7

NEWS FOR
THIS WEEK

December 31, 2015
Thursday

COMMENTARY: A few thoughts as the year ends and some suggesions for next year.

DECISIONS: There are no decisions from the Third Department this week but seven new cases have been added to the Third Department's January hearing calendar.

Week
#367

Issue
#1

Contact The Insider at:    TheInsider@InsideWorkersCompNY.com                                                                         212-734-9450

ASK THE INSIDER

Over the past fewyears, I have e-mails asking questions which are of a sufficient general nature that I will answer them here in this posting.

 


QUESTION: A Poll About Law Judges

 

Why not create a 10 question survey rating the judges as to pro-carrier, pro-claimant, fairness, unfairness, fees, etc? I'm sure you could go to each Board and have the surveys filled out by the attorneys anonymously or figure out an online submission by providing firms with an id# and a request for the # of attorneys in the firm.


ANSWER: As there are more law judges downstate than there are upstate the results could be skewered. In fact, I thought about doing this for commissioners, too, but had the same problem. Also there is the problem of distinguishing respondents by category: attorney for claimants, carriers, self-insured, and government (SIF, SFCC). Also there are a number of people at the Board who read this web site. The polling system I use does not allow me to identify the voters so it is possible for one person to vote many times or everyone at one company or agency to vote many times, including those who do not usually visit the web site. So popularity polls just would not work.

And I do not at this time want to have people sign-in or have an ID# in order to vote. One fact I discovered is that when there were comments sections on my pages for the readers, I would get e-mails instead, like the questions in this posting. No one is posting on this site and/or having the name listed, for fear of what would happen if they were identified. The way the poll is set up, the voter's ID is totally protected; the only information to which I have access is date and time they voted.

Also, other than confirming what many of us know already about the judges, I am not sure what useful function such a poll would have. I do not think that the WCB cares what anyone thinks about the fairness/qualify/etc. of the judges as long as they generate sufficient closed cases each month and meet their other production goals. My book, Behind the Closed Door on page 72, discusses some writers at the Board with a 30%+ reject rate who are still there, so a poll at best would only confirm what the WCB executives already know.

Therefore any polls which would require such a distinction will not be done as much as I would like to, particularly one on my fellow colleagues. But I do have some poll questions coming up that will be equally interesting. Stay tuned.



QUESTION: Why don't the Court summaries have commentary?

 

It is really quite helpful that you are posting the court decision so quickly but why don't you add some commentary, from your experience on the Board, as to the impact of these cases on future Board decisions?


ANSWER: I have attended 12 "YEAR IN REVIEW" sessions at the Board as well as one earlier this year at the Injured Workers Bar Association Annual Meeting and received notes from a review conducted for a carrier. Each have their own perspective as to what the case means. And, most interestingly, I received an e-mail from an attorney who wrote that on one case in which the Board was affirmed, the appellant/claimants attorney really did a bad job, not in fornt of the Court but in the original appeal process at the Board. While the legal basis for the decision was sound, the claimant should have won his case by stating, in effect, "The glass was half empty." rather than "The glass was half full." So his was another interpretation of the Court's decsion.

More importantly, in Ramroop v Flexocraft Printing which was discussed in my first posting when I started this website, I did proffer an opinion which was that both the Appellate Court and the Court of Appeals missed the key facts considered by the Board Panel (my panel rather than WCB staff drafted that decision) in making its decision. And the Annual Reviews done by several entities each have their own perspective which differs from the one the Board Panel considered. In a sense, at least in this case, I feel like an artist whose work is on display before a panel of art critics who are explaining my imagery and concepts while ignoring the fact that I am in the room. Actually this did happen at a pre-board - see pages 77-79 of Behind the Closed Door.

Therefore, I summarize some of the key legal points in the Court's ruling and give you a link to the decisions so you can make up your own mind what it means. And I list the parties who presented the prevailing argument so you can call them for their comments, if you want.



 

QUESTION: The New Board C-3 forms (2009)

 

Why did the Board decide to amend the C-3 and come out with the new form OC-400.5, making claimant's attorneys certify their client's C-3s?


ANSWER: Prior to his becoming Chairman, Zach Weiss served on a committee to see what could be done to speed up the claims process at the Board. On one of his visits in early 2007, I spent some time with him, sitting in some hearing parts and then reviewing what had happened with a senior law judge. It became apparent to him as it did years ago to the engaged commissioners, among others, that some cases had several hearing to establish basis facts without which the case should not have had even one hearing.

So Chairman Weiss has attempted to set up a system to avoid these unnecessary hearings which often occurred at the beginning of each case. The forms are an attempt to require that a great deal of information that is often controverted and thus delays cases be made available before the first hearings.

And while the object of these new reforms is admirable, and I am a strong proponent of the concept, I am under the impression that the people who devised these forms have never been in a hearing part or actually participated in the hearing process. Oh yes, I am sure that may be a senior law judge or two who participated in the process but I know one of them and question that person's own administrative skills.

Unfortunately with any state bureaucracy, publishing a new form is like picking someone from a group to drive the bus. You really don't know if they are any good until they hit a tree.

The Board just must be open to complaints and must be sure that Chairman Weiss is not the only person in the decision making process to have ever attended a number of hearings. I can think of a few people whom I personally invited to attend some interesting cases when I was doing Oral Arguments and §32's in Brooklyn. But they were too busy deciding how to run hearings to come down and actually attend one.



QUESTION: FULL BOARD REVIEWS - Political or Legal?


The following e-mail question was received from an attorney:

 

Perhaps now that you are not a commissioner you can answer a question that has been bothering me for some time. Why is it that Commissioner Libous has the sole authority to deny a full board review rather than having a panel of commissioner review the denials like they do the ones that are changed?


Although a detailed discussion of the polices and practices behind Full Board Reviews (FBRs) is in Chapter 8 Administrative Review Division” in the book Behind the Closed Door, I will summarize it here and must also emphasize that Vice Chairman Fran Libous did not start this policy but followed the process established by her predecessor, Vice Chairman Jeffrey Sweet.

When I first came to the Board in 1996 the practice was that every request for FBR went to the Office of the General Counsel (OGC) whose staff drafted a recommendation to deny, modify, rescind, or reverse the original MoD which was then sent to the same three commissioners who signed that original MoD. If all three agreed on the recommendation, the FBR would be reviewed at the Board’s monthly meeting and invariably approved as rewritten.

In the late 1990’s, Sweet decided to change the process. Since approximately 80 of the 100 or so FBRs received each month were denied, he felt it would be faster for just him to sign them rather than submitting them to all three commissioners to deny, offering some justifications for this new policy. Sweet was one of the more knowledgeable commissioners and understood the issues raised in the FBR and the reason for the denial. Also the commissioners were attending hearings for lump sums and then §32’s as well as several oral arguments a month so that there may have been some justification for cutting their work load, although a number of us did not agree with this assessment.

But these justifications no longer exist.

The decision as to whether or not a vice chairman should have exclusive power over the denials of FBRs should not be based on a litmus test of the knowledge of the law of that individual or the work load of the other commissioners – it is a legal and not a political or administrative issue.

The commissioners’ work load, as Behind the Closed Door, details, has been reduced from approximately six hearing days a month in 1997 to less than one a month in 2008. There are approximately 80 FBR’s denied each month which split amongst four panels means an additional 20 cases a month for each commissioner. For those commissioners who do not read them, only 20 minutes of work each month is needed by them. And for those who actually review decisions before signing them, their 20 cases would take far less than the time they have saved by having less hearings a month in 2008 than they did in 1997.

There have been occasions in which all three panel members decided to deny rather than accept the OGC’s recommendation to modify a decision under FBR, taking a few weeks to justify its decision. Attempts were then sometimes made to have the FBR switched to another panel so that, as we were told, the matter could be resolved without any further delay, often buttressed by the argument that such cases were better decided by the full board rather than just the original panel.

This gives the impression that if some new facts or court decisions were presented that may warrant a rehearing but a vice chairman agreed with the OCG that these did not warrant a reopening, the FBR was denied without the original panel ever having a chance to consider its original decision. But if the original panel rejected the recommendation of the OGC to reconsider a decision, the vice chairman had the sole authority to over-rule that panel and require a FBR.

Most important is that there appears to be no legal authority which gives the vice chairman, including Sweet who started this process, the right to have their one vote count more than the votes of each of the three other commissioners whose case is being reviewed. In fact, a scenario could present itself in which a vice chairman is in the minority on a case for which the OGC recommends denying a FBR so the vice chairman rejects that recommendation and insists it go before the full board, a right denied any other dissenting commissioner.
 
While WCL §142 defines some of the duties of board members, it does no state or even infer that the procedure set in place by Sweet and still in practice under Libous has conferred upon one board member, that is the vice chairman, a decision-making power in excess of those accorded to any of the other commissioners. Since this disproportionate power is not specifically enunciated in the WCL or the Codes Rules and Regulations, it seems that an appeal on this matter would result in a reversal of any denied FBR, regardless of the merits in any particular case.

It is important to remember that, in 2004, the Court reversed a WCB policy established to ‘speed up’ the administration of justice by stating that that new process instituted by the Board was in violation of its own laws, rules and regulations. That case was Hart v Pageprint.Dekalb, 6 A.D.3d 947; 775 N.Y.S.2d 195 which dealt with the closing of §32 settlements administratively rather than at a formal hearing.

As stated in the book Behind the Closed Door, Justice delayed is justice denied” is a mantra heard often at the Workers’ Compensation Board when its critics decry its alleged failures in terms of time delays. But the demand, in the forefront of recent internal charges to speed up the system, results in the contradictory “Justice uneven is justice unequal”.

Perhaps the time has come, as requested by the attorney submitting the original question, for the Board to review this process.

Comments from readers are welcome as well as any response from the Board on this legal and procedural issue.


 

QUESTION: Does the Board supply the Law Judges with any selection of citations or are they free to pick their own?


Based on my 12 years experience at the WCB, the WCB's legal department does not regularly supply or recommend any specific citations to the law judges, the writers in the Administrative Review Division (ARD, formerly the Office of Appeals), the Office of the General Counsel (OGC), or the commissioners.

Once at year, usually in February or March, one of the attorneys at the OCG or ARD prepares a brief analysis of key Appellate Court and Court of Appeal decisions issued the prior calendar year. Periodically, a "Judges' Bulletin" is prepared highlighting some of the recent Appellate Court decisions, usually in more detail than the annual review. But these reports deal only with Court decisions of which there are about 80 to 100 a year. There are no formal reviews made of the approximately 10,000 to 11,000 Memorandums of Decisions (MoDs) or the 100 or so Full Board Reviews that are done each year. Yet, many of these are often cited at hearings before law judges or in oral arguments before commissioners, in appeals and rebuttals, requests for Full Board Review, and in arguments before and decisions by the Courts.

I also assume that my conclusion is correct because, as a commission who wrote many of my own decisions, I had asked the ARD/OOA for any information on citations and/or reports which it had. Very often, neither I nor my fellow 'engaged' commissioners could even get the periodic reviews written for the law judges.

Other than these Appellate Court reviews, which are not done regularly, each person who writes or reviews decisions is responsible for keeping their own list of Appellate Court decisions for use as a citation in their writing. Of course, all the staff do have access to LexisNexis on-line: Appellate Court and Court of Appeal decisions including some as far back as the 1920's.

In addition, LexisNexis does include in another of its databases a substantial number of MoDs that are issued each month by the Board Panels. But LexisNexis does not review the MoDs or evaluate them to select the significant 10, 20, or 30 decisions that are issued monthly. LexisNexis values each equally, be it an incorrect MoD signed but not read by a panel of three insouciants or an MoD which a panel of three 'engaged' commissioners have spent one or two months drafting.

It was for this reason that I developed my own legal library of key citations: CaseNotes which has nearly 500 MoDs listed. These are MoDs that are, in my opinion, useful in clarifying legal issues for me or help define whether a particular shade of gray comes closer to black or to white or needs to be sent back for clarification. So while the WCB may issue 40 decisions a month on 'Voluntary Withdrawal From the Workplace', only three or four of those may be useful for future reference, cases the shed light on new indicia used in presenting a case and in making a decision.

But there were occasions in which my CaseNotes, despite entries made by me several times a week, did not include key decisions made by other panels. Since the Board issues about 1,000 MoDs each month and each commissioner participates in about 300 or so of the, there is no way for me or any other commissioner to know anything about any of the other 700 MoDs issued that month, unless one of the engaged commissioners sought to exchange ideas with another engaged commissioner on another panel.


Behind the Closed Door, in Chapter 16, goes into a great deal more detail as to how the Board can resolve the problem of designing a database of citations. Chapters 7, 8, 10, and 14 detail the problems that occur within the Board itself that result in so many inconsistent and often contradictory decisions.

While one could argue that the Board's establishment of a database of 'approved' citations may be considered by some as a attempt to 'influence' the decision- making process, this subject is certainly worthy of some consideration as the current system of laissez faire decision-making based on the current method of using citations does leave a lot to be desired. But then again, every decision can be cited as a precedent so, in effect, that Board is already 'influencing' the decision making process, only behind its closed doors.

In the meantime, it would be interesting to know why the periodic Judges' Bulletins can not be shared with the outside legal community. The analysis in these bulletins is supposed to be neutral as the Board's legal staff is supposed to be neutral in its position on legal issues. It is only the commissioners who are allowed to inject their individual perspectives of the law into the decisions.

To help both the attorneys who argue and write appeals, rebuttals, and decisions as well as the law judges, the Newswire will not only list recent Appellate Court and Court of Appeal decisions but will offer a brief synopsis for quick reference to the attorneys for the possible inclusion of one of the cases as a citation. And if the case appears relevant, the link on the Newswire page can take the reader directly to the Court's written decision, until such time as LexisNexis has included the case in their database.


 

QUESTION: Oral Arguments are important to both sides of Workers’ Compensation claims – so why are there fewer Oral Arguments than ever? And how do cases get selected to be among these chosen few?


Back when The Insider began serving on the WCB, he heard an average of approximately 400 oral arguments per year from 1997 to 1999.  Before he left, this number decreased to an average of approximately 120 oral arguments per year from 2005 to 2008.

To get their cases selected to be among the fewer and fewer oral arguments heard each year, it would be helpful for practitioners to know what’s going on inside the selection process.

Throughout the time The Insider served on the WCB, cases were scheduled for oral argument for one of two reasons.  It was either:

1)       Mandatory, meaning that it was an appeal from a law judge that fell under a set of pre-determined categories and was therefore automatically sent by the Office of Appeals (OoA) to be heard via oral argument before a panel of three commissioners; or

2)       Discretionary, meaning any appeal that any commissioner, following his or her review of the written case file, decided should be heard in oral argument for any reason—real or phony.

From the time The Insider joined the Board in 1996 until he left in 2008, the following categories and came and went from the list of those that were considered administratively ‘Mandatory’:

    Facials - Whether or not the injury was within the facial area as defined by §15(3)(t), and whether the amount of the award too high, too low, or just right.
    Death Claims - Whether or not the death was causally or consequentially related.
    Fraud -In 1997, all appeals on any aspect of fraud, including the level of penalty, became Mandatory.
    §120 Discrimination –This category included not only the question as to whether or not there was discrimination, but also procedural issues regarding evidence and hearings on the subject of discrimination, and the amount of awards based on findings of discrimination.
    Pro-se Claimants - All appeals from pro-se claimants or by carriers disputing rulings in favor of pro-se claimants were heard in oral arguments, regardless of the issues or merits of the appeal.
    Legal Fees -Anytime a carrier, claimant, or any attorney disputed a fee—be it the amount, the award or non-award of the fee itself, or the sharing of the fee between various attorneys—the case was automatically sent for oral argument.
    Disability -Appeals on disability from non-work injuries.
    Stress -Any issues relating to whether or not §2(7) stress was a ‘site’ of injury.
    WorldTrade Center - In early 2002, all disputes relating to the terrorist attacks on the WTC were added to the list.  At the same time, some other categories were reconsidered and dropped from the list on the determination that they were based on issues that were too minor.
    §32 Settlement Fee Reductions - In 2007, for a number of reasons, disputes about the alleged discriminatory reduction of fees by some law judges involving §32 settlements became Mandatory. But after a few months, these too were made discretionary. (At least these appeals were being considered.)

Part of the reason why the number of oral arguments has decreased as much as it has could be attributed to some administration officials who try to work around these mandates in order to minimize the time and costs associated with oral arguments.  It could also be attributed to the reduction in the number of categories considered ‘Mandatory.’ Over the course of the 12 years that The Insider was a member of the Board, the total number of categories designated as Mandatory at any one time decreased by an estimated 70-80%.

But either way, why is it so hard to quantify this correlation?  Have you ever heard the expression, “it’s like nailing Jello to the wall”?

Not only is this list of categories not available to the public, it is only barely official.

Despite countless discussions and emails between commissioners and other senior members of the WCB administration, alternately qualifying and disqualifying these different categories, even The Insider was unable to obtain an official list.  Perhaps this is because any document containing such a list would be subject to the Freedom of Information Law (FOIL).  And perhaps if such a list were ever to become public, it would create fodder for a deluge of previously baseless appeals—or fodder for a deluge of criticism about the Board.  Or perhaps it’s because having such a list of criteria would draw unwelcome attention to the second reason why cases get selected for oral argument.

For practitioners, getting your case selected for oral argument by reason of ‘Discretion’ can come down to whether or not you’re lucky enough for your appeal to be assigned for review by at least one commissioner for whom at least one aspect of your appeal triggers his or her ‘this-one-should-go-to-oral-argument-response.’

While The Insider served on the Board, his discretionary ‘oral-argument-response’ and those of some of his more engaged colleagues were triggered by factors such as the importance of the issues, contentiousness of the case, and the long term significant of the ultimate outcome.  Under these circumstances it’s easy to see why it’s important for the discretion of the Commissioners to play a meaningful role in the outcomes of cases.

However, he also witnessed some commissioners whose triggers over time demonstrated general prejudices in favor or against one side or another, others whose triggers appeared to based on areas of personal interest (for example, an interest in issues facing gaming establishments as opposed to issues facing nonprofit organizations), and some who tended to select cases when an oral argument hearing would provide a venue where they could win in disagreements with other board panelists.  Finally, there were commissioners who, upon reviewing a written case file and disagreeing with the proposed decision, would choose to send the case for oral argument instead of having to do the work of writing a dissent and then defending it.

So what are the answers to the questions above? First, it’s hard to say why there are fewer and fewer oral arguments because the selection process for cases that are heard in oral arguments is so fickle.  Second, practitioners who want to get cases selected for oral argument should know that the selection process is this fickle, and should keep in mind what topics and triggers have worked in the past—however amorphous they may be—when trying to gauge which ones might work moving forward.

To read more about some of the subjects discussed above, check out The Insider’ new book, Behind the Closed Door, Chapters 8Administrative Review Division of Appeals” and Chapter 12How MoDs are Done - The Work Queue”.

INDEX

A Poll About Law Judges

Why don't the Court summaries have commentary?

The New Board C-3 forms (2009)

Full Board Reviews
Political or Legal?

♦Does the Board supply the Law Judges with any selection of citations

Oral Arguments: Who chooses them and why so few