workers Compensation Legal Fees
August 16, 2012: On a subject as complex as, this it is hard to know where to start but a few thoughts come to mind.
The state legislators, the Board staff, and those individuals who do studies expect to get paid for their efforts and I am sure they will argue that higher pay insures better quality staff and better results. Why it is then that these same people question the legal fees earned by workers compensation attorneys remains somewhat of a mystery. And while I tend to look at the work of the Board and other entities as an archaeologist studying tribal civilizations, it seems that what is needed to understand those who challenge workers compensation legal fees is a good psychoanalyst.
The current fee structure in place in the New York State workers compensation system did not pop up suddenly one day. It, like the system itself, has evolved since workers compensation law came into existence nearly 100 years ago. The concept of a no-fault claim was substantially different from the pre-existing legal framework of sue-sue-sue and then take a big piece of the action for winning.
For my first four years at the Board, I asked Board staff and attorneys for both sides how it came into being that claimant attorneys in New York City got an extra $100 when doing a lump sum settlement on top of the normal 10%, whereas in the rest of the state it was only 10%. Someone said that it was because the attorneys had to arrange a doctor visit for the claimant just prior to the hearing but that made no sense for two reasons. First, the doctors were Board employees working in the Board’s offices usually a floor away. Second, claimants upstate also had to see a doctor and their attorneys did not get the $100.
I use this story to make a point. There is probably no one around who can explain how the legal fee process developed in New York State, be it the rate for appearances, getting classifications, the prior lump sum settlements, or the §32 settlements.
But, no one is getting rich as a workers compensation attorney, at least not like attorneys in the corporate or financial world or those handing personal injury cases and other civil litigation. Yes, workers compensation attorneys do reasonably well and that is why there are qualified people in the field, serving both sides.
The fee structure that has been in place for years has enabled quality lawyers to do a reasonably good job representing injured workers and their families and, on occasions, a small employee who finds himself at the mercy of the Board.
After §32’s first came into practice, there was some discussion at the Board about setting up a formal fee structure. I did the research and found that there was no set standard anywhere in the U.S., that some states had fee schedules and others did not. But there was one question I could not get answered from these other states without doing a major research project. And when I raised the question at the Board, the answer was, “I am sure we will think of something.” And study of legal fees was dropped. What was my question?
Take two cases. One has been ongoing for about three years and despite the extensive medical treatment and lost time, and lots of litigation and medical depositions and testimony, minimal compensation has been paid and thus virtually no fees were paid to the claimant’s attorney. After three years, a §32 was brought to the table to resolve all open issues and a settlement of $50,000 was offered with a fee of $7,500. The second claim was immediately accepted by the carrier and within about four months the claimant classified as a PPD at $200 a week and appropriate fees were paid. Then, in this second case, a §32 was brought to the table and accepted for $50,000, with a fee of $5,000.¹
I asked: If you use a formula as they do in some states, how would that formula distinguish between the two settlements? Or do you have a formula with 30 or 40 factors built into it? And who decides which factors are to be used and their relative values in the formula?
In a manner of speaking, it is too late to put the genie back into the bottle. Besides, the informal fee structure at the Board developed over 98 years has, until just recently, resulted in a system which has served the injured workers quite well.
The current attempts by the Board to cut fees and reduce the number of hearings, again cutting fees, does no more than put the claimants’ attorneys at a financial disadvantage, limiting their ability to attract, let alone keep, qualified legal staff and to meet the constantly every increasing demand by the Board for increased computerization.
I do know from comments made by some Board Members including some who are still there, and perhaps coincidentally never practiced law or for that matter managed a business, that the lawyers were making too much money and that resolving claims could be much easier if the attorneys were just eliminated.
Perhaps that is the real reason there is such an interest in cutting legal fees in New York.
But it has been my opinion for years, noted on more than one occasion in this website (see links below), that it is the Board’s own failures that lead to the increased litigation and complexity of the cases that the Board claims it wants to reduce.
If it were not for claimants’ attorneys, how would the injured workers be able to seek medical variances, which even now are piling up by the thousands at the Board’s offices? If it were not for the claimants’ attorneys, how would the injured workers know how to navigate the ever increasing steeplechase of forms and paperwork demanded by the Board to ‘speed up’ the process? If it were not for the claimants’ attorneys, who would be there to explain to the injured workers what the Board’s decisions (often contradictory and unclear, so says the Appellate Court) really mean and how best to respond to them?
In my first book, Behind the Closed Doors, in Chapter 8 “Administrative Review Division”, I referenced an issue on which the Board took both sides at one time or another on the issue of a §23(1)(e) penalty of $300. In Horton v Akzo Nobel Salt, et al, 34 A.D.3d 1052,825 N.Y.S.2d 301, 3d Dept. 2006, the Court said, in simple English, “We do not care which way the Board wants to interpret the law, be it six checks is six instances or the one decision is the one instance. We just want the Board to pick an interpretation and use that from now on.”
Prior to the Board’s resolution of the Court’s request, would the Board expect that the attorney for a claimant who was awarded only $300 or that the attorney for a carrier who was penalized $1,800 would not appeal, thus filing more papers (appeals and rebuttals), generating more paperwork for the Board (hearing dates, decisions to be issued, lots of data entry), and generating more hearings?
Let me ask a question of the Commissioners (actually about six of them). You enjoy getting paid without working? Do you think the lawyers would enjoy working without getting paid? Maybe if the Board insisted on consistency and coherence in its decisions, as so often demanded by the Appellate Court, there would be fewer controverted cases and hence less of a need to pay for legal services.
And comparisons to legal fees in other states is inappropriate. Many of them did not have workers compensation systems until many years after the New York State system was in place, thus giving them a basis on which to develop their own laws and procedures. Other states had their own laws in existence prior to their adopting some sort of workers compensation system, in terms of civil litigation for workplace injuries, and these differed from state to state. Even now, some states allow civil suits that in New York are barred by the exclusivity provisions of the Workers Compensation Law. Some states have their equivalent of the New York State Insurance Fund, some allow only private carriers, and some prohibit private carriers. Some states, for example, do not have a Board to review administrative law decisions; those appeals go directly into the state’s civil Court system.
As a result, the entire process of resolving controverted cases varies from state to state. So, how can you compare legal fee structures?
To quote from Michael Whitely’s article, posted below as part of last week’s COMMENTARY, “Industry observers say New York’s workers compensation system, launched in 1914, is decaying under layers of statutory and regulatory reforms and needs an overhaul.”
I agree. And it is through these layers of statutes and regulations which necessitate the help of an attorney for the claimant to navigate.
The Board must start, not by attempting to reduce the roll of those who represent the best interests of both injured workers and their employers, but by addressing itself to its own internal disarray, confusing and contradictory decisions, and poorly conceived rules, regulations, and forms.[28191-4070]
¹ §32 fees were usually 15% except in those cases in which the claimant had previously been classified and a ‘classification’ fee paid. These settlements received 10%
Prior COMMENTARIES on legal fee issues were:
11-18-10 Legal Fee Committee: Why? & Why Not!
09-28-09 Fees on Medical Expenses/Poll set
02-19-09 Legal Fees: What’s fair, history, can The Board set fees, etc?
Some Critiques of my Comments about Beloten
August 16, 2012: After my August 2nd posting in the NEWSWIRE of the story titled “Beloten, Not Legislature, rewrites WCL”, I was asked in several emails what I have against Robert Beloten and some stated that his subject number did not create new law. Two of those emails are reprinted below.
Email #1: Please excuse my ignorance—to what change in the “CL Law” were you referring?
Email #2: I have read and reread your comment on the New Maximum AWW and am unable to discern the point that you are trying to make. You state that Chairman Beloten and not the legislature has rewritten the WCL but I don’t see, by any stretch of the imagination, how you came to that conclusion. As far as I can tell he simply stated or restated what has been a fact in establishing an individual’s AWW for the entire time that I have been part of the WC system (31 years).
And, as to it taking Chairman Beloten 24 years to update this interpretation of the law, come on, he has not been in a position to do so for 24 years. Why didn’t you say it has taken the WCB that long?
From the tenor of your comments about Chairman Beloten I wish to know why you have against him?
As to the question as to why I am attacking Beloten, I did not in that posting nor have I in the past nor do I expect in the future to criticize Robert Beloten … as an individual. But as a Chairman of the New York State Workers Compensation Board, his management is open for review and, where appropriate (and far too often) criticism.
As I wrote in my COMMENTARY last week, there is a lack of true leadership at the Board. Decisions are being issued far too long after the case has been heard or an appeal reviewed. Too many contradictory or poorly written decisions are being issued. And the Board has failed not only to listen to those who have a vested interest in the system, the Board, or more accurately the Oligarchic Cabal that runs it, seems to disregard them with the arrogance of those who feel they are untouchable and beyond reproach.
As to the legal issue, I would like to know what is the point of issuing this subject number, basically reissuing one from 24 years ago. If, as many e-mails wrote, this interpretation has been around for years and it is part of the law, why reissue it? Is it to enable the Board to report that the Board is issuing guidelines to avoid confusion as to how it decides on certain legal issues? If so, the subject has been covered. The Board’s pronouncement from on high is as meaningful as one from a scientist who in 2012 proclaims that he can prove that the world is round.
If it is a different interpretation, then it is a reinterpretation of the law and thus ‘new’ law.
If Chairman Beloten wishes to issue subject numbers as to how the Board determines its position on legal issues, I can think of two issues on which the Board’s own confusion is well documented by the Appellate Court’s rejection in 2012, 2011, and 2010 of the Board’s decision in 19 of 46 cases appealed on §15(8) and §25 issues.
Therefore, I make no apologies for the positions I took in that posting.[28191-4069]
“Big, Busy, and Battled”
A Reporter’s review of the Board
August 6, 2012: In a well searched article¹ about the New York State Worker’s Compensation Board, Michael Whiteley, Eastern Bureau Chief for WorkCompCentral.com, summarized his findings by calling the system and the Board “big, busy, and battled“. His articles goes into great detail in comparing New York’s system with that of other states and is a must read for those interested in understanding New York’s failures.
While I agree with 99% of his findings, I feel that the comparisons with California and Florida, while meaningful, did not sufficiently highlight some differences in the system. However, the biggest problem of the Board is a factor referenced throughout his article and is an issue I have raised at least once a month in my website, if not more often:
As Whiteley notes, New York has far more hearings than any other state. However, this in part is due to the appeals process and the history of development of the New York State system. When workers compensation was first passed into law 98 years ago, primary injuries were amputations, broken bones, and death. Another key difference is that, even though there was no retirement system in place 98 years ago, few people lived past their early or mid-60s. Now, the vast majority of injuries are either soft tissue injuries or occupational disease and the overwhelming number of injured workers are not only able to retire in their 50s but also live into their 70s or 80s. Equally important is that there are far more medical procedures available to help injured workers either return to the labor market or, if they cannot, still live a long and meaningful life. This then increased medical expenses to the level where payments for medical expenses almost equal to payments for compensation. Unfortunately the legislation and interpretations of that legislation have not kept pace with changes in the makeup of the population of injured workers. As to whether not the recent reforms answer some of those questions is subject to an ongoing debate and will not be further mentioned in this commentary.
What is important is that the Board issues so many contradictory and confusing decisions with the result that lawyers on both sides have a responsibility to their respective clients to challenge decisions in the hope that they get that monkey or barrel of monkeys who will be issuing a decision.
While it can be argued that issues of further causally related disability and degree of disability are areas with many shades of gray, the Board has, according to many of the reversals issued by the New York State Appellate Court, Third Department, failed to explain the basis for its decisions or has disregarded, overlooked, or ignored facts which either do or possibly could suggest an alternative outcome in the decision.
The increasing number of reversals over the last six years include a number of what could be considered to be simple “black-and-white” legal issues. For example, §25-a lists two primary conditions, both of which are based on the passage of time. Yet the record shows that the Board has been reversed several times by the Appellate Court for its failure to adhere to or, perhaps, understand those time lines.
This failure can be attributed to several parties at the Board:
Chairman Robert Beloten: As chief executive of the state agency, he must adhere to the sign posted by Pres. Harry Truman on his desk, “The buck stops here.” The personnel that follow are under his authority as captain of this ship and it is his responsibility to fix the problem or, “get the hell off the boat!”
Vice Chairman Fran Libous: Jeffrey Sweet, Libous’ predecessor as vice chairman, made sure that the commissioners did their work on a timely basis and that there was some level of consistency in the decision-making process, making allowances for philosophical differences but not for factual or legal indicia. When the rare (back then) reversal from the Appellate Court was discussed, there was dismay not only on the part of the commissioners on the panel but by the Board as a whole: the Board had pride in its work and was upset when its decision was not affirmed. With the exception of perhaps four or five commissioners currently serving at the Board, it appears that the word “pride” is no longer a concern.
Although the Board has always had one or two commissioners who suffered from the SF syndrome (“Sign Fast” without reading syndrome), in the last six or so years, since Sweet retired, the SF syndrome seem to have gotten quite contagious and now effects five or six commissioners.
As vice-chairman, Libous has the responsibility to make sure that decisions are signed on a timely basis and that the commissioners actually read what they sign. It is bad enough that many commissioners did not read what they sign, but it is worse that it takes them weeks to do so. Looking the other way so that no one rocks the boat is not only unfair to both claimants and employers who suffer under current process but this dismissal of responsibility does not avoid the fact that the “waters” are getting rougher and sooner or later the boat is going to flip over. Perhaps Libous and a few of her colleagues are hoping to get off the boat with their goodies (fat pensions) intact before the boat flips over.
Administrative Review Division (ARD): This division, which has undergone many name changes over the years, is equally responsible for the debacle of litigiousness. When I was at the Board in the late 1990’s, there was the occasional writer who took a philosophical position contrary to law and the wishes of the commissioners. Concerned commissioners would raise this problem. Then either the writer would be instructed to change their attitude or Board would discuss possible changes in the interpretation of the law. But this is only possible when all the commissioners read decisions. Those suffering from the SF Syndrome give a free pass to the writers to interpret the law and take whatever side they wish in a particular case.
The constant change in leadership of the ARD results in the writers having a free hand, particularly when they know it is likely that their proposed decision will be reviewed by a panel suffering from the SF syndrome.
Law Judges: Some of the law judges suffer from the same attitude as some of the writers in the ARD. When I was at the Board, I read the minutes of a hearing in which a law judge ruled against the claimant but stated, on the record, he thought the law was wrong and that the commissioners’ interpretation of the law was wrong but, if he did not go along with that interpretation, a Board panel would reverse him. Now knowing it is possible to get a Board panel with the SF syndrome, some judges make decisions as they see fit.
[ED. NOTE:] I do want to make it perfectly clear that there are commissioners, writers, and law judges who take pride in their work, are conscientious, and do their best to serve the system’s constituency. Unfortunately, the past few years have seen a number of them (plus a few of the bad ones) flee for the greener pastures (financial as well as respect) of the federal Social Security Administration.
Another factor deals with the statistics for “closed” cases. For those not familiar with the definition of “closed” as used by the Board, in the New York State workers compensation system, the word “closed” simply means that the law judge has decided there are no more open issues. That is one of the reasons that New York State opens more cases than any other state. While statistically it may look good to have a high number of closed cases, closing a case because the claimant is going into surgery after which everyone knows the case will be reopened on the matter of degree of disability is a statistical fiction. Not only does everyone know that the case will be reopened, but, because the case was formally closed, additional paperwork must be filed to warrant a reopening.
Another point in Whiteley’s article deals with data on claims cost assessments:
Total average costs per lost-time claim in New York had reached $73,055 by policy year 2008 and are projected to exceed $100,000 this year, according to the actuarial firm Oliver Wyman, which adjusts claims each year to reflect costs for future years. The New York Compensation Insurance Rating Board (NYCIRB), which only projects costs for nine years, put lost-time claims costs in New York at $68,796 for 2010.
When I came to the Board in 1996 there were approximately 12,000 cases in the inventory of what is now the ARD, with an average age of eight months. Due to the combined efforts of Vice Chairman Sweet and ARD’s director Carl Copps, and the cooperation of the commissioners and writers, the inventory was reduced to 4,000 cases with an average age of three months. Apparently, inventory at the ARD is back up to the 1997 levels, so let’s take a look at some numbers:
8,000 cases x the extra four months x 4.33 weeks/month = 138,666 weeks x $200/week average awards = $27,731,200 in awards paid while waiting for a decision.
Now some of this money may well have been paid anyway so lets deduct 2/3’s. That leave $9,000,000.00 in costs due solely to the Board’s failure to process claims on timely basis and another $3 million for would turn out to be unnecessary medical expenses.
Yes this is a relatively minor figure in the overall scheme of things but $12 million here and $12 million there and the next thing you know we have some real money to be saved.
But more important is the psychological and emotional impact that this semi-paralysis and SF syndrome have on injured workers, their families, and their employers. They do not trust the Board nor do they have faith in its decisions thus prompting a level of hostility the first day their claim is placed, hostility which every participant in the legal system knows increases litigiousness and costs. Next, you have the attorneys who are placed between a rock and a hard place when they try and dissuade the claimant or carrier/employer from challenging the claim, creating additional litigiousness. Finally you have the conscientious law judges, writers, commissioners, and support staff who look at a system which at best ignores them but on occasion denigrates them for attempting to do the proper thing.
Perhaps the best example of the Boards failures is the fact that all the spokesman for injured workers, such as Robert Grey, Troy Rosasco, Peter Walsh, and Cathy Stanton, and insurers and business groups all agree that the Board’s services have deteriorated almost as rapidly as has grown the Boards arrogance and dismissal of their concerns.
The Board, i.e., its leadership, should be forced by Governor Andrew Cuomo and the State Assembly to make a decision: either change their attitude and begin to serve their constituency or get out.
Next week I will cover the issue of legal fees and pay raises for the commissioners followed by a commentary on the court reporters and comparisons to other state systems.
As a final note, as a “disgruntled” former employee, to quote the Board’s spokesman, I often suspect that my website and commentaries do not raise enough hackles. Perhaps Michael Whiteley’s story, through his much wider (but pay-for-access) online publication WorkCompCentral.com will begin to get the attention of the Governor and key members of the New York State Assembly. (The Senate has too many family members on the Board to apparently be concerned.)
¹And a thank you to David DePaolo, publisher of WorkCompCentral, for allowing me to reprint the article in its entirety, linked here.[28190-4068]
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 end².
“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]
1 Editor’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.
2 Editor’s note - July 1, 2012: The last three words of this sentence were originally incorrectly written as “will not end“. This has been corrected to “will end“
The Court of Appeals Zamora Decision:
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 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.”
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.
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.
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.
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.”
So wrote one of my readers in response to my summary of the Court of Appeals decision issued February 9, 2012 in the Matter of Cappellino v Baumann & Sons Bus.
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
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 ) 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
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.
2011 2010 2009 2008 2007 2006
Affirmed 69% 83% 77% N/a 92% 96%
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.
- 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
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.
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.
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.
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.
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.
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.
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 ; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578  [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.
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.
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.
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.
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.
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.
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.”
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.
Barbara Levine & Bill Crossett, Co-Chairs NYIWA
[ED. NOTE:]That OpEd piece can be in this website or on website of the New York Injured Workers Alliance.0
The Board’s Not Working
Board’s Stats Say So
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? 
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. 
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.
Michael T. Berns
Former Commissioner 1996-2008
New York State Workers Compensation Board
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 firstname.lastname@example.org. Originally published July 1, 2011.
August 25, 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 [18139-4048]
Patronage, Commissioners, & Salaries
Gov. Cuomo Takes A Good Look
August 11, 2011: The recent decision by Governor Andrew Cuomo to slash pay 90% for political plum state commission seats, as reported by Rick Carlin in the Times Union on August 5, resulted in a number of e-mails to me asking my opinion. And who am I to deny the public that request.
However it must be understood that in New York State there are three types of commissioners:
- Group 1: Those who have full-time positions as the highest-ranking person in the various state agencies.
- Group 2: Those who have part-time positions sitting on various boards of state agencies, commissions, and authorities.
- Group 3: Those who are full-time employees of various agencies usually in a quasi-judicial full-time position.
Group 1 are essentially the chief executives of various state agencies with budgets ranging from $10 million to nearly $1 billion and in some cases have tens of thousands of employees. Salaries for the vast majority of these range between $110,000 up to $180,000 a year (if my memory serves correct). These are not the commissioners with whom Governor Cuomo is concerned. Group 2 represents The vast majority of those whose salaries are being addressed by Governor Cuomo .I know many of these commissioners and, while the majority are honest and have good intentions, they are on board’s that, at best, meet twice a month and often only 10 times a year; some boards do not not meet in July and the vast majority not meet in August. Rick Carlin, the author of the article, was directly on point when he said that,
Commissioner positions on state boards and governing agencies have long been criticized as patronage plums, or at the very least jobs reserved for those with deep roots in the state’s political class. They have been given to both Republicans and Democrats, allies of governors as well as influential legislators.
Of course it is be expected, and I argued this point in one of my many appearances on New York 1, that every Governor who gets elected looks to appoint to positions throughout the state people who supported him, agree with his policies, and helped him win the election. One cannot seriously believe that a Democrat becoming governor after 12 years of Republican control would keep in place people who disagreed with him and worked to prevent him from getting elected and instituting his policies. Nor would one expect any more from a Republican becoming governor after 20 years of Democratic control who would put into these decision-making positions people whom they can trust to follow his directives and policies. The question is how much should part-time commissioners earn and what should be some minimal requirements for them to get the position. As to the question of minimal requirements I will discuss that in more detail when I discuss Group 3, based on my firsthand knowledge of the 26 commissioners with whom I worked at the Worker’s Compensation Board and a number of people I know who were in similar capacities at the Department of Labor and Department of Parole. I agree with Governor Cuomo that paying these people full-time salary is absurd, ridiculous, but self-serving for the various members of the Legislature and the executive branch who originally established these part-time jobs at full-time pay. And for many, the state salary as a commissioner is more than many have ever made prior to becoming a commissioner. Since many of these people either have full-time jobs or are retired, it is not all surprising that substantial portions of these wages end up in the coffers of political parties and elected officials. Worse than that is that these commissioners, because they are full-time, enjoy all the benefits of other full-time state employees: very inexpensive health care insurance (for which they are vested after 10 years of service) and access to various state retirement plans (for which they are vested after five years of service and pay only 3% of their salary for the first 10 years after which they make no contribution.)¹ Group 3 includes the work of the commissioners on the boards of Workers Compensation, Parole, and Department of Labor, among others. These jobs are usually defined as full-time and prohibit the commissioners from having any other employment. In fact usually the only outside activities in which they are usually permitted to participate on a formal basis are as board members of nonprofit organizations. My comments below are based primarily on my experience as a Commissioner at the Workers Compensation Board although this seemed to be true for people in similar positions as full-time commissioners at Labor and Parole. What is most interesting is that the term Commissioner is not included in the laws covering the Worker’s Compensation Board. The 13 people on the Board are referred to in the law as board members with the additional title of chairman and vice chairman assigned to two of the 13 board members. But in keeping with tradition I shall use the term Commissioner. Although these positions are defined as full-time, the amount of time a commissioner could spend could be as little as three or four hours a week even while other commissioners on the same board could work 20, 30, or 40 hours a week. When I first came to the Board in 1996, there were approximately 90 people at the Board who made more money than the commissioners; it was not until a few years later that the state legislature increased salaries for all commissioners including those at the Workers Compensation Board. At that time the Board was paper-based and all the commissioners had to come to the office in Brooklyn and at a minimum spend several days every month signing decisions. But because there were always other commissioners around a lot of time was spent discussing decisions and/or meeting with the writers. And commissioners spent on the average of four or five days a month attending oral arguments and lump sum hearings. As the Board went paperless and some members of the Board sought to cut back on work, oral arguments were slowly eliminated and the responsibility for settlement hearings (changing from lump sum to §32) were transferred to the law judges. As a result some commissioners have no hearings for a month or two at a time and, if they feel like it, miss the monthly board meeting to be out of town, out of state, or out of the country for weeks or months at a time. And a look at the passport would show that one Commissioner spends a great deal of her time traveling overseas with her husband, while others spend a great deal of their time at their second (or is that their first) homes in Florida. And since these commissioners have access to their case files over the Internet. they can “do their work” anywhere they have an Internet connection and, as exemplified by a former commissioner, click their way through weeks’ worth of decisions into a three hours a week. (I go into great deal more detail on this in my book, Behind The Closed Doors. So this raises two questions:
- Are these full-time commissioners at these various agencies overpaid?
- What qualifications should they have to be appointed?
As to the amount of these full-time commissioners should be paid, I think the current salary levels are more than sufficient - I do not see any of them quitting for a higher paid job elsewhere. As for the commissioners who do not work, the fault for that lies directly with the chairman or vice chairman of each of the agencies under whose direct control are these commissioners. I can assure you that anyone who has been a manager and certainly all the managing partners of all the law firms in the industry know full well how to get their money’s worth out of their staff or how to get rid of them. Unfortunately far too often those who have the authority to make the commissioners work are often the very worst offenders as their “professional” goal appears to be maximum salary and benefits for themselves with minimal work. To be blunt, the Workers Comp Worked needs a “Jeff Sweet” type of personality as vice chairman: he was quite firm but pleasant in making sure that the commissioners earned their salaries. The same could be said Labor and Parole. As to the qualifications of those selected commissioners, the current requirement is minimal: New York State resident and I assume US citizen. I am unaware of any age requirements or educational requirements or even literacy requirements. As the jobs are highly sought after, for many justifiably feel these are nice no-show jobs, a selection for these positions is a plum for the governor’s office to give to satisfy his various constituencies. But also these people are approved by the state legislature and it is done on occasion on a non-partisan basis sometimes in exchange for favors and sometimes in order to assure that the opposition party will allow legislation relating to that agency not only to pass but even to get on the floor of the chamber. But this does not mean that the appointees are incompetent, incapable, or lazy. I like to think that, despite my lack of knowledge of workers compensation, highlighted by my initial confirmation hearings, I proved to be an asset to the board whereas an attorney who has moved on to greener pastures proved to be one of the laziest and most arrogant of the 26 commissioners with whom I have served. The commissioners on these boards as well as the part-time commissioners on other boards are supposed to represent policies of the sitting governor. At worst, they should just do the work and follow the lead of their fellow commissioners. Unfortunately some are so lazy and sloppy they interfere with the process. There were 26 commissioners, 12 of whom had been appointed I joined the board and another 14 who joined after I did. I can tell you that with the exception of two whom I knew before they joined the board (and accurately predicted their uselessness) I was unable to tell who would be good and would not. However, I know of two people who, in the process of becoming commissioners, were told that at a minimum they were expected to work four or five days a month and, God forbid, have to go to Albany two days a month; they were honest enough to decide not to take the job while a few others took the job and then sought to avoid the work. The bottom line is that, as in any organization, it is up to management to make sure that full-time employees, be they commissioners or clerical staff, fulfill their obligations. There is only so much micro management that the Governor or any chief executive can do. Hopefully these steps taken by Governor Cuomo to cut back on the salaries of the part-time commissioners and to look at the value of some of the full-time commissioners may result in those board members at the Worker’s Compensation Board, Labor, and Parole, among others, deciding to actually work. It is a shame that the excellent work and positive attitudes of a few commissioners are offset by those political appointees who give patronage it’s bad name. [18138-4047] 1Work for 10 years at $90,000/yr, paying 3% or $2700/yr into a pension fund. Retire after 10 years after having contributed $27,000 and get 10/60th’s a year pension which is $15,000 a year, a great return on a $27,000 investment. And you wonder why NY’s pension system is sucking up your tax dollars. And for part-time work.
The Russak Party
ED NOTE: This was originally sent out as an e-mail when I was on vacation and did not have access to my website.
July 25, 2011: Boy, does Brooklyn know how to throw a party!
The July 14th retirement party for Jack Russak was a great event, benefitting someone as respected as is he in the WC community. There were probably about 200 people there, including attorneys from both sides, as well as administrative staff and ALJ’s and a number of his former colleagues, including Mark Solomon, whom Jack will be joining as a Federal Social Security ALJ. I had the opportunity to talk to many of the guests and there was a recurring theme: the state of affairs at the WCB is getting worse. Not only is the Board less responsive but its new rules are confusing and often hurts both sides of the same case equally. Perhaps one of the most telling comments of the evening, and one of the most loudly applauded, was in one of the many speeches given in honor of Jack: “Boy, do I miss the Pataki days.” Perhaps the most vocal complaints were those raised against the new medical guidelines. One complaint is that no one is sure if the new treatment guidelines apply to treatment that was ongoing at the time the new laws went into effect; some claimants found their treatment cut off in mid-session and appointments canceled. A second complaint is that the carriers are only too fast to tell the medical provider to stop treatment, sometimes a few days in advance, writing something to the effect of “Please note that pursuant to the WCB’s new medical guidelines, your current treatment program for claimant must end on Friday, July 29.” Treatment stops midway and an entirely new adjudicative process must start, thus delaying necessary medical treatment and the inured worker’s return to the labor market. Another complaint is the issuance of penalties by the Board for late filings. Based on the cases I have seen, it seems that the Board has developed a sort of reverse psychology of the 1990’s back when nothing was ever late - now even filings date stamped by the Board within the appropriate deadlines are often deemed ‘filed late’ and treated accordingly, thus necessitating further difficulties for the attorneys, whose time would be better spent assisting their clients than fighting the Board’s nameless bureaucrats. But I must give some due to Jeff Fenster, one bureaucrat who has been the subject of much criticism by me. We were introduced by someone whom I assume was expecting fireworks. Instead, we had a very pleasant conversation in which he explained to me some of the personnel and budgetary problems from which the Board is suffering, thus making it difficult to clarify for the WC community, the goals and proper applications of some of the new rules and laws. And as I mentioned to him and do so here, sometimes there is no right answer to solve a problem so that whatever solution is raised, there will be faults in it to be criticized- if there were none I would have little about which to write. Perhaps the Board would be best served by making him the Board’s spokesman ot the community since he offers some clear explanations and is open to criticism. (Of which I am sure I shall have more to follow in the future.) A special thanks for the evening is due to Judge Stogel for organizing the event and for Tom Agostino and Liz Lott for their singing rendition of an “ode to Russak” (Keep your day jobs!) [18137-4046]
Six Month Review of Appellate Court Decisions
WCB is off to a bad start
July 7, 2011: Six months into the year is a good time to review how the Board has been doing and so far this year the Board has been affirmed a dismal 77% of the time (74% Affirms and 3% Denial of appeals) with 16% of the decisions outright reversals and another 7% sent back for the Board to review its decisions, often noting the Board’s inconsistencies or failure to review all the evidence.
So, what must the Board do to improve its performance. The starting point is the breakdown of cases. I use four categories with 60 issues codes. The categories are: Is there a claim (25 cases), Who pays (27), How much is paid (19), and Procedural issues (17). IS THERE A CLAIM: Most of these 25 cases were issues of causal relationship and, in many of the cases, the Appellate Court stated that the decision could have gone either way but that the Board had the discretion to pick between two sets of facts. The Board was affirmed in 88% of these cases. But in most cases, if the Board ruled the opposite of what they actually ruled, the Court would have affirmed them. PROCEDURAL: Most of these 17 cases dealt with denial for full board review, or late filings, with the Board being affirmed in 88% of these cases. The next two categories show a basic weakness in the Board’s decision making process as in both WHO PAYS (27 cases) and HOW MUCH TO PAY (10 cases). The Board was affirmed in only 67% and 68% respectively. The two specific issues on which the Board seems to have had the most problems are WCL §25-a and §15(8). If the Board was really interested in expediting cases and saving money, it would assign a senior attorney and one or two senior commissioners to develop some sort of list, an indicia table, for the last three years of Appellate decisions on these issues. This is the sort of data about which I wrote in my last COMMENTARY: data which shows a ‘problem’ area in the adjudication of cases that needs direct attention in order to develop a solution. I am sure that all the parties involved in these cases would also find they would save time and money if the Board was consistent. Of course, there is another manner in which the Board can reduce the number of controverted cases. Attached is a list of 13 of the REVERSALS issued by the Third Department this year. Six of these were reversed on the basis that either the Board did not address the issue at hand or did not supply any evidence to support its decision. Five were based on the Board’s misinterpretation or disregard of the law and two decisions contradicted prior Board decisions on the same issue. The decisions that are issued by the Board panels undergo, allegedly, substantial review. First, the proposed memorandum of decision (PMOD) is written by one of the writers (staff attorneys). Depending on the seniority of the writer and the importance of the case, the PMOD could then go to one of the team leaders. Next the PMOD is presented to a panel of three commissioners whose primary purpose of employment is to read and consider each of the appeals represented by the PMODs they get, about 20 a day. These last three sets of eyes are supposed to be focused on the PMOD to make sure it makes sense. Now a new commissioner may not know what to look for but there is not supposed to be more than one new commissioner on each panel. Unfortunately other than three or four commissioners, no one actually cares about, let alone reads, these decisions. Of course there is another problem. Some of the attorneys who write these PMODs should be fired. I was able to convert the list of cases I was given to review in CIS/ECF into an Excel database. This list, with 10,000 cases by the time I left the Board and is detailed in my book, Behind The Closed Doors, had a column for the name of the writers. I added another column for Approval or Reject, with codes for the reasons for rejects. Periodically, I would generate a report (pivot tables) which listed the percentage of Accepts and Rejects for each writer, with my code indicating the reason for the Reject. This table would then automatically(by macro) label each writer with one of three labels: Good, Turkey, BIG TURKEY. That way when I was reviewing the list of cases I converted from the Board’s own database, next to the name of the writer would be his description. GOOD meant that the writer had done a thorough job in writing the PMOD and it the only question was whether or not I agreed with the interpretation of the facts. BIG TURKEYS were the ones whose PMOD’s were suspect, for they were leaving out or purposefully ignoring facts, misinterpreting the law, etc. For these, it was absolutely necessary for me to review the documents in the file, which often including reading all the medical reports and hearing testimonies. [ED NOTE: three other commissioners tried to do the same thing but kept the list in their heads.] On occasion, I complained, asking why it was that a particular writer was still writing with such a high reject rate. Usually, PMODs from the writer would not be directed to me for a few months, until such time as I would forget about the problem. I may have forgotten the writer’s name, but my database did not and the next time that writer showed up in my work queue “BIG TURKEY” would flash. The point is that there are some writers who simply are no good. Big law firms hire new attorneys fresh from the bar exam based on their law schools, but this does not guarantee a partnership. If they do not perform, they are OUT. Not at the Board – hence Court reversals and confusing and contradictory MODs for the legal community to attempt to base a defense or an appeal. Kind of a WPA for the Board attorneys. While it is true that some of the decisions issued on the interpretation of the law were at the Court because the Board made an error, many did belong at the Court because the laws were poorly written by the State Legislature. But for the majority there was no excuse for the Board’s errors. What would be interesting to review is how many MODs have the same types of errors found by the 3rd Department. Are 27% of the MoDs actually erroneous in their final determination? Unfortunately, the cost in time and money of appealing to the Appellate Court is beyond the reach of most claimant attorneys and small employers. But the Board would be better off expending some of its assets (time of it attorneys and commissioners) in reviewing some of these stats and then they could generate to develop a system to insure consistency. As I noted in an earlier commentary on the Board’s leadership, the new leaders must be those who take it personally when the Court reverses a Board decision. That is how it was in my early years at the Board. Now, reversals appear to be of no interest – just tough luck for the losers (the claimant or the carriers). While justice delayed is justice denied, justice rushed is justice wronged.[17133-4045]
Reducing Controverted Cases
Rebuilding the Workers Compensation System - Part III
June 23, 2011: The purpose of the Workers Compensation Board is to adjudicate cases in which the injured worker and the employer/carrier have a difference of opinion on any particular subject. It is not to see how fast the Board can process cases, justice be damned, or how much it can find/penalize employers and carriers, after developing dozens of ways to impose penalties for minor infractions.
The current Board has stated that its goal is to eliminate the delays occasioned by disputes between the parties but, by establishing impractical deadlines, imposing frivolous penalties, and pushing law judges to close cases, the Board is only making the situation worse by forcing cases closed but leaving one if not both parties dissatisfied with the results and many issues unresolved.
The key to truly minimizing controversy is for the Board to stop being closed and, instead, open itself and its decision-making process to the participants. No, the participants do not have to sit in a room when the deliberations are taking place but they should know the basis for decisions.
As I have so often written in this website, the Board’s decisions are not made in a vacuum. Yes, it is true that the New York State Appellate Court, Third Department has in its many reversals of Board decisions written that the Board does not always read its own files or consider all the facts but, hopefully, this represents a minimum of the 10,000± decisions issued by the commissioners and the 100,000± issued by law judges every year.
Reducing Controverted Cases
Although there are some who sit at the monthly Board meetings who believe that every decision should stand on its own and not be based on prior cases, “precedent” is the basis on which all judicial decisions are made, be they civil, criminal, or administrative. The Workers Compensation Board is no exception.
When I was at the Board, the Office of General Counsel and/or the Review Bureau, or whatever name they have for this office this year, had lawyers who drafted decisions for the commissioners. These lawyers would occasionally issue a white paper on a particular legal issue discussing how the Court’s reasoning in those decisions could/should be used in the future.
I proposed that the Board develop some indicia papers but the Oligarchic Cabal as it often did with the suggestions from the commissioners, ignored this proposal. So I prepared lists anyway. The indicia table I have referenced most often in this website is the first one I did on the question of what factors determine if the limo driver is an employee or independent contractor. When I gave this worksheet to the powers-that-be I was told that I have no right to do this, I was not an attorney, and I did not understand what I was doing and how the system worked. So I gave these sheets to some attorneys one of whom later told me it was very helpful in that, based on the table, she was able to convince a number of employers she represented to NOT controvert their cases as they would probably lose the decision.
To be blunt, who helped expedite cases faster: the Board’s attorneys or me?
The Board can write all the white papers it wants but these papers tend to be too long for most people and are not designed for a quick read and, therefore, remain unused by most of those at the Board for whom these papers are produced. And, if the information detailing the Board’s thinking on key legal issues is not shared with the public at large, how is the public supposed to know which indicia are used by the Board in making decisions and whether the indicia they have in their case will support their argument. Indicia lists will encourage the parties to make sure that all the facts are made available at the first hearing or may encourage some parties not to pursue litigation.
It is obvious that a little bit of sunshine can be quite helpful.
There are enough bright people at the Board who are capable of preparing easily-read white papers. There are some issues, like §25-A, for which indicia tables would prove quite helpful, not just for the community but also for the law judges, conciliators, and commissioners and perhaps even some of the Board’s own attorneys. Not only will these indicia tables tell the public what the Board will do in most cases, indicia tables will insure a consistency in the Board’s decision-making. There is nothing like having a controverted case go to a Board panel, then either to a full Board review or Appellate Court for a decision to slow down justice for the injured worker and the employer/carrier, and coincidentally, creates a lot of the kind of work the Board claims it is attempting to avoid.
Acknowledging Key Issues
A second factor in increasing unnecessary controverted cases is the failure of the Board to publish any information as to the types of issues that are most common as well as the final decisions on those common issues.
When I first came to the Board, I designed a database of cases which included a code for each issue. After the first year, I could tell how many §25-a cases I had, how many times we affirmed or reversed the law judge, by law judge and district. But equally important was that after three years I could see trends in the types of controverted issues with which we were dealing. I contacted the legal department again (I am either stubborn or persistent) and asked it why was that certain decisions that were black-and-white legal issues were continuing to appear before us; in 1998, I found that three of the top five issues being heard were black-and-white legal issues: late appeals, §25-a, and §15-a. My review of these cases showed that the Board (the lawyers and commissioners) had several different attitudes toward “black-and-white” law.
For example according to WCL §23, appeals must be requested within 30 days of the filing of the law judge’s decision. Depending who was reviewing the appeal this could be 30 calendar days, 30 business days, and on a weekend, or on Monday even if the 30th day was a Saturday or Sunday or holiday. Some were under the impression that 30 days was a month so that a February 28 appeal filed on March 29 was late but an October 1 decision was timely if it was filed November 1. And forget about Leap Year. And whenever the Board felt so moved, it could take a late appeal “in the interest of justice.” Yet despite the entreaties of myself and a few other concerned commissioners, we were told that “in the interests of justice” spoke for itself.
As an example of the WCB bureaucracy, it was not until about 2008, nearly 10 years later, that the Board defined 30 days as 30 calendar days, and if the 30th was a Saturday and Sunday or a holiday, the deadline was the next business day: 31 days was late. “In the interest of justice” was virtually eliminated but, when it was invoked, there had to be a clear explanation of why it was “in the interests of justice.”
§25-a and §15-a are still, 13 years later, among the top “black and white” legal issues being controverted*. If setting up some indicia is too difficult for the Board, for example on §25-a, perhaps they should call the Special Funds whose attorney, based on her Appellate Court record, seems to know “which end is up.”
Publishing a list of issues will accomplish two goals:
- The list will focus the Board’s attention on issues whose decision-making indicia need to be clarified to minimize controverted cases.
- The list will show trends of which issues have finally been resolved but, more important, will show which issues are now coming to the forefront, issues for which the Board must develop indicia.
The Board’s decision-making process, renown even by the Third Department for its inconsistencies, unclear even when correct, and arbitrary decisions, often results in unnecessary controversy and pushes many cases to the law judges, Board panels, and ultimately the Appellate Court. What lawyer in good conscience and fearful of a review by the Bar or a civil suit can justifiably deny a client’s appeal when the Board’s history of decision-making, available from the Third Department, LexisNexis or Westlaw, shows opposite decisions in identical cases**.
The Board is not supposed to be playing “gotcha” with the claimants, attorneys for both sides, the carriers, or the doctors. It is supposed to adjudicate disputes. It should go without saying but, when dealing with a bureaucracy, particularly one that has lost its raison d’etre, it is important to understand that resolving controversies is not as important as helping to avoid them in the first place.
The Board is now soliciting bids for a new computer system and software to help, among other goals, generate more data. The data I referenced above is already available so why spend millions more and not use the current data to better illuminate the Board’s thinking. Perhaps with a new system and new leadership, the Board can finally open the “closed doors” about which I wrote in my book in 2008 and thereby achieve its goal:
prompt adjudication by less adjudication
To summarize, the Board must publish:
- a list of indicia used in making its determinations in the top ten ‘black & white’ legal issues
- each quarter a list of the 20 most common issues appealed to Board panels and the results of those appeals, i.e. 100 VWLM; 90 Affirms (60 claimant, 30 carrier); 5 Reversals (2 claimant, 3 carrier); 5 Rescinds (3 carrier, 2 claimant) as well as the WCB case numbers
- its quarterly and annual in-house review of Appellate Court cases
Part IV of rhis series, Rebuilding the Workers Compensation System, will discuss the many problems that exist with medical issues, for some of which legislation has been proposed. [16131-4044]
*In Appellate Court decisions issued since 01/01/2010, the Board has only won 9 of 13 §15 cases and only 6 of 14 §25a cases for a .370 batting average: great if you pay baseball but not if you are seeking to hire an attorney. **See the Matter of Norcross v Camden Cent. School 11/10/10 3rd Dept: “The Board’s [decision in this case] runs contrary to several previous Board decisions.”
Who’s Minding the Candy Store
June 16, 2011: In the June 16, 2011 NYS Appellate Court, Third Department decision in the Matter of State of New York, Workers’ Compensation Bd. v A & T Healthcare, LLC,[see our DECISIONS page] the issue before the Court was how many years retroactively could the Board as the administrator of a group self-insured trust that it closed, charge the trust’s members for the annual underfunding which went back to 1999.
The ruling of the Court, which stated that the statute of limitations did not apply in this case, was not as important as some of its commentary on this case. These comments raise the question of who if anybody at the Board was fulfilling the Board’s responsibility to oversee the self-insured trusts.
The Trust involved in this action was New York Health Care Facilities Workers’ Compensation Trust (hereinafter the Trust), a trust established in 1997. Beginning in 1999, the Trust began operating at a level where its liabilities exceeded its assets. As this deficiency persisted, the Board — which is required by law to oversee the Trust per WCL §50[3-a— worked with the Trust to enact measures to close the shortfall. But the decision of the Board to close the Trust did not occur until 2006: seven years after the annual deficits started.
The Court wrote that,
But neither the Trust documents nor the regulation required the Trust or the WCB to levy an immediate assessment, instead permitting “such other action as may be appropriate in order to make up the deficiency“. The regulation lists numerous options for the WCB to use when addressing an underfunded group self- insured, and plaintiff tried many of the less severe options with the Trust prior to terminating it.
The Court then added,
Beginning in 1999, the Trust began operating at a level where its liabilities exceeded its assets. As this deficiency persisted, The WCB — which is required by law to oversee the Trust per WCL §50[3-a— worked with the Trust to enact measures to close the shortfall. By 2006, after the gap had become increasingly larger, the WCB terminated the Trust, assumed its administration (see 12 NYCRR 317.20) and retained.
I will now list the number of questions I’m sure have occurred to many but perhaps now, based on the Court’s decision, may result in some attention perhaps by the Office of the Attorney General or the state legislature.
- What if anything did the Board do between 1999 and 2006?
- Is there anything in the Board records that indicates the Board was even aware of these deficiencies?
- Who were the specific individuals at the Board to whose attention these reports were sent?
- What did these specific individuals do once they got these reports?
- What prompted the Board in 2006, seven years after the deficiency started, to decide to take action?
Or, in shorthand, “Who’s minding the candy store?”
At this time hundreds of small businesses find themselves in an impossible position because of the Board’s failure to meet its oversight responsibilities. Enticed to join some of the GSIT’s by what appeared to be below market insurance premiums, these firms are finding themselves assessed not at what may have been competitive market rates but possibly much higher rates based on the failure of the original managers of these funds to properly handle insurance claims. Some of these managers received their fees on the basis of premiums collected, money which was to be used to cover the administrative expenses of the trust managers. One way to reduce administrative costs and move all those fees to the bottom line (bonuses and dividends and higher stock prices) was to approve every claim, knowing that this would result in increased underwriting costs to be assessed at some future date to members of trust. When I was in the private sector, it was my policy to pay my commission salesmen when I got paid lest they make very big sales to customers, collected their commissions, and then resigned when those customers did not pay. Many trust managers got paid on the sale, regardless if the ‘sale’ was paid for.
Someone at the Board had the responsibility to advise the Chairman, Executive Director, and/or the General Counsel about the situation. Either they were ignorant of finance and insurance and therefore had no ability to understand the documents they were receiving or they just assumed that it was too much work to deal with the problem, decided to ignore it, and hoped they would be moving on to another job before the issue blew up.
So now there are three new but very basic questions:
- Who at the Board was responsible for this debacle?
- What can be done to resolve the unfunded trusts without bankrupting hundreds if not thousands of small businesses?
- Why aren’t the managers and stockholders of the managers of these trusts being held responsible for these failures, financially, civilly, and criminally?
‘Nuff said. [16130-4043]
‘O pesce fete d’ ‘a capa1
Rebuilding the Workers Compensation System - Part II
June 9, 2011: History shows that, as institutions change, there are four key factors that influence whether that change is positive, deleterious, or neutral, like four legs on a table. If it is carefully balanced, removing one or two legs does not cause the table to fall. But an unbalanced table can fall even with four legs if one is too short. The legs are leadership, a raison d’etre, organizational structure and personnel, and current events. Weakness in any one or more of the first three can have minimal effect if current events are stable. The history of the NYS Workers Compensation Board is no different from thousands of other bureaucracies, governments, societies, or business and a review of its recent history shows how true this is.
An event resulted in changes to the first three legs of the table listed above. In 1994 George E. Pataki was elected governor of the State of New York, breaking a 20 year run of Democratic philosophy running state government. The next leg changed when Governor Pataki appointed Robert Snashall as Chairman and Jeffery Sweet as Vice Chairman. They, in turn, redefined the goals of the Board by stating that service to its constituency — injured workers and employers — was the sole raison d’etre of the Board, and finally, they took steps to give the opportunity to the staff to join in this new goal by learning new skills and getting promotions in the process. And, of course, the key tool was not the decision to go paperless but the actions taken to actually implement the new paperless system, known as ECF (Electronic Case Folder) and CIS (Case Information System).
Unfortunately after the departures of Snashall and Sweet, the void in leadership left by their departure became apparent and, in the waning years of the Pataki administration and Pataki’s lack of focus on state government, apparachiks took over the leadership, changed the focus, and slowly eroded the esprit de core of the staff.
So what do we now have and what must be fixed?
The Board desperately needs a new chairman, vice-chairman, and executive director. Current Chairman Robert Beloten, a former law judge, although knowledgeable about the law, appears to be unable to wield the power that should come with the position. As a result, individual ‘tribal-states’, also known as departments, have popped up within the Board, each one competing with and making deals with the other tribal states for a bigger share of the treasury (annual budget) and more power by taking on more authority, even if not more responsibility.
The Board needs someone who can bring back a vision and has the managerial/bureaucratic skills to get the staff to do their jobs or to have that staff removed.
The executive director essentially is supposed to be the person who handles the day to day affairs of the Board, making sure that the general directives of the Chairman are followed, and that the staff (management and civil service) perform their duties properly. And the executive director must have an open ear in order to bring to the Chairman’s attention those problems or issues which need the Chair’s attention, in order to achieve the Board’s ultimate goal: the fair adjudication of injury claims. It is not, as I have so often written, to set land speed records in closing cases and files, justice and fairness being run over in the process. Jeffery Fenster may have the strength to push Senator Vito Lopez through a crowded room2 but he has no background in management or budgets or any of the many qualifications one would find on a ‘help wanted’ ad for the executive director of anything, let alone a major state agency. A list of the skills and accomplishments of Commissioner Rick Bell and Joe Pennisi, former executive directors, must be a minimal requirement for the new executive director.
The vice-chairman’s legal responsibility is not defined under the WCL. But historically, they have been in charge of the other 11 Commissioner/Board members in terms of insuring proper training for new members, keeping them up to date on legal and medical developments as they may impact on their decision making, setting schedules and insuring their attendance at hearings and the once-a-month pre-board and full board meetings in Albany. And, of course, to make sure that they fulfill their duties by reviewing the decisions they are expected to approve, reject, or modify, on a timely basis. At least that is what Sweet did as Vice Chairman and those of us who joined the Board after he did (spring of 1995), assumed that this was the job of Vice Chairman, a working title which, by the way, pays $10,000 a year more than the other 11 commissioners. Unfortunately, the current Vice Chairman, Frances Libous appears to be far more concerned with protecting the image of her husband, Senator Tom Libous, the second most powerful member of the New York State Senate Republican majority. Too many commissioners, as documented in this website and my book, not only do not read any of the decisions they sign, they take weeks to do even that, thus delaying the resolution of controverted cases, the sole justification for the Commissioners’ existence. Some commissioners fail to appear for the monthly meetings, preferring to go on extended vacations or to attend political events, and nothing happens to them. The sole goal over the last few years, unimpeded by both the Chairman and the Executive Director, is to minimize the workload of the Commissioners by eliminating hearings and even discussions on legal issues.
As to other key personnel at the top levels of management, I am quite sure that once strong leadership takes over the three positions noted above, the rest will either willingly follow the lead or take flight from the Board, making room for competitive and dedicated staff to move up and help run the Board.
The new chairman must have a strong background in workers compensation, be it as an attorney or an insurance executive. This does not mean someone who has been just a law judge but someone whose prior work has included looking at the big picture, looking into all the areas in which the Board has responsibility. Not just litigating cases, but overseeing medical guidelines and treatment, insuring proper coverage by all the state’s employers, making sure that the insurers and medical community meet their legal, financial, and moral obligations to the injured workers and their employers. And finally, they must regularly travel the state and visit with various members of the workers compensation community, with an open ear and mind to possible improvements in the system.
The two key skills needed in the next the executive director are a history of management and an understanding of budgets. A background in workers compensation, or an understanding of the system, is an added plus. But the fact that someone can get a 100 on a test does not mean that that person is the one you want running your organization. Whether this person comes from the legal community, insurance or medical community, or a union, or even another agency is not what is important. The person must have experience managing people, getting them to do their jobs and be members of a team. They must be able to see who is not doing their jobs and help by either retraining that person, changing the job duties, or replacing that person. Executive staff who hide in an office in order to avoid meeting/confronting people or spend their time shopping or hanging out in the local watering hole is the exact opposite of what is needed.
The new vice-chairman, either from the existing Board or someone new, must also have organization skills. This is the person who will be responsible to make sure that the Commissioners do their work on a timely and professional basis. In fact, it is this person’s responsibility to make sure that there is work for the Commissioners, not to seek ways to get rid of it so that the Commissioners, who do not punch time clocks, can disappear out of state for weeks at a time. And the first order of business would be to give the administration of the hearings for Section 32 hearings back to the Commissioners. The commissioners used to do them when 32’s were first allowed and, with the ever decreasing calendar of oral arguments, there is no reason that the commissioners can now start to do them again.
At a trade meeting I attended about 30 years ago, someone said I was stepping on toes. I responded, “will everyone please get in line. That way I will be sure not to miss any.” I am not mentioning names here to ‘get even’; if I were the list would be different. The names I mention are people who have taken position sof great responsibility. If they can not take the heat, they can get out of the kitchen. The Board is in dire need of leadership. One leg of the table has changed – the event leg – there is a new governor in town. Let us hope the Governor Cuomo takes the time to talk to the leaders of the workers compensation community and to then pick three qualified people who can help bring back the vision for the agency and pride for its staff.[16129-4042] 1A Neapolitan proverb which translates as “A fish stinks from the head.” 2 As noted in this website and the New York Daily News.
The WCB - An Amateur Archaeologist’s Dream
Rebuilding the Workers Compensation System - Part I
June 2, 2011: One major area of research in archaeology is the study of civilizations, not only how they develop but what causes them to fall apart and what are the results of the dissipation of these once great empires. And while my focus over the last few years has been Meso-American pre-Columbian civilizations, the facts and concepts apply to civilizations everywhere. And to organizations as well.
And once such organization is the New York State Workers Compensation Board, an amateur archaeologist’s dream.
For the more classically educated, think of the glory of Rome, how an empire grew to control most of the known world. Then as a result of and/or coincidental with the invasion of the barbarians, the Roman empire disappeared to become a region of city-states, fiefdoms, and tribes until Garibaldi in 1861 brought about the reunification of Italy which is now again a major player on the world stage.
While I am not familiar with the WCB prior to my joining in 1996, I do note that under the leadership of Chairman Robert Snashall and Vice-Chairman Jeffery Sweet, the Board became a reasonably well-organized machine, with a newly adopted mantra — serve the injured worker. All the former tribes and city states, i.e., departments, were reorganized and strong competent leadership installed. But after Snashall and Sweet left the Board, there was no strong leadership put in place to maintain the ‘empire’ and the Board has fallen into a morass of city-states and tribal organizations with their chiefs wheeling and dealing with each other in order to control the ‘trade routes’ which run through their territories so that they will grow richer and more powerful.¹ And while the current department heads, constantly being moved around (many not around long enough to be blamed for anything but around long enough to show their ineptitude) are not getting rich in the traditional financial sense, they fight for an ever increasing share of the trade routes, i.e., Board’s budget, as they seek to enhance their power and prestige. Thus when it comes time to leave the sinking ship, just when the barbarians are at the gate or new competent leadership arrives, they move on to new territories boasting of all their accomplishments: “the surgery was a success even if the patient died.”
In the next few weeks, I will be publishing a series of commentaries which will review some of the problems created by the tribal structure now at the Board and make a number of suggestions to return it to the ‘empire’ it once was, including naming names. While some suggestions will be taken from my book, Behind The Closed Doors - An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them, published just after I left the Board in June 2008, most will be new to take into account the current state of affairs.[16128-4041]
¹Donna Ferrara was an interim Chair and everyone knew it, which prevented her from leading the Board. Zach Weiss had great potential but left the Board for greener pastures rather than put up with the tribal infighting.
Temporary Total Industrial Disability
May 26, 2011: A 60+ year-old woman from Eastern Europe breaks four bones in her foot in a work-related accident, with her uncontroverted claim established. Initially awarded total temporary disability (TTD), after about four weeks when her foot started to heal, based on medical reports of the improvement in the condition of her foot, she was diagnosed with a temporary partial disability (TPD) and her compensation reduced accordingly.
But there was a problem. Although a legal resident living her for the past 30+ years, she speaks, reads, and writes minimum English, sufficient for her to work as a cleaning lady in commercial buildings. Her employer would not take her back until she could do her work, which necessitated her being on her feet virtually her entire shift. Since it was expected that she would probably recover sufficiently to return to that job, it made no sense for her to go into the job market and seek alternative employment, since due to her disability, lack of education, and language problem (and today’s economy), the only jobs for which she could probably qualify would also require her to be able to stand and walk during her shift.
Had her injuries been permanent, she would have qualified for a permanent partial disability (PPD) but probably with a total industrial disability (TID). But she was ready and willing to return to work and her employer to take her back, as soon as she was cleared in writing by her doctor to return to work.
Yet current law does not allow what would be other called ‘temporary total industrial disability’ (TTID).
This issue was raised by concerned commissioners when I first joined the Board in 1996. But Workers Compensation Law does not have such a definition. As a result, injured workers in the same condition as this woman cannot work for short periods of time but are treated as if they can do part-time work.
In fact, the issue of temporary partial rates raises the question of what do these rates mean?
Assume a worker is employed seven hours a day, five days a week at $20 an hour. AWW is $700 and maximum compensation is $466.62. They have a 60% TPD and can now return to work part-time, for 40% of their pre-injury work shift. If they work two full days (14 hours total), their compensation will be reduced: $700 - 280 = $420 x 2/3 = $280.00. But if their doctor says they should limit their work to just a few hours a day, i.e. 3 hours a day of 40% of their prior work shift, they get no compensation because they work a five-day week.
Anyone of you, the readers, who have ever had a serious injury, would agree that this raised an interesting question. If you could walk twenty blocks a day every day and then break your leg, when your recovery hits 20% (80% partial), this does not mean you can walk twenty blocks on Monday and nothing the rest of the week. It means you may be able to walk eight blocks every day. The shorter walks every day will help you return to your prior physical status, whereas walking the 20 blocks in one day can impede or reverse your recovery.
Is an injured worker’s return to work any different?
Let us forget for the moment that this could increase the cost to the carrier. But on the other hand, if the injured work is able to return to work, even part time, both the employer and the injured worker gain:
- The injured worker has more money. The 1/3 of AWW that is deducted when calculating awards was based on the assumption that 1/3 of wages went for taxes. So it was easy to reduce the award by the 1/3 and make the workers compensation awards tax free. But, other than social security tax, most injured workers, under current tax laws, pay far less than 33% of their wage as taxes: they will net more money by working.
- The employee stays in the mental mode of working and is easily able to return full-time. Alternatively, someone who has been out of work for months or years, even if only with a 20% TPD, gets into a mental ‘rut’ and finds it difficult to reenter the work place.
- The employer has someone who knows the job and has in the past been a satisfactory employee. And the employer avoids the expense of hiring someone new, with all the costs and risks associated with this hiring someone who turns out to be unqualified. And if the employer had others do overtime to fill the spot, he will save money on overtime. Also, by helping the injured worker return part-time shows that the employer has an interest in the workers, which can only help improve the attitude of all the employees.
When the workers compensation system was first conceived, even through the 1940′, most injuries were to limbs or organs and took time to heal. Now many of the injuries are soft tissue injuries or disease and changes in medical treatment have hastened healing and the subsequent ability for the injured worker to return to the job in a part-time capacity or with restricted duties.
Now before the Board says, “Hey, let’s set up a committee and then hire some outside consultants”, in the spirit of Mickey Rooney and Judy Garland in “Hey, gang, let’s put on a show in the old barn!”, I suggest that they look at the data already in their system.
But that is another story and will follow in my next commentary on this issue.
But the workers compensation community must take a look at the real meaning of ‘temporary partial disability’ and what it means in terms of the injured worker’s ability to return to work, supposedly the goal of the workers compensation system. It is not, contrary to the current operating philosophy of the Board, to minimize the processing of claims and expediting the closing of a case.[15127-4040]
Are 5,000+ §32’s Null & Void?
May 19, 2011: As a result of the May 5, 2011 New York State Appellate Court, Third Department’s decision in The Matter of Nickel v Pilgrim Psychiatric, the question is posed as to whether the thousands of §32 settlement agreements approved as administrative decisions between 2000 and April 2004 by the NYS Workers Compensation Board are null and void. It was in The Matter of Hart v Pageprint/Dekalb, 6 AD3d 947 , 948-949  when the 3rd Dept. ruled that the Board’s procedural changes to allow approval of §32’s without a formal hearing were invalid because they conflicted with the provisions of 12 NYCRR 300.36 and the waiver agreement in that case was never properly approved. The §32 agreement which was the subject of the Matter of Nickel v Pilgrim Psychiatric also was deemed null and void. A few ramifications come to mind, when the Pilgrim case goes back to a Law Judge:
- If the WCLJ sets aside the §32, is compensation due from the date the §32 was improperly approved through the date it is formally approved at a hearing, 7-9 years later? And what if the §32 is not approved? This would be interesting as most §32 settlements are for about 5 years worth of compensation.
- Do late payment penalties apply to any compensation newly awarded in excess of what was in the §32?
- Does this mean that every claimant whose §32 was approved during this time period by an administrative decision should request a reopening on the ground that their §32 did not legally close the case and they “have issues”?
- And if so, does this mean that they, too, will qualify for back awards, reimbursement for medical expenses over and above those specifically delineated in the null and void §32, usually delineated as the Medicare set-aside?
- Does this open an entire new problem for the carriers whereby the claimants ask the carriers for another $5K or so not to request a reopening? And if so, how would this issue be closed, since if these §32’s are null and void, the cases can be reopened. Would there have to be a new §32, incorporating the improperly authorized one, and the new one with the $5K (or whatever) “shut up” fee included?
You may argue that these are specious arguments. But when some of the Commissioners raised the issue of “what if” when we were told in 2000 about the Board’s plan to go to administrative decisions, we were told to do our jobs and sign our MODs (not one ever said ‘read’). But a little free thinking is what solves problems. Administrative decisions are an example of what happens when the goal of the Board is to expedite and/or eliminate hearings. The new medical guidelines with automatic treatment cut-off dates are another example as are the Board’s attempt to replace human reporters with electronic records (run by human technicians). In Pageprint, the case was brought up on appeal by a carrier who objected to the 20% late payment penalty; the claimant was otherwise satisfied with the §32. In Pilgrim, it is the claimant who is dissatisfied with the §32. Perhaps some of the answers to my above concerns will be addressed by a Law Judge. Then again, there may be more appeals once the Law Judge makes his decision.[15126-4039]
Court’s Reversal Again Shows Board’s Weaknesses
May 5, 2011: The NYS Appellate Court, Third Department’s reversal today of a Board panel decision in the Matter of Nickel v Pilgrim Psychiatric raises the troubling question of who at the Board is looking at the legal issues in cases that are submitted for Board panel review, Full Board Review, and Appellate Court review. In the Matter of Nickel v Pilgrim Psychiatric, the Appellate Court reversed the Board panel’s decision not to reopen a §32 settlement. While the issue discussed at length in the March 2010 decision issued by the Board panel was legally correct, a second issue was either overseen or ignored. In its opening analysis of the appeal, the Board panel decision noted that the claimant contended that the §32 settlement “was approved in 2001 without a hearing, and that the agreement it is fraught with mistakes and conflicts.” The Board, with legal precedent on its side, stated that the settlement “was approved, and that no claim is being made that the claimant was not paid the amount specified in the agreement. There is no evidence in this case to suggest that the agreement is unfair, unconscionable, or improper as a matter of law or the result of an intentional misrepresentation of material fact.” But they never addressed the issue of the fact that there was no hearing on the settlement. After having been hammered in 2004 in the Matter of Hart v. Pageprint/Dekalb, 6 A.D.3d 947; 775 N.Y.S.2d 195; 2004 N.Y. App. Div. LEXIS 4784, April 22, 2004, one would think that staff attorneys would be cognizant and thus watchful for appeals on §32 settlemenst done in the period covered by Pageprint. In that decision the Appellate Court ruled that the Board’s approval of the [§32] agreement without a hearing, pursuant to its “New §32 Settlement Agreement Procedures,“. . . “invalid because they conflict with the provisions of 12 NYCRR 300.36 and the waiver agreement was never properly approved.” Yet, in this decision, the Board made a quick decision to end the legal process (and the rights of the claimant as well) to make a fast decision and close a case. So how is it that this issue was missed not only by the legal staff who drafted the original Board panel decision but the staff in the Office of General Counsel (OGC) who are aware of all appeals of Board panel decisions that go erectly to the Appellate Court and bypass Full Board Review (FBR). It was obvious that in the appeal to the Appellate Court that the issue was the ‘non-hearing’ and thus the ‘non-legal’ approval of the agreement. The OGC should have taken note of same, authorized a Full Board Review, and, while not reversing the Board panel on the issue determined in its original decision, authorized a reopening of the case. I was always under the impression it was the responsibility of an attorney (and commissioner) not just the read the words in a document presented to them for review, but to pay attention to the words, their intent, both implied and inferred. But that takes time and it is obvious that the handling of this case is representative of the Board’s operating philosophy:
High numbers prove high efficiency, exceptions don’t count, i.e., the operation was a success even if the patient died.
Just as WCL §25-a cases have (one hopes) a three-year and a seven-year flag attached to appeals, §32 settlement appeals should also have one for the period cover by Pageprint. I had written many times in this website that one way to insure that the Board sees (since they often do not read) the issues being raised is to number them, indented in the appeal letter. And while the Board may still dismiss them, the odds are quite high that they will actually take note of and then address all the issues raised. As a final note: My experience as a commissioner when claimants appeared before me for a §32 settlement who were told that child support was to be deducted from their payment, when faced with the prospect of otherwise having their settlement rejected, always agreed to same. However, unlike many of my colleagues who said I was wasting time, I also made it a practice to give the claimant the NET AMOUNT of the check they would get, after legal fees and liens. Yes, this would add a minute or two to the hearing, but I was under the impression that this avoided any misunderstandings which could have resulted in a mess such as occurred in the Matter of Nickel v Pilgrim Psychiatric.[15124-4038]
The 100th Anniversary of the Triangle Shirtwaist Fire
February 24, 2011: One month from tomorrow, 100 years ago, on March 25, 1911, the life of injured workers in the State of New York was changed forever. The day before, March 24, 1911, saw the demise of the first New York “Workers Compensation” Law (actually the Labor Law), followed the very next day by the worst industrial accident in New York, until September 11, 2001, the Triangle Shirtwaist Fire. Because of the large influx of immigrants to the United States in the last three decades of the 19th century, many of whom settled in the New York City area, labor was plentiful and cheap, and perhaps for those reasons, exploited. Statutes to protect the safety of the working class existed in New York State but compared to the 21st century, protections were few and far between. One statute which did exist was Section 219-d of the New York Labor Law. The Law mandated compulsory coverage by employers of employees engaged in eight “dangerous” employments, and encourage voluntary coverage by all employers. Few employers elected voluntary coverage. In October 1910, Earl Ives was injured in the course of his employment for South Buffalo Railway Co. Mr. Ives was engaged in a dangerous employment. Mr. Ives applied for benefits in the manner provided for by Statute. He was required to apply to the employer and if the employer did not pay the benefits he could, and did, sue to compel payment based upon a statutory cause of action. He prevailed in a trial at Special Term, and judgment entered in his favor which was affirmed by the Appellate Division. The employer appealed. In a lengthy opinion the Court of Appeals held the statute to be unconstitutional as violative of both the State and Federal Constitutions. The essential basis of the holding was that liability had been imposed upon the employer in the absence of fault, and that the employer had been denied the right of trial by a jury which would decide the extent of damage caused by the employer and make an award therefor. The opinion was handed down on Friday, March 24, 1911. Saturday, March 25 was the first weekend of the spring of 1911, and many people were enjoying the spring weather in New York City. Persons walking in Washington Square, near New York University School of Law, were attracted by the sound of sirens and traffic to the Asch Building, the upper floors of which were occupied by the Triangle Shirtwaist Company. The Asch Building was adjacent to the law school. The upper three stories of the Asch Building were engulfed in flames. The fire only lasted a quarter of an hour, but in that time 146 people, 123 of them young girls, and more than half of them teenagers. The Triangle Shirtwaist Company fire was the worst industrial catastrophe in New York history until September 11, 2001. One witness to the fire was Frances Perkins, (Note 1) a labor activist who had been in the area to collect wages for “bindle girls” who worked in sweat shops but were traditionally not paid at the end of the week. Witnesses to the fire saw the Triangle employees try to escape from the fire by leaping from upper story windows because doors were locked and stairways were too narrow; they may have seen an overloaded fire escape pull way from the building, precipitating employees to the street below; they undoubtedly saw their crushed remains lining the sidewalk. Perkins and other labor activists joined forces with politicians from both political parties who were anxious to garner support for their parties from the labor pool in New York in the aftermath of the fire. The State Constitution was speedily amended and a new Workmen’s Compensation Law, as well as many other new statutes, were passed for the protection of labor. The new WCL was subsequently held to be not violative of the New York State or United States Constitution. A special thanks for Leonard Schnitzer for suggesting I post this important date and for putting together all the relevant information you have just read. Note 1: Later in 1926 Governor Al Smith appointed Ms. Perkins chairman of the Industrial Board (and so, ex officio, one of the Commissioners of the State Insurance Fund (Sec 77, WCL)), continued in that post by Governor Franklin Roosevelt and subsequently nominated by Roosevelt, when president, to be Secretary of Labor. She was the first woman ever to serve as a Cabinet member and she served longer than any other Secretary of Labor.[12114-4037]
Awards for Minors: Who gets paid?
February 24, 2011: The matter of the attorney who ‘mishandled’ an award made under a stipulated settlement generated a great many comments, some of which are noted in the following. To summarize, it seems that the claimant was illegally employed when he was injured resulting in an award for both compensation and a penalty under WCL §14-a, both of which were resolved with a stipulated settlement. Although the Court opinion is not clear on this and there was no Board Memorandum of Decision on the settlement, my assumption is that the stipulated settlements were done under WCL §32-a. The carrier paid the claimant directly but the funds from the employer, to be paid out over a fixed period of time, were made payable to the attorney for the claimant. The attorney, according to her own testimony, commingled the money with her administrative accounts and used that money for her own purposes, lying to the claimant about the status of payment from the employer. (In due course, full restitution was made by the attorney to the claimant.) The question I raised is “Why was the payments allowed to be made to the attorney and not the claimant?” Excluding minors and those with a guardian, WCL requires that payment be made directly to the claimant, the only exception being past due child support per WCL §33. NYCRR 300.32 references that payments be made to a “person legally responsible.” And although I have never conducted a hearing with a minor (neither oral argument nor a §32 settlement back when the commissioner worked did them), I do not know if a minor can conduct their case without someone with legal responsibility in tow, such as a parent or guardian. I am not aware of the fact that an attorney can act as in loco parentis without some specific underlying authorization from a civil court, even at a WC proceedings. It was pointed out that if the claimant is a minor, the Board requires a parent or guardian at the hearing. But hypothetically, the claimant could have been a minor on the date of the accident and turned 18 before the award is made. Once 18 he can act for himself. Also, I have been told that Section 11 court settlements are usually paid directly to the attorney. I actually don’t know for sure if a claimant can stipulate that §14-a hearing awards be paid in trust to the attorney but I can see how the §14-a employer would prefer that. By paying the attorney, there would be no question that the payments were made. But, if payment were made directly to the claimant by the employer, rest assured that if payment were not forthcoming on a timely basis, that claimant would be in contact with the Board or their attorney just as if a regular award for compensation was not paid timely. And for the employer, a copy of the deposited check is proof that payment had been received, something that can be also supported by registered mail, UPS, or Federal Express. Also, for claimant attorneys, getting the money and then having to send a check to the claimant is an additional bit of work I am sure most would want to avoid, particular these days when legal fees are decreasing. Perhaps it is time that the Board either issued a new rule or just sent a memo out to the law judges stating that all awards be made payable to the claimant or, in the event of a minor, to the person legally responsible. [12114-4036]
WCB seeks a new Claims Management System
December 8, 2010: The recently issued Business Process Re-engineering (BPR) from the New York State Workers’ Compensation Board for the ‘Claims management System Redesign‘ raises a number of questions.
There is no question that with technology increasing at a logarithmic rate, while the ECF/CIS system currently in use at the Board was state-of-the-art when it was introduced in the late 1990s, there are new technologies which can enhance the system to the benefit of the Board and its stakeholders. But why did the Board issue this Request for Information just prior to the recent elections for a new governor and prior to his taking office in January 2011? Is the current executive staff at the Board so confident that their stewardship for the last few years warrants their continued presence at the Board to follow through on this project? Or is this an attempt to initiate a project with such apparent complexity that only they can understand it and, therefore, the new governor must retain these truly unique individuals for the foreseeable future? It is interesting to note that both the Medical Guidelines and Disability Guidelines issued earlier this year only cover a few sites of injury, with each covering different sites, with no plans at this time to cover the missing sites of injury. Was this done on the basis that “half a loaf is better than nothing” or is another example of starting a process so allegedly complex that only the current staff understands it and, therefore, must be retained into the next administration. Now to the proposal itself.
Reviewing the project
Perhaps this is a minor issue with which to start a discussion of this proposal but in many ways this is symptomatic of how the current Board operates. For those of us who review lengthy documents such as this and incorporate its text into a more detailed review, it is nice and time-saving to be able to copy text from the original document into our review. But the Board has attempted to make this impossible by putting passwords in this document so that it cannot be edited nor the text copied. While there is a way around the passport protection, for those who do not know how to do this, the Board’s decision to password protect the text of an allegedly open document makes absolutely no sense. Is this an example of the openness that those who are participating in this project can expect from the Board?
The RFI states on page 7 §2.6 that “one of the most critical aspects for the WCB in the development of the target environment is the elicitization of system stakeholder requirements. Of particular interest to the WCB is learning about the experience with ensuring the appropriate stakeholder participation as well as communications programs in place during the conduct of business process reengineering project.” This not an issue for the potential vendors of the system to determine nor should their experience in other jurisdictions the determining factor. Just as in the decision in the Matter of Houda v Niagara Frontier Hockey, 16 A.D.3d 926, 792 N.Y.S.3d 651, the Board, recognizing that different states had different attitudes towards the wage-loss issue in this case and set its laws and court decisions accordingly, our Board [I was on the panel] and the New York State Court of Appeals affirmed an interpretation rejected by most of our neighboring states. Therefore, the level of participation at the early stages of this process should not be left to the firm with perhaps a Texas or Ohio mindset who wins the bid but should involve the stakeholders in this process from the beginning. If necessary, the Legislature and Governor Cuomo should step in to protect the interests of the stakeholders. So, it appears that the Board’s current plan, while the interest of the stakeholders will be sought, will seek that participation after basic project has been initiated. So much for making a new system of value to its users.
There is already a staggering amount of information available from the Board’ s current system, I know this to be true because, when I was at the Board, I was able to generate a great deal of analytical data from the information in CIF\ECF. I could break down average weekly wage by not only profession and age but also by gender and the nationality. The number of hearings by issue or district or by law firm or type the claimant could be used to help determine why some categories are outside the standard deviation. This data can also be used to determine if in fact the use of a Bell Curve for analyzing data is appropriate or whether there are other conditions which impact on the speed or lack of it in which controverted issues are processed to a conclusion. Statistical data could be provided to compare carriers, self-insured, or medical providers based on certain standards. The WCB database is relatively simple for anyone who knows how to use a multi-relational database and the more advanced features of a spreadsheet. And I have already suggested in this website how Board data can even now be integrated with data from both the public and private sector to ensure that compliance by employers in both carrying workers compensation insurance and paying the appropriate rates. All of this data is currently available but I know from my 12 years at the Board too many people at the Board either do not know the current capabilities of data generation, are told by the tech people it cannot be done, or were informed by the executive staff that such data is none of their business. In my book, on page 183, I tell the story of Albany complaining about the Brooklyn district office not meeting a certain level of productivity. Albany had no statistics to support their determination — they admitted as much when I spoke to them about their illogical complaint but they then supported their argument on the basis of “their intellectual ability to discern facts without having to look at data.” When I presented them with my own statistics collected from their own records, their complaints ended. In fact as the result of my data “mining“, complaints were filed by certain high-ranking members of the Board against me because I had been collecting information and therefore could and did influence decision-making. Another question relates to the type and amount of the data that will be made available under the new proposal that is now allegedly not available. If the staff does not now know the capabilities of data generation, is there any assurance that they will know the data generating capabilities of the new system? As to the question of confidentiality, will the stakeholders in the new system be able to generate any data they need or must they ask for it from the Board? And if they must ask for the data from the Board, then what will be the difference in the future from what exists now as the Board now does/cannot make information available? And if the stakeholders can generate information on their own by accessing Board’s data, does the Board recognize that the data can be used to support virtually any conclusion? For example, as I have previously discussed on this website, the current statistics as on the number of decisions affirmed, rescinded, modified, and reversed are “cooked”. Even the number of cases being closed each month, a number that the Board likes to trumpet as proof of its getting work done, is a “fiction” as the Board’s definition of “closed” is contrary to the world’s understanding of that word. “Closed” at the Board means “got rid of it“, not “the matter has been settled to everyone’s satisfaction.“
Currently, the Board asks stakeholders to provide documents electronically which are then scanned into the system, imported as graphics, i.e. pictures of text, rather than as raw text itself. Yet many small providers and claimants still submit their documents by mail and some even attempt to submit them at the local district offices. Will the new technology still accept such submissions or will everything have to be submitted electronically in a data-readable format? Will there be such a reliance on the new technology that many of the smaller stakeholders would be excluded from future participation in the system? Will the technological demands for participation in this 21st century technology be so great that injured workers and small employers are disadvantaged?
Historically, a new governor usually replaces the vast majority of executive staff with those of his own choosing which undoubtably should be the case at this Board, including the two Commissioner vacancies departing Governor Patterson is trying to fill. In addition, there appear to be a lot of other key personnel who are not political appointees who are also planning to leave the Board. I do not know whether you would call the timing of these proposals inopportune or, as said Alice, “Curiouser and curiouser!” This is not like building a house with all sorts of special features and then looking for a buyer. This is a custom-built house for specific buyer. Shouldn’t the contractor know if the buyer wants a two-story house or a one-story house, wood or brick, etc.? There is far more to this story than a simple bid process. Perhaps it would be better to put this on hold and have the new Board Chairman and new Executive Director meet with the various stakeholders throughout the state and then decide what is the purpose of upgrading the system. [0D103-4035]
Legal Fee Committee: Why? & Why Not!
November 18, 2010: Since the New York State Workers Compensation Board has seen fit to create a committee to discuss the issue of legal fees, it is an opportune time for me to revisit this issue.
The issue of legal fees touches upon a key facet of the workers compensation system, not only in New York, but throughout the U.S. In fact, legal fees are the basic foundation of the legal system in this country and this is why the Board’s foray into setting legal fees is unwise, to say the least. No matter how good and charitable may be their hearts, attorneys like doctors not only expect to be paid for their services but need to be paid in order to be able to continue to provide their services. And these fees pay not only for their time but also their necessary support services, be it rent, phone, office supplies, travel expenses and all those other costs of doing business, including workers compensation insurance for their staff. But too many people at the Board and too many legislators do not understand what it costs to run a business. Is the purpose of the legal fee committee to determine what are the proper fees for the services rendered by both parties? If so, history is replete with disastrous results of price controls, be it the Weimar Republic or Nixon’s economic strategy. CARRIER LEGAL FEES: There are really two sides: the carriers and their outside lawyers. Carriers are in the business of making money and they will pay as little for legal fees as possible. But even if, as some allege, their outside attorneys look for ways to stretch out cases, i.e extra depositions, the total amount of legal fees is a minuscule portion of the premiums collected for workers compensation insurance. The Board certainly cannot take steps to deny carriers and self-insureds the rights to defend themselves against what they may feel are inappropriate claims. [Maybe that should be ‘should’ rather than ‘can not’!] CLAIMANT ATTORNEY FEES: First of all, with only a few exceptions, no one in this business is making millions as they would in civil litigation, criminal law, or white collar law. Or in real estate, mergers, or the dozens of other specialties available to attorneys. Yes, there are some attorneys in this field making a lot of money but they are senior partners of major law firms. And when one considers the income level of some of the non-lawyers sitting in on this committee, including some working for non-profits, one has to ask if their salaries should be subject to government scrutiny. There are some states that do have set fee structures but these fee structures go back decades. Like many of those in other states, the fee structure in New York is the cultural practice of a subset of the legal culture in the NYS workers compensation system. Other states have their own cultural history and practices. It makes as much sense to decide that the legal fee structure of Arizona is as fit for New York as it is to decide that the cultural practices of the Navajo are a perfect fit for the Iroquois. For example, when the commissioners used to do lump sum settlements, the fee was usually 10% of the gross settlement. §32’s basically charged the same 10% if the case had been classified and the classification fee had been paid. If the claimant had not been previously classified, the fee was 15%: the base 10% plus an additional fee for the classification that usually was a necessary first step in negotiating a settlement. Yes, in some cases, there is not much work to get a settlement. But in others, there is an enormous amount of work. For a few years, some attorneys who did not specialize in workers comp but did have a few cases and settlements would present a fee request well in excess of the 10% or 15% normally associated this these cases. And along with the OC-400.1 fee request, they would attach a bill broken down by billable hours and the total was invariably higher than the customary 10%. The Board’s position had always been that comp attorneys do not get paid by the hour but by the results. And now they want to change that? To what, present an hourly bill and you will get paid a percentage of the settlement or by the hour, depending on which is less? And then the Board expects that these attorneys will want to handle every case they get? And if there is any need to prove this to the Board, consider how difficult it has been over the years for claimants in a §120 discrimination case to get an attorney if the claimant did not already have an injury claim in process? They could not get an attorney to help them with the §120, the problem being that more often than not the claimants did not win and, when they did, the awards were relatively minor. This was sufficiently disconcerting that a number of us (the more conservative commissioners) spoke to the various chairmen and general counsels about setting up some sort of pro-bono system so that these claimants would have representation. The result of our request was that nothing was done, based on their opinion that it would not have been fair to make attorneys work, essentially, for free. That seems to contradict the current attempt by the Board to get involved in the issue of legal fees. Of course another facet of this problem, in a COMMENTARY I published on this page on September 28, 2009 dealt with legal fees on medical expenses. Basically my commentary proposes fees be paid on medical only cases as it is not fair to ask or expect an attorney to work as hard on a medical only case as they would on a comp only case with no medical fees at issue. Another aspect of legal fees is the history in 2008 of appeals to the commissioners that involved legal fees that were reduced at §32 settlement hearing. Yes, I and a few other commissioners who actually read the files would cut fees if we felt that the settlement contract itself was poorly drafted or the claimant had no idea what as going on. But my own records show that I approved 99.5% of the fees that came before me as did most of the other commissioners who reviewed the settlement and accompanying files. The problem was that there was/is what can best be described as an anti-attorney philosophy that was in place in the Manhattan district office which resulted in many appeals which went to Brooklyn for hearings before the commissioners. This situation, with a group of law judges capriciously cutting these fees, deteriorated to the point at which nearly 90% of the appeals on §32 fee reductions were from three law judges in Manhattan. But there is a partial but very easy solution to the problem of what the Board may consider to be excessive fees:
Reduce the amount of litigation by issuing coherent and consistent decisions.
If you question this recommendation, consider that the New York State Appellate Court, Third Department, writes just this past week as it has done far too often before:
“[g]iven such apparent inconsistencies, these reports cannot serve as the basis for the Board’s decision.” Waldheim v Hudson Sheet Metal, 3rd 2010-11-10
“the Board failed to follow its own precedent.” Norcross v Camden Cent. School, 3rd A.D. 11/10/2010
I noted earlier in this Commentary the issue of how many depositions are appropriate. Well, Waldheim v Hudson Sheet Metals gives pause when one considers that it may not matter how many there are if the judges, commissioners and their writers and the staff of the Office of the General Counsel do not read them. It is obvious that the Board’s inconsistencies are responsible for many of the controverted cases, cases which then require the attention of an attorney, which in turn requires that these attorneys get fees, either out of the claimants’ awards or the carriers premiums. Norcross v Camden essentially tells the clients (injured workers, self-insured, and carriers) don’t worry about the facts – they do not matter. “Just because Party X lost on the same facts as in your case, this does not mean you can not win. It’s a flip of the coin.” And this assumes Board even reads all the facts in the file. In fact, one could argue that any losing party whose attorney does not appeal a decision could be taken to the Bar Association for failure to properly represent them. My recommendation is that the Board use its energies to insure consistent and coherent decisions as this process will do far more to reduce legal fees than any attempt to force lower fees on both sides which could, in turn, reduce the amount and quality of representation for injured workers and their employers. Or is that the ultimate goal?[0N100-4034]
Medical Guidelines: So much done - So far to go! September 27, 2010: I was planning to do a poll on the Medical Guidelines and Functional Assessments for today but in order to make sure my questions were relevant I read these documents again but in more detail. To my surprise, really, was the fact that the medical guidelines only cover a few sites of injury. The sites covered are the Spine and Pelvis, Respiration (lungs and thorax), Heart, Skin, and Brain, plus the more subjective “Pain”. No shoulders or knees or hips or ankles or wrists. And to make matters worse there is no “to be continued”. Instead, in my opinion and that of a few in the community, the NYS WCB dropped the ball or ran out of gas. Chapter Eight, for “Other Injuries and Occupational Diseases (Default Guideline)”, states that, for other sites, the Medical Director can decide however he wants and then once he does what he wants, that shall become the new Board guideline for that site of injury.
The following procedure for determining medical impairment shall be used when a medical diagnosis establishes that a body-part or occupational disease is not covered by Chapters 2 through 7. The first time that the medical impairment for an uncovered body-part or occupational disease is to be determined, the claim shall be referred to the Board’s Medical Director.
To determine the medical impairment for the body-part or occupational disease that has been referred, the Medical Director shall select a guideline from the medical impairment guidelines used in other states for workers’ compensation claims or shall develop a guideline using methods consistent with those used by the Task Force. The Medical Director should take into account the severity rankings of these initial Chapters in developing the severity rankings for any such future guidelines, and shall use a ranking system consistent with these initial Chapters, as provided herein.
All subsequent claims for injury to that body-part or for that occupational disease shall use the guideline designated by the Medical Director under paragraph 3. (The Medical Director may change the designated guideline in accordance with paragraph 3, but thereafter any future claims for injury to that body-part or for that occupational disease shall be governed by the newly designated guideline.)
Isn’t that where we were before the 2007 Amendment? The A-Z rating do not have any quantitative definitions. And these guidelines also state that a “M” for a spine injury is not the same as an “M” for a respiratory problem. Equally important, as is noted several times in this document, “The Medical Impairment Class and severity ranking should not be used as a direct translation to loss of wage earning capacity.” Also, “each Class has a severity ranking assigned to it that is generally reflective of the expected functional status for each Class relative to other Classes within a Chapter. The severity rankings for the Classes, from ‘A’ (the least severe medical impairment) to ‘Z’ (the most severe medical impairment) of one chapter should not be compared to the rankings in other Chapters. For example, a “D” ranking in the Spine and Pelvis Chapter is not intended to imply that a “D” ranking in the Respiratory Chapter is of equal severity.” So it seems that only a part of the process has been competed, a complex part but not the entirety of the project. Everyone should appreciate the tremendous amount of work done by the Committee and Task Force. Having served on a number of boards myself (profit and non-profit) I sympathize with the problem of trying to get so many people from such diverse and normally working opposite sides of the fence to concur or such an important subject. My sense is that there was no driving force behind this project. In the movie “The American President’ with Michael Douglas aa president, after a transportation strike was called at Christmas, he told his staff to put both sides of the dispute in a conference room, take away all the chairs, and lock the door until they get an agreement. Mr Chairman! Mr Governor! Anyone listening? Anyone in charge care? Anyone in charge there? Well, be it Cuomo or Paladino, there will be someone in six months who will lock everyone in a room.[09092-4033]
Voluntary Withdrawal from the Labor Market
A Review of Court & Full Board Decisions
September 7, 2010: One issue that has remained a major source of controversy is that of Voluntary Withdrawal from the labor market. Five of the 26 Full Board reviews published by the NYS Workers Compensation Board this year deal with this issue as did nine decisions issued by the New York State Appellate Court, Third Department in 2009 and 2010, all fourteen of which are referenced below. The record in these cases shows that both the Court and the Board have split their decisions with about half supporting the claimant and half affirming the carrier’s position as to whether or not the claimant is attached to the labor market. In a recent discussion I had with a claimant advocate, I was castigated for pretending to be neutral when he alleged that I was one of the leaders who used the concept of Voluntary Withdrawal from the labor market to deny injured workers their due compensation. An analysis from 2010’s Full Board Reviews (selected by the Board using some unknown criteria) and the Appellate Court’s ruling in 2010 and 2009 show that even the current Board, now mostly Democrat and pro-union Governor Paterson appointees, agrees that there are some claimants who just are trying to collect compensation in addition to their social security (disability or pension) and/or their regular retirement pensions.
Who First Raised The Issue
Actually, this issue was raised in about 1997 or 1998 by Vice Chairman Jeffrey Sweet who expressed his displeasure at those injured workers who had gone back to work after their injury, but then, on approaching retirement age, suddenly claimed that their non-disabling disability had gotten worse or they were now permanently disabled and no longer able to work. Sweet felt that in some of these cases this was a strategy to collect tax-free workers compensation in addition to their pension. After a number of informal discussions, the Pataki-appointed commissioners started looking into this issue and began denying compensation where appropriate. In some cases, there were claimants who had retired with partial disabilities, moved to Florida, and left the job market. Then a few years later their condition deteriorated and they sought a reopening of their case to get classified with a permanent total disability and to collect compensation because they could not reenter the job market. These claims for additional compensation were ultimately rejected on the basis that the claimant had not realistically sought to renter the job market for many years, until just before they sought to reopen their case. I do remember one claimant attorney who told me that, since a number of his claimants were veterans, he would send them to the Veterans Administration to find jobs and, when they could not, he would come back to get them compensation. My response was “But that is what they are supposed to do!” They are, by the Board’s standards, supposed to really look for work. And if they cannot find it because their disability restricts their job prospects, they will get their compensation, as did many of the claimants whose cases are listed in this commentary.
How To Win/Lose a Case
The record is clear that any claimant who follows the basic guidelines noted below will most likely qualify for compensation and not lose on the basis of voluntary withdrawal from the market place.
- The claimant should first make sure that his doctor lists in as much detail as possible his restrictions in terms of standing, lifting, twisting, turning, walking, etc and make specific mention as to whether or not such restrictions prevent the claimant on a permanent or temporary basis from returning to the employment they had prior to their injury.
- The claimant should keep a detailed list of all firms they contact: name of firm, date of contact, contact person, job sought, how they got that firm’s name, why they did not get the job.
- If they are getting any training or attending school, details on this should also be included.
- Their prior work history should be included as this will often demonstrate limited skills and experience. Many times these claimants will qualify as industrially disabled, making it far more like that their inability reenter the job market is causally related.
The issue of industrial disability is also a key factor, one in which prior work history is relevant. I know a claimant in his mid 30’s, who never went to college and has worked as a waiter or bartender until the time of their injury. They have never worked in an office or done anything with paperwork. He has just written down orders and, if for food, given them to the kitchen and, if drinks, made the drinks and delivered both to the customers’ tables. Due to a back and neck injury, he can not stand for more than 20-30 minutes at a time and has limited mobility and minimal strength in one arm. Based on his work history, he has limited job prospects until he finishes some courses to allow him to do office/clerical work. (Of course, this deals with the issue of Functional Disability as well and that will be the subject of another commentary but, in this case, this claimant’s search for work may not be as successful as an experienced office/clerical worker with the same injuries.)
Case Summaries: 2009 & 2010
Injured workers must understand that, in most cases, none of the following conditions automatically qualify them for workers compensation:
- Retiring from one job and getting a disability pension. (Smith v Consolidated Edison December 10, 2009 Appellate Division, Third Department)
- Qualifying for Social Security disability (Garifo v Pathmark Stores March 4, 2010 NYS Appellate Division, Third Department)
- Retiring to Florida and not working for years, then upon suffering from an increase in disability, seeking compensation for inability to reenter the job market. (Magerko v Edwin B. Stimpson Co November 25, 2009 Appellate Division, Third Department)
What will disqualify them is
- Refusing to take a light duty job (Porter v Triboro Bridge November 12, 2009 Appellate Division, Third Department)
- Having other substantive medical problems (Parrelli v Atlantic Constr November 25, 2009 Appellate Division, Third Department) although the burden of proof is on the employer (Mistofsky v Consolidated Edison December 10, 2009 Appellate Division, Third Department and Burns v Town of Colonie October 1, 2009 Appellate Division, Third Department)
- Losing their job because of misconduct rather than their disability and then not making a serious search for work. (Cicinnati v Clare Rose, Inc March 11, 2010 NYS Appellate Division, Third Department)
- Working full time without restrictions up until the day they retire, retiring solely to preserve health care benefits. (City of Rochester WCB #704110419 Filed July 8, 2010)
- Getting laid off, even with a disability, but not making a real effort to find work. (St. Francis Construction Corp. WCB #30705539 Filed July 8, 2010)
In summary, despite whatever limitations the claimant may have, how diligent they seek a new job, and document that search, will determine whether they qualify for awards (American Axle WCB #80303659 Filed February 4, 2010; Silipos, Inc. WCB #80801128, filed April 13, 2010; 420 E. 86th St./Carlton Mgmt WCB #00253104 Filed March 23, 2010; and ITT Industries, Inc. WCB #79712417 Filed May 6, 2010).
How to Resolve this Issue
Hopefully, if attorneys for both injured works and the carriers pay attention to these points, some of the more egregious cases (probably 20% by carriers and 20% by claimants) will not be controverted, thus allowing the Board to use its resources on those cases that make up the “mushy” middle, where the issues are not at all clear. Were I the chairman of the Board, I would invite one attorney for each side as well as a union representative, an employer representative, one commissioner, and one law judge to an open forum to discuss this issue before an audience made up of members of the workers compensation community, including law judges, commissioners, and writers for the commissioners. After all, is it not the goal of the Workers Compensation Board to not only administer and, in effect, arbitrate disputes but to take steps to minimize the need for the parties to have to litigate in the first place. Of course, there are other key indicia not noted here, as many were not touched upon in these 13 cases. And I am sure that every practitioner and advocate for each side has their own perspectives. Until a forum takes place (certainly not during the current administration), such perspectives are not only welcome by me but sought and will be published in the next posting on this website.[09090-4032]
Two Guest Letters/Editorials
May 21, 2010: I am quite pleased to publish two letters from two well-known workers compensation attorneys on issues relating to the Board’s administrative announcements.
My first guest COMMENTARY is from Roslyn Sackel, partner at Sawers & Sackel, a Hamburg NY firm specializing in representing injured workers. In her letter which was published May 14, 2010 in the Buffalo News, Ms. Sackel explains why the plan of the Workers Comp Board to move its Buffalo office from the Cyclorama Building to Ellicott Square makes no sense financially, but more importantly, why it will negatively impact on injured workers who need to go to the Buffalo office. In our COMMENTARY page, we reprint the entire letter, not just the edited version posted in the Buffalo News.
I would like to point out that after this week’s confirmations of Commissioners Willams and Lobban, both from the Buffalo District, there are now four commissioners from the Buffalo district: Bargnesi, Higgins, Williams, and Lobban. I would like to think that they have thoughts on this subject and that several of the collegaues would join them at the next full Board Meeting on June 15, 2010 to firmly and formerly advise the executives at the Board that the Buffalo office should stay where it is.
Our second guest COMMENTARY is from Aaron Zimmerman, who represents injured workers out of his office in Syracuse, New York. Mr. Zimmerman took a few hours from his schedule to attend the Board’s Webinar about the new MAP program and writes that not only was it a waste of time but explains why this new program will further decrease the rights of injured workers and further impede their ability to get fair treatment from the Board.
The only question I have is:
Will the Board read these letters to see who they can punish or will the Board read these and actually listen to what Ms. Sackel and Mr Zimmerman have to say? [05078-4031]
An Attorney’s Says “Don’t Move the Buffalo Office, Again!”
May 21, 2010: New York State is attempting to change the location of the Buffalo office of the Workers’ Compensation Board which will affect claimants in a negative way and will unnecessarily spend taxpayer’s money. The Buffalo office of the WCB handles approximately 25,000 hearing per year, which equates to approximately 480 hearings per week. The new location is less convenient to disabled claimants in both logistical and financial ways; it poses potential safety issues to disabled claimants; and it will cost taxpayers in the range of $700,000.00 of unnecessary funds.
As of 5/10/10, the Office of General Services approved and signed a 10 year contract to move to the Ellicott Square Building. However, the contract still needs to be approved and signed by the Attorney General and the Comptroller, so there is still a small window of opportunity to stop this from happening.
Currently, the Buffalo WCB is located at the Cyclorama Building at 369 Franklin Street. The WCB is the only business/agency housed in the building, and all of the court rooms are located on the first floor. The building is centrally air conditioned. Once a claimant enters the building they are greeted and directed to the appropriate areas to await their attorneys. The building has a large on-site parking lot immediately adjacent to the building’s entrance, with handicapped parking very close to the entrance. Claimants can park there free of charge.
Albany’s plan is to move the Buffalo WCB to the Ellicott Square Building at 295 Main Street. There is no immediately adjacent parking, and the parking will not be free. Claimants will have to pay for the parking themselves, which could present a financial hardship for claimants living on compensation benefits or for those who are receiving no benefits and are fighting with the insurance company for payment of benefits.
Logistically, the Ellicott Square Building is located in a much more congested part of the city where parking is at a premium and, as mentioned above, is not free. Claimants will have to drive around this congested area to find an available pay-to-park lot. Unfortunately, most of the parking lots surrounding the Ellicott Square Building already accommodate the people who work in that area on a daily basis, and they fill up quickly. Most importantly, even after driving around to find an available pay-to-park lot, disabled claimants will have to walk varying distances from those lots to reach the building.
The Ellicott Square Building sits on an entire city block, encompassing Main Street, Washington Street, South Division Street, and East Swan Street. The handicapped entrance is only located on the South Division Street side of the building. If handicapped claimants find available parking on the Main Street side of the building, they will have to walk all the way around the city-block sized building to access the handicapped entrance on South Division Street. Once inside the large building, claimants who utilized the handicapped entrance will then have to walk all the way back to the Main Street side of the building to access the elevators.
Once finally inside the building, claimants will have to make their way to the area on the fourth floor that is going to house the WCB. The experience of extra driving to find parking, as well as walking extra distances both outside and inside the building, will be physically and mentally taxing to the disabled claimants. In addition, the fact that they will have to pay for parking that was previously free is an additional expense for them at a time when they are struggling to meet expenses due to their disability and loss of wages.
The Ellicott Square Building has never been updated to accommodate a central air-conditioning system. Apparently, Albany plans on trying to cool the fourth floor WCB location using singular window units. The noise of window units would obviously be a distraction during hearings, as well as during pre and post-hearing discussions with claimants. In addition, it is questionable whether mere window units could sufficiently cool the fourth floor space that houses the significant number of people present at the Buffalo WCB on any given day. Remember that the Buffalo office of the WCB handles approximately 25,000 hearing per year, which equates to approximately 100 hearings per weekday.
The Ellicott Square Building was built in 1896 and has narrow, antiquated stairwells. In cases of emergency, such as fire or bomb threat (which just happened at the Ellicott Square Building in mid-April), all disabled claimants would have to evacuate from the fourth floor using these stairwells, as is required in any emergency evacuation. The numerous claimants present at the WCB on any given day would have to maneuver down four flights of these narrow stairwells as firefighters and response personnel are maneuvering up them. This seems potentially impossible and potentially catastrophic. We are yet unaware of whether there is a fire-proofed room available for the disabled claimants who are not ambulatory and require wheelchairs and/or walkers, and cannot maneuver down the stairwells during an emergency.
Seven months ago, NYS spent approximately $700,000.00 when it had to move the Buffalo WCB from the Statler Towers to the Cyclorama Building due to the condition of the Statler. Moving again, to the Ellicott Square Building, when the current location at the Cyclorama Building remains available, would most likely cost another approximate $700,000.00 of taxpayer’s dollars. That’s a total of $1,400,000.00 in taxpayer money for two moves within a seven month period.
Supposedly, the bid from the Ellicott Square Building was the lowest, but that bid apparently only included the rent. It did not include the utilities, the cost of air conditioning window units, and the potential cost of the state employee parking, which is free right now at the Cyclorama Building. The bid from the Cyclorama Building reportedly included rent, utilities, central air-conditioning, and the benefit of free parking.
Relocating the site at this point makes no sense when one considers the expense of the move from the Statler to the Cyclorama Building just seven months ago, and especially when one considers the current site’s convenient first floor access, handicapped accessibility, and free on-site parking.
I have practiced workers’ compensation while the Buffalo district was located at the Donovan Building, the Statler Towers, and currently the Cyclorama Building. There is no question in my mind that the current location has positively affected the claimants, financially, emotionally, and behaviorally. Their positive experience at the convenient Cyclorama Building translates to a positive experience for their attorneys, the carrier’s attorneys, the Judges, the court reporters, the security staff, and the WCB administrative staff. I can foresee that the claimant’s negative experience from the inconvenience of the Ellicott Square Building will unfortunately result in a negative experience for all involved.
The NYS WCB is supposed to be a customer-service oriented administrative system that services the needs of the people of the State who were injured while performing their jobs. Certainly, the most important consideration here must be the safety and convenience of the disabled claimants attending their hearings, and the Ellicott Square Building is not the best choice available to the State. When one examines the factors involved, it is hard to understand why Albany would make a decision with such a negative effect on those it is supposed to be serving
I strongly encourage the public to contact Comptroller Thomas DiNapoli at www.osc.state.ny.us, 847-7122, (518)474-4044, 65 Court Street, Room 504, Buffalo, NY 14202, and Attorney General Andrew Cuomo at www.oag.state.ny.us, 853-8400, (518)474-7330, 350 Main Street, Buffalo, NY 14202, to stop them from signing this contract and stop this move from happening. In addition, although not as effective due to current circumstances, the public can contact their district’s NYS Assembly Representative and State Senator, the Office of General Services, and Governor Patterson to voice their opinions. Do not contact the Buffalo office of the WCB, as the decision does not lie with them, it lies with Albany. Time is of the essence.[05078-4030]
Roslyn Sireci Sackel, Esq. Sawers & Sackel, LLP 81 Buffalo Street Hamburg, NY 14075-5003 (T) 716-648-1300 (F) 716-648-1700
An Attorney’s Review of Managed Adjudication Path (MAP)
May 21, 2010: I just spent more than an hour listening to the Board’s presentation about the new MAP procedures, and how these procedures would not alter the substantive rights of the parties. Talk about the Board’s feigned concerns over claimants “wasting” their time by going to hearings to protect their rights– listening to the Board’s MAP Webinar on 5/7/10 was a complete waste of time.
This program was nothing more than propaganda to support the Board’s foregone conclusion that there WILL be less hearings. There is no question the fastest way to reduce “friction” in the system is to reduce the the number of hearings. Of course, the quickest way to reduce hearings is to reduce attorney representation of injured workers. And all the Boards needs to effect this goal, is to stop allowing attorney fees. For there are statistics which confirm the Board holds a lesser number of hearings for an unrepresented claimant as compared to a represented claimant.
My office has represented injured workers for more than 30 years. I have represented literally thousands of injured workers. Almost without exception, my clients want hearings. I speak from experience, and should the Board choose to investigate, the Board will find statistical proof injured workers who are represented by an attorney receive significantly greater benefits than the unrepresented injured worker. All the Board needs to do is look at the award of indemnity benefits granted to represented claimants as opposed to unrepresented claimants. A similar analysis is made by most insurance carriers on a regular basis and they know this statement is true.
A hearing before a law judge allows the parties an opportunity to be heard–this is called Due Process. The right to file an objection to a Proposed Decision, issued in the back-room by some nameless and faceless bureaucrat, is not Due Process. The reason so many Proposed Decisions are not objected to is because claimants do not understand the significance of the Proposed Decision. Upon receipt of the Proposed Decision, injured workers frequently do nothing–to their detriment. This is not substantial justice
If the Board truly believes claimants do not want hearings, then send unrepresented claimants a form telling the unrepresented claimant that they can waive their right to a hearing by signing and filing the form. Then publish the statistics. We will see how many unrepresented claimants affirmatively waive their right to a hearing. Of course, this proposed procedure will never occur– because the Board has maliciously and purposely skewed the procedures and facts in an attempt to limit hearings. It is obvious this Board does not want to hear, nor does the Board seek, the truth. The Board has an agenda to limit hearings– and represented claimants create “friction” in the system as their rights are litigated.
It is submitted the vast majority of the practicing Bar believes the Board will unethically and improperly use the new MAP procedures to further limit hearings and further limit fees to claimant’s attorneys. If a fair attorney fee will not be approved by the Board, claimants will be quickly find they are unable to find an attorney who will represent their interests. And this is the true goal of the Board’s “procedural” changes. Represented claimants will demand justice–and justice takes time, effort and money. The evidence is clear the Board can not and will not “spend” the time, effort or endure the expense needed to justly administer the workers compensation law.
This is the only system where the Administration “protects” claimants by reducing attorney fees after a represented injured worker agrees the fee is fair and reasonable; and then further “protects” the injured worker by refusing to hold hearings where their grievances can be heard.
For the most part judges make decisions without actually listening to testimony. A transcript is enough. Now, the Board wants to make decisions without hearings. Every day there is less and less trust and respect in the Board. The proposed MAP procedures show why everyone who is required to adjudicate workers compensation claims does not trust nor believe the Administrators of the workers compensation system.
I urge the MAP procedures not be implemented and that every claim be physically heard at a hearing held before an administrative law judge.[05078-4029]
THE LEGAL TEAM Aaron Zimmerman, Esq. 117 South State Street Syracuse, NY 13202 [T] 315.475.7777 [F] 315.475.4225 email@example.com
Judge Hellerstein correct: Legal Fees
for WTC Settlements Unreasonable
March 26, 2010: Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement was correct, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.
Based on my 12 years service as a Commissioner with the New York State Workers Compensation Board overseeing nearly 15,000 settlements as well as hundreds of cases in which the issue was legal fees, the filing and settlement of claims for these 10,000 workers involves legal work, and therefore a fee structure, more in line with the 10% to 15% in the workers compensation system than the 30% to 40% in civil litigation.
The similarities between these Ground Zero claims and those in workers compensation are many. The money necessary to make payment of the settlements has already been set aside and, unlike some civil litigation, the attorneys here do not have to worry about collecting their fees. There is no question that these claims are causally related in terms of injuries and illnesses. And there are minimal difficulties in establishing the identity of the injured workers.
The only issues being controverted deal with the specific injuries and illnesses of the workers, the impact of this medical condition on their future earnings capacity, and the amount of medical treatment that may be necessary in the future.
In the New York State Worker’s compensation system, final settlements known as §32 waiver agreements range from $5,000 to $150,000, similar in amounts to those proposed under the Ground Zero Settlement. If there were no prior fees paid, the §32 fees awarded were usually 10%-15%, occasionally not including medical expenses.
At this time, the original Ground Zero settlement projects legal fees of 30% to 40% which on a $600,000,000 settlement comes out to approximately $200,000,000. Based on the workers compensation settlements I approved in one four-year period, the average fee was 11.4% on an average settlement of a $46,300,. Were this more appropriate fee schedule used by Judge Hellerstein, each worker would receive an additional $13,000 while the attorneys would still receive $68,400,000.
In those cases in which the medical portion of the settlement was substantial, that amount was usually excluded before the fees were calculated. The concept behind not paying fees on medical expenses is based on the premise that medical expense reimbursements in the settlements are to pay for the entirety of the injured workers’ proposed future medical expenses. To deduct 15% for the legal fee is in effect requiring the injured worker to make a 15% copayment for his medical treatment. That a 30% or 40% “copayment” could be considered in these Ground Zero cases is at best an “injustice” and may in fact be the reason that the total fund is so high: in order for the injured worker in a civil case to get $100,000 to cover his projected future medical costs of $100,000, the settlement would have to be for a gross of $166,666 to allow for the 40% legal fee.
Putting aside the issue of the legal fee on medical expenses, the workers compensation system in New York and probably in the other 49 states is structured such that the handling of claims with the appropriate forms, procedures, and hearings are fairly consistent, thus minimizing the need of the workers compensation attorneys to reinvent the wheel every time that they have a new case, thus lowering their administrative costs as compared to a civil litigator.
Processing of the claims for these 10,000 workers would appear to also be consistent from one case to the next such that the 10% to 15% fee which has enabled attorneys in the New York State workers compensation system, who have successfully practiced for many decades, should be more than enough for attorneys involved in the Ground Zero settlement.
In fact I would even suggest that Judge Hellerstein consider hiring the services of those law firms specializing in the handling of workers compensation for injured workers. These attorneys are accustomed to handling large numbers of cases at a time but still have the ability to provide the injured workers and their families with the care and attention necessary to not only do financial justice to their clients but also to make them feel like human beings.
These workers who rushed to the aid of their fellow citizens without thinking about the future repercussions deserve to be treated with proper dignity. The issue is not one of a settlement of 10,000 cases but the settlement of a claim by 10,000 different individuals.
The Insider’s Recommendations
to Improve Board Procedures
March 15, 2010: The New York State Workers Compensation Board has been preparing a number of basic changes in operations and procedures which involve judges, conciliators, and court reporters, with justifications ranging from the budgetary requirements, to expediting the process, to finding more efficient ways of getting cases done faster.
In reality there are far simpler solutions for which the annual cost could well be under $30,000 a year. Of course this may well entail a solution which for some may be a totally unacceptable:
- Use electronic transcription only for hearings on §32 waiver settlements
- Have the Commissioners do all the §32 hearings
Let’s put aside for the moment the fact that the Board justifies its need for electronic transcription because of the shortage of court reporters while failing to cite one example of a hearing adjourned for the lack of a reporter. A legitimate review of this issue would ask the following question:
- How many hearings were transcribed by reporters and for how many of these were the minutes actually needed?
- Is there any category of hearing for which minutes are never needed, or often needed?
While I cannot answer that question for hearings conducted by law judges and conciliators, I can answer it with some numbers from 2002 when the Commissioners conducted the hearing for §32 waiver agreements. In 2002, I participated in approximately 1,100 §32’s, including about 30 or 40 of these which I heard twice as they were adjourned for a second hearing. But it was a rare month when after the hearing was completed that one of the attorneys asked for a copy of the transcript, almost always for cases adjourned because of some substantive legal issue.
At that time there were about 10,000-12,000 hearings held a year by the Commissioners. I know that many Commissioners approved virtually every agreement they heard so that I am sure that there were probably not more than 100 §32 hearings a year which required minutes.
As a result there were a lot of court reporters taking a lot of time taking minutes that were never used. Perhaps the trial of electronic transcription proposed by Chairman Beloten should be done at the §32 hearings.
Having participated in oral arguments as a Commissioner as well as §32’s and having sat in on a number of hearings conducted by the law judges, I can attest to the fact that some of the problems with crosstalk that exist in regular hearings do not exist at §32 hearings. The Commissioners are not under the time constraints as are the law judges. Thus the results of electronic transcription at these hearings, in such a simpler atmosphere, would prove their validity, or disprove it.
§32 BY COMMISSIONERS
Of course, for the above recommendations to take place, the §32’s would have to be given back to the Commissioners. Actually there was no legitimate reason for these to have been taken from the Commissioners in the first place. Originally every §32 agreement was heard before a Commissioner. Then, it was decided that waiver agreements which would have previously qualify as Lump Sum Settlements could be done administratively. Then additional categories were added to the list of cases that could be done administratively such that a goal of 70% administrative versus 30% hearing was set. The reason the §32 cases were taken from the Commissioners was the specious excuse that it would be best if all the claimants had a formal hearing and there were too many §32’s for the Commissioners to do. Actually one reason for the change was that a few commissioners did not want to have to attend hearings.
In the beginning years (1997-2000), the Commissioners were able to take care of 10,000 to 12,000 cases a year even though this meant that all the Commissioners had to actually work and attend hearings; some even had to travel. And I am referring not just to Commissioners flying from Buffalo to New York but to some Commissioners for whom a 40 mile drive from their home to the district office had suddenly become too much of a burden.
In view of the fact that there are now virtually no oral arguments, common sense would indicate that the Commissioners have more than enough time to do the §32’s. Back in 2002-2003, each Commissioner attended 5.29 hearings per month; now they do one every 2-3 months, a 90% drop in the number of hearings they attend, with no additional work or responsibilities. And much of the prior travel would be eliminated because, unlike when I was the only Commissioner in New York City, there are now more in New York City.
These hearings, once they have been transferred back to the Commissioners, should be done in person and not over video. I was told that the travel costs were about $110,000 a year in 2007, mostly because two Commissioners (Henry from Buffalo and Zink from Rochester) were assigned to hearing points in Harlem and Queens. In addition, if electronic transcription were done only for §32 hearings, the savings would more than make up for the additional travel costs incurred by having the Commissioners make in-person appearances when conducting these hearings.
If one calculates that the average §32 hearing takes 12 minutes and there are 12,000 hearings a year, that comes out to a workload of the minimum of two law judges doing nothing but waiver agreements. (12,000 hearings ÷ 5 cases per hour = 2,400 hours of hearings but since most law judges prepare for their hearings by reading the agreements in advance and, at least in NYC, 40% of the hearings are conducted with translators, I calculate a minimum of 3600 hours of hearings.)
So, while it may be necessary to hire additional judges and/or conciliators, at least two new judge hires can be saved by using existing staff: the Commissioners.
The Board justifies:
- its replacement of live reporters by electronic transcription to save money and make up for the shortage of reporters, both problems which can be resolved by using electronic transcription for an easily identifiable category of cases in which my statistics show minutes are very rarely needed. If the Board has other statistics, common sense would dictate they be made available in order to determine the validity of the Board’s arguments.
- eliminating certain categories of hearings and hiring more conciliators and the law judges to help expedite the resolution of controverted cases because the current staff now has too many cases. Yet the Board has burdened its law judges with approximately 12,000 hearings on a category of cases that were more than adequately administered by the now underutilized Commissioners. Equally important is the attention given to the claimants who could be heard by and speak to someone in authority without having an invisible egg timer staring at the law judge. This change will make these injured workers, for what may be their last time before the Board, feel that they’re treated like a human being.
There may be some who feel that these recommendations are far too simplistic and that I do not have access to sufficient information to make an informed judgment. I shall let my record and my book speak to that argument. It’s time that those making decisions for the Board start listening to more than just the select few who make up the Oligarchic Cabal. Otherwise the Board will continue its march in a direction totally opposite that needed to serve the community for which it was established nearly 100 years ago: injured workers and their employers.
Eliminating Oral Arguments: A MAP or a PIG?
February 8, 2010: The Workers Compensation Board’s plans to eliminate oral arguments appears to follow the Board’s normal policy for making change in procedure: they either ignore the facts or do not bother to look at them.
And, yes I have had the opportunity to review a great many documents on this subject including the very coherent presentation in the Board’s recent “Across-the-Board” dated February 3, 2010 entitled “Board Creating a New MAP for Claims”, for which MAP stands for “Managed Adjudication Path”.
And I have an excellent commentary supporting the new program by a member of the staff, which follows my commentary.
But to paraphrase an old quote, no matter how much lipstick you put on this is “PIG” (pragmatically impractical game-plan), I do not believe that a statistical analysis of Board’s records supports MAP.
As I have previously noted, while the Board believes in the mantra “Justice delayed is Justice Denied”, I must remind them that “Justice Uneven is Justice Unequal.”
Until such time as the Board is able to issue consistent decisions, it cannot continue to deny claimants and employers the opportunity to set the record straight at hearings. Equally important is that, while a good number the Law Judges would be fair in imposing Workers Compensation Law §114a-3 penalties against those who abuse the hearing process, there are also a good number of judges who will abuse this penalty such that a decision to appeal many more likely be determined by guessing before which law judge a case may be heard than it would be by the merits of the issue.
My records show that hearings change the results in 35% of decisions as compared to 6% done by simply reading the file.
I have reviewed the statistics from my own database of cases I heard on oral argument, in this case for the seven months of the calendar year 2008 when I was at the Board. Among the 55 fields I have for each record (workers compensation claim), I have the following four fields:
- Recommendation of the Administrative Review Division/Office of Appeals (ARD)
- My opinion
- Whether the recommendation and my opinion agree
- The final Board Panel decision.
A quick analysis of the relationship between these four fields shows the following:
- I agreed with the ARD’s recommendations 76% of the time and disagreed with 24% of the time.
- 15% of the time that I did agree with the ARD, the decision was changed by the Panel after all oral argument.
- 90% of the time when I did not agree with the ARD, the Panel agree with my changes.
In response to those who would argue that I was an “overly contentious”, “argumentative” commissioner, I now give you the numbers to the Board Panels:
- 65% of the time the recommendation of the ARD was accepted.
- 16% of the time the decision changed pursuant to my recommendation.
- But 19% of the time, even though I agreed with the recommendation of the ARD, the Board Panel’s final decision disagreed with that recommendation. So, after hearing the arguments and listening to my colleagues on the Panel, I agreed with them that my initial of the acceptance of the ARD’s decision was in error.
I also have an additional database of decisions made on paper alone: those decisions were changed approximately 6% of the time. (This 6% excludes another 10% rejected for typos, grammatical errors, and/or general incoherence.)
In summary, my record shows that the initial recommendations, which are subject to review and a formal hearing, are changed six times as often as those recommendations based simply on a review of written documents. This record strongly suggests that oral arguments/hearings before the Commissioners, and by extrapolation, before the Law Judges, have a place in the process.
I am sure that if I were to run these number for the prior 11 years I served on the Board, these numbers would not change substantially.
Bottom line is that at least on the Panels on which I served on hearings resulted in changes to 35% of the cases. What numbers does the Board have? Or, as my accountant once said about one of my partners, “What I like about him is he has already made up his mind so he doesn’t need to look at the facts.” Can we not expect better from the Workers Compensation Board?
A Reader’s Comments
EDITOR’s NOTE:This commentary is in response to my NEWSWIRE article published on Friday.
Project 2015 Still Lives” (1/28/10 Newswire). Conciliation and Administrative Decisions have been around for 20 years. In my opinion, people are overreacting to Informal Resolution, which is simply Conciliation by another name with less paperwork. Hearings are not going out the window and cases that need hearings will get hearings. If I’m dead wrong, we’ll know by next month.
One misleading statement in that item is that hearings have been cut in half over the past 10 years while the number of judges has increased. Please recall that conciliators were de facto part-time judges 10 years ago. When NYC split up in 2001, the Board had 33 judges and 12 conciliators, the equivalent of 37-39 judges. Today, NYC has only 30 judges and 6 conciliators who due to union pressure act as judges only in emergencies. The board’s judge ranks are realistically down by 20% in NYC. (I can’t vouch for upstate).
Please also recall that 10 years ago the Board had tremendous backlogs of cases waiting for hearing dates for months on end. Manhattan alone had 10,000 hearing unsets in 2001. Obviously, the Board was shorthanded at the time. If you are willing to stipulate that tremendous backlogs like that are acceptable, then we can make do with less. Personally, I prefer staffing adequate to meet our mission. As you express very eloquently, the injured workers deserve the best; not a 6 month or more wait for a hearing.
Please also recall that 10 years ago the calendars were full of questionable hearings. The Board had C-7 cases without prima facie medical evidence and without claimants showing up. The Board had a bureaucratic mindset that cases had to regularly come on hearing even if there was no new issue. Those 1 minute hearings got the Board through the long calendars but didn’t really serve a purpose other than busywork for the Board and generating fees for services for the lawyers. There may be fewer hearings now but the average difficulty level is much higher.
Furthermore, judges work hard while may are not on calendar. 10 years ago doctors testified in court. Today, medical testimony is largely by deposition and the judge has to either write a reserved decision or prepare for a bench decision. The extensive reading required happens off calendar. Fewer hearings does not mean less work. Similarly, some Commissioners decided a few years ago that Section 32 hearings were an undue burden. Judges assumed that responsibility. Again, judges have to read the agreements off-calendar to be adequately prepared for calendar. Those of us who work with the judges think they are more productive, not less. Finally there are all those Administrative and Conciliation decisions to review, much more than 10 years ago.
Those who imply that judges are less productive than 10 years ago are mistaken and should try walking a mile in their shoes.
[ED. NOTE: The engaged Commissioners would agree with you, particularly on the section sign 32’s which were taken away from the Commissioners because one Commissioner in particular felt all those hearings interrupted vacations out of state.]
A Reader’s Opinion of the Appellate Court, Third Department
January 26, 2010: On January 4, 2010, I posted my commentary on the quality of decisions issued by the Workers Compensation Board that had been reviewed during 2009 by the New York State courts. In response of that commentary, I received a rather opinionated comment from a practitioner which I returned below after which I am also posting the response I sent to the practitioner, who did authorize many publishers is now. Any additional comments or suggestions are welcome.
My Reader’s Opinion
There is no question the Board operates in a lawless manner. The more fundamental question is why? The answer is right in front of our collective noses–the Appellate Division refuses to make this State Agency explain its decisions, or to be consistent. So the Board does what it wants, mostly with impunity.
There are 4 appellate divisions in the State but only the Third Department hears cases coming from the Board. It may be not be well known, but the Third Department hears all of the State’s agencies appeals. If I recall correctly there are about 150 agencies–of which the Workers comp Board is but one!!!! The list goes on and on: Alcohol Beverage Control, Education, Motor Vehicles, Environmental Conservation, State Retirement and Social Security, etc.
It is literally impossible for the few appellate division judges in the Third Department to have a complete grasp of the legal nuances involving every agency. And unless the facts are compelling, the court will almost always find some fact upon which to conclude the Board’s decision was based on substantial evidence. The most absurd situation is when the Board makes a decision, then the losing party appeals. Before the appellate division rules, and without any new evidence, the Board has on occasion issued an ‘amended decision’ reversing itself. In many instances the appellate division has affirmed the amended decision. This is one reason why the public has no confidence in the Board, nor in the Appellate Division decisions. Have you ever reviewed the appellate briefs? Every appellate lawyer will tell you frequently the court simply disregards the ‘tough’ issues with a dismissive ‘the court has considered the other arguments and finds them to be without merit.’ It is frustrating.
You know many of the Board’s Commissioners do not read the decisions they ’sign’ their name to–all that is needed today is a mouse click. What makes anyone think the Appellate Division is any different? Especially when in addition to a full load of civil and criminal cases they have 150 agencies to oversee.
There are a number of points in your e-mail I would like to address.
(1) While it is true that the Third Department hears from 150 state agencies, its decisions are almost exclusively limited to the Workers Compensation Board, Department of Labor Unemployment Insurance, Retirement Pensions, and the Department Of Corrections. Also when I posting decisions from the Third Department, I also check all the decisions issued by the First, Second, and Fourth Departments as well as the Court Of Appeals and various supreme and civil courts throughout the state. It is my observation that the First and Second Departments handle a far wider range of issues than does the Third Department. So I cannot agree with you on that particular point.
(2) As I noted in my book, Behind the Closed Doors, I have served with 26 commissioners. I would say that 1/3 of these read virtually every decision before they signed it, another 3rd would look at some and not others although their reviews were rather cursory, and the balance as you noted mouse-click their way through their work queues. Of course, all the writers in the legal department had to be active because they actually had to put words to paper but, for about 20% of them, their legal reasoning and attention to detail was an embarrassment. The bottom line is that you are correct: the decisions should have been better written, more coherent, and consistent.
(3) As for sending copies of my e-mail alerts or commentary from my website to the judges, that would be perfectly fine with me; you have the right to disseminate (crediting were blaming me for the content) my opinion and certainly if someone wishes to give them the advantage of the “pearls of wisdom” I periodically produce in my website, there’s nothing wrong with that. In fact I did try to acquire a list of their law clerks to send them my e-mail alerts; unfortunately I could not get that information.
The Quality of WC Board Decisions Reviewed in 2009 by the Courts
January 4, 2010: Now that this website has had the opportunity of posting one full calendar year’s worth of court decisions dealing with workers compensation-related issues, it is appropriate to do an analysis of those decisions issued by the Court of Appeals and Appellate Court as they impact on the New York State Workers Compensation Board, injured workers, and employers.
There were a total of 103 appeals in which the Workers Compensation Board was a party of interest covering 124 issues. A quick summary shows that the Appellate Court accepted the Board’s decision in only 80 (77%) of the appeals submitted to it for review, reversing 11 (11%) and sending 11 (11%) back for reconsideration, with two appeals receiving a split decision, affirmance on one issue reversal on the second. This compares to the affirmance rates of 92% in 2007 and 96% in 2006.
In doing this review, I assigned these appeals to 53 different issues in four different categories. It was only in 33 of these issues (62%) that the Board’s decisions were affirmed; on the other 20 issues (38%) the Board’s decisions met with mixed results: affirmances, reversals, and rescission. In eight cases the Appellate Court questioned the thinking process by which the Board made its decisions.
85 of these appeals involved issues raised by claimants (47 appeals) and issues raised by employers/carriers (38 appeals). Of the 47 appeals submitted by claimants, they lost 41. In the other six appeals, claimants were awarded with two reversals and four rescissions. Of the 38 appeals by employers/carriers, they lost 31 but the other seven appeals were favored with three reversals and four rescissions. Therefore one can conclude that the Court treats both sides equally.
All of the ten appeals argued by pro se claimants lost by having the original Workers Compensation Board decision affirmed by the Appellate Court.
The other 18 appeals of the 103 heard in 2009 involved disputes between carriers, employers, the State Insurance Fund, and Special Funds. In these appeals, the Board did not do well having had its decisions affirmed by the Appellate Court in only seven (41%) of the appeals with six reversals and three rescissions. There were two appeals each with two issues; in both appeals, the Court supported the Board on one issue and rejected the Board’s conclusion on the second. It appears that the issue with which the Board has the most difficulty understanding deals with the various sections of Workers Compensation Law §25 a, having its position affirmed in only three of seven appeals.
I have separated these 53 issues into the following four categories:
Was there an accident and/or does it qualify as a workers comp claim?
The 26 appeals in this category represented 21% of the appeals heard by the Appellate Court which affirmed the Board in 21 appeals (81%). Interestingly, in the other five appeals in which the Court did not support the Board’s decision, the Court rather than reversing any of them returned all five for reconsideration.
Seven of these appeals involve the issue of the timeliness of the filing of the claim, all of which were filed by claimants. The Appellate Court agreed with the Board in six of these appeals that the claim was time-barred; in the seventh appeal, the decision was returned to the Board with comments to the effect that the Board’s ruling against the claimant did not make sense.
In the seven appeals in which the Appellate Court affirmed the Board on issues involving “course of employment”, five of the losing appeals were brought by claimants and the other two losing appeals brought by carriers. The fact that the Appellate Court gives the Board discretion to choose between relatively equal sets of contradictory indicia certainly favors the Board being affirmed in these types of cases.
Who pays the bills?
The 35 appeals in this category, representing 28% of the 103 appeals heard by the Appellate Court, had the lowest affirmance rate: 69%. And even if the five appeals dealing with the definition of Workers Compensation Law §25 a are excluded, the affirmance rate is still only 74%, scattered randomly among the 19 issues in this category.
Probably the most important issue that has yet to make its way to the New York State Appellate Court deals with the issue of payments to the Aggregate Trust Fund. While I understand that there is at least one case set for argument in March or April of this year, the only case of which I am aware that has been made in any court is the Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al for which a decision was issued on March 9, 2009 by the Federal Court in the New York Southern District. In this decision, the Court ruled that, “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.”
How much should be paid and for how long?
The 41 appeals in this category represented 33% of the 103 appeals heard by the Appellate Court which affirmed the Board in 34 (83%) of these 41 appeals.
The most common issue dealt with voluntary withdrawal from the labor market in which the Board’s decisions were affirmed in 12 of 14 appeals. Interestingly, both the claimant and carrier each had seven appeals in which both were unsuccessful in six of their appeals asking the Appellate Court to reject the original Board decision. In the other two appeals, the carrier received a reversal and the claimant a rescission.
The second most common issue dealt with medical disputes over causal relationship in which the Board was affirmed in six out of eight appeals. In the seven appeals brought to the Appellate Court by claimants, claimants were successful in only one case resulting in a reversal of the Board’s decision. The only appeal brought to the Appellate Court by a carrier was successful, also resulting in a reversal.
The third most common reason for the appeal in this category were five unsuccessful attempts to have the Board’s findings on fraud pursuant to §114-a overturned, two appeals by claimants and three by carriers.
Were the laws and proper procedures followed?
The answer to this question is an 86% affirmance rate on the 22 appeals in this category.
However, there were at least eight appeals in which the Appellate Court, in returning the case to the Board for additional review, did so because the Board drafted a decision which contradicted prior decisions, misread the issues on appeal, or failed to review all the records in the file.
However “poor “decision-making was not limited to just the Board. There were seven appeals which were denied as the issue under appeal had not been previously raised (six of these appeals by claimant attorneys) and another six appeals for which the Appellate Court supported the Boards denial of a Full Board Review (again, five by claimant attorneys).
As noted earlier the Board’s affirmance record in 2009 compares unfavorably with prior years which perhaps explains why the Board had its decisions rejected in 20 (28%) of the 53 different issues the Board reviewed which made been their way to the Appellate Court.
One could argue that the reason for the low affirmance rate is because of the Board’s willingness to be more aggressive in its interpretation of Workers Compensation Law. But if this were the case, then one would presume there would be only a few issues which made up the bulk of these reversals. But the record shows that in 38% of the issues presented to the Appellate Court for review, the Board did not always do justice to the appellant. Could the answer be a combination of the Board’s insistence on speed versus quality and the writers and ultimately the Commissioners making decisions they think is fair rather than what is legal or perhaps not knowing what is legal.
The bottom-line is that there are certain issues in which the Board has failed to get its collective minds together in order to develop a better understanding of those issues and, in turn, issue more consistent and coherent decisions. For it is this lack of consistency which causes both claimants and their employers to view the Board’s claim of fairness with skepticism. And more importantly, the skepticism results in far more cases being controverted and unnecessarily clogging the Board calendar and appeals unit as well as the Appellate Court: “Why not appeal? We may win a case because nobody is really looking.”
It is this lack of consistency and lack of transparency that should be the key issue addressed by the Chairman, the Office of General Counsel, and the Commissioners as we enter the new year.
Answers to Your E-Mails
November 2, 2009:
nyc is doing the right thing by contesting claims without merit at the start of WTC cases carriers were not geting exams and many thousands or claims without merit were established now if a carrier or nyc wants to get an exam they are simply doing what they should have been doing all along. Don’t you believe that if a or self insured such as NYC is prevented from getting an IME or using an investigator at least some phony claims will be established? I would like a response from you.
There is no question that New York City has the responsibility to ‘review’ claims with which it is presented, be it against the WTC fund or a general workers compensation claim. You will note that I put the word ‘review’ within quotation marks as that is what this city supposed to do: to investigate the validity of the claim and not spend money seeking ways to deny every claim.
On September 11, 2009, the Workers Compensation Board released a full report, World Trade Center Cases in the New York Workers’ Compensation System, on claims made to date. In Table 1 page 18, the WCB reports 11,627 cases were filed, of which are 5,220 cases had no follow-up leaving a total of 6,407 cases to be reviewed. Of these, 461 were denied, resulting in a denial rate of 7%. New York City’s denial rate exceeds the 93%+ approval rate of the WCB which is particularly disturbing when you consider that many of the uniformed services (fire, police, and sanitation) are not covered under workers compensation law. Although fraud cases get a lot of coverage, particularly if they involve the New York State Insurance Fund, I’m sure there are well under ½% of all claims.
That New York City has a right to have investigators and/or IME’s review these claims is correct but not the use investigative techniques long since disavowed under workers compensation law precedents.
QUESTION #2:In response to my commentary supporting the payment of legal fees on medical benefits, I was sent the following question by e-mail:
My reading of the Shea case, which the board apparently now agrees with, is that whenever money moves to a claimant an atty fee lien may attach. I would be interested to review the case or cases where you challenged the board’s prior interpretation re atty fees on medical expenses. You may not remember, but you were on the original Shea panel which denied any atty fee.
The reader in this case is absolutely correct in that the original decision, in which I participated, ruled against payment of legal fees. Since the original decision, the Delacorte decision, and the revised decision are available on LEXIS-NEXIS and Westlaw, I shall not quote any language in the decision but explain why I originally denied the fee.
Very often in cases like this which deal with “black-and-white” legal issues, the commissioners depend on the Board’s legal staff of writers, of whom all are attorneys, to research case law. From the time I first joined the Board until the time of my departure, we were told consistently by the Office of the General Counsel and our writers that there was some legal issues that could never be challenged.
I am the first to admit that I’ve challenged the Office of the General Counsel and the writers on many occasions, whenever I saw a little bit of light at the end of the tunnel but I’m also realistic enough when presented with such blanket pronouncements to spend my energy elsewhere. For years the same two groups told the commissioners that attorneys had no right to challenge our determination on the amount of legal fee to be paid in a §32 settlement. Then one day we received a memo which effectively said “Oops, we made a mistake. Legal fees can be challenged.” Shea v Icelandair is another example in which I mistakenly relied upon legal obstinacy of the Office of General Counsel and writers.
Had I been on the Board after this decision, I would’ve addressed the staff attorneys as I did after the Court decision in Horton v Akzo Nobel Salt (see my book Behind the Closed Doors, page 8): “How can we trust your judgment and advice if you contradict each other or don’t understand why you do what you do?”
QUESTION #3: On occasion I get requests for an analysis on specific legal or medical issue in terms of what can be expected in the future from the Board. Because of the individual nature of these requests, my responses will be by e-mail and not in this website. If you have any such requests, send me an email addressed to TheInsider@InsideWorkersCompNY.com.
§32 Settlements & Child Support Liens
October 29, 2009: Several years ago, one of the commissioners raised an issue when faced with an upcoming §32 agreement in which there was a substantial amount of unpaid child support. There was a question as to whether or not any of the settlement award above that necessary to pay the outstanding lien could be set aside to guarantee future payment of child support. A review of WCL §33 and applicable case law made it quite clear that the only child support that could be withheld from the settlement was the amount for which there was an existing lien.
At a pre-board meeting in Albany the subject was discussed at length at which time it was determined that the Board did not have the authority to offer any other interpretation of law. And while we discussed the practical application of methods to set aside some funds from the settlement to ensure future payment of child support liens, the consensus felt this was a legislative rather than an administrative matter. In view of the decision issued today by the 3rd Department in the matter of Ashley v Worsell, perhaps it is time for the Legislature to act.
(For the record, I led the argument against using workers comp law to escrow funds from §32 settlements, arguing that this had to be done by the Legislature. As a commissioner, however, I and my fellow colleagues were prevented from expressing our opinion on this subject outside of that room. Now that I am not a Commissioner I can again raise the subject, but this time to the world at large.)
Devising a formula for the withholding of sums from the proposed settlement is relatively simple.
Since allocation rates are used in many cases dealing with Medicare, it should not be difficult to set an allocation rate on most cases in which the claimant has an outstanding lien against them for nonpayment of court-ordered child support. In most cases, child support liens range from 5% to 20% of compensation payments. Since we already know the gross amount of the settlement, less any medical set-aside (this is only for those put into escrow accounts) we can divide that by the allocation rate to determine how far into the future the settlement has been calculated to extend. And we simply multiply those number of weeks times a weekly lien to get a fixed amount to be deducted from the settlement and turned over to the state agency responsible for ensuring payment of child support liens.
- $50,000 settlement less $4,000 escrowed medical set aside = $46,000 net
- $200/week allocation rates = 230 weeks advance payment
- at $30/week current child support lien for 230 weeks = a total of $6,900 additional deduction for the child support escrow account.
There are two additional issues must be considered the legislation.
First, the child support escrow account should be modified if the child is approaching the age at which child support payments would stop. For example, if the child would reach that age in 200 weeks, then only $6000 should be put into the child support escrow account. There also has to be a means by which, if there is any other reason for the child no longer being the legal recipient of child support, then those payments stop and any excess amounts be returned to the claimant.
Second, if the amount of money being put into the child support escrow account will not be sufficient to ensure payments to the child until they reach the age at which they no longer qualify and the claimant/parent has not been paying child support directly but has been having that sum of money deducted from the escrow account, the claimant/parent may be lost to the system in any of a dozen ways and may also no longer feel any connection to the child if they have not had to pay child support for four or five years due to the escrow account.
Not to attach these settlement funds is to give an additional inducement to irresponsible parents who see taking a lump sum as a way of avoiding child support payments. This legislation not only could but should also apply to any disability or other similar payments including those awarded in any civil or administrative court action.
Next Monday’s poll will be on this subject. Then on November 9, 2009 when the results of the poll is published, this commentary in the poll results will be sent to the appropriate members of the state legislature asking them to consider changes in legislation necessary to ensure that those individuals who receive money as a result of civil court or administrative decisions do then ignore their financial responsibilities to the children that have brought into this world.
FEES ON MEDICAL EXPENSES
September 28, 2009: My reading of a case in Michigan (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) in which their top court found, in a 4-3 decision, that claimant attorneys should receive fees on received medical expenses brings to mind two different types of cases I have seen on this issue:
- §32’s: Assuming we all agree that a 15% or 10% fee is appropriate, should that fee also be on the amount allocated to the Medicare set-aside?
- Fights over medical treatment only, on which fees are not historically awarded.
WCL and precedent are that legal fees are to be based only on compensation awarded. But I have had, during my 12 years on the Board, a number of instances in which medical expenses and fees became relevant.
FEES FOR ONGOING CASES
On occasion, when a claimant has been awarded ongoing comp or it has stopped, there are no controversies regarding the compensation. But the need for a particular type of treatment or the frequency therein become the cause of controversy between the claimant and the carrier, the claimant’s attorney is called into the controversy to fight for the claimant’s rights. Be it in the form of letters, phone calls, formal hearings, or appeals, the claimant’s attorney incurs expenses and expended time on behalf of the claimant but, historically, is awarded no fee, except the occasional $75 appearance fee.
I remember a case in which a claimant’s spouse, an RN, provided that claimant, who had been classified for a permanent total disability (100% bedridden), with his medical care and then billed the carrier for her services at the rate for which an 3rd party RN would have charged for that 24/7 treatment. Without going into the details, this case involved an staggering amount of work, in part because the wife did not file her claim for the medical charges from several years so not only was the sum of money at dispute quite large, so were all the pages of backup. But since the claimant had already been classified PTD at the maximum rate, none of the work the attorney was doing would have an economic benefit for the claimant but only to the medical provider to insure proper treatment for the claimant. When the file came to me as a member of the panel hearing the appeal, the file must have been a foot thick. I am sure that the claimant attorney spend at least 50 hours or more working on this case. Yet, if he won, there would have been no fee.
On the other hand, the carrier attorney does get paid of defending against that same claim
This fee structure obviously puts the claimant at a serious disadvantage.
§32 FEES ON MEDICAL SET-ASIDES
Several years ago, I had a §32 settlement for about $800,000 of which $650,000 ( I am guesstimating at the numbers) was specifically noted in the agreement as a Medicare set-aside to be deposited into an escrow account. The claimant’s attorney sought a fee on the $800,000 but I calculated it on the $150,000 of comp. For to do otherwise, would have netted the claimant, after the $65,000 10% fee on the set-aside, $585,000 to pay for what was expected to be $650,000 in future medical expenses.
On the other hand, many §32’s for permanent partial disability (PPD) are settled for 5½ years as compared to the 5 years of similar settlement under §15-5b Lump Sums; The extra ½ for the §32 is assumed to be for any possible future medical expenses. But since many of these PPD claimants taking §32’s are similar to those taking the §15-5b settlement in that they have not had medical treatment in years and, unless that ½ year is put to an escrow account, the claimant has effectively received extra cash to use for ‘income’.
But since only about 35% or so of the §32 cases I saw were PPD’s, one could not so easily determine how much of the settlement was in lieu of future comp and how much in lieu of future medical. The carrier certainly was not going to give such a breakdown and the claimant’s attorney was interested in maximum dollars regardless of whatever ‘ghost’ allocation was done between medical and compensation.
Thus in most of these §32’s, without the formal escrowed set-aside, it made sense to most of the commissioners to accept a fee based on the gross amount of the settlement. In fact, if the set-aside was not more than 5%-10% or the gross settlement, most of us approved the fee as requested.
It was only on those occasions when he Medicare Set-aside was 20% or more that the fee was based on the ‘net’ compensation moving to the claimant.
Be that as it may, the Medicare Set-aside is subject to negotiations and the claimant attorney does work to get the amount he and the claimant feel is most appropriate. So perhaps some sort of remuneration is appropriate.
I propose the following:
§32s: The fee be set on the net, if there is a formal set-aside into an escrow account. Thus the claimant, if he really feels that the extra money is for medical expenses and should not be subject to a fee, should be wiling to deposit it into the escrow account. But if the claimant feels it is really just extra compensation, let them pay a fee on it.
Open cases: There should be a sliding fee schedule, the higher the medical expenses being disputed, the higher the fee to be paid the claimant’s attorney should they win, a fee to be paid by the carrier over and above the medical expenses and not to be deducted from the claimant’s compensation. This would not be for those cases in which the issue of controversy is solely the degree of disability which may incur additional medical treatment.
The following fee structure, based on total medical expenses being controverted, is made up out of ‘thin air’ and is included here solely for the purpose of starting a discussion.
- under $1,000______No fee
- $1,000 - $4,999____5%
- $5,000 - $9,999____4%
- $10,000 - $24,999__3%
- $25,000 - $49,999__2%
- $50,000 and up ____1%
Paying compensation to the injured worker is only part of the process necessary to allow the injured worker to return to the workplace as a productive member of society. Insuring prompt and appropriate medical care is just as important, as $400 a week in tax-free compensation but waiting eight months for surgery can well result in a PTD rather than temporary partial disability or a small SLU.
Ladies and Gentlemen, the floor is yours.
Matter of D’Errico [AD3d, August 20, 2009]
September 11, 2009: The following is a guest commentary on this issue followed by my own brief comment.
Mental stress injuries related to the work place continue to challenge the WCB and the Courts and produce decisions of questionable jurisprudence. Matter of D’Errico reflects this phenomenon.
The element central to the Board’s and court’s analysis is the class of employees or threshold for compensability of a causally related mental stress claim. Unaddressed in both the Board’s and court’s opinion, however, is whether the facts of the claim ought to be analyzed as an occupational injury.
In Wolfe v. Sibley [ N.Y. 2d, 505 (1978)] the court held compensable a mental stress accident where the claimant discovered the body of her supervisor in his office. Here, the competent producing cause was a single event. In subsequent decisions, the courts attempted to fashion a threshold rule to evaluate other mental stress injuries which threshold, in effect, also established a norm for the required stress exposure:
- In Loh Lin [75 A.D. 2d, 702 (1980)], the court held that claimant’s job aggravation was the aggravation normally expected in the usual give and take of employment.
- In Wood [27 A.D. 2d (1980), the court held that the issue of mental stress must be examined on the facts from the common sense perspective of the average person.
- In Kaliski [151 A.D. 2d, 687 (1989)], the threshold norm was refined to require that the stress experienced by the claimant must be greater than the “usual irritations and differences to which all workers are occasionally subject.
Subsequent decisions have employed other criteria to establish the threshold class of workers:
- Pecora [13 AD3d, 917 (2004) held that there must be a showing that the affected claimant experienced stress greater than that which other similarly situated workers experienced in the normal work environment.
- Pinto [19 AD3d, 948 (2005)] the threshold required a showing greater than that experienced by the claimant’s peers. Unless all parties engage in demonstrating by evidence and proof of the threshold norm to support or deny the claim, the trier of fact is without a basis to evaluate the threshold norm.
In the case at bar [D’Errico], the WCLJ held the threshold norm to be “all municipal maintenance workers employed by New York City.” A Board Panel reversed the WCLJ stating that the threshold norm to be used “without evidence or proof” is the stress experienced by “other employees in the ordinary course of employment at a correctional facility.” The Appellate Division upheld this threshold.
The danger in these rules is that “ unsupported by proof or evidence “ they become self-sustaining without life, a ‟zombie” rule. Nor was this oversight neglected by the dissent which stated the threshold was employed in a “wholly conclusory fashion without any stated rationale, discussion of pertinent evidence in the record, or explanation of the reason for rejection of the classification applied by the Workers’ Compensation Law Judge.” The dissent also noted “that the record includes no evidence that non-penal correctional facility employees, such as administrators, clerks of cooks, were exposed to traumatic experiences comparable to those he alleged.” The threshold rule in mental stress claims can be said to be arbitrary as it is absent evidence upon which to base a legal decision or conclusion. In this way, the Appellate Division may avoid a challenge that its determination in upholding the Board is arbitrary, since it is based upon prior holdings; however arbitrary the rule may be. In its application, the rule creates unpredictable results which, by definition, are capricious.
Moreover, in light of the absence of rigorous legal analysis, the same rule can be deemed an abuse of discretion as the threshold rule is subject to no discernable legal scrutiny. These analyses are also supported by two observations in the mental stress cases herein cited: the several claims involving correctional facilities, each with a different class threshold [“peers”; “all employees in a correctional facility”; “similarly situated workers”]; and the fact that such claims arise in correctional facilities cogently suggests a more wide spread worker safety or exposure issue.
Neither the Board nor the courts have looked to the jurisprudence concerning analysis of mental stress injuries as occupational in nature. These include (NYS Workers’ Compensation Handbook, Sec 302, 2008) “physical hazards as well as exposure to diseases and toxins. Repetitive stress injuries and degenerative back disorders are commonly established as occupational diseases.” The court has “clearly held that a case may be analyzed as either an accident or occupational disease as long as the disability developed over a reasonably definite period of time.” [ Handbook, ibid.]The occupational injury analysis avoids the “zombie” rule by focusing the evaluation on the lay and medical evidence to determine whether the mental stress experienced is, in fact, the competent producing cause. Such analysis also avoids the class threshold permitting the trier of fact to assess the “personal” nature of the injury without the enormous burden of determining whether any class [viz., peers, average person, all workers, similarly situated, etc.] may be found to experience mental stress.
In addition, the occupational analysis affords the trier of fact an additional factor to consider: the length of time in which the stress was experienced.
Some supporters of the threshold norm or class argue that, where the employer affords training to defend against mental stress, such should also be considered. Under this criterion, repetitive motion injuries held as occupational would be open to proof or evidence that the claimant had received training in the safe use of the machinery that caused an extremity injury and deny the claim. Or, that the claimant alleging carpal tunnel syndrome belonged to a class of workers that does not experience repetitive motion. The point is that it’s not the class of employees but the individual’s experience that must be regarded.
Is the claimant with a history of poor driving in a class suspect for accidents? Assuming, arguendo, that the class threshold were empirically demonstrated [viz., by research studies or reasonable evidence] it is not relevant to the experience of the individual. The claimant has neither a duty to develop nor can it be said that he enjoys some greater tolerance to mental stress than co-workers.
This is true even where prevention or safety training is evident because such relies upon yet another set of norms to be considered relevant. Absent proof or evidence, the D’Errico rule requires, at a minimum, that the trier of fact have some knowledge of the work experiences of employees in correctional facilities in order to assess the claim. Clearly, this is not possible. This same experience would be necessary for the trier of fact to assess hateful conduct to which the claimant was exposed (e.g. sexual or gender, racial or ethnic). Should the class be employees at Sing Sing, Attica, or Riker’s Island? Again, the length of time to which the claimant was exposed becomes a crucial issue in the fact pattern.
D’Errico and its antecedents present infirmities of legal reasoning and jurisprudence not consistent with the purpose [Wolfe, supra] of the statute or case law. Employing a threshold of a class of workers fails to consider the fact pattern and further suffers from establishing classes of questionable criteria, application, and relevance and are not demonstrable.
What, in fact, is the experience “norm” for any class and what must the trier of fact rely upon for that evaluation? Ultimately, it is the medical and lay evidence.
My review of the above
Had I been on the Board Panel, I would have affirmed the law judge. Would a staff worker in the warden’s office who visited the area of incarceration every three or four weeks also be considered part of the same class as officers who deal with these conditions every day? I think not. Or I would hope not.
Also, the writer raises a point about which I have raised my concern on more than one occasion at the board. He call it the ‘zombie’ rule. I call it the ‘domino tree effect’. Pile up some dominoes with each successive layer moved to one side every so slightly. After 20, 30, or so dominoes, the one on top is no longer over the one on the bottom, possiblye covers only 5% of the bottom one and the pile falls over. Too many legal arguments are like that. The Board, because it is easier to move the line, say for a ‘class, slightly in size rather than rethink what was the purpose of the class in the first place, generates automatic ‘zombie’ decisions.
Under Chairman Weiss, at pre-board, such issues would be discussed to make sure that the legal zombie/domino rule did not blind us to (1) common sense and (2) the real goal of workers compensation. But these discussions were only once a month, for well under an hour, usually only on one issue.
But I do not feel, unlike the writer, that having an attorney on every panel would solve the problem. I have served on panels with attorneys who were too intellectually lazy to think about the bottom domino. Rather it was the ‘ignorant’ non-attorneys who felt that the proposed decision missed the point.
But until the Commissioners, all of them, are willing to spend some intellectual capital discussing threshold issues, more
bad controversial decisions like D’Errico will be made.
Comments are welcome.
Project 2015: The end of the WCB Board
September 4, 2009: In a report published today by Mike Whiteley, the Eastern Bureau Chief of WorkComp Central, the Secret Cabal at the NYS Workers Compensation Board, actually a secret work group headed by Executive Director Joseph Pennisi, is making plans to eliminate all hearing, apparently by 2015 if not sooner, based on the Canadian WC system.
When former Chairman Zachary Weiss stated at the pubic monthly meeting of the Workers Compensation Board, “There comes a time when due process must come to an end”, I thought he was kind of joking. He was not.
When Weiss, who had a background as a criminal prosecutor, was on the special committee established by Governor Spitzer, we had lunch and he spoke to me about, among other subjects, eliminating hearings. He said that hearings (trials) at the WCB were taking too long, seeming to go on endlessly.
I argued, apparently unsuccessfully, that I saw a major difference between WC and the criminal justice and civil court systems. In these court systems, the basic issue deals with an event that occurred on a specific date or dates in the past. The decision being sought deals with how to resolve that question.
Workers Compensation is quite different, for it deals with establishing not only ANCR (Accident, notice, and causal relationship), but the awarding of compensation as the claimant’s degree of disability and ability to return to pre-injury wage levels changes over time. In addition, questions arise as to medical treatment and surgery that change over time. For a similar case in civil court, projections are made on wage loss and medical expenses (and pain and suffering) and a one-time amount is determined. If the actual lost wages and/or medical treatment is in excess of or less than that settlement, no adjustment is made.
But in the WC system, the concept is to pay what is necessary to make the injured worker as ‘whole’ as possible.
This can not be done in a hearing six weeks or even six months after the date of injury. In fact, in order to qualify for an SLU, there must be a one year waiting period, that is unless the Oligarchic Cabal can arrange for the claimant to achieve ‘maximum medical improvement’ within some fixed period of time.
So the concept of having all hearings done in a short and fixed period time has no meaning in WC.
As to the concept of hearings themselves, perhaps no one has considered the history of the U.S. as compared to that of Canada. In this country, we believe in trial/hearings even in administrative justice so that both sides can not only have the chance to present their side of the story but to face their accuser/opponent: we give far more power to our citizens.
The Board, under its current program of requiring that most medical testimony be done by deposition, implicitly acknowledges the rights of parties to cross-examine their adversaries’ witnesses. Why should this right not also apply to the claimants and employers’ witnesses? Or perhaps the Board will develop a criteria under which all these cross examination will also be done by deposition.
The fact that this new process will add substantially to the time it takes a claimant’s attorney to handle claims without any commensurate increase in their fees is irrelevant, or is it? [ED. NOTE: I am assuming that this is in the new process but because this is a secret project, no one really knows.]
And, of course, the carriers’ attorney will thus have an additional source of revenue, for the billing attached to the time to set up the depositions and the travel to the locations to actually do them.
As a commissioner who participated in about 40,000 decision on paper and about 4,000 hearings, I have rather strong opinions on this subject. Yes, the Memorandum of Decisions (MoDs) done by the commissioners were done on paper and only a small percentage of these cases went to an oral argument. (And the Oligarchic Cabal has been very aggressive in eliminating oral arguments which too many of the insouciant commissioners are only happy to go along with. This way they only have to fly up from their Florida homes for the monthly meeting and not a mid-month hearing.)
Yes, for the last umpteen years, MODs have been done on paper with only few going to a formal hearing. But these MoDs are not fact finding decisions. The facts are already be in the file, used by the law judge in making the decision. The Commissioners, just like the judges at the Appellate Court review already established facts and determine if (1) the facts add up to the conclusion reached at the lower lever and (2) the law is being properly interpreted in the case.
“He said/she said” issues are not resolved by reading an accident report. Not only does not one write an accident report that covers all the facts that occurred at the time but two witness may have seen the accident from different perspectives and only by close examination, at a hearing, can the correct one, if there is one, be found.
Sometimes, the engaged commissioners when reading an MoD would ask for an oral argument because the issues in front of us were deemed to be too complex to be dealt with on the basis of one appeal and one rebuttal. It is only at a hearing that such differences can be resolved and, sometimes, when the opposing parties are at the table a compromise can be reached that could never have occurred with a law judge reading documents.
So why is this being proposed?
I do not think it is to speed up the system as much as it is to invest even more power in the hands of the Albany bureaucrats.
I know from my own experience as a commissioner that too many MoD’s were given to me that did not reflect the true facts in the case or the current law but appeared to be written for some other purpose. And in view of the fact that a number of commissioners never read the MODs before signing them and one panel was made up of three insouciants, the bureaucracy could determine who won and who lost. When the case was before a law judge, the law judge, in an open forum, i.e. his decision could be appealed to the Commissioners, would make his decision in the light of day. If the bureaucracy were to make decisions out of the light of day, one would find as I did with my own database that certain commissioners and law judges had certain prejudices on certain issues and for certain claimants - their voting patterns were well off the standard deviation of the stats for the other commissioners on the same matters.
But if decisions are made in secret, then several goals are accomplished.
The Oligarchic Cabal does not have to put up with the ‘people’, be they the attorneys or, more importantly, the claimants. I can tell you that it amazed me as a commissioners how far some commissioners went to avoid having to deal with claimants. And there would be no need to hear lawyers argue a case (or harangue the law judges as one commissioner would complain).
Hearings would get done faster and the cost of running district offices would be reduced, although the Oligarchic Cabal in Albany would have to/be able to hire more staff to do the work, and there would be less complaints because there would be far less light on the proceedings.
I have proposed that one could write a computer program into which both sides would put all the pertinent facts. The computer would then match that information up with the tens of thousands of similar cases and come up with an answer based on all those prior decisions. There would probably be a 99% accuracy rate. I was told I was stupid and the idea ridiculous.
But, lo and behold, the idea has risen again, only this time the board staff will make those determinations based on documentary submission by the aggrieved parties, based on these individuals’ interpretation of the facts and their own prejudices, but behind closed doors
This secret 2015 project goes against all the attempts at fairness I have seen fought for, for years by board staff, the bar for both sides, the unions, and employers.
It will only be stopped if you, the community which is the constituency of the WCB, make your voices heard. At this time the New York State Workers Alliance is leading the fight on this issue. Others must join.
Stay tuned for developments as the Oligarchic Cabal gives us a good reason to think about the true meaning of Labor Day.
The New Medical Guidelines(?!)
In my COMMENTARY last week about the result of the poll on the Board’s failure to issue medical guidelines and the impact it had on §32 waiver agreements, a number of people pointed out that the NYS WCB has in fact published those guidelines.
These were published under Subject Number 046-270 (January 26, 2009) “Proposed Medical Treatment Guidelines” and Subject Number 046-346 (August 13, 2009) “Final Request for Comments on Medical Treatment Guidelines”.
But these are not what I was making reference to, as I already made reference to these documents months ago, when they were first published. I find fault with these documents for two reasons:
FIRST REASON: Degree of Disability
While these guidelines go into great details on defining certain medical conditions, treatment, and therapy, there is nothing in here that references the key point: the injured workers’ ability to return to their prior job and therefore the degree of disability, be it Mild-Moderate-Marked-Total or 25%, 50%, etc.
As has been noted several times in this web site, in my book “Behind The Closed Doors”, and dozens of other articles by other writers, the loss of the left pinkie finger for a right-handed file clerk is substantially different from that for a right-handed professional violinist. The fact that two individuals have the same injury does nothing to address degree of disability and the impact of that disability on their ability to return to work, which would be different for a file clerk, a construction worker, or a teacher.
SECOND REASON: Medical terms and treatment
Now I am the first to admit that I am not a doctor BUT, my wife, my mother, and I, all within the period of one year each had major surgery done by one of the top orthopedic surgeons in New York City for the same site of injury although for different problems. I have copies of all the medical records but I could not find anything in the medical guidelines for that body part that matched our injuries/conditions that required the complex surgery for each of us.
So not only is there no treatment guidelines that applied to our injuries and I am sure dozens of other injuries for others, the most important part of the puzzle is the degree of disability. What I found interesting is that my wife’s condition qualified her for a minimum 66% SLU even though her functional capability was almost returned to normal. She was considered to be at the 95% recovery level. But the 1996 Medical Guidelines were very specific: she could not qualify for a ppd but only for an SLU and at a minimum of 66% even if she were 100% functionally ‘cured’.
So not only is there no treatment guideline that applied to our injuries and I am sure dozens of other injuries for others, the most important part of the puzzle is the degree of disability. What I found interesting is that my wife’s condition qualified her for a minimum 66% SLU even though her functional capability was almost returned to normal. She was considered to be at the 95% recovery level. But the 1996 Medical Guidelines were very specific: she could not qualify for a ppd but only for an SLU and at a minimum of 66% even if she were 100% functionally ‘cured’.
The Medical Guidelines are just that: guidelines to define, classify, and treat injuries.
Perhaps what the legislation should have called for is “Degree of Disability Guidelines” or “Functional Capability Guidelines”.
August 28, 2009
The Appellate Court’s Split Decision
As I noted in today’s DECISIONS page, today’s 3-2 split decision in D’Errico v New York City Dept. of Corrections at the New York State’s Appellate Department, Third Division, the issue had to do with the size of the class within which the claimant’s employment fell. This issue was whether or not the claimant’s various psychological problems were the result of exposure to a greater amount of work-related stress than that normally experienced by similarly situated employees at correctional facilities.
Although the claimant’s appeal of the underlying decision was denied due to a late appeal, it seems as though there was no question that the claimant did suffer from severe major depressive disorder with psychotic features, posttraumatic stress disorder and panic disorder with agoraphobia. Claimant sought workers’ compensation benefits, asserting that his illness was caused by his exposure to violent incidents in the course of his employment as a maintenance worker for the New York City Department of Corrections.
The Law Judge ruled in the claimant’s favor only to be reversed by a Board Panel, which used a narrower definition of a work class than did the Law Judge. A Full Board Review (FBR) was denied on the grounds, per the Appellate Court’s 3-member Majority, that the claimant “must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”, but in this case, failed to do so.
After having served on the Board for 12 years and been involved in dozens of decisions on cases involving WCL §2(7) stress issues, I agree with Judges Garry and Stein in their dissent.
I have often said that the difference between a conservative and a liberal is that the conservative throws a dart to try to hit the bull’s eye on a target whereas the liberal throws that dart and then paints the target.
In this case and similar cases in determining the size of the ‘class’ of claimants, the decisions are more often than not, for many of the commissioners, dependent on the employment of the individuals whose cases are being reviewed and how sympathetic they are. Because the legal precedents quoted several times in this decision allow the Board discretion, the decisions are usually upheld. But as happens in many cases including this, there are no specific list of indicia given in the decision that would help anyone distinguish this case from any others.
And while there does not have to be a numeric census of a group to determine how big a ‘class’ has to be, there has to be something to distinguish the decisions. The first time I had such a case involved a traffic enforcement agent (who issued parking tickets) who filed a stress claim due to harassment for the public to whom she was giving tickets. My panel ruled and won a FBR on the issue that this particular class of employees (those who give out parking tickets) were not only regularly subject as a part of their job to harassment from the public but were trained as a part of their duties how to deal with it.
But this list of indicia to distinguish one group from another takes a lot of work and it appears that the writers of the original decision which reversed the law judge, the commissioners on the case, and attorney in the Office of General Counsel who recommended denying FBR, and Vice Chairman Libous who signed the denial felt that Board discretion was sufficient to withstand an appeal to the Court.
As such, this is another example of a poor Board decision. Poor in the sense that it deals with a major issue and a simple ‘yes/no’ does not suffice. A clarification of indicia would have resulted in the Board making a decision that would have received unanimous affirmance from the Appellate Court.
Now, not only was a lot of time and money wasted, and a claimant’s’s expectation dragged on for another year, but an opportunity was lost for the Board to define an issue which in my expectation would prevent or at least minimize additional appeals on such issues. Hopefully, based on a 3-2 decision by the Appellate Court, this will go to the Court of Appeals where it will be, hopefully, determined that the Board has a responsibility in such cases where it has the discretion noted by the Majority which referenced the Matter of Green v Kimber Mfg., Inc., 59 AD3d 782 , 783 , lv dismissed 12 NY3d 865 ; see Matter of Barber v New York City Tr. Auth., 50 AD3d 1402 , 1403 ; see also Matter of Lehsten v NACM-Upstate N.Y., 93 NY2d 368, 372 ).
August 21, 2009
Comp Board Blocks “The Insider” as Spam!
After nearly one year after my departure from the New York State Workers Compensation Board, the Board has formally recognized my existence . . . By denying it.
Sometime between the 3rd and the 7th of August, 2009, the Workers Compensation Board added my e-mail to its SPAM list so that members of its staff can no longer receive my e-mail alerts, or any personal messages, for that matter.
The WCB is like many bureaucracies with little centers of power each of which has its own objectives, even if for many it is not for the betterment of the injured workers and their employers. During my time at the Board these various interest groups ignored or rejected recommendations not just from me but from other concerned staff and commissioners. And, even though I am no longer at the Board, this practice continues and I assume is the reason my e-mails are now being blocked.
The NYS WCB has the legal right to do this. And I am sure that they will explain the reason is that they wish to restrict the use of Board’s limited resources to only those flows of information which they feel enhance the goals of the Board, as determined by them.
I have no intention of getting into a ‘whose is bigger’ contest with the Board for the simple reason that is not the purpose of this website. I see no reason to take away from this web site’s goal by getting in a ‘tit for tat’ with the Board. I, too, have limited resources but feel they are best used helping the workers compensation community in New York State, including Board staff, rather than limiting the number of people who can contribute to the community and participate in the necessary conversations.
My postings have included unedited comments from some who vehemently but articulately and maturely disagree with my points of view. Many have made excellent points and, as a result, I find myself readjusting my views and recommendations. And, when I have made mistakes in my postings and I have made a ‘beaut’ or two, I have admitted same and fixed it.
Yes, I have been critical of the Board but I have also given a tip of the hat when it is deserved, as often as not for putting into play some of the suggestions which I have made. (I am not claiming that it was my suggestions alone which prompted these changes but I like to think they may have been the straw that broke the camel’s back.) In fact, I have been told that the Board now duplicates another of my features by letting key staff know about workers compensation related decisions issued by the Appellate Division 3rd Departments within days of their being issued and not once a month or so.
And I understand that serious consideration is now being given to CLE courses for Licensed Reps and even better training for the new commissioners, perhaps on a regular basis.
As for the decision by the Oligarchic Cabal to ‘silence me’ because I am ‘abusing’ e-mail access to their staff, my e-mails have always offered every recipient the opportunity to opt out and some have. But for each one who has said “take me off your list” there have been another five who have asked to be put on the list. But, again, if the Board does not want Board staff getting these e-mail alerts about news and updates on my website, that is their option. And I will not use my computer skills to get around that block. [ED NOTE: On August 14, 2009 I did use my computer skills to by-pass the Board block solely to let Board staff know I and the web site are still around. I will not do that again.]
For if anyone at the Board would like to continue receiving my alerts, they need only to click here TheInsider@InsideWorkersCompNY.com and give me a non-Board e-mail address. My list is stored not on any website but on a secure hard drive so everyone’s privacy insured.
Closing one’s eye, covering one’s ears and loudly repeating “nah nah nah nah” only means that you will not know what is going on in the world around you, for the world, its critics and its cheerleaders alike, will still exist. To those at the Board whom the Cabal would like to block from knowing of my continued existence, I invite you to continue to participate in the conversation as you have in the past: privately and in confidence but now from your homes.
This is the last I will have to say on this subject for there are far more pressing issues in the workers comensation world that need to be addressed.
August 14, 2009
Part III: More Comments on
“bench briefs” - unedited
The following is the unedited comment from an attorney:
Having read the latest dialogue on the issue, I offer these as considerations:
That non-attorneys may represent claimants and carriers does not fully justify that fact - it is self-serving and does not rise to “legal representation” which was the category on the Board’s web site until recently;
- The limits on non-attorney representation [e.g. non competence to appeal to the AD3d or represent a corporation] should be clearly defined on the Board’s web site;
- Legal reasoning is a predicate based upon jurisprudence [including case precedent, analysis, and application] that supports an argument; non-attorneys, unfamiliar with such analysis, may not appreciate this art;
- The WCL has grown increasingly legalistic, including regulatory reference to the CPLR and rules of evidence [viz. video tape and “chain of evidence”];
- CLE should be required of Lic Reps and all Commissioners as a means to restore the long standing mission of the WCL and its jurisprudence.
The point is that there exists a more vital set of public policy issues that need to be addressed.
It would be nice to hear from a licensed rep!!
Part II: Reader Comments on
I am pleased to post the following response from an attorney on my discussion of legal briefs. As I did in last week’s commentary, I do agree with a great deal of what is written.
I think I can summarize these comments by stating that the writer feels that the Board must put its best foot forward in its decision making process and I agree. But the question is whether or not attorney can assure the best results. His remarks follow after which is my response.
It’s up to you if you publish the comment or not. I think it will find wide acceptance among the attorneys on both sides, since I often hear defense attorneys complain about the non-attorneys on the Board Panels as well. Everyone just wants a fair hearing, and those of us who spent years studying legal theories which go back centuries want somebody with a similar background to hear our arguments.
For instance, I once used the following statement of law in a successful matter before a Board Panel, where a carrier’s attorney attempted to submit redacted correspondence (offering a specific but paltry settlement and further terms that were redacted, in addition to a demand to see attachment proofs if my client did not accept the offer, which condition was also redacted while leaving only the demand for attachment proofs) from himself to myself in order to prove that the carrier was entitled to an immediate reopening in a PPD case:
The Best Evidence Rule is a common law rule of evidence. This rule precludes admissibility of secondary evidence such as copies or facsimiles or hand-redacted versions of correspondence between parties whenever the original document still exists. The reason for preclusion is that such evidence is not “the best that the nature of the case will allow.” Omychund v. Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33. In this case, the carrier has attempted to submit redacted correspondence to prove the truth of its assertions, yet the carrier has not provided the Board with the full context provided by the un-redacted, original correspondence. In doing so, the carrier has denied the Board a chance to fairly consider whether the redacted “evidence” may stand for that which the carrier asserts.
Now, the problem for attorneys related to the above-stated example is that the Commissioners all know that there is no strict application of the rules of evidence in WCB matters, but the prudential reasoning which resulted in the 1745 Omychund case is well-known to practicing attorneys in ways that political appointees would not be trained to immediately realize. What would they think of the language, “the best that the nature of the case will allow?” Maybe nothing. Would they immediately recognize that some of the redactions might cover, as it did in this case, conditions precedent to the carrier’s demand for attachment proofs (which were not met)?
Thus, if there is an attorney on a Board Panel, I can basically just remind the Board Panel regarding the rule and then not go into every prudential consideration which may apply, because I can trust that in mentioning the rule under the circumstances described above, any trained attorney is going to have convulsive flash-backs to incidents where the Best Evidence rule applied in that attorney’s own private practice, or at least back to law school where the expansive reasoning for the Best Evidence Rule, together with specific examples for why the rule evolved, were DRILLED into each prospective attorney’s head by countless professors who knew the pitfalls for not respecting this venerable rule. By contrast, if there is no attorney on a Board Panel, I am much more likely to suffer some rather dim analysis that “the Board will just accept the [doctored] evidence because there is ‘no strict application of the evidence rules.’”
Indeed, the WCB must consider judicial interests which apply in the collateral civil courts, such as the perception of fairness which the public has when considering whether the WCB is doing a good job adjudicating comp cases. If the WCB cannot be perceived as doing a good job, its mission will be adversely impacted because more injured workers will opt out based on a real perception that they won’t get justice anyway. For this and many other important reasons, the Board should likely not play fast and loose with the rules of evidence and procedure which have evolved over centuries of western legal thought, even if the plain language of WCL §118 might permit otherwise. In short, a trained attorney provides a safeguard to protect against imbalanced, inconsiderate, arbitrary and capricious process; and in so doing, the presence of the trained attorney communicates the WCB’s commitment to deep and proper adjudication of the cases and arguments which are brought by the parties before the Board. This furthers an underlying mission of the Board to obtain and foster the public’s confidence and trust while the Board is resolving the various claims it considers.
For these above reasons, I continue my position that the Board would be incorrect in convening panels without an attorney, even if the technical language of the statute might allow for this in a particular case, or where the omission of an attorney was incidental and not the product of a formal Board policy. The Board should not reduce itself to relying on mere political appointees. That will do nothing to foster the public’s confidence, nor to ensure that venerable rules and notions of law are properly considered within the disputes the Board must resolve.
Attorneys do have training in legal reasoning that most non-attorneys do not. However to make the case that only someone trained to be an attorney has the ability to reason in such a manner is not a point with which I will agree. Nor do I feel it is necessary. And the State Legislature would seem it agree with me in two different perspectives.
- Non-attorneys who meet certain Board-established standards are allowed to practice workers compensation law: Licensed Reps
- WCL §142 only requires that there be a minimum of four attorneys on the Board thus implying that up to nine need not be attorneys.
Based on my statistics, about 60% of the cases deal with medical issues (causal relation in ANCR, further causally related disability, Schedule loss of use versus permanency). These require more medical understanding than legal training.
Another 20% or so deal with basic legal issues with which board panels deal on a regular basis: ingress/egress, in and out of the course of employment, special/general, independent contractors, etc. While there are thousands of prior cases to be cited and hundred of Court decisions to use as a guide, essentially, many of these cases deal in the gray area and a non-attorney as is qualified to draw the line where they feel it is appropriate as is an attorney.
And then there are about 5% or so of the cases that deal with complex legal issues. I shall reference two.
- ERISA and SLU’s: The issue had to do with the interpretation of the ERISA agreement with Verizon on about 2000 cases. This was a complex issue that one could agree was beyond the skill set of the non-attorneys. But the Office of the General Counsel wrote most of the original decisions on this issue, after conferences with attorneys from both sides of the issue, many of their original decisions were reversed or rescinded by the Court and it took about four years before some basic guidelines for these cases could be done. So it would seem that this issue was beyond the skill set of the attorneys at not only the Board but at Verizon and the claimants’ counsel. In fact, even the Court spent a lot of time communicating with the NYS WCB in order to get a sufficient understanding of the issues to make a decision.
- ATF and the deposit: retroactive and future. This is an ongoing battle internally at the Board with a Full Board Review being used as the basis for 82 cases. There is also a case pending in the U.S. District Court for the Southern District. By the way, the controversy at the Board started when one of the non-attorney commissioners raised some questions. So while one can argue that this issue is beyond the skill set of the non-attorneys, it would seem that the attorneys are not doing that much better.
As to the respect that will be given to decisions issued by the Board panels, this is a function of the commissioners who sit on the panel.
Virtually everyone one of you who reads this website at one time or another appeared before a panel of commissioners. When the questions from the panel showed a knowledge of the cases down to the smallest of the details, an understanding of case law with reference to prior cases and citations while seeking to further refine the adversaries arguments, I am sure that you felt your client got a fair hearing. And you also know that some of the those leading in the questioning were/are not attorneys. And you also know that some who were attorneys seemed to have no idea what was going on.
Your respect for the decision being rendered is a function of how you feel that the panel members dealt with our case.
But the writer of the above comment and I agree on one point: MORE TRAINING
The fact that someone has a law degree does not mean they automatically know what they are doing. How often have we all had at a hearing a non-comp attorney come in thinking that administrative law was second-class law and proceeded to make a fool of themselves, even if the person on the other side of the table was a licensed rep?
So all the commissioners need training, I am do not mean even more than they get now, I also mean ANY. How soon after Commissioner Foster-Tolbert joined the Board was she on a panel and signing written decisions? Do you think she had sufficient training so soon after her appointment as to make proper judgements? I am not trying to embarrass her for this holds true for anyone appointed to the Board after about 2000 or so: no training. At least Higgens has some experience with WC issues so he at least knows the ‘secret’ language which is the trade talk of any profession.
As to the comments, “The Board should not reduce itself to relying on mere political appointees. “, I add the following comment: “The lawyers on the panels area also appointees. In the 12 years I was on the Board we had as chairman (appointed, pro-tem, acting) six individuals. Some were ‘mere political appointees’. Others offered true leadership.
If there were rigorous training of the commissioners and those who sought the position realized that the position entailed actually working, then be they attorneys or non-attorneys, the goal of the writer and I would be achieved: better and fairer decision making.
August 7, 2009
Reader Comments on
I received a number of comments regarding my COMMENTARY (see below) last week about legal briefs for the Commissioners.
Today’s posting will address some of the issues raised in one of them.
With respect to “bench briefs”, I am not convinced that the Board staff even knows what they are. However, the substantial issue, as with most legal ones, also involves process, especially with lay Commissioners. The Board has a responsibility, not merely to craft MOBPDs, but to advise Commr’s on the issues. By limiting proposed decisions to the last precedents, the Board fails to communicate the purpose of the law.
In this same vein, the Board has a public responsibility to require CLE of licensed representatives as its web site holds them out - and provides a list - as legal representatives for claimants. Just another example of the Board’s failure to perceive its public mission.
While it may be true that most do not or cannot read [I assume the wrier refers to the Commissioners and not the Lic Reps], the process is equally important. It may be argued that the historical legal context should be covered, e.g. Husted and its progeny, i.e. just what are the safe precincts in traveling to and from work?
CLE’s: I agree 100% with the recommendation that both the Commissioners and the licenses rep take CLE’s.
In my book, Behind The Closed Doors, in Charter 6, I wrote that “some discussions have been held about requiring licensed reps to keep up-to-date with an educational program. Just as attorneys in New York State are required to take CLE (Continuing Legal Education) credits, licensed reps should be required to do so as well. Since the WCB does conduct its own in-house CLE programs, it would not be too difficult for them to conduct three or four a year, via video conferencing, for which all licensed reps would earn two or three credits a year. The course outline would be identical and the WCB staff attorney who gave the in-house CLE could easily give the same course to outside parties as the CLE credits are approved by the New York State Bar Association.”
I even suggested at the Injured Workers Bar Association dinner I attended earlier this year that that association should set up some sort of ‘associate’ membership so that licensed reps could join and thus get access to all the CLE courses.
As for the Commissioners taking CLE courses, I totally agree and I also address this in my book.
Since the pre-board meetings vary in length, there is no reason that one hour can not be used to have either a formal CLE course or an open (planned in advance) discussion on the issues. During the time that Chairmen Snashall and Weiss conducted the pre-board meetings, there were informal discussion on issues such as Husted. And when Commissioner Henry was acting Vice-Chair he, too, attempted to set up some similar discussions. But far too often these have not only NOT take pace, but there are some who feel that the commissioners should not be discussing these issues lest they be consider to be making policy. Duh? Isn’t that what they are supposed to do.
The current training program for the commissioners is abysmal and the only time they really get involved in any substantive discussion is when they are either at pre-board or oral argument, too late to suddenly learn about an issue and its history.
This is one reason I had always been critical of short decisions which essentially said “You win, and you lose” rather than taking some time to explain the basis for the decision, with possibly referencing prior citations to explain why they were being followed or how the small differences between them and the case at bar warranted a different conclusion.
This is one reason I had always been critical of short decisions which essentially said “You win, and you lose” rather than taking some time to explain the basis for the decision, with possibly referencing prior citations to explain why they were being followed or how the small differences between them and the case at bar warranted a different conclusion.
But this process takes work and there are still too many people in power who just do not want to do that. A Monday afternoon at Crossgate Mall is far more rewarding for some than learning about an issue that effects thousands of injured workers.
Any while I hate to make his life more difficult, Chairman Beloten, who has been in the trenches and undoubtedly the victim of some horrendous reviews of his own decisions as an administrative law judge, is in the position to make these changes happen.
In the meantime the IWBA could talk to the licensed reps and seek some sort of accommodation with them.
I received another long e-mail on this subject and shall reply to that one next week.
July 31, 2009
Should the Board present
[pro and con opinions] to panels??
Today’s commentary was suggested by an e-mail exchange with an attorney, who has appeared before the Board, asking if it would make sense for the Board to present “bench briefs” to the panels.
In fact, this had already been done. In late 2000, it was decided to assign an attorney from the General Counsel’s office to each of the four panels. One was Rick Anderson and the other was Michael Hanuszczak who was assigned to my panel although Anderson also wrote for us on occasion. This concept did not work an was discontinued after just a few months into 2001.
To understand why the briefs did not work, you must first understand how commissioners reach the decision that they do.
When a party to a law judge decision does not like the results, they file an appeal with the Board and then the other side files a rebuttal with the Board. So who is the ‘Board’ with whom these documents are filed?
The first point to understand is that there is no ‘Board’. The word ‘Board’ is an amorphous term which includes about 1,500 employees. The decisions are not those of a ‘collective’ but of one, two, or more individuals, specific individuals, and it necessary to understand who are these individuals.
[This concept applies to all level of government. It is not some beneficent collective making decisions and setting policies. The collective may go along with the concepts suggested/ordered by these ‘individuals’ but these are department heads or commissioners, or political leaders who sits at a desk and announces “This is what we will do.” The ‘Board’ is no different.]
Those who get the appeals and rebuttals are a group of about 60 attorneys, called writers, working in the Administrative Review Division (ARD) under the leadership of former Albany Senior Law Judge Madeline Pantzer, a department formerly know as the Office of Appeals and before that the Review Bureau.
Allegedly assigned randomly to a panel of three commissioners, they collect all the papers and write a proposed Memorandum of Decisions (PMoD) which the writer then submitts to a panel. The panel is supposed to read the PMoD and review the attachments. The commissioner can either approve the PMoD or reject it, for anything from a minor typo to a disagreement with the entirety of the PMoD and the reasoning incorporated into it by the writer. If rejected, the PMoD would then be subject to dialogue by the panel and writer until such time as a resolution was reached, be it a unanimous decision, one with a dissent, or concurring opinion. And on occasions, the case would be sent for an oral argument.
That many commissioners just sign MoDs without readying them is a subject about which I have written quite often but is an important part of this discussion. A more detailed description of the decision making process in noted in Chapter 8 through 16 of my book, Behind The Closed Doors.
When there is a panel of engaged commissioners, they read the PMoD, look at the backup documents (appeal, rebuttal, medical reports, minutes, etc), think about the issues and other related cases and make a decision. If we all agree, who needs a ‘special’ counsel or a brief. After all, the brief is nothing more than another analysis of the case, like the PMoD drafted in outline form. But if the three of us on a panel disagreed and we all knew what we were talking about (which the engaged commissioners did), the last thing we needed was a fourth voice (Anderson or Hanuszczak) who could not vote.
But for those insouciants who did not read the backup documents or even the PMoD, does any one really think they would then look at the legal brief? Of course not.
It was even suggested that the special counsel be available during oral arguments in the event that the commissioners had any questions. But I reference the point I made above about reading the MoDs. Those of you who have argued before a panel at oral argument know that some commissioners know the details of the case quite well and ask very direct questions. Others kind of take up space and, when they ask a question, it is based on something said at the hearing rather than based on something in the papers in the file or even the PMoD.
As the quality of MoDs gets better, the engaged commissioners will get even more information about each case, as the MoDs explain the reasoning behind the decision and all the facts used in making that decision. And the insouciants will continue mindlessly signing cases and attending hearings regardless of any attempt to help them better review the cases.
If the commissioner is interested and takes pride in their work, if they have a question about a PMoD or an issue, they will ask someone in the ARD. If they don’t, then any number of briefs and hand holding will make no difference.
In summary, while legal briefs are a good thought, those who need them won’t use them and those who would use them don’t need them.
July 23, 2009
Who’s Left to Sign Decisions?
July 17, 2009: Now that Commissioner Scott Firestone has announced his resignation from the Board joining Chairman Zachary Weiss as a new administrative law judge in the Federal Social Security Court system, there is a shortage of attorneys at the NYS WCB which may well result in a substantial delay in the completion of Memorandum of Decisions (MoDs), those appeals by claimant and carriers whose delay will result in stalled resolution to medical care and compensation payments.
The issue resolves around the interpretation of the law as well as the Board’s policy and practices.
The controversy is that there are two interpretations of whether or not each MoD must have, as one of its three panel members, an attorney. Per WCL §142, the Board, when it has all 13 members, must have a minimum of four attorneys and delineates some of the Board procedures that requires that at least one of these four attorneys participate. Currently there are five attorneys: Weiss, Bargnesi, Beloten, Ferrara, and Firestone. But after the resignations of Weiss and Firestone take effect next week, there will be only three. And one of the three, Beloten will be come chairman and the chairman does not, historically, participate in signing MoDs. Thus there will be only two attorneys plus five non-attorney Board Members: Bell, Finnegan, Foster-Colbert, Libous, and Paprocki.
Until 2004, panels did not always have an attorney but, after 2004, each panel was required to have an attorney. Since the Chairman does not sign MoDs, as of next week there will only be two attorneys: Bargnesi and Ferrara to review all the MoDs.
If there are the usual 1200 MODs per month, they will each have to do 600 a month or 30 a day. The other six commissioners will be paired up to make the 2nd and 3rd person on each panel; 3 sets of pairs means 400 cases each, leaving the two attorneys with 50% more work. If there did not need not be an attorney on each panel, there would be eight commissions or three panels (one rotating member chosen at random) would mean 400-425 MoDs per commissioner per month.
So how does this impact on claimants?
If the Board stays with the ‘attorney on each panel’ practice, it will be very difficult for these two attorneys who read every case quite carefully and actually reject cases for contact and incoherent writing. While I use 20 days a month as the work month, there are actually less devoted to reviewing MoDs as there are hearings in their districts as well as two days in Albany each month. Among the ‘engaged’ commissioners it is acknowledged that 30 or so cases a day is the maximum that can be done but often it is less if there are complex cases to be reviewed and, far too often, MoDs to be rewritten.
And while there may be some at the Board who will argue that some commissioners can sign 80-200 MoDs a day, these same people do not use the phrase “read 80-200 MoDs a day”. And my personal experience has been that both claimants and employers who lose cases do not object as much if they are treated with respect. And that, in part, comes from a well written, well-reasoned, coherent, and grammatically correct MoD. That does not happen when a commissioner uses their keyboard to electronic ‘rubber stamp’ whatever they are given to sign. (I have often said that these are the same commissioners who will sign anything except the dinner check.)
Also, this is unfair to the lawyers on the Board, even if they did not read the decisions but just rubber stamped them. Although one can not get carpal tunnel syndrome in one finger from banging non-stop on the keyboard rubber stamping approvals for an hour to two at a time (and yes the Board own computer records will attest to this), it simply is not fair that some commissioners should get 50% more work.
How did this happen?
I put together some information from one of my database in which I have listed, for 6,396 cases which I reviewed, which had an attorney on the panel and which did not. The result were as follows:
- 1997 to 1999: 25% of my MoDs had a panel without an attorney. Excluding the Chair, there were three attorneys on the Board.
- 2000 to 2003: 41% of my MoDs had a panel without an attorney. Excluding the Chair, there were usually three attorneys on the Board.
- 2004 to 2008: Other than 2006 when I had 11 cases without an attorney, I had no MoDs without an attorney on the panel. The number of attorneys ranged from two to four, but was usually three.
So the question is what happened in late 2003/ early 2004 to cause this to change?
Hart v Pageprint/DeKalb 6A.D.3D 847, 775 n.y.s.2d 195 (2004)
In its attempt to speed up the processing of settlement waivers under WCL §32a, the Board set up a system that the Appellate Court determined was in violation of the Board’s own rules and regulations. Apparently embarrassed by the poor image of the NYSWCB that this case presented, the powers-that be decided to prevent any further embarrassments and challenges and thus issued an edict that henceforth there had to be an attorney on every panel, pursuant to WCL §142.
What’s the Solution?
I argued then and do now that a panel can be legally constituted without a member being an attorney. The Office of the General Counsel either did not understand the issue, could not read the citations which supported my position, or made a decision based on political and public relations factors.
In Neal V Riverside Service 427 N.Y.S.2d 520, 75 A.D.2d 932 (1980), the claimant maintained that the Workers’ Compensation Board that reviewed the referee’s decision was illegally constituted in that none of its members was an attorney. The Court stated in that regard, §142-2) of the WCL provides that “ ‘at least one member on each panel shall be an attorney and counselor-at-law’. The section goes on to state, however, that ‘the absence of an attorney on any panel shall not invalidate the order, decision or determination of a majority of the members of the panel if at least two affirmative votes are cast in favor of such action.’ By its terms, the statute does not render the determination made herein invalid for lack of an attorney on the panel, inasmuch as the decision was unanimous.” And lest the OGC state that this is a 1980 decision, I refer then to the Appellate Division’s 3rd Judicial Department July 3, 2003 decision in the Matter of Jaime Aherin v County of Onondaga which quoted the above text from the Neal v Riverside decision.
Now, I will admit that I am not an attorney nor do I have access to Lexis/Nexis (oh that I did) or Westlaw, but if I can find citations to support my contention that there not need be an attorney on a panel for the decision to be legal, why can not the staff at the OGC do the same?
Because it is considered politically incorrect? Or are they afraid that the workers compensation community does not hold the non-attorney commissioners in sufficient regard that the signatures of three of them, without an attorney, made a decision suspect? I doubt that, not when there is a Paprocki or Bell on the panel. And over the years there were some panels which did have an attorney whose decisions were not considered professional.
For a political agency interested in ‘looking good’, I suggest that the powers- that-be review this issue and conclude as have I that the work of reading and signing MoDs be split equally among the remaining eight Commissioners and insure both a proper as well as timely review of memorandum of decision. After all, if the Oligarchic Cabal really has the interest of the injured workers and their families at heart, they would be more concerned with expediting cases properly and not just about good ‘p.r.’ for themselves.
The Legacy of Zach Weiss
July 6, 2009: Zachary Weiss was one of the architects of the 2007 amendments to the WCL and the driving force behind the Rocket Docket.
I remember when he and I first met in the summer of 2007 when he was a member of the special workforce setup by Governor Eliot Spitzer to review the procedures of the WCB and make suggestions as to how the Board’s practices could be improved, be it by new laws, new regulations, or changes in the Board’s structure.
After having attended a number of hearings and spoken to a number of law judges, attorneys, and even to me, he came to the conclusion that there were far too many hearings to resolve minor issues and far too many adjournments because facts were missing that should have been there before the case got its first hearing date, practices about which some commissioners and law judges had been complaining for years.
Robert Snashall (Chairman, 1995-2002) helped make a major contribution to the system when he directed the conversion of a paper system to a paperless system in which computers were able to track the flow of information as cases proceed from their initial filing to an eventual decision. This was an enormous undertaking and required a retraining of the entire staff not only to use the new computerized system but to rethink their entire mental attitude towards claims processing. His key mantra was that we were a service company and the injured workers and their employers were our customers. His plan worked and the time it took to process claims and make decision was cut by 60%-70%. Unfortunately Snashall left the WCB when his term of office expired, and one of the next steps in his plan went astray as could be done to speed up claims and reduce unnecessary hearings and controversies. the bureaucrats took over. The next step would have been to review all the data and see what could be done to improve the system.
Even more unfortunate, from the date of Snashall’s departure in 2002, the Board has had one Chairman pro-tem, two chairman by default (Vice Chairmen stepped up in 2003 and 2007), and a Chairman who apparently had his eye on another position elsewhere.
When the boss is away the mice will play. So those left in charge decided that making the system look better meant having better statistics to show the public, possibly imagining that they would get promoted up the ladder once the stats they published showed how brilliant they were. And, as anyone who has worked with a bureaucracy knows, numbers can be ‘adjusted’ as needed but tweaking numbers does not change the needs of the real people whom the agency is supposed to serve.
[In my book in Chapter 17 “the Machines Take Over”, I tell how Albany got into a fight with Brooklyn because the reality of a foreign born, non-English speaking claimant base did not meet the statistical requirements set by the Albany bureaucrats, thus implying Brooklyn had to change it claimant base?!?]
Weiss saw through that bureaucratic gamesmanship, realizing that the two main functions of the Board needed change: the administrative and adjudicative branches. Immediately on his arrival as Chairman, he made a number of positive changes.
Carl Copps was instrumental in bringing the old Review Bureau into the 21st century of computer applications and helped develop the system we have now as well as training a new staff of writers, now virtually all attorneys, how to review appeals of law judge decisions. But Weiss felt that a new focus was needed and brought in new blood, new blood who could look at the staff as fresh faces and not old friends. Under Madeline Pantzer and David Wertheim, her second in command, changes are being made at the Administrative Review Division (ARD) to restructure the way in which memorandums of decisions (MODs) are written, to make sure that there is some consistency in the recommended decisions, particularly on black and white legal issues, i.e. §23 and what 30 days late means. Procedures have been set to make sure that if a commissioner questions a proposed MoD, that the staff answers within a fixed number of days. And, if need be, phone calls are placed to commissioners to help sort out differences of opinions and make sure that if dissents or concurring opinions are needed that they are done promptly. (Of course, no consideration or concern is placed to whether or not some of the insouciant commissioners actually read their cases; the concern is only that they sign them within the proposed time frame. Unfortunately this does not always work as these few commissioners never open their e-mails or return phone calls, even on their WCB-supplied Blackberries.)
Former senior law judge and former member of the General Counsel’s staff Elizabeth Lott was placed in charge of the law judges also to insure that decisions are written promptly and the hearings are done by the book in order to minimize unnecessary adjournments.
I have been told that 10 years after I recommended that the Board have an in-house data base of cases, similar to Lexis/WestLaw, indexed by issues similar to the one I had designed for my own use and offered to the Board in 1999, the Board now does have such a database. I do hope that it is more useful than the one they designed in 2001 in which you could only find a case if you knew the case number.
Also, the pre-board meeting, the informal one before the public monthly Full Board Meeting when all the cases are discussed at length, under Weiss, actually discussed cases and issues at length. Previously, discussion was limited to quick statements by commissioners on the panel of the case being decided, a quick vote taken, and the matter closed. Under Weiss, meaningful discussions took place and all the commissioner required to participate, with meaningful and original comments, no bloviating from one of the attorney/commissioners or the usual recitation of document submitted by writers from the ARD. These discussions help clarify what are the key facts used by the commissioners in making determinations and help the ARD draft more comprehensive decisions explaining ‘how and why’ panels make their decision. Since many practitioners look to prior board decisions for precedent, Weiss correctly felt that the prior cases had to be well-written, coherent, and consistent.
While these changes to the adjudicative process are still a work in process, Weiss’ attention to them has made a marked improvement in the quality of some of the decision making that is presented by the Board.
It is my opinion that, despite that fact that Weiss is a superb litigator and a demanding boss, he is not a politician. A litigator can argue face to face or document to document. A litigator is not accustomed to someone who will ignore what they are told or written directions which have been submitted. That is politics and a great deal of what Weiss tried to do on the administrative side got ‘bushwhacked’ by the bureaucrats who had other agendas.
One quick example is the series of stories I referenced in last week’s NEWSWIRE appearing in the Syracuse press about the 10,000 judgments issued by the WCB against firms and/or individuals who allegedly did not have workers compensation insurance. While it is essential that all employers who meet the legal standard have insurance, it is equally essential that getting a list from God-only-knows-where and placing a judgment against 10,000 so selected firms is properly done. Of course it looks good in press releases to see that the Board has gone after 10,000 miscreants and plans to collect $10M or whatever from them. And when one of these 10,000 complain, the Board cites ‘privacy’ for the aggrieved and thus refuses to comment, other than to reiterate, “They owe us money.” These lists should have been triaged and sorted, by among other indicia, some sort of date of last communication, for it is likely that if a firm or church went out of business, as many did 10 years ago, it is unlikely that there is any recent reference in any other agency on which that firm’s name may be noted.
Of course, the best example of bureaucracy run amok is the Rocket Docket. When Weiss and I had lunch in the summer of 2008 with former senior law judge Mark Solomon, we discussed the fact that far too many cases were coming to trial with basic facts yet to be determined. And I gave him examples of some issues for which a basic indicia set should have been present before a case could be set for a hearing. [See Chapter 15 in my book, “Consistency versus Speed – The Problem”, for specific indicia tables I referenced at that lunch, at many pre-board meetings, and in many e-mails.] No one know who were the witnesses or if there would even be any. C-4-s were missing or lacking any relevant information on the issue of causal relation or degree of the injury. But obviously the new C-4’s were designed by some bureaucrats sitting in the ivory towers of Park Street, who never had a claim or had to sit with a doctor trying to get him to fill in page after page of information for the small fee paid under WCL.
As they say, “The road to hell is paved with good intentions.”
Weiss has a lot of good intentions and the many changes he made in the adjudicative branch prove that. But here he had the help of a few, but only a few, commissioners and law judges, like Beloten, who had been fighting for the same changes for years. But in the administrative end, it was the long-term civil servants and political appointees who saw that better stats would prove their effectiveness and allow them to move up in the world. Taking time to see claimants as real humans, even to attend a hearing and see a claimant face to face, was something not to be considered. The only people with whom these bureaucrats would interplay were their fellow game players. Woe betide those who did not play the game.
Had Spitzer remained in office, I am sure that many of Weiss’ plans would have come to fruition and he would have continued his stay at the Board. But the Paterson administration is filled with too many political hacks who now have no one to hold them accountable. That a qualified person like Robert Beloten was chosen to replace Weiss is due to the same political machination that helps destroy good agencies. Fortunately, and most likely they did not realize it, Beloton has the experience and intelligence and contacts to follow through on Weiss’ vision as well as adding some ingredients of his own.
In summary, Zach Weiss’ legacy is a positive one, made up of his contributions to the adjudicative process and started in the administrative process, continuing the precedent setting changes established by Robert Snashall.
Next week, I will list some specific changes that need to be made to help the Board serve it constituency: the injured workers and their employers. Not the lawyers, not the carriers, and certainly not Park Street and it minions scattered throughout the state.
Judicial Economy vs Judicial Integrity
May 26, 2009: In both my book and in my January 2009 posting on the ASK THE INSIDER, I questioned whether WCL §142 was being followed under the Board’s procedure in which Vice Chairman Frances Libous appears to have assumed the sole authority to deny Full Board Reviews (FBRs).
WCL §142 General powers and duties of the workmen’s compensation board reads ….
2. Any review, hearing, rehearing, inquiry or investigation required or authorized to be conducted or made by the workers’ compensation board may be conducted or made by any panel of the board consisting of not less than three members thereof,. . . Notwithstanding any provision in this section to the contrary, a member of the board may be designated by the chair to act individually in the hearing and determination of any claim under this chapter, or conduct any investigation, hearing or inquiry hereunder, or review and rescind any order, decision or determination upon any claim and restore such claim for further trial hearing and evidence or consideration except that such member may not conduct any appellate rehearing of any case or otherwise review any order, decision or determination upon any claim and reverse, modify or affirm such order, decision or determination which by the provisions of this section shall be reheard or reviewed by the board or a panel thereof.
Prior to 2000, all FBRs were signed by three commissioners, usually the same three who signed the original MoD. But in 2000, in order to save time, the then Vice-Chairman Jeffrey Sweet decided that he alone would sign the denials, since these amounted to about 90% to 95% of all the requests. And because there were a few commissioners who regularly did not sign the MoDs or FBRs for weeks at a time, Sweet felt it would be more expeditious if just he signed all the denials.
A few years ago, when Sweet became unofficial citing Chairman after the resignation of Robert Snashall, Sweet continued to do this full schedule of MoDs, FBRs, and hearings while also performing some of the duties of the chairman. I phoned him and offered to help him by having me and a few other commissioners sign the FBRs. He told me that this could not be done as the person signing them had to be an attorney. And he later asked Commissioner Edel Groski, an attorney, to sign them for a while. I got the hint: Sweet was not an attorney but he did not want me or those of my colleagues who wanted to sign them because he was afraid that we would read them and suggest that some should not have been denied but reconsidered. He just wanted these signed in the interest of ‘judicial economy’.
The current Vice-Chairman, Frances Libous, has taken this one step further. And it is this step which adds to the inequitableness of this process.
But first some statistics:
About 7%-9% of all the Appellate Court decisions are either reversals or rescinds which means that the staff in the Office of General Counsel (OGC) are wrong in about 7-9% of the FBRs that they review. There are some appeals that the OGC does not review for which a motion has been filed at the Appellate Division. But the OGC does have the right to review those motions and do a FBR on its own.
Occasionally a FBR after discussion by the full board is ultimately denied despite the OGC having recommended a change in the underlying decision. This occurs when commissioners not on the original panel and thus not usually those who approve the request or the FBR do not feel that the OGC’s recommendation, accepted by the original panel, is sufficient to change the original decision.
There are a few occasions in which the FBR itself is denied by all three of the panel members to whom the FBR was submitted.
Essentially what all this means is that the recommendations of the OGC are wrong in a number of cases that see the light of day after a review by a panel of three commissioners and the full board, or the Appellate Division.
So by having just one person sign all the denials, a person who does not always have the time or resources to give these her full attention, there exists the possibility the some of the appeals for FBR warrant not only a review but a change to the underlying decision. Not only that but this process is subject to abuse when the Vice Chairman and the OGC want a panel’s MoD to be reconsidered/changed and the panel does not. These examples illustrate this problem:
- In one case the panel denied the FBR, thus taking the position that the recommendation to change the original MoD was in error. In the case at hand we were not dealing with a black and white legal issue but one with shades of gray. After the three of us denied the FBR, overriding the OGC, we got e-mails arguing with us. We held our position. We then got a phone call from Libous asking, then telling us to accept the FBR. We refused and ultimately told that one of us would be taken off the panel unless we agreed to a FBR.
- In one case the panel did not accept the recommendation of the OGC although we did agree to a FRB. But our concern was that the FBR was not properly written and we rejected it. We were told to not waste time and just sign what we were given. We refused. The FBR was given to another panel. But since this issue had case had come up at a prior monthly meeting, the second panel refused to take the case. Ultimately, my panel’s rewrite had to be accepted. The dispute was over the fact that my panel wanted more than to write “We have changed our mind” but to explain why, so that all who read the revised MoD would understand our thinking and, in the long run, cut down on the number of appeals on this issue.
At the same time, according to the interpretation of the rules and law by this same OGC, a panel does not have the right to ask for a FBR. As I note in the two cases below, it is the civil servants and the allegedly exclusive power of the Vice Chairman who decide if a request for a FBR gets considered. That three appointed commissioners have decided that decision they had just signed needs to be reconsidered appears to be of no value. Two examples:
- As noted in my book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.As noted in my Book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.
- One of my panels (as well as one other) had a new issue come before us, one that was quite interesting and had the potential to set precedent. My panel had mixed feelings and felt that the issue was too important for just three of us to decide. So one of us volunteered to write a dissent so that the losing side (the carrier in this case) could ask for a FBR. (When there is a dissent in a decision and the losing party requests a FBR, it must be done.) But in this case the carrier did not. So we asked to put it down for FBR. We were told commissioners do not have that right.
So what we have is a situation in which the civil servants make the decision as to which cases/issues get FRB and which do not. And they have the full support and power of the Vice Chairman to effectuate their decision , in essence not only overriding what common sense would say is the right of the commissioners to make such decision but appears to contradict the wording in § 142.
It is time that the Court is being asked to consider this issue. That this appeal is made on the issue of § 142 and not as an Article 78 does not preclude other parties concerned about the Rule of Law from participating as amicus curie.
A Guest Commentary on Board Doctors
May 6, 2009: What follows is a Commentary from one of the visitors to the website, someone who has been a part of the system for many years. This Commentary is published with only a few ED NOTES to clarify some of the points being made. Anyone else wishing to add to or criticize this Guest is welcome to do so.
Why we got rid of Board doctors in the first place
In the final decade in which Board doctors were used (1982 to 1992), the corruption of the system was causing a total collapse and signaled the inability of the system to have higher PPD rates.
Why? Because only Board doctors made the findings of extent of Scheduled Loss of Use (SLU) and made the finding of Permanent Partial Disability (PPD) necessary to get a lump sum settlement. Yes, carriers’ Independent Medical Examiners (IMEs) expressed opinions but the trials were a farce. The judges were ordered to protect the Board doctors and to NEVER allow questions about Board standards.
If you asked about a doctor’s credentials, the judge would halt the question and say, “The doctor is licensed by the Board to examine and express opinions.” They had no license or special training. If you asked about Board guidelines or definitions of, say, PPD or extent of SLU the judge would halt the question and say, “The doctor is basing his answer on years of experience, right doctor?” Even before the doctor had a chance to speak.
It all fell apart in 1987 when a state doctor testified that he based his findings on the notes the judge wrote to the doctor on the file. On the same claim, a request for copies of Board guidelines under Freedom of Information resulted in contradictory answers. The principal state doctor denied they existed but general counsel sent, by mistake, a copy. The guidelines that didn’t exist were entered into the record and an appeal to the Appellate Division was taken.
As a result, Governor [Cuomo] requested Justice Wachtler to do a study with recommendations. He concluded that the judges should take competitive civil service tests and that state doctors no longer had a role.
The old system guaranteed PPDs whenever the judge and the claimant’s lawyer wanted them. We had 20,000 a year at the peak. Even if the claimant was working, these PPDs could be warehoused until retirement then brought out of storage to become a post-retirement lump sum..
But that was when maximum partial disability award was $150 [ED NOTE: 7/1/85 to 6/30/90]. When it went to $400 [ED NOTE: 7/1/92] that was no longer viable. The governor [Cuomo] knew full well he had to get rid of state doctors if we were to survive a $400 rate. The attorneys were living in a fog of denial. They assumed it would all continue their way.
It never occurred to them that senior attorneys at SIF could see this all happening and told the governor. it had to be stopped or else. It was. Soon Newsday had a page one story about a judge who filed a comp claim for damage to her voice from having to shout at hearings. She was working in the evenings as a nightclub singer in Jersey, receiving favorable reviews. She thought the reporter wanted a story about her being a singer. She was stunned to see it was really an expose of compensation. Everyone knew who ordered that story to be written.
Only 6% [ED NOTE: from my recent poll] thought the state doctor would be influenced by the Board’s wishes? Baloney! They remember the good old days when the entire system was run on that basis.
Your thoughts are welcome. Just send them to me by e-mail to TheInsider@InsideWorkersCompNY.com
Mirror Mirror on the Wall!
Who’s the Fairest Doctor of them all?
April 28, 2009: Much of the content of the three articles published by the New York Times a few weeks ago dealt with the issue of making assessments of claimant disabilities.
Someone was quoted as saying “Everyone complains about the weather but no one does anything about it.” Well fixing this problem may be as hard but I am going to give it a try.
The following is a selection of statements from N. R. Kleinfield’s March 31, 2009 article “A World of Hurt -Exams of Injured Workers Fuel Mutual Mistrust” and sets the stage for this discussion.
Independent medical exams are among the most disputed components of New York’s troubled workers’ compensation system. The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries. Zachary S. Weiss, the chairman of the workers’ compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was “off the charts.” But Mr. Weiss, who was appointed in late 2007, said he was unsure what would rectify the problems. After nearly a dozen years without a medical director, the board has finally filled that job temporarily. It has introduced new, more detailed forms, which many doctors find maddening. It is also working on fresh guidelines that it hopes will better calibrate an injured worker’s care and work limits. Though experts say talk of worker fraud is frequently overstated, it is widely acknowledged that some doctors collaborate with workers or their lawyers to magnify injuries or provide treatment for years without making someone better. Law firms representing workers often have cozy relationships with doctors to whom they refer patients, and vice versa.
My arrival at the Board in December 1996 preceded by a few months the departure of the last of the Workers Compensation Board’s in-house doctors. For me, Dr Bernardo, who was the head doctor, served a useful function in that in two days, I had a reasonably complete and interesting medical education, one which gave me the foundation to understand the many medical issues I faced over the rest of my term. It is unfortunate that such an educational source no longer exists for the commissioners or law judges as I can image the concern felt by the engaged commissioner when faced with an asbestos case in which the attorneys are fighting over the interpretation of x-rays and scans done by an A reader versus a B reader.
But the real problem is three fold:
- Between the claimants’ and the carriers’ doctors, who is more unbiased?
- Why aren’t there any guidelines as to degree of functional disability?
- Why do cases on new medical issues take so long? It took about four years or more for cases in which claimants argued that colon cancer was consequential to asbestos exposure before there was sufficient medical evidence to establish the possible link. (see Behind The Closed Doors, Page 76-77).
The three NY Times article generated nearly 500 blog comments, some of whose ideas follow:
- Although carrier doctors are called Independent Medical Examiners (IMEs), even if they are not salaried employees of the carrier or third party administrators (TPAs), their income is derived for these firms. Hence, their ‘independence’ can be questioned.
- Claimant doctors are the one usually chose by the claimants, some of who have had long term relationships with the claimant, the claimant’s family, friends, relatives and/or coworkers. And since they see the claimant on several occasions, particularly if they are regularly treating him, they do not wish to get their patient angry with them.
But what makes anyone think that Board doctors would be any better?
- Are these doctors going to be full time doctors, working exclusively for the Board?
- Where would their offices be located?
- From where would the funding be derived to pay for these doctors, their offices and all their equipment?
But there are so many different types of injuries and diseases with which the Board deals. it is unlikely that the Board will have doctors working exclusively for them since for some medical specialties, such as eye injuries, there would not be enough work in the entire state, let alone one city, to keep one doctor fully employed.
Therefore, these would have to be doctors hired by the Board either part-time on a cases-by-case basis. In fact this is already done.
As a commissioner, there were occasional cases in which the medical opinions were so divergent that we felt we were being asked to pick between black and white, not shades of grey. We would ask for an independent specialist (I/S), usually specifying the medical field so that if we needed an opinion on the effect of asbestos on a heart condition, we would ask for a cardiac specialist and not a pulmonary specialist.
When this was done, the Board would go to a list of doctors who had volunteered to do this, pick a name, and submit it to both sides to give them a fixed period of time within which to object to the doctor. If there was no objection, the I/S would get all he medical files from all the doctors to the controverted medical issue, be it degree of disability or causal or consequential relationship. That doctor would then render an opinion (almost always without seeing the claimant) and then be subject to cross-examination if so requested by one of the parties in the case. 99.9% of the time both the Law Judges and the Commissioners would accept the I/S’s opinion.
The only problem with this system was that the Board could not find enough doctors who would participate. Now some may think the fee paid (I remember $400) was a lot, it is not the simple case with 10 pages of C-4’s that is at issue. It is the one that, when we had paper files, used to arrive in my office in a shopping cart of its own and take hours to read though. How many of the attorneys out there would do all that work for $400 and then be subject to a possible cross-examination that many doctors have said tends to be an hour of rude, aggressive, and insulting questions about their integrity, intelligence, and experience.
Now as to the first part of this series, we are asking your opinion about who should do the final assessments of degree of disability, SLU, and causal/consequential relationship when there is a difference of opinion. And do you really feel that doctors hired by the board on a regular basis would be any less susceptible to influence than the carrier or claimant doctors?
Once last question for this last Part 1. Why does a case in which the sole issue is a SLU of 60% proposed by the carrier doctor and 66b% by the claimant doctor in which the pro-se claimant writes they will not attend the hearing, asking that the judge just pick a number, and close the case, then require three hearings and still not get resolved? The true story next week. But we want your opinion.
Who Wins The Most Appeals?
March 5, 2009: When I spoke at the Injured Workers Bar Association Annual Meeting in January, 2009, I gave out some numbers regarding the percentage of Memorandum of Decisions (MoDs) that were affirmed, reversed, modified, rescinded, or otherwise. There has always been an interest in these numbers because they help everyone get a better sense of the direction in which the Board is leaning, pro-claimant or pro-carrier (whatever that means) and whether or not it makes sense to appeal a decision for a particular type of client or on a specific type of issue. This information is helpful by assisting the attorneys for both sides to determine the best use of their limited resources.
A recent E-mail asked me if I could give that conference attendee the information again, so here it is, in writing, with a bit more detail.
The first set of numbers, in bold, are from the Board itself and are public documents submitted at the monthly Board Meeting. At one time they were given in an oral report but to save time, the reports were submitted on paper, one of the many reasons the monthly meeting you see on the internet is so short. The numbers vary a bit from month to month and relate to the approximate 900-1200 MoDs that are written each month. And, of course, these number were from the time I was on the Board. But I have stats going back about four years and there are no substantial changes month to month.
AFFIRMED……………. 46% - 52%
MODIFIED……………. 28% - 32%
REVERSED……………… 3% - 6%
RESCIND/RESTORE…… 6% - 9%
OTHER………………… 5% - 6%
There is one question about these numbers which some commissioner have raised. If the MoD resolved eight issues, only one is appealed, and that one decision is REVERSED, the WCB often calls this a MODIFICATION since the entire decision is not REVERSED. But overall, these numbers are reasonably accurate. Our question was “Do these terms refer to the entirety of the law judge decision or to the issue(s) on appeal?”
But what are missing are stats on whether or not the carriers and the claimant have different ‘loss/win’ ratios and what are the ‘loss/win’ ratios by issue.
As I mentioned in my book, I had my own data bases. But do understand that these numbers for 2007 and 2008 are for the panels on which I served which as many of you know is not the same as a panel with three insouciants. The first observation is that 33% of the appeals were generated by claimants and 67% by carriers which is almost the reverse of that data I had in 1997-1998. The number of cases shown in the second column is to illustrate the percentages per 1,000 cases.
B U T ……
These figures do need some clarification.
- Some of the CARRIER appeals do not involve the claimant but deal with §25a, §15(8), §21(f) or other disputes between carriers and/or the Special Funds.
- Some of the CARRIER appeals do not directly involve the claimant but deal with penalties, denials of RFA-1’s, or late payment penalties , i.e What is 30 days late?.
- A small number of the ‘claimant’ cases actually involve FEES in which the claimant is not taking a position on this issue or they have a request to reopen a Lump Sum.
Now these are the final MoDs, but not what was originally submitted to my panels. I personally had a reject rate of about 22% which my own stats break down to Legal, Medical, and Missing Issue or Incoherent with another rejected for 8% for typos.
These same stats also have breakdowns by another set of categories - an basic issue code:
- Legal issues
- Procedural Issues: RFA-1, penalties, proper filing of forms (but not §18 or §28)
- Medical Issues: Degree of disability, further causally related disability, which sites
And one of my data bases has it broken down by issue codes, such as various subsets of ANCR: ingress/egress, horseplay, lunch/coffee/meal/etc breaks, in and out of the course of employment, independent contractor, etc. There are about 80 issue codes.
The Board actually does have a great deal of this information or it can be generated with about four or five hours of data processing time to write the proper computer code; I know because I can write the code and I’m not an experienced programmer, at least compared to the WCB’s IT staff.
But these numbers really need further interpretation in that without knowing the issues, it is hard to determine how important were the cases for either side that were denied on appeal or modified or reversed. If you have an interest in a further analysis of these numbers, please contact me at TheInsider@InsideWorkersCompNY.Com.
In my book Behind The Closed Doors, in Chapters 16, 17, and 21, there is a great deal more on the interpretation of these statistics and how they can be used by everyone to help focus on key issues, insure consistency in the decision making process, develop indicia for hot topics and, ultimately reduce the number of controverted cases.
Of course, the first step is for the Board to make their numbers public. They have a web site or some of these number could be included in period subject numbers. As I wrote earlier, the Board does have some of the numbers, certainly the first set I noted above in bold. They are not a state secret. They measure what happens with YOUR CASES - you should have that info.
I was only one of 11 commissioners, on only one of three panels so I can not assure you that my numbers are representative of the Board as a whole. But they are a look Behind The Closed Doors
Fees: What’s Fair & What To Do
February 19, 2009: During each of the presentations I have made over the last few weeks, I have made the following point:
When you are a small child, you grow up dreaming of being a fireman or a policeman or a doctor or a ballerina. No one grows up dreaming to be a lawyer, let alone a lawyer specializing in workers compensation cases.
And while you may be in that business now because of an interest in helping people in need, you are also doing it for the money, the fees you get for providing your services.
In the 12 years I was at the WCB, there were occasions when the issue of fees was discussed, not just in terms of a specific case, but in general. At one point shortly after we starting doing §32’s, an influential commissioner expressed a concern that the attorneys were getting too much money in fees and that the board should set a fee schedule. I told him I would look into it. I did some reach in Larsen and found that every state did it differently.
But I told him that it was just not an issue of setting a fee for the settlement as these did not occur in a vacuum. These settlements were the final stage in what could have been a long complex process, a process in which the attorney put in a lot of work, earning little in fees. And for every attorney who did nothing other rather take a call from a carrier months after a classification, accepted a carrier-drafted §32 agreement, and still got 10%, there were at least two who had been fighting for additional medical treatment since the classification and/or fought attempt to reclassify the claimant at a lower rate or maybe fought against voluntary withdrawal of the labor market and earned no additional fees.
WHAT IS THE HISTORY OF FEES?
As to why there seemed to be a consensus of a 10% fee on classified cases and 12% to 15% on most of the rest, these numbers seemed to have evolved from the 10% given in Lump Sum Settlements. And there was no one around at the Board who had any idea from where the 10% for Lump Sums was derived.
Poet and philosopher George Santayana wrote “Those who cannot remember the past are condemned to repeat it.” I would like to add, “Those who don’t care to learn from the past will invariably [mess] it up!”
This influential person at the Board to whom I spoke in the late 1990’s as well as others who have in the recent past who raised this issue rarely worked in the private sector. The few who were, were attorneys and were not the managing partner and thus had no idea of what it meant to meet a payroll or understand that in order to pay an attorney, let us say, the $90,800 a year a commissioner gets, you need to bill at probably $250,000 a year ($100 an hour for a 50 hour week) to cover salary PLUS benefits, plus rent, phone and utilities support staff, and much more. And remember, the carrier attorneys also have to make money.
Does the staff at the board thinks that if they get $90,000 a year, the claimants or carrier attorneys should get any less? And don’t forget the overhead!! See the story Why you’re Fired in Opinions and Reports. No better proof of this exists than the list of expenses a sole proprietor is allowed by the WCB to use when calculating his net income for AWW purposes. The Board considers as non-expenses some items without which no business could survive, one of which is advertising. Is it no wonder they do not ‘respect’ your need to collect the fees you request to keep your business going?
CAN THE BOARD SET FEES?
As I have noted in some of the court decision ffrom other states which I have cited, attempts to legislative fees doesn’t work. One example I quote in my COURT DECISIONS page is the October 23, 2008 Florida Supreme Court decision in the matter of Murray v. Mariner Health; they ruled that workers’ compensation attorneys are entitled to recover “reasonable fees” for services rather than being limited by the statutory formula to a percentage of benefits. “Reasonable fees” in this context could include payment of hourly charges at a prevailing market rate.
WCL §24 and the supporting NY Codes Rules and Regulation do not allow claimant attorneys to charge by the hour but must base the fee on the results. Yet some law judges, particularly in one downstate district, seem to have taken the position that the fee should be based on results or time spent, which ever is the least, maybe with an addition discount for probably having higher annual income than the judge.
So one would think that the Board is against attorneys making a living. Yet, and this is but one example, under the new Rocket Docket ‘Sock-it-To-Your-Pocket’ program, in order for a carrier to file a C-7, it must be signed off first by the carrier’s attorney. So at least the carriers’ attorneys are guaranteed some sort of income for the foreseeable future.
And carrier had best not assume that they are safe. I can see the WCB sitting down with the Rating Board and the Superintended of Issuance and determining that the cost schedules that the carriers submit to get their insurance rates have too much set aside for overhead and legal fees and will then reduce the rates in order to reduce the amount spent by the carriers to hire legal staff .
HOW TO PROTECT YOURSELF
When you present your fee request, in particular with the §32, you need to add into a narrative some information some of us at the Board had requested from the Administrative Review Division when we were asked to review appeals on §32 fees:
- Since you firm has handled the case (particularly if you are not the first attorney), what is the total amount of compensation that has moved to the claimant though the date of the last fee you got.
- How much was that fee?
- Including the §32, what is the total amount of money moving to the claimant, and what is your total fee?
- If you have any sense of the amount of medical that has been paid and it is a lot, toss in how many office visits, physical therapies, or surgeries there have been.
- Since you don’t get fees for appeals and rebuttals, if you have had some since your last fee (and by fees, I do not mean a $75 appearance fee), put that in, too.
Now some claimant firms do have computerized time sheets. If you have a sense of time or can submit it, PUT THIS IN TOO. Do not let the judges or your clients think the only time you work on the case is when you are at a board hearing. Consider the amount of time the judges should be working on their cases when they are not actually presiding over a trial; they should understand the amount of your ‘back office’ time, too.
There was a judge in the metropolitan NY area, recently retired, who routinely cut fees 60-70%. Write your fee request as if you are appealing to a panel of commissioners that judge’s decisions all of which were reversed.
And if you are in effect ‘losing’ money on a case and you should have some that take a lot of time but generate little in terms of awards on which you can base your fee, make it clear that you put in a lot of time but understand that you cannot charge a bigger fee because the money is not there, implying that you can do this because you will get a bigger than normal fee on some other case.
The judges and commissioners are like the population in general: 20% are against you no matter what you say or do, 20% will agree with you no matter what you say or do, and the other 60% is the ‘mushy middle’ for whom a proper presentation can help educate and then persuade them to accept your fee request.
And if you unfortunate enough to get some judge who considers you the ‘bane of their existence’, then appeal it to the Board. I estimate it would take no more than 20, 30, or 40 minutes at most to do the appeal; after all it’s the same information you should have give the law judge. And if you are taking about a $500 fee reduction that comes out to be about $1,000 or more per hour.
Also be sure to explain it to your client. If you can get them to approve it in writing DO SO. If your claimant knows what is the normal fee structure and feels it is fair, virtually every commissioner I knew would approve the fee. And let the claimant know about all the work you do for them when you are not in court or holding their hand, you are doing research, preparing paper work and arguments, following up doctors, etc.
And while these recommendations may be directed mostly to claimant attorneys, for those who are a carrier attorney, two points of order. One day, some of you may switch sides. And, be prepared in the event the Board starts publicly asking if you are worth the carrier’s pay.
Legal Reasoning vs Intuition
January 22, 2009: Real intuition is nothing more than the instantaneous but unconscious analysis of facts.
I become fully aware of this while serving as a commissioner when I had my ‘eureka’ moment during an oral argument on an employee/independent contractor issue for the driver of a taxi.
It was then that I realized that what we call legal reasoning is nothing more than our ability to unconsciously but instantaneously review a set of indicia relative to the problem at hand, an unconscious indicia table developed from our own experience, in order to make a decision.
As I noted in Chapters 16 and 17 of my book, Behind the Closed Doors, I realized that when an issue such as the taxi driver’s status came before me, I would run through a list of facts before me but also, without realizing it, unconsciously add more facts, in order to make a decision. Unconsciously each of us were already doing this.
But I decided to make up a list of those unconscious facts I considered and make up a formal written list, attaching numeric values to each of these indicia. The result was a list of 20 indicia which had a total number value of 17, for which there were two columns: employee and independent contractor.
Aside from the fact that each of the commissioners, law judges, and staff writers may have assigned a different value to each indicium than did I, as often as not some of the indicia would be omitted in our legal reasoning. Our conscious reasoning never did develop a formal list of indicia such that we never used the same set of indicia, consciously or unconsciously, each time we made a decision.
Let me give another example from my book: How you get dressed every morning.
When you get up in the morning and get dressed for the day, you do not really have an endless choice of combinations of clothes. Unconsciously, you know whether it is a work day or not, and, if it is a work day, if it is winter, summer, spring, or fall, hot, sunny, or raining. You know if you have an important meeting that requires your best business suit or just another day at the office requiring your usual business attire. More than likely, you take off your list of possibilities the outfit you wore the day before. As you can see, you have ‘unconsciously’ reduced the possible set of 5,000 combinations down to 10 or 20.
For every issue with which there is a controversy, there is a set of facts to be considered. An experienced claimant’s attorney has about 80% of them in their unconsciousness but as likely as not, when the time comes to interview a claimant or prepare an argument, they will forget some of them. The carrier’s attorney does the same. But if it was me sitting at the oral argument or reviewing a recommended decision, I would have a printout of what would otherwise have been my own “unconscious” indicia list and therefore not miss any. And invariably during the arguments I would ask about one of them and/or find one of them in the files that the attorneys in front of me and my fellow panels members missed, thus coming up with an unexpected decision.
I must add that I do this not because I am smarter than anyone else (not everyone, just most) but because I do computer programming and programming requires these specifics to work.
It is essential that these indicia list be formally done. Some of the forms used in the Rocket Docket attempt to elicit more details about a case before it comes to a hearing. But these do not deal with specific legal issues per se.
I have already developed such lists for (1) independent contractor/employee, (2) ingress/egress, (3) special errands, and (4) voluntary withdrawal from the labor market. For reasons never made clear to me, I was told that as a commissioner I could not share these with anyone. It seemed to me that the development of such lists by anyone would result in both sides of a controversy being better prepared and, even more likely, a decision by one side that the other side has more ‘point’s, thus obviating the need to controvert a case.
Chapter 16 “ ‘Consistency versus Speed” – The Solution” gives a very specific set of recommendations. These will go a lot further in cutting down controverted cases and speed up the resolution of cases faster than some of the new forms being developed for the Rocket Docket.
The real question is “Why doesn’t the WCB do this?” [91009-4004]
Solutions to Common Problems
To suggest a Common Problem that you’d like to see on this list, send an email to TheInsider@InsideWorkersCompNY.com.
How to Make Insurers Pay the Doctors
On July 2, 2008, the Workers’ Compensation Board announced a clarification of the effects of the amended WCL §54-b, which in turn deals with the steps necessary to force a carrier to pay medical bills, steps which are not in and of themselves complete.
In Subject No. 046-207, the Board wrote that,
“The neglect or failure of a carrier or self–insured employer to pay awards for medical bills in a timely manner has a significant impact on the ability of all injured workers to obtain effective and immediate treatment, as it discourages health care providers from seeking or retaining authorization to treat workers’ compensation claimants. Additionally, it may result in the health care provider seeking direct payment from the claimant, despite the statutory prohibition against direct payments. A claimant’s ability to obtain proper medical treatment expeditiously not only benefits the claimant, but also results in lower medical costs for employers. Claimants who receive prompt and proper attention are more likely to be able to return to work swiftly and less likely to have long term disabling conditions.”
For years the WCB had made available to the providers of medical service the HP-1 form which should be submitted when the health provider has been unsuccessful in obtaining payment from a carrier for more than 45 days after the services have been rendered to the claimant. This form, in use since 1997, replaced an earlier version in effect since 1994. Unfortunately, the carriers have since 1997 treated the new HP-1 with the same concern they did with the earlier HP-1 form issued in 1994: they would often ignore it. Hence the new HP-J1 form and the July 2, 2008 announcement.
But, in The Insider’s opinion, this is like telling a child who has stolen a cookie that, unlike the first time when you were ‘angry’, this time you are ‘really angry’. This process also places the burden on the medical provider to file pages and pages of HP-J1’s every week or so, when the deadline has passed so that they do not have tens of thousands of dollars in unpaid bills before filing the HP-1/J1 or awaiting the largess of the carrier before they get paid.
But in reality there is a far simpler method, one which relieves the doctors of the need to file HP-1’s and HP-J1’s every few weeks.
In the above Subject Number, the Board writes “The continued viability of the workers’ compensation system is substantially dependent upon voluntary compliance of all parties with the Workers’ Compensation Law, rules and regulations of the Board, and legal responsibilities imposed upon the parties.”
But what does the WCB mean by ‘voluntary compliance’. Although the firms, profit and non-profit, may have ‘volunteered’ to be in the insurance business, they are all also authorized to do business in the State of New York, some authorized by the WCB itself. After all, not every company can meet the requirement to qualify as an insurer.
So, if they cannot meet the obligations they have ‘voluntarily’ agreed to in order to make or save money as a carrier of record, the WCB should revoke or suspend that authorization when the number of HP-1’s or HP-J1’s reach a certain level, in terms of absolute quantity or dollars or some ratio of complaints to cases or whatever.
If 100 doctors file claims under §54-b against Carrier X, why should doctor #101, #102, ad nauseaum also have to file. Why can not the WCB and/or the Department of Insurance contact the carrier with a warning to pay ‘everyone’ or risk suspension or revocation.
As a commissioner I had asked this question of the administration and some legislators and have yet to have anyone tell me that this idea is wrong and/or mention any problem with it. I am usually greeted with a “Hmm, that’s interesting.” In fact I was told not to bring it up a pre-board meeting at which the commissioners are supposed to be able to discuss what they feel are relevant issues or to ask questions so that they can learn more about the system.
So, now that I have a
soap box web site, I am asking, “Why doesn’t the WCB use its authority to revoke a self-insured’s right to self-insure if there are enough complaints about its failure to pay its medical bills?”
Solutions to Common Problems
To suggest a Common Problem that you’d like to see on this list, send an email to TheInsider@InsideWorkersCompNY.com.
An excerpt from Behind The Closed Doors
Who ‘decides’ the Decisions?
In Chief Justice William Rehnquist ’s book The Supreme Court, Rehnquist goes into great length as to how the United States Supreme Court determines what cases it will hear and how it arrives at its decisions. In some ways, the Board is not that different but in other ways it is the opposite. Because the ARD/OoA gets the appeal first and writes the PMoD before the commissioners are even aware of the case, the question has always been: “Do the writers write the PMoD and the Commissioners approve it or do the writers draft a decision for the Commissioners to consider if that PMoD is appropriate?” This is a far more important issue than one may think because:
- The 60+ writers who make up the ARD/OoA are far less consistent than 12 commissioners and four panels.
- The commissioners have been appointed by the Governor and confirmed by the Senate to further the philosophy of the Governor in their interpretation of the Workers’ Compensation law.
- To whatever extent those who do the decisions are subject to public scrutiny, it is the commissioners whose names, and the governor’s by default, that are on the decisions, and it is these commissioners whose employment is subject to periodic review (reappointment) and a governor subject to reelection. The OoA staff are civil servants, in a sense, answerable to no one.
Equally important is that over the course of time, the legal profession should have developed an understanding of the thinking of each of the commissioners as well as an understanding of how well each commissioner fits into the system. Every commissioner at one time or another has conducted a hearing at which the attorneys have appeared, hearings at which the commissioners act alone or as a member of a panel of three. As a result, the attorneys have an impression of who seems to be knowledgeable about the cases and issues before them and is able to ask pertinent and substantive questions and which commissioners sit silently throughout the entire proceedings, the insouciants of the system, and which act as the inquisitor equal to the Potemkin Village of legal inquiry.
To read more, click on Behind The Closed Doors…
Solutions to Common Problems
To suggest a Common Problem that you’d like to see on this list, send an email to TheInsider@InsideWorkersCompNY.com.
Rebuttals: A Waste of Time & Money?
If an appeal is late pursuant to WCL §23, why is it not denied on that basis? This would eliminate the need for the respondent and the WCB to spend the time and money necessary to issue a rebuttal.
For several years, some commissioners rejected proposed decisions because the writers in the Office of Appeals (OoA) were making mistakes regarding their definition of what was a late appeal and/or rebuttal.
General Construction Law §25 states that a legal due date falling on a Saturday or Sunday was automatically moved to the next Monday (unless that Monday was a legal holiday), but the OoA quite often misstated the timeliness of appeals and rebuttals.
Sometimes, if the 30th day was a Saturday, the appeal/rebuttal was denied as being late. Sometimes if it arrived on August 1st for a decision filed July 1st, it was defined as ‘timely’ despite that fact July has 31 days. Even an Appellate Court reversal did not impact sufficiently on the WCB for the OoA and the majority of commissioners to bother to count 30 days.
The Insider offered the OoA an Excel spread sheet in which the date of the filing would be entered and it would calculate the 30th day, allowing for not only weekends but also for holidays.
With the changes in management of the OoA in early 2008, the writers apparently were informed that they had to pay attention to the 30th day but could still allow late appeals per §123, “in the interest of justice”. However, a few commissioners objected to this leniency if for no other reason that it was applied inconsistently.
Some appeals as late as four months after the filing date were accepted without any explanation as to why they were filed late. In other cases, commissioners decided to automatically reject an appeal or rebuttal filed on the 31st day unless some very good justification was given in the opening paragraph of the appeal/rebuttal.
The Administrative Review Bureau (formerly the OoA) then decided that it would accept as timely some but not all appeals that were one day late, positing that the lateness was due to WCB mail room problems. One commissioner responded, “Fix the mail room problem and find the 31st day as late.” And the Insider added, “The phrase ‘in the interest of justice’ is a preamble to an explanation, not a justification ‘in and of itself’.” And several commissioners continued to reject appeals late by one day. 99.99% of all appeals are filed timely. There is no reason that late appeals and rebuttals should be entertained without good and clearly defined cause, not for the issue but for the reason for the lateness.
The WCB should adopt the policy that any appeal or rebuttal filed on the 31st day is late and automatically denied. In the case of appeals, the respondent could limit their rebuttal solely to the statement, “We ask that the appeal be denied pursuant to WCL §23 as it has been filed late. The underlying decision was filed on …… and the 30 day deadline was ……. The appeal, having been filed …, is therefore late.”
The respondent would be saved the time and money involved in writing what is often a lengthy rebuttal. And the WCB would also save the time needed to perform an in depth review of the late appeal, to draft a decision based on the issues raised in the late appeal, and to address all the issues in the rebuttal.
In cases where the appellant can give a legitimate reason for the late appeal – such as the aftermath of 9/11 when many Board deadlines were waived or some other major problem in the appellant’s office –then the WCB should advise the respondent that the appeal is being accepted and should give the respondent 30 days from the date of that letter to issue a rebuttal. For late rebuttals, the same procedure would apply.
While this may involve only 10 to 15 appeals a month out of the 1200 or so submitted for review, it is still 10 to 15 cases less for the WCB and a first step in speeding up case resolution. Remember Mao Tse-Tung: “A march of a thousand miles starts with a single step.” A case here and a case there and, the next thing you know, case resolution has been shorted by a few weeks.
As is the case with so many potential solutions to problems facing the Board, any real solution to this problem will require the Board to make a commitment to be consistent on this issue.
Better practices by all the parties to a dispute can only help make the system better. Also, its important that everyone who relies on the system can feel confident that there is some genuine reasoning behind the way it functions. And insure that when a deadline has come and not timely appealed, all the parties know that, at least for one issue if not the entire case, the matter is finally closed.
The Insider’s book, Behind The Closed Doors, Chapter 14 ‘Both Sides of the Coin’ goes into more detail as to the confusion from which the Board suffers on this and other issues.
Powered by WordPress