POLLS: We Want Your Opinion
Periodically I pose a question that is of interest to everyone who participates in the New York State Workers’ Compensation system: attorneys, carriers, 3rd party vendors, injured workers, and, yes, even the staff of the NYS Workers Compensation Board and other state agencies. The following Monday, I publish an analysis of the results as well as a new poll. If you have any suggestions for a poll or would like to make a comment, contact me at TheInsider@InsideWorkersCompNY.com.
POLL RESULTS: Gov. Cuomo’s WCB Appointments
Who should stay and who should go?
March 29, 2011: This week’s poll results, with one exception, are not particularly surprising, with virtually everybody who participated in the poll participating in all of the selections and with 42% adding comments to their votes. In noting that Governor Cuomo has started off slowly in terms of key appointments to the agencies based, last week’s poll asked you to propose what top levels at the Board needed to be replaced and from where it was that the new leadership should be drawn. And here’s what you said:
Regarding Chairman Beloten, Vice Chairman Libous, and/or Executive Director Fenster, only 10% feel that they are up to the job. These results were mixed. For example, some who wanted to keep the Chair voted against the other two, some who voted only for Vice Chair, and the some only for the Executive Director. But several of those who voted to keep the Chair seemed to feel that the other members of the executive staff should be kept as well. (And one person voted three times in a row to keep Fenster.)
In summary, only 10% feel that current leadership is up to the job. The remaining participants voted 3.5-1 (70% to 20%) to select new appointments for these three positions. Of this 90%, the vote was 3-1 (74%-26%) to appoint people from outside the current Board.
In addition, 94% of the participants felt that the leadership in many departments needed to be changed. Interestingly, only 26% of those who felt new leadership was needed in many of the departments felt that there were sufficiently qualified personnel at the Board to fill those slots; 74% felt that the appointments should come from outside the current Board. As for the district administrators, as noted in past polls, the overwhelming majority (83% to 17%) feel that whatever new appointments Governor Cuomo should make at the Board, district administrators are not among them.
Although there were no questions pertaining to the commissioners, the only comments directed towards them were highly negative, best represented by the following:
The Board Commissioners are on the whole incompetent. The Commissioners should be forced to punch a time card and get paid by the hour. The Commissioners must be required to certify under oath they have actually read the decisions they are signing. At this point they are political hacks– and act like the hacks they are.
Based on my experience at the Board, the above comment applies to at least three and up to as many as seven of any of the 12 Board Members serving at any one time. The others perform their duties just as the respondents would want.
What was the exception were the responses on the law judges and conciliators, a vote which shows that those who did respond to the poll viewed each question as a separate question, not a “get rid of all of them” response. These numbers seem to support a common complaint: the Board seems to be focusing on making all decisions in the backrooms and eliminating hearing: 44% feel that there are not enough law judges and conciliators, 42% feel there are enough, and 14% too many. In reality, considering that the Board is trying to cut down the hearing before law judges and conciliators the way it has cut down oral arguments before the Commissioners (down by about 80% in six years), the real problem is not that there are not enough law judges and conciliators but that the Board feels they ‘impede’ the system and is slowly doing way with the purpose for their existence: hearings.
To one interesting suggestion, “The Senior Law Judge should also be named the DA”, I have a clarification: No aspersion meant but many of the senior law judges do not have the management skills to be a DA. And being an effective DA requires a lot of time, of which the senior law judges have minimal if any to spare. Just because many DA’s did nothing (other than show up for work, most of the time), one can not assume that their efforts represent the totality of the work that should be done. On the other hand, a good district manager obviates the need for any DA.
A few excerpts from the comments:
We also need Commissioners who are willing to interact with live claimants and meet tighter appeal deadlines.
I am seeing variances approved regardless of IME’s or medical reviews. What’s the point of this procedure. All I see is the carriers spending more money for the same lame results. especially with chiros and physical therapists
The following comments best summarize the overwhelming sentiment of those who participated in the poll and those in the workers compensation community statewide with whom I am in contact:
A total shake up is needed. Too many appointees are doing their own thing following their own path.
The WCB has become far too insulated and requires new views and re-orientation of its mission. The AG needs to re-invest in the appellate process as MOBPDs and FBRs are now laden with tenuous legal principles e.g. Buffalo Auto. The Board’s appellate decisions are uninformed by the existing jurisprudence and often reflect mere canards as legal principles. Finally better schooled attorneys are needed to prepare and analyze appellate issues.
Other than some comments directed at the Chair, Vice-Chair, and Executive Director, there were a number of other people mentioned by name. While a few were subject of some rather harsh criticism, some were highly lauded for their work and integrity. For those mentioned as exemplifying the best of the Board and for those who participated in the poll, thanks.
Next week, I will respond in detail to many of the comments sent in reply to the poll. For those who have additional comments, feel free to send them to my attention at TheInsider@InsideWorkersCompNY.com.
Poll Results: Group Self-Insured Trusts
Keep or Dump?
July 7, 2010: The issue of Group Self-Insured Trusts (GSITs) became one of public interest in 2007 when it was discovered that CRM (Compensation Risk Management) of Poughkeepsie, NY had for various reasons underestimated the amount of premium it needed to charge the trusts that it managed in order to maintain proper reserves.
Whether the reason was incompetence or greed, the net effect was that all the eight CRM trusts were underfunded by what some estimates were $200 million and CRM’s management of these trusts was transferred to other entities.
As a result of these defaults and the larger issue of who would pay to make up the shortfall in each of the funds, covering hundreds of thousands of workers and tens of thousands of companies, the New York State Workers Compensation Board along with other agencies did a detailed review and issued its report, suggesting that all the GSITs should be closed.
The reality is that that WCB and the Department of Insurance all failed to audit these trusts, not just those managed by CRM but probably another 40 or so other GSITs. In fact, one must ask if Self Inured Employers (SEIs) have ever been subject to an audit.
As is usual when some major misfeasance or malfeasance is brought to the public’s attention, particularly when the government at one level or another is involved, the bureaucrats’ response is two faced pronged – they either:
- paraphrase Captain Renault from Casablanca, “I’m shocked, shocked to find that [fraud] is going on in here!” Or is it Inspector Clouseau, “I’m shocked, shocked to find out that CRM is involved in insurance!”
- decide that the private sector is not smart enough to operate on its own and needs the innate wisdom of government bureaucrats to manage, by passing even more unenforceable and/or unenforced laws, rules and regulations.
The poll questions published last Monday, June 28, 2010, asked your position on a number of aspects of the original problem, determining who was at fault, and what should be done in the future. The results are not all surprising but there were a number of excellent comments and it is with two of those that I shall start and with the best that I shall end this analysis.
All the failed trust mgt and owners, their clients, and the brokers involved should pay their own claims and mess. Everyone knew the deals were too good to be true and they should all be accountable. All the agencies staff responsible should lose their jobs. Taxpayers shouldn’t continually foot the bill for incompetence.
And.
I am still reading up on this issue, so I do not yet want to lay blame. But I believe this is a case of res ipsa loquitur, and I suspect the Board and the State fell asleep at the wheel–in much the same ways as when auditing the Special Disability Fund for ample funding. Yet before we start creating new rules and regulations that there might not be enough personnel to enforce, perhaps we should start simplifying and reviewing the glitches in the current system. Past attempts to put a band-aid on a cancer have only made things worse.
While nearly 50% of the respondents to the poll represent carriers or self-insured trusts (GSITs), the responses appear to reflect no particular bias from any of the groups responding: claimants, carrier/employers, WCB employees, those working with GSITs, and “others”.
As to who was ultimately responsible for failing to oversee/audit the failed trusts, 40% pointed a finger at the Workers Compensation Board while an additional 33% faulted the Worker’s Compensation Board and other state agencies. In essence, despite all the noise the Board has made about the failures, 73% of the respondents felt the Board is trying to shift the blame away from itself. As a result, 91% felt that the Superintendent of Insurance should have oversight with only a third of those agreeing that the Superintendent of Insurance should share that responsibility with the Board.
However 77% of the respondents felt that the existing solvent GSITs should remain in business However it is the respondents who represent carriers and/or employers who are the only ones who felt the Trusts should be closed.
Interestingly, 47% felt self-insured employers should be subject to the same oversight as the GSITs.
Of course the key issue, which is now winding its way through the courts, is how to fund it under-financing of these trusts. An even 50% felt that the members of the closed trust have the responsibility to make up the deficits, a requirement that seems to be clearly delineated in the Trust agreements. 25% agree with the statement that any member of any Trust should be assessed to help the defaulted trusts. 6% feel the responsibility for funding the deficit should or be spread not only among members of all the trusts but also among all the carriers in the industry. 19% felt that those identifiable state employees who fail to oversee the trusts should forfeit their pensions help the funding.
The summary of these answers is that the Workers Compensation Board does not have the confidence of the New York State workers compensation community to oversee the GSITs. Whether this is because (1) of the minimal interest to those who run the Board, (2) Board staff does not have the financial or actuarial background to understand the financial reports, or (3) Board staff is are overwhelmed with other responsibilities, perhaps it is time for the Legislature to offer some alternatives.
And I end with this excellent comment:
After rigorous audit, only truly solvent trusts should be permitted to continue to write business. There should be no other new trusts created The “trusts” merely replicate the purpose of the State Fund- to provide compensation insurance at the least possible cost. Within the Fund are “safety groups”, which would provide an ideal vehicle for employers who would exercise accident prevention techniques to reduce claims costs and thereafter receive potential premium savings.
Poll Results:
Questions on the Board’s Medical Procedures
March 22, 2010: Last week’s poll asked a series of questions concerning changes in the Board’s requirements for the issuance of medical reports and the impact that this is having on the availability of doctors, both treating and independent medical examiners (IME’s). The results, while not unexpected, are very discouraging and require immediate attention by the New York State Workers Compensation Board.
Finding doctors
78% of the respondents feel that it is far more difficult to find doctors, for both treating injured workers and for conducting independent medical examinations. Other than the one voter who felt it was not more difficult to find treating doctors, everyone else agreed with the proposition that “The Board’s list of IMEs is not up-to-date.” While those of us familiar with working with government bureaucracy understand the apparent contradiction here, it is hard to explain to injured workers, their families, and their employers, why theicase is being delayed because the Board is in the process of ‘improving’ medical treatment but not only has less doctors willing to participate in the system but that the Board does not even have a list of which doctors are participating and which have dropped out.
The new C-4 forms
Not a single respondent to this poll agreed with the proposition that “The new C-4 is more helpful.” In fact, of the other four choices listed below, most respondents picked three of the four:
- The new C-4’s cause problems and solve none.
- The new C-4’s creates problems.
- The new C-4’s discourages medical providers.
- The new C-4’s delay resolution of cases.
Only two respondents were in favor of keeping the new C-4 with one commenting:
The Board should keep the new forms and require them to be COMPLETE and ACCURATE. There should also be punishment for doctors who delegate completion and signature of the forms to billing clerks, as this results in false filings with often incorrect information. They nonchalantly testify that “the girls” have permission to sign on behalf of the doctors.
The balance of the respondents were split between seeking a new C-4 or returning to the original one. One comment appeared to be from a law judge who stated that, “The format and length of the new C-4s slows down my review of same during a hearing.” While an out-of-state respondent commented, “It should be pointed out that the C-4 is significantly more complicated than the mandated provider reports in other states, though I am not sure this fact matters to anyone in New York!”
And there was one respondent who wrote that:
- A one page C-4 could easily be developed. The C-4 auth is useful, so this ‘experiment’ with the C-4 ‘family’ has not been a total failure.
- There should also be a C-4 script for prescription drugs.
This last recommendation regarding prescription drugs is an excellent idea. First , the cost of prescription drugs has become an increasing portion of the medical expenses. Second and far more important, use of controlled substances and subsequent abuse as well as consequential medical problems are increasing. The use of a specific C-4 for this class of drugs may help the Board, law judges, and claimants attorneys asked whether or not these controlled substances are helping resolve problems or delaying the resolution of the medical injuries.
Payment of doctor bills
While not as many respondents participated in the question of doctor bills being paid, those who did were split with half agreeing with the proposition that doctor bills are being paid timely and half the proposition that may are being paid late. But there was almost unanimous agreement that the HP-1 form allegedly used to expedite payment of bills is totally useless. I have written about this subject before but can summarize my recommendation as follows:
The Board should set a fixed number of HP-1 that are filed against any particular carrier such that, when that limit is reached, a warning is sent to the carrier that they are failing to meet their obligations under the insurance laws of the State of New York to pay their bills and, should this not matter not be resolved within the next ‘x’ days, a formal complaint seeking removal of their authority to sell workers compensation insurance in New York State will be filed with the Department of Insurance. For self-insured’s, the Board has the authority on its own to revoke that self-insured’s authority once a threshold of HP-1 complaints is reached.
Whether or not anyone is willing to admit it, as altruistic and compassionate as a medical practitioners may be in dealing with injured workers, their altruism and compassion can only be practiced if they have a sufficient, reliable, and timely revenue stream with which to support their endeavors. And I am sure if I took the words ‘medical practitioners’ and replace it with the words ‘claimant attorney’ or ‘carrier attorney’, they would agree, too.
Summary
The Board’s good intentions have gone awry. Perhaps those making decisions on the C-4’s had no practical experience completing them or reviewing them in the real world. And perhaps they are spending too much time chasing down bad doctors and not enough time keeping up a list of good doctors. And perhaps they don’t understand telling the carrier to do something (pay a bill) doesn’t work unless they’re willing to punish them. Such is the message from the workers compensation community. Let’s see if the Board is listening.
Poll Results for:
Is Beloten’s Board better?
March 1, 2010: Last week I asked your opinion on the relationship of the New York State Workers Compensation Board after it has been under the leadership of Chairman Robert Beloten for nearly 8 months.
The results of the poll should be disappointing not only to the members of the workers compensation community but also to the Chairman who approached this job with the best of intentions. The consensus on the current Board is best summarized by the four following statistics:
- 62% feel nothing is happening with the rocket Docket.
- 96% feel the medical guidelines haven’t been fixed.
- 97% feel the Board has no interest in and ignores the interests of the community.
- 70% feel Chairman Beloten has no influence on the Board’s direction.
It could simply be that this is legacy of prior administrations or the feeling of the Oligarchic Cabal that Beloten, an appointee of Governor Paterson, is like Patterson: a short timer who as a lame-duck can be ignored.
Perhaps this is best summarized by one respondent who stated:
One wonders who is driving the agenda at the Board. The Board is on its 4th Chair in a little over 4 years (Wehner, Ferrara, Weiss and Beloten), but yet one thing has remained constant - the Board is operating in a vacuum with no regard for what its stakeholders care about and little or no regard for how the Board’s actions impact those persons. Its continuous disregard for the views of those who appear before it - claimants, employers, carriers and their respective legal representatives - makes one wonder who is driving the Board’s agenda.
In my poll last year I asked what were the most important subjects that needed work once Beloten took over as Chairman and they were the Rocket Docket and updating the Medical Guidelines.
As to the Medical Guidelines, 96% of the respondents said there has been no change. Considering all the self congratulatory commentary proffered by various parties when the legislative amendments regarding permanent partial disability were passed, one would think someone in authority would have thought to take a look at the 10-year-old guidelines used to determine the level of disability. Only 4% thought situation was better.
The Rocket Docket did not fare much better. 62% felt that there has been no change in the Rocket Docket with the balance of the votes split with 19% saying it had improved and 19% saying it had gotten worse.
The next poll question asked your opinion as to the receptiveness of the Board to comments and suggestions from outsiders. 97% responded that the Board is unreceptive with virtually the same number agreeing with the choice, “The Board’s agenda does not seem to include the community.”
Two comments seemed to represent the opinion of most of the people who participated in the poll.
- The Board continues to be secretive, act unilaterally without regard to the law or due process, …
- It is obvious for the last several months and given the roll out of MAP that Beloten, like almost all of those before him, gives lip service to the WC community.
Of course the main question dealt with the impact of Beloten on the Board. And while Commissioner Ferrara’s ascension to the chairmanship was known by everybody to be temporary, the appointment of Beloten was considered to be Governor Paterson’s plan to place his imprint on this state agency. Unfortunately 70% of the respondents felt Beloten’s appointment as chairman has made no difference with 11% stating it has had a negative impact and 19% stating he had a positive impact.
- We all had high hopes for this chairman, being a judge on the inside himself, knowing how things operate.
- It appears, however, that even with his experience as an “insider” Chairman with knowledge of the system, he has NO control over the WCB management.
- Those who practice before the Board hoped for positive change with the appointment of a Chair (Beloten) who was familiar with the process and the with parties who regularly appear before the Board - they have been sadly and greatly disappointed.
The responses to the poll support an impression I had been receiving from my discussions with members the community which is that the Board is in disarray. The Chairman, despite his best efforts, appears not to have the support of the administration which unfortunately has enough problems of its own. Be that as it may, this leaves Chairman Beloten in the unfortunate position of being unable to give any direction, let alone control what goes on at the Board.
While Chairman Beloten has made some well thought out decisions regarding changes in personnel, these changes have not had the desired impact. That the staff are really incapable (but I know too many of them to know that in most cases it is unlikely) or they are pushing their individual agendas to build their resumes or doing the bidding of outside parties, I would prefer not to guess.
But unless Chairman Beloten decides to surround himself with people loyal to him, conditions will continue to deteriorate.
Some comments submitted by respondents to the poll follow but I would like to remind everyone that I have no idea who has submitted any the comments or who has voted in this poll. Therefore the results of this poll as well as all my earlier polls may not meet the scientific criteria such that the Board would consider these results meaningful. Unfortunately.
- The Spitzer-Weiss era left a lot of unfinished business and the Chair has only had 8 months. I prefer the Chair to some political hack. At least he understands WC and cares about improvement. He does need a better communications dept and an experienced Chief of Staff type to assist with basic management. Is the Insider available?
- I think MAP stinks. Number one, I don’t like new names for old ideas. Number two, I don’t lke acronyms. Finally, it’s going to mean more work (definitely more desk work and date entry)for judges — doing what conciliators used to do. We’ll be working out of grade — not above as some conciliators have done when they filled in for judges — but below grade, which is not a civil service no no. The rationale for MAP has been stated for at least 15 years. Clt attys shouldn’t mind — they’ll be getting fees w/o having to attend hearings. Carrier reps/attys, however, will have to scrounge for hearing time, with result that more otherwise MAP cases will be litigated. I understand — and agree with rationale — but MAP cases should have remained with conciliators and not shifted to judges. Since conciliation appears to be out, will all the conciliators now become judges? I know this was not the subject of the questionnaire, but it’s what’s on everyone’s mind now.
- What has Beloten done? Signed a contract for reporters and implemented the MAP program. Some leadership. What a disappointment.
Thank you for your responses. Later this week I will publish some recommendations which should improve procedures, but more importantly bring back to the Board some of the humanity and humility so necessary in dealing with the injured workers and their families.
Poll Results: Should Nurses Have More Authority?
February 1, 2010: Last week I asked your opinion on pending legislation in Albany which would grant certified nurse practitioners additional authority and responsibilities with regard to the treatment of injured workers.
Specifically, Assembly Bill 3704 and Senate Bill 3908 authorizes, as a pilot program, certified nurse practitioners to provide care and treatment to injured workers pursuant to the provisions of the workers’ compensation law and establishes a nurse practitioner committee to regulate the practice of nurse practitioners under such law. Both of these bills have been presented to the labor committees in both chambers.
This poll was prompted by an e-mail from one of my readers who felt that the timing of the legislation was rather propitious in view of the January 7, 2010 Appellate Court decision in the Matter of Hassan v Ford Motor.
I asked your opinion as to the appropriateness of this legislation and here are the results:
- 70% approve the legislation
- Excluding those who feel the legislation should not be approved, 55% feel the doctor should be required to sign any documentation while 44% felt it was not necessary.
- As to who should set the limits of services to be allowed, 50% said it should be the State Legislature, 30% picked the committee, and 20% picked both. My assumption based on other comments from this 20% is that the Legislature should set some basic guidelines and the committee should deal with a specific procedures, perhaps by medical code.
There were two comments which I think best summarized the support for the legislation. I am not sure from whom the first comment comes but the second is obviously from an injured worker.
Workers Comp should go along with the rest of the medical world. When claimants visit the nuerosurgeon they are examined by a PA or NP first. When the go to an ER usually a PA or NP treats them and decides if they need to call in an MD. Not only is it good for claimants, who in the past could not rely on reports from such as constituting medical evidence to support an award, but it will also help carriers reduce the costs of treatment. Why force a claimant to see a doctor to do what an NP could have done. I do think MD supervision and review is required but the NP should be able to indicate who the supervising MD is, without going through the wasteful motion of making the MD sign the form too.
Before you read this relatively lengthy comment from an injured worker, I would like to remind everyone that injured workers very rarely have the opportunity to express an opinion before the Board, including oral arguments before the commissioners: they are asked fact-based questions. When I did §32’s, I asked “open ended” questions which was the first time many of these injured workers had the opportunity to express any kind of opinion. Perhaps if a bit more time were set-aside to allow such comments from injured workers, those who make decisions on how the process should run may actually learn how to make the system work better.
Injured Worker: I have a back case and am classified PPD on the case. I have had the situation arise where I woke up on a particular morning and discovered that my back injury had exacerbated and I was totally disabled and unable to work. I called my doctor’s office but could not get an appointment for a few days because his schedule was totally booked. I had no choice but to stay home from work and go in to see him on the day that I got the appointment for. After my condition improved I went back in to work. When I put in a claim for the lost time the Arbitrator, under Section 20, would only make an award for the days for which I had my doctor’s note. That was true even though I was classified PPD on the case. If some nurses are allowed to provide care and treatment to claimants I think that might have solved my problem because even though my doctor could not see me the first day that I telephoned for an appointment maybe if he had had a nurse practitioner in his office that person could have seen me. That way I would have had a report from the nurse practitioner and maybe I would have been awarded benefits for the days that I was out of work and totally disabled but unable to get a doctor’s note attesting to the fact. I think that by broadening the number of people that are able to care for and treat claimants would possibly stop the above situation from occuring as often as it does. I know that when I was a hearing representative the above scenario ofter happened and claimants were not awarded benefits for days of lost time simply because they could not see a medical professional on the day that they first called in for an appointment. Some WCLJs would make an award even when the claimant didn’t have medical (if the claimant was classified PPD) but there were many who would not. That is only one scenario where I feel that it would be beneficial to have nurse practitioners able to provide care and treatment to claimants.
And of course there are some valid reasons for not approving the legislation, as evidenced by all the Board’s Subject Numbers dealing with physicians who are longer authorized to treat injured workers in the workers compensation system.
As you are aware, Doctors are already trying to get over on the system by allowing PA’s and Nurse practitioners to perform examinations and saying that they provided the services rendered. This should be considered as fraud on their part. All these doctors are doing is milking the system.
This poll, like some of the earlier polls I have done, was proposed by one of my readers. Your suggestions for future polls will ensure that they deal with issues that are important to you so please continue to submit suggestions. Again, thank you for your participation in this poll.
Poll Results: What were the key issues in 2009
January 11, 2010: Our poll asked your opinion as to what was the most important case or issue to have come up in 2009. Because this was an open-ended poll and, unlike all the others I have conducted, did not give specific options but only a text box, there was no “clear” winner.
Only one case was mentioned and that was the Matter of Browne v the New York City Transit Authority in a case which dealt with the level of prima facie medical evidence required, if any, to meet the presumptions under WCL §21. But none were of the significance of the Matter of Ramroop v Flexo-Craft Printing, Inc. (2008) or LaCroix v Syracuse Exec. Air Serv (2007).
But one issue that was raised in a lot of the responses is one that will probably be the most important court case in 2010: payments to the Aggregate Trust Fund (ATF). The importance of this issue is signified by a Full Board Review early in 2009 in which there was one lead case and 83 related, at which time the Board made payments to the ATF retroactive. Another issue considers the fairness of requiring carriers to make these deposits but excluding the New York State Insurance Fund and self-insured trusts.
The second issue that was frequently mentioned is the Board’s failure to define disability not just in medical terms but in terms of wage earning capacity, which is necessary to implement the new time limits for permanent partial disabilities. In fact, other than treatment guidelines for soft tissue injuries, it has been over two years since the amendments to the Worker’s Compensation Law which required that the 1996 Medical Guidelines be updated.
But there is one issue that has been brought to my attention more and morefrequently over the past year and that is “Board’s on-going mindset of treating lawyers [both claimant’s and defense bar] as adversaries.” The new policy of allowing/requiring law judges to issue fines for “inappropriate” appeals by attorneys, without issuing specific guidelines that would draw some lines in the sand for the attorneys and law judges, is one of many examples of the words “mindset”.
And, finally, to quote one of the many respondents on an issue that has been dear to my heart probably within a month of my joining the Board in 1996, summarized by me in last week’s commentary on the quality of the Board’s 2009 decisions, is the “constant and ongoing pattern of arbitrary, capricious and inconsistent board panel decisions.”
In summary, there appears to be one open legal issue from last year whose resolution is awaited anxiously by the workers compensation community: payments to the ATF.
But more importantly is the issue of cooperation by the Board with its constituency who are the injured workers and the employers of the State of New York. If the Board’s continuing decision to block my e-mails alerting its staff to the news, commentary, and criticisms I report is evidence of the Board’s continuing self-imposed closed mind, then the workers compensation community and the attorneys who represent them can only expect that the Board’s ability and/or willingness to serve them will continue to deteriorate even further.
Poll Results: What do we do
with Undocumented Workers?
December 14, 2009: Last week my poll asked how we should treat undocumented workers, a poll based on the extensive discussions at LinkedIn which in turn were based on a press release from Ohio State Senator Bill Seitz seeking to deny workers compensation to undocumented workers.
After I posted this poll, recently appointed Supreme Court Justice Sonia Sotomayor in one of her first rulings used the term “undocumented” rather than “illegal”. In my poll I used the term “undocumented” but based on the following comment I shall now use the term “illegal immigrant” rather than “undocumented worker”. Political correctness, such as it may be, is the purview of the legislature and not those involved in the law, be it civil, criminal, or administrative. The comment was:
Aren’t you glad you had an education which stressed accuracy in choice of terms? An “undocumented” immigrant is a person who is in the US but is a citizen of another country and who, somehow, lost the papers which would demonstrate their current status. An “illegal” is a person whose status, after an inquiry, shows that there is nothing to support legal residency. Sotomayor’s deliberate use of incorrect terms to cloud or mischaracterize a status does not demonstrate incompetence, it demonstrates a violation of an oath to support the laws as they are.
Now to the poll which asked you to select those comments with which you agree as to the treatment of illegal immigrants as compared to documented workers. Other than for the first question on distinguishing between the two classes, all those who answered were virtually unanimous, with the majority seeking enhanced penalties against the employer and the illegal immigrant.
In response to the first question, 55% said there should be a distinction between classes and 45% said there should not be. As the following responses indicate, with one exception, everyone agreed that the illegal immigrant should get the same medical treatment as a documented worker. But also it appears to be agreement that the illegal immigrant should qualify for compensation only for a limited period of time. Many of those who said that there should be no distinction did not participate in the rest of the poll.
To the question of whether the federal government should deport illegal immigrants and limiting their compensation, 41% were in favor, 18% were against deportation, and a 41% had no opinion.
As to the question of penalties 60% were in favor of penalties similar to those imposed on hiring underage workers (§14a), 9% said New York State should not distinguish between employers, and 31% expressed no opinion. However, everyone who supported the penalty agreed it should go to the Workers Compensation Board.
In fact, 45% of participants selected all four of the following: treating the two classes of workers differently, penalizing the employer, with the money to go to the Board, and at the appropriate time deporting the illegal immigrant.
SUMMARY
In summary, the consensus seems to be that as long as an illegal immigrant is unable to work because of an established workplace injury, that person should get both compensation and medical treatment identical to that of a documented worker, but, once no longer disabled, the illegal immigrant should be deported. And the employer should be penalized with that money going to the Board.
The following are comments from two of the respondents and, while the second comment may be “tongue-in-cheek” (we hope), it does raise the issue of what are the economic conditions that result in the hiring of illegal immigrants. We know that some conditions are attributable to the economic advantages but it has been proposed that American workers believe that many of these jobs are beneath their dignity and only economically unviable wages would get them to take those jobs. Fortunately, these economic issues are not within the jurisdiction of the Board and, therefore, in this website, will not be commented upon. Two comments are:
The U/W should not be given Workers Compensation, and any amount deemed what would have been paid were he/she a documented worker should be doubled and split between the WCB and the State. Further, the employer should be investigated to determine the amount they didn’t pay both the WCB and the State. Legitimate employers through their insurance and self-insured funds are being assessed staggering amounts while constantly facing increases in HICRA and covered lives to pay for these fly-by employers. They need to be taken to task and it should start with the WCB.
And
Other - illegal immigrants are dependent on illegal employers. the employers want illegals because they work cheaper and accept more hazardous work conditions. if we do not penalize the complicit employers–as a society we should accept the reality of the situation and bring back child labor; and give bail-out money to aid the triangle shirt waist factory. think of all the jobs that could be created. maybe we could just rename our country New China.
Thank you for your participation in this interesting issue. If you care to add to the discussion, click here to send me your comments.
Poll Results: The WCB,
§32’s, Child Support Liens
November 16, 2009: The results of this poll were interesting, in particular, because it was pointed out that Workers Compensation Law already allows for the acceptance of liens against alimony and federal taxes. But, first to the poll results.
As to the question of whether or not the Board should follow precedent regarding attachments for future child support, alimony, and federal taxes, two-thirds supported the position that the Board should rule in favor of these attachments and effectively force the issue, with one-third of the participants disagreeing.
One participant wrote:
What makes child support or tax liens so special?
And a second participant wrote:
The Board should seek to have the Legislature amend §33 to get rid of the lien for outstanding child support liens. Section 33 only creates problems within compensation cases and delays and prevents resolution of the cases. To paraphrase former Chairman Weiss, it just creates unnecessary friction within the system. [ED. NOTE: I do not believe that Weiss mean to get rid of any controversial laws just to ‘speed up’ the system.
But 80% also felt the state legislature should change the law to allow for the deduction of alimony liens as well as future child support liens although 80% of the poll participants felt that federal and state tax liens are not within the jurisdiction of the Workers Comp Board.
But key to this issue was a comment from one participant who wrote:
Section 33 permits deduction for judicial orders of support for “alimony maintenance support or child support.” There is no basis for treating alimony differently from child support.
This participant is correct, for §33 includes the phrase “. . . that compensation or benefits other than payments pursuant to section thirteen of this chapter shall be subject to application to an income execution or order for support enforcement . . .”. And the Court was quite clear on this issue as it wrote, with reference to §33, in the case of Dallesandro v Dallesandro (1981, Fam Ct) 110 Misc 2d 342, 442 NYS2d 400:
It is clear from a reading of the statute that the benefits are exempt from all claims of creditors and from levy or execution for recovery, or collection of a debt. However, it has been generally stated that claims for alimony and support are an exception to the exemptions granted by statute on the theory that an adjudication of alimony or support is not a debt within the meaning of the exemption statute. The whole theory and purpose of the Workers’ Compensation Law is to provide a substitute for the loss of wages and for the protection of the employee and his dependents from want and to prevent, if possible, the injured employee and his family from becoming objects of charity or dependent upon the State. (Matter of Wilkosz v Symington Gould Corp.,14 A.D.2d 408; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Matter of Bowne v Bowne Co., 221 NY 28; 22 NY Jur, Exemptions, § 57, p 260; 65 NY Jur, Workmen’s Compensation § 14, p 323-324.)
The protection of section 33 of the Workers’ Compensation Law, is not restricted only to the family that is intact but also to the beneficiary and his family whether they are living together as a family unit or separated. It appears quite clear that the Legislature did not intend to insulate the husband and father against his legal responsibilities and obligations to support his wife or child, only the family against creditors.
And while state tax liens may be exempt until the state legislature changes WCL §33, there are several cases which state otherwise for federal taxes, such as in McCampbell v Di Nuzzo (1966) 50 Misc 2d 437, 278 NYS2d 685.
It is true that a Federal statute which mandates an act supersedes a State statute prescribing procedures to be followed by State or local statutes. (Hoye v. United States, 277 F. 2d 116 [C. A. 9th, 1960].) Also liens for Federal taxes and provisions for their collection are strictly Federal and strictly statutory. (Bank of Nevada v. United States, 251 F. 2d 820 [C. A. 9th, 1958], cert. den. 356 U.S. 938.) Further that State exemptions statutes such as subdivision 2 of section 166 of the New York State Insurance Law and section 33 of the Workmen’s Compensation Law are ineffective against Federal statutory liens for Federal taxes; and States may not interfere with power of Congress to levy and then to collect Federal taxes on income. (Fried v. New York Life Ins. Co., 241 F. 2d 504 [C. A. 2d, 1957], cert. den. 354 U.S. 922.)
Call it what you will, compensation or otherwise, the employer must still pay wages to his employee, albeit on a reduced scale, either directly as a self-insurer or indirectly through an agent, while that employee is incapacitated from employment for injuries sustained in his employer’s business.
Had that injured worker been drawing a wage instead of compensation, liens not only for child support but also for taxes and alimony could legally be deducted from wages. Since workers compensation awards are in lieu of wages, there is no logical reason that these compensation awards should be exempt.
The majority of participants to this poll agree with this concept.
It is now time for the law judges to insist that the legal financial rights of children, spouses, and the American taxpayer be taken into account at the time that awards are made, either for continuing disability, Schedule Loss of Use, or §32 settlements. And it is the responsibility of the Commissioners to support the law judges by affirming these decisions citing precedent, including but not limited to the decisions noted above.
Poll Results: NYC’s Toxic WTC Tactics
November 2, 2009: In Sunday’s NY Post, the headline of a story read “Toxic WTC Tactic” which prompted my poll of October 26, 2009 asking about your thoughts on NYC’s aggressive approach in deny all the claims.
“The WTC claimant should not be treated any differently than any other worker claiming on-the-job injuries. There is no need to create a special class of claimants simply because of the emotional nature of the WTC collapse.”
This comment from one of the participants in the poll summarizes the vast majority (77%) of the votes and comments.
Another participant wrote, “These cases should be subject to the same standard of proof of causation as any other claim. The only reason they are treated differently is for political reasons.”
In looking back at the history of the legislation which established the WTC fund, it appeared that one unspoken goal of the legislation was to avoid the necessity of determining the ‘employer of record’ and/or the apportionment of payments when multiple employers were established. After all, the reason for establishing ‘employer of record’ is to determine who will pay the bills. In this case, the Federal Government established a fund to pay for all related awards so that the issue of determining who is the ‘employer of record’ became moot. The only remaining question is whether or not the injured workers claim met the workers compensation standard of ANCR: accident, notice, and causal relationship, and not whose fault it was.
This is the forte of the workers compensation system.
And now to the poll questions and answers regarding the Post story.
Question #1: Who is better equipped to handle these claims: workers comp attorneys or personal injury attorneys?
As if to emphasize the fact that these cases should be dealt with as standard workers compensation claims, of the 77% who responded to this question, 100% voted in favor of the workers compensation attorneys. “Personal injury attorneys often inflate claims and/or conditions to increase settlement potential. The potential for exaggerated/inflated claims is worse in the personal injury field then the compensation field.”
I feel this is a rather harsh assessment. The difference between these types of litigation is that personal injury includes pain-and-suffering proof of fault whereas workers compensation is no-fault and takes less time to litigate (in most cases). I do have some personal injury attorneys on my e-mail list but do not know any participate in this poll, but in my discussions with them I have found that they have the same level of integrity as the attorneys in the workers comp system even though their tactics may be different.
QUESTION #2: Is the city being unfair to these injured workers?
The vote was 66% fair and 34% unfair. Those who felt the city was doing the right thing by denying the claims felt that the City, like any self-insured employer or carrier, had the right to defend itself although most agree the city was being inordinately aggressive. Unfortunately it appears that the attorneys, outside attorneys at that, who represent the City take the expected position of any defense attorney: “There are no injuries. If they are any injuries, they are not related to anything for which my client is responsible. If there are any injuries the majority not related. The claims exaggerated.” Of course one can ask why Mayor Bloomberg does not get involved in this issue. This would resolve this problem. However, that is a separate issue and not the subject of this poll although, when I use the term ‘City’, I do mean Mayor Bloomberg. As for the respondent who asked me a direct question on this issue, please read my response posted today on the COMMENTARY page.
Again quoting one of my respondents (his third reference in this commentary), “issues involving work conditions are best left to the comp realm WC attorneys (claimant and defense alike) know how to deal with such issues best and fairly.” This also holds true for the attorneys in the NYC Department of Law, under the direction of John Sweeney, who represent the City in workers compensation cases: they are far better qualified to handle these cases then the current outside guns.
In the workers comp system, attorneys for carriers and self-insured do recognize that people are injured in the course of their work and, after fighting that ½% of cases that do not belong in the system, accept the fact that money is going to be paid for both compensation and medical expenses. This is not the primary responsibility of the personal injury attorney on the defense side.
One respondent commented, “Re-examine the complex disability benefits, workers compensation, negligence, retirement benefits interactions in civil service workers claims.” But these are issues workers compensation sees all the time and, while some of these issues may be complex (I was one of four commissioners involved in 2,000+ cases and four Appellate Court decisions dealing with the interpretation of ERISA for Verizon employees), the Board has shown its ability to deal with these complex issues.
SUMMARY
The most important fact to consider in this issue is that the federal government, by establishing this fund, has aknowledged that there would be claims involving thousands of injured workers with enough claims being sufficiently legitimate that a fund in the hundreds of millions of dollars was necessary to pay these injured workers, not the City’s outside defense attorneys. For the City, through its hired guns, to fight every claim with some of the tactics noted in the New York Post article presupposes the City and the Mayor has taken a position that there are no legitimate claims.
RECOMMENDATIONS
I propose legislation be written at both the state and federal level that moves the adjudication of all these cases from the control of the City of New York into the jurisdiction of the New York State Worker’s Compensation Board. As for any arguments that this would necessitate more hiring by the Workers Comp Board, the cost of additional personnel and physical assets will be far less than the tens of millions of dollars the City has spent on outside attorneys and denying as many of the claims as it has.
I also recommend that a fee schedule be established with a sliding scale of fees from 5% to 10% for compensation awarded and another sliding scale of fees of 3% to 5% (paid for out of the fund and not the claimants awards) on medical expenses. Some may feel the fee schedule on WTC cases represents the “nose of the camel under the tent” for fee schedules on regular workers compensation cases. It is not as these cases do differ in many ways fromthe standard workers compensation claim.
The Workers Compensation Board and the attorneys for both sides who appear before it understand the humanitarian nature of the underlying law. The City must understand that a proper humanitarian goal is not counting how many donuts we have with our lattes but to treat each WTC claim on its merits.
Poll Results: Legal Fees on Medical Expenses
October 12, 2009: Our poll questions of October 5, 2009 makes reference to the Michigan State Supreme Court decision (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) which supports the proposition that carriers should pay legal fees to claimant attorneys when the only issues being controverted deal with medical expenses. Our poll consisted of three questions and the overwhelming majority of our readers took the position that carriers should pay for legal fees if the only issue at hand is medical expenses.
- 84% agreed that fees should be paid in medical only cases/hearings.
- 16% disagree.
- 68% agreed that they should be paid on §32 set-asides.
- 32% disagreed.
- 89% agreed that, if fees are to be paid, carriers should pay them.
- 11% disagree.
It is interesting to note that while 32% disagreed that legal fees should be paid on Medicare set-asides, half of that 32% (16%) agreed that, if it is a regular hearing and the only issue is medical, the fee should be paid.
89% agreed that carriers should be responsible for paying the fees rather than the claimant. And while I do not have a breakdown of the categories of voters (carrier, claimant, law judge, or other), based all the prior polls I have gotten, I think that respondents represent an even mix of these groups. Therefore it appears that carrier attorneys also feel it is appropriate that the claimant attorneys be paid a fee by the carrier.
One respondent stated the claimant attorneys are not retained to represent the interests of the medical providers. But the issue here is not the financial interests of the doctors but is almost always whether or not the claimant should get medical treatment in the future or have access to certain types of “appliances”. As to the appropriateness of the treatment or the costs, these questions are covered by the medical fee schedule set by the Board and the right of the medical provider to seek arbitration.
Another respondent noted that the payment of a classification fee does not end the attorneys’ involvement with the claimant, and the attorney should be prepared for future litigation.
There were two other interesting statements:
This is a contingency fee system. Therefore, fees should be paid on all recoveries. Simply look at the negligence claims. The jury pays damages on past present and future loses–including lost wages medical needs of every type–and the attorney generally receives 1/3 of all damages. Why should the comp attorney be short-changed. The comp system already limits damages and does not pay for physical pain or emotional suffering.
And
The claimant’s attorney should be compensated for his/her efforts concerning all issues. If the issue only concerns medical services the attorney should still be paid. The attorney’s efforts in resolving these issues is as much of a service for claimants and the Board as their efforts concerning indemnity issues. The big question is how to award a fair fee with the limited funds of a Section 32 or of an ongoing claim. This way I believe that medical issues will be resolve more expeditously and the medical providers who do not have any standing will have some representation.
But more importantly, one respondent noted that the “law already permits fees on medical IF the Board approves”. I reviewed NYCRR §300.17 and the sub sections therein. Although this refers to fees charged by claimant attorneys, it only states the manner in which the presentation of the bill must be done but does not in any way delineate who is ultimately responsible for paying the legal fee.
Therefore, in order to get the discussion rolling, I recommend the following:
- In §32’s any money allocated for medical should be subject to a 5% fee paid by the carrier directly to the claimant’s attorney. And it should be for all expenses, be it in the general text of the agreement or a specific Medicare set-aside, whether the money is paid directly to the claimant or put into an escrow account.
- In cases in which the claimant has been classified, the classification fee historically has meant that the attorney be available at no additional cost for future litigation. But there must be a limit as to how often the claimant’s attorney should be called upon to fight for medical treatment. I recommend that in all hearings and/or appeals necessitated by a medical-only controversy, in which the claimant’s attorney is successful, a fee of $75 per hearing and an additional $100 for an appeal should be awarded the claimant’s attorney, paid for by the carrier. These fees would not apply to the first hearing or appeal after the classification fee has been awarded.
- For those claimants who have not yet been classified, I recommend that a fee of $75 be paid for each hearing and $100 for each appeal.
Both frivolous adjournments and appeals are subject to penalties. Also §25(2)(c) awards a penalty in those cases in which the carrier or employer has objected to an award of compensation without just cause, but does not subject them to a penalty for failure to agree to medical treatment, thus necessitating a hearing by the claimant.
This proposal to pay fees on medical-only controversies evens the playing field between the claimant and carrier and may help cut down on the number of hearings that deal with medical-only issues. Therefore, I suggest one of the law judges and/or one of the panels start instituting such fees. Be sure be sure to quote the Matter of Peterson v. Magna Corp.
Poll Results: Secret Project 2015
September 21, 2009: Just a little more than two weeks ago, the news broke about a here-to-fore top secret project being conducted at the Board and we asked you your opinions:
Our September 14, 2009 poll asked “Based on what you have read about this here-to-fore top secret project, do you believe:
- the Project should go forward?
- the explanation given by the WCB?
- there are too many hearing?
- there are too few hearings?
- less hearing help the claimants?
- more hearing will help the claimants?
- is there another agenda behind this Project?
Only 10% of you agreed that Project 2015 should go forward and these 10% were the only ones who felt that the Board’s explanation for Project 2015 gave the true purpose of the Project, that there is/was no hidden agenda. What was interesting was that only one person of this 10% who believed the Board’s explanation had other comments to make. It gives the impression that the others in this 10%, who supported the Board’s decision, may have been voting as ‘good employees’ as none took the time to justify what they thought was good about the project. Which goes to prove the adage that sometimes saying nothing says a great deal more than saying something.
Only 10% of you agreed that Project 2015 should go ahead and these 10% were the only ones who felt that the Board’s explanation for Project 2015 gave the true purpose of the Project, that there is/was no hidden agenda. What was interesting was that only one person of this 10% who believed the Board’s explanation had another other comments to make. This gives me the impression that the others in this 10%, who supported the Board’s decision, may have been voting as ‘good employees’ as none took the time to justify what they thought was good about the project. Which goes to prove the adage that sometimes saying nothing says a great deal more than saying something.
62% of you feel that the Board has a hidden agenda and had nothing else to say although some of you marked other choices. These other choices basically took the position that there were far too few hearings, which in turn would negatively impact on claimants.
As to the question as to how Project 2015 will be help or hurt the system, this is the breakdown.
- Are there are too many hearing?
- Do less hearing help the claimants?
Not a single person voted for either of these two. To the two questions which asked the opposite:
- Are there too few hearings?
- Do more hearing will help the claimants?
28% stated that there are too few hearings and that more hearing help claimants.
The two sets of answers appear to go to the heart of the issue concerning Project 2015 and are better understood when reading the comments in OTHER:
- no hearings-no attorney fees. with no attorneys the board can screw the parties all they want.
- to eliminate lawyers from the system
There has been an underlying concern brought to my attention frequently over the past few months and commented upon in this poll:
Legal fees and attorneys’ involvement in the system
I was told that the goal of Project 2015 is to reduce the number of hearings and have administrative personnel review the paper files and make the decisions that are now before the law judges. In fact, as I write this posting, examiners who review certain submissions have been given the authority to determine if the medical submissions are sufficient for a hearing on SLU, examiners who do not have the formal training that law judges undergo before they are allowed to hear cases. And because decisions by administrative staff, unlike decisions by law judges, are not appealable under the current rules and regulations, the Board can in effect make a determination on claimant injuries that it, the Board, feels is best and that is the end of the matter.
And while it is true that claimants have the right to ask for a hearing, there is a question as to whether or not the Board has to give them that hearing. And this is as true for employer and carriers as well, as they too have perspectives they feel should be heard, not just read.
When this is combined with the increasing attempts by the Board to penalize both claimant and carrier attorneys for not being prepared, as defined by a law judge, it appears that the real goal is to reduce the income of the attorneys, thus minimizing their ability to serve their clients.
To eliminate lawyers from the system
After all, an uninformed claimant will not know their rights or alternatives.
The 2015 project will hurt the people that it should be helping…the injured worker. The Board will take hands off approach unless the claimant asks. How do the uninformed know what they are entitled to?
No hearings-no attorney fees. with no attorneys the board can screw the parties all they want.
The essential question is, not what is the goal of the Board, but what is the goal of the Oligarchic Cabal who is trying to impose this Project 2015 onto the claimants and employers.
About a year or so before I left the Board, I participated in a decision denying an undocumented worker additional compensation, a case that went to the Court of Appeals who affirmed my panel’s decision. If there were no hearings but simply decisions made by examiners, would that case have been appealed? Would the public have known about it and attempted to seek redress for what they felt was an improper decision through the political system? The recently signed ‘LaCroix’ law bill came about because of the public nature of the debate at the WCB, the public hearings, and public record of the appeals of those hearings. Project 2015, which to this date the Board has not yet explained, will deny all participants in the system an open window. Are these member of the Oligarchic Cabal setting up a Star Chamber with them as the members of this secret society or will we move in the other direction, as one voted stated, “ The more Hearings the greater the scrutiny the greater the public is served.”
The Board is here to serve the needs of the injured workers and their employers, not the secret ambitions of a select few who view cutting the Board budget and making faster decision making regardless of the fairness as a means to their personal advancement through government and into the private sector.
I think I can speak for the workers compensation community when I say,
“Dear Board, we await your explanation as to what is Project 2015 and its purported goals.”
POLL: §32’s and Medical Guidelines:
Something’s Missing?
August 24, 2009: The poll question of August 17, 2009 was:
Without the new Medical Guidelines to let them know their level of disability and amount of future benefits, are both parties to a §32 being shortchanged?
The answer was overwhelmingly “YES” but interestingly enough while 15% said the carriers had the advantage no one said that the claimant had an advantage.
85% felt that both sides were being equally shortchanged.
And finally virtually everyone said that the Board has to get the guidelines done.
The fact that the claimant attorneys and the unions fought for years for higher rates while the carriers fought for time limits on compensation would seem to show how important was the 2007 Legislation that was passed.
Yet, despite the importance of this legislation and the impact it would have on injured workers and their families, the Board has yet to set any medical guidelines such that the vast majority of the workers compensation community in New York State feel that the Board has to get this project done and they mean DONE NOW.
In view of the fact that there are 139,000 or so claims indexed every year and about 12,000 §32’s done every year, one would think that this would be THE top priority of the Board. The fact that the Board was able to get enough staff together to find 10,000 employers who have not allegedly had workers compensation insurance for the past 10 years is certainly important but those resources had best have been directed towards helping the 100,000 or so injured workers who every year need the information that is supposed to be in the medical guidelines in order to make an informed judgment. In fact, I am sure that the law judges and carriers would like to have this information as well.
There are a rather large number of other states who have workers compensation as well as medical guidelines more up-to-date than the Board’s 1996 guidelines. Is the ego of those involved in the development of the New York State guidelines so great that they must reinvent the wheel while letting the world wait?
POLL: Who should take CLE’s?
[ED. NOTE:This poll has resulted in a lot of extensive e-mail responses and several commentaries on CLE’s and better training for licensed rep and commissioners and the importance of attorney/commissioners are each panel. For details go to COMMENTARY & REPORTS.]
August 10, 2009: The poll of August 3, 2009 asked who should take the CLE’s (Continuing Legal Education) courses that are required annually for attorneys in the State of New York.
The bottom line is that virtually every participant in the poll believes that more training is necessary, that both the commissioners and licensed reps (L/Rs) should have to take the CLE courses that are required annually for attorneys in the State of New York.
There were only two participants who were not in favor of requiring that L/R’s take CLE’s.
One participant wrote that there was no way to make them do so. Since this was one of the earlier answers to the poll, I added the comment in the poll that, since L/Rs are, by definition, licensed by the NYS WCB, the Board has the right to define what are their requirements for renewal. So it would not be too difficult for the Board to add to the current requirements of renewing a license (now just paying a fee and filling in a form) that they earn a certain number of CLE credits. No credits would mean no renewal.
The second participant wrote that the Board should get rid of L/Rs altogether, that only attorneys should be allowed to practice before the Board. I have participated in probably 3000 oral arguments. Several hundred had L/Rs and the quality of their arguments and presentations was on par with that of the attorneys. Yes there are some lousy L/R’s but there are also a few attorneys who by virtue of their having passed the bar exam 10, 20, or more years ago, are allowed to come to the Board and represent claimants or employers. The carriers are too smart to hire them.
And there is the occasional attorney who comes in with no knowledge of WCL at all but assumes that they can win a case because they are an attorney who practices in a ‘real’ Court (Civil, Supreme, or whatever).And even if they do win, usually because the evidence is overwhelmingly in their favor, they are an embarrassment to everyone.
I have a friend who is a very successful attorney. Several years ago he had a client with a §32, probably the easiest issue with which to appear before a commissioner, in this case, me. He phoned to ask me if it was necessary to hire an attorney to do the hearing as he was not familiar with §32’s but was doing it as a courtesy. Now, in my mind, he was smart to ask. But how many non-WC attorneys come in who are either too stupid or arrogant who do appear before the Board.
Yes, it is a given that the 10 best attorneys are better than the ten best L/Rs. But if you were to list the top 100 who make appearances, you would find L/R’s among them and as you moved down the list you would find many L/Rs rated better than some the attorneys.
But to keep the playing field level, L/Rs should take CLEs. After all, if the top ten attorneys must take CLE’s why shouldn’t the top ten L/Rs?
And there were some who agreed with my oft stated position that there should be additional CLE requirements for inactive L/Rs: those who passed the exam but handle 10 or 20 or fewer cases a year.
The rumor mill has it that the issue of CLE’s for L/Rs is something being seriously talked about at the Board so only time will tell.
But a word of warning to the L/Rs: they had better get themselves organized lest changes take place without any input of them. And this would be a shame as I do not believe that one needs to pay a $150,000+ admission fee (law school tuition) to appear before the WCB.
In the COMMENTARY page I have PART II on this issue, which is an email from an attorney who makes some very good points as to why only attorneys should be allowed to practice.
POLL: Are the Regional Managers
better than the old DA’s
July 27, 2009: Some time ago, a decision was made to replace the 11 District Administrators (political appointees) with two regional managers, also appointees, with the promise that the two regional mangers would meet periodically with the staff in each of the district offices under their supervision. The July 20, 2009 poll asked if this has been done and does it make a difference?
While I may have had a basic idea as to how people thought on this issue, I was surprised at the vigor of the responses which basically stated that the new regional managers were:
►Waste of Money
►Useless
Virtually everyone selected “They make no difference, with some very interesting comments, once of which seemed to summarize the overall results:
►I didn’t even realize they had been replaced!
There was not a single positive response. The consensus is that this change was done for one of two, or possibly both, reasons:
►This was a budget move to save money
►It was all about politics
As I wrote earlier, I do not believe that budget was a key issue but the excuse by which 11 political appointees (one district administrator per district) usually selected by the local county leaders were replaced by two regional administrators in the two areas in the State where there was the most Democratic Party political power. You will note that Binghamton, home district of Vice Chairman Frances Libous and her husband, powerhouse State Senator Thomas Libous, did not get a District Regional Administrator nor will they likely be the beneficiary of any future ‘new projects’ from the NYSWCB. Nor for that matter will Peekskill, the home of former Governor Pataki and many of his executive staff, be the recipient of more ‘projects’.
[While the selection of Binghamton as the scanning center for all the NYS WCB documents may have been based on political considerations, it is an example where excellent decision making went along with political considerations resulting in a well-run facility, albeit a private-sector, for-profit facility.]
Instead, once nine of the eleven district administrators were eliminated, Albany determined that some additional support was necessary for the two regional managers and, lo and behold, Albany got to hire some more people. These would cost less money but to paraphrase an old saying of a ‘bird in the hand is worth more than two in the bush’, for the Albany Democrats looking to build a power base, ‘two lower paying jobs in Albany are better for Albany than nine higher paying jobs elsewhere.”
There was one very strong criticism of the former District Administrators:
What did the DAs actually do other than respond to legislative inquiries? The few who did more than that usually tried to make power plays and created too many problems (i.e. “dual reporting” for WCLJs). It is really the District Claims Managers and Senior Law Judges that make a difference on a local level.
I will admit that a few of the DA’s I knew were useless at best. But a few were effective and some of the district managers were not that good and I know of one senior law judge whose administrative, let alone legal, talent, I among others often questioned. So a good DA, and there were several, were helpful.
Also, DA’s are political appointees. They are the sole representative of the Governor in each district office. The Governor has the right, and responsibility, to make sure that the Agencies under his control follow through on his policies. Just as the Governor selects commissioners and others to lead agencies, it is equally important that the Governor have someone on the ground at the various district offices and departments at these agencies. The definition of a political hack is (1) an appointee of the other party, (2) an appointee who is lazy or incompetent or dishonest, or (3) an appointee with whom the subordinates disagree on changes that the administration in power (the Governor) wants to take place. And it doesn’t nor should it apply to all political appointees. After all, I was an appointee and would like to think not perceived of as a hack.
Many years ago when I was involved in a hotly contested Democratic primary, someone representing my opponent called my candidate an ‘idiot’. My response, “Better my idiot than yours!” So one person’s appointee is someone else’s hack.
You can not call an appointee a hack if they are given a job that was designed to help improve an agency when, behind the scenes, those in charge do not let them do the work they were told they would have.
At this point in time, so it seems with the regional managers. It is up to them to go to the new Chairman and ask that they be allowed to do the jobs for which they were promoted. Otherwise, they too should be eliminated.
POLL: Are the Mods better written
than in prior years?
July 20, 2009: In early 2008, Chairman Weiss made some substantive changes in the Office of Appeals, by bringing in a new department head, former Albany Senior Law Judge Madeline Pantzer and selecting as her assistant David Wertheimer, who had extensive experience working with the commissioners on proposed MoDs. The Office of Appeals was also renamed the Administrative Review Division (ARD) and placed under the direction of the Office of General Counsel. The new ARD was given the mandate to write better Mods, in terms of not only grammatically correct decisions but also coherent and consistent ones.
Overall, it seems to be working as testified to by the poll results from our July 13, 2009 poll:
36% Better 9% Worse
with
40% No change 15% Mixed
Although there was an even split as to whether the writing itself was better, the worse, or the same, the majority agreed there were better explanations given, although one participant stated that “more citations to precedent and case law” are necessary.
I have seen a number of the new MoDs including a few written when I was still on the Board. They now usually have a basic format, which increases both the readability and results in better explanations.
However, one participant wrote:
While the new MODs are more succinct, they continue an absence of legal reasoning and tend to conclusions rather than offering legal analysis. Thus, there tends to be some “disconnect” between the case analysis and the conclusion. It’s almost as if the WCB seeks to avoid criticism at the AD3d while parsing its decisions in the most economical way.
As to the comment regarding the WCB desire to avoid criticism from the Appellate Court, that is correct. I can confirm that by referencing my many comments throughout this website as to the desire of the Oligarchic Cabal whose priority, well above all else, is to get good PR.
I also am reminded of an instruction I used to give some of my volunteers who had occasion to come into contact with the press: “Say nothing and appear to be stupid. Say something and prove it.” The less said the less likely to make a mistake. Also the less said/written, the faster it is to write and to proofread. So there may well be a method to this madness of not writing as complete an MoD as some would like. The use of citations could be troublesome because very often as I did in WCB #0004-3437 New York University (2002), cited on pages 140-141 of my book Behind the Closed Doors, it would often be necessary to not only list citations supporting the conclusion, but because of the past history of the Board in issuing contradictory decisions, it would be necessary to explain why so many prior decisions were incorrect or not on point.
In summary, today’s MoDs are better written.
But there is a far more important consideration:
For whom is the MoD being written?
I can list several answers:
- To the losing side to explain why they lost.
- To the law judges to explain why they were not affirmed and what they should do the next time.
- To the lawyers and community at large to make a point on a key issue.
- To the Courts (Appellate and Appeals) so as not to be reversed or criticized.
- To the public to make the Board look like it doing what is correct
This is an issue that was the subject of conversation of many of the ‘engaged’ commissioners when I was on the Board. We took the position on some issues not only the facts but the reasoning for a decision had to be included. Again I reference NYU WCB#00043437, in which the Board had previously issued contradictory or unclear decisions and I attempted to write a decision that clarified the confusion generated by eight prior and contradictory decisions.
This issue will be subject of a commentary next week, based on an interesting email from an attorney who asked if the commissioners should get pro and con briefs with each decision.
But for now the poll does show that the management of the ARD is accomplishing Weiss’ goal of drafting better styled and more substantive decisions. And while there is more work to be done, more has been done by the ARD in the last year on this subject than had been done in the 10+ years of existence of its predecessor, the OOA.
Last Week’s Poll: The Rocket Docket
Is It Fair? Is It Working?
Is it fair or does it favor one side and if so, which one? And you said:
42% said it is equally unfair to both.
37% said it favors claimants over carriers.
16% said it is fair to both sides.
5% said is favors carriers over claimants.
The second part of the poll asked if the Rocket Docket and the new forms are working?
50% said no.
31% said it is too early to tell.
15% said it is working.
4% had no opinion.
And then there were some comments.
A number of people thought that the new C-4 forms were far too complex and, contrary to their intended purpose, sometimes slowed down cases because they were either not done at all or incomplete in the important parts. One participant wrote, “Information cannot be gathered quickly in many cases. C7 cases have a life of their own, and they follow the same path as pre rocket docket, except now with added stress, diarying, committee meetings and lengthy forms to complete.”
But perhaps the most telling comment was:
Again, it all depends on your definition of “working”. Does it mean that judges are reaching decisions quicker? (Under this definition, it probably is working.) Does it mean that fewer decisions are being appealed, or that fewer decisions are overturned on appeal? (Under this definition, it probably is not working, but I don’t have the numbers to know for sure.) Does “working” imply that a higher percentage of legitimate claims are being established and established sooner? (Under this definition, it probably is working.) Or does it mean that a lower percentage of fraudulently raised claims being established? (Under this definition, it probably is not working, but there is really no way to know.)
Based on the vote and the many comments that were included, it seems that while everyone seems to think that the ‘old’ system was too slow, the majority of people think that the new system still needs a lot of work. As to the forms, it seems that the majority feel they are not practical and do not help except in easy cases in which case the old forms and system would have been just as good.
The Board in the last two years has emphasized the number of cases it closes. But only those who practice at the Board really know what that means: there are no more outstanding issues, not that, as in civil court, the case is ‘finished’. So if there is something missing, rather than adjourn it to allow the parties more time to resolve something, the case is just ‘closed’, only to come back again for new hearings, but only after more delays and a great deal more paper work needed to reopen a closed case. As a commissioner, I and some of my fellow commissioners were occasionally taken to task for adjourning an oral argument or §32 settlement for a week or so, so that some minor problem could be ironed out and we put the case back on the calendar for the next hearing date. The ‘powers that be’ preferred we close the case as closing it kept the ‘open case’ numbers down.
I guess that behind the secure ramparts of the Park Street office, it is easy to make a claimant wait a few more months in order to get better statistics to show off but let them come down from the ivy towers to the hearings and tell that to a claimant to his face. As I noted in my book, “while the needs of 10,000 injured workers year are important (that is the average number of §32’s done each year), the needs of one person at a time 10,000 times a year is also important.” Where Park Street sees 100,000 cases, the commissioners and judges see ‘the claimant’ 100,000 times.
In talking to the practitioners and reviewing these and prior polls, it is my impression that the bureaucrats’ goal for the Rocket Docket is not to speed up the resolution of the cases for the benefit of the injured workers and their employers but to make the statistics prove that the Board is working better than ever, as the bureaucrats use these stats as stepping stones up the bureaucratic ladder to more prestigious, power-laden, and higher paying jobs.
It will be interesting to see what the next new chairman does with the Rocket Docket. My initial sense is that a Chairman Libous would push it further and a Chairman Beloten would fix it. We shall see.
June 8, 2009/te
The Poll: Who Said That?
Our May 25, 2009 poll, because it was a short week, asked a Trivia Question as to which public official made the following statement and then didn’t file income and payroll taxes, or WC premiums:
“I’m a corporation, I employ a bunch of people. I love corporations that play by the rules, and we have to make them play by the rules.”
So either the half of you are well-read or you know how to Google because exactly 50% correctly picked Minn. Senatorial Candidate Al Franken as the miscreant. 36% selected NY’S own, Congressman Charles Rangel, who made not have Paid or filed his taxes but simply said, “Who, me!. It’s my accountant’s fault.” And 14% picked U.S. Treasury Secretary Tim Geithner, possibly to justify their own tax planning for 2010.
Next time we’ll make the quote harder to find.
June 1, 2009/tv
Poll: Are more Commissioners Necessary?
Our May 18, 2009 Poll asked In view of the fact that (1) the commissioners no longer do §32’s, (2) rarely travel but do hearing by video, (3) the number of oral arguments has dropped about 70% or more in the last few years while the number of Memorandum of Decision has remained constant, and (4) every agency is being asked to cut back on expenses, is the expense of filling the last two vacancies on the Board appropriate? And two of these vacancies have been around for a few years and the reduced number of commissioners (11 including the Chairman) did not appear to affect the quality of their work.
And you replied:
38% leave the spots vacant for the next year or so.
25% fill the posts to help offset the 6 Republicans & 1 Conservative still on the Board.
25% Other
21% Fill the spots because the law allows (but does not mandate) 13 board members.
Based on the other comments which accompanied some of these votes (multiple choice) as well as some of the e-mails which I have received, 63% (38% + 25%) see to feel that the commissioners are not just worth the money, particularly with all the budget cuts being done and the additional ones being sought. However, a few of the comments seem to be very specific, indicating that there has to be something done to make sure that the commissioners who have been appointed actually do their work.
I can not add any more to that impression beyond the 100 or so pages devoted to the commissioners, both the engaged and the insouciants, noted in my book, Behind The Closed Doors.
For those who favor adding two commissioners just more than half (25% of 46% {25%+ 21%}) have a political reason for the appointments and the balance (the 21%) feel that since the Governor has the right to fill the slots, he should. My sense is that these people feel that the Pataki appointees were anti-claimant and the two new ones are needed to help bring the Board back to understanding the goal of the agency and it supporting legislation: helping injured workers.
Now as one of those Pataki appointees, I would not agree with that analysis but can tell you that once a Democrat became governor, a few of the insouciants suddenly too a strong pro-claimant stance on issues in the expectation that a Democratic governor would look kindly on their need/desire to get a re-appointment. (Fat Chance!) In fact, after Pataki came into office, I was told that a few of Cuomo’s appointees switched philosophical horses in mid-stream, too. But be that as it may, most people feel that Democratic appoints are more inclined to support claimants than are Republican or Conservative Party appointees.
In actuality for nearly half the commissioners, their political views have no meaning because they are the insouciants who do not read anyway but let the civil servants in the OGC write everything, with their opinions only occasionally coming into play at Full Board Reviews.
So we have a sort of 50-50 split. Perhaps the split is between the pragmatsis (save money) and the idealists (change the Board’s philosophy).
May 26, 2009 TS
Poll on Electronic Transcription
This poll had been done at the request of a number of my readers on a subject that is quite important to them: electronic transcription of the minutes. It was in my April 10, 2009 NEWSWIRE that I reported that Governor Patterson has asked the Workers Comp Board to eliminate 92 positions, referencing a story from a firm called “escribers” who do electronic recordings of hearings. According to e-scriber, “E-Reporting includes two elements: first and foremost, the electronic court reporter who oversees the process and who may be responsible for a subsequent transcript, and secondly, the sound recording equipment itself.” Therefore, we asked what should the Board do at this point in time. And the responses were:
- at 70% Cancel this project.
- at 22% First discuss this with the staff & attorneys.
- at 22% Explain the reasoning behind this.
- at 13% Do some sample hearings.
- at 13% Other.
- With 1 Vote: Continue with this project.
A further analysis showed that while 70% wanted the project canceled, there was a split in this group. 53% chose only to close the project. But 27% who wanted the project canceled also had other suggestions.
22% of the responses requested that the Board first explain why this change was being made with a number of them, as noted above, seeming to indicate that without an explanation from the Board the project should be canceled. Another 22% requested that the board run some tests, including having live reporters randomly come in at the same time as the eletronic transcription is being done and let the result be compared. But a number of them seemed to indicate that, without some sort of comparison testing, perhaps on an ongoing basis, the project should be canceled. 13% simply chose the option of doing the testing.
And there 13% who also chose OTHER in order to add some short comments. The two long comments, posted last week, are noted below. Among the most interesting was the recommendation that the deponent must certify the transcription for accuracy. And while at first glance this made sense, on reflection it does not. In a hearing when the proceedings include two lawyers (at a minimum) and a law judge there will have to be three people who would review the transcription for accuracy. And if it is a hearing in front of commissioners on a complex issue with the claimant and a translator, there could be as many of 10 parties who would have to confirm the accuracy. Based on the many minutes I have read of hearings in which I was a participant as a commissioner, even as simple as some of the §24-a and §50-3b/d interviews, I can speak for everyone when I say these are not always 100% accurate. If deponents were asked to certify the accuracy, we would need another adjudicative system the size of the WCB to do that.
Which comes back to a key point made by 47% of the poll participants*. What is the reasoning behind this plan? Perhaps like the proposal to have deponents certify the accuracy of the electronic transcription, at first glance electronic transcription makes sense. But upon refection (and listening to others), some ideas good at first glance do not survive the light of day. This plan may well be a good one but until the Board communicates with the participants in the system, no one will know.
Oh, yes, There was the one person who voted to keep the plan going. Perhaps that is a member of the WCB who will get a promotion and raise to help manage the new system!
The longer comments on this poll are:
As anyone knows who has ever sat in on a hearing, sometimes it turns into chaos with everyone talking at once and over each other. Even if the Chair sat in on one (or even a few) he could not have any conception of how hard it is for the reporters to sort out the contents. They are pros. I’ve experienced so many occasions where the reporter speaks out, “Hold it!” “Please slow down.” or “Who said that?” I’ve responded to practitioners and claimants alike, “Answer the question because without the transcript, this hearing is going nowhere!” If everyone had a separate microphone, everyone spoke in turn, and everyone was respectful of one another (a miracle!) it would work fine. Short of that, it’s another pipe dream to save money.
And
The e-Reporter system has been in effect in Social Security hearings for decades. It’s a disaster. The courts have learned to disregard the testimony because, simply, people don’t talk that way. The transcripts are a very bad approximation of what was said. Often the e-Reporters just make up whole sentences. They are a source of corruption. The contract goes to someone’s relative who hires minimum wage third-worlders to do the transcripts. Misspellings show that the transcribers are not native speakers. The judges will be sweating bullets. They often manipulate the record with a live reporter, insisting that whole sections be turned into oblivion - even hours after a hearing. A skilled attorney can drive them nuts if he/she knows the comments cannot be eliminated.
*[ED. NOTE] The 47% comes from the fact that 53% made only one choice, to ‘cancel’ where as 47% (less that one vote ‘to continue’) wanted more information and/or tests.
May 18, 2009 TF
Sharing Board Statistics
Our poll posted May 4, 2009 related to the collection and sharing by the Board of statistical data regarding decisions by issue.
The Board codes each Memorandum of Decision (MoD) with one or more three-digit issue codes, issue codes which should be used to publish information to the community. As the number of cases on a particular issue increases and in particular when the Commissioners reverse, rescind, or modify a judge’s decision on any one of these increasingly frequent issues, it is a sign that everyone needs to pay more attention to the issue and set some minimum indicia to cut back on not only the number of cases being litigated but, when it occurs which is not infrequently, to minimize inconsistent and contradictory decisions.
Since the Board should have this data (it is certainly more important than how many keystrokes an examiner does a day), should this information be published to help practitioners on both sides get a better understanding of key issues and how the Board deals with them? And, for the Board who will argue that there are over 130 issue codes, I suggest they do 30 each month as many are closely related. The question was:
With the Board’s ability to develop these statistics, should the Board …
The results of the poll were:
- 50% Issue a yearly analysis of the numbers
- 33% Issue a monthly analysis of the numbers
- 27% Ask the practitioners if there are any specific data they need
- 22% Other
- 13% Keep the information internal for Board use only
(Please note that because this was a multiple choice, the total exceeds 100%)
So we have 83% (5 out of 6) who would like the Board to publish the information, either annually or monthly, whilr another 27% said the Board should ask the practitioners which information was important.
13% said the Board should keep that information for their own purposes and interestingly did not have any comment under OTHER.
What was interesting was OTHER, which were 33%.
Some said that if the attorneys wanted this information they could collect their own. The problem with suggestion is that there are about 1000-1200 MoDs published each month and, aside from the fact that this would be time consuming (I know as I did it for 300-350 per month), the attorneys would have to look up all the cases in LexisNexis and devise their own data base. Based on my own experience with thousands of cases in my data base, this would not be practical for any practitioner.
A few made reference to the fact that since each case stood on its own, it would not be possible or advisable to look at statistics to determine if a case warranted an appeal to a Board Panel. In reality, this would not work. The data would offer two aids. First it would let everyone know what were key subjects so that the practitioners would now which upcoming cases at the Law Judge level needed more research as there were a lot more cases available. And for some, it would give the attorneyss a sense that because lot of similar cases were up for appeal that this would be another reason to review the issue and ‘sharpen the pencil.”
In my 12 years as a commissioner, I found these statistics, derived from my own database, to be helpful in selecting what were the key issues for which I had be to be better prepared so that I could better spend my time in research. As I noted in my book, Behind The Closed Doors, in Chapter 17 “The Machines Take Over”, there is no such thing as bad data: only bad use or interpretation of data. Since the Board has easy access to this data, I feel as do 5 out of 6 voters that the Board should make this information available.
What will the Board do on this issue? What they always do! Nothing.
May 11, 2009
WHOSE DOCTORS ARE FAIREST
Our poll posted April 27, 2009 related to the issue of IME’s: Independent Medical Examiners. In my SOLUTIONS page, I covered a number of the issues that had been raised by both N.R. Kleinfield in his March 30th article in the New York Times and the nearly 500 blog/comments sent to the Times. The poll asked your opinion as to who should do medical assessments and decide causal/consequential relationships: IME’s, claimants doctors, Impartial Specialists, Law Judges, etc. And, can they be really uninfluenced or unbiased?
Only 25% of you selected only one of the choices offered and that was equally split between “Board Doctors should replace both” and “Board doctors should replace carrier doctors”. The other 75% of you chose “Other”, adding a number of interesting comments and some also picked a second option in the poll, using “Other” to clarify their choice.
The results of the poll were:
- 53% replied “Keep it the way it is”
- 30% replied “Get rid of both carrier and claimant doctors and use just Board doctors”
- 18% replied “Use them if the other doctors are too far apart”
- 12% replied “Get rid of the carrier doctors” (not included in the 30% above)
- 6% replied “Board doctors would be biased”
(Please note that because this was a multiple choice, the total exceeds 100%)
The actual total not wanting Board doctors is actually 59%: the 53% for “Keep it the way it is” plus the 6% who felt the Board doctors would in their own way be biased by following the unwritten wishes of the Board.
Many of the 30% who wanted to get rid of both doctors clarified that position by stating that the Board should get an assessment from both doctors but when it came time to make a final assessment, Board doctors should be used for, in the past, they gave, summarized best in one comment, “fairly impartial and decent opinions”. Another 18% felt that the Board should continue to use both claimant and carrier doctors but, if there differences in the final assessment were too far apart, then the Board doctor would make the final decision.
So it seems that almost half the respondents liked the idea of using Board doctors to help close cases if there are differences of opinion between the two doctors that can not be resolved without litigation.
Perhaps the Board doctors could act like arbitrators, picking one of the two numbers offered by each side. So rather that having one side reporting 80% (very marked) and the other 15% (very mild), hoping that the Law Judge would average them out, the Board doctor would pick which of the two was the closest to reality. Perhaps then we would get a 40-60 split. Also, since under the new guidelines, the amorphous terms ‘mild’, ‘moderate’, ‘marked’, and ‘total’ would be replaced by fixed percentages, the Board could determine that only if the differences were more than 5% or 10% or whatever, would the case go before the Board doctor. Cases closer than this would go directly to the law judges, who could then pick an average if they wanted. This would certainly leave the current system intact, as favored by 59%, and be far easier to implement than hiring enough board doctors to do the tens of thousands of cases each year in which this issue arises.
Of course all this raises another issue. Will the use of Board doctors be limited to only permanent disability or would it also include temporary? The problem with this third set of eyes looking at the level of disability in a temporary disability case is that in the 6-8 month interval between the claimant’s doctors’ first assessments and the Board doctors’ assessments, the condition of many of the injured workers would have changed, often dramatically. So perhaps it should be limited only to the cases of SLU versus permanency and degree of permanency with each one of these issues having their own subsets of problems to be resolved.
One suggestion I make (sure to be unpopular) is that, in SLU cases, when the Board doctors have to choose between “A” and “B”, the losing side pays a small fee to the Board ($50 if a claimant and $200 if a carrier). Once one side has lost a of number of times, they may want to reconsider their choice of doctors or perhaps their own decision-making process, once again with the potential to reduce the number of litigated cases and insuring faster case resolution for injured workers. In fact, if the Board were really interested in this proposal, it would an ideal topic of a open discussion with representatives from both side of the table. and as an impartial outsider, I would be honored to chair it.
But, probably the best comment in OTHER category was the suggestion that,
“Board should enforce current rules & allow 2007 reforms/new forms to work before adding more changes“.
This is a point I have made on more than one occasion but which needs constant repeating. And putting a new color cover with the names of the new governor and new Board chairman on the Medical Guidelines book serves no purpose if the inside is the same 63 pages as in the 1996 edition.
May 4, 2009
WHO SHOULD ATTEND THE NEW DISTRICT MEETINGS?
Our April 20, 2009 related to the Board’s plan for the two new Regional Managers to periodically visit the districts with open meetings as was done years ago. The purpose of this poll was to ask who should attend. Perhaps a wider participation would help improve the congeniality of all those who are at the Board and improve the one goal all are supposed to have: better service for the injured workers and lower costs for the employers.
Part of the poll’s response is most distressing as it mirrors responses to a number of other polls:
50% chose the answer “Doesn’t matter - Albany doesn’t listen anyway.”
I have no comment to make on this 50% as I feel I am ‘beating a dead horse’ so let’s go to the other 50%.
The other 50% wanted the Senior Law Judges, the District Manager, and, yes, even the local commissioner(s). A few even asked that some of the law judges attend on a rotating basis.
When I attended the meetings (and I got similar assessments from a few of my colleagues who cared enough to attend in other districts), we would sit around a table or in a room filled with chairs. No podium with a lecturer but an open meeting for a free flow of ideas. The information gained was important but it was equally important to see everyone as a member of the same team. For, although some of us may have fancy titles, it is politics that makes DA’s, commissioners, and senior law judges, not necessarily brains or competence or hard work. So, the meetings were a chance for those who do not understand what the other groups were doing a chance to ask, “Why does xxx happen?” and to get an answer without anyone feeling that they were the target of a complaint. Some of the most simple of misunderstanding were clarified and problems resolved.
In the late 1990’s, I attended with two other commissioners a law judges’ conference at West Point. The three of us asked if we could chair a panel which would be us telling the judges what we would like from them and then asking them at length what they wanted from us. But prior to that, we had dinner and a breakfast with them. We discussed issues, really more from the perspective of what the commissioners looked for in making a decision and what limitations the judges had in trying to get all the information. The one point I remember at the panel was them asking us, that when we change one of their decisions, in particular when we rescind and restore, we explain WHY! Too often, then as now, decisions are rendered that are incoherent to the judges and practitioners on both sides.
I also ‘crashed’ two education seminars in 2005: Huntington and Bear Mountain, these for attorneys run by Board staff. Judges and commissioners were not invited. It was illuminating to hear the Board staff lecture them on what ‘shall be’ and have me (for which I am renown) interrupt and clarify with some shades of gray.
If the goal of the Board is to help resolve more fairly and expeditiously cases involving injured workers COMMUNICATION IS NECESSARY!! So, a suggestion to our new regional managers: Invite the local commissioner(s) and insist that the senior law judge be there, too.
April 27, 2009
WHAT DO YOU THINK OF THE BOARD’S
NEW TRANSLATOR PROCEDURES
The Board is now using translators at all hearing, not just §32’s. In our multiple choice poll we asked, “Does the Board’s current use of translators …?” The result of this poll show that, at least on this issue, the Board is moving in the right direction, that the use of translators for all hearings:
at 55% Improves the participation of the claimant
at 27% Makes no difference for the claimant
at 23% Wastes money better spent elsewhere
at 10% Makes it more difficult for the court reporters
at 45% Other
(Please note that because this was a multiple choice, the total exceeds 100%)
There has always been a question of the degree of participation by claimants in the pursuit of their cases. But in some districts as many as 30% or more of the claimants do not understand English sufficiently to understand what is going on at the hearing which are conducted in English. [ED NOTE: In some cases, including even some English only, some claimants just do not understand regardless of the languages used.]
55% of the respondents feel that the use of translators in all hearing is better for the claimant whereas 27% feel it makes no differences. 23% felt it was a waste of money, some under the assumption that it cost more money for live translators than it did for the ones on the phone. But considering some of the other projects (and new senior staff in Albany) on which the Board expends a great deal of money, I am sure most would agree that the cost of the live translators is a small item and more than worth the value.
10% felt that it would make it more difficult for the reporters and I am sure that this assumes that the reports are live. One can only image how many would have voted this way if they got back transcripts which were done by e-reporters.
As for the OTHER at 45%, some voted only in this category and some used the multiple choice option to add extra comments. There were those who felt it did slow down the process but, unlike the limited choice posed in the poll, they felt the additional time was worthwhile - a hint perhaps against the short time limit on all the other hearings? And while their honesty is appreciated, two responded, each in their own way, resenting the fact that the use of foreign languages was allowed and/or needed at the Board. All the OTHER responses were variations on the above main themes and some with a few suggestions.
In summary, this new Board policy is viewed by most as a positive step to help claimants better understand what is happening at their hearings. Perhaps a but more time should be allowed at the other hearing for the English-speaking claimants so they, too, will be given the same allowance of time to understand what is happening.
April 27, 2009
WHAT DO YOU THINK OF THE
ARTICLES IN THE NEW YORK TIMES
While the responses to the second question in this past week’s poll was expected, it is nonetheless disturbing. To the question “Do you think that, as a result of the article, the effect on the Board will have?”, you responded:
at 57% No impact
at 26% Negative impact
at 12% Positive impact
at 5% Other: mostly specific criticisms
Whether it will be true or not, the fact that slightly more than half the respondents feel that the Board will ignore the three articles in the New York Times mirrors our earlier poll regarding the accessibility to the Chairman and his executive staff. I have used the term Oligarchic Cabal to describe the small and select yet unknown group of people who autocratically make all the decisions at the Board. The response to this poll seem to indicate that many feel the same way.
It is quite different from the days of Robert Snashall, who as chairman, told us that we were in the business of providing a service and had to be mindful of our clients: the injured workers and their employers who pay all the bills as well as the Board’s expenses. It appears that these clients and their representatives now feel that that attitude is past history.
Now to the first poll which asked, “Were the NY Times articles accurate, inaccurate, too critical, not critical enough, other?”, you responded:
at 29% Accurate but not critical enough
at 18% Not accurate and too critical
at 14% Accurate but too critical
at 14% Fair
at 11% Not accurate and not critical enough
at 7% “Too liberal” - I assume that means too pro-claimant
at 7% Other: a lot of different answers**
And taking the number for “Accurate/Not Accurate”, it was 43% accurate and 29% not accurate. As for the question was it “critical or not critical enough”, the vote was basically split.
I was once told that you know your decision is fair when everyone thinks you favored the other side. Apparently Steven Greenhouse and N.R. Kleinfield, the writers of these articles, did just that.
There were about 500 comments to the blogs on these three articles. And after excluding the 50% or so that were from angry injured workers, the results were as mixed as the poll. The most common complaint seemed to deal with the medical examiners: about 1/3 said the carrier IME’s were all ‘bad’, another 1/3 said you can’t trust the claimant doctors, and a 1/3 offered as an alternative anything from nationalized medicine to board doctors. We will have more on that shortly.
But certainly the poll shows a substantial dissatisfaction with the Board’s operations and the Oligarchic Cabal’s unwillingness to listen to anyone.
April 12, 2009
WHO SHOULD DO THE §32′S?
The results are totally unexpected, at least by me. First I will give you the numbers, and then my analysis of the answers to the question, “Now that you have experienced §32 hearings with Commissioners and Law Judges, who should continue doing them?”
at 57% The Law Judges
at 34% The Commissioners
at 4% Both should do them
at 4% No Opinion
at 1% Other: too varied and small to be meaningful
Since we have no other way to identify our poll participants, could you please let us know in which group you are?
at 41% Attorneys for claimants and a few claimants
at 23% Attorneys for carriers or self-insureds
at 22% WCB staff and law judges
at 14% Other: Other: mostly attorneys who represented both claimants and carriers and a few who did not wish to be identified
First, I can not tell you how the claimant attorneys voted, just that they participated. As to the Board Staff, after reviewing actual vote count of the Law Judges and Other Board Staff, I felt it prudent to combine these into one total: 22%
Based on all the complaints I have heard during the many occasions I have had to talk to the attorneys, I was surprised that according to the poll so many prefer the law judges do the §32’s. But this may be because I talk mostly with New York City attorneys where they suffer from substantial fee cuts, in Manhattan in particular, where some fees had been cut by as much as 80%.
One reason I feel that Law Judges are preferred is that these cases do get onto the calendars faster than those of the commissioners. Other than Manhattan served by Comm. Zinck and Queens by Comm. Henry, it is the district’s own commissioners who would do the §32s hearings and some just did not want to work so that the hearings were not held regularly. A few of the engaged commissions were willing to do them every week but Albany said ‘NO’. A few years ago I was doing two full day sessions a week (25 cases each) for a few weeks until I was told it made some other commissioners who did 25 a month look bad. So rather than ‘raising the speed limit, they put governors’ on the engaged commissioners.
Since the Board Staff and Claimant Attorneys were 63% of the voters and only 34% of all the participants voted for the Commissioners, one must assume that many of them preferred the Law Judges. Because this site requires no cookies or other ID, I do not know that any poll done here will be able to breakdown results more clearly. As for now, we trust that everyone voted in the proper the correct categories in the WHO ARE YOU question
April 5, 2009
IS THE CHAIR & HIS STAFF MORE ACCESSIBLE?
Our March 23, 2009 Poll asked: “Over the last 10 years, the WCB has made many changes in its communications with the practitioners, claimants, carriers, etc? Has access to and cooperation with the Chairman and his executive staff?
at 55% Gotten worse
at 30% Not changed significantly
at 9% Gotten better
at 6% No opinion
[NOTE: A few participants used the OTHER box to add a bit more commentary including one who wrote “significantly worse”. These ‘other’ answers were included the one of the four categories that best matched their responses.]
I guess that there is no surprise here. Unfortunately I have no way of knowing if the 6% was mostly board staff but, even if it was, my sense is that as many voted in the other categories. I know from the time I was on the Board, and this relates to the new Poll for this week on §32’s, that most of the commissioners were left out of all substantive discussions. If we did not raise the subject at our monthly pre-board, it was not mentioned. And most discussions about issues that were of concern by the commissioners were answered in such the same way as every U.S. President answers questions at a press conference: evasive.
March 29, 2009
AND THE TOP LEGAL ISSUE FOR 2009 IS …
Our March 16, 2009 Poll asked: “What will be the most important legal issue to come before the Law Judges and Commissioners in 2009?” and you said:
at 50% Medical Guidelines Regarding Classification
at 22% Voluntary Withdrawal from the Labor Market
at 21% The ATF Deposit
at 4% Rocket Docket
at 3% The closing of the 2nd Injury Fund
[NOTE: A few participants used the OTHER box to list more than one answer and those answers are included in the specific category. In addition to the four issues listed in the poll, some voters added the Rocket Docket, sometimes as a single answer and sometime adding to OTHER some of the original four issues. Each issue mentioned was considered to have a vote, i.e. a vote for [OTHER: Rocket Docket, ATF] counted as one vote for each.]
Although the carriers are very concerned with the ATF, I have assumed that the fact that there are more claimant than carrier attorneys on my e-mail list and that the Medical guidelines have impact on both sides in controverted case, this is the reason this issue is overwhelmingly the top choice. And I have a sense that the law judges also consider this a key issue, because they are the ones faced with determining the degree of disability. However, since I can not identify who is voting, this is an educated guess on my part. Unfortunately, neither the doctors, attorneys, or law judges have any medical guidelines that the new law said would be available by December 1, 2007. As I have stated on more than one occasion, it is difficult enough for the law judges and commissioners to distinguish between mild, moderate, and marked and the various combinations thereof at 25%, 33-1/3%, 50%, 66-2/3%, and 75%. Now everyone is expected to slice the bologna into 1% thin slices.
So maybe this poll will give the Board a raison d’etre to get the guidelines done. And when they do, let us all hope it is an open process and not done by the Oligarchic Cabal. Or perhaps a relatively inactive attorney (to protect themselves from retribution), supported by Amicus Curiae from all the Bars, should pursue an Article 78 and ask the Court for an injunction on any decisions that are based on a definitive finding of a classification.
March 23, 2009
BEHIND THE CLOSED DOORS
Opinions & Reports
How should the NYS Comp System
deal with undocumented workers?
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OTHER PAGES’
NEW POSTINGS
Recent Court Decisions
New Except from the BOOK
NewsWire
THIS PAGE
This week’s Opinions & Reports
How should the NYS Comp System Deal with undocumented Workers?
Prior Weeks’ Opinion & Reports
Why you’re being Fired!
Injured Workers Bar Association Meeting Jan 31, 2009
Compensation Costs: Up or Down??
Rocket Docket: Sock it to your Pocket!
Will Medicare Kill §32’s
Myth Busters TV Show
Review of the 2007 Reforms
Scodary v Serritella
Ramroop v Flexocraft Printing
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The Issue
In the NEWSWIRE page, I reference some talk coming from South Carolina that state legislators there have come up with a truly bad idea. They are proposing to reduce the Workers Compensation benefits for illegal aliens. While the bill would still have the WC system pay for medical costs for injured illegals, it would deny them disability payments.
This certainly flies the face of the intent of workers compensation which is to give not just medical but compensation to those injured on the job.
In New York State WCL§17 and years of Board decisions as well as those from the Appellate Court (see The Matter of Amaoh v Mallah Mgt, 3rd A.D. decided 10/30/18 #504220.) have affirmed the right of undocumented workers to collect both workers compensation and medical benefits if the facts in the case would have warranted those same awards and/or medical care to an American citizen or an alien with a green card.
Philosophically
The very basic concept behind the initial legislation of the workers compensation law back in 1912 was to insure injured workers replacement wages and appropriate medical care without the delay that would be occasioned by a civil suit. It is meant to insure that workers will get proper care. And the requirement that all employers have insurance is a warning that they, too, are participants in the system and be sure and insure that if they have a worker get injured that there will be money to pay that worker.
To in any way allow an employer to segregate against a class of employees by virtue of any specific indicia would allow, if not encourage, them to only hire those workers whose indicia test would mean no coverage. No coverage would mean no losses to calculate into their insurance premiums. Instead, they probably assume that the State and taxpayers would pick up all the costs resulting from the injury, or maybe a call to the INS would result in that injured worker’s native country being stuck with the bills.
What is interesting is that, as for those who feel that the decision in which I participated, Ramroop V Flexocraft Printing, discriminated against an undocumented worker, they are wrong. For the panel determined that the injured worker’s lack of interest in getting a green card was a voluntary withdrawal from the labor market; had he sought a green card the decision would have been different. Just for the record, I have always supported compensation for undocumented workers, if they meet all the other legal criteria. In December 2006 WCB#4000-9028, we found that someone who gave false ID’s to get a job and was injured did not commit fraud under WCL §114a and the injured worker was awarded compensation.
Some said that he should or could have been disqualified because he used someone else’s ID to get his job, this violating §114-a, fraud. But that is not valid either as §114-a requires that the fraudulent misrepresentation be for the purposes of collecting money on a claim. The use of a false ID does not disqualify someone from getting compensation or medical. Contrary to the carrier’s assertion of §114-a fraud, the Board Panel found none but did send it back to get an identity for the claimant so that our records for the claimant would be accurate
The fact that there may have been a misrepresentation in getting the job or opening a bank account are not issues within the jurisdiction of the WCB and thus not grounds for denying a claim.
Recommendation
The concern has been raised that undocumented workers are taking jobs away from Americans and that they, the undocumented workers, are being taken advantage of by unscrupulous employers.
In Chapter 21 ‘Other Recommendation’ in my book, Behind The Closed Doors, I have a recommendation that proposes a penalty but not on the injured work. After all many of them do not speak English and certainly would not know that there exists a law that specifically discriminate against them. But my suggestion one that goes to the heart of the matter: cost advantages to employers who hire (and underpay) illegal workers.
For example, in order to emphasize that the hiring of workers under certain ages are prohibited, WCL §14-a mandates that whatever award of compensation is made, it should be doubled, with the employer and not the carrier responsible for the additional payments to the injured worker.
I recommend we modify WCL §17 ALIENS to include a provision that if an injured worker is found to be an undocumented worker that the employer shall pay a penalty equal to the compensation awarded by the Board. But in this case, the monies should go into either the Board’s general fund, perhaps offsetting the outlays under WCL §151 or into the State’s health budget.
February 27, 2009
“Why you’re Being Fired!!”
In the SOLUTIONS page, I propose some recommendation for claimants’ attorney to make sure they get the fees that they deserve as well as some of the problems they have with those deciding what is a ‘fair’ legal fee. But this also holds true for those who resent the fees that carrier attorneys earn and the fees that honest doctors charge.
This short story, courtesy of Rick Brownell, a regular blogger for the New York Young Republican Club, Inc., explains what I think is the problem with those who have never had to meet a payroll, which usually means someone employer the public sector. Even now with the budget crisis, they prove a point I heard in business school.
When things are tough, in the private sector, they cut expenses because they cannot control their revenue. In the public sector, they don’t care about their expenses because they can control their income: with taxes and ‘fees’. After you read this, go to the SOLUTIONS page, as my explanation and recommendation will make more sense. They do not know what is or care about such stuff as overhead, costs of benefits and taxes, sacrifice, etc.
The Story
There have been some rumblings around the office about the future of this company, and more specifically, your job. As you know, the economy has changed for the worse and presents many challenges. However, the good news is this: The economy doesn’t pose a threat to your job. What does threaten your job however, is the changing political landscape in this country.
First, while it is easy to spew rhetoric that casts employers against employees. Sure, you see me park my Mercedes outside. You’ve seen my big home at last year’s Christmas party.
However, what you don’t see is the BACK STORY: I started this company 28 years ago. At that time, I lived in a 300 square foot studio apartment for 3 years. My entire living apartment was converted into an office so I could put forth 100% effort into building a company, which by the way, would eventually employ you.
My diet consisted of Ramen Pride noodles because every dollar I spent went back into this company. I drove a rusty Toyota Corolla with a defective transmission. I didn’t have time to date. I stayed home on weekends, while my friends went out drinking and partying. In fact, I was married to my business — hard work, discipline, and sacrifice. Meanwhile, my friends got jobs. They worked 40 hours a week and made a modest $50K a year and spent every dime they earned. They drove flashy cars and lived in expensive homes and wore fancy designer clothes. Instead of buying the latest hot fashion item, I was trolling through the discount store extracting any clothing item that didn’t look like it was birthed in the 70’s. My friends refinanced their mortgages and lived a life of luxury. I, however, did not. I put my time, my money, and my life into a business with a vision that eventually, some day, I too, will be able to afford these luxuries my friends supposedly had.
So, while you physically arrive at the office at 9 A.M., mentally check in at about noon, and then leave at 5 P.M., I don’t. There is no “off” button for me. When you leave the office, you are done and you have a weekend all to yourself. I unfortunately do not have the freedom. I eat and breathe this company every minute of the day. There is no rest. There is no weekend. There is no happy hour. Every day this business is attached to my hip like a 1 year old special-needs child. You, of course, only see the fruits of that garden — the nice house, the Mercedes, the vacations… you never realize the Back Story and the sacrifices I’ve made.
Now, the economy is falling apart and I, the guy that made all the right decisions and saved his money, have to bail out all the people who didn’t. The people that overspent their paychecks suddenly feel entitled to the same luxuries that I earned and sacrificed a decade of my life for.
Yes, business ownership has its benefits, but the price I’ve paid is steep and not without wounds. Unfortunately, the cost of running this business, and employing you, is starting to eclipse the threshold of marginal benefit and let me tell you why:
I am being taxed to death and the government thinks I don’t pay enough. I have state taxes. Federal taxes. Property taxes. Sales and use taxes. Payroll taxes. Workers compensation taxes. Unemployment taxes. Taxes on taxes. I have to hire a tax man to manage all these taxes and then guess what? I have to pay taxes for employing him. Government mandates and regulations and all the accounting that goes with it, now occupy most of my time. On Oct 15th, I wrote a check to the US Treasury for $288,000 for quarterly taxes. You know what my “stimulus” check was? Zero.. Nada. Zilch. The question I have is this: Who is stimulating the economy? Me, the guy who has provided 14 people good paying jobs and serves over 2,200,000 people per year with a flourishing business? Or, the single mother sitting at home pregnant with her fourth child waiting for her next welfare check? Obviously, government feels the latter is the economic stimulus of this country.
The fact is, if I deducted (Read: Stole) 50% of your paycheck you’d quit and you wouldn’t work here. I agree, which is why your job is in jeopardy. Here is what many of you don’t understand … to stimulate the economy you need to stimulate what runs the economy. Had suddenly government mandated to me that I didn’t need to pay taxes, guess what? Instead of depositing that $288,000 into the Washington black hole, I would have spent it, hired more employees, and generated substantial economic growth. My employees would have enjoyed the wealth of that tax cut in the form of promotions and better salaries.
Business is at the heart of America as it has always been. To restart it, you must stimulate it, not kill it. The power brokers in Washington believe the poor of America are the essential drivers of the American economic engine. Nothing could be further from the truth and this is the type of change you can keep. So where am I going with all this? It’s quite simple.
If any new taxes are levied on me, or my company, my reaction will be swift and simple. I’ll fire you. I’ll fire your co-workers. You can then plead with the government to pay for your mortgage, your SUV, and your child’s future. Frankly, it isn’t my problem any more.
Then, I will close this company down, move to another country, and retire. You see, I’m done. I’m done with a country that penalizes the productive and gives to the unproductive. My motivation to work and to provide jobs will be destroyed, and with it, will be my citizenship.
So, if you lose your job, it won’t be at the hands of the economy; it will be at the hands of a political hurricane that swept through this country, steamrolled the constitution, and will have changed its landscape forever. If that happens, you can find me sitting on a beach, retired, and with no employees to worry about…..
Now go to the SOLUTIONS page…
February 20, 2009
Injured Workers Bar Association
I would like to thank all those who attended both the Friday night dinner and the Saturday CLE Series for such a warm welcome and in particular a thanks to President Barbara Levine, Vice-President Erin McCabe, and speaker Ron Balter.
It was a real pleasure to have such open conversation with the members of the claimants’ bar and to be able to give them honest answers to their questions. While as a commissioner I had occasions to speak to some of the attorneys (on both sides) between hearings, time was always limited and there was always the concern that one of my colleagues would complain that I was ‘talking too much’ to “them”. It was nice not to have a time limit or an observer.
Yes, there were a few questions about who was Commissioner X in my book, which I would not a answer but their “Is it ..?” seemed to indicate that they knew the commissioners as well as did I.
Over the next few weeks I will attempt to answer some of the questions that were raised but a few observations are in order, in no particular order.
Ron Blater’s CLE lecture was an analysis of the 2008 Court of Appeals and Appellate Court decisions. While I was not at the Board for the pre-board analysis of the 2008 decisions usually given by a member of the staff from the Office of the General Counsel of the NYS WCB, I was there for all the prior years and I observed that the emphasis and interpretation by Balter was quite different from that of the WCB. While the General Counsel’s representative’s interpretation was on the purely legal perspectives, Balter’s discussion emphasized the potential impact of the decision on strategies for the workers bar as well as an attempt to divine the direction in which the Board was heading. As the author of some of the key decisions covered in the lecture, it was interesting to see how their interpretation differed from that of mine and my colleagues who actually participated in drafting those decisions. But then again, it was also quite often that the General Counsel’s representative’s interpretation of the Board’s decision was at odds with what the panel who write that decision was intending to do.
It would be a great service to all parties if, in January of 2010, Balter were to be joined by someone from the Office of the General Counsel’s office as well as a member of the carriers’ bar to give their respective interpretation of the major 2009 cases. And, if course, I would be pleased to moderate.
Which goes to my second observation. When I first came to the Board, I was informed that my work as a commissioner was to adjudicate cases between two adversaries: the claimants and the carriers. That seems to have changed; the attorneys last week gave me the same impression that attorneys from both sides had been giving me in the last two years or so at the Board. The claimants and carriers are no longer the adversaries. They are on one side and their adversary is on the other: The Workers Compensation Board.
I am quite sure, that this is simply the result of lack of communications and a frustration by some at the Board for how long some changes take. But tweaking a system that has been in place for nearly 100 years is not easy. There are as many precedents for the procedures that have been in place as there are for the laws and decisions but the history of the procedures is not documented. Hence TALKING with some of the people who have been involved in the system for years is essential.
For example, consider fees. Is there a single document that explains from where the additional $100 added to Lump Sum Settlements in New York City was derived, as it was not at one time applied upstate. And how the 10% figure was derived ast the basic fee on Lump Sums?
Four years, each panel of three commissioners had an ‘A’, ‘B’, and ‘C’ member but a few years ago when I looked into the reasons for that, it was dropped. But this change in procedure as to how document were prepared for the commissioners’ review was done not with the upper management but with middle level staff and completed without anyone at Park Street noticing the change. It was based on the old paper-based system but was made obsolete when we went to the paper-less system.
There are people at the middle staff level who have been there for years, many having received awards for their 25, 30, or more years of service. Yet when it comes time to make changes, no one asks them why procedures were the way they were.
This open communication can only come in open meetings. Plus some of the staff who actually do the work, as compared to most of those in Albany who have never been in a hearing part or processed a claim, can make far better recommendations as to how to fix the system. And while it is true that many of these in the middle staff do not have MBA’s, PhD’s, JD’s or even BA’s, this does not mean they are not as knowledgeable in their areas of specialty as are the great minds at 20 Park Street
Aside from fees, the second biggest concern dealt with the lack of decisions being issues by the Board that were consistent on legal and procedural issues. Of course, one does not need to go to a dinner or conference to learn that the occasionally incoherent and often inconsistent decisions are a concern, but many of the participants find it difficult to plan their strategies and offer advice to their clients when they feel they are rolling the dice on a decision by a law judge, panel of commissioners, or a full board review.
When I raised the issue of indicia tables, a point I have often made in this web site and in several places in my book, Behind The Closed Doors, and gave out one sample indicia table to the attendees, I was asked by many if I could give them copies of all the tables I have developed. While they recognize that we may have different opinions on shades of gray, they feel it is important on key legal and some medical issues that everyone have a common frame of reference. There is no reason that this can not be done and I have already given specific recommendations how it can be done.
I spent several hours at the dinner and the conference the next morning and will in the coming weeks discuss more of the issues, including making some recommendations on legal fees.
It was most disappointing to notice that no one from the Board was in attendance, either formally or informally. They would have learnt a great from the meeting and I am sure that all those in attendance would have appreciated some sort of demonstration of an interest in their needs as they are equal partners in the New York State Workers Compensation system.
February 5, 2009
COMP COSTS: UP OR DOWN?
In my review of the 2008 Annual Report from the WCB, I questioned the accuracy of their conclusion that compensation insurance rates for the prior year had been reduced. Recent news articles support that question as substantial underfunding by trusts and self-insureds seems to be the result of miscalculating the rates.
The now closed self-insured trust manager CRM’s questions allegations regarding underfunding of its trusts. Details of this matter are covered in the complaint filed in the Supreme Court of the State of New York, Erie County, against CRM by the Wholesale Retail Workers’ Compensation Trust of New York which claims it had a $19 million deficit as of September 30, 2007.
Last month, The Buffalo News opened a story with the line “If it sounds too good to be true, it probably is.” The story continued, “That axiom is proving painfully accurate for thousands of small-to medium-sized employers across New York State — including the village governments of Lancaster, Kenmore and Sloan — who suddenly find themselves paying dearly for choosing the wrong insurer to handle their workers’ compensation needs. All three unknowingly joined a financially troubled group self-insured trust, thinking it would save a significant amount of money.”it probably is.”
A review showed that these three small communities were underfunded by bills ranging from $3,000 to $31,684, and upstate Plattsburgh has been ordered to pay $186,000.
Over the past two years, 12 of 63 group self-insured trusts operating in New York State have failed due to the methods by which they calculated their future exposure and resulting assessments. The state is currently conducting forensic audits on all 12 failed trusts, which left liabilities totaling more than $360 million against assets of $53 million. This amounts to a shortfall in premiums of $307,000,000 assuming that the assets can be recovered at their book value and that they were not invested with Bernie Madoff, Long Island’s Nicholas Cosmo, or the many other investor gurus making the news these days.
The WCB has stepped in to protect injured workers, so that claims could continue to be paid. But even if the losses are the $307,000,000 initially calculated, from where will these funds come?
They will come from the carriers who in turn will collect it from their clients, the companies who pay workers compensation insurance. So call it what you may. The rates will go up by a minimum of $305,000,000 just for this situation.
It will be interesting to see how this issue of ‘lower’ rates is treated in the future while at the same time rates are increased to cover the short fall allegedly created by these trusts.
But CRM is not the only firm who managed self-insured trusts. And there were many firms, such as Verizon, Con Edison, and General Motors, who were also self-insured and supposed to have set aside funds to cover anticipated claims.
According to the statistics provided by the Workers Compensation Board in its 2007 annual report 18% of the claims submitted in 2007were covered by private-sector self insured/trusts and 16% by public-sector self-insured/trusts. Has anyone looked to see if these are all financially secure? Which raises another question? Who was looking then and now?
But this financial impact is not just limited to those members of these failed trusts. There are additional expenses to be incurred by the remaining trusts and self-insureds, who account of 35.8% of the coverage.
In its January 29, 2009 press release, Financial Week’s Roberto Ceniceros reports that those self-insureds that in the past had been required to put up various financial instruments to meet the WCB’s financial requirements for being self-insured are finding that they now have less options.
“Typically, state regulators require employers to post bonds, letters of credit, securities or cash as collateral to self-insure their workers comp obligations. But now bond insurers are asking some employers to post more collateral just to secure the bonds, insurers and brokers said. Surety contracts often allow insurers to call for additional collateral to secure their bonds during the contract term.”
The article quotes Pam Ferrandino, executive vice president and casualty practice leader for Willis HRH in New York, stating, “Internal discussions about the rising cost of collateral have joined discussions about the cost of purchasing insurance when companies weigh whether to self-insure workers comp and some are holding off on doing so.”
I was recently informed, off the record, by an attorney that one of New York State’s biggest self-insured employers has decided to drop its self-insurance programs and to purchase its coverage from one of the big carriers. Whether this was done to save them money or, because of the current liquidity crisis, they could not put up enough collateral to qualify as self-insured remains to be seen.
But the statement that rates have gone down is only true if you do not consider all the underfunded trusts and self-insured, including those yet to be uncovered.
January 29, 2009
Opinions & Reports
Rocket Docket
“Sock It To The Pocket”
When I first met Zachary Weiss in the summer of 2007, he came to the Board in his official capacity as a member of the study group established by Governor Spitzer to determine how best to improve the adjudicative process at the WCB.
He and I sat together in some of the hearings parts in Brooklyn and then after he spoke at length to Brooklyn Senior Law Judge Mark Solomon to discuss hearing procedures, the three of us went to lunch to discuss these subjects in further detail.
One of the key problems that he recognized was that many hearing were held to collect facts that should have been in the WCB files before the case had its first hearings. This was an issue that was also close to the heart of a number of the ‘engaged’ commissioners who were being asked to review recommended Memorandum of Decisions or hear oral arguments in which basic facts were missing because no one had to submit them in order to file an appeal, let alone get a hearing in the first place.
My book, Behind The Closed Doors, has two chapters devoted to this subject: Chapter 15 “Consistency versus Speed - The Problem” and Chapter 16: “Consistency Versus Speed - The Solution” and the many failed attempts to fix this problem that the ‘engaged’ commissioners suffered through. The arrival of Chairman Weiss was we what had hoped would be the “light at the end of the tunnel!”
Shortly after his appointment as Chairman of the Board, recommendations were made to change some of the initial documents used to start a claim (C-2, C-3, C-7) as well as those needed to continue the resolution of further casually related disability, such as the C-4.
These new forms and changes in procedure were announced under the code name “Rocket Docket”.
However, as I often do when the Board sets forth new policies, I again must quote John Rummel:
“In theory, theory and practice are the same but in practice they are not.”
In the twelve years I served at the Board I have never seen a set of regulations subject to so many ‘discussions’, blog entries, and the topic of lectures at so many conferences, including the New York Self Insurers Association meeting being held this week and the Injured Bar Association meeting being held at the end of January (details in the Newswire).
Next week’s column on this page will be devoted to a review of the Rocket Docket and some of the issues raised by both the claimants’ and carriers’ bar from the perspective of someone who was inside the system for 12 years and, unlike many of those who were involved in developing the Rocket Docket, was actually was involved in making decisions about cases, thus understanding the difference between policy and practice.
To help me more fully address your specific concerns, I would appreciate any comments, complaints, or recommendation from all those who visit this site. They can be sentby e-mail to me or can be submitted as a comment.
Whether your concern be the allegations that it is examiners now making medical determinations once reserved only for law judges or that the new procedures place an unfair burden on one of the parties or that the procedures are being used to cut attorney fees, I would like to hear from you.
Your comments will NOT appear on the web pages until after they have been reviewed by me. While your comment will show whatever name you wish to use, it will not show your e-mail address; I will not only delete your e-mail address from the posting but I will delete it from my own editing files. I am not interested in who you are nor why you are participating in my planned review as long as your comment is coherent and helps move the discussion along.
Chairman Weiss recognized that changes need to be made, changes that had been fought for by a few of the ‘engaged’ commissioners and a few members of the staff, not so that we would have better statistics with which to impress the Governor or State Legislature or the media or to “lord over our predecessors” but changes that would speed up the system without sacrificing fairness and consistency.
I look forward to your input.
January 15, 2009
Opinions & Reports
Medicare Offsets
The secret dagger at the heart of §32’s
Because of the Board’s failure, inability, or lack of interest in properly addressing the issue of Medicare offsets as they pertain to §32 settlements, Medicare can effectively stop most of the proposed settlements.
Because a claimant could come under coverage Medicare, either at the time of the agreement or shortly thereafter, no carrier or claimant will enter into a §32 without the express written consent of Medicare, by asking Medicare to determine how much of the settlement must be set aside for medical expenses pursuant to Title 42 Chapter IV Part 411 “Exclusions from Medicare and Limitations on Medicare Payment”. The failure to get such set-asides and approval from Medicare can result in not only financial losses to the claimant but also substantive penalties to the attorneys on both sides of the settlement.
The problem is the manner in which the offset is calculated. Too high an offset and the net cash moving to the claimant becomes negligible and the agreement not worth accepting. The true fiction of the offset is that, in the vast majority of the cases, the money is given to the claimant with the understanding that the claimant will open up a separate bank account, sort of an escrow account, from which the appropriate future medical expenses be deducted. To understand what this means, one only need look at the back page of the C-22 form used for Lump Sum Settlements under §15 (5)b. The question asks what will the claimant be doing with the money. They invariably write, “Put it into a saving/checking account.” Of course they will as that is a lot cheaper than cashing it at a check cashing service. But there is nothing that asks, “And for how long will you keep it in that account?” For every claimant who understands the concept of set-aside and undertakes the steps necessary to open up such an account, there is another who does not understand or care about the set-asides. And, of those who do set up separate accounts but did not use the money for two or three years, how many would continue to maintain the account?
Another problem is that the amount of the set-aside is often arbitrary and capricious.
If the money were required to be set-aside into an account managed by a third party, which some settlements require, then the claimant would know what is the net amount of cash being offered in lieu of future compensation. A specific case I had several years ago illustrates this.
The gross settlement was $65,000 with a $6,500 legal fee leaving a net of $59,500. Medicare requested and the parties agreed to a set-aside of $58,800, leaving the grand total of $700 as settlement for any future claims for compensation. As there was no requirement to segregate the funds, the claimant pictured only the entirety of the $59,500. Had he been required to put this $58,800 set-aside into a separate escrow account, managed by a third party and was told that he would be getting a check for only $700, he would not have accepted the settlement.
But assume he was willing to accept this offer and take just the $700. There is nothing in the law which requires that his medical providers, once he has opted out of the Workers Compensation system, charge the claimant the rate schedule set in WCL §13. In fact, it is likely that all the providers would charge the much higher ‘market rate’.
Which then raises the question of “From where was the $58,800 medical offset derived?”
If Medicare uses the rates in WCL §13 but the providers do not, it is likely that the account will run out much faster than anticipated by Medicare such that Medicare will be picking up the cost of future medical care much sooner than anticipated. If Medicare uses another set of rates which represent the fair market value of what the claimant would be expected to pay for his future medical treatment, the claimant would be shortchanged in the amount of the set-aside. If the claimant was getting treatment twice a week at $300 per visit per WCL §13, his $58,800 would pay for 98 weeks of treatment. But if the market rate in which Medicare based their set-aside was $900 per visit, he would treatment for only 32 weeks.
If he was getting even as little as the current minimum of $40 a week in benefits, the Compensation portion of his settlement, the $700, would run out in 18 weeks. Thus after 18 weeks he would have used up the compensation portion of his settlement and, in just under two years, the medical component of his settlement.
But in the case referenced above, a review of the calculations used by Medicare to determine the offset was quite interesting, if not remarkable. The claim had been established for bi-lateral carpal tunnel syndrome. And the first item listed as future medical expenses was the treatment for CTS or which, let us say, $10,000 as set aside. (Individual treatment numbers are made up here but not the total or the treatments.) But the schedule then anticipated consequential medical problem with both elbows: $10,000. And once the elbows were problematic, the two shoulders followed: $15,000, to be followed by a severe cervical condition, another $15,000. But shoulder and neck problem always effect the upper back so the consequential medical conditions and related expenses added another $8,800 to the set-aside, for a total of $58,800.
Since under Part 411, Medicare and the Federal government are responsible for picking up portion of this claimant’s future medical expenses, once the set-aside has been exhausted, it only makes sense for them to set aside as large as amount as possible. And, as in this case, an extraordinary extrapolation into the future could result in virtually 100% of the settlement being allocated to the set-aside.
The next step would be for Medicare to then insist that all these set-asides be put into third-party managed escrow accounts. A recognition of the profit making potential by bank, insurance companies, and other yet-to-be-formed companies would certainly have the leverage in Congress and definitely in the NYS legislature to make such a requirement fit into some future piece of legislation.
The result would be that Medicare, by the use of rather loose extrapolations of future medical exposure combined with the need for third-party escrow, would effectively cut the actual cash moving to the claimant for these proposed settlements to one or two years worth of compensation. As a result, any claimant who was classified would either have minimal incentive to take a settlement or the cost to the carriers would be substantially increased as Medicare marched in lockstep beside them to ‘set-aside’ whatever increasing settlement were being proffered.
[Note: This is basically the same presentation I made to Chairman Weiss by e-mail in November 2007.]
January 8, 2009
Opinions & Reports
Myth Busters & the Brick Layer
This week Myth Busters, the TV show on Discovery Channel in which they do experiments to which which myths are true and which are false, did an experiment to see if the following story could be true.
Dear Sir:
I am writing in response to your request for additional information in block 3 of the accident report form. I put “poor planning” as the cause of my accident. You asked for a fuller explanation and I trust the following details will be sufficient.
I am a bricklayer by trade. On the day of the accident, I was working alone on the roof of a six story building. When I completed my work, I found I had some bricks left over which, when weighed later were found to be slightly in excess of 500 lbs. Rather than carry the bricks down by hand, I decided to lower them in a barrel by using a pulley which was attached to the side of the building at the sixth floor. Securing the rope at ground level, I went up to the roof, swung the barrel out and loaded the bricks into it. Then, I went down and untied the rope, holding it tightly to ensure a slow descent of the bricks. You will note in block 11 of the accident report form that my weight is 135 lbs.
Due to my surprise at being jerked off the ground so suddenly, I lost my presence of mind and forgot to let go of the rope. Needless to say, I proceeded at a rapid rate up the side of the building. In the vicinity of the third floor, I met the barrel which was now proceeding downward at an equally impressive speed. This explains the fractured skull, minor abrasions and the broken collarbone, as listed in section 3 of the accident report form.
Slowed only slightly, I continued my rapid ascent, not stopping until the fingers of my right hand were two knuckles deep into the pulley. Fortunately by this time I had regained my presence of mind and was able to hold tightly to the rope, in spite of the excruciating pain as I now was beginning to experience.
At approximately the same time, however, the barrel of bricks hit the ground and the bottom fell out of the barrel. Now devoid of the weight of the bricks, that barrel weighed approximately 50 lbs. I refer you again to my weight.
As you might imagine, I began a rapid descent, down the side of the building. In the vicinity of the third floor, I met the barrel coming up.
This accounts for the two fractured ankles, broken tooth and severe lacerations of my legs and lower body. Here my luck began to change slightly. The encounter with the barrel seemed to slow me enough to lessen my injuries when I fell into the pile of bricks and fortunately only three vertebrae were cracked.
I am sorry to report, however, as I lay there on the pile of bricks, in pain, unable to move, I again lost my composure and presence of mind and let go of the rope and I lay there watching the empty barrel begin its journey back onto me. This explains the two broken legs.
Well, they did a test with a wood barrel of bricks and a dummy and ……. it did not work.
But they then filled up the entire barrel with bricks and put a block of wood on the ground where the barrel would hit. It not only worked but it was as funny to see as it was the first time to read it.
Happy Holidays
Opinions & Reports
Our Review of the WCB’s 2008 Report on Reform
The New York State Workers Compensation Board has just issued a report submitted by Chairman Zachary Weiss entitled, “The Impact of Reform on the New York State Workers’ Compensation System”, dated December 2008.
While all the information in this 13-page report is correct and accurate, it does not fully report on the entirety of the impact the recent reforms have on the system and ignore some major future problems.
Benefits for Inured Workers Increased for the first time in over a Decade
This section does not include the offset that was demanded by employers in exchange for these legitimate increases. There are now time limits for how long a claimant can collect benefits in certain categories of cases. And this is where there will be major problems that in the near future will fill up the system with large number of controverted cases.
First, where as in the past claimants wanted their injuries to be classified as soon as possible so they could collect continuing compensation without the need for ongoing medical examinations and with minimal challenges to their continuing collection of these benefits, claimants will now seek to delay such determinations in order to push further out into the future the time limits that come with classification.
Second, the degree of classification in incremental classes of 5% to 10% will cause additional controversy as each step up by 5% or 10% will mean a longer time limit before benefits are stopped. It has been difficult enough over the years to determine is a claimant has a moderate (called 50% but ranging from ±42% to ±57%) or a ‘moderate/marked’ (66-2/3% but ranging from ± 57% to ±70%). For someone whose maximum rate under the new benefits could be $600 next year, each additional 1% increase is worth $6.00 a week tax free. Thus a moderate degree which can range from ± 42% to ±57% could have a variance of $78.00 a week. But under the new reforms, the claimant who is set at 49% would get $88,200 ($600 x 49% x 300 weeks maximum) as compared to a claimant classified with a 51% disability who would get an additional 21.4% in compensation for his extra 2% disability: $107,100 ($600 x 51% x 350 weeks maximum). This is a difference of $18,900 for a 2% difference in degree of disability.
And even if the law judges and commissioners are told that any degree of disability that is close to a higher level automatically should be rated at the higher level, i.e. we will never then see a 47%-50% disability again, the carriers will fight for the 2% or 3% lower degree of disability.
Those of us, the commissioners and judges have been involved in trying to settlement these disputes when we have the two parties in front of us rather than a stack of cold paper reports or a computer screen, know that this is very difficult, slicing the ‘bologna’ into 1% thin slices.
Third, as noted in Chapter 20 “Medical Doctors’ Understanding” in the book Behind The Closed Doors, there is a great deal of flexibility in making theses qualitative judgments. And the 1996 Medical Guidelines, all the WCB still has to this day, will not make it any easier. Would it at all be surprising if some doctors decide to drop out of the system rather than “being subject to cross examination which would put Sam Waterston of Law & Order to Shame”? (Page 228, Chapter 20).
EMPLOYER COSTS REDUCED
Is there any possibility that the rates were lower because a number of firms, particularly a number of self-insured trusts did not charge/collect enough money to cover their projected costs? And now the rest for the industry will have to pay more to insure that there is enough money to pay the claims from these now apparently defunct self-insured trusts?
CLAIM PROCEDURES WERE STREAMLINED
The design of some new forms highlighted in this report insures that more information is available at the beginning of the case history and not developed after several hearings and adjournments. Chairman Weiss has been very effective in getting some of these adopted. One such issue dealt with Prima Facie Medical Evidence in which some commissioners, trying to enforce some basic information requirements on this issue, found themselves at odds with the powers-that-be. Chapter15 “Consistency Versus Speed – The Problem” in Behind The Closed Doors lists a number of such issues, some of which still remain to be resolved.
That cases are being done faster is correct, too. Not only are the writers who prepared the proposed decision doing their work faster, a number of commissioners, referenced as ‘insouciants’ in Behind The Closed Doors have helped the process by signing their cases as quickly as they can, saving time by not reading them. That the quality of draftsmanship and legal thinking in some of these decision leave a lot to be desired is of secondary importance in ‘getting them done’. The Board’s statistics indicate how fast cases are done. Other than The Insider’s own records, there is nothing that indicates how many of these ‘done-faster’ decisions would have been rejected by the engaged commissioners if it were they and not the ‘insouciants’ who were getting them, cases that should have been rejected for reasons ranging from really bad spelling to just basically incorrect interpretation of the law.
SELF-INSURANCE
A point not mentioned in the report is that one reason the now bankrupt self-insured trusts were able to stay in business so long is that they did not pay medical bills approved by the WCB. How many of the ‘solvent’ self-insured employer also have large liabilities, most likely NOT yet on their books, when they stall payments by 60 or 90 days or even a year? My own experience was that, when doctors learned I was a commissioner, they would ask me what I could do to help them get bills paid that were long since approved. by the WCB. The HP-1’s were just another paper form ignored by these self-insured. And the 2007 amendment requires doctors go to civil court. Why don’t the WCB and the Department of Insurance step in, too, before it is too late?
SUMMARY
Chairman Weiss and some of his new managers are working quite hard to improve the system and I am pleased to see these changes, long wished for by the engaged commissioners. In fact, the greater use of in-person translators at hearing will go along way to making the Board more humane in its treatment of the injured workers and help offset some of the criticisms garnered by its use of raw statistic to ‘get things done faster’.
Time will tell and I, like all the practitioners, and the WCB staff, wait to see how well Chairman Weiss’ initiatives work out.
Click here for the full text of the report. . .
Opinions & Reports
From the perspective of a former commissioner who participated in over 40,000 decisions and the drafting of several affirmed by both the Court of Appeals and the New York Supreme Court, Appellate Division, Third Judicial Department, The Insider offers a unique interpretation of recent court decisions as well as key Memorandum of Decisions issued by the Board and the possible impact on future Board decisions. The fact that decisions are made by a panel of three commissioners does mean that different panels could have different interpretations on the same issues and all the commissioner could disagree with the opinions of The Insider.
A running Commentary - December 12, 2008
Scodary v Serritella (Decided 11/20/08)
&
Van Dam v New Paltz Schoold District (Decided 12/20/07)
In the December 4, 2008 E-Mail Alert and the comments in the Newswire, I noted that the Scodary case was a noteworthy case because the Court reversed Board on this exact same issue in December 2007 in the Matter of Van Dam.
I have now received a number of e-mails on this subject. One writer opined correctly that,
“Scodary, however, dealt with psychologists, and did not distinguish between Board-authorized and non-authorized providers, but referred specifically to the provision in §13(m) that all psychologists must be referred by a physician. The Appellate Division did reach an analogous conclusion, that psychologists’ reports can be introduced as evidence without a referral notwithstanding that the provider cannot receive payment, but the rationale was not interference with the claimant’s right to select a provider. Scodary was a reversal of the Board, but not a duplicate reversal, and in fact represented a substantial deviation from longstanding unchallenged past practice.”
The above writer is correct on one key point.
Scodary referenced §13-m (2)(a) which states that that all psychologists must be referred by a physician. Van Dam referenced §13-b (1) which states that “no person shall render medical care or conduct independent medical examination …with authorization of the chair.” So this writer is correct in the sense that while these are two reversals, they are not on the identical issue.
But equally important is that in both cases the Court ruled that these specific sub-sections of the law which they have cited only mean that, if an exam is not properly authorized, the carrier need not pay for the cost of the exams but that the reports themselves are nonetheless valid and can be used by the law judge in making a determination.
Which bring me back to a position cited in Behind The Closed Doors. The law judges, whose output is measured as if they were production line workers, may not have the luxury of time to check out the entirety of every Appellate Court decision and every MoD issued by the Board, why isn’t there someone at the Office of the General Counsel or the Admistrative Review Bureau (formerly the Office of Appeals) who bring key cases to the attention of all the judges, commissioners, and writers? Yes, there are some districts who do have periodic meeting to discuss cases and distribute paper copies. But in a paperless world in which the Board now operates, under the time pressure to ‘perform’ as are the judges, no one can be expected to look through piles of papers to find a recent decision, assuming that they remember that there was one on the subject o which they are working. Why does everyone have to wait for Lexis Nexis to publish these cases (Appellate decisions as well as MoDs) in order for everyone to have access to key decisions?
To lay the blame at any of the attorney’s, the judges, commissioners, or even individual writers is not the answer. I proposed an answer in Chapter 16 of Behind The Closed Doors , “Consistency versus Speed – The Solution”, in which there are specific recommendation which if instituted would more than likely have avoided the Scodary reversal. And one solution is the Newswire in this website which highlights key Appellate Court decisions.
Opinions & Reports
From the perspective of a former commissioner who participated in over 40,000 decisions and the drafting of several affirmed by both the Court of Appeals and the New York Supreme Court, Appellate Division, Third Judicial Department, The Insider offers a unique interpretation of recent court decisions as well as key Memorandum of Decisions issued by the Board and the possible impact on future Board decisions. The fact that decisions are made by a panel of three commissioners does mean that different panels could have different interpretations on the same issues and all the commissioner could disagree with the opinions of The Insider.
Ronnie Ramroop v FlexoCraft Printing
Do undocumented workers qualify for continuing awards?
Note: The October 30, 2008 Appellate Court’s decision #504220 in Amah v Mallah Management confirms The Insider position that undocumented workers can qualify for compensation, citing Ramroop in its opinion. But as noted below that was not the issue in Ramroop.
As one of the authors of the Ramroop v Flexo-Craft Printing decision affirmed by the Court of Appeals on June 26, 2008, I am fascinated by the varying interpretations given to the case by the parties of interest as well as the interested parties. Because of the nature of the issue, the Board Panel (Commissioners Bargnesi, Berns, and Henry) worked carefully with the WCB’s legal staff to insure that the final decision would be sustained on appeal to the Courts.
The interesting point, however, is that, in The Insider’s opinion, neither the Court of Appeals nor the Appellate Court seemed to understand the reason the Insider in particular rejected the claim for continuing benefits. The basic issue at the original law judge’s hearing that was whether or not Ramroop, whose claim for a 1995 work-place injury was established, was qualified to continue to receive replacement wages (compensation) after 2002, when he claimed that his injuries continued to effect his ability to earn the same wages as before his injury. The fact that the claimant was an undocumented alien was not a consideration in the decision as every Commissioner at one time or another has signed a decision to establish cases for and award benefits and medical care to undocumented aliens.
The Insider’s position was that the claimant’s case was better seen from the perspective of a voluntary withdrawal for the labor market. The fact that the claimant did not qualify for Vesid because of the lack of working papers was compounded by the fact that the claimant acknowledged that he made to no attempt to seek working papers, before or after the injury. All workers in New York State are covered by workers’ compensation, a no-fault guarantee of medical care and wage replacement. Aliens, regardless of immigration status, and citizens alike have the right to workers compensation benefits. (See matter of Testa v. Sorrento Restaurant, Inc. (Tagminco Corp.), 10 A.D.2d 133, 197 N.Y.S.2d 560 (3d Dept. 1960), lv. denied, 8 N.Y.2d 705, 201 N.Y.S.2d 1025, 167 N.E.2d 650 (1960)).
As a matter of precedent, the one attempt to raise the federal Immigration Reform and Control Act (IRCA) as interpreted by the Unites State Supreme Court in Hoffman Plastic Compounds v NLRB (535 US137 [2002]) as a bar to benefits was addressed by the WCB in April 2005 in WCB# 4030-9563 Excel Recycling Corp in which the carrier appealed the award of WC benefits to an illegal alien on the grounds that the federal Immigration Reform and Control Act (IRCA) as interpreted by the Unites State Supreme Court in Hoffman Plastic Compounds v NLRB (535 US137 [2002]) preempts the WCB policy of disregarding an employee’s illegal status when making awards.
Actually, contrary to the carrier’s stated position, it is not the WCB policy; it is the WC Law §17 which requires this. However, the A.D. did not rule on this issue but instead accepted the Board’s rebuttal that since the issue was not raised at the hearing in question the Board was within its right to refuse to consider the appeal. As such, through the date of this decision entered July 27, 2006, the A.D. has not addressed the issue of the relationship between WCL §17 and IRCA.
Had the claimant attempted to seek working papers, there could have been three outcomes. First, had he been approved for working papers, he could possibly have qualified for Vesid. Second, the approval could still have been pending, in which case it is possible that the Panel would have held awards in abeyance pending the approval/denial. Third, he could have been denied working papers in which case he could have sought jobs and/or training through programs that did not require documents, programs for which there are many in New York State. And had he submitted such a list to prove his attempt to seek work, he may have been granted compensation.
The Insider’s position in this case is that the decision does not bar future benefits, only those sought up to the time of the original Law Judge hearing on which the appeal to the Board was based. If, after that date, the claimant either seeks to qualify for working papers or seeks job training elsewhere, and/or gets a lower paying job, lower paying due to this injury, he could return to the Board and very likely get compensation. It is important to note that had the Board Panel on this decision been different, so could have been the decision, just as any future decisions on this claimant or any other injured worker could vary depending on the three commissioners assigned to participate in it.
Unfortunately, while the Board Panel based its decision on the claimant’s failure to meet the standard for returning to the workplace, both sides of the case, including those who filed Amicus Curiae, sought to make this a major political fight on the issue of illegal immigration. It is the Insider’s opinion that everyone was so busy fighting for the ‘forest’, they let one of the ‘trees’ get cut down.
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