COMMENTARY & REPORTS

ON OUR OTHER PAGES

► This week’s Appellate Court decisions

►Commissioner Bios September updates

PRIOR COMMENTARY

► Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The Insider’s Recommendations to Improve Board Procedures

►Eliminating Oral Arguments: A MAP or a PIG?

►A Reader’s Opinion of the Appellate Court, Third Department

►The Quality of WC Board Decisions Reviewed in 2009 by the Courts

►Answers to Your E-Mails

►Legals Fees On Medical Expenses?

►Project 2015: The end of the WCB Board

►The New Medical Guidelines(?!)

►The Appellate Court’s Split Decision

►Comp Board Blocks “The Insider” as Spam!

►Part III: More Comments on “bench briefs” - unedited

►Part II: Reader Comments on “bench briefs

►Reader Comments on “bench briefs”

►Should the Board present “bench briefs” [pro and con opinions] to panels??

►Who’s Left to Sign Decisions?

►The Legacy of Zach Weiss

►Judicial Economy vs Judicial Integrity

►A Guest Commentary on Board Doctors

►Mirror Mirror on the Wall! Who’s the Fairest Doctor of them all?

►Who wins the most appeals: Claimants or Carriers

►LEGAL FEES: What’s fair, history, Can Bd set fees, etc?

►Legal Reasoning vs Intuition

►How do get paid on medical bills with the HP-1J

►Who actually decides the decisions?

►Rebuttals: a waste of time?

To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, injured workers, court decisions, or any other subject, if you have one you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com.

Two Guest Letters/Editorials

May 21, 2010: I am quite pleased to publish two letters from two well-known workers compensation attorneys on issues relating to the Board’s administrative announcements.

My first guest COMMENTARY is from Roslyn Sackel, partner at Sawers & Sackel, a Hamburg NY firm specializing in representing injured workers. In her letter which was published May 14, 2010 in the Buffalo News, Ms. Sackel explains why the plan of the Workers Comp Board to move its Buffalo office from the Cyclorama Building to Ellicott Square makes no sense financially, but more importantly, why it will negatively impact on injured workers who need to go to the Buffalo office. In our COMMENTARY page, we reprint the entire letter, not just the edited version posted in the Buffalo News.

I would like to point out that after this week’s confirmations of Commissioners Willams and Lobban, both from the Buffalo District, there are now four commissioners from the Buffalo district: Bargnesi, Higgins, Williams, and Lobban. I would like to think that they have thoughts on this subject and that several of the collegaues would join them at the next full Board Meeting on June 15, 2010 to firmly and formerly advise the executives at the Board that the Buffalo office should stay where it is.

Our second guest COMMENTARY is from Aaron Zimmerman, who represents injured workers out of his office in Syracuse, New York. Mr. Zimmerman took a few hours from his schedule to attend the Board’s Webinar about the new MAP program and writes that not only was it a waste of time but explains why this new program will further decrease the rights of injured workers and further impede their ability to get fair treatment from the Board.

The only question I have is:

Will the Board read these letters to see who they can punish or will the Board read these and actually listen to what Ms. Sackel and Mr Zimmerman have to say?

An Attorney’s Says “Don’t Move the Buffalo Office, Again!”

May 21, 2010: New York State is attempting to change the location of the Buffalo office of the Workers’ Compensation Board which will affect claimants in a negative way and will unnecessarily spend taxpayer’s money. The Buffalo office of the WCB handles approximately 25,000 hearing per year, which equates to approximately 480 hearings per week. The new location is less convenient to disabled claimants in both logistical and financial ways; it poses potential safety issues to disabled claimants; and it will cost taxpayers in the range of $700,000.00 of unnecessary funds.

As of 5/10/10, the Office of General Services approved and signed a 10 year contract to move to the Ellicott Square Building. However, the contract still needs to be approved and signed by the Attorney General and the Comptroller, so there is still a small window of opportunity to stop this from happening.

Currently, the Buffalo WCB is located at the Cyclorama Building at 369 Franklin Street. The WCB is the only business/agency housed in the building, and all of the court rooms are located on the first floor. The building is centrally air conditioned. Once a claimant enters the building they are greeted and directed to the appropriate areas to await their attorneys. The building has a large on-site parking lot immediately adjacent to the building’s entrance, with handicapped parking very close to the entrance. Claimants can park there free of charge.

Albany’s plan is to move the Buffalo WCB to the Ellicott Square Building at 295 Main Street. There is no immediately adjacent parking, and the parking will not be free. Claimants will have to pay for the parking themselves, which could present a financial hardship for claimants living on compensation benefits or for those who are receiving no benefits and are fighting with the insurance company for payment of benefits.

Logistically, the Ellicott Square Building is located in a much more congested part of the city where parking is at a premium and, as mentioned above, is not free. Claimants will have to drive around this congested area to find an available pay-to-park lot. Unfortunately, most of the parking lots surrounding the Ellicott Square Building already accommodate the people who work in that area on a daily basis, and they fill up quickly. Most importantly, even after driving around to find an available pay-to-park lot, disabled claimants will have to walk varying distances from those lots to reach the building.

The Ellicott Square Building sits on an entire city block, encompassing Main Street, Washington Street, South Division Street, and East Swan Street. The handicapped entrance is only located on the South Division Street side of the building. If handicapped claimants find available parking on the Main Street side of the building, they will have to walk all the way around the city-block sized building to access the handicapped entrance on South Division Street. Once inside the large building, claimants who utilized the handicapped entrance will then have to walk all the way back to the Main Street side of the building to access the elevators.

Once finally inside the building, claimants will have to make their way to the area on the fourth floor that is going to house the WCB. The experience of extra driving to find parking, as well as walking extra distances both outside and inside the building, will be physically and mentally taxing to the disabled claimants. In addition, the fact that they will have to pay for parking that was previously free is an additional expense for them at a time when they are struggling to meet expenses due to their disability and loss of wages.

The Ellicott Square Building has never been updated to accommodate a central air-conditioning system. Apparently, Albany plans on trying to cool the fourth floor WCB location using singular window units. The noise of window units would obviously be a distraction during hearings, as well as during pre and post-hearing discussions with claimants. In addition, it is questionable whether mere window units could sufficiently cool the fourth floor space that houses the significant number of people present at the Buffalo WCB on any given day. Remember that the Buffalo office of the WCB handles approximately 25,000 hearing per year, which equates to approximately 100 hearings per weekday.

The Ellicott Square Building was built in 1896 and has narrow, antiquated stairwells. In cases of emergency, such as fire or bomb threat (which just happened at the Ellicott Square Building in mid-April), all disabled claimants would have to evacuate from the fourth floor using these stairwells, as is required in any emergency evacuation. The numerous claimants present at the WCB on any given day would have to maneuver down four flights of these narrow stairwells as firefighters and response personnel are maneuvering up them. This seems potentially impossible and potentially catastrophic. We are yet unaware of whether there is a fire-proofed room available for the disabled claimants who are not ambulatory and require wheelchairs and/or walkers, and cannot maneuver down the stairwells during an emergency.

Seven months ago, NYS spent approximately $700,000.00 when it had to move the Buffalo WCB from the Statler Towers to the Cyclorama Building due to the condition of the Statler. Moving again, to the Ellicott Square Building, when the current location at the Cyclorama Building remains available, would most likely cost another approximate $700,000.00 of taxpayer’s dollars. That’s a total of $1,400,000.00 in taxpayer money for two moves within a seven month period.

Supposedly, the bid from the Ellicott Square Building was the lowest, but that bid apparently only included the rent. It did not include the utilities, the cost of air conditioning window units, and the potential cost of the state employee parking, which is free right now at the Cyclorama Building. The bid from the Cyclorama Building reportedly included rent, utilities, central air-conditioning, and the benefit of free parking.

Relocating the site at this point makes no sense when one considers the expense of the move from the Statler to the Cyclorama Building just seven months ago, and especially when one considers the current site’s convenient first floor access, handicapped accessibility, and free on-site parking.

I have practiced workers’ compensation while the Buffalo district was located at the Donovan Building, the Statler Towers, and currently the Cyclorama Building. There is no question in my mind that the current location has positively affected the claimants, financially, emotionally, and behaviorally. Their positive experience at the convenient Cyclorama Building translates to a positive experience for their attorneys, the carrier’s attorneys, the Judges, the court reporters, the security staff, and the WCB administrative staff. I can foresee that the claimant’s negative experience from the inconvenience of the Ellicott Square Building will unfortunately result in a negative experience for all involved.

The NYS WCB is supposed to be a customer-service oriented administrative system that services the needs of the people of the State who were injured while performing their jobs. Certainly, the most important consideration here must be the safety and convenience of the disabled claimants attending their hearings, and the Ellicott Square Building is not the best choice available to the State. When one examines the factors involved, it is hard to understand why Albany would make a decision with such a negative effect on those it is supposed to be serving.

I strongly encourage the public to contact Comptroller Thomas DiNapoli at www.osc.state.ny.us, 847-7122, (518)474-4044, 65 Court Street, Room 504, Buffalo, NY 14202, and Attorney General Andrew Cuomo at www.oag.state.ny.us, 853-8400, (518)474-7330, 350 Main Street, Buffalo, NY 14202, to stop them from signing this contract and stop this move from happening. In addition, although not as effective due to current circumstances, the public can contact their district’s NYS Assembly Representative and State Senator, the Office of General Services, and Governor Patterson to voice their opinions. Do not contact the Buffalo office of the WCB, as the decision does not lie with them, it lies with Albany. Time is of the essence.

Roslyn Sireci Sackel, Esq.
Sawers & Sackel, LLP
81 Buffalo Street
Hamburg, NY 14075-5003
(T) 716-648-1300 (F) 716-648-1700

An Attorney’s Review of
Managed Adjudication Path (MAP)

May 21, 2010: I just spent more than an hour listening to the Board’s presentation about the new MAP procedures, and how these procedures would not alter the substantive rights of the parties. Talk about the Board’s feigned concerns over claimants “wasting” their time by going to hearings to protect their rights– listening to the Board’s MAP Webinar on 5/7/10 was a complete waste of time.

This program was nothing more than propaganda to support the Board’s foregone conclusion that there WILL be less hearings. There is no question the fastest way to reduce “friction” in the system is to reduce the the number of hearings. Of course, the quickest way to reduce hearings is to reduce attorney representation of injured workers. And all the Boards needs to effect this goal, is to stop allowing attorney fees. For there are statistics which confirm the Board holds a lesser number of hearings for an unrepresented claimant as compared to a represented claimant.

My office has represented injured workers for more than 30 years. I have represented literally thousands of injured workers. Almost without exception, my clients want hearings. I speak from experience, and should the Board choose to investigate, the Board will find statistical proof injured workers who are represented by an attorney receive significantly greater benefits than the unrepresented injured worker. All the Board needs to do is look at the award of indemnity benefits granted to represented claimants as opposed to unrepresented claimants. A similar analysis is made by most insurance carriers on a regular basis and they know this statement is true.

A hearing before a law judge allows the parties an opportunity to be heard–this is called Due Process. The right to file an objection to a Proposed Decision, issued in the back-room by some nameless and faceless bureaucrat, is not Due Process. The reason so many Proposed Decisions are not objected to is because claimants do not understand the significance of the Proposed Decision. Upon receipt of the Proposed Decision, injured workers frequently do nothing–to their detriment. This is not substantial justice.

If the Board truly believes claimants do not want hearings, then send unrepresented claimants a form telling the unrepresented claimant that they can waive their right to a hearing by signing and filing the form. Then publish the statistics. We will see how many unrepresented claimants affirmatively waive their right to a hearing. Of course, this proposed procedure will never occur– because the Board has maliciously and purposely skewed the procedures and facts in an attempt to limit hearings. It is obvious this Board does not want to hear, nor does the Board seek, the truth. The Board has an agenda to limit hearings– and represented claimants create “friction” in the system as their rights are litigated.

It is submitted the vast majority of the practicing Bar believes the Board will unethically and improperly use the new MAP procedures to further limit hearings and further limit fees to claimant’s attorneys. If a fair attorney fee will not be approved by the Board, claimants will be quickly find they are unable to find an attorney who will represent their interests. And this is the true goal of the Board’s “procedural” changes. Represented claimants will demand justice–and justice takes time, effort and money. The evidence is clear the Board can not and will not “spend” the time, effort or endure the expense needed to justly administer the workers compensation law.

This is the only system where the Administration “protects” claimants by reducing attorney fees after a represented injured worker agrees the fee is fair and reasonable; and then further “protects” the injured worker by refusing to hold hearings where their grievances can be heard.

For the most part judges make decisions without actually listening to testimony. A transcript is enough. Now, the Board wants to make decisions without hearings. Every day there is less and less trust and respect in the Board. The proposed MAP procedures show why everyone who is required to adjudicate workers compensation claims does not trust nor believe the Administrators of the workers compensation system.

I urge the MAP procedures not be implemented and that every claim be physically heard at a hearing held before an administrative law judge.

THE LEGAL TEAM
Aaron Zimmerman, Esq.
117 South State Street
Syracuse, NY 13202
[T] 315.475.7777 [F] 315.475.4225
az@zipilaw.com

 

Judge Hellerstein correct: Legal Fees
for WTC Settlements Unreasonable

March 26, 2010: Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement was correct, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.

Based on my 12 years service as a Commissioner with the New York State Workers Compensation Board overseeing nearly 15,000 settlements as well as hundreds of cases in which the issue was legal fees, the filing and settlement of claims for these 10,000 workers involves legal work, and therefore a fee structure, more in line with the 10% to 15% in the workers compensation system than the 30% to 40% in civil litigation.

The similarities between these Ground Zero claims and those in workers compensation are many. The money necessary to make payment of the settlements has already been set aside and, unlike some civil litigation, the attorneys here do not have to worry about collecting their fees. There is no question that these claims are causally related in terms of injuries and illnesses. And there are minimal difficulties in establishing the identity of the injured workers.

The only issues being controverted deal with the specific injuries and illnesses of the workers, the impact of this medical condition on their future earnings capacity, and the amount of medical treatment that may be necessary in the future.

In the New York State Worker’s compensation system, final settlements known as §32 waiver agreements range from $5,000 to $150,000, similar in amounts to those proposed under the Ground Zero Settlement. If there were no prior fees paid, the §32 fees awarded were usually 10%-15%, occasionally not including medical expenses.

At this time, the original Ground Zero settlement projects legal fees of 30% to 40% which on a $600,000,000 settlement comes out to approximately $200,000,000. Based on the workers compensation settlements I approved in one four-year period, the average fee was 11.4% on an average settlement of a $46,300,. Were this more appropriate fee schedule used by Judge Hellerstein, each worker would receive an additional $13,000 while the attorneys would still receive $68,400,000.

In those cases in which the medical portion of the settlement was substantial, that amount was usually excluded before the fees were calculated. The concept behind not paying fees on medical expenses is based on the premise that medical expense reimbursements in the settlements are to pay for the entirety of the injured workers’ proposed future medical expenses. To deduct 15% for the legal fee is in effect requiring the injured worker to make a 15% copayment for his medical treatment. That a 30% or 40% “copayment” could be considered in these Ground Zero cases is at best an “injustice” and may in fact be the reason that the total fund is so high: in order for the injured worker in a civil case to get $100,000 to cover his projected future medical costs of $100,000, the settlement would have to be for a gross of $166,666 to allow for the 40% legal fee.

Putting aside the issue of the legal fee on medical expenses, the workers compensation system in New York and probably in the other 49 states is structured such that the handling of claims with the appropriate forms, procedures, and hearings are fairly consistent, thus minimizing the need of the workers compensation attorneys to reinvent the wheel every time that they have a new case, thus lowering their administrative costs as compared to a civil litigator.

Processing of the claims for these 10,000 workers would appear to also be consistent from one case to the next such that the 10% to 15% fee which has enabled attorneys in the New York State workers compensation system, who have successfully practiced for many decades, should be more than enough for attorneys involved in the Ground Zero settlement.

In fact I would even suggest that Judge Hellerstein consider hiring the services of those law firms specializing in the handling of workers compensation for injured workers. These attorneys are accustomed to handling large numbers of cases at a time but still have the ability to provide the injured workers and their families with the care and attention necessary to not only do financial justice to their clients but also to make them feel like human beings.

These workers who rushed to the aid of their fellow citizens without thinking about the future repercussions deserve to be treated with proper dignity. The issue is not one of a settlement of 10,000 cases but the settlement of a claim by 10,000 different individuals.

The Insider’s Recommendations
to Improve Board Procedures

March 15, 2010: The New York State Workers Compensation Board has been preparing a number of basic changes in operations and procedures which involve judges, conciliators, and court reporters, with justifications ranging from the budgetary requirements, to expediting the process, to finding more efficient ways of getting cases done faster.

In reality there are far simpler solutions for which the annual cost could well be under $30,000 a year. Of course this may well entail a solution which for some may be a totally unacceptable:

• Use electronic transcription only for hearings on §32 waiver settlements
• Have the Commissioners do all the §32 hearings

COURT REPORTERS

Let’s put aside for the moment the fact that the Board justifies its need for electronic transcription because of the shortage of court reporters while failing to cite one example of a hearing adjourned for the lack of a reporter. A legitimate review of this issue would ask the following question:

1. How many hearings were transcribed by reporters and for how many of these were the minutes actually needed?
2. Is there any category of hearing for which minutes are never needed, or often needed?

While I cannot answer that question for hearings conducted by law judges and conciliators, I can answer it with some numbers from 2002 when the Commissioners conducted the hearing for §32 waiver agreements. In 2002, I participated in approximately 1,100 §32’s, including about 30 or 40 of these which I heard twice as they were adjourned for a second hearing. But it was a rare month when after the hearing was completed that one of the attorneys asked for a copy of the transcript, almost always for cases adjourned because of some substantive legal issue.

At that time there were about 10,000-12,000 hearings held a year by the Commissioners. I know that many Commissioners approved virtually every agreement they heard so that I am sure that there were probably not more than 100 §32 hearings a year which required minutes.

As a result there were a lot of court reporters taking a lot of time taking minutes that were never used. Perhaps the trial of electronic transcription proposed by Chairman Beloten should be done at the §32 hearings.

Having participated in oral arguments as a Commissioner as well as §32’s and having sat in on a number of hearings conducted by the law judges, I can attest to the fact that some of the problems with crosstalk that exist in regular hearings do not exist at §32 hearings. The Commissioners are not under the time constraints as are the law judges. Thus the results of electronic transcription at these hearings, in such a simpler atmosphere, would prove their validity, or disprove it.

§32 BY COMMISSIONERS

Of course, for the above recommendations to take place, the §32’s would have to be given back to the Commissioners. Actually there was no legitimate reason for these to have been taken from the Commissioners in the first place. Originally every §32 agreement was heard before a Commissioner. Then, it was decided that waiver agreements which would have previously qualify as Lump Sum Settlements could be done administratively. Then additional categories were added to the list of cases that could be done administratively such that a goal of 70% administrative versus 30% hearing was set. The reason the §32 cases were taken from the Commissioners was the specious excuse that it would be best if all the claimants had a formal hearing and there were too many §32’s for the Commissioners to do. Actually one reason for the change was that a few commissioners did not want to have to attend hearings.

In the beginning years (1997-2000), the Commissioners were able to take care of 10,000 to 12,000 cases a year even though this meant that all the Commissioners had to actually work and attend hearings; some even had to travel. And I am referring not just to Commissioners flying from Buffalo to New York but to some Commissioners for whom a 40 mile drive from their home to the district office had suddenly become too much of a burden.

In view of the fact that there are now virtually no oral arguments, common sense would indicate that the Commissioners have more than enough time to do the §32’s. Back in 2002-2003, each Commissioner attended 5.29 hearings per month; now they do one every 2-3 months, a 90% drop in the number of hearings they attend, with no additional work or responsibilities. And much of the prior travel would be eliminated because, unlike when I was the only Commissioner in New York City, there are now more in New York City.

These hearings, once they have been transferred back to the Commissioners, should be done in person and not over video. I was told that the travel costs were about $110,000 a year in 2007, mostly because two Commissioners (Henry from Buffalo and Zink from Rochester) were assigned to hearing points in Harlem and Queens. In addition, if electronic transcription were done only for §32 hearings, the savings would more than make up for the additional travel costs incurred by having the Commissioners make in-person appearances when conducting these hearings.

LAW JUDGES

If one calculates that the average §32 hearing takes 12 minutes and there are 12,000 hearings a year, that comes out to a workload of the minimum of two law judges doing nothing but waiver agreements. (12,000 hearings ÷ 5 cases per hour = 2,400 hours of hearings but since most law judges prepare for their hearings by reading the agreements in advance and, at least in NYC, 40% of the hearings are conducted with translators, I calculate a minimum of 3600 hours of hearings.)

So, while it may be necessary to hire additional judges and/or conciliators, at least two new judge hires can be saved by using existing staff: the Commissioners.

CONCLUSIONS

The Board justifies:

• its replacement of live reporters by electronic transcription to save money and make up for the shortage of reporters, both problems which can be resolved by using electronic transcription for an easily identifiable category of cases in which my statistics show minutes are very rarely needed. If the Board has other statistics, common sense would dictate they be made available in order to determine the validity of the Board’s arguments.
• eliminating certain categories of hearings and hiring more conciliators and the law judges to help expedite the resolution of controverted cases because the current staff now has too many cases. Yet the Board has burdened its law judges with approximately 12,000 hearings on a category of cases that were more than adequately administered by the now underutilized Commissioners. Equally important is the attention given to the claimants who could be heard by and speak to someone in authority without having an invisible egg timer staring at the law judge. This change will make these injured workers, for what may be their last time before the Board, feel that they’re treated like a human being.

There may be some who feel that these recommendations are far too simplistic and that I do not have access to sufficient information to make an informed judgment. I shall let my record and my book speak to that argument. It’s time that those making decisions for the Board start listening to more than just the select few who make up the Oligarchic Cabal. Otherwise the Board will continue its march in a direction totally opposite that needed to serve the community for which it was established nearly 100 years ago: injured workers and their employers.

Eliminating Oral Arguments: A MAP or a PIG?

February 8, 2010: The Workers Compensation Board’s plans to eliminate oral arguments appears to follow the Board’s normal policy for making change in procedure: they either ignore the facts or do not bother to look at them.

And, yes I have had the opportunity to review a great many documents on this subject including the very coherent presentation in the Board’s recent “Across-the-Board” dated February 3, 2010 entitled “Board Creating a New MAP for Claims”, for which MAP stands for “Managed Adjudication Path”.

And I have an excellent commentary supporting the new program by a member of the staff, which follows my commentary.

But to paraphrase an old quote, no matter how much lipstick you put on this is “PIG” (pragmatically impractical game-plan), I do not believe that a statistical analysis of Board’s records supports MAP.

As I have previously noted, while the Board believes in the mantra “Justice delayed is Justice Denied”, I must remind them that “Justice Uneven is Justice Unequal.”

Until such time as the Board is able to issue consistent decisions, it cannot continue to deny claimants and employers the opportunity to set the record straight at hearings. Equally important is that, while a good number the Law Judges would be fair in imposing Workers Compensation Law §114a-3 penalties against those who abuse the hearing process, there are also a good number of judges who will abuse this penalty such that a decision to appeal many more likely be determined by guessing before which law judge a case may be heard than it would be by the merits of the issue.

My records show that hearings change the results in 35% of decisions as compared to 6% done by simply reading the file.

I have reviewed the statistics from my own database of cases I heard on oral argument, in this case for the seven months of the calendar year 2008 when I was at the Board. Among the 55 fields I have for each record (workers compensation claim), I have the following four fields:

• Recommendation of the Administrative Review Division/Office of Appeals (ARD)
• My opinion
• Whether the recommendation and my opinion agree
• The final Board Panel decision.

A quick analysis of the relationship between these four fields shows the following:

• I agreed with the ARD’s recommendations 76% of the time and disagreed with 24% of the time.
• 15% of the time that I did agree with the ARD, the decision was changed by the Panel after all oral argument.
• 90% of the time when I did not agree with the ARD, the Panel agree with my changes.

In response to those who would argue that I was an “overly contentious”, “argumentative” commissioner, I now give you the numbers to the Board Panels:

• 65% of the time the recommendation of the ARD was accepted.
• 16% of the time the decision changed pursuant to my recommendation.
• But 19% of the time, even though I agreed with the recommendation of the ARD, the Board Panel’s final decision disagreed with that recommendation. So, after hearing the arguments and listening to my colleagues on the Panel, I agreed with them that my initial of the acceptance of the ARD’s decision was in error.
  

I also have an additional database of decisions made on paper alone: those decisions were changed approximately 6% of the time. (This 6% excludes another 10% rejected for typos, grammatical errors, and/or general incoherence.)

In summary, my record shows that the initial recommendations, which are subject to review and a formal hearing, are changed six times as often as those recommendations based simply on a review of written documents. This record strongly suggests that oral arguments/hearings before the Commissioners, and by extrapolation, before the Law Judges, have a place in the process.

I am sure that if I were to run these number for the prior 11 years I served on the Board, these numbers would not change substantially.

Bottom line is that at least on the Panels on which I served on hearings resulted in changes to 35% of the cases. What numbers does the Board have? Or, as my accountant once said about one of my partners, “What I like about him is he has already made up his mind so he doesn’t need to look at the facts.” Can we not expect better from the Workers Compensation Board?

A Reader’s Comments

[ED. NOTE: This commentary is in response to my NEWSWIRE article published on Friday.

Project 2015 Still Lives” (1/28/10 Newswire). Conciliation and Administrative Decisions have been around for 20 years. In my opinion, people are overreacting to Informal Resolution, which is simply Conciliation by another name with less paperwork. Hearings are not going out the window and cases that need hearings will get hearings. If I’m dead wrong, we’ll know by next month.

One misleading statement in that item is that hearings have been cut in half over the past 10 years while the number of judges has increased. Please recall that conciliators were de facto part-time judges 10 years ago. When NYC split up in 2001, the Board had 33 judges and 12 conciliators, the equivalent of 37-39 judges. Today, NYC has only 30 judges and 6 conciliators who due to union pressure act as judges only in emergencies. The board’s judge ranks are realistically down by 20% in NYC. (I can’t vouch for upstate).

Please also recall that 10 years ago the Board had tremendous backlogs of cases waiting for hearing dates for months on end. Manhattan alone had 10,000 hearing unsets in 2001. Obviously, the Board was shorthanded at the time. If you are willing to stipulate that tremendous backlogs like that are acceptable, then we can make do with less. Personally, I prefer staffing adequate to meet our mission. As you express very eloquently, the injured workers deserve the best; not a 6 month or more wait for a hearing.

Please also recall that 10 years ago the calendars were full of questionable hearings. The Board had C-7 cases without prima facie medical evidence and without claimants showing up. The Board had a bureaucratic mindset that cases had to regularly come on hearing even if there was no new issue. Those 1 minute hearings got the Board through the long calendars but didn’t really serve a purpose other than busywork for the Board and generating fees for services for the lawyers. There may be fewer hearings now but the average difficulty level is much higher.

Furthermore, judges work hard while may are not on calendar. 10 years ago doctors testified in court. Today, medical testimony is largely by deposition and the judge has to either write a reserved decision or prepare for a bench decision. The extensive reading required happens off calendar. Fewer hearings does not mean less work. Similarly, some Commissioners decided a few years ago that Section 32 hearings were an undue burden. Judges assumed that responsibility. Again, judges have to read the agreements off-calendar to be adequately prepared for calendar. Those of us who work with the judges think they are more productive, not less. Finally there are all those Administrative and Conciliation decisions to review, much more than 10 years ago.

Those who imply that judges are less productive than 10 years ago are mistaken and should try walking a mile in their shoes.
[ED. NOTE: The engaged Commissioners would agree with you, particularly on the section sign 32’s which were taken away from the Commissioners because one Commissioner in particular felt all those hearings interrupted vacations out of state.]

A Reader’s Opinion of the Appellate Court, Third Department

January 26, 2009: On January 4, 2010, I posted my commentary on the quality of decisions issued by the Workers Compensation Board that had been reviewed during 2009 by the New York State courts. In response of that commentary, I received a rather opinionated comment from a practitioner which I returned below after which I am also posting the response I sent to the practitioner, who did authorize many publishers is now. Any additional comments or suggestions are welcome.

My Reader’s Opinion

There is no question the Board operates in a lawless manner. The more fundamental question is why? The answer is right in front of our collective noses–the Appellate Division refuses to make this State Agency explain its decisions, or to be consistent. So the Board does what it wants, mostly with impunity.

There are 4 appellate divisions in the State but only the Third Department hears cases coming from the Board. It may be not be well known, but the Third Department hears all of the State’s agencies appeals. If I recall correctly there are about 150 agencies–of which the Workers comp Board is but one!!!! The list goes on and on: Alcohol Beverage Control, Education, Motor Vehicles, Environmental Conservation, State Retirement and Social Security, etc.

It is literally impossible for the few appellate division judges in the Third Department to have a complete grasp of the legal nuances involving every agency. And unless the facts are compelling, the court will almost always find some fact upon which to conclude the Board’s decision was based on substantial evidence. The most absurd situation is when the Board makes a decision, then the losing party appeals. Before the appellate division rules, and without any new evidence, the Board has on occasion issued an ‘amended decision’ reversing itself. In many instances the appellate division has affirmed the amended decision. This is one reason why the public has no confidence in the Board, nor in the Appellate Division decisions. Have you ever reviewed the appellate briefs? Every appellate lawyer will tell you frequently the court simply disregards the ‘tough’ issues with a dismissive ‘the court has considered the other arguments and finds them to be without merit.’ It is frustrating.

You know many of the Board’s Commissioners do not read the decisions they ’sign’ their name to–all that is needed today is a mouse click. What makes anyone think the Appellate Division is any different? Especially when in addition to a full load of civil and criminal cases they have 150 agencies to oversee.

My Response

There are a number of points in your e-mail I would like to address.

(1) While it is true that the Third Department hears from 150 state agencies, its decisions are almost exclusively limited to the Workers Compensation Board, Department of Labor Unemployment Insurance, Retirement Pensions, and the Department Of Corrections. Also when I posting decisions from the Third Department, I also check all the decisions issued by the First, Second, and Fourth Departments as well as the Court Of Appeals and various supreme and civil courts throughout the state. It is my observation that the First and Second Departments handle a far wider range of issues than does the Third Department. So I cannot agree with you on that particular point.

(2) As I noted in my book, Behind the Closed Doors, I have served with 26 commissioners. I would say that 1/3 of these read virtually every decision before they signed it, another 3rd would look at some and not others although their reviews were rather cursory, and the balance as you noted mouse-click their way through their work queues. Of course, all the writers in the legal department had to be active because they actually had to put words to paper but, for about 20% of them, their legal reasoning and attention to detail was an embarrassment. The bottom line is that you are correct: the decisions should have been better written, more coherent, and consistent.

(3) As for sending copies of my e-mail alerts or commentary from my website to the judges, that would be perfectly fine with me; you have the right to disseminate (crediting were blaming me for the content) my opinion and certainly if someone wishes to give them the advantage of the “pearls of wisdom” I periodically produce in my website, there’s nothing wrong with that. In fact I did try to acquire a list of their law clerks to send them my e-mail alerts; unfortunately I could not get that information.

The Quality of WC Board Decisions Reviewed in 2009 by the Courts

January 4, 2009: Now that this website has had the opportunity of posting one full calendar year’s worth of court decisions dealing with workers compensation-related issues, it is appropriate to do an analysis of those decisions issued by the Court of Appeals and Appellate Court as they impact on the New York State Workers Compensation Board, injured workers, and employers.

There were a total of 103 appeals in which the Workers Compensation Board was a party of interest covering 124 issues. A quick summary shows that the Appellate Court accepted the Board’s decision in only 80 (77%) of the appeals submitted to it for review, reversing 11 (11%) and sending 11 (11%) back for reconsideration, with two appeals receiving a split decision, affirmance on one issue reversal on the second. This compares to the affirmance rates of 92% in 2007 and 96% in 2006.

In doing this review, I assigned these appeals to 53 different issues in four different categories. It was only in 33 of these issues (62%) that the Board’s decisions were affirmed; on the other 20 issues (38%) the Board’s decisions met with mixed results: affirmances, reversals, and rescission. In eight cases the Appellate Court questioned the thinking process by which the Board made its decisions.

85 of these appeals involved issues raised by claimants (47 appeals) and issues raised by employers/carriers (38 appeals). Of the 47 appeals submitted by claimants, they lost 41. In the other six appeals, claimants were awarded with two reversals and four rescissions. Of the 38 appeals by employers/carriers, they lost 31 but the other seven appeals were favored with three reversals and four rescissions. Therefore one can conclude that the Court treats both sides equally.

All of the ten appeals argued by pro se claimants lost by having the original Workers Compensation Board decision affirmed by the Appellate Court.

The other 18 appeals of the 103 heard in 2009 involved disputes between carriers, employers, the State Insurance Fund, and Special Funds. In these appeals, the Board did not do well having had its decisions affirmed by the Appellate Court in only seven (41%) of the appeals with six reversals and three rescissions. There were two appeals each with two issues; in both appeals, the Court supported the Board on one issue and rejected the Board’s conclusion on the second. It appears that the issue with which the Board has the most difficulty understanding deals with the various sections of Workers Compensation Law §25 a, having its position affirmed in only three of seven appeals.

I have separated these 53 issues into the following four categories:

Was there an accident and/or does it qualify as a workers comp claim?

The 26 appeals in this category represented 21% of the appeals heard by the Appellate Court which affirmed the Board in 21 appeals (81%). Interestingly, in the other five appeals in which the Court did not support the Board’s decision, the Court rather than reversing any of them returned all five for reconsideration.

Seven of these appeals involve the issue of the timeliness of the filing of the claim, all of which were filed by claimants. The Appellate Court agreed with the Board in six of these appeals that the claim was time-barred; in the seventh appeal, the decision was returned to the Board with comments to the effect that the Board’s ruling against the claimant did not make sense.

In the seven appeals in which the Appellate Court affirmed the Board on issues involving “course of employment”, five of the losing appeals were brought by claimants and the other two losing appeals brought by carriers. The fact that the Appellate Court gives the Board discretion to choose between relatively equal sets of contradictory indicia certainly favors the Board being affirmed in these types of cases.

Who pays the bills?

The 35 appeals in this category, representing 28% of the 103 appeals heard by the Appellate Court, had the lowest affirmance rate: 69%. And even if the five appeals dealing with the definition of Workers Compensation Law §25 a are excluded, the affirmance rate is still only 74%, scattered randomly among the 19 issues in this category.

Probably the most important issue that has yet to make its way to the New York State Appellate Court deals with the issue of payments to the Aggregate Trust Fund. While I understand that there is at least one case set for argument in March or April of this year, the only case of which I am aware that has been made in any court is the Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al for which a decision was issued on March 9, 2009 by the Federal Court in the New York Southern District. In this decision, the Court ruled that, “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.”

How much should be paid and for how long?

The 41 appeals in this category represented 33% of the 103 appeals heard by the Appellate Court which affirmed the Board in 34 (83%) of these 41 appeals.

The most common issue dealt with voluntary withdrawal from the labor market in which the Board’s decisions were affirmed in 12 of 14 appeals. Interestingly, both the claimant and carrier each had seven appeals in which both were unsuccessful in six of their appeals asking the Appellate Court to reject the original Board decision. In the other two appeals, the carrier received a reversal and the claimant a rescission.

The second most common issue dealt with medical disputes over causal relationship in which the Board was affirmed in six out of eight appeals. In the seven appeals brought to the Appellate Court by claimants, claimants were successful in only one case resulting in a reversal of the Board’s decision. The only appeal brought to the Appellate Court by a carrier was successful, also resulting in a reversal.

The third most common reason for the appeal in this category were five unsuccessful attempts to have the Board’s findings on fraud pursuant to §114-a overturned, two appeals by claimants and three by carriers.

Were the laws and proper procedures followed?

The answer to this question is an 86% affirmance rate on the 22 appeals in this category.

However, there were at least eight appeals in which the Appellate Court, in returning the case to the Board for additional review, did so because the Board drafted a decision which contradicted prior decisions, misread the issues on appeal, or failed to review all the records in the file.

However “poor “decision-making was not limited to just the Board. There were seven appeals which were denied as the issue under appeal had not been previously raised (six of these appeals by claimant attorneys) and another six appeals for which the Appellate Court supported the Boards denial of a Full Board Review (again, five by claimant attorneys).

Summary

As noted earlier the Board’s affirmance record in 2009 compares unfavorably with prior years which perhaps explains why the Board had its decisions rejected in 20 (28%) of the 53 different issues the Board reviewed which made been their way to the Appellate Court.

One could argue that the reason for the low affirmance rate is because of the Board’s willingness to be more aggressive in its interpretation of Workers Compensation Law. But if this were the case, then one would presume there would be only a few issues which made up the bulk of these reversals. But the record shows that in 38% of the issues presented to the Appellate Court for review, the Board did not always do justice to the appellant. Could the answer be a combination of the Board’s insistence on speed versus quality and the writers and ultimately the Commissioners making decisions they think is fair rather than what is legal or perhaps not knowing what is legal.

The bottom-line is that there are certain issues in which the Board has failed to get its collective minds together in order to develop a better understanding of those issues and, in turn, issue more consistent and coherent decisions. For it is this lack of consistency which causes both claimants and their employers to view the Board’s claim of fairness with skepticism. And more importantly, the skepticism results in far more cases being controverted and unnecessarily clogging the Board calendar and appeals unit as well as the Appellate Court: “Why not appeal? We may win a case because nobody is really looking.”

It is this lack of consistency and lack of transparency that should be the key issue addressed by the Chairman, the Office of General Counsel, and the Commissioners as we enter the new year.

Answers to Your E-Mails

November 2, 2009:
QUESTION #1:

nyc is doing the right thing by contesting claims without merit at the start of WTC cases carriers were not geting exams and many thousands or claims without merit were established now if a carrier or nyc wants to get an exam they are simply doing what they should have been doing all along. Don’t you believe that if a or self insured such as NYC is prevented from getting an IME or using an investigator at least some phony claims will be established? I would like a response from you.

There is no question that New York City has the responsibility to ‘review’ claims with which it is presented, be it against the WTC fund or a general workers compensation claim. You will note that I put the word ‘review’ within quotation marks as that is what this city supposed to do: to investigate the validity of the claim and not spend money seeking ways to deny every claim.

On September 11, 2009, the Workers Compensation Board released a full report, World Trade Center Cases in the New York Workers’ Compensation System, on claims made to date. In Table 1 page 18, the WCB reports 11,627 cases were filed, of which are 5,220 cases had no follow-up leaving a total of 6,407 cases to be reviewed. Of these, 461 were denied, resulting in a denial rate of 7%. New York City’s denial rate exceeds the 93%+ approval rate of the WCB which is particularly disturbing when you consider that many of the uniformed services (fire, police, and sanitation) are not covered under workers compensation law. Although fraud cases get a lot of coverage, particularly if they involve the New York State Insurance Fund, I’m sure there are well under ½% of all claims.

That New York City has a right to have investigators and/or IME’s review these claims is correct but not the use investigative techniques long since disavowed under workers compensation law precedents.

QUESTION #2:In response to my commentary supporting the payment of legal fees on medical benefits, I was sent the following question by e-mail:

My reading of the Shea case, which the board apparently now agrees with, is that whenever money moves to a claimant an atty fee lien may attach. I would be interested to review the case or cases where you challenged the board’s prior interpretation re atty fees on medical expenses. You may not remember, but you were on the original Shea panel which denied any atty fee.

The reader in this case is absolutely correct in that the original decision, in which I participated, ruled against payment of legal fees. Since the original decision, the Delacorte decision, and the revised decision are available on LEXIS-NEXIS and Westlaw, I shall not quote any language in the decision but explain why I originally denied the fee.

Very often in cases like this which deal with “black-and-white” legal issues, the commissioners depend on the Board’s legal staff of writers, of whom all are attorneys, to research case law. From the time I first joined the Board until the time of my departure, we were told consistently by the Office of the General Counsel and our writers that there was some legal issues that could never be challenged.

I am the first to admit that I’ve challenged the Office of the General Counsel and the writers on many occasions, whenever I saw a little bit of light at the end of the tunnel but I’m also realistic enough when presented with such blanket pronouncements to spend my energy elsewhere. For years the same two groups told the commissioners that attorneys had no right to challenge our determination on the amount of legal fee to be paid in a §32 settlement. Then one day we received a memo which effectively said “Oops, we made a mistake. Legal fees can be challenged.” Shea v Icelandair is another example in which I mistakenly relied upon legal obstinacy of the Office of General Counsel and writers.

Had I been on the Board after this decision, I would’ve addressed the staff attorneys as I did after the Court decision in Horton v Akzo Nobel Salt (see my book Behind the Closed Doors, page 8): “How can we trust your judgment and advice if you contradict each other or don’t understand why you do what you do?”

QUESTION #3: On occasion I get requests for an analysis on specific legal or medical issue in terms of what can be expected in the future from the Board. Because of the individual nature of these requests, my responses will be by e-mail and not in this website. If you have any such requests, send me an email addressed to TheInsider@InsideWorkersCompNY.com.

§32 Settlements & Child Support Liens

October 29, 2009: Several years ago, one of the commissioners raised an issue when faced with an upcoming §32 agreement in which there was a substantial amount of unpaid child support. There was a question as to whether or not any of the settlement award above that necessary to pay the outstanding lien could be set aside to guarantee future payment of child support. A review of WCL §33 and applicable case law made it quite clear that the only child support that could be withheld from the settlement was the amount for which there was an existing lien.

At a pre-board meeting in Albany the subject was discussed at length at which time it was determined that the Board did not have the authority to offer any other interpretation of law. And while we discussed the practical application of methods to set aside some funds from the settlement to ensure future payment of child support liens, the consensus felt this was a legislative rather than an administrative matter. In view of the decision issued today by the 3rd Department in the matter of Ashley v Worsell, perhaps it is time for the Legislature to act.

(For the record, I led the argument against using workers comp law to escrow funds from §32 settlements, arguing that this had to be done by the Legislature. As a commissioner, however, I and my fellow colleagues were prevented from expressing our opinion on this subject outside of that room. Now that I am not a Commissioner I can again raise the subject, but this time to the world at large.)

Devising a formula for the withholding of sums from the proposed settlement is relatively simple.

Since allocation rates are used in many cases dealing with Medicare, it should not be difficult to set an allocation rate on most cases in which the claimant has an outstanding lien against them for nonpayment of court-ordered child support. In most cases, child support liens range from 5% to 20% of compensation payments. Since we already know the gross amount of the settlement, less any medical set-aside (this is only for those put into escrow accounts) we can divide that by the allocation rate to determine how far into the future the settlement has been calculated to extend. And we simply multiply those number of weeks times a weekly lien to get a fixed amount to be deducted from the settlement and turned over to the state agency responsible for ensuring payment of child support liens.

• $50,000 settlement less $4,000 escrowed medical set aside = $46,000 net
• $200/week allocation rates = 230 weeks advance payment
• at $30/week current child support lien for 230 weeks = a total of $6,900 additional deduction for the child support escrow account.

There are two additional issues must be considered the legislation.

First, the child support escrow account should be modified if the child is approaching the age at which child support payments would stop. For example, if the child would reach that age in 200 weeks, then only $6000 should be put into the child support escrow account. There also has to be a means by which, if there is any other reason for the child no longer being the legal recipient of child support, then those payments stop and any excess amounts be returned to the claimant.

Second, if the amount of money being put into the child support escrow account will not be sufficient to ensure payments to the child until they reach the age at which they no longer qualify and the claimant/parent has not been paying child support directly but has been having that sum of money deducted from the escrow account, the claimant/parent may be lost to the system in any of a dozen ways and may also no longer feel any connection to the child if they have not had to pay child support for four or five years due to the escrow account.

Not to attach these settlement funds is to give an additional inducement to irresponsible parents who see taking a lump sum as a way of avoiding child support payments. This legislation not only could but should also apply to any disability or other similar payments including those awarded in any civil or administrative court action.

Next Monday’s poll will be on this subject. Then on November 9, 2009 when the results of the poll is published, this commentary in the poll results will be sent to the appropriate members of the state legislature asking them to consider changes in legislation necessary to ensure that those individuals who receive money as a result of civil court or administrative decisions do then ignore their financial responsibilities to the children that have brought into this world.

FEES ON MEDICAL EXPENSES

September 28, 2009: My reading of a case in Michigan (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) in which their top court found, in a 4-3 decision, that claimant attorneys should receive fees on received medical expenses brings to mind two different types of cases I have seen on this issue:

• §32’s: Assuming we all agree that a 15% or 10% fee is appropriate, should that fee also be on the amount allocated to the Medicare set-aside?
• Fights over medical treatment only, on which fees are not historically awarded.

WCL and precedent are that legal fees are to be based only on compensation awarded. But I have had, during my 12 years on the Board, a number of instances in which medical expenses and fees became relevant.

FEES FOR ONGOING CASES

On occasion, when a claimant has been awarded ongoing comp or it has stopped, there are no controversies regarding the compensation. But the need for a particular type of treatment or the frequency therein become the cause of controversy between the claimant and the carrier, the claimant’s attorney is called into the controversy to fight for the claimant’s rights. Be it in the form of letters, phone calls, formal hearings, or appeals, the claimant’s attorney incurs expenses and expended time on behalf of the claimant but, historically, is awarded no fee, except the occasional $75 appearance fee.

I remember a case in which a claimant’s spouse, an RN, provided that claimant, who had been classified for a permanent total disability (100% bedridden), with his medical care and then billed the carrier for her services at the rate for which an 3rd party RN would have charged for that 24/7 treatment. Without going into the details, this case involved an staggering amount of work, in part because the wife did not file her claim for the medical charges from several years so not only was the sum of money at dispute quite large, so were all the pages of backup. But since the claimant had already been classified PTD at the maximum rate, none of the work the attorney was doing would have an economic benefit for the claimant but only to the medical provider to insure proper treatment for the claimant. When the file came to me as a member of the panel hearing the appeal, the file must have been a foot thick. I am sure that the claimant attorney spend at least 50 hours or more working on this case. Yet, if he won, there would have been no fee.

On the other hand, the carrier attorney does get paid of defending against that same claim

This fee structure obviously puts the claimant at a serious disadvantage.

§32 FEES ON MEDICAL SET-ASIDES

Several years ago, I had a §32 settlement for about $800,000 of which $650,000 ( I am guesstimating at the numbers) was specifically noted in the agreement as a Medicare set-aside to be deposited into an escrow account. The claimant’s attorney sought a fee on the $800,000 but I calculated it on the $150,000 of comp. For to do otherwise, would have netted the claimant, after the $65,000 10% fee on the set-aside, $585,000 to pay for what was expected to be $650,000 in future medical expenses.

On the other hand, many §32’s for permanent partial disability (PPD) are settled for 5½ years as compared to the 5 years of similar settlement under §15-5b Lump Sums; The extra ½ for the §32 is assumed to be for any possible future medical expenses. But since many of these PPD claimants taking §32’s are similar to those taking the §15-5b settlement in that they have not had medical treatment in years and, unless that ½ year is put to an escrow account, the claimant has effectively received extra cash to use for ‘income’.

But since only about 35% or so of the §32 cases I saw were PPD’s, one could not so easily determine how much of the settlement was in lieu of future comp and how much in lieu of future medical. The carrier certainly was not going to give such a breakdown and the claimant’s attorney was interested in maximum dollars regardless of whatever ‘ghost’ allocation was done between medical and compensation.

Thus in most of these §32’s, without the formal escrowed set-aside, it made sense to most of the commissioners to accept a fee based on the gross amount of the settlement. In fact, if the set-aside was not more than 5%-10% or the gross settlement, most of us approved the fee as requested.

It was only on those occasions when he Medicare Set-aside was 20% or more that the fee was based on the ‘net’ compensation moving to the claimant.

Be that as it may, the Medicare Set-aside is subject to negotiations and the claimant attorney does work to get the amount he and the claimant feel is most appropriate. So perhaps some sort of renumeration is appropriate.

PROPOSAL

I propose the following:

§32s: The fee be set on the net, if there is a formal set-aside into an escrow account. Thus the claimant, if he really feels that that extra money is for medical expenses and should not be subject to a fee, should be wiling to deposit it into the escrow account. But if the claimant feels it is really just extra compensation, let them pay a fee on it.

Open cases: There should be a sliding fee schedule, the higher the medical expenses being disputed , the higher the fee to be paid the claimant’s attorney should they win, a fee to be paid bu the carrier over and above the medical expenses and not to be deducted from the claimant’s compensation. This would not be for those cases in which the issue of controversy is solely the degree of disability which may incur additional medical treatment.

The following fee structure, based on total medical expenses being controverted, is made up out of ‘thin air’ and is included here solely for the purpose of starting a discussion.

• under $1,000______No fee
• $1,000 - $4,999____5%
  
• $5,000 - $9,999____4%
• $10,000 - $24,999__3%
• $25,000 - $49,999__2%
• $50,000 and up ____1%

SUMMARY

Paying compensation to the injured worker is only part of the process necessary to allow the injured worker to return to the workplace as a productive member of society. Insuring prompt and appropriate medical care is just as important, as $400 a week in tax-free compensation but waiting eight months for surgery can well result in a PTD rather than temporary partial disability or a small SLU.

Ladies and Gentlemen, the floor is yours.

Matter of D’Errico [AD3d, August 20, 2009]
Case Analysis

September 11, 2009: The following is a guest commentary on this issue followed by my own brief comment.

Mental stress injuries related to the work place continue to challenge the WCB and the Courts and produce decisions of questionable jurisprudence. Matter of D’Errico reflects this phenomenon.

The element central to the Board’s and court’s analysis is the class of employees or threshold for compensability of a causally related mental stress claim. Unaddressed in both the Board’s and court’s opinion, however, is whether the facts of the claim ought to be analyzed as an occupational injury.

In Wolfe v. Sibley [ N.Y. 2d, 505 (1978)] the court held compensable a mental stress accident where the claimant discovered the body of her supervisor in his office. Here, the competent producing cause was a single event. In subsequent decisions, the courts attempted to fashion a threshold rule to evaluate other mental stress injuries which threshold, in effect, also established a norm for the required stress exposure:

• In Loh Lin [75 A.D. 2d, 702 (1980)], the court held that claimant’s job aggravation was the aggravation normally expected in the usual give and take of employment.
• In Wood [27 A.D. 2d (1980), the court held that the issue of mental stress must be examined on the facts from the common sense perspective of the average person.
• In Kaliski [151 A.D. 2d, 687 (1989)], the threshold norm was refined to require that the stress experienced by the claimant must be greater than the “usual irritations and differences to which all workers are occasionally subject.

Subsequent decisions have employed other criteria to establish the threshold class of workers:

• Pecora [13 AD3d, 917 (2004) held that there must be a showing that the affected claimant experienced stress greater than that which other similarly situated workers experienced in the normal work environment.
• Pinto [19 AD3d, 948 (2005)] the threshold required a showing greater than that experienced by the claimant’s peers. Unless all parties engage in demonstrating by evidence and proof of the threshold norm to support or deny the claim, the trier of fact is without a basis to evaluate the threshold norm.

In the case at bar [D’Errico], the WCLJ held the threshold norm to be “all municipal maintenance workers employed by New York City.” A Board Panel reversed the WCLJ stating that the threshold norm to be used “without evidence or proof” is the stress experienced by “other employees in the ordinary course of employment at a correctional facility.” The Appellate Division upheld this threshold.

The danger in these rules is that “ unsupported by proof or evidence “ they become self-sustaining without life, a ‟zombie” rule. Nor was this oversight neglected by the dissent which stated the threshold was employed in a “wholly conclusory fashion without any stated rationale, discussion of pertinent evidence in the record, or explanation of the reason for rejection of the classification applied by the Workers’ Compensation Law Judge.” The dissent also noted “that the record includes no evidence that non-penal correctional facility employees, such as administrators, clerks of cooks, were exposed to traumatic experiences comparable to those he alleged.” The threshold rule in mental stress claims can be said to be arbitrary as it is absent evidence upon which to base a legal decision or conclusion. In this way, the Appellate Division may avoid a challenge that its determination in upholding the Board is arbitrary, since it is based upon prior holdings; however arbitrary the rule may be. In its application, the rule creates unpredictable results which, by definition, are capricious.

Moreover, in light of the absence of rigorous legal analysis, the same rule can be deemed an abuse of discretion as the threshold rule is subject to no discernable legal scrutiny. These analyses are also supported by two observations in the mental stress cases herein cited: the several claims involving correctional facilities, each with a different class threshold [“peers”; “all employees in a correctional facility”; “similarly situated workers”]; and the fact that such claims arise in correctional facilities cogently suggests a more wide spread worker safety or exposure issue.

Neither the Board nor the courts have looked to the jurisprudence concerning analysis of mental stress injuries as occupational in nature. These include ( NYS Workers’ Compensation Handbook, Sec 302[1], 2008) “physical hazards as well as exposure to diseases and toxins. Repetitive stress injuries and degenerative back disorders are commonly established as occupational diseases.” The court has “clearly held that a case may be analyzed as either an accident or occupational disease as long as the disability developed over a reasonably definite period of time.” [ Handbook, ibid.]The occupational injury analysis avoids the “zombie” rule by focusing the evaluation on the lay and medical evidence to determine whether the mental stress experienced is, in fact, the competent producing cause. Such analysis also avoids the class threshold permitting the trier of fact to assess the “personal” nature of the injury without the enormous burden of determining whether any class [viz., peers, average person, all workers, similarly situated, etc.] may be found to experience mental stress.

In addition, the occupational analysis affords the trier of fact an additional factor to consider: the length of time in which the stress was experienced.

Some supporters of the threshold norm or class argue that, where the employer affords training to defend against mental stress, such should also be considered. Under this criterion, repetitive motion injuries held as occupational would be open to proof or evidence that the claimant had received training in the safe use of the machinery that caused an extremity injury and deny the claim. Or, that the claimant alleging carpal tunnel syndrome belonged to a class of workers that does not experience repetitive motion. The point is that it’s not the class of employees but the individual’s experience that must be regarded.

Is the claimant with a history of poor driving in a class suspect for accidents? Assuming, arguendo, that the class threshold were empirically demonstrated [viz., by research studies or reasonable evidence] it is not relevant to the experience of the individual. The claimant has neither a duty to develop nor can it be said that he enjoys some greater tolerance to mental stress than co-workers.

This is true even where prevention or safety training is evident because such relies upon yet another set of norms to be considered relevant. Absent proof or evidence, the D’Errico rule requires, at a minimum, that the trier of fact have some knowledge of the work experiences of employees in correctional facilities in order to assess the claim. Clearly, this is not possible. This same experience would be necessary for the trier of fact to assess hateful conduct to which the claimant was exposed (e.g. sexual or gender, racial or ethnic). Should the class be employees at Sing Sing, Attica, or Riker’s Island? Again, the length of time to which the claimant was exposed becomes a crucial issue in the fact pattern.

D’Errico and its antecedents present infirmities of legal reasoning and jurisprudence not consistent with the purpose [Wolfe, supra] of the statute or case law. Employing a threshold of a class of workers fails to consider the fact pattern and further suffers from establishing classes of questionable criteria, application, and relevance and are not demonstrable.

What, in fact, is the experience “norm” for any class and what must the trier of fact rely upon for that evaluation? Ultimately, it is the medical and lay evidence.

My review of the above

Had I been on the Board Panel, I would have affirmed the law judge. Would a staff worker in the warden’s office who visited the area of incarceration every three or four weeks also be considered part of the same class as officers who deal with these conditions every day? I think not. Or I would hope not.

Also, the writer raises a point about which I have raised my concern on more than one occasion at the board. He call it the ‘zombie’ rule. I call it the ‘domino tree effect’. Pile up some dominoes with each successive layer moved to one side every so slightly. After 20, 30, or so dominoes, the one on top is no longer over the one on the bottom, possiblye covers only 5% of the bottom one and the pile falls over. Too many legal arguments are like that. The Board, because it is easier to move the line, say for a ‘class, slightly in size rather than rethink what was the purpose of the class in the first place, generates automatic ‘zombie’ decisions.

Under Chairman Weiss, at pre-board, such issues would be discussed to make sure that the legal zombie/domino rule did not blind us to (1) common sense and (2) the real goal of workers compensation. But these discussions were only once a month, for well under an hour, usually only on one issue.

But I do not feel, unlike the writer, that having an attorney on every panel would solve the problem. I have served on panels with attorneys who were too intellectually lazy to think about the bottom domino. Rather it was the ‘ignorant’ non-attorneys who felt that the proposed decision missed the point.

But until the Commissioners, all of them, are willing to spend some intellectual capital discussing threshold issues, more bad controversial decisions like D’Errico will be made.

Comments are welcome.

Project 2015: The end of the WCB Board

September 4, 2009: In a report published today by Mike Whiteley, the Eastern Bureau Chief of WorkComp Central, the Secret Cabal at the NYS Workers Compensation Board, actually a secret work group headed by Executive Director Joseph Pennisi, is making plans to eliminate all hearing, apparently by 2015 if not sooner, based on the Canadian WC system.

When former Chairman Zachary Weiss stated at the pubic monthly meeting of the Workers Compensation Board, “There comes a time when due process must come to an end”, I thought he was kind of joking. He was not.

When Weiss, who had a background as a criminal prosecutor, was on the special committee established by Governor Spitzer, we had lunch and he spoke to me about, among other subjects, eliminating hearings. He said that hearings (trials) at the WCB were taking too long, seeming to go on endlessly.

I argued, apparently unsuccessfully, that I saw a major difference between WC and the criminal justice and civil court systems. In these court systems, the basic issue deals with an event that occurred on a specific date or dates in the past. The decision being sought deals with how to resolve that question.

Workers Compensation is quite different, for it deals with establishing not only ANCR (Accident, notice, and causal relationship), but the awarding of compensation as the claimant’s degree of disability and ability to return to pre-injury wage levels changes over time. In addition, questions arise as to medical treatment and surgery that change over time. For a similar case in civil court, projections are made on wage loss and medical expenses (and pain and suffering) and a one-time amount is determined. If the actual lost wages and/or medical treatment is in excess of or less than that settlement, no adjustment is made.

But in the WC system, the concept is to pay what is necessary to make the injured worker as ‘whole’ as possible.

This can not be done in a hearing six weeks or even six months after the date of injury. In fact, in order to qualify for an SLU, there must be a one year waiting period, that is unless the Oligarchic Cabal can arrange for the claimant to achieve ‘maximum medical improvement’ within some fixed period of time.

So the concept of having all hearings done in a short and fixed period time has no meaning in WC.

As to the concept of hearings themselves, perhaps no one has considered the history of the U.S. as compared to that of Canada. In this country, we believe in trial/hearings even in administrative justice so that both sides can not only have the chance to present their side of the story but to face their accuser/opponent: we give far more power to our citizens.

The Board, under its current program of requiring that most medical testimony be done by deposition, implicitly acknowledges the rights of parties to cross-examine their adversaries’ witnesses. Why should this right not also apply to the claimants and employers’ witnesses? Or perhaps the Board will develop a criteria under which all these cross examination will also be done by deposition.

The fact that this new process will add substantially to the time it takes a claimant’s attorney to handle claims without any commensurate increase in their fees is irrelevant, or is it? [ED. NOTE: I am assuming that this is in the new process but because this is a secret project, no one really knows.]

And, of course, the carriers’ attorney will thus have an additional source of revenue, for the billing attached to the time to set up the depositions and the travel to the locations to actually do them.

As a commissioner who participated in about 40,000 decision on paper and about 4,000 hearings, I have rather strong opinions on this subject. Yes, the Memorandum of Decisions (MoDs) done by the commissioners were done on paper and only a small percentage of these cases went to an oral argument. (And the Oligarchic Cabal has been very aggressive in eliminating oral arguments which too many of the insouciant commissioners are only happy to go along with. This way they only have to fly up from their Florida homes for the monthly meeting and not a mid-month hearing.)

Yes, for the last umpteen years, MODs have been done on paper with only few going to a formal hearing. But these MoDs are not fact finding decisions. The facts are already be in the file, used by the law judge in making the decision. The Commissioners, just like the judges at the Appellate Court review already established facts and determine if (1) the facts add up to the conclusion reached at the lower lever and (2) the law is being properly interpreted in the case.

“He said/she said” issues are not resolved by reading an accident report. Not only does not one write an accident report that covers all the facts that occurred at the time but two witness may have seen the accident from different perspectives and only by close examination, at a hearing, can the correct one, if there is one, be found.

Sometimes, the engaged commissioners when reading an MoD would ask for an oral argument because the issues in front of us were deemed to be too complex to be dealt with on the basis of one appeal and one rebuttal. It is only at a hearing that such differences can be resolved and, sometimes, when the opposing parties are at the table a compromise can be reached that could never have occurred with a law judge reading documents.

So why is this being proposed?

I do not think it is to speed up the system as much as it is to invest even more power in the hands of the Albany bureaucrats.

I know from my own experience as a commissioner that too many MoD’s were given to me that did not reflect the true facts in the case or the current law but appeared to be written for some other purpose. And in view of the fact that a number of commissioners never read the MODs before signing them and one panel was made up of three insouciants, the bureaucracy could determine who won and who lost. When the case was before a law judge, the law judge, in an open forum, i.e. his decision could be appealed to the Commissioners, would make his decision in the light of day. If the bureaucracy were to make decisions out of the light of day, one would find as I did with my own database that certain commissioners and law judges had certain prejudices on certain issues and for certain claimants - their voting patterns were well off the standard deviation of the stats for the other commissioners on the same matters.

But if decisions are made in secret, then several goals are accomplished.

The Oligarchic Cabal does not have to put up with the ‘people’, be they the attorneys or, more importantly, the claimants. I can tell you that it amazed me as a commissioners how far some commissioners went to avoid having to deal with claimants. And there would be no need to hear lawyers argue a case (or harangue the law judges as one commissioner would complain).

Hearings would get done faster and the cost of running district offices would be reduced, although the Oligarchic Cabal in Albany would have to/be able to hire more staff to do the work, and there would be less complaints because there would be far less light on the proceedings.

I have proposed that one could write a computer program into which both sides would put all the pertinent facts. The computer would then match that information up with the tens of thousands of similar cases and come up with an answer based on all those prior decisions. There would probably be a 99% accuracy rate. I was told I was stupid and the idea ridiculous.

But, lo and behold, the idea has risen again, only this time the board staff will make those determinations based on documentary submission by the aggrieved parties, based on these individuals’ interpretation of the facts and their own prejudices, but behind closed doors

This secret 2015 project goes against all the attempts at fairness I have seen fought for, for years by board staff, the bar for both sides, the unions, and employers.

It will only be stopped if you, the community which is the constituency of the WCB, make your voices heard. At this time the New York State Workers Alliance is leading the fight on this issue. Others must join.

Stay tuned for developments as the Oligarchic Cabal gives us a good reason to think about the true meaning of Labor Day.

September 4, 2009

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The New Medical Guidelines(?!)

In my COMMENTARY last week about the result of the poll on the Board’s failure to issue medical guidelines and the impact it had on §32 waiver agreements, a number of people pointed out that the NYS WCB has in fact published those guidelines.

These were published under Subject Number 046-270 (January 26, 2009) “Proposed Medical Treatment Guidelines” and Subject Number 046-346 (August 13, 2009) “Final Request for Comments on Medical Treatment Guidelines”.

But these are not what I was making reference to, as I already made reference to these documents months ago, when they were first published. I find fault with these documents for two reasons:

FIRST REASON: Degree of Disability

While these guidelines go into great details on defining certain medical conditions, treatment, and therapy, there is nothing in here that references the key point: the injured workers’ ability to return to their prior job and therefore the degree of disability, be it Mild-Moderate-Marked-Total or 25%, 50%, etc.

As has been noted several times in this web site, in my book “Behind The Closed Doors”, and dozens of other articles by other writers, the loss of the left pinkie finger for a right-handed file clerk is substantially different from that for a right-handed professional violinist. The fact that two individuals have the same injury does nothing to address degree of disability and the impact of that disability on their ability to return to work, which would be different for a file clerk, a construction worker, or a teacher.

SECOND REASON: Medical terms and treatment

Now I am the first to admit that I am not a doctor BUT, my wife, my mother, and I, all within the period of one year each had major surgery done by one of the top orthopedic surgeons in New York City for the same site of injury although for different problems. I have copies of all the medical records but I could not find anything in the medical guidelines for that body part that matched our injuries/conditions that required the complex surgery for each of us.

SUMMARY

So not only is there no treatment guidelines that applied to our injuries and I am sure dozens of other injuries for others, the most important part of the puzzle is the degree of disability. What I found interesting is that my wife’s condition qualified her for a minimum 66% SLU even though her functional capability was almost returned to normal. She was considered to be at the 95% recovery level. But the 1996 Medical Guidelines were very specific: she could not qualify for a ppd but only for an SLU and at a minimum of 66% even if she were 100% functionally ‘cured’.

So not only is there no treatment guideline that applied to our injuries and I am sure dozens of other injuries for others, the most important part of the puzzle is the degree of disability. What I found interesting is that my wife’s condition qualified her for a minimum 66% SLU even though her functional capability was almost returned to normal. She was considered to be at the 95% recovery level. But the 1996 Medical Guidelines were very specific: she could not qualify for a ppd but only for an SLU and at a minimum of 66% even if she were 100% functionally ‘cured’.

The Medical Guidelines are just that: guidelines to define, classify, and treat injuries.

Perhaps what the legislation should have called for is “Degree of Disability Guidelines” or “Functional Capability Guidelines”.

August 28, 2009

The Appellate Court’s Split Decision

As I noted in today’s DECISIONS page, today’s 3-2 split decision in D’Errico v New York City Dept. of Corrections at the New York State’s Appellate Department, Third Division, the issue had to do with the size of the class within which the claimant’s employment fell. This issue was whether or not the claimant’s various psychological problems were the result of exposure to a greater amount of work-related stress than that normally experienced by similarly situated employees at correctional facilities.

Although the claimant’s appeal of the underlying decision was denied due to a late appeal, it seems as though there was no question that the claimant did suffer from severe major depressive disorder with psychotic features, posttraumatic stress disorder and panic disorder with agoraphobia. Claimant sought workers’ compensation benefits, asserting that his illness was caused by his exposure to violent incidents in the course of his employment as a maintenance worker for the New York City Department of Corrections.

The Law Judge ruled in the claimant’s favor only to be reversed by a Board Panel, which used a narrower definition of a work class than did the Law Judge. A Full Board Review (FBR) was denied on the grounds, per the Appellate Court’s 3-member Majority, that the claimant “must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”, but in this case, failed to do so.

After having served on the Board for 12 years and been involved in dozens of decisions on cases involving WCL §2(7) stress issues, I agree with Judges Garry and Stein in their dissent.

I have often said that the difference between a conservative and a liberal is that the conservative throws a dart to try to hit the bull’s eye on a target whereas the liberal throws that dart and then paints the target.

In this case and similar cases in determining the size of the ‘class’ of claimants, the decisions are more often than not, for many of the commissioners, dependent on the employment of the individuals whose cases are being reviewed and how sympathetic they are. Because the legal precedents quoted several times in this decision allow the Board discretion, the decisions are usually upheld. But as happens in many cases including this, there are no specific list of indicia given in the decision that would help anyone distinguish this case from any others.

And while there does not have to be a numeric census of a group to determine how big a ‘class’ has to be, there has to be something to distinguish the decisions. The first time I had such a case involved a traffic enforcement agent (who issued parking tickets) who filed a stress claim due to harassment for the public to whom she was giving tickets. My panel ruled and won a FBR on the issue that this particular class of employees (those who give out parking tickets) were not only regularly subject as a part of their job to harassment from the public but were trained as a part of their duties how to deal with it.

But this list of indicia to distinguish one group from another takes a lot of work and it appears that the writers of the original decision which reversed the law judge, the commissioners on the case, and attorney in the Office of General Counsel who recommended denying FBR, and Vice Chairman Libous who signed the denial felt that Board discretion was sufficient to withstand an appeal to the Court.

As such, this is another example of a poor Board decision. Poor in the sense that it deals with a major issue and a simple ‘yes/no’ does not suffice. A clarification of indicia would have resulted in the Board making a decision that would have received unanimous affirmance from the Appellate Court.

Now, not only was a lot of time and money wasted, and a claimant’s’s expectation dragged on for another year, but an opportunity was lost for the Board to define an issue which in my expectation would prevent or at least minimize additional appeals on such issues. Hopefully, based on a 3-2 decision by the Appellate Court, this will go to the Court of Appeals where it will be, hopefully, determined that the Board has a responsibility in such cases where it has the discretion noted by the Majority which referenced the Matter of Green v Kimber Mfg., Inc., 59 AD3d 782 , 783 [2009], lv dismissed 12 NY3d 865 [2009]; see Matter of Barber v New York City Tr. Auth., 50 AD3d 1402 , 1403 [2008]; see also Matter of Lehsten v NACM-Upstate N.Y., 93 NY2d 368, 372 [1999]).

August 21, 2009

 

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Comp Board Blocks “The Insider” as Spam!

After nearly one year after my departure from the New York State Workers Compensation Board, the Board has formally recognized my existence . . . By denying it.

Sometime between the 3rd and the 7th of August, 2009, the Workers Compensation Board added my e-mail to its SPAM list so that members of its staff can no longer receive my e-mail alerts, or any personal messages, for that matter.

The WCB is like many bureaucracies with little centers of power each of which has its own objectives, even if for many it is not for the betterment of the injured workers and their employers. During my time at the Board these various interest groups ignored or rejected recommendations not just from me but from other concerned staff and commissioners. And, even though I am no longer at the Board, this practice continues and I assume is the reason my e-mails are now being blocked.

The NYS WCB has the legal right to do this. And I am sure that they will explain the reason is that they wish to restrict the use of Board’s limited resources to only those flows of information which they feel enhance the goals of the Board, as determined by them.

I have no intention of getting into a ‘whose is bigger’ contest with the Board for the simple reason that is not the purpose of this website. I see no reason to take away from this web site’s goal by getting in a ‘tit for tat’ with the Board. I, too, have limited resources but feel they are best used helping the workers compensation community in New York State, including Board staff, rather than limiting the number of people who can contribute to the community and participate in the necessary conversations.

My postings have included unedited comments from some who vehemently but articulately and maturely disagree with my points of view. Many have made excellent points and, as a result, I find myself readjusting my views and recommendations. And, when I have made mistakes in my postings and I have made a ‘beaut’ or two, I have admitted same and fixed it.

Yes, I have been critical of the Board but I have also given a tip of the hat when it is deserved, as often as not for putting into play some of the suggestions which I have made. (I am not claiming that it was my suggestions alone which prompted these changes but I like to think they may have been the straw that broke the camel’s back.) In fact, I have been told that the Board now duplicates another of my features by letting key staff know about workers compensation related decisions issued by the Appellate Division 3rd Departments within days of their being issued and not once a month or so.

And I understand that serious consideration is now being given to CLE courses for Licensed Reps and even better training for the new commissioners, perhaps on a regular basis.

As for the decision by the Oligarchic Cabal to ‘silence me’ because I am ‘abusing’ e-mail access to their staff, my e-mails have always offered every recipient the opportunity to opt out and some have. But for each one who has said “take me off your list” there have been another five who have asked to be put on the list. But, again, if the Board does not want Board staff getting these e-mail alerts about news and updates on my website, that is their option. And I will not use my computer skills to get around that block. [ED NOTE: On August 14, 2009 I did use my computer skills to by-pass the Board block solely to let Board staff know I and the web site are still around. I will not do that again.]

For if anyone at the Board would like to continue receiving my alerts, they need only to click here TheInsider@InsideWorkersCompNY.com and give me a non-Board e-mail address. My list is stored not on any website but on a secure hard drive so everyone’s privacy insured.

Closing one’s eye, covering one’s ears and loudly repeating “nah nah nah nah” only means that you will not know what is going on in the world around you, for the world, its critics and its cheerleaders alike, will still exist. To those at the Board whom the Cabal would like to block from knowing of my continued existence, I invite you to continue to participate in the conversation as you have in the past: privately and in confidence but now from your homes.

This is the last I will have to say on this subject for there are far more pressing issues in the workers comensation world that need to be addressed.

August 14, 2009

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Part III: More Comments on
“bench briefs” - unedited

The following is the unedited comment from an attorney:

Having read the latest dialogue on the issue, I offer these as considerations:

That non-attorneys may represent claimants and carriers does not fully justify that fact - it is self-serving and does not rise to “legal representation” which was the category on the Board’s web site until recently;

1. The limits on non-attorney representation [e.g. non competence to appeal to the AD3d or represent a corporation] should be clearly defined on the Board’s web site;
2. Legal reasoning is a predicate based upon jurisprudence [including case precedent, analysis, and application] that supports an argument; non-attorneys, unfamiliar with such analysis, may not appreciate this art;
3. The WCL has grown increasingly legalistic, including regulatory reference to the CPLR and rules of evidence [viz. video tape and “chain of evidence”];
4. CLE should be required of Lic Reps and all Commissioners as a means to restore the long standing mission of the WCL and its jurisprudence.

The point is that there exists a more vital set of public policy issues that need to be addressed.

It would be nice to hear from a licensed rep!!

Part II: Reader Comments on
“bench briefs”

I am pleased to post the following response from an attorney on my discussion of legal briefs. As I did in last week’s commentary, I do agree with a great deal of what is written.

I think I can summarize these comments by stating that the writer feels that the Board must put its best foot forward in its decision making process and I agree. But the question is whether or not attorney can assure the best results. His remarks follow after which is my response.

READER’S COMMENT

It’s up to you if you publish the comment or not. I think it will find wide acceptance among the attorneys on both sides, since I often hear defense attorneys complain about the non-attorneys on the Board Panels as well. Everyone just wants a fair hearing, and those of us who spent years studying legal theories which go back centuries want somebody with a similar background to hear our arguments.

For instance, I once used the following statement of law in a successful matter before a Board Panel, where a carrier’s attorney attempted to submit redacted correspondence (offering a specific but paltry settlement and further terms that were redacted, in addition to a demand to see attachment proofs if my client did not accept the offer, which condition was also redacted while leaving only the demand for attachment proofs) from himself to myself in order to prove that the carrier was entitled to an immediate reopening in a PPD case:

The Best Evidence Rule is a common law rule of evidence. This rule precludes admissibility of secondary evidence such as copies or facsimiles or hand-redacted versions of correspondence between parties whenever the original document still exists. The reason for preclusion is that such evidence is not “the best that the nature of the case will allow.” Omychund v. Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33. In this case, the carrier has attempted to submit redacted correspondence to prove the truth of its assertions, yet the carrier has not provided the Board with the full context provided by the un-redacted, original correspondence. In doing so, the carrier has denied the Board a chance to fairly consider whether the redacted “evidence” may stand for that which the carrier asserts.

Now, the problem for attorneys related to the above-stated example is that the Commissioners all know that there is no strict application of the rules of evidence in WCB matters, but the prudential reasoning which resulted in the 1745 Omychund case is well-known to practicing attorneys in ways that political appointees would not be trained to immediately realize. What would they think of the language, “the best that the nature of the case will allow?” Maybe nothing. Would they immediately recognize that some of the redactions might cover, as it did in this case, conditions precedent to the carrier’s demand for attachment proofs (which were not met)?

Thus, if there is an attorney on a Board Panel, I can basically just remind the Board Panel regarding the rule and then not go into every prudential consideration which may apply, because I can trust that in mentioning the rule under the circumstances described above, any trained attorney is going to have convulsive flash-backs to incidents where the Best Evidence rule applied in that attorney’s own private practice, or at least back to law school where the expansive reasoning for the Best Evidence Rule, together with specific examples for why the rule evolved, were DRILLED into each prospective attorney’s head by countless professors who knew the pitfalls for not respecting this venerable rule. By contrast, if there is no attorney on a Board Panel, I am much more likely to suffer some rather dim analysis that “the Board will just accept the [doctored] evidence because there is ‘no strict application of the evidence rules.’”

Indeed, the WCB must consider judicial interests which apply in the collateral civil courts, such as the perception of fairness which the public has when considering whether the WCB is doing a good job adjudicating comp cases. If the WCB cannot be perceived as doing a good job, its mission will be adversely impacted because more injured workers will opt out based on a real perception that they won’t get justice anyway. For this and many other important reasons, the Board should likely not play fast and loose with the rules of evidence and procedure which have evolved over centuries of western legal thought, even if the plain language of WCL §118 might permit otherwise. In short, a trained attorney provides a safeguard to protect against imbalanced, inconsiderate, arbitrary and capricious process; and in so doing, the presence of the trained attorney communicates the WCB’s commitment to deep and proper adjudication of the cases and arguments which are brought by the parties before the Board. This furthers an underlying mission of the Board to obtain and foster the public’s confidence and trust while the Board is resolving the various claims it considers.

For these above reasons, I continue my position that the Board would be incorrect in convening panels without an attorney, even if the technical language of the statute might allow for this in a particular case, or where the omission of an attorney was incidental and not the product of a formal Board policy. The Board should not reduce itself to relying on mere political appointees. That will do nothing to foster the public’s confidence, nor to ensure that venerable rules and notions of law are properly considered within the disputes the Board must resolve.

MY RESPONSE

Attorneys do have training in legal reasoning that most non-attorneys do not. However to make the case that only someone trained to be an attorney has the ability to reason in such a manner is not a point with which I will agree. Nor do I feel it is necessary. And the State Legislature would seem it agree with me in two different perspectives.

• Non-attorneys who meet certain Board-established standards are allowed to practice workers compensation law: Licensed Reps
• WCL §142 only requires that there be a minimum of four attorneys on the Board thus implying that up to nine need not be attorneys.

Based on my statistics, about 60% of the cases deal with medical issues (causal relation in ANCR, further causally related disability, Schedule loss of use versus permanency). These require more medical understanding than legal training.

Another 20% or so deal with basic legal issues with which board panels deal on a regular basis: ingress/egress, in and out of the course of employment, special/general, independent contractors, etc. While there are thousands of prior cases to be cited and hundred of Court decisions to use as a guide, essentially, many of these cases deal in the gray area and a non-attorney as is qualified to draw the line where they feel it is appropriate as is an attorney.

And then there are about 5% or so of the cases that deal with complex legal issues. I shall reference two.

• ERISA and SLU’s: The issue had to do with the interpretation of the ERISA agreement with Verizon on about 2000 cases. This was a complex issue that one could agree was beyond the skill set of the non-attorneys. But the Office of the General Counsel wrote most of the original decisions on this issue, after conferences with attorneys from both sides of the issue, many of their original decisions were reversed or rescinded by the Court and it took about four years before some basic guidelines for these cases could be done. So it would seem that this issue was beyond the skill set of the attorneys at not only the Board but at Verizon and the claimants’ counsel. In fact, even the Court spent a lot of time communicating with the NYS WCB in order to get a sufficient understanding of the issues to make a decision.
• ATF and the deposit: retroactive and future. This is an ongoing battle internally at the Board with a Full Board Review being used as the basis for 82 cases. There is also a case pending in the U.S. District Court for the Southern District. By the way, the controversy at the Board started when one of the non-attorney commissioners raised some questions. So while one can argue that this issue is beyond the skill set of the non-attorneys, it would seem that the attorneys are not doing that much better.

As to the respect that will be given to decisions issued by the Board panels, this is a function of the commissioners who sit on the panel.

Virtually everyone one of you who reads this website at one time or another appeared before a panel of commissioners. When the questions from the panel showed a knowledge of the cases down to the smallest of the details, an understanding of case law with reference to prior cases and citations while seeking to further refine the adversaries arguments, I am sure that you felt your client got a fair hearing. And you also know that some of the those leading in the questioning were/are not attorneys. And you also know that some who were attorneys seemed to have no idea what was going on.

Your respect for the decision being rendered is a function of how you feel that the panel members dealt with our case.

But the writer of the above comment and I agree on one point: MORE TRAINING

The fact that someone has a law degree does not mean they automatically know what they are doing. How often have we all had at a hearing a non-comp attorney come in thinking that administrative law was second-class law and proceeded to make a fool of themselves, even if the person on the other side of the table was a licensed rep?

So all the commissioners need training, I am do not mean even more than they get now, I also mean ANY. How soon after Commissioner Foster-Tolbert joined the Board was she on a panel and signing written decisions? Do you think she had sufficient training so soon after her appointment as to make proper judgements? I am not trying to embarrass her for this holds true for anyone appointed to the Board after about 2000 or so: no training. At least Higgens has some experience with WC issues so he at least knows the ‘secret’ language which is the trade talk of any profession.

As to the comments, “The Board should not reduce itself to relying on mere political appointees. “, I add the following comment: “The lawyers on the panels area also appointees. In the 12 years I was on the Board we had as chairman (appointed, pro-tem, acting) six individuals. Some were ‘mere political appointees’. Others offered true leadership.

If there were rigorous training of the commissioners and those who sought the position realized that the position entailed actually working, then be they attorneys or non-attorneys, the goal of the writer and I would be achieved: better and fairer decision making.

August 7, 2009

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Reader Comments on
“bench briefs”

I received a number of comments regarding my COMMENTARY (see below) last week about legal briefs for the Commissioners.

Today’s posting will address some of the issues raised in one of them.

With respect to “bench briefs”, I am not convinced that the Board staff even knows what they are. However, the substantial issue, as with most legal ones, also involves process, especially with lay Commissioners. The Board has a responsibility, not merely to craft MOBPDs, but to advise Commr’s on the issues. By limiting proposed decisions to the last precedents, the Board fails to communicate the purpose of the law.

In this same vein, the Board has a public responsibility to require CLE of licensed representatives as its web site holds them out - and provides a list - as legal representatives for claimants. Just another example of the Board’s failure to perceive its public mission.

While it may be true that most do not or cannot read [I assume the wrier refers to the Commissioners and not the Lic Reps], the process is equally important. It may be argued that the historical legal context should be covered, e.g. Husted and its progeny, i.e. just what are the safe precincts in traveling to and from work?

CLE’s: I agree 100% with the recommendation that both the Commissioners and the licenses rep take CLE’s.

In my book, Behind The Closed Doors, in Charter 6, I wrote that “some discussions have been held about requiring licensed reps to keep up-to-date with an educational program. Just as attorneys in New York State are required to take CLE (Continuing Legal Education) credits, licensed reps should be required to do so as well. Since the WCB does conduct its own in-house CLE programs, it would not be too difficult for them to conduct three or four a year, via video conferencing, for which all licensed reps would earn two or three credits a year. The course outline would be identical and the WCB staff attorney who gave the in-house CLE could easily give the same course to outside parties as the CLE credits are approved by the New York State Bar Association.”

I even suggested at the Injured Workers Bar Association dinner I attended earlier this year that that association should set up some sort of ‘associate’ membership so that licensed reps could join and thus get access to all the CLE courses.

As for the Commissioners taking CLE courses, I totally agree and I also address this in my book.

Since the pre-board meetings vary in length, there is no reason that one hour can not be used to have either a formal CLE course or an open (planned in advance) discussion on the issues. During the time that Chairmen Snashall and Weiss conducted the pre-board meetings, there were informal discussion on issues such as Husted. And when Commissioner Henry was acting Vice-Chair he, too, attempted to set up some similar discussions. But far too often these have not only NOT take pace, but there are some who feel that the commissioners should not be discussing these issues lest they be consider to be making policy. Duh? Isn’t that what they are supposed to do.

The current training program for the commissioners is abysmal and the only time they really get involved in any substantive discussion is when they are either at pre-board or oral argument, too late to suddenly learn about an issue and its history.

This is one reason I had always been critical of short decisions which essentially said “You win, and you lose” rather than taking some time to explain the basis for the decision, with possibly referencing prior citations to explain why they were being followed or how the small differences between them and the case at bar warranted a different conclusion.

This is one reason I had always been critical of short decisions which essentially said “You win, and you lose” rather than taking some time to explain the basis for the decision, with possibly referencing prior citations to explain why they were being followed or how the small differences between them and the case at bar warranted a different conclusion.

But this process takes work and there are still too many people in power who just do not want to do that. A Monday afternoon at Crossgate Mall is far mor rewarding for some than learning about an issue that effects thousands of injured workers.

Any while I hate to make his life more difficult, Chairman Beloten, who has been in the trenches and undoubtedly the victim of some horrendous reviews of his own decisions as an administrative law judge, is in the position to make these changes happen.

In the meantime the IWBA could talk to the licensed reps and seek some sort of accommodation with them.

I received another long e-mail on this subject and shall reply to that one next week.

July 31, 2009

Should the Board present
“bench briefs”
[pro and con opinions] to panels??

Today’s commentary was suggested by an e-mail exchange with an attorney, who has appeared before the Board, asking if it would make sense for the Board to present “bench briefs” to the panels.

In fact, this had already been done. In late 2000, it was decided to assign an attorney from the General Counsel’s office to each of the four panels. One was Rick Anderson and the other was Michael Hanuszczak who was assigned to my panel although Anderson also wrote for us on occasion. This concept did not work an was discontinued after just a few months into 2001.

To understand why the briefs did not work, you must first understand how commissioners reach the decision that they do.

When a party to a law judge decision does not like the results, they file an appeal with the Board and then the other side files a rebuttal with the Board. So who is the ‘Board’ with whom these documents are filed?

The first point to understand is that there is no ‘Board’. The word ‘Board’ is an amorphous term which includes about 1,500 employees. The decisions are not those of a ‘collective’ but of one, two, or more individuals, specific individuals, and it necessary to understand who are these individuals.

[This concept applies to all level of government. It is not some beneficent collective making decisions and setting policies. The collective may go along with the concepts suggested/ordered by these ‘individuals’ but these are department heads or commissioners, or political leaders who sits at a desk and announces “This is what we will do.” The ‘Board’ is no different.]

Those who get the appeals and rebuttals are a group of about 60 attorneys, called writers, working in the Administrative Review Division (ARD) under the leadership of former Albany Senior Law Judge Madeline Pantzer, a department formerly know as the Office of Appeals and before that the Review Bureau.

Allegedly assigned randomly to a panel of three commissioners, they collect all the papers and write a proposed Memorandum of Decisions (PMoD) which the writer then submitts to a panel. The panel is supposed to read the PMoD and review the attachments. The commissioner can either approve the PMoD or reject it, for anything from a minor typo to a disagreement with the entirety of the PMoD and the reasoning incorporated into it by the writer. If rejected, the PMoD would then be subject to dialogue by the panel and writer until such time as a resolution was reached, be it a unanimous decision, one with a dissent, or concurring opinion. And on occasions, the case would be sent for an oral argument.

That many commissioners just sign MoDs without readying them is a subject about which I have written quite often but is an important part of this discussion. A more detailed description of the decision making process in noted in Chapter 8 through 16 of my book, Behind The Closed Doors.

When there is a panel of engaged commissioners, they read the PMoD, look at the backup documents (appeal, rebuttal, medical reports, minutes, etc), think about the issues and other related cases and make a decision. If we all agree, who needs a ‘special’ counsel or a brief. After all, the brief is nothing more than another analysis of the case, like the PMoD drafted in outline form. But if the three of us on a panel disagreed and we all knew what we were talking about (which the engaged commissioners did), the last thing we needed was a fourth voice (Anderson or Hanuszczak) who could not vote.

But for those insouciants who did not read the backup documents or even the PMoD, does any one really think they would then look at the legal brief? Of course not.

It was even suggested that the special counsel be available during oral arguments in the event that the commissioners had any questions. But I reference the point I made above about reading the MoDs. Those of you who have argued before a panel at oral argument know that some commissioners know the details of the case quite well and ask very direct questions. Others kind of take up space and, when they ask a question, it is based on something said at the hearing rather than based on something in the papers in the file or even the PMoD.

As the quality of MoDs gets better, the engaged commissioners will get even more information about each case, as the MoDs explain the reasoning behind the decision and all the facts used in making that decision. And the insouciants will continue mindlessly signing cases and attending hearings regardless of any attempt to help them better review the cases.

If the commissioner is interested and takes pride in their work, if they have a question about a PMoD or an issue, they will ask someone in the ARD. If they don’t, then any number of briefs and hand holding will make no difference.

In summary, while legal briefs are a good thought, those who need them won’t use them and those who would use them don’t need them.

July 23, 2009

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 Who’s Left to Sign Decisions?

July 17, 2009: Now that Commissioner Scott Firestone has announced his resignation from the Board joining Chairman Zachary Weiss as a new administrative law judge in the Federal Social Security Court system, there is a shortage of attorneys at the NYS WCB which may well result in a substantial delay in the completion of Memorandum of Decisions (MoDs), those appeals by claimant and carriers whose delay will result in stalled resolution to medical care and compensation payments.

The issue resolves around the interpretation of the law as well as the Board’s policy and practices.

The controversy is that there are two interpretations of whether or not each MoD must have, as one of its three panel members, an attorney. Per WCL §142, the Board, when it has all 13 members, must have a minimum of four attorneys and delineates some of the Board procedures that requires that at least one of these four attorneys participate. Currently there are five attorneys: Weiss, Bargnesi, Beloten, Ferrara, and Firestone. But after the resignations of Weiss and Firestone take effect next week, there will be only three. And one of the three, Beloten will be come chairman and the chairman does not, historically, participate in signing MoDs. Thus there will be only two attorneys plus five non-attorney Board Members: Bell, Finnegan, Foster-Colbert, Libous, and Paprocki.

Until 2004, panels did not always have an attorney but, after 2004, each panel was required to have an attorney. Since the Chairman does not sign MoDs, as of next week there will only be two attorneys: Bargnesi and Ferrara to review all the MoDs.

If there are the usual 1200 MODs per month, they will each have to do 600 a month or 30 a day. The other six commissioners will be paired up to make the 2nd and 3rd person on each panel; 3 sets of pairs means 400 cases each, leaving the two attorneys with 50% more work. If there did not need not be an attorney on each panel, there would be eight commissions or three panels (one rotating member chosen at random) would mean 400-425 MoDs per commissioner per month.

So how does this impact on claimants?

If the Board stays with the ‘attorney on each panel’ practice, it will be very difficult for these two attorneys who read every case quite carefully and actually reject cases for contact and incoherent writing. While I use 20 days a month as the work month, there are actually less devoted to reviewing MoDs as there are hearings in their districts as well as two days in Albany each month. Among the ‘engaged’ commissioners it is acknowledged that 30 or so cases a day is the maximum that can be done but often it is less if there are complex cases to be reviewed and, far too often, MoDs to be rewritten.

And while there may be some at the Board who will argue that some commissioners can sign 80-200 MoDs a day, these same people do not use the phrase “read 80-200 MoDs a day”. And my personal experience has been that both claimants and employers who lose cases do not object as much if they are treated with respect. And that, in part, comes from a well written, well-reasoned, coherent, and grammatically correct MoD. That does not happen when a commissioner uses their keyboard to electronic ‘rubber stamp’ whatever they are given to sign. (I have often said that these are the same commissioners who will sign anything except the dinner check.)

Also, this is unfair to the lawyers on the Board, even if they did not read the decisions but just rubber stamped them. Although one can not get carpal tunnel syndrome in one finger from banging non-stop on the keyboard rubber stamping approvals for an hour to two at a time (and yes the Board own computer records will attest to this), it simply is not fair that some commissioners should get 50% more work.

How did this happen?

I put together some information from one of my database in which I have listed, for 6,396 cases which I reviewed, which had an attorney on the panel and which did not. The result were as follows:

• 1997 to 1999: 25% of my MoDs had a panel without an attorney. Excluding the Chair, there were three attorneys on the Board.
• 2000 to 2003: 41% of my MoDs had a panel without an attorney. Excluding the Chair, there were usually three attorneys on the Board.
• 2004 to 2008: Other than 2006 when I had 11 cases without an attorney, I had no MoDs without an attorney on the panel. The number of attorneys ranged from two to four, but was usually three.

So the question is what happened in late 2003/ early 2004 to cause this to change?

Hart v Pageprint/DeKalb 6A.D.3D 847, 775 n.y.s.2d 195 (2004)

In its attempt to speed up the processing of settlement waivers under WCL §32a, the Board set up a system that the Appellate Court determined was in violation of the Board’s own rules and regulations. Apparently embarrassed by the poor image of the NYSWCB that this case presented, the powers-that be decided to prevent any further embarrassments and challenges and thus issued an edict that henceforth there had to be an attorney on every panel, pursuant to WCL §142.

What’s the Solution?

I argued then and do now that a panel can be legally constituted without a member being an attorney. The Office of the General Counsel either did not understand the issue, could not read the citations which supported my position, or made a decision based on political and public relations factors.

In Neal V Riverside Service 427 N.Y.S.2d 520, 75 A.D.2d 932 (1980), the claimant maintained that the Workers’ Compensation Board that reviewed the referee’s decision was illegally constituted in that none of its members was an attorney. The Court stated in that regard, §142-2) of the WCL provides that “ ‘at least one member on each panel shall be an attorney and counselor-at-law’. The section goes on to state, however, that ‘the absence of an attorney on any panel shall not invalidate the order, decision or determination of a majority of the members of the panel if at least two affirmative votes are cast in favor of such action.’ By its terms, the statute does not render the determination made herein invalid for lack of an attorney on the panel, inasmuch as the decision was unanimous.” And lest the OGC state that this is a 1980 decision, I refer then to the Appellate Division’s 3rd Judicial Department July 3, 2003 decision in the Matter of Jaime Aherin v County of Onondaga which quoted the above text from the Neal v Riverside decision.

Now, I will admit that I am not an attorney nor do I have access to Lexis/Nexis (oh that I did) or Westlaw, but if I can find citations to support my contention that there not need be an attorney on a panel for the decision to be legal, why can not the staff at the OGC do the same?

Because it is considered politically incorrect? Or are they afraid that the workers compensation community does not hold the non-attorney commissioners in sufficient regard that the signatures of three of them, without an attorney, made a decision suspect? I doubt that, not when there is a Paprocki or Bell on the panel. And over the years there were some panels which did have an attorney whose decisions were not considered professional.

Summary

For a political agency interested in ‘looking good’, I suggest that the powers- that-be review this issue and conclude as have I that the work of reading and signing MoDs be split equally among the remaining eight Commissioners and insure both a proper as well as timely review of memorandum of decision. After all, if the Oligarchic Cabal really has the interest of the injured workers and their families at heart, they would be more concerned with expediting cases properly and not just about good ‘p.r.’ for themselves.

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 The Legacy of Zach Weiss

July 6, 2009: Zachary Weiss was one of the architects of the 2007 amendments to the WCL and the driving force behind the Rocket Docket.

I remember when he and I first met in the summer of 2007 when he was a member of the special workforce setup by Governor Eliot Spitzer to review the procedures of the WCB and make suggestions as to how the Board’s practices could be improved, be it by new laws, new regulations, or changes in the Board’s structure.

After having attended a number of hearings and spoken to a number of law judges, attorneys, and even to me, he came to the conclusion that there were far too many hearings to resolve minor issues and far too many adjournments because facts were missing that should have been there before the case got its first hearing date, practices about which some commissioners and law judges had been complaining for years.

Robert Snashall (Chairman, 1995-2002) helped make a major contribution to the system when he directed the conversion of a paper system to a paperless system in which computers were able to track the flow of information as cases proceed from their initial filing to an eventual decision. This was an enormous undertaking and required a retraining of the entire staff not only to use the new computerized system but to rethink their entire mental attitude towards claims processing. His key mantra was that we were a service company and the injured workers and their employers were our customers. His plan worked and the time it took to process claims and make decision was cut by 60%-70%. Unfortunately Snashall left the WCB when his term of office expired, and one of the next steps in his plan went astray as could be done to speed up claims and reduce unnecessary hearings and controversies. the bureaucrats took over. The next step would have been to review all the data and see what could be done to improve the system.

Even more unfortunate, from the date of Snashall’s departure in 2002, the Board has had one Chairman pro-tem, two chairman by default (Vice Chairmen stepped up in 2003 and 2007), and a Chairman who apparently had his eye on another position elsewhere.

When the boss is away the mice will play. So those left in charge decided that making the system look better meant having better statistics to show the public, possibly imagining that they would get promoted up the ladder once the stats they published showed how brilliant they were. And, as anyone who has worked with a bureaucracy knows, numbers can be ‘adjusted’ as needed but tweaking numbers does not change the needs of the real people whom the agency is supposed to serve.

[In my book in Chapter 17 “the Machines Take Over”, I tell how Albany got into a fight with Brooklyn because the reality of a foreign born, non-English speaking claimant base did not meet the statistical requirements set by the Albany bureaucrats, thus implying Brooklyn had to change it claimant base?!?]

Weiss saw through that bureaucratic gamesmanship, realizing that the two main functions of the Board needed change: the administrative and adjudicative branches. Immediately on his arrival as Chairman, he made a number of positive changes.

ADJUDICATIVE

Carl Copps was instrumental in bringing the old Review Bureau into the 21st century of computer applications and helped develop the system we have now as well as training a new staff of writers, now virtually all attorneys, how to review appeals of law judge decisions. But Weiss felt that a new focus was needed and brought in new blood, new blood who could look at the staff as fresh faces and not old friends. Under Madeline Pantzer and David Wertheim, her second in command, changes are being made at the Administrative Review Division (ARD) to restructure the way in which memorandums of decisions (MODs) are written, to make sure that there is some consistency in the recommended decisions, particularly on black and white legal issues, i.e. §23 and what 30 days late means. Procedures have been set to make sure that if a commissioner questions a proposed MoD, that the staff answers within a fixed number of days. And, if need be, phone calls are placed to commissioners to help sort out differences of opinions and make sure that if dissents or concurring opinions are needed that they are done promptly. (Of course, no consideration or concern is placed to whether or not some of the insouciant commissioners actually read their cases; the concern is only that they sign them within the proposed time frame. Unfortunately this does not always work as these few commissioners never open their e-mails or return phone calls, even on their WCB-supplied Blackberries.)

Former senior law judge and former member of the General Counsel’s staff Elizabeth Lott was placed in charge of the law judges also to insure that decisions are written promptly and the hearings are done by the book in order to minimize unnecessary adjournments.

I have been told that 10 years after I recommended that the Board have an in-house data base of cases, similar to Lexis/WestLaw, indexed by issues similar to the one I had designed for my own use and offered to the Board in 1999, the Board now does have such a database. I do hope that it is more useful than the one they designed in 2001 in which you could only find a case if you knew the case number.

Also, the pre-board meeting, the informal one before the public monthly Full Board Meeting when all the cases are discussed at length, under Weiss, actually discussed cases and issues at length. Previously, discussion was limited to quick statements by commissioners on the panel of the case being decided, a quick vote taken, and the matter closed. Under Weiss, meaningful discussions took place and all the commissioner required to participate, with meaningful and original comments, no bloviating from one of the attorney/commissioners or the usual recitation of document submitted by writers from the ARD. These discussions help clarify what are the key facts used by the commissioners in making determinations and help the ARD draft more comprehensive decisions explaining ‘how and why’ panels make their decision. Since many practitioners look to prior board decisions for precedent, Weiss correctly felt that the prior cases had to be well-written, coherent, and consistent.

While these changes to the adjudicative process are still a work in process, Weiss’ attention to them has made a marked improvement in the quality of some of the decision making that is presented by the Board.

ADMINISTRATIVE

It is my opinion that, despite that fact that Weiss is a superb litigator and a demanding boss, he is not a politician. A litigator can argue face to face or document to document. A litigator is not accustomed to someone who will ignore what they are told or written directions which have been submitted. That is politics and a great deal of what Weiss tried to do on the administrative side got ‘bushwhacked’ by the bureaucrats who had other agendas.

One quick example is the series of stories I referenced in last week’s NEWSWIRE appearing in the Syracuse press about the 10,000 judgments issued by the WCB against firms and/or individuals who allegedly did not have workers compensation insurance. While it is essential that all employers who meet the legal standard have insurance, it is equally essential that getting a list from God-only-knows-where and placing a judgment against 10,000 so selected firms is properly done. Of course it looks good in press releases to see that the Board has gone after 10,000 miscreants and plans to collect $10M or whatever from them. And when one of these 10,000 complain, the Board cites ‘privacy’ for the aggrieved and thus refuses to comment, other than to reiterate, “They owe us money.” These lists should have been triaged and sorted, by among other indicia, some sort of date of last communication, for it is likely that if a firm or church went out of business, as many did 10 years ago, it is unlikely that there is any recent reference in any other agency on which that firm’s name may be noted.

Of course, the best example of bureaucracy run amok is the Rocket Docket. When Weiss and I had lunch in the summer of 2008 with former senior law judge Mark Solomon, we discussed the fact that far too many cases were coming to trial with basic facts yet to be determined. And I gave him examples of some issues for which a basic indicia set should have been present before a case could be set for a hearing. [See Chapter 15 in my book, “Consistency versus Speed – The Problem”, for specific indicia tables I referenced at that lunch, at many pre-board meetings, and in many e-mails.] No one know who were the witnesses or if there would even be any. C-4-s were missing or lacking any relevant information on the issue of causal relation or degree of the injury. But obviously the new C-4’s were designed by some bureaucrats sitting in the ivory towers of Park Street, who never had a claim or had to sit with a doctor trying to get him to fill in page after page of information for the small fee paid under WCL.

As they say, “The road to hell is paved with good intentions.”

Weiss has a lot of good intentions and the many changes he made in the adjudicative branch prove that. But here he had the help of a few, but only a few, commissioners and law judges, like Beloten, who had been fighting for the same changes for years. But in the administrative end, it was the long-term civil servants and political appointees who saw that better stats would prove their effectiveness and allow them to move up in the world. Taking time to see claimants as real humans, even to attend a hearing and see a claimant face to face, was something not to be considered. The only people with whom these bureaucrats would interplay were their fellow game players. Woe betide those who did not play the game.

Had Spitzer remained in office, I am sure that many of Weiss’ plans would have come to fruition and he would have continued his stay at the Board. But the Paterson administration is filled with too many political hacks who now have no one to hold them accountable. That a qualified person like Robert Beloten was chosen to replace Weiss is due to the same political machination that helps destroy good agencies. Fortunately, and most likely they did not realize it, Beloton has the experience and intelligence and contacts to follow through on Weiss’ vision as well as adding some ingredients of his own.

In summary, Zach Weiss’ legacy is a positive one, made up of his contributions to the adjudicative process and started in the administrative process, continuing the precedent setting changes established by Robert Snashall.

Next week, I will list some specific changes that need to be made to help the Board serve it constituency: the injured workers and their employers. Not the lawyers, not the carriers, and certainly not Park Street and it minions scattered throughout the state.

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 Judicial Economy vs Judicial Integrity

May 26, 2009: In both my book and in my January 2009 posting on the ASK THE INSIDER, I questioned whether WCL §142 was being followed under the Board’s procedure in which Vice Chairman Frances Libous appears to have assumed the sole authority to deny Full Board Reviews (FBRs).

WCL §142 General powers and duties of the workmen’s compensation board reads ….

2. Any review, hearing, rehearing, inquiry or investigation required or authorized to be conducted or made by the workers’ compensation board may be conducted or made by any panel of the board consisting of not less than three members thereof,. . . Notwithstanding any provision in this section to the contrary, a member of the board may be designated by the chair to act individually in the hearing and determination of any claim under this chapter, or conduct any investigation, hearing or inquiry hereunder, or review and rescind any order, decision or determination upon any claim and restore such claim for further trial hearing and evidence or consideration except that such member may not conduct any appellate rehearing of any case or otherwise review any order, decision or determination upon any claim and reverse, modify or affirm such order, decision or determination which by the provisions of this section shall be reheard or reviewed by the board or a panel thereof.

Prior to 2000, all FBRs were signed by three commissioners, usually the same three who signed the original MoD. But in 2000, in order to save time, the then Vice-Chairman Jeffrey Sweet decided that he alone would sign the denials, since these amounted to about 90% to 95% of all the requests. And because there were a few commissioners who regularly did not sign the MoDs or FBRs for weeks at a time, Sweet felt it would be more expeditious if just he signed all the denials.

A few years ago, when Sweet became unofficial citing Chairman after the resignation of Robert Snashall, Sweet continued to do this full schedule of MoDs, FBRs, and hearings while also performing some of the duties of the chairman. I phoned him and offered to help him by having me and a few other commissioners sign the FBRs. He told me that this could not be done as the person signing them had to be an attorney. And he later asked Commissioner Edel Groski, an attorney, to sign them for a while. I got the hint: Sweet was not an attorney but he did not want me or those of my colleagues who wanted to sign them because he was afraid that we would read them and suggest that some should not have been denied but reconsidered. He just wanted these signed in the interest of ‘judicial economy’.

The current Vice-Chairman, Frances Libous, has taken this one step further. And it is this step which adds to the inequitableness of this process.

But first some statistics:

About 7%-9% of all the Appellate Court decisions are either reversals or rescinds which means that the staff in the Office of General Counsel (OGC) are wrong in about 7-9% of the FBRs that they review. There are some appeals that the OGC does not review for which a motion has been filed at the Appellate Division. But the OGC does have the right to review those motions and do a FBR on its own.

Occasionally a FBR after discussion by the full board is ultimately denied despite the OGC having recommended a change in the underlying decision. This occurs when commissioners not on the original panel and thus not usually those who approve the request or the FBR do not feel that the OGC’s recommendation, accepted by the original panel, is sufficient to change the original decision.

There are a few occasions in which the FBR itself is denied by all three of the panel members to whom the FBR was submitted.

Essentially what all this means is that the recommendations of the OGC are wrong in a number of cases that see the light of day after a review by a panel of three commissioners and the full board, or the Appellate Division.

So by having just one person sign all the denials, a person who does not always have the time or resources to give these her full attention, there exists the possibility the some of the appeals for FBR warrant not only a review but a change to the underlying decision. Not only that but this process is subject to abuse when the Vice Chairman and the OGC want a panel’s MoD to be reconsidered/changed and the panel does not. These examples illustrate this problem:

• In one case the panel denied the FBR, thus taking the position that the recommendation to change the original MoD was in error. In the case at hand we were not dealing with a black and white legal issue but one with shades of gray. After the three of us denied the FBR, overriding the OGC, we got e-mails arguing with us. We held our position. We then got a phone call from Libous asking, then telling us to accept the FBR. We refused and ultimately told that one of us would be taken off the panel unless we agreed to a FBR.
• In one case the panel did not accept the recommendation of the OGC although we did agree to a FRB. But our concern was that the FBR was not properly written and we rejected it. We were told to not waste time and just sign what we were given. We refused. The FBR was given to another panel. But since this issue had case had come up at a prior monthly meeting, the second panel refused to take the case. Ultimately, my panel’s rewrite had to be accepted. The dispute was over the fact that my panel wanted more than to write “We have changed our mind” but to explain why, so that all who read the revised MoD would understand our thinking and, in the long run, cut down on the number of appeals on this issue.

At the same time, according to the interpretation of the rules and law by this same OGC, a panel does not have the right to ask for a FBR. As I note in the two cases below, it is the civil servants and the allegedly exclusive power of the Vice Chairman who decide if a request for a FBR gets considered. That three appointed commissioners have decided that decision they had just signed needs to be reconsidered appears to be of no value. Two examples:

• As noted in my book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.As noted in my Book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.
• One of my panels (as well as one other) had a new issue come before us, one that was quite interesting and had the potential to set precedent. My panel had mixed feelings and felt that the issue was too important for just three of us to decide. So one of us volunteered to write a dissent so that the losing side (the carrier in this case) could ask for a FBR. (When there is a dissent in a decision and the losing party requests a FBR, it must be done.) But in this case the carrier did not. So we asked to put it down for FBR. We were told commissioners do not have that right.

So what we have is a situation in which the civil servants make the decision as to which cases/issues get FRB and which do not. And they have the full support and power of the Vice Chairman to effectuate their decision , in essence not only overriding what common sense would say is the right of the commissioners to make such decision but appears to contradict the wording in § 142.

It is time that the Court is being asked to consider this issue. That this appeal is made on the issue of § 142 and not as an Article 78 does not preclude other parties concerned about the Rule of Law from participating as amicus curie.

A Guest Commentary on Board Doctors

May 6, 2009: What follows is a Commentary from one of the visitors to the website, someone who has been a part of the system for many years. This Commentary is published with only a few ED NOTES to clarify some of the points being made. Anyone else wishing to add to or criticize this Guest is welcome to do so.

Why we got rid of Board doctors in the first place

In the final decade in which Board doctors were used (1982 to 1992), the corruption of the system was causing a total collapse and signaled the inability of the system to have higher PPD rates.

Why? Because only Board doctors made the findings of extent of Scheduled Loss of Use (SLU) and made the finding of Permanent Partial Disability (PPD) necessary to get a lump sum settlement. Yes, carriers’ Independent Medical Examiners (IMEs) expressed opinions but the trials were a farce. The judges were ordered to protect the Board doctors and to NEVER allow questions about Board standards.

If you asked about a doctor’s credentials, the judge would halt the question and say, “The doctor is licensed by the Board to examine and express opinions.” They had no license or special training. If you asked about Board guidelines or definitions of, say, PPD or extent of SLU the judge would halt the question and say, “The doctor is basing his answer on years of experience, right doctor?” Even before the doctor had a chance to speak.

It all fell apart in 1987 when a state doctor testified that he based his findings on the notes the judge wrote to the doctor on the file. On the same claim, a request for copies of Board guidelines under Freedom of Information resulted in contradictory answers. The principal state doctor denied they existed but general counsel sent, by mistake, a copy. The guidelines that didn’t exist were entered into the record and an appeal to the Appellate Division was taken.

As a result, Governor [Cuomo] requested Justice Wachtler to do a study with recommendations. He concluded that the judges should take competitive civil service tests and that state doctors no longer had a role.

The old system guaranteed PPDs whenever the judge and the claimant’s lawyer wanted them. We had 20,000 a year at the peak. Even if the claimant was working, these PPDs could be warehoused until retirement then brought out of storage to become a post-retirement lump sum..

But that was when maximum partial disability award was $150 [ED NOTE: 7/1/85 to 6/30/90]. When it went to $400 [ED NOTE: 7/1/92] that was no longer viable. The governor [Cuomo] knew full well he had to get rid of state doctors if we were to survive a $400 rate. The attorneys were living in a fog of denial. They assumed it would all continue their way.

It never occurred to them that senior attorneys at SIF could see this all happening and told the governor. it had to be stopped or else. It was. Soon Newsday had a page one story about a judge who filed a comp claim for damage to her voice from having to shout at hearings. She was working in the evenings as a nightclub singer in Jersey, receiving favorable reviews. She thought the reporter wanted a story about her being a singer. She was stunned to see it was really an expose of compensation. Everyone knew who ordered that story to be written.

Only 6% [ED NOTE: from my recent poll] thought the state doctor would be influenced by the Board’s wishes? Baloney! They remember the good old days when the entire system was run on that basis.

Your thoughts are welcome. Just send them to me by e-mail to TheInsider@InsideWorkersCompNY.com

Mirror Mirror on the Wall!
Who’s the Fairest Doctor of them all?

April 28, 2009: Much of the content of the three articles published by the New York Times a few weeks ago dealt with the issue of making assessments of claimant disabilities.

Someone was quoted as saying “Everyone complains about the weather but no one does anything about it.” Well fixing this problem may be as hard but I am going to give it a try.

The following is a selection of statements from N. R. Kleinfield’s March 31, 2009 article “A World of Hurt -Exams of Injured Workers Fuel Mutual Mistrust” and sets the stage for this discussion.

Independent medical exams are among the most disputed components of New York’s troubled workers’ compensation system. The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries. Zachary S. Weiss, the chairman of the workers’ compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was “off the charts.” But Mr. Weiss, who was appointed in late 2007, said he was unsure what would rectify the problems. After nearly a dozen years without a medical director, the board has finally filled that job temporarily. It has introduced new, more detailed forms, which many doctors find maddening. It is also working on fresh guidelines that it hopes will better calibrate an injured worker’s care and work limits. Though experts say talk of worker fraud is frequently overstated, it is widely acknowledged that some doctors collaborate with workers or their lawyers to magnify injuries or provide treatment for years without making someone better. Law firms representing workers often have cozy relationships with doctors to whom they refer patients, and vice versa.

My arrival at the Board in December 1996 preceded by a few months the departure of the last of the Workers Compensation Board’s in-house doctors. For me, Dr Bernardo, who was the head doctor, served a useful function in that in two days, I had a reasonably complete and interesting medical education, one which gave me the foundation to understand the many medical issues I faced over the rest of my term. It is unfortunate that such an educational source no longer exists for the commissioners or law judges as I can image the concern felt by the engaged commissioner when faced with an asbestos case in which the attorneys are fighting over the interpretation of x-rays and scans done by an A reader versus a B reader.

But the real problem is three fold:

• Between the claimants’ and the carriers’ doctors, who is more unbiased?
• Why aren’t there any guidelines as to degree of functional disability?
• Why do cases on new medical issues take so long? It took about four years or more for cases in which claimants argued that colon cancer was consequential to asbestos exposure before there was sufficient medical evidence to establish the possible link. (see Behind The Closed Doors, Page 76-77).

The three NY Times article generated nearly 500 blog comments, some of whose ideas follow:

• Although carrier doctors are called Independent Medical Examiners (IMEs), even if they are not salaried employees of the carrier or third party administrators (TPAs), their income is derived for these firms. Hence, their ‘independence’ can be questioned.
• Claimant doctors are the one usually chose by the claimants, some of who have had long term relationships with the claimant, the claimant’s family, friends, relatives and/or coworkers. And since they see the claimant on several occasions, particularly if they are regularly treating him, they do not wish to get their patient angry with them.

But what makes anyone think that Board doctors would be any better?

• Are these doctors going to be full time doctors, working exclusively for the Board?
• Where would their offices be located?
• From where would the funding be derived to pay for these doctors, their offices and all their equipment?

But there are so many different types of injuries and diseases with which the Board deals. it is unlikely that the Board will have doctors working exclusively for them since for some medical specialties, such as eye injuries, there would not be enough work in the entire state, let alone one city, to keep one doctor fully employed.

Therefore, these would have to be doctors hired by the Board either part-time on a cases-by-case basis. In fact this is already done.

As a commissioner, there were occasional cases in which the medical opinions were so divergent that we felt we were being asked to pick between black and white, not shades of grey. We would ask for an independent specialist (I/S), usually specifying the medical field so that if we needed an opinion on the effect of asbestos on a heart condition, we would ask for a cardiac specialist and not a pulmonary specialist.

When this was done, the Board would go to a list of doctors who had volunteered to do this, pick a name, and submit it to both sides to give them a fixed period of time within which to object to the doctor. If there was no objection, the I/S would get all he medical files from all the doctors to the controverted medical issue, be it degree of disability or causal or consequential relationship. That doctor would then render an opinion (almost always without seeing the claimant) and then be subject to cross-examination if so requested by one of the parties in the case. 99.9% of the time both the Law Judges and the Commissioners would accept the I/S’s opinion.

The only problem with this system was that the Board could not find enough doctors who would participate. Now some may think the fee paid (I remember $400) was a lot, it is not the simple case with 10 pages of C-4’s that is at issue. It is the one that, when we had paper files, used to arrive in my office in a shopping cart of its own and take hours to read though. How many of the attorneys out there would do all that work for $400 and then be subject to a possible cross-examination that many doctors have said tends to be an hour of rude, aggressive, and insulting questions about their integrity, intelligence, and experience.

Now as to the first part of this series, we are asking your opinion about who should do the final assessments of degree of disability, SLU, and causal/consequential relationship when there is a difference of opinion. And do you really feel that doctors hired by the board on a regular basis would be any less susceptible to influence than the carrier or claimant doctors?

Once last question for this last Part 1. Why does a case in which the sole issue is a SLU of 60% proposed by the carrier doctor and 66b% by the claimant doctor in which the pro-se claimant writes they will not attend the hearing, asking that the judge just pick a number, and close the case, then require three hearings and still not get resolved? The true story next week. But we want your opinion.

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Who Wins The Most Appeals?

March 5, 2009: When I spoke at the Injured Workers Bar Association Annual Meeting in January, 2009, I gave out some numbers regarding the percentage of Memorandum of Decisions (MoDs) that were affirmed, reversed, modified, rescinded, or otherwise. There has always been an interest in these numbers because they help everyone get a better sense of the direction in which the Board is leaning, pro-claimant or pro-carrier (whatever that means) and whether or not it makes sense to appeal a decision for a particular type of client or on a specific type of issue. This information is helpful by assisting the attorneys for both sides to determine the best use of their limited resources.

A recent E-mail asked me if I could give that conference attendee the information again, so here it is, in writing, with a bit more detail.

The first set of numbers, in bold, are from the Board itself and are public documents submitted at the monthly Board Meeting. At one time they were given in an oral report but to save time, the reports were submitted on paper, one of the many reasons the monthly meeting you see on the internet is so short. The numbers vary a bit from month to month and relate to the approximate 900-1200 MoDs that are written each month. And, of course, these number were from the time I was on the Board. But I have stats going back about four years and there are no substantial changes month to month.

AFFIRMED……………. 46% - 52%
MODIFIED……………. 28% - 32%
REVERSED……………… 3% - 6%
RESCIND/RESTORE…… 6% - 9%
OTHER………………… 5% - 6%

There is one question about these numbers which some commissioner have raised. If the MoD resolved eight issues, only one is appealed, and that one decision is REVERSED, the WCB often calls this a MODIFICATION since the entire decision is not REVERSED. But overall, these numbers are reasonably accurate. Our question was “Do these terms refer to the entirety of the law judge decision or to the issue(s) on appeal?”

But what are missing are stats on whether or not the carriers and the claimant have different ‘loss/win’ ratios and what are the ‘loss/win’ ratios by issue.

As I mentioned in my book, I had my own data bases. But do understand that these numbers for 2007 and 2008 are for the panels on which I served which as many of you know is not the same as a panel with three insouciants. The first observation is that 33% of the appeals were generated by claimants and 67% by carriers which is almost the reverse of that data I had in 1997-1998. The number of cases shown in the second column is to illustrate the percentages per 1,000 cases.

B U T ……
These figures do need some clarification.

• Some of the CARRIER appeals do not involve the claimant but deal with §25a, §15(8), §21(f) or other disputes between carriers and/or the Special Funds.
• Some of the CARRIER appeals do not directly involve the claimant but deal with penalties, denials of RFA-1’s, or late payment penalties , i.e What is 30 days late?.
• A small number of the ‘claimant’ cases actually involve FEES in which the claimant is not taking a position on this issue or they have a request to reopen a Lump Sum.

Now these are the final MoDs, but not what was originally submitted to my panels. I personally had a reject rate of about 22% which my own stats break down to Legal, Medical, and Missing Issue or Incoherent with another rejected for 8% for typos.

These same stats also have breakdowns by another set of categories - an basic issue code:

• Legal issues
• Procedural Issues: RFA-1, penalties, proper filing of forms (but not §18 or §28)
• Medical Issues: Degree of disability, further causally related disability, which sites
• Legal/Medical
• Legal/Procedural
• Medical/Procedural

And one of my data bases has it broken down by issue codes, such as various subsets of ANCR: ingress/egress, horseplay, lunch/coffee/meal/etc breaks, in and out of the course of employment, independent contractor, etc. There are about 80 issue codes.

The Board actually does have a great deal of this information or it can be generated with about four or five hours of data processing time to write the proper computer code; I know because I can write the code and I’m not an experienced programmer, at least compared to the WCB’s IT staff.

But these numbers really need further interpretation in that without knowing the issues, it is hard to determine how important were the cases for either side that were denied on appeal or modified or reversed. If you have an interest in a further analysis of these numbers, please contact me at TheInsider@InsideWorkersCompNY.Com.

In my book Behind The Closed Doors, in Chapters 16, 17, and 21, there is a great deal more on the interpretation of these statistics and how they can be used by everyone to help focus on key issues, insure consistency in the decision making process, develop indicia for hot topics and, ultimately reduce the number of controverted cases.

Of course, the first step is for the Board to make their numbers public. They have a web site or some of these number could be included in period subject numbers. As I wrote earlier, the Board does have some of the numbers, certainly the first set I noted above in bold. They are not a state secret. They measure what happens with YOUR CASES - you should have that info.

I was only one of 11 commissioners, on only one of three panels so I can not assure you that my numbers are representative of the Board as a whole. But they are a look Behind The Closed Doors

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Fees: What’s Fair & What To Do

February 19, 2009: During each of the presentations I have made over the last few weeks, I have made the following point:

When you are a small child, you grow up dreaming of being a fireman or a policeman or a doctor or a ballerina. No one grows up dreaming to be a lawyer, let alone a lawyer specializing in workers compensation cases.

And while you may be in that business now because of an interest in helping people in need, you are also doing it for the money, the fees you get for providing your services.

In the 12 years I was at the WCB, there were occasions when the issue of fees was discussed, not just in terms of a specific case, but in general. At one point shortly after we starting doing §32’s, an influential commissioner expressed a concern that the attorneys were getting too much money in fees and that the board should set a fee schedule. I told him I would look into it. I did some reach in Larsen and found that every state did it differently.

But I told him that it was just not an issue of setting a fee for the settlement as these did not occur in a vacuum. These settlements were the final stage in what could have been a long complex process, a process in which the attorney put in a lot of work, earning little in fees. And for every attorney who did nothing other rather take a call from a carrier months after a classification, accepted a carrier-drafted §32 agreement, and still got 10%, there were at least two who had been fighting for additional medical treatment since the classification and/or fought attempt to reclassify the claimant at a lower rate or maybe fought against voluntary withdrawal of the labor market and earned no additional fees.

WHAT IS THE HISTORY OF FEES?

As to why there seemed to be a consensus of a 10% fee on classified cases and 12% to 15% on most of the rest, these numbers seemed to have evolved from the 10% given in Lump Sum Settlements. And there was no one around at the Board who had any idea from where the 10% for Lump Sums was derived.

Poet and philosopher George Santayana wrote “Those who cannot remember the past are condemned to repeat it.” I would like to add, “Those who don’t care to learn from the past will invariably [mess] it up!”

This influential person at the Board to whom I spoke in the late 1990’s as well as others who have in the recent past who raised this issue rarely worked in the private sector. The few who were, were attorneys and were not the managing partner and thus had no idea of what it meant to meet a payroll or understand that in order to pay an attorney, let us say, the $90,800 a year a commissioner gets, you need to bill at probably $250,000 a year ($100 an hour for a 50 hour week) to cover salary PLUS benefits, plus rent, phone and utilities support staff, and much more. And remember, the carrier attorneys also have to make money.

Does the staff at the board thinks that if they get $90,000 a year, the claimants or carrier attorneys should get any less? And don’t forget the overhead!! See the story Why you’re Fired in Opinions and Reports. No better proof of this exists than the list of expenses a sole proprietor is allowed by the WCB to use when calculating his net income for AWW purposes. The Board considers as non-expenses some items without which no business could survive, one of which is advertising. Is it no wonder they do not ‘respect’ your need to collect the fees you request to keep your business going?

CAN THE BOARD SET FEES?

As I have noted in some of the court decision ffrom other states which I have cited, attempts to legislative fees doesn’t work. One example I quote in my COURT DECISIONS page is the October 23, 2008 Florida Supreme Court decision in the matter of Murray v. Mariner Health; they ruled that workers’ compensation attorneys are entitled to recover “reasonable fees” for services rather than being limited by the statutory formula to a percentage of benefits. “Reasonable fees” in this context could include payment of hourly charges at a prevailing market rate.

WCL §24 and the supporting NY Codes Rules and Regulation do not allow claimant attorneys to charge by the hour but must base the fee on the results. Yet some law judges, particularly in one downstate district, seem to have taken the position that the fee should be based on results or time spent, which ever is the least, maybe with an addition discount for probably having higher annual income than the judge.

So one would think that the Board is against attorneys making a living. Yet, and this is but one example, under the new Rocket Docket ‘Sock-it-To-Your-Pocket’ program, in order for a carrier to file a C-7, it must be signed off first by the carrier’s attorney. So at least the carriers’ attorneys are guaranteed some sort of income for the foreseeable future.

And carrier had best not assume that they are safe. I can see the WCB sitting down with the Rating Board and the Superintended of Issuance and determining that the cost schedules that the carriers submit to get their insurance rates have too much set aside for overhead and legal fees and will then reduce the rates in order to reduce the amount spent by the carriers to hire legal staff .

HOW TO PROTECT YOURSELF

When you present your fee request, in particular with the §32, you need to add into a narrative some information some of us at the Board had requested from the Administrative Review Division when we were asked to review appeals on §32 fees:

• Since you firm has handled the case (particularly if you are not the first attorney), what is the total amount of compensation that has moved to the claimant though the date of the last fee you got.
  
• How much was that fee?
• Including the §32, what is the total amount of money moving to the claimant, and what is your total fee?
• If you have any sense of the amount of medical that has been paid and it is a lot, toss in how many office visits, physical therapies, or surgeries there have been.
• Since you don’t get fees for appeals and rebuttals, if you have had some since your last fee (and by fees, I do not mean a $75 appearance fee), put that in, too.

Now some claimant firms do have computerized time sheets. If you have a sense of time or can submit it, PUT THIS IN TOO. Do not let the judges or your clients think the only time you work on the case is when you are at a board hearing. Consider the amount of time the judges should be working on their cases when they are not actually presiding over a trial; they should understand the amount of your ‘back office’ time, too.

There was a judge in the metropolitan NY area, recently retired, who routinely cut fees 60-70%. Write your fee request as if you are appealing to a panel of commissioners that judge’s decisions all of which were reversed.

And if you are in effect ‘losing’ money on a case and you should have some that take a lot of time but generate little in terms of awards on which you can base your fee, make it clear that you put in a lot of time but understand that you cannot charge a bigger fee because the money is not there, implying that you can do this because you will get a bigger than normal fee on some other case.

The judges and commissioners are like the population in general: 20% are against you no matter what you say or do, 20% will agree with you no matter what you say or do, and the other 60% is the ‘mushy middle’ for whom a proper presentation can help educate and then persuade them to accept your fee request.

And if you unfortunate enough to get some judge who considers you the ‘bane of their existence’, then appeal it to the Board. I estimate it would take no more than 20, 30, or 40 minutes at most to do the appeal; after all it’s the same information you should have give the law judge. And if you are taking about a $500 fee reduction that comes out to be about $1,000 or more per hour.

Also be sure to explain it to your client. If you can get them to approve it in writing DO SO. If your claimant knows what is the normal fee structure and feels it is fair, virtually every commissioner I knew would approve the fee. And let the claimant know about all the work you do for them when you are not in court or holding their hand, you are doing research, preparing paper work and arguments, following up doctors, etc.

And while these recommendations may be directed mostly to claimant attorneys, for those who are a carrier attorney, two points of order. One day, some of you may switch sides. And, be prepared in the event the Board starts publicly asking if you are worth the carrier’s pay.

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Legal Reasoning vs Intuition

Indicia tables

January 22, 2009: Real intuition is nothing more than the instantaneous but unconscious analysis of facts.
I become fully aware of this while serving as a commissioner when I had my ‘eureka’ moment during an oral argument on an employee/independent contractor issue for the driver of a taxi.

It was then that I realized that what we call legal reasoning is nothing more than our ability to unconsciously but instantaneously review a set of indicia relative to the problem at hand, an unconscious indicia table developed from our own experience, in order to make a decision.

As I noted in Chapters 16 and 17 of my book, Behind the Closed Doors, I realized that when an issue such as the taxi driver’s status came before me, I would run through a list of facts before me but also, without realizing it, unconsciously add more facts, in order to make a decision. Unconsciously each of us were already doing this.

But I decided to make up a list of those unconscious facts I considered and make up a formal written list, attaching numeric values to each of these indicia. The result was a list of 20 indicia which had a total number value of 17, for which there were two columns: employee and independent contractor.

Aside from the fact that each of the commissioners, law judges, and staff writers may have assigned a different value to each indicium than did I, as often as not some of the indicia would be omitted in our legal reasoning. Our conscious reasoning never did develop a formal list of indicia such that we never used the same set of indicia, consciously or unconsciously, each time we made a decision.

Let me give another example from my book: How you get dressed every morning.

When you get up in the morning and get dressed for the day, you do not really have an endless choice of combinations of clothes. Unconsciously, you know whether it is a work day or not, and, if it is a work day, if it is winter, summer, spring, or fall, hot, sunny, or raining. You know if you have an important meeting that requires your best business suit or just another day at the office requiring your usual business attire. More than likely, you take off your list of possibilities the outfit you wore the day before. As you can see, you have ‘unconsciously’ reduced the possible set of 5,000 combinations down to 10 or 20.

For every issue with which there is a controversy, there is a set of facts to be considered. An experienced claimant’s attorney has about 80% of them in their unconsciousness but as likely as not, when the time comes to interview a claimant or prepare an argument, they will forget some of them. The carrier’s attorney does the same. But if it was me sitting at the oral argument or reviewing a recommended decision, I would have a printout of what would otherwise have been my own “unconscious” indicia list and therefore not miss any. And invariably during the arguments I would ask about one of them and/or find one of them in the files that the attorneys in front of me and my fellow panels members missed, thus coming up with an unexpected decision.

I must add that I do this not because I am smarter than anyone else (not everyone, just most) but because I do computer programming and programming requires these specifics to work.

It is essential that these indicia list be formally done. Some of the forms used in the Rocket Docket attempt to elicit more details about a case before it comes to a hearing. But these do not deal with specific legal issues per se.

I have already developed such lists for (1) independent contractor/employee, (2) ingress/egress, (3) special errands, and (4) voluntary withdrawal from the labor market. For reasons never made clear to me, I was told that as a commissioner I could not share these with anyone. It seemed to me that the development of such lists by anyone would result in both sides of a controversy being better prepared and, even more likely, a decision by one side that the other side has more ‘point’s, thus obviating the need to controvert a case.

Chapter 16 “ ‘Consistency versus Speed” – The Solution” gives a very specific set of recommendations. These will go a lot further in cutting down controverted cases and speed up the resolution of cases faster than some of the new forms being developed for the Rocket Docket.

The real question is “Why doesn’t the WCB do this?”

Solutions to Common Problems

To suggest a Common Problem that you’d like to see on this list, send an email to TheInsider@InsideWorkersCompNY.com.

How to Make Insurers Pay the Doctors

On July 2, 2008, the Workers’ Compensation Board announced a clarification of the effects of the amended WCL §54-b, which in turn deals with the steps necessary to force a carrier to pay medical bills, steps which are not in and of themselves complete.

In Subject No. 046-207, the Board wrote that,

“The neglect or failure of a carrier or self–insured employer to pay awards for medical bills in a timely manner has a significant impact on the ability of all injured workers to obtain effective and immediate treatment, as it discourages health care providers from seeking or retaining authorization to treat workers’ compensation claimants. Additionally, it may result in the health care provider seeking direct payment from the claimant, despite the statutory prohibition against direct payments. A claimant’s ability to obtain proper medical treatment expeditiously not only benefits the claimant, but also results in lower medical costs for employers. Claimants who receive prompt and proper attention are more likely to be able to return to work swiftly and less likely to have long term disabling conditions.”

For years the WCB had made available to the providers of medical service the HP-1 form which should be submitted when the health provider has been unsuccessful in obtaining payment from a carrier for more than 45 days after the services have been rendered to the claimant. This form, in use since 1997, replaced an earlier version in effect since 1994. Unfortunately, the carriers have since 1997 treated the new HP-1 with the same concern they did with the earlier HP-1 form issued in 1994: they would often ignore it. Hence the new HP-J1 form and the July 2, 2008 announcement.

But, in The Insider’s opinion, this is like telling a child who has stolen a cookie that, unlike the first time when you were ‘angry’, this time you are ‘really angry’. This process also places the burden on the medical provider to file pages and pages of HP-J1’s every week or so, when the deadline has passed so that they do not have tens of thousands of dollars in unpaid bills before filing the HP-1/J1 or awaiting the largess of the carrier before they get paid.

But in reality there is a far simpler method, one which relieves the doctors of the need to file HP-1’s and HP-J1’s every few weeks.

In the above Subject Number, the Board writes “The continued viability of the workers’ compensation system is substantially dependent upon voluntary compliance of all parties with the Workers’ Compensation Law, rules and regulations of the Board, and legal responsibilities imposed upon the parties.”

But what does the WCB mean by ‘voluntary compliance’. Although the firms, profit and non-profit, may have ‘volunteered’ to be in the insurance business, they are all also authorized to do business in the State of New York, some authorized by the WCB itself. After all, not every company can meet the requirement to qualify as an insurer.

So, if they cannot meet the obligations they have ‘voluntarily’ agreed to in order to make or save money as a carrier of record, the WCB should revoke or suspend that authorization when the number of HP-1’s or HP-J1’s reach a certain level, in terms of absolute quantity or dollars or some ratio of complaints to cases or whatever.

If 100 doctors file claims under §54-b against Carrier X, why should doctor #101, #102, ad nauseaum also have to file. Why can not the WCB and/or the Department of Insurance contact the carrier with a warning to pay ‘everyone’ or risk suspension or revocation.

As a commissioner I had asked this question of the administration and some legislators and have yet to have anyone tell me that this idea is wrong and/or mention any problem with it. I am usually greeted with a “Hmm, that’s interesting.” In fact I was told not to bring it up a pre-board meeting at which the commissioners are supposed to be able to discuss what they feel are relevant issues or to ask questions so that they can learn more about the system.

So, now that I have a soap box web site, I am asking, “Why doesn’t the WCB use its authority to revoke a self-insured’s right to self-insure if there are enough complaints about its failure to pay its medical bills?”

Solutions to Common Problems

To suggest a Common Problem that you’d like to see on this list, send an email to TheInsider@InsideWorkersCompNY.com.

An excerpt from Behind The Closed Doors

Who ‘decides’ the Decisions?

Chapter 10

In Chief Justice William Rehnquist ’s book The Supreme Court, Rehnquist goes into great length as to how the United States Supreme Court determines what cases it will hear and how it arrives at its decisions. In some ways, the Board is not that different but in other ways it is the opposite. Because the ARD/OoA gets the appeal first and writes the PMoD before the commissioners are even aware of the case, the question has always been: “Do the writers write the PMoD and the Commissioners approve it or do the writers draft a decision for the Commissioners to consider if that PMoD is appropriate?” This is a far more important issue than one may think because:

• The 60+ writers who make up the ARD/OoA are far less consistent than 12 commissioners and four panels.

• The commissioners have been appointed by the Governor and confirmed by the Senate to further the philosophy of the Governor in their interpretation of the Workers’ Compensation law.

• To whatever extent those who do the decisions are subject to public scrutiny, it is the commissioners whose names, and the governor’s by default, that are on the decisions, and it is these commissioners whose employment is subject to periodic review (reappointment) and a governor subject to reelection. The OoA staff are civil servants, in a sense, answerable to no one.

Equally important is that over the course of time, the legal profession should have developed an understanding of the thinking of each of the commissioners as well as an understanding of how well each commissioner fits into the system. Every commissioner at one time or another has conducted a hearing at which the attorneys have appeared, hearings at which the commissioners act alone or as a member of a panel of three. As a result, the attorneys have an impression of who seems to be knowledgeable about the cases and issues before them and is able to ask pertinent and substantive questions and which commissioners sit silently throughout the entire proceedings, the insouciants of the system, and which act as the inquisitor equal to the Potemkin Village of legal inquiry.

To read more, click on Behind The Closed Doors…

Solutions to Common Problems

To suggest a Common Problem that you’d like to see on this list, send an email to TheInsider@InsideWorkersCompNY.com.

 

Rebuttals: A Waste of Time & Money?

If an appeal is late pursuant to WCL §23, why is it not denied on that basis? This would eliminate the need for the respondent and the WCB to spend the time and money necessary to issue a rebuttal.

The Problem:

For several years, some commissioners rejected proposed decisions because the writers in the Office of Appeals (OoA) were making mistakes regarding their definition of what was a late appeal and/or rebuttal.

General Construction Law §25 states that a legal due date falling on a Saturday or Sunday was automatically moved to the next Monday (unless that Monday was a legal holiday), but the OoA quite often misstated the timeliness of appeals and rebuttals.

Sometimes, if the 30th day was a Saturday, the appeal/rebuttal was denied as being late. Sometimes if it arrived on August 1st for a decision filed July 1st, it was defined as ‘timely’ despite that fact July has 31 days. Even an Appellate Court reversal did not impact sufficiently on the WCB for the OoA and the majority of commissioners to bother to count 30 days.

The Insider offered the OoA an Excel spread sheet in which the date of the filing would be entered and it would calculate the 30th day, allowing for not only weekends but also for holidays.

With the changes in management of the OoA in early 2008, the writers apparently were informed that they had to pay attention to the 30th day but could still allow late appeals per §123, “in the interest of justice”. However, a few commissioners objected to this leniency if for no other reason that it was applied inconsistently.

Some appeals as late as four months after the filing date were accepted without any explanation as to why they were filed late. In other cases, commissioners decided to automatically reject an appeal or rebuttal filed on the 31st day unless some very good justification was given in the opening paragraph of the appeal/rebuttal.

The Administrative Review Bureau (formerly the OoA) then decided that it would accept as timely some but not all appeals that were one day late, positing that the lateness was due to WCB mail room problems. One commissioner responded, “Fix the mail room problem and find the 31st day as late.” And the Insider added, “The phrase ‘in the interest of justice’ is a preamble to an explanation, not a justification ‘in and of itself’.” And several commissioners continued to reject appeals late by one day. 99.99% of all appeals are filed timely. There is no reason that late appeals and rebuttals should be entertained without good and clearly defined cause, not for the issue but for the reason for the lateness.

The Solution:

The WCB should adopt the policy that any appeal or rebuttal filed on the 31st day is late and automatically denied. In the case of appeals, the respondent could limit their rebuttal solely to the statement, “We ask that the appeal be denied pursuant to WCL §23 as it has been filed late. The underlying decision was filed on …… and the 30 day deadline was ……. The appeal, having been filed …, is therefore late.”

The respondent would be saved the time and money involved in writing what is often a lengthy rebuttal.  And the WCB would also save the time needed to perform an in depth review of the late appeal, to draft a decision based on the issues raised in the late appeal, and to address all the issues in the rebuttal.

In cases where the appellant can give a legitimate reason for the late appeal – such as the aftermath of 9/11 when many Board deadlines were waived or some other major problem in the appellant’s office –then the WCB should advise the respondent that the appeal is being accepted and should give the respondent 30 days from the date of that letter to issue a rebuttal. For late rebuttals, the same procedure would apply.

While this may involve only 10 to 15 appeals a month out of the 1200 or so submitted for review, it is still 10 to 15 cases less for the WCB and a first step in speeding up case resolution. Remember Mao Tse-Tung: “A march of a thousand miles starts with a single step.” A case here and a case there and, the next thing you know, case resolution has been shorted by a few weeks. 

As is the case with so many potential solutions to problems facing the Board, any real solution to this problem will require the Board to make a commitment to be consistent on this issue. 

Better practices by all the parties to a dispute can only help make the system better. Also, its important that everyone who relies on the system can feel confident that there is some genuine reasoning behind the way it functions.  And insure that when a deadline has come and not timely appealed, all the parties know that, at least for one issue if not the entire case, the matter is finally closed.

The Insider’s book, Behind The Closed Doors, Chapter 14 ‘Both Sides of the Coin’ goes into more detail as to the confusion from which the Board suffers on this and other issues.