COURT DECISIONS

►Appellate Court Affirms WCB Twice

►Another feature on the DECISIONS page: Pending hearings & decisions..click here

<►And there is the up-dated list of the ‘winningest’ attorneys so far this year.

OUR NEWEST POLL RESULTS

►Poll Results:GSIT’s; Keep them or Dump Them

ON OUR OTHER PAGES

►Commissioner Bios September updates

►A reader’s opinion of Appellate Court decisions

►Legal Fees on Medical Bill??

►Project 2015: The End of the WCB as We Know It?

THIS WEEK’S NEWSWIRE

►Welcome to New Comm Lobban

►Next Commissioner: Arda Nazerian?

►Picking up WC checks at employer: Illegal or Not?

►New Law on Hearing transcriptions

►WA State: Privatizing WC Insurance?

PRIOR WEEKS’ NEWSWIRE

►Major Federal Case on Independent Contractor v Employee

►NYS Legislature Does, Too

►Labor Comm Fight Over New Commissioner?

►New Commissioner Disappears & Another to the Ready?

►Don’t Forget the poll on GSIT’s

►SFCC Data Loss Cost Vendor $60K in penalties

►And You Thought I was Tough!

►Couldn’t say it better myself!

►Is the WCB Staff’s Paranoia Warranted?

►Up-Dated List: WINNINGEST & TOUGHEST Attorneys

►3rd Department Changed Mind on ATF Decision

►2nd Injury Fund Deadline Approaches

►U.S. Supreme Court Overrules “honest Services” Law/span>

►New NYSIF Commissioner in process

►Let’s Tax Everything

►SIIA Rejects New York Task Force Findings Regarding SIGs

►WCB Report on Group Self-insurance

►Board Releases New Manual to ‘Help’ Businesses Stay Compliant

►NYSIF Warns of Legal Package Hoax

►NYCIRB recommends a 7.7% premium increase

►Man Mauled After Smoking Pot Can Get Workers’ Comp

►Two new Commissioners nominated

►the Webinar

►Majestic/CRM considers options

►Appellate Judges Reveal Pet Peeves, Winning Strategies

►NYSIF Elects Chair and Vice Chair

►Where are the FBR’s

►Senate Bill Adds COLA to WCB Awards

►Emergency Adoption of New Medical Fee Schedule

►What’s up, Doc? A 2nd WCB Doctor

►New Max. Weekly Benefit Rate Effective July 1, 2010

►Close Bars to Save on WC claims?!?

►Board has Educational Webinar

►The names of theTwo New Commissioners

►New Impairment /Wage Loss Guidelines Delayed

►WCB Buffalo Office Lease Political Controversy

►Friend or Foe? Pay or No!

►Two New Commissioners on the Way

►New Impairment/Wage Loss Guidelines Almost Done

►NY Woman Gets Fed’s ‘Goat’ for WC Fraud

►NY Woman Gets Fed’s ‘Goat’ for WC Fraud NYSIF Discusses WC Insurance Rates

►NY’s Workers Comp System among the Nation’s Worst

►CRM Lays Off 15% of Staff

►Colorado’s Sale of its WC Insurance Fund is Cancelled

►Ohio Proposes: No WC benefits for Illegal Aliens

►WC Attorney Defeats Negligence Claim

►A Vaccine for Malignant Mesothelioma?

►Medical Guidelines Pilot

►The Board’s Regulatory Wish List

►Spine stimulation may not help after failed surgery

►Triangle Shirtwaist Group Names Award Recipients for 2010

►WCB’s Appearance Before Senate Finance Committee

►About Time: Legal Training for Commissioners

►Project 2015 Still Lives

►WAMO and the Dept. of Insurance

►Shortage of Doctors Upstate for Injured Workers

►Best Attorneys in 2009

►Fenster’s Path to His Appointment

►Two NYSIF Board Appointments

►WCB Signs New Lease for Harlem District Office

►WC Research Provides Insight into Curbing Health Care Costs

►Board Reduces Performance Standards For Carrier

►CMS Liens: No Statute of Limitations

►Paterson Announced New Exec Dir for the Workers Comp Bd

►Are Dist Mgrs Going the way of the Dist Admins?

►The Success of TENS units questioned

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

►Carriers to ‘voluntarily’ give money to the State(?)

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

►More WCB Staff Changes

►WCB: Some Medicare wording in §32’s not acceptable

►In Memoriam: Joseph Tauriello

►“Lazy” Judge on trial before Court of Appeals

►In Memorium: Louis R. Salvo

►CA Insurance Commissioner Rejects WC Rate Increase

►Public WC Insurance Funds Better Run Than Private Ones

►CORRECTION

►Lobbyists Lose on ATF in Federal Court

►Typo not worth $1.6 Billion, this time!

►NYSIF Introduces State-of-Art Medical Bill Inquiry System

►No New Commissioner under Consideration

►Oklahoma considers confiscating surplus workers comp funds

►New Commissioner being considered

►WC Law Suits v Fed Ex on Drivers

►Nebraska Waives Settlement Hearings

►WCB Exec. Dir. Pennisi Resigns

►NYS Issues Bonds for 2nd Injury Fund

►NYCIRB Analysis: COLA Increase in WCB Rates = Higher Rates

►Link to our Archive Index

---

AIG Sues its Competitors

July 3, 2010: U.S. District Judge Robert Gettleman of the Northern District of Illinois today has authorized AIG to pursue a lawsuit against Hartford Financial Services, Liberty Mutual, and Travelers Insurance for alleging conspiring to damage AIG’s position in the workers compensation insurance market. But he also dismissed a number of other actions sought by AIG against these same parties. (American International Group Inc et al v. ACE INA Holdings Inc et al, U.S. District Court, Northern District of Illinois, No. 09-02026.)

Coventry Health Fined $262 for WC Fraud

July 3, 2010: Coventry Health Care, Inc. (NYSE: CVH) announced today that the Court Of Appeal, Third Circuit for the State of Louisiana has affirmed the trial court’s decision to grant summary judgment against First Health Group Corp., Inc. (a wholly-owned subsidiary of Coventry) for $262 million in previously-disclosed provider class action litigation in Louisiana state court. The suit involves claims of alleged violations of notice provisions of Louisiana’s Any Willing Provider Act in connection with providers providing services to injured workers with workers’ compensation claims. More specifically, a number medical/service providers have successfully argued that Coventry’s method of taking discount from the bills, in accordance with the contracts signed with these providers, submitted violates Louisiana Law.

This link will take you to link will take you to the statement on the potential liability included in Coventry’s Annual Report (Form 10-K) for the year ended December 31, 2009. In its statement regarding the Court’s decision, Coventry stated that it does not believe the decision is supported by the facts or the law and intends to file a motion for rehearing and explore other avenues of appeal. The Company believes that it has available resources to pay any final unappealable judgment in this litigation.

Judge bans WCB raids to pay unfunded injury claims

April 16, 2010: As reported by James Odata of the Albany/Times Union, Acting State Supreme Court Justice Kimberly A. O’Connor ruled Wednesday the NYS Workers Compensation Board can no longer raise its assessments on self-insurance groups to make up for the unfunded liabilities of a series of defaulted self-insurance trusts.

The Judge ruled that the Board has been unconstitutionally taxing healthy self-insurance groups, leaving the state’s workplace insurance system stuck with a nearly half-billion-dollar bill for unfunded injury claims.

As soon as I can access the actual decision, I will make it available.

Another Supreme Court decision, this time from NY County, also involving underfunded liabilities, was issued by Justice Carol R. Edmead with the two parties in this case being RBG Management and CRM regarding “a certain Indemnification Agreement, [under which] plaintiffs each agreed to be jointly and severally liable for expenses and obligations concerning workers’ compensation liability while they remained a ‘Participating Employer.’ ” To read this case, click here ….

New Commissioners (Corrected)

April 15, 2010: I now have the correct name of the second nominee for Commissioner on the New York State Workers Compensation Board.

I previously reported that the first nominee is Sam Williams who is the director of the United Auto Workers CAP and is also Co-Chairman of the Western New York Chapter of the Working Family Party. As a very active leader in the labor movement, Williams was also co-chairman of the Western New York Area Labor Federation and has been a frequent contributor to the opinion pages of various Buffalo newspapers on labor related issues.

The correct name of the second nominee is Loren Lobban, not Warren Logan. Loren D Lobban has been a member of the NY Bar since 1976, practicing insurance and criminal law. He graduated from Northern Michigan University with a BA and got his JD at SUNY Buffalo. Like Williams, Lobban is involved in Democratic/WPF politic as an active contributor to Democratic candidates fr for national and statewide offices. As a matter of interest, Lobban has contributed to Brian Higgins for Congress ($5000 in 2006), the brother of current Commissioner Mark Higgins, but with enough left over for State Senate President Malcom Smith, among other state democratic office holders. His partner, H. Todd Bullard, served as a Monroe County legislator.

It is expected that these names will be sent to the New York State Labor Committee and then the Finance Committee for the next few weeks.

These two individuals will fill two of three vacancies on the Board. It is expected that Robert Beloten will remain as chairman, certainly through the end of his friend, Governor Paterson’s, term of office and that Francis levels will remain as Vice Chairman as long as the governor’s office, be it Patterson or Cuomo, need the assistance of her husband, Republican State Senator Thomas Libous, to pass legislation.

Impairment/Wage Loss Task Force Delayed

April 15, 2010: It appears that the Impairment/Wage Loss Task Force is having some internal differences of opinion making it likely that the proposed guidelines to be used to determine lost wages will not be done by the end of April but delayed to some time in late May. There should be a lot of pressure placed on the parties in the Task Force as two upcoming events should be based on the new methods of calculating degree of functional disability in return to work.

First, the New York Compensation Insurance Rating Board will be publishing its rates shortly and the opportunity will be lost for lower premiums based on projected savings from the new functional disability schedules and return to work programs.

Second, the new average weekly wage for injuries occurring on or after July 1, 2010 will be $1,109.75 as calculated by the New York State Department of Labor’s Research and Statistics Division, pursuant to Workers’ Compensation Law § 2(16).

[ED. NOTE: I have not seen any the documents being used to produce the guidelines or any the guidelines themselves, I do have concerns as to their applicability in the real world known as the “hearing part” where the law judges and on occasion commissioners are required to make decisions regarding the degree of disability and the dollar amount of compensation. I also do not know who are the members of the Task Force. But I’m reminded of an incident which I regularly recount regarding the fact that too many of the policymakers have no experience working in the trenches of workers compensation, too “important” to even visit a hearing. When I invited one such person to attend the hearing I was conducting on §32 settlements, the response was, “I’m too busy writing the new regulations for conducting §32 hearings to attend them.”

Having been on the number of boards over the years as well as having been CEO of a number of private-sector companies, I am well aware of the dichotomies that exist between theory, policy, and practice. And while the Task Force is responsible for setting the policy, once the parties can agree on their philosophy, there must be somebody with hands-on experience to make sure that the policies can in fact be “practiced”.

I therefore make the following recommendations.

A law judge or commissioner, if not both, should be included in the discussions of the task force to make sure that the proposed guidelines have a practical application in the hearing parts. However, I’m aware of the fact that no sitting law judge would want to put up with the backroom pressures which they would be subjected, and I don’t think that those commissioners who would be competent enough to participate would want to put up with the potential political heat.

However, I can think of four individuals with real-world experience with these issues and would make excellent additions to Task Force for this purpose. Please note that the people being mentioned had not been given any forewarning of their inclusion in this recommendation. They are, in no particular order, Robert Snashall, former Board Chairman; Mark Solomon, former deputy general counsel and senior law judge and now a Social Security judge; Carol McManus, former Commissioner and still active as a consultant in workers compensation field; and, if I may be so bold, me.

I’m sure that the Task Force can think of others who have “on the ground experience” and have reputations for fairness and objectivity despite whatever philosophies they may have.

The functional equivalency guidelines and the return to work programs are far too important to be tied up in political or bureaucratic infighting. More importantly, these new Guidelines will put New York State in the national forefront of the treatment and rehabilitation of injured workers and prove that, despite the economic uncertainties faced by our state, New York can still lead the nation.

WCB Buffalo Office Lease Political Controversy

April 14, 2010: Nearly 9 months after signing a new lease to move the Workers Compensation Board’s Buffalo office to space owned by companies owned by Carl Paladino, the State of New York has suddenly discovered that the landlord, Paladino, has made what they consider to be politically incorrect statements. As reported in this website in July 2009 the Board’s former landlord was going into bankruptcy and the State selected the building owned by Paladino which coincidentally contains a number of other state agencies.

But no matter how objectionable the landlord’s statements may be, most people agree that the lease is a legally binding document and, unless there is a morality clause in the contract, it is hard to see how those leases can be broken.

The following was reported by Tom Precious in the Buffalo News but the main question which nobody seems to ask is why was this space rented for an agency which serves injured workers when the office is accessible only by a small elevator going to the fourth floor and the closest parking the building is far enough away that valet parking must be provided by the landlord. And despite finger-pointing at the Pataki administration, is important to note, as reported in the Buffalo News, that although the Pataki administration signed many of the leases, additional leases were signed by the subsequent administrations. And before the administration or the state legislature get too aggressive on seeking the automatic termination of otherwise legal contracts with landlords whose statements and or behavior is “inappropriate”, someone should remind them of the articles in the New York City press about some of the pork that was handed out in Queens, Brooklyn, and the Bronx.

On April 14, 2010, The Buffalo News reported “that Paladino has more than two dozen contracts — about $85 million in value — with various state agencies that lease space in buildings owned by him or partnerships in which he is a member. The current contracts, dating back to 1999,. . . . include the State University of New York; the departments of Education andMotor Vehicles; and the Office of Children and Family Services.

“The Paladino camp countered this morning, saying the Paterson administration for more than a year — long before Paladino became a gubernatorial candidate — has been trying to kill his contracts with the state. ‘They have been looking for any reason to pull the leases from landlords to give them to their political cronies,’ said Michael Caputo, Paladino’s campaign manager. ‘Carl has been in disagreement with the Paterson administration for quite some time. This is actually just the next step in the process,’ Caputo said of the administration’s move since the e-mails surfaced this week.”

Friend or Foe? Pay or No!

April 14, 2010: The New York State Workers Compensation Board today issued Subject Nbr 046–413 regarding billing procedures for unpaid penalties.

To quote Subject Nbr., “In 2009, as part of the development of an updated billing process for these penalties, all parties with unpaid procedural penalties received a bill for past-due penalties dating back to 2003. These bills contained an offer of settlement for those who did not wish to research and appeal each individual penalty because the Board recognized that a small number of invalid penalties might be included in those bills. This process of resolving old penalties is currently being concluded.”

Yet last summer, the Board boasted that it had sent bills to nearly 10,000 employers who failed to have had workers compensation insurance. It was widely reported in the press that many of those getting bills were employers who had been out of business for 10 or 15 years, churches and other nonprofits that had long since gone out of business, and a wide variety of entities who probably did not need to have insurance. Some of these claims went back well beyond the time frame for which most companies keep business records, thus making them unable to prove whether they had insurance or even if they had employees. Yet the Board boasted how tough they were going to be on all these small business owners.

Now the Board acknowledges that it is waiving substantial portions of penalties that could have been and should have been collected against carriers who are still doing business in the State of New York.

Perhaps the Board’s policy is a reflection of state bureaucracy in general: chase and beat up on the small employers and taxpayers but be very nice to your friends who are the big businesses because they can fight back and even make contributions to the political leadership.

Perhaps the Board would be so kind as to publish some statistics on the 10,000 firms it was chasing to let us know how many of these 10,000 firms even responded, how much money was due, and how much was collected. And when the New York State Worker’s Compensation Board puts in a request in their next budget for another $50 million for upgraded computer systems, perhaps they should be told that if they bothered using their current systems properly, that they probably have collected several million dollars for these past due penalties.

Two New Commissioners on the Way

April 8, 2010: It has been learned that negotiations between the Patterson administration and the leadership of the New York State Senate have resulted in an agreement on the next two nominees to the New York State Worker’s Compensation Board. The two anticipated nominees are from the Buffalo region, one of whom has been previously mentioned in this website although I do not currently have information as to which of the individuals it is. And, finally, one of the two is a practicing attorney.

It is expected that the names will be placed before the Senate Labor and Finance committees within the next six weeks, although with the current state of affairs in Albany one can never be certain of anything until the gavel comes down on the Speaker’s podium. This leaves one vacancy on the current board which can be filled by Governor Paterson with two terms, Mona Bargnesi (Buffalo) and Candace Finnegan (Peekskill), expiring December 31, 2010 which would then be filled by the next governor.

New Impairment/Wage Loss Guidelines Almost Done

April 8, 2010: Two years after it was first constituted during the Spitzer administration, the Impairment/Wage Loss Task Force will be submitting its guidelines to the New York State Workers Compensation Board on April 25, 2010.

The Board will then have the opportunity to review these guidelines and can either propose changes or recommend its adoptation by the Board.

These guidelines will dramatically change the way that injured workers have been compensated for lost wages as well as establishing various methods of assisting injured workers in returning to the workplace, with their employer of record, a new employer, or in a different occupation/trade.

It has long been recognized that two people with identical injuries can be impacted in two dramatically different ways in terms of wage loss. For example, a law judge and a court reporter can both break several bones in their nondominant hand requiring not only the wearing of a cast for several weeks but also losing the use of their fingers on that hand for a few months. The law judge may be incapacitated from doing their work for a few days whereas a court reporter may be unable to return to work for several months, if ever. And yet from a medical/disability perspective, both could be determined to have a mild-to-moderate disability. Under the new guidelines, it is the wage loss and earnings impairment that will be measured such that, after the first week or so, the law judge’s compensation would be minimal if anything whereas the court reporter,s award could come close to the maximum compensation allowed and continue for several weeks if not longer.

Another key element of the new guidelines for long-term wage loss would be in part determined by the availability of other occupations or trades. As was explained to me by one party familiar with the discussions on the guidelines, those whose work involves physical labor would gain greater benefits under the new guidelines than they currently have while office workers and other professionals, whose return to work in the same capacity as prior to their injury is far less limited, would be getting less benefits.

As a personal note, I do remember that as new commissioners would join the Board, after a few months of reviewing decisions and attending hearings, most ask why it was that two people with the same injury would get the same amount of money even though one could not return to their former trade while the second, if kicked hard enough in rear end, could return to work even if with some discomfort.

These long-awaited guidelines offer the current Board the opportunity to usher into the system an entirely new concept which addresses and hopefully corrects the inequities found in the workers compensation system in the past. One can only hope that the Commissioners and other top executives at the Board act upon these new guidelines as soon as they are received in order to allay the ever growing suspicions that this current Board and its executives have no concern for the injured workers or their employers.

NY Woman Gets Fed’s ‘Goat’ for WC Fraud

April 6, 2010: In the plea announced Tuesday, U.S. Attorney Richard Hartunian for the Northern District of New York announced that an upstate woman pleaded guilty in U.S. District Court to making false statements to the U.S. Department of Labor, while admitting that she sold goats while collecting more than $60,000 in federal workers compensation. As a result of a guilty plea, she faces up to five years in prison and a fine up to $250,000.

For those who think that the penalties imposed by the New York State Workers Compensation Board under WCL §114-a or those imposed by New York State Supreme Court under WCL §114 should note the penalties in the above federal case and recognize, in comparison, how minimal are the penalties for cheating in New York State’s workers compensation system.

For those who think that the penalties imposed by the New York State Workers Compensation Board under WCL §114-a or those imposed by New York State Supreme Court under WCL §114 should note the penalties in the above federal case and recognize, in comparison, how minimal are the penalties for cheating in New York State’s workers compensation system.

[ED. NOTE: She worked for the U.S. Postal Service which is the reason this was a federal case, a point noted in the press release issued by the U.S Attorney’s office but omitted by the AP and other entities reporting this story.]

NYSIF Discusses WC Insurance Rates

April 5, 2010: In a just released document, the New York State Insurance Fund (SIF) explains why its annual rates are lower than those of its competitors in the private sector.

SIF writes that “A simple explanation is that the amount charged for your type of business is derived from the most recent total amount paid on claims for similar types of businesses statewide. This determines the loss cost for your class of business. The New York Compensation Insurance Rating Board (NYCIRB) promulgates these loss costs, reflecting data from all insurance companies, which become official upon approval by the New York State Insurance Department. As part of workers’ comp. reform, all insurance companies, including NYSIF, apply their own Loss Cost Multiplier (LCM) to the official loss costs in arriving at a manual rate for any given classification.”

The document then goes on to explain why it is that SIF’s rates are lower.

[ED. NOTE: Not to be judgmental, but isn’t that the same thing that CRM did?]

NY’s Workers Comp System among the Nation’s Worst

April 2, 2010: New York State’s workers compensation system ranks as one of the worst in the 2010 State Report Cards for Workers’ Comp in a report issued by the Work Loss Data Institute (WLDI). This report is based on eight years of data from 2000 through 2007 and covers 43 states plus Puerto Rico, Palm, and the Virgin Islands.

Minnesota performed the best of all the states for 2007 and Nevada and Arizona came in a close second and third. All three states received a grade of “A+” based on an average of their 2007 scores in the five categories above. A summary of each grade for all states is shown on a map of the United States. The worst performers for the years 2000-2007 were: New York, Illinois, Kentucky, Oklahoma, and Wyoming.

The 2010 State Report Cards, based on data from OSHA Forms 300 and 200, provide five different outcome measures compared among the states for each year: (1) Incidence Rates, (2) Cases Missing Work, (3) Median Disability Durations, (4) Delayed Recovery Rate; and (5) Key Condition: Low Back Strain. An essential requirement for production of this report was the proprietary crosswalk program that has been developed by Work Loss Data Institute, which converts OSHA-reported data into an ICD9 code format.

The WLDI special report, entitled 2010 State Report Cards for Workers’ Comp provides complete detail on all cases for the 46 participating states and territories, based on all cases reported to OSHA for the years 2000-2007 as a 79-page report with narrative, plus over 50 spreadsheet files with complete detailed backup data that is referenced in the narrative. It is available in both electronic and hardcopy formats for $250 each. Note: The electronic format is recommended to facilitate links to the electronic spreadsheet files and the supporting data and can be ordered over the internet at www.worklossdata.com

CRM Lays Off 15% of Staff

March 31, 2010: CRM, which specializes in workers compensation insurance, announced that it has eliminated 30 jobs, 15% of its total workforce, the majority at its Poughkeepsie offices. CRM stated that although it will record a one-time charge of the $417,000 with the termination benefits, annual savings should be $2.6 million. Nonetheless, CRM reported on March 9 that its net loss for 2009 was $45,000,000. And CRM again confirmed that the Office of New York State Attorney General Cuomo is continuing its investigation into CRM’s alleged mishandling of various self-insured trusts which managed.

As reported on August 18, 2009 by Roberto Ceniceros of Businessinsurance, among others, the list of victims of the underfunding of self-insured trusts continues to grow. Ceniceros reported that a New York State Workers’ Compensation Board spokesman reported that nearly 2,000 companies insured under group trusts formerly operated by CRM Holdings Ltd. have been billed $133 million to cover unfunded workers compensation claims.

Yet despite all financial problems that CRM Holdings, Ltd (NASDAQ: CRMH) currently has, and despite the fact that its stock has dropped from $5.00 a share two years ago to $.33 a share on March 30, 2010, approximately 1,000,000 shares of stock have been purchased by Ivan (John) Mihaljevic, either directly or through Mihaljevic Capital Management LLC and Mihaljevic Capital Management LLC, according to the Schedule 13G filed March 26, 2010.

Colorado’s Sale of its WC Insurance Fund is Cancelled

March 30, 2010: After nearly a year of discussions, arguments, and lobbying, Colorado Governor Bill Ritter has canceled a proposal to sell Pinnacol Assurance, thus denying Colorado the opportunity to sell the state-chartered workers compensation insurance fund and raise between $200 million and $500 million to help balance a budget shortfall estimated at between $212 million and $1.3 billion.

Originally, the Democratic-led legislature considered tapping $500 million from Pinnacol’s roughly $2 billion in assets but, when that plan failed, the next plan was to convert the company into a private entity after a payment of $330 million to the state.

Fortunately for the employers and injured workers of Colorado, the financial stability of this workers compensation insurance fund remains intact, perhaps a signal to other states who would also consider withdrawing assets from their state-chartered workers compensation insurance funds

[ED. NOTE: I would be most appreciative if one of my readers could explain to me why it is that if the reserve funds of a workers compensation insurance fund are too low because of actuarial errors that the carrier and its management are subject to potential criminal and civil penalties whereas, if the reserve funds are too low because the money was “confiscated” by a political entity ,that is considered to be legitimate, i.e. CMR v Pinnacol.]

Ohio Proposes: No WC benefits for Illegal Aliens

March 16, 2010: Ohio Senator Bill Seitz introduced Senate Bill 238 to the Ohio General Assembly. If passed, this bill would amend Ohio’s Revised Code to prohibit illegal and unauthorized aliens from receiving compensation and benefits under Ohio’s Workers’ Compensation Law.

Currently, in Ohio, illegal and unauthorized aliens are afforded the same benefits under Workers’ Compensation Law that other workers are. In other words, illegal and unauthorized workers who are injured in the course of and arising out of their employment are allowed to file workers’ compensation claims and receive benefits and treatment for their injuries.

Senate Bill 238 adds to existing legislation two additional categories of individuals who would no longer be qualified as “employees”: illegal aliens or unauthorized aliens. The legislation would require injured workers to submit along with their claim documentation proving they were covered under the amended law. The law also would prevent Ohio courts from having jurisdiction over claims for damages suffered by an illegal alien or an unauthorized alien in the course of employment but does give courts jurisdiction over these claims if the employer employed the illegal alien or unauthorized alien knowing that the illegal alien or unauthorized alien was not authorized to work under the Immigration Reform and Control Act.

The legislation defines an illegal alien as an alien who is deportable if apprehended because of one of the following:

1. The alien entered the United States illegally without the proper authorization and documents.
2. The alien once entered the United States legally and has since violated the terms of the status under which the alien entered the United States, making that alien an “out of status” alien.
   
3. The alien once entered the United States legally but has overstayed the time limits of the original legal status.

Additional details can be found at www.employerlawreport.com or www.daytondailynews.com.

Legal Fees for WTC Settlements Unreasonable

March 26, 2010: In a press release issued today, I agreed with Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.

I stated that the fees being sought in the settlements in the amount of 30% to 40% are excessive when compared to the fee structure that exists in the New York State workers compensation system. I ended my statement by suggesting 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.

The full text of my statement can be found on the COMMENTARY & REPORTS page under the heading “Legal Fees for WTC Settlements Unreasonable”.

▼ Posted Friday March 26, 2010 ▼

WC Attorney Defeats Negligence Claim

March 4, 2010: An injured worker’s action against her workers compensation attorney, Alan M Cass, to win in civil court after she did not win at the New York State Worker’s Compensation Board was rejected by the First Department of the New York State Appellate Term of the Supreme Court. The Court in granting Cass’ motion for summary judgment reversed the decision of the Civil Court of the City of New York, New York County, which denied that motion.

In bringing her complaint, Elaine Lupo contended that the defendant was negligent in the handling of her claim, for his failure to present evidence and cross-examine opposing witnesses. The defendant made a prima facie showing that his firm was not negligent and, further, that “their claimed negligence did not proximally cause plaintiffs alleged damages”. The Appellate Court wrote in its decision that the allegations “amount[ed] to nothing more than criticism of defense’s considered tactical strategy of how best to pursue plaintiffs claim . . .” In its decision the Court was quite clear that it would not second-guess Lupo’s attorney, that some of her claims were based purely on speculation.

This decision follows a line of cases in which the Courts have refused to second-guess the strategies of the attorneys representing injured workers, essentially taking the position that not every case and every issue raised by claimants will be affirmed by the Board, regardless of the efforts of their legal representatives.

Details of the Court’s opinion can be found on our DECISIONS page or by linking to the actual decision: Lupo v Cass 2010 NY Slip Op 50310(U).

[ED.NOTE: perhaps a sign referencing the language in this decision should be posted over the door of every hearing part.]

A Vaccine for Malignant Mesothelioma?

February 17, 2010: The American Journal of Respiratory and Critical Care Medicine has accepted for publication an article about tests that show inoculations prevent Malignant Mesothelioma.

A group of scientists working out of the Netherlands demonstrated that dendritic cell-based immunotherapy induced protective antitumor immunity with prolonged survival in mice. Then now they then embarked on a trial of 10 patients with malignant pleural mesothelioma who received vaccinations at two-week intervals after chemotherapy. This study demonstrated that autologous tumor lysate-pulsed dendritic cell-based therapy is feasible, well-tolerated, and capable of inducing immunological response to tumor cells in mesothelioma patients.

Because the study is in the early stages, no mention was made of the time frame for its availability to the public at large nor is there any indication of the impact this could have on the thousands of cases of pleural mesothelioma currently in the workers compensation system not just in New York but throughout the United States as well as the tens of thousands of cases being fought over in civil courts throughout the country.

A summary of the study, titled “Consolidative Dendritic Cell-Based Immunotherapy Elicits Cytotoxicity Against Malignant Mesothelioma”, can be found at http://ajrccm.atsjournals.org/cgi/content/abstract/200909-1465OCv1. More information on the actual trials can be found at www.clinicaltrials.gov NCT00280982.

Our Newest Poll Now Ready

March 15, 2010: As a result of changes in the Board’s requirements for the issuance of medical reports, more medical providers have decided to no longer treat injured workers. As previously noted in my website as well as other sites, the Board acknowledges a shortage of medical providers in the Rochester area. But the problems occasioned by the shortage in Rochester are being found throughout the state. There are complaints that so many doctors, including IME’s, are dropping out that the Board’s list of doctors in woefully out-of-date, claimants cannot get timely medical treatment, and their return to health and decisions on their case are unnecessarily delayed.

This poll is now up and running - you are welcome to give your opinion by participating in this poll:

Questions on the Board’s Medical Procedures

Thank you for your participation. Results will be published Monday March 22, 2010.

Medical Guidelines Pilot

March 4, 2010: The New York State Worker’s Compensation Board has again revised its medical treatment guidelines, as a part of its continuing effort to meet the deadlines of the 2007 statutory reforms.

The ‘content changes’ are discussed in the “Substantive changes in the Proposed Medical Treatment Guidelines January 19, 2010 revision” document. The reformatting changes “Formatting changes in the Revised Medical Treatment Guidelines” are designed to make guidelines easier to use and more consistent.

In 2009, the Board requested public comments to the Draft Guidelines. Based on those comments and exhaustive reviews of recent medical literature, the Board revised the Draft Guidelines in January 2010. The Board anticipates issuing proposed regulations to adopt the Revised Guidelines in the near future.

On Monday, November 30th, the Board started a Medical Treatment Guidelines Pilot with both Providers and Payers. The pilot program is designed to test the process for implementing the adopted Guidelines. Participants in this pilot will have a unique opportunity to provide feedback that will help shape the final procedures. The pilot will run until the proposed Guidelines are formally adopted by regulation and the delivery of the comprehensive training program has been completed. The Board encourages both providers and payers to participate in this pilot program. It is our hope that a successful pilot program will help accelerate delivery of quality medical services to injured workers, reduce disputes and cut system costs. If your organization is interested in participating or has questions regarding the pilot, please contact the Medical Director’s Office at 1-800-781-2362 or WCBMedicalDirectorsOffice@wcb.state.ny.us.

The Board’s Regulatory Wish List

MARCH 4, 2010: The January 2010 Regulatory Agenda was published in the January 6, 2010, edition of the State Register , allegedly to provide small businesses, local governments, and public and private interests in rural areas with the opportunity to participate in the rule making process, as provided for in State Administrative Procedures Act sections 202-b and 202-bb.

The Workers’ Compensation Board agenda included 20 different items ranging from medical issues to the management of self-insured trusts.

Also among these items are a plan to amend Parts 390 and 393 regarding the Aggregate Trust Fund to conform to the amendments to Workers’ Compensation Law §27, the decisions of the Board and the recent decision by the 2nd Circuit Court of Appeals. The Board also proposes to repeal and readopt Part 302 regarding the rules governing licensed representatives. The amendments will separate the provisions that apply to third-party administrators from those of licensed claimant representatives and address applications, duties, standards of conduct and licensure.

However, a careful review of some of the proposed changes would suggest that the Board is seeking to bypass the state legislature and institute changes to the Workers Compensation Law by changing the rules and regulations that define how the laws are managed by the Board

You can read the entire regulatory agenda by linking here.

Spine stimulation may not help after failed surgery

February 17, 2010: Reuters Health today summarized a study which showed that a commonly used treatment for patients who still suffer chronic back and leg pain after having back surgery is essentially no better than specialized pain treatment or standard medical treatment.

But the findings do not mean that the procedure — spinal cord stimulation — will not help some people, Dr. Ajay D. Wasan of Brigham and Women’s Hospital and Harvard Medical School in Boston notes in a written commentary published with the study in the journal Pain.V(olume 148, Issue 1, January 2010, Pages 3-4 )

Spinal cord stimulation, in which implanted electrodes send small electrical impulses into the spine, has been used since the 1960s for patients with so-called “failed back surgery syndrome,” Dr. Judith A. Turner of the University of Washington in Seattle and her colleagues note in their report. However, questions remain about the procedure’s risks and long-term effectiveness. Also, they point out, no studies done to date have included patients on workers’ compensation, who are known to fare worse with any type of pain treatment.

To investigate, Turner and her team studied a group of patients with a workers’ compensation claim who had persistent low back and leg pain following previous back surgery.

They compared the outcomes of 51 people who had at least a trial of spinal cord stimulation (27 went on to have the electrodes implanted permanently) with those of 39 people who underwent evaluation at a pain clinic, and 68 who received neither spinal cord stimulation nor specialized pain treatment. Fewer than 10 percent of the patients in any of the groups showed notable improvements in leg pain and function, or were able to step down from daily use of opioid painkillers, the researchers found. While the spinal cord stimulation group showed slightly better improvements in leg pain and function at six months, these patients used more opioids than patients in the other two groups. At 12 and 24 months, there were no differences among the three groups.

While the researchers did not compare the outcomes for people who only had a trial of spinal cord stimulation and those who went on to have electrodes implanted permanently, Wasan points out, results for these two groups were “distinctly different,” with 30 percent of people who underwent permanent implantation showing improvement in leg pain and function at two years.

The full report is available from sciencedirect.com for a small fee.

Triangle Shirtwaist Group
Names Award Recipients for 2010

February 16, 2010: The Triangle Shirtwaist Factory Fire Memorial (TSFFM) announced that four individuals have been named to receive a Clara Lemlich Public Service award for their work and efforts in calling attention to and participating in the reform of workers’ compensation and improvement of occupational safety in New York State.

Those named to the Class of 2010 are: M. Patricia Smith, recently approved by the US Senate as Solicitor at the US Department of Labor and previously Commissioner of the NYS Department of Labor; Lillian Roberts, Executive Director of NYC’s District Council 37; Veronica Montgomery-Costa, President of DC 37; and Richard D. Winsten, Esq., a partner at Meyer, Suozzi, English and Klein.

Lee Clarke, a member of the Board of Directors of TSFFM and Director of Health and Safety at DC 37, in announcing the awards, observed, “Although history is supposed to be a great teacher, we too often are not familiar with its many heroes who slug it out day to day for working men and women. Clara Lemlich, a young Jewish immigrant, was among those who rose to the occasion and inspired many with her voice and her actions. The Lemlich Class of 2010 represents this ideal.“

In the early 1900’s, Lemlich participated in efforts to improve the working conditions of her co-workers in the garment industry. Despite a number of severe beatings by goons hired by factory owners, Lemlich continued her organizing efforts. On November 22, 1909, after hours of speeches from labor representatives mostly men, she mounted the stage at Cooper Union and addressed the workers in Yiddish. Her words inspired 20,000 workers to strike, one which lasted until February 10, 1910 and resulted in better wages and working conditions for members of the ILGWU.

“But,” noted Clarke, “the Triangle factory owners did not participate in the reforms of the 1909 labor action and it was the tragic fire of March 25, 1911 that woke up the entire nation. We need to be reminded of that. So, I am proud to honor these men and women and recognize their connection to, not only labor history, but to all who enjoy safer and better working conditions.“

The awards will be presented at TSFFM’s Eighth Annual Memorial dinner to be held at the NYC Fire Museum in lower Manhattan on March 25. Proceeds from the dinner and a journal are dedicated to a scholarship program for children of injured workers. Attendees are treated to cocktails, a four-star dinner, and entertainment with themes relating to the 1900’s, the Triangle era, and performed by an amateur theatre group. “In this way,” offered Jim McCarthy, President of TSFFM, “we fulfill TSFFM’s mission to commemorate the Triangle tragedy and remind the public of the need for vigilance in workplace safety. The Lemlich awards and our scholarship program are concrete testimonials to these ends.“

And their work continueth,
Broad and deep continueth,
Greater than their knowing!

For additional information contact James M. McCarthy (TSFFM) at 718-830-3200 or jmccarthy@nycomplawyers.com or www.trianglememorial.org.

Chief Justice Lippman’s Court of Appeals

February 17, 2010: The New York Times has today published a review of the first year of Chief Justice Jonathan Lippman’s stewardship of the New York Court of Appeals, having been appointed to that position by Governor Paterson in January 2009.

According to the author of the article, William Glaberson, “the parameters of the Lippman court are coming into focus. He has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. the past year, the court has issued a series of sharply divided decisions that have been surprising from a judicial body with a clear 4-to-3 conservative majority. They have included decisions favoring criminal defendants and injured workers, expanding environmental challenges and extolling individual rights against the police.”

“The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court,” Vincent M. Bonventre, a professor at Albany Law School who studies the court, said of Judge Lippman.

According to Bonventre, a professor at Albany Law School who studies the court, “The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court.” As noted in my NEWSWIRE posting of February 13, 2009, Bonventre’s blog makes reference to Lippman’s one workers compensation case. “In Bellamy v. Columbia University, Lippman wrote for a 3 - 2 majority, refusing to dismiss a lawsuit brought by a worker who hurt himself slipping and falling in one of the University’s kitchens where he worked. He rejected the University’s position that it was necessarily immune from this negligence claim under the Workers’ Compensation Law.”

At that time I noted that it would be interesting to see if Bonventre’s analysis of Lippman appearing to be pro-plaintiff proves to be correct. It is.

According to Glaberson,

The Lippman court has also shifted ground on worker injury suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering. Early in his tenure, he wrote a 6-to-1 decision in favor of an injured patient against two doctors, a ruling that the dissenter, Judge Smith, called a “gross injustice” to the doctors.

In early December, Judge Lippman went further, indicating that he planned some changes in injury cases. He “reluctantly” agreed with the dismissal of a damages suit against New York City by a public school teacher who was injured by a student , saying an earlier ruling limiting such suits should be changed.

A couple of weeks later, he got all seven votes in the case of an injured worker, declaring that the court in the past had too narrowly construed a law originally intended to help workers win suits against employers. Legal commentators have noted the change from Judge Kaye’s court, which had voted 7 to 0 the opposite way in at least one case involving an injured worker.

The protection of the law for injured workers, Judge Lippman wrote, had “been construed to be less wide than its text would indicate.” In the coded language of the courts, that was a hand grenade tossed at the old Court of Appeals, before the arrival of Chief Judge Lippman.

In 2009, there were 4 cases in which the Court of Appeals issued decisions regarding injured workers although the New York State Workers Compensation Board was not a party of interest in any of them. In one pro-injured worker decision, the Matter of Passante v Agway Consumer Products, the dissenting Justice wrote “Decisions like today’s can only make things worse.”

The New York Times article covers far more detail as well as adding graphs and charts regarding the increasing divisiveness of the Lippman Court. As to the impact on any workers compensation claims that make their way to the Court of Appeals, only the future can tell.

Board Publicity: Selective at Best

February 18, 2010: Since January 1 of this year, the New York State Workers Compensation Board has published 16 Subject Numbers listing 16 doctors and one medical company whose practice of workers compensation medicine has been limited or ended.

Over the last few years the Workers Compensation Board has been very aggressive in investigating fraud, malpractice, malfeasance, misfeasance, and several other patterns of behavior by medical providers which deny both the injured worker and the carrier/employer proper medical treatment that an appropriate cost. In the Board, by issuing all of these Subject Numbers is taken steps to make sure that the people in the State of New York as well as those in the workers compensation community are aware of Boards steps to improve the system.

The Board’s interest in promoting its activities is substantiated by nearly 100 medical providers whose names were listed in Subject Numbers published in 2009.

Unfortunately, it is only the activities of outside parties whose actions impact on the Board that the Board wishes to publicize and not the Board’s own plans for changes in procedures. Interesting to note the fine line that the Board has drawn between changes in some procedures which are done secretly and announced after-the-fact and those which, by law, require advance publication in the NYCRR to allow public comment.

CO Legislature: “Video Surveillance Unfair”

February 18, 2010: Colorado’s House Judiciary Committee has approved a bill that would prohibit employers or insurers from conducting surveillance, including videos, of employees who have filed a workers’ compensation claim, unless there is “a reasonable basis to suspect that the employee has committed fraud.” According to Business Insurance, companies who break the proposed law face a $1,000-a-day fine.

The Colorado movement to curb insurers comes at a time when carriers are cracking down on employees who take extended sick leave or file disability claims. SmartMoney reports that an insurance case manager called a Washington state woman who has breast cancer at 7 a.m. to ask probing questions about her health, such as “Did she feel well enough to exercise?” The magazine says that insurers are cutting back coverage where possible and “putting employee complaints under a microscope.”

But insurers also have an argument. Workers’ compensation payments, along with no-fault medical fraud costs are “spiraling out of control,” according to the New York Insurance Association. Among the NYIA’s concerns are lawyers who hire “runners” to set up fake accidents, and then send the “injured” for medical treatment at prearranged doctors and chiropractors who split inflated fees. Over the last three years, suspected fraud cases have jumped 33 percent in New York State.

Further details on the story written by Bnet reporter Ed Leefeldt can be found at: http://industry.bnet.com/financial-services/10007029/smile-youre-on-your-insurers-candid-camera/

WCB’s Appearance Before Senate Finance Committee

February 11, 2009: On Wednesday February 10, 2010, the New York State Senate Budget Committee met to discuss issues dealing with the New York State Workers Compensation Board and spent nearly 2 hours discussing three subjects:

• The Board’s plans to eliminate hearing
• The Board’s Plans to Eliminate Verbatim Reporters
• The $100 million in the “excess fund”

Speaking on behalf of the New York State Worker’s Compensation Board was Chairman Robert Beloten assisted by General Counsel Kenneth Munnelly and Budget Director Mary Beth Wood.

Other speakers included Stephen Zinone, President of New York State Court Reporters Association, and Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association.

ELIMINATING HEARINGS

After number of introductory remarks, Senator Honorato asked the Board could have more law judges but less hearings and what happens to Due Process under §25(2)(b). Munnelly noted that the Legislature in 1991 authorized a conciliation process and the Board has been aggressive in moving many cases to conciliation, He added that 80% of the proposed decisions made at conciliation are accepted, substantiating the Board’s position that many hearings are not needed. Chairman Beloten gave an example of a disputed medical bill, the resolution of which does not need an injured worker to take time off from work to attend the hearing. [ED. NOTE: His response ignores the fact that on many issues of this nature claimants are told by their attorneys that their attendance is not necessary.]

Senator Honorato asked for a further clarification of Project 2015. Mary Beth Wood explained that the idea was to reduce the number of hearings by using more conciliators but also stated that the plan was to give a “slight” $10,000 raise to the approximately 20 conciliators which then prompted a follow-up question as to why more conciliators and judges are needed if the Board plans to have less hearings. [ED. NOTE: only someone on the public payroll could consider a $10,000 raise to be “slight”.]

Senator Honorato then asked why was the Board planning on moving ahead with Project 2015 and the plan to reduce hearings without any legislative approval to which Chairman Beloten responded that these two changes were necessary to streamline the process as research has shown that injured workers who do not return to work for four months never return to the workplace so it was a goal of the Board to get cases settled in less than that time.

ELIMINATING VERBATIM REPORTERS

The Finance Committee then moved to the issue of digital recording, asking how was it that the Board could continue on this process when, after the October 2009 hearings, the Legislature in a letter signed by Senate Labor Committee Chairman Senator Honorato, stated its displeasure and disapproval of the project. Munnelly replied that they are not eliminating verbatim reporters and moving ahead with the project, but that they are simply doing a pilot program using both digital recording and verbatim reporters and plan to report to the Legislature when the pilot project is done. He then stated that “§142 (5) states that there is an obligation to keep records but does not state they must be verbatim.”

Senator Honora reminded Munnelly the Labor Committee’s strong objection to the refusal of the Board and the firms bidding on the project, who also testified at the October hearing, to give any costs. Munnelly responded that the bidders were afraid to disclose the proposed costs of their bids prior to the formal opening of those bids lest they be in violation of New York State law but, because the bids had just been opened, he would then give copies of those bids to the Senate Finance Committee.

In response to Senator Dianne Savino’s questions as to the cost, Chairman Beloten noted that it would be $35,000 for the pilot run for the four units, two upstate and two downstate. Beloten added that it is important to pursue this new process lest one day there are not sufficient reporters to attend hearings. Senator Savino reminded Chairman Beloten that he had testified in October 2009 there was no record of any hearing having been canceled for lack of reporters.

Senator Honorato then noted that the contracts that were just submitted by Munnelly showed that there was a contract, not for $35,000 for a one year pilot program, but for $917,000 for a three-year program. Munnelly responded that §8A of the contract allowed the Board to cancel at any time but the Board felt that having a three-year contract for all the hearing parts throughout the state was the best way to approach this program. Wood added that the $917,000 was not in the budget ‘per se’ but the contract had been approved by the State Controller and the cost was going to be $140,000 for the pilot program. It was then noted that, minutes earlier, Beloten stated that the cost was $35,000. [Apparently a misunderstanding: $35,000 for the entire project or was it the cost for each of the four pilot sites and not for the entire pilot program.]

EXCESS FUNDS

The next issue addressed dealt with an item one of the committee members referred to as “Excess Funds” which amounted to slightly over $100 million.

Wood explained that this money came as a result of higher than necessary assessment charge to the carriers. And, of course, the higher than necessary assessments were passed on to employers such that at the end of the year there was a surplus in the fund. Under Article 7 for the state budget, Governor Paterson took all but $20 million of that by sweeping it into the general fund with the Board keep that balance. When Wood was asked if that was fair to keep the over-assessment rather than return it to the employers in the State of New York who paid it, we would replied “It would be too difficult to figure out how to return the money and it was easier to keep it.” When the follow-up question asked if this was unfair, “an insult” to the employers of the State of New York, and what would keep the Insurance Rating Board from continuing to over assess the employers/carriers, she replied (1) the new assessment system would avoid these excess charges and (2) it was just too difficult to return the money to the people who paid it.

ADDITIONAL SPEAKERS

Next address to the Finance Committee was Stephen A Zinone, President of the New York State Court Reporters Association, who brought to the Finance Committee’s attention the same concerns raised to the State Senate Labor Committee in October 2009. One additional point raised by Zinone was that the very same concept of using electronic transcription was tried in a pilot project in 1995 and 1996 and was rejected by the Board. He noted that the Board has failed to explain why the new proposed project is any different from the earlier one.

Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association, made reference to their appearances and comments at the October 6, 2009 hearings by the the Senate Labor Committee and made the observation that no matter what studies, reports, or communications there may be, the Board tends to look in one direction while the Bar and State Legislature look the other. They also noted that there is a total lack of communications from the Board on these projects until such time as the Board announced their implementation, that the only advance notice that the Bar or any of the other participants receive is from outside sources [this website, perhaps!] and not from the Board itself.

The entire hearing is available on video at http://www.nysenate.gov/event/2010/feb/10/joint-legislative-budget-hearing-workforce-issues. As a guide to finding specific appearances you will find that Chairman Beloten’s appearance started at 2:07, at 2:14 the issue of Project 2015 is raised, 2:18 starts a discussion of verbatim reporters, 2:23 Senator Savino asks why Chairman Beloten said the pilot project would cost $35,000 for one year but the contract is for $916,000 and three years, the issue of excess funds starts at 2:34, Stephen Zinone’s appearance start’s at 2:40 and Peter Walsh and William Crossest start their remarks at 3:58.

WCB Ignores State Senate Decision

February 3, 2010: State Senator George Onorato (D-Queens), Chairman of the New York State Senate Standing Committee on Labor, today took issue with the recent decision by the New York State Workers’ Compensation Board to move forward with a digital-audio recording pilot program in violation of state law. Under the plan, the Board is seeking to replace stenographers with recording equipment at some workers’ compensation hearings – a move the Senator contends is not authorized by law, will jeopardize the accuracy of transcripts, and will otherwise compromise workers’ compensation proceedings.

On October 6, 2009, the New York State Senate Standing Committee on Labor held hearings on this subject as referred to in this website in its October 8, 2009 postings.

In an apparent snub (as polite word as I can find), the Oligarchic Cabal at the Board decided to go ahead with this project, signing a contract shortly after Senator Onorato issued the Senate’s report stating that the consensus of the Labor Committee was that the Board should not proceed with this project on the grounds that (1) there were substantial technical problems with the project, (2) Chairman Beloten and other speakers promoting the Board’s position were unable to even guess at the proposed financial cost, and (3) there were a number of legal issues that had to be addressed before live court reporters could be taken out of the process.

The full text of Senator Honorato’s statement is available at the Senate website, using the following link . . .

[ED. NOTE: I guess this shows the attorneys and other members of the workers compensation community that they are not the only ones whose concerns and/or recommendations are being ignored by the Oligarchic Cabal running the Board who apparently feels omnipotent enough to “bite the hand that feeds it”: the New York State Senate. With budget hearings on a number of state agencies soon coming up, including the Workers Compensation Board, it will be interesting to see if the Senate has “teeth” and will be used them.]

NYSIF Distributes $173.3 Million in Dividends

February 2, 2010: The New York State Insurance Fund today announced the return of $173,323,008 in dividends for 2009 to approximately 34,025 policyholders in 98 NYSIF safety groups as a reward for exceptional record of workplace safety and sound business practices. The average 2009 dividend of 29.98% is the largest in recent years, surpassing the 28.20% in 2008 and 27.47% in 2007. All members of a safety group are eligible for the approved dividend with the percentage returned to the group applied to the individual policyholder’s earned premium. The dividends are in addition to very competitive up-front discounts applied earlier.

NYSIF Chief Deputy Executive Director Francine James said. “It clearly demonstrates the importance of a strong commitment to workplace safety and loss prevention. The dividend distribution underscores the strength of NYSIF’s safety group partners and the work they have done to ensure their groups are on sound financial footing.” NYSIF notes that past and present dividends are not a guarantee of future dividends.

About Time: Legal Training for Commissioners

February 3, 2010: At its regular monthly meeting in Albany, held on January 26, 2010, an announcement was made that effective next month the Commissioners and those members of the legal staff involved in drafting decisions of memorandum will be required to attend legal training.

The sessions will be similar to those offered for Continuing Legal Education (CLE) and may possibly count as CLE credits. My understanding is that these will be conducted Tuesday mornings prior to the beginning of the public meeting, this time having been chosen to avoid excuses from the few Commissioners notorious for finding excuses for not attending the Monday afternoon pre-board meetings at which the substantive discussions, such as they may be, are held covering decisions made prior to the pro forma discussions and votes seen at the public session.

CLE’s for commissioners or similar legal training is something I have been promoting for years, originally as a member of the Board and most recently in my book Behind The Closed Doors in Chapter 7 “The Monthly Board Meeting - Recommendations.”

Far too often in the past, even for those few commissioners who wanted to learn about the laws they were entrusted to enforce, there was no means to learn anything other than reading, as often as not, faulty decisions or by relatively brief conversations with writers. As a result, it could be months or even years before commissioners developed understanding of some of the issues with which they were faced which often meant that the pre-board discussions of cases set down for Full Board Review were monopolized by the few commissioners who were fortunate enough to have learned the law and one or two lawyer/Commissioners who felt admission to the bar automatically granted them extensive knowledge on the entirety of workers compensation law. Having attended CLE’s given by Board staff and some CLE’s outside the jurisdiction of the Board, I can only hope that the future presentations given to the Commissioners and legal staff will be as interesting and at least half as accurate as those given by Ronald Balter to the members of the Injured Workers Bar Association.

Project 2015 Still Lives

January 28, 2010: In the NEWSWIRE of October 8, 2009, I detailed some information from internal e-mails at the Worker’s Compensation Board which explained the process by which they planned to eliminate hearings while resolving controverted cases.

It seems the Board is continuing to push aggressively in this direction as copies of those same e-mails, which I did not publish, now make their way around the State has various parties fight with the Board on this issue.

One of the justifications given by the Board is that there is a shortage of law judges and that they just do not have the personnel to handle these hearings. But it seems that the number of hearings in the last 10 years has been cut in half even though the number of law judges has increased, even despite some of the current vacancies.

In addition to eliminating hearings, Chairman Beloten has suggested the invocation of Workers Compensation Law §150 (c) which would allow him to pick, from among board staff, people to act in the capacity of law judges or conciliators. But why do that if you are eliminating hearings?

There is apparently a great deal of controversy among the parties involved in this discussion concerned with the Boards intention to increase the authority given to conciliators to “make decisions” rather than to conciliate and allowing examiners to make decisions on the quality of medical evidence and levels of disability. It appears that the Board has decided that the interests of justice for injured workers are best served by a prompt resolution of the cases even if the decisions reached are made by unqualified people who are held to production quotas as if they’re punching out toasters and not dealing with real live people.

WAMO and the Dept. of Insurance

January 28, 2010: It seems that the January 28, 2010 meeting between staff from the Department of Insurance and the New York State Worker’s Compensation Board’s WAMO dealt not with §32 waiver agreements per se but with the money in the Second Injury Fund that could be used to settle these claims.

Apparently the plan is under consideration to have qualified financial institutions, be they insurance companies, banks, investment firms, or those financial wizards who pop-up whenever there is money to be made raise the funds to settle claims and then get repaid from the annual assessments to the Second Injury Funds. Formal details are not forthcoming at this time nor do I expect that there will be any unless publication in this website causes/prompts participating parties to shine a little light on this project.

If in fact this is what the discussion centered around, in view of the recent debacle at the federal level with the sale of assets and transfer of risks between financial institutions by the federal government, all behind closed doors, this brings concern that similar machinations and ultimately, the transfer rest of all the risk to the public could be the result of these “behind the door discussions.”

Shortage of Doctors Upstate for Injured Workers

January 26, 2010: Workers Compensation Board Chairman Robert Beloten announced changes in procedures medical reporting requirements due to the fact that there is a shortage of authorized providers in the Rochester area.

[ED. NOTE: the Board explained this shortage by stating “In the past two years a number of physicians have voluntarily surrendered their authorizations to treat workers’ compensation claimants.” Physicians do not voluntarily surrender their authorization unless it is the lesser of two evils, that second evil usually the threat of legal sanctions being taken at the request of the Board and /or the New York State Medical Licensing Board. Does this mean that the only physicians willing to practice in the Rochester area were those who could survive financially only by performing and/or billing in a manner which was not legal? The shortage of qualified physicians is the real issue with which the Board should be dealing.]

In Subject No. 046-398, due to the temporary shortage of authorized physicians in the counties of Monroe, Livingston, Steuben, Allegheny, Wyoming and Ontario, the Board has listed the specific forms that must be filed and the procedures to be followed in the list of prescribed medical report forms the CMS-1500 (or HCFA-1500) form with detailed narrative reports or office notes. Authorized physicians, podiatrists, chiropractors and psychologists in the Provider Shortage Area may submit a CMS-1500 with a detailed narrative report or office notes in lieu of one of the prescribed C-4 forms. If a CMS-1500 is submitted without the detailed narrative report or office notes, it is not a prescribed form. A narrative report or office notes are considered detailed when they contain the necessary information in sufficient detail so the insurance carrier can properly process the submission. More details are available by linking to the Board site here …

Best Attorneys for 2009

January 21, 2010: Today I formally announce the Insider’s top Appleatte Court attorneys for 2009:

John Clennan and David W. Faber

as well as a number of attorneys who have won Honorable Mention. Details can be found by clicking here.

Fenster’s Path to His Appointment

January 21, 2010: I have received a number of communications indicating that Fenster got his resume submitted for this position with the help of an old college buddy from the University of Michigan, Debra Feinberg, and their mutual friend, Stephen Levin. Levin, who ran successfully for City Council from Brooklyn this past November was former Chief of Staff to Assemblyman Vito Lopez, who happens to be the chairman of the Brooklyn Democratic Party. Feinberg, who was a legislative aide to Assemblyman Lopez, was the campaign manager for Levin.

Lopez’s need to place somebody in a job came up at the same time there was a vacancy at the Workers Comp Board for a “short-timer” as everybody understands that come the first month or two of Governor Andrew Cuomo’s administration, this job will be filled with someone with real experience.

Although I do not know Fester and assume that he is coming to the Board with good intentions, his statements as quoted in the New York Times to the effect that “My feeling was I was an attempt at getting fresh blood in here. The same sort of retread in the executive director’s position was not the way they wanted to go.”, exhibits either a great deal of ignorance of the qualifications of his two predecessors or a great deal of hubris.

To paraphrase an old quote, “you can lead a horse to water but can’t make him drink”, the Governor’s office may be able to force him onto the Board, but the Board doesn’t have to pay any attention to him, something easily accomplished since the Board in the last three years has been centralizing all the administrative responsibility and authority in Albany and Fester is going to work out of Brooklyn. Perhaps that is why, according to the New York Times, “Mr. Fenster, at least initially, will have narrower responsibilities than did previous executive directors. The board furnished a list of 10 duties assigned by the chairman, mainly membership on various committees and things like deciding appeals from denials of Freedom of Information requests and assisting with leases for hearing sites.”

Two NYSIF Board Appointments

January 21, 2010: Governor Paterson submitted the names of Robert H. Hurlbut and Eileen A. Frank as commissioners on the Board of the New York State Insurance Fund. They will be appearing before the Senate Standing Committee on Insurance Monday, January 25, 2010.

Hurlbut, the first appointed to the Board as a Commissioner 1989, is currently acting as its chairman. In 1994, Mr. Hurlbut formed and became president of the Hurlbut Trust, which offers financial and consulting services for healthcare facilities and rental properties. He also has served as a director of a number of educational organizations.

Frank, President of J.P. West Inc. since February 2000, is a 23 year veteran in the Insurance industry. Frank is a licensed Property Casualty broker, Life-Health agen, and an NASD Series 7 registered securities representative. She is also an active contributor to the Democratic Party including the recent campaigns of Barak Obama and Hillary Clinton.

WCB Signs New Lease for Harlem District Office

January 20, 2010: New York State renewed two large office leases for a total of 71,751 square feet in Harlem, taking advantage of a weak market to renegotiate and extend the terms. The state’s Workers’ Compensation Board renewed 45,205 square feet on the fourth and fifth floors of 215 West 125th Street and the state’s Department of Labor took 26,546 square feet on the fourth floor of the same building, Arthur Stern, CEO of building owner Cogswell Realty, said. The six-story, 170,841-square-foot building near Adam Clayton Powell Boulevard was built in 1971, according to data from PropertyShark.com. The landlord provided a rent reduction in exchange for re-signing the leases — initially set to expire in a year and a half — for another 10 years, a source close to the deal said.

WC Research Provides Insight into Curbing Health Care Costs

January 11, 2010: Analyzing physicians’ practice patterns may hold valuable clues about how to curb the nation’s rising health care costs, according to a study by researchers at the Johns Hopkins University School of Medicine.

According to a Johns Hopkins study published in the January edition of the Journal of Occupational and Environmental Medicine, the practice patterns of physicians participating in a workers’ compensation system had a profound impact on the ultimate cost of claims. After analyzing five years of claim data from the Louisiana Workers’ Compensation Corp. from 1998 to 2002, the researchers found that a small group of physicians, only 3.7 percent, accounted for more than 72 percent of the workers’ compensation costs. These were termed cost-intensive providers, or CIPs.

“Across the board, we’ve found that most physicians practice prudently,” says Edward J. Bernacki, M.D., M.P.H., director of the Johns Hopkins University School of Medicine’s Division of Occupational Medicine and principal investigator of the study. “But there are physicians who engage in cost-intensive practices. As we continue to debate the nation’s healt and if you are in the health care system, it makes sense to analyze how practice patterns drive costs before instituting sweeping reform.”

While some of differences between physician groups were related to injury severity, the analysis controlled for International Classification of Disease group, claim duration and other potential surrogates for severity. The analysis concluded that CIP status had a significant cost impact that is independent of severity.

Further details on this study can be found at the following link: http://www.hopkinsmedicine.org/Press_releases/2010/01_11a_10.html

Board Reduces Performance Standards For Carriers

January 12, 2010: The Workers Compensation Board’s reduced performance standards it expects from carriers now goes into effect, to an 85% rate for this year rather than the prior standard of 90%.

Specifically, the Board had originally established a 2010 performance standard of 90 percent for timely filing of Proof of Coverage (POC). Those workers’ compensation carriers meeting or exceeding this rate in any quarter of 2010 would have their POC penalties waived for that quarter.

Given that carriers have begun to implement process changes related to POC and in a further spirit of cooperation, the Board will reduce the carrier performance standard to 85 percent for 2010. Moreover, the Board will also delete two rewrite/reissue IAIABC transaction codes (00-50-01 and 00-50-80) from the performance standard as the Board recognizes these represent replacement filings which should be on file with the Board. In the second half of 2010, the Board will determine the standard for 2011, which will be announced via a subject number

CMS Liens: No Statute of Limitations

January 10, 2010: As reported by John Gelman in his website, CMS (Centers of Medicare and Medicaid Services) has expressed an opinion that there is no specific time limit in its ability to seek recovery.

Barbara Wright, speaking on behalf of CMS, indicated that the widely accepted six year statute of limitations does not apply to CMS litigation to recover payments from carriers or employers who should have been paying the medical expenses rather than CMS.

This website has previously commented on the difficulties that the Workers Compensation Board has in allowing Medicare language to be inserted into §32 waiver agreements in that no one at the Board really understands the entirety of Title 42-Public Health, Chapter IV-Centers for Medicare and Medicaid Services, Department Of Health And Human Services, Part 411-Exclusions from Medicare and Limitations on Medicare Payment. The Board recently sent out a Subject Number which indicated it would not allow any language in the waiver agreement which would protect the carriers from liability on potential Medicare claims. This statement by Barbara Wright further complicates the Board’s acceptance of language in a contract, a contract that is the Board’s responsibility to approve but yet does not understand much of the language inserted at the request of another jurisdiction.

Paterson Announced New Exec Dir for the Workers Comp Bd

January 8, 2010, 2009: Late today, Governor Paterson announced the appointment of Jeffrey R. Fenster as Executive Director of the Workers’ Compensation Board, replacing Joe Pennisi who resigned suddenly last fall.

Mr. Fenster served as a litigation associate with the New York law firm of Stroock & Stroock & Lavan, LLP. While at Stroock & Stroock & Lavan, LLP, Mr. Fenster represented institutional clients in complex commercial litigations, arbitrations, and federal and State government investigations. Prior to working at Stroock & Stroock & Lavan, LLP, Mr. Fenster worked at WR Capital Management LP, a hedge fund based in Stamford, CT. Mr. Fenster received his bachelors and Juris Doctorate from the University of Michigan.

As Executive Director of the Workers’ Compensation Board, Mr. Fenster’s salary will be $141,730. This appointment is not subject to Senate confirmation. Mr. Fenster will begin serving as Executive Director on January 11, 2009, working of the Brooklyn office.

Are Dist Mgrs Going the way of the Dist Admins?

January 7, 2010: according to the usually reliable rumor mill, wrong only once this past year, the Oligarchic Cabal at the New York State Workers Compensation Board is planning to do away with district managers.

Whether this is a cost-saving plan or just a further attempt to centralize power in the hands of the bureaucrats in Albany, the net effect will be that there will be no one with direct responsibility in the district offices. I cannot speak for all of the offices throughout the state but I’ve had the opportunity to work with two district managers and three district administrators in Brooklyn. Only the current district administrator, Joyce Perry, and the district manager, Tom Agostino, actually leave the sanctity of their offices and walk through the building reviewing the troops and letting everyone know that there is someone in charge. This compares quite favorably to some of their predecessors who were either never in the building or were locked in their offices, removing from the workforce the kind of managerial oversight necessary in any organization.

As an example of the potential boondoggle this will create is an incident that occurred the year before I left the board. At about five o’clock one afternoon, after the district manager and district administrator and senior law judge had left of the day, I and the person in the office next to me smelled a great deal of smoke, went to the lunchroom, and founded filled with acrid smoke. We phoned the fire department and then tried to reach someone in Albany. The next day, I was castigated for not having gone up the chain of command in Albany and that I should not call the fire department without authorization from Albany. I explained to them (1) the NY Fire Department insists we call them first and (2) since I and the other person were not supposed to be involved in the operational aspects of the Brooklyn office, we had no idea whom to call in Albany nor either of us wished to spend 10 minutes trolling through Rolodexes while a potential fire could have sealed off our access to the fire exits.

This oversight problem would belie the proposed advantages of centralized power in Albany and one major incident that got out of hand because there was no on-site supervision would certainly cost far more than the alleged savings of replacing district managers in the district offices with additional support staff in Albany.

The Success of TENS units questioned

December 31, 2009: ScienceDaily reports that a new guideline issued by the American Academy of Neurology finds that transcutaneous electric nerve stimulation (TENS), a widely used pain therapy involving a portable device, is not recommended to treat pain that has persisted for three months or chronic low-back pain because research shows it is not effective. longer. The guideline is published in the December 30, 2009, online issue of Neurology®, the medical journal of the American Academy of Neurology. The studies to date show that TENS does not help with chronic low-back pain but evidence showed that TENS can be effective in treating diabetic nerve pain.

NYS Sues CRM Civilly and Criminally

December 10, 2009: Andrew Cuomo, Attorney General the state of New York, has filed a lawsuit leg and fraud in seeking $405 , million in damages from CRM as well as a separate lawsuit next week charging the company with business fraud and security fraud, asserting that CRM engaged in deceptive and illegal practices to attract business, .He as reported by Steven Greenhouse in December 10, 2009 in the New York Times.

Andrew Cuomo, Attorney General the state of New York, has filed a lawsuit leg and fraud in seeking $405 , million in damages from CRM as well as a separate lawsuit next week charging the company with business fraud and security fraud, asserting that CRM engaged in deceptive and illegal practices to attract business, as reported by Steven Greenhouse in December 10, 2009 in the New York Times.

Both the New York State Workers’ Compensation Board and the attorney general’s office say that CRM deliberately underestimated the workers’ compensation liabilities of many companies to help drum up business, enabling CRM to charge artificially low premiums, ultimately leaving the companies with inadequate reserves to cover liabilities.

According to statement issued by CRM, “The Company is disappointed by the Attorney General’s decision to bring the lawsuit and dismayed that the Attorney General’s office chose to disclose the Notice before the indicated window for discussion had expired. The Company denies the Attorney General’s allegations and believes that its business and management practices in connection with the New York trusts were proper and that all material information was disclosed during its initial public offering. The Company believes that the Attorney General’s allegations are without merit, but is committed to resolving the Company’s legal issues in the best interests of its shareholders, employees, clients and other stakeholders.

“According to the Notice, the Attorney General intends to file civil claims against the Company, certain of its subsidiaries, and certain directors and officers to seek redress of allegedly unlawful practices, unless an acceptable settlement can be reached within five days. The Attorney General’s Notice follows over 19 months of investigation, during which time the Company has cooperated fully with the Attorney General’s office.”

Unfortunately, no mention is made of the enormous financial impact that the closing of CRM will have on the hundred plus firms were members of its many groups. The fact that the State of New York failed to audit CRM for over five years and still has not done similar audits on other trusts does not seem to weigh in the decision of the State of New York that the members must pay up five years worth of premiums shortfalls.

‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

December 8, 2009: During Justice Sonia Sotomayor’s first appearance at the United States Supreme Court, Justice Sotomayer, in the words of New York Times writer Adam Liptak, “did introduce one new and politically charged term into the Supreme Court lexicon. Justice Sotomayor’s opinion in the case, Mohawk Industries v. Carpenter, No. 08-678, marked the first use of the term ‘undocumented immigrant,’ according to a legal database. The term ‘illegal immigrant’ has appeared in a dozen decisions.”

I guess in the future when they say “political correctness reigns supreme” going to have to capitalize ‘supreme.’

Carriers to ‘voluntarily’ give
money to the State(?)

December 2, 2009: A number of newspapers have been reporting on some of the changes to the budget being planned by Governor Paterson if the state legislature fails to present its own budget proposal. All the press releases had the same language:

Workers Compensation Surplus Recapture ($49 million) - Certain insurers have indicated their intention to remit excess funds under legislation enacted as part the 2009-10 budget.

As of last night I was unable to get any details from the State Legislature’s website (which apparently crashed from too many people seeking information). I was unable to get any details on who these insurers may be but I cannot imagine that any publicly owned insurance company would voluntarily give money to the State rather than distribute it as bonuses to its executive staff or, as a last resort, distribute it as additional dividends to its stockholders. Hopefully I will have more details in the near future.

Ohio Senator wants illegal workers
banned from workers comp

November 30, 2009: Ohio State Senator Bill Seitz of Cincinnati wants to prohibit the nation’s largest state run furn for workers insurance programs from providing benefits to illegal immigrants. The Senator said he was shocked to learn during a recent committee meeting that the Ohio Bureau of Workers’ Compensation doesn’t require injured workers to document their status before providing benefits. Ohio law enables “aliens and minors” to receive workers compensation benefits.

As in the New York State, Ohio does not draw a distinction between “legal” and “illegal” aliens.

While this is not a new story to those of us in workers compensation, it did generate an enormous amount of interest in a discussion group of which I am member at LinkedIn: WORKERS’ COMPENSATION FORUM.

The concensus of all the comments seems to be:

1. Undocumented workers should get basic workers comp coverage as this would otherwise give their employers an unfair advantage as well as being unfair from a humanitarian perspective.
2. The federal government has failed miserably to keep all illegal visitors, not just undocumented workers, out of this country.

This topic will be the subject of next week’s poll.

Higher Unemployment = Higher Comp Claims

November 22, 2009: In their recent press release, Lewis & Lewis P.C., the law firm that handles more workers’ compensation and personal injury cases than any other in Western New York, has found that despite the recession, people here in the last four months filed increased numbers of claims through the firm with the state Workers Compensation Board. Even though the Western New York unemployment rate is almost 9 percent, the Lewis & Lewis Jamestown office processed claims at record levels in July, August, September and October.

In a number of articles I have read over the years, the general consensus is that workers comp claims decrease when business is bad as workers are afraid of losing their jobs while claims increase when business is good because employers find it difficult to replace qualified employees. But, with unemployment rates in parts of the state approaching 10%,the fact that workers comp claims are increasing makes sense: not only are more people than ever before out of work, there are no jobs and unemployment benefits for most people will soon run out.

Annsville man pleads not guilty
to shooting investigator

December 2, 2009: A number of upstate newspapers reported yesterday that an Annsville man, accused of shooting a private investigator with a shotgun after mistaking him for a turkey earlier this year, pleaded not guilty to assault charges in Oneida County Court Wednesday morning.

William Wehnke had been collecting workers compensation for some time and private investigator Matthew Brady was sent to check up on him. Unfortunately Brady dressed himself in comouflage at the same time Wehnke was out hunting for wild turkey, mistook Brady for one, and shot him.

Wehnke was arraigned on a three-count grand jury indictment including charges of felony second-degree assault, misdemeanor fourth-degree criminal possession of a weapon, and unlawful manner of taking, a violation that alleges Wehnke was using an inappropriate type of ammunition for turkey hunting.

Oh, to be a fly on the wall on what may well be a WCL §114-a hearing before a law judge.

More WCB Staff Changes

November 19, 2009: Just as a chef occasionally changes on the ingredients to see if he can make food taste better, the Board has apparently made some executive staff changes.

Madeline Pantzer, the head of the Administrative Review Division’s office and the former Senior Law Judge in Albany, is now in charge of all the law judges, a position previously held by Elizabeth Lott who has moved over to operations. And Dave Wertheim, formally Elizabeth Lott’s assistant, has now become of the head of the Administrative Review Division (ARD).

Madeline Panzer made some very key changes in procedures at the ARD. Dave Wertheim was one of the most highly respected writers when he was in the office of appeals (now the ARD) and when he was with the Office of the General Counsel. One can expect that under his leadership, while there will always be occasional reversals, there will be far less and perhaps even no more “rescind and send back for further development.”

WCB: Some Medicare wording
in §32’s not acceptable

November 19, 2009: Under Subject No. 046-372 dated November 13, 2009, the Workers Comp Board has stated that it will not approve agreements which contain indemnification or hold harmless provisions in Section 32 agreements to protect a carrier or employer from liability for Medicare payments related to the established workers’ compensation claim.

The memo continues:

Workers’ Compensation Law (WCL) §32(b)(1) directs the Board to disapprove unfair agreements. As such, it is the Board’s position that a Section 32 agreement that contains hold harmless language that shifts liability to a claimant for Medicare payments for services provided before execution of the Section 32 agreement is unfair. Pursuant to WCL §23, insurers may seek administrative review and full Board review if a Section 32 agreement containing hold harmless language is disapproved by a workers’ compensation law judge.

[ED. NOTE: I am at a loss to understand why this memo is now being issued. It has been the informal policy of the commissioners for years now to reject any agreements that had hold harmless language this point was made quite clear to all the attorneys who appeared at the hearings. In addition to that, in my last few years of the Board as well is in my book, Behind the Closed Doors, I recommended that neither Medicare offsets nor any other Medicare language be included in the §32 agreements.

These agreements are drafted under the laws of the State of New York and, in my opinion, should deal strictly with the laws of the State of New York. The inclusion of language relating to Medicare not only adds anywhere from one paragraph to as many as three pages to a §32 agreement but as often as not includes incorrect citations or provisions from the Title 42, Chapter IV, Part 411 of the Medicare law. In addition because there are a variety of sections which may or may not apply to the settlement, when I was at the Board and, my sense is it still continues, there are few in the decision-making capacity who understand which sections of part 411 applied to which cases.

So rather than disapproving agreements which contains hold harmless language, the Board should reject any agreements which contain any Medicare language.]

In Memoriam: Joseph Tauriello

November 18, 2009: Former State Sen. Joseph A. Tauriello, a major figure in local and state Democratic politics for more than 40 years, died November 17 at Elderwood Senior Care in Cheektowaga after a long illness. He was 75.

A West Side native and former Buffalo firefighter, Tauriello served on the old Erie County Board of Supervisors, advanced to become a leading Democratic member of the State Senate, and capped his career with a gubernatorial appointment to the state Workers Compensation Board.

“Lazy” Judge on trial before Court of Appeals

November 18, 2009: In an interesting case which should have ramifications at the Workers Comp Board, the Court Of Appeals heard arguments as to whether or not Kingston City Court Judge James Kilpatrick should suffer penalties or be disciplined for delays in issuing decisions.

According to the article written by Tim O’Brien and the Albany Times Union, “the state Office of Judicial Conduct admonished of Patrick over his failure to stay within required legal deadlines for handling cases while he was a part-time judge in Kingston. The position later became full time. Gilpatric had previously received a letter cautioning him that he needed to abide by the deadlines.”

Certainly, the Board does not need a decision from the Court Of Appeals to force the one or two commissioners who don’t do their work to meet the “obligation and duty owed to the litigants”, a point made in the above case by Court of Appeals Judge Victoria Graffeo.

Over the past few years they been occasions when such admonitions were directed by Chairman Weiss to one particular Commissioner and Vice Chairman Sweet to two other commissioners (one long since gone) whose work queues would normally collect up to 200 cases, but sometimes as many as 300. Since there are between 15 and 20 cases added each day to the work queue, you can calculate how long claimants are having their cases delayed due to the misconduct of certain commissioners. And signing cases, let’s forget about reading them, is basically the only job function left the commissioners these days. So if a commissioner is going to sign a misspelled, legally unsustainable decision, why take three weeks to do so? Why can’t they rubber stamp it within a day or two of getting it?

In my book, Behind the Closed Doors, I make reference to WCL §147 which allows removal of a Commissioner with cause. It seems that whenever several commissioners are replaced at the Board and one of them was a “slow” signer, one of the new commissioners fills that slot.

Now that Chairman Weiss is no longer the Board, the question is, “who has the ‘juice’ to discipline commissioners who do not work.”

In Memoriam: Louis R. Salvo

November 11, 2009: Louis R.. Salvo, 73, of Tottenville, a former NYS Workers Compensation Administrative Law Judge, died November 9, 2009 in the Monmouth Medical Center, Long Branch, N. J. A senior counsel with Weiss, Wexler and Warnow in Manhattan, Mr. Salvo had previously served as a Workers Compensation law judge from 1973 to 1981. He has also served as trial counsel for major insurance companies both in the field of workers compensation and liability defense as well as having lectured in all aspects of Workers Compensation Law. Mr. Salvo and his wife, the former Kathy Adams, celebrated their 50th wedding anniversary this past July, with a party thrown by their four children.

CA Insurance Commissioner
Rejects WC Rate Increase

November 10, 2009: As reported by staff reporter Chris Rizo from Legal Newsline, California’s State Insurance Commissioner Steve Poizner, citing his state’s weak economy, on Monday rejected an industry request that he back a proposed a 22.8 percent increase in benchmark workers’ compensation premiums.

Poizner, who is seeking the 2010 Republican gubernatorial nomination, rejected the request presented by the Workers Compensation Insurance Bureau and justified his decision by stating:

“One in eight Californians is unemployed. Countless others are also suffering and have either given up looking because they cannot find work or have taken part time jobs while they seek full time work. Any increase in costs for employers will only make our already dire economic situation worse.”

California’s unemployment topped 12% in September. Poizner said the WCIRB request lacked evidence that warranted an increase.

Could this portend the decision in New York for future requests for approval of rate increases from the NYCIRB? Afterall, Poizner is not the only one who has announced that he is running for governor.

Public WC Insurance Funds
Better Run Than Private Ones

November 9, 2009: In this issue of the Business Examiner, Breanne Coats & Hilary Reeves report on a number of issues. One is a study released last month by a Connecticut-based research and consulting firm has concluded that states with public or public-private workers’ compensation plans actually fare better financially in some aspects than states whose workforce coverage is left to the more competitive, expectation-rich free market.

“Workers’ Compensation State Funds now control a quarter of the insured workers’ compensation market, despite the fact that they only write in 25 states,” said Mark Jablonowski, analyst at Conning Research & Consulting. “In comparison to the industry as a whole, state funds’ loss ratios are higher, but they compensate with lower expenses and increased investment income. Overall, operating results are on par with the rest of the workers’ compensation industry.”

The study looked at the combined experience of workers’ compensation programs in 25 states: Arizona, California, Colorado, Hawaii, Idaho, Kentucky, Louisiana, Maine, Maryland, Minnesota, Missouri, Montana, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Utah, Washington, West Virginia and Wyoming. Four of these states – including Washington – have state-operated monopoly funds that are most employers’ only option for buying coverage. The remaining 21 states have organizations that compete with private insurers.

Robert Malooly, assistant director for insurance services at the state Department of Labor and Industries, said Washington’s system is virtually free of the constraints of a private company: “Unlike a private company, our state fund system doesn’t have to make a profit, run marketing campaigns to get new customers, pay taxes, pay brokerage fees and commissions, and so on,” he said. “The program provides some of the best benefits in the country to injured workers and their families at rates that are lower than over half the other states for state fund employers.”

---

►CORRECTION◄

November 5, 2009: Steve Licht informed me that he did not have any meetings or dinners with the NYSWCB or Joe Pennisi. To the extent my information was not accurate I apologize.

Lobbyists Lose on ATF in Federal Court

November 4, 2009: This week I have listed on the DECISIONS page a decision issued eight months ago at the New York Southern District Court in The Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al in which the District Court dismissed the claim brought by certain workers= compensation insurers against the state workers compensation board challenging the constitutionality of ATF amendments to the New York State Workers Compensation Law.

The amendments modified insurers’ ability to settle claims by empowering an aggregate trust fund (ATF) to settle claims following the required deposit by the insurer of the present value of the claim. The ATF under the amendments was not required to obtain an insurer’s approval before entering into a settlement, and was not required to refund to insurers deposit amounts in excess of settlements.

The District Court dismissed defendants motion for lack of subject matter jurisdiction also noting that in this case the plaintiffs had an adequate opportunity for judicial review of their claims of the state level.

Thus it seems that while lobbyists may have input on the Board, justice prevails and, at least in this case, they go home with their mission defeated by the Courts.

Typo not worth $1.6 Billion, this time!

November 5, 2009: What most people would consider to be a minor typing mistake could have cost Verizon an estimated $1.6 billion.

After Bell Atlantic became Verizon, its ERISA plan was redrafted during which time the phrase “transition factor multiplier” was moved in a sentence without the first instance of that phrase being deleted from that same sentence. To have left it in would have meant that benefits were subject to a double multiplication factor. The judge in the case ruled “The phrase calling Verizon a second multiplication was a drafting error. No evidence exists to suggest that any plan participant relied upon the error. In fact, the course of dealing between defendants and the plan participants shows that benefits were consistently calculated by multiplying the transition factor once. To enforce the erroneous plan provision now would result in an enormous windfall to the class participants.”

And, while some could argue that such an error could be expected in a document will as Verizon’s ERISA plan, it certainly can not be argued in typing errors in your are acceptable in the Worker’s Compensation Board’s decisions. In one case, I saw the average weekly wage for a bus driver determined to be $46,000 a week.

The devil is in the details but fortunately in this case common sense ruled although the plaintiff is considering an appeal.

[ED.NOTE: Yes, there are typos in my postings but these postings tend to be very time sensitive. I do not have the luxury of editing and rewriting for an extra day or so nor are there many people up and sufficiently alert at the time of night I finish these postings to act as my editor.]

NYSIF Introduces State-of-Art
Medical Bill Inquiry System

October 21, 2009: The New York State Insurance Fundannounced a state-of-the-art online medical bill inquiry service with the expansion of its electronic Explanation of Benefits (EOB) for doctors treating workers’ compensation injuries covered by NYSIF. The new EOB service gives providers a more detailed explanation of medical bill payments made by NYSIF, alerts them to bills that have not been received, or reasons why a bill hasn’t been paid.

NYSIF introduced its online EOB for workers’ compensation medical providers in 2007, an Oracle based system built in-house by NYSIF system developers. The Fund followed soon thereafter with giving providers the option to submit medical bills electronically to NYSIF. According to NYSIF medical claims team, some of the more common reasons for non-payment of workers’ compensation medical bills submitted to NYSIF include pending claim status, claim disallowance, claim settlement, invalid jurisdiction, lack of proper medical records, and duplicate billing of paid procedures. All of this information is now accessible to medical providers and their staffs 24/7/365 days a year, spelled out clearly in one location for all medical bills submitted on every claim.

Medical bill inquiries made online at nysif.com provide users with NYSIF’s claim number, the claimant’s name, date of injury, complete contact information for the NYSIF case manager and office assigned to the case, the NYSIF assigned bill number, bill date, date received and bill status for every claim on record. As an insurance carrier, NYSIF assigns its own claim number to workers’ compensation claims. The New York Workers’ Compensation Board assigns a different number to the claim. NYSIF lists both numbers in the summary to avoid potential confusion for administrative personnel not familiar with the state workers’ compensation system. The summary includes billing codes, total charges and amounts paid, along with a reason why only partial payment may have been made for certain billed procedures.

No New Commissioner under Consideration

October 29, 2009: Contrary to my earlier report that Cumminosa Balbutio is being considered as a new Commissioner, I’ve been informed by reliable sources that this was not the name of a commissioner but the name of a secret project under which specific guidelines were given the Governor’s office with qualifications sought by the Oligarchic Cabal and that the name Cumminosa Balbutio was a Latin pseudonym for the qualifications of the person(s) which they are seeking.

---

NYS to Confiscate §25a fund?

See November 5, 2009 correction

October 22, 2009: Rumor has it that recent meetings between Joe Pennisi, former Executive Director of the Worker’s Compensation Board and now Secretary of the New York State Finance Committee, and Stephen Licht of the Special Funds Conservation Committee Had Informal Discussions regarding the subject of moving “surplus” funds from the §25-a Fund to the State’s general funds.

Oklahoma considers confiscating
surplus workers comp funds

October 21, 2009: In a related story , Oklahoma’s legislators should find out whether the state or policyholders will get the money if the state’s workers’ compensation carrier is sold to a private insurance company, members of a task force looking at privatizing CompSource Oklahoma said Wednesday.

The co-chairman of the task force said a bill will be filed in the upcoming session stating that the financial assets of CompSource belong to the state. Its intent will be to draw a lawsuit that would allow the courts to settle the matter. However, Oklahoma’s state Supreme Court already ruled in 1975 that lawmakers could not use cash reserves from CompSource and appropriate that for state operations, leaving some task force members to believe money obtained through a sale of the agency would go to policyholders.

But it seems that in Oklahoma, when it comes to balancing the budget, state legislators will not take “NO” for an answer, even from their own Courts.

As previously reported in the NEWSWIRE, in the past, New York State “borrowed” from surplus workers compensation funds paid for by the carriers and employers, not for the benefit of the taxpayers or Legislators, but for the benefit of injured workers. And that money has never been repaid.

New Commissioner being considered

October 22, 2009: Apparently as part of PROJECT 2015, the Oligarchic Cabal at the Board has been in contact with the Appointment Office at the Governors office to explain to them the qualifications they seek in new commissioners. As has been reported in this website and many other places, the Board is interested in expediting the hearing process and getting decisions signed as quickly as possible, with as little interference as possible by the Commissioners.

One of the names I’ve heard mentioned is Cumminosa Balbutio, whose background is in education. Balbutio has been involved in literature, primarily the classical languages such as Latin, from which his name is derived. I have been unable to get any more details on this person but understand that as the head of a department dealing with what many consider to be “dead languages”, he has some of the qualifications sought by the Oligarchic Cabal. I also understand in order save time from the very busy Administrative Review Division, the training of new commissioners will be conducted by one of two commissioners currently at the Board who the demise the new goals of the Board once some time can be found in the very busy schedules.

WC Law Suits v Fed Ex on Drivers

October 21, 2009: New York State Attorney General Andrew Cuomo is being joined by Anne Milgram and Steve Bullock, the attorneys general of New Jersey and Montana, in any suit against FedEx Corp, accusing the second-largest U.S. package delivery company of violating labor laws by illegally classifying drivers as independent contractors rather than employees to save money.

According to a letter sent to FedEx and released by Cuomo, misclassification causes the drivers to be deprived of the workers compensation coverage and the protection of state antidiscrimination and labor laws. “By blatantly misclassifying its drivers, FedEx has denied these individuals the employment rights they guaranteed by law.” To support his position, Cuomo noted that FedEx subjects the drivers to strict work rules, down to the colors of their socks, and to thousands of dollars of expenses to buy or lease trucks and use company uniforms and scanners.

This issue of classification has previously been addressed by the Workers Compensation Board in cases involving drivers for UPS as well as for drivers for potato chip and soda companies who supply vending machines on routes which they have purchased. FedEx has been given until October 27 to show why a lawsuit should not be filed.

Nebraska Waives Settlement Hearings

October 20, 2009: Effective May 27, 2009, the Nebraska Workers’ Compensation Act was amended to eliminate court review of certain lump-sum settlements. Legislative Bill 630 provides that in cases where lump-sum settlements are not required to be submitted for approval by the compensation court, a release shall be filed. LB 630 further provides that the release shall be made on a form approved by the compensation court.

A release form has been approved by the Workers’ Compensation Court Administrator and is accessible at the link below. The approved form was written in accordance with the language found in LB 630. However, additional provisions or documentation pertaining to the release of liability may be added or attached when the release is filed.

A review of the legislation indicates that there are a very limited number of cases which qualify with this new procedure and one of the qualifications is that the claimant must submit what the legislation references as “Addendum 3, Personal and Financial Account Information”.

For detailed information on this legislation, click here …

---

 

WCB Exec. Dir. Pennisi Resigns

October 15, 2009: This posting adds additional details to last Friday’s e-mail Bulletin.

On October 9, 2009, Joseph Pennisi, executive director of the Workers Compensation Board, announced that he was reigning his position to become Senate Finance Secretary, as confirmed in a later press release by Senator Carl Kruger, Finance Committee chairman.

Prior to his service with the Workers’ Compensation Board, Mr. Pennisi worked in local government as a Deputy County Executive for Albany County, and Commissioner for the Department of Housing and Community Development for the City of Albany. He also previously served as an Assistant Secretary/Staff Director with the former Senate Minority’s Finance staff, and as a Senior Legislative Budget Analyst with the Assembly’s Ways and Means Committee.

As Senate Finance Secretary, Mr. Pennisi will earn an annual salary of $180,000. He will officially start with the Senate on October 29th.

NYS Issues Bonds for 2nd Injury Fund

October 15, 2009: dBusinessNews.com reports that the $804 million worth of bonds issued by the Dormitory Authority of the State of New York (DASNY), set for sale the week of November 9, 2009, have been given an ‘AA’ rating by Fitch Rating, one of the three major bond rating companies.

These bonds had been issued to settle claims related to the Special Disability Fund and the goal is to reduce the volatility and, ultimately, the cost of workers compensation insurance. The article then goes on to note that “New York workers compensation costs are the highest in the nation.”

The report continues, “The bonds are secured by assessments on workers’ compensation insurers and self-insured employers. There is a pledge by the state not to take any action that would impair the ability of the Workers Compensation Board to levy and collect assessments. Bondholders have a priority security pledge on revenues, the funds pass through a segregated account maintained by the New York State Dept of Taxation and Finance, and are not subject to bankruptcy risk of DASNY. Initial and expected coverage is very strong considering the historically high collection rate, but could theoretically be diluted down to 1.1 times debt service if the full authorization is issued by 2010 or if statutes are changed to increase the authorized level of debt.”

NYCIRB Analysis: COLA Increase
in WCB Rates = Higher Rates

October 15, 2009: The New York Compensation Insurance Rating Board has done a cost analysis of proposed Senate bill S. 1970-A which requires that workers compensation benefits be adjusted periodically for a cost of living allowance.

The bill has various provisions depending on the date of the accident and the level of permanent disability.

The NYCIRB estimates that if this bill is enacted in its current form it may well result in an overall workers compensation system cost of somewhere between 1.9% and 5.0%. As with great deal of the legislation proposed by both the State Assembly and State Senate, while there is some degree of specificity in the language of the proposed bill, they also tend to leave out very important information. For example, “the cost-of-living adjustment” is based on the increase in the Consumer Price Index has propagated by the US Department of Labor, but the build fails to specify which of the many Consumer Price Indexes are supposed to be used for this under the terms of this legislation.

This table represents the basic additional costs expected to be incurred by carriers if the legislation id passed. A full copy of the report is available by ► clicking here.

WCB’s Executive Staff Changes

October 8, 2009: According to the grapevine, Elizabeth Lott has been moved from adjudicative management where she held the formal title “Chief, Adjudication Division”, and placed in charge of operations.

Former Senior Law Judge John Barry, who most recently had been in a Key administrative position and had the ear of former Chairman Zach Weiss, has been moved to a position, although I have been unable to find anyone who can tell me his new title or, for that matter, delineate his new authority and responsibility.

PROJECT 2015 Still Lives

October 8, 2009: Although Chairman Robert Beloten has expressed serious reservations about the previously top-secret PROJECT 2015, the project appears to be moving ahead, although the recent changes in key staff at the Park Street offices of the Board may result in substantive changes to the program and/or its timing.

There is a new Board memo which reads “We need to increase referrals to conciliation for two reasons. First, this is a new environment which we will be working in once the reclassification takes place, and, two, in order to relieve some of the pressure from the current hearing calendars.” The memo continues, “Under the new plan everything but the following cases will be considered appropriate for conciliation:”

• Illegal employment of a minor
• fraud under WCL §114 –a
• penalty objections or issues
• waiver agreements under WCL §32
• issues in a death case
• C-7 or controverted cases where the claim has not been established or resolved
  
• cases referred by the Board Panel to the hearing process (Rule 300.13 (F) ) or for the testimony of an impartial specialist (Rule 300 .11)
• request to suspend or reduce continuing payments under Rule 300.23 (B) (2)
• requests for a non-schedule adjustment under WCL §15 (5–b) (Rule 300.24)
• cases/issues expedited under WCL §25 (3-d) (Rule 300.34) or WCL §142 (7)
• cases heard at a formal hearing where in the WCLJ has continued the case for another formal hearing
• UEF cases
• authorization for special medical services for termination of treatment under C-8 Part A where there is a current conflicting medical report

But ommitted from this list are a number of other issues which, based on my 12 year experience as a Commissioner, seem to require, more often than not, a formal hearing to resolve:

• §14.6
• §15.8(d)
• §25-a
• apportionment
• SLU
• WISK
• independent contractor
• special/general employer
• Jurisdiction
• Voluntary withdrawal from the labor market
• §120 discrimination cases
• legal fee disputes

And I am sure that you practitioners can name more.

What is interesting is that the people involved in this project understand that there are certain cases which should never go to conciliation primarily because of the statutory restrictions that require hearings, e.g. controverted cases and cases involving illegal employment of a minor.

However, I am reminded of the case of Hart v Pageprint/Dekalb in which the Appellate Court reminded the Board it could not arbitrarily disregard the laws, rules and regulations under which the Board is supposed to operate; this case came about because the Board , in order to expedite the hearing process, decided to do §32’s administratively and ignore both the legislative and the Board’s own rules that the settlements be done in a formal hearing.

And as one can see from New York State Senator George Onorato’s statement of October 8, 2009 regarding electronic transcription, the Board is seeking to redefine the fine print and the legislative intento f the workers compensation laws in order to eliminate hearings altogether, which was the goal of PROJECT 2015.

Electronic Transcriptions: DOA

October 8, 2009: In my April 10, 2009 NEWSWIRE, I quoted a firm who claimed that they had already embarked on a plan with the Workers Compensation Board to replace all the live reporters with digital audio recording equipment.

Late yesterday Thursday, October 8, the Committee Chairman, Senator George Onorato, issued a statement which for all practical purposes has killed this project.

The headline of his press release is:

Workers’ Compensation Board May Not Electronically Record Hearings Unless Legislature Changes Current Law Requiring the Use of Stenographers

The only persons who spoke in favor of this new project were Board Chairman Robert Beloten, who actually had very little information about this project, and the marketing directors of the three firms who are bidding on the project.

The general impression on the future prospects for this project were best summarized by Senator Diane Savino who questioned, “Since the attorneys for the claimants, the attorneys for the carriers, the law judges and other staff are against the system, and the only person favoring it is Chairman Beloten who had no idea what was the cost, why is the Board pursuing this project?”

Probably the best answer to that question was from one speaker: “This project is only of interest to the administrators and of no interest to those involved in adjudication.” And by “administrators”, I assume that speaker was referring to those I call the Oligarchic Cabal.

For those of you will have an interest in further details on the hearings and the testimony, I have the following two links:

• October 6, 2009 Labor Comm. Testimony
• Sen. Onorato’s 10/08/2009 Press Release

New Medicare Offset Guide

September 26, 2009: CMS (centers for Medicare and And Medical Services) has recently published a 38-page booklet giving up-to-day information on how to fill out the Medicare Set-Aside §32 agreements. For years I and a number of the engaged commissioners tried to figure out how the Medicare set-aside was being calculated, but nobody seemed to be able to give us that information.. After approving one section 32 settlement with the rows of $55,000 fee of $5000 in the Medicare set-aside of $49,600.. I asked for and was given a copy of the Medicare set-aside to determine how it was the claimant was left with $400. What I saw was that Medicare had calculated that somebody who had a permanent partial disability for carpal tunnel syndrome on one wrist was calculated as having a potential medical exposure of $50,000.

That made no sense to me until I took a look at page 15 of this booklet and found what they call “Life Care Plan - Future Medical Care Medicare” covered items and services and prescription drugs. This document was prepared for a hypothetical claimant, and it was estimated based on information supplied by various third parties that at the age of 67, she would have a life expectancy of 17 more years. , it was on the basis of the 17 year life expectancy that they calculated her future medical expenses and prescription drugs to treat medical conditions with which she was diagnosed. Out of As curiosity, I looked up these drugs on the Internet and found that at the corner drugstore, some of these items could be bought for 1/6 of the price that had been used in these calculations.

Injured Workers Alliance Scholarship Fund

September 29, 2009: The Triangle Shirtwaist Factory Fire Memorial (TSFFM) has named twenty-two Triangle Scholars for the Academic Year 2009-2010. Each grant is in the amount of $2,000 bringing TSFFM’s total awards to $218,000 since inception of the program in 2002. Scholarship funds are raised through the organization’s annual memorial journal and dinner which is planned for March 25, 2010 in New York City at the Fire Museum on Spring Street in lower Manhattan. TSFFM was founded by attorneys from the NYS Injured Workers Bar Association (IWBA) which counts members throughout NYS.

John Sciortino, a Rochester attorney and Chair of the Scholarship Committee, stated that 13 of this year’s class of Triangle scholars were previous recipients and 8 are in the fourth year of study. “We are proud of the students and believe that those completing their studies represent the aspirations of their families who are dependent upon workers’ compensation to survive in this dreadful economy,” Sciortino said. “Their families may be receiving compensation benefits as little as $200-300 per week,” he continued referring the benefit limits in effect in previous years, “so these awards are significant and we wish we could do more for them.”
This year’s Triangle scholars pursue studies in institutions of higher education across the state from Buffalo, to Rochester, to Albany, to Pleasantville, to Potsdam, to St. John’s on Staten Island. They are in attendance at sixteen private colleges and six public institutions including community colleges in fields of study including teaching, forestry, pharmacy, liberal arts, and science. “Sixty-three individuals have received scholarships and some of the students,” Sciortino noted, “have been in the program for all four undergraduate years.”

How Much Money
Do Insurance Companies Make?

September 30, 2009: Uwe E. Reinhardt , a professor at the economics at Princeton University, writes an interesting article about how much money insurance companies make, using as an example the recent income statement of WellPoint found in the annual report called a 10-K , which all public companies must file with the SEC.

Among the various topics that he discusses are Revenues, Revenues from the “Float” the Health Benefit Ratio, Which in the Past Was Called Medical Loss Ratio, Marketing and Administrative Cost,s and The Profit Margin. This analysis goes to show that in some years net income is derived not from the premiums collected but from the interest and other investment income derived from those funds which have been collected on premiums but not yet spent on the benefits for which those premiums were collected. And this in part explains why, in those years in which the stock market goes down, the premium costs for insurance go up, not because the revenues from premiums are down but because the investment income is down.

But it is not just the explanations and definitions offered in this article that are interesting, but some of the comparative analyses that he does with these numbers, as well as comparisons to other large insurance companies. This article explains the relationship between benefits paid out in premiums collected and why the more demands are made from more benefits the higher the premiums must be, be it for workers compensation insurance life insurance or general health insurance.

---

Win Workers Comp and then Win under ADA

September 24, 2009: In a case decided by the U.S. District Court, Northern District of New York in the case of Fowler v. Kohl’s Department Stores, Inc., No. 1:07-CV-1197 (GLS/RFT) (N.D.N.Y. 07/16/09), the Court decided that having a case at workers’ compensation does not preclude also bringing a case under the Americans with Disabilities Act (ADA).

As reported in Business Management Daily, Madeline Fowler worked for Kohl’s Department Stores as a customer service supervisor. She was expected to help run registers as needed and to work the sales floor.

Fowler injured her back at work, and her doctor placed her under medical restrictions. Eventually, he concluded that she had a degenerative spinal condition and should never stoop, bend, twist, squat, kneel, pull or use stairs. She asked for accommodations, but Kohl’s concluded none was possible and discharged her. Fowler sued under the ADA and the New York Human Rights Law, claiming disability discrimination.

Kohl’s argued that, because she was also receiving workers’ compensation benefits for the injury, she couldn’t also sue for accommodations. It said the workers’ comp law trumped other claims and was the exclusive remedy. The court disagreed. It said that as long as Fowler wasn’t telling the workers’ comp system she was completely unable to work, even with accommodation, she could collect workers’ comp and sue for disability discrimination.

Exotic dancers are employees,
not independent contractors

September 24, 2009: The Montana Supreme Court, the State’s highest court, fund that exotic dancers were employees of the establishment where they worked and were not independent contractors.

Even though the dancers had to sign agreements which indicated that they were independent contractors and laid out all the terms of their employment, the Court looked at their actual working conditions. Most important, they looked at other aspects of the agreements the dancers had to sign to work at the club, found that there were several violations of Montana’s labor and tax laws, and thus determined that due to the invalidity of those agreements, the dancers were employees.

The case is the Matter of the Wage Claims of Renne L. Smith, et al. v. TYAD, Inc., No. 07-0305 (Mont. 05/20/09).

I do remember a case on this same issue at the WCB many years ago. And although I was not on the panel with Commissioner McManus, I do remember her talking to me about this at great length before she, and her panel, made a final decision.

Va. drops Facebook fine
in workers comp case

September 21, 2009: The on-line site Business Insurance reports that an official of the Virginia Workers’ Compensation Commission has vacated a $200-per-day fine on Facebook Inc. for failing to reveal information from a subscriber’s account. Virginia imposed the fine Aug. 28 after Facebook did not respond to a workers comp defense attorney’s subpoena seeking information about an employee for Colgan Air Inc. Facebook responded later and argued that federal law prohibited it from responding to the subpoena. A deputy commissioner agreed and vacated the $200-per-day fine, the state agency said. -The case reportedly involved the airline’s attempt to obtain vacation photos of an employee to counter a workers comp claim.

Daycare Worker: Get Flu shot or you’re Fired

September 24, 2009: Dozens of media outlets, including the Albany TimesUnion, issued a story about a daycare worker employed by Northeast Health in Albany New York who was told she would be fired if she did not take a flu shot. And other stories are being circulated that taking the H1N1 flue shot will be a condition of employment.

But the story is not this work but the issue of the flu, the shots, and their relationship to workers compensation. I noted last week, in story below, about the potential pandemic H1N1, there is a lot of discussion by those in Human Resources and various carrier claims departments what to do when claims start to come in from those who get the flu.

But I do not think that there is a problem with those getting sick from taking the flu shot if it is a requirement of employment.

The issue of whether or not someone can be fired for refusing the shot is another story and, fortunately for most of us, does not involve workers’ compensation.

Upstate WC Attorney Runs for Congress

July 29, 2009: Michael Oot, well-known workers compensation attorney from Munnsville, New York, has recently announced that he is a candidate for New York’s 23rd District congressional seat currently held by U.S Representative John McHugh who has been nominated by President Obama as Secretary of the Army.

“As soon as I heard what the process was, I filed my papers,” said Michael Oot of Munnsville, who unsuccessfully ran against McHugh in 2008. Oot said he wasn’t sure what the next step in the selection process will be and that he is “watching and waiting.”

“I’ve spent 33 years working and representing people throughout the Congressional District,” said Oot, who specialized in workers’ compensation and Social Security claims as an attorney. “I’m conversant with the issues up there. I’m conversant with Federal issues. I consider myself the best candidate, and somebody who’s willing to do the work.”

Oot will be one of five people running in the Democratic Party primary to be held September 15, 2009

This information comes from the Adirondak Daily Enterprise.

The Big Boss Syndrome

July 30, 2009: In my book, Behind The Closed Doors, I make reference to a commissioner as one who practices the “Potemkin Village legal argument”.

Today I post part of an article entitled “Beware of the Boss Man (or Boss Lady) Syndrome” which considers the Potemkin Village a sub-set of the characteristics of the Boss Man/Lady. The writer describes this person as:

Mr. Boss Man and Ms. Boss Lady do not fool around. They can be spotted by their confident swagger, puffed chest inflated by an air of self-importance and their adamant tone. They hold their heads high as they briskly walk the halls of Big Law[NYSWCB] on their way to an oh-so-important meeting.

Big Law’s love for blind over-confidence and arrogance may even inflict this syndrome on otherwise normal lawyers I suspect that is because those suffering from these delusions of self-importance can only hold up the façade for so long before a client or a more senior partner discovers they are all talk and no walk. But you must avoid being a victim of their rampage before they are discovered. One of the worst manifestations of Boss Man Syndrome is Adamant Ignorance. When asked a question about a topic for which they have no substantive knowledge or basis for opinion, both Mr. Boss Man and Ms. Boss Lady will immediately pipe-up with a firmly held opinion.

My position is that one need not be an attorney to suffer from this syndrome but be a political appointee. Read and enjoy. And watch your back.

NYCIRB Approved WC Loss Rate Increase

July 27, 2009: The New York State Insurance Department has approved an increase of 4.5% in workers compensation loss costs to become effective on policies with rating anniversaries October 1, 2009 and thereafter. The 4.5% increase is comprised of an average change in classification loss costs of +4.6% and no change in the catastrophe provisions for terrorism, natural disasters and catastrophic industrial accidents.

Specific details can be found on their web site or by contacting Rasa McKean, Actuarial Manager, (212) 697-3535 Ext. 164, Fax: (212) 972-1393, rmckean@nycirb.org

Brooks Named to Head Key Committee by the NAIC

July 27, 2009: Acting New York Insurance Superintendent Kermitt J. Brooks has been named Chair of the Life Insurance and Annuities Committee, a key working committee of the National Association of Insurance Commissioners (NAIC), the organization of insurance regulators from the 50 states, the District of Columbia and the five U.S. territories.

The mission of the Life Insurance and Annuities Committee is to consider issues relating to life insurance and annuities, review new life insurance products and establish priorities of the Life and Health Actuarial Task Force. The Committee oversees working groups devoted to annuity disclosure, indexed annuities and the suitability of annuity sales. Brooks recently announced the New York Department will hold public hearings statewide on the suitability of the sales of life and annuity products during August and September. Other Committee priorities include overseeing the development of the principles-based reserving system for life insurance companies, and reviewing and considering changes to the NAIC’s Annuity Disclosure Model Regulation to improve the disclosure of information provided for annuity products, both generally and specifically, and to provide insurers uniform guidance in developing disclosure information and documents and monitoring the distribution thereof in order to better inform annuity consumers about the annuity product purchased and how it works.

New NYSWCB Commissioner Still Pending

July 16, 2009: In my June 3, 2009 NEWSWIRE, I wrote that Governor Paterson’s newest nominee to the NYSWCB, Conrad Lower, was being fast tracked for formal confirmation by the State Senate before they closed for the summer. His June 10, 2009 appearance before the Senate Finance Committee was canceled at the last minute, I assume, as a part of the debacle that has finally ended today (hopefully).

Whether nor not the Senate will rush to vote on only a few key issues necessary to keep the State and its many counties and cities in business, but on nothing else until the Fall, remains to be seen. But one can assume that the hard working, highly valued public servants will not stick around to make any decisions regarding the dozens of Paterson’s nominees that have been piling up.

But odds are that Lower’s name will ultimately go before the Senate and he will be the next new board member/commissioner, certainly before the upcoming election cycle.

Commissioner Scott Firestone Resigns

July 17, 2009: Commissioner Firestone formally announced his resignation yesterday, July 16, 2009 as a commissioner at the NYS WCB although he had told a number of people earlier in the week about his decision.

Originally appointed as a member of the Independence Party in March 2000, when his term of office was up, he became a district administrator until he was able to secure, as a member of the Conservative Party, another appointment to the Board in August 2005 and is leaving now in 2009 in order to become an administrative law judge for the Federal Social Security System. Apparently he will be assigned to the Plainview NY office with another newly appointed judge at the Social Security Court: Chairman Zachary Weiss who announced his resignation from the Board in June. Both resignations appear to be effective next Monday, which coincides with the next public Full Board Meeting.

Resignation of Weiss & Firestone
= 2 less Attorneys = Chaos?? 5097

July 17, 2009: Because the NYSWCB has, since 2004, followed the policy of requiring an attorney to sit on each panel that reviews Memorandums of Decision, there will be some problems next week when there will be only two attorneys on the Board to review decisions, increasing their personal workloads by 50%, likely resulting in delays of decisions being issued. For more details on this potential problem and the Board’s mistaken interpretation of WCL §142, ready my commentary in COMMENTS & REPORTS.

Workers Comp Rates Leap for Some Firms

July 18, 2009: While the NYSWCB trumpets lower workers compensation insurance rates, as noted in past issues of the NEWSWIRE, this does not hold true for many employers, particularly those in the any self-insured trusts which the State has failed to supervise all these many years.

One such example is the member of the Elite Contractors Trust of NY whose individual members have been hit with assessments ranging from a few thousand dollars up to six figures due to improper rate calculations by the Trust Fund.

This information comes from the website “Ask Tim - Got an insurance technical question on your mind? Join IIABNY’s resident insurance geek for the answer” (Independent Insurance Agents & Brokers of New York, Inc.).

Former members of the Elite Contractors Trust of New York, a group self-insured trust for workers’ compensation, have received bills totaling $37 million to close the trust’s deficit. Trust administrator FCS Administrators began issuing assessment notices to affected employers on June 30. FCS assumed management of the trust last year after the original administrator, Compensation Risk Managers, LLC, forfeited its license under pressure from the New York Workers’ Compensation Board.”

Could it be that the rating board’s determination of rates is based not on the reality of the financial conditions of the carriers and their reserve funds but on other political considerations? And what will happen now that the State Insurance Fund does not have to contribute to the Aggregate Trust Fund but the private carriers do, thus increasing there financial burdens and the cost of the insurance?5096

Facebook Helps Prove A Claimant Was Lying

July 18, 2009: Jim Reed, in his website, NYInjuryLawBlog.Com, explains how many defense firms are using Facebook and other such personal internet file sharing to help discover which claimants are lying about their disabilities.

He reports, “I was made aware of this Facebook issue by attorney Jason Lee Paris. A friend of his who is a defense attorney told him how she had participated in a case where the plaintiff claimed severe mental and physical problems. The plaintiff claimed he: “had no life, cannot do anything, doesn’t go out of the house except to the doctor or to work, is depressed, is physically limited, used to love to dance and play sports and now does neither at all anymore, has not gone outside the state of New York since his accident, etc etc.”

This defense attorney then changed her county of residence on her Facebook profile (Wonder if that was unethical conduct on the part of this lawyer?) so that she could secretly view the plaintiff’s Facebook page without being his “friend” - and lo and behold: There were recent photos of the plaintiff dancing at a wedding in Puerto Rico and playing soccer last summer. He’d also posted lots of information about his activities and feelings. His case was blown by his own Facebook profile.”

I am sure that a lot of defense attorneys who were unaware of this tool now are. But as Reed also states, “This plaintiff was dishonest, and as a personal injury attorney I don’t want anything to do with representing dishonest people. In fact, I tell my clients, I can always deal with the truth but a single lie can kill an otherwise good case.”

Fortunately, the majority of attorneys that I have met in the WC comity take the same position on the issue of truthfulness of the claimants.

Brooklyn Doctor Charged With WC Fraud

July 10, 2009: The following story was written by Steven Greenhouse on July 10, 2009 for the New York Times.

Federal prosecutors charged in an indictment Friday that a Brooklyn doctor defrauded workers’ compensation insurers by seeking reimbursement for procedures he did not perform, including some that he said he had done in his office at times when he was actually in Latin America.

State officials who operate the workers’ compensation system and cooperated with the federal investigation said the indictment was a result of new efforts to aggressively pursue fraud by doctors in a compensation system often criticized for ineffectiveness.

The indictment said the doctor, Slobodan Aleksic, had also sought reimbursement for many procedures — more than any one doctor could possibly perform — on a single day.

In the indictment, the United States attorney in Brooklyn also accused Dr. Aleksic of seeking money from two different insurers for treating the same patient with the same procedure on the same day. Dr. Aleksic, who practiced internal medicine with a specialization in neurology on Graham Avenue in Brooklyn, falsely sought reimbursement for performing physical therapy on patients “when, in fact, such physical therapy was performed by individuals” whom he knew to be unlicensed, the indictment said.

I had a §32 in which, in response to the question, “When was the last time you had any medial treatment?”, replied something to the effect “Six months ago.” So I asked him why his file had C-4 Medical Reports indicating three doctor visits a week every week for the last six months through the week before the hearing?. I had him swear on the record as to his not having had any medical treatment such that his could (and was used) to help investigate and possibly prosecute fraud changes against the offending doctor. I was obviously not alone in my concern.

How to save on insurance premiums

July 16, 2009: Neil M. Gilberg, assistant director of public information for the NYSWCB, recently had an a article published in the website LongIslandBusinessNews.com in which he writes that “It is every employer’s responsibility to provide workers’ compensation insurance for their workers. This protects both the worker and the employer in the event of an on-the-job injury. Legally keeping workers’ compensation premiums as low as possible is also in everyone’s interest. While there have been significant reforms and insurance cost reductions over the past few years in workers’ compensation insurance, there are many things you can do now to lower your costs further.”

Neil M. Gilberg, assistant director of public information for the NYSWCB, recently had an a article published in the website LongIslandBusinessNews.com in which he writes that “It is every employer’s responsibility to provide workers’ compensation insurance for their workers. This protects both the worker and the employer in the event of an on-the-job injury. Legally keeping workers’ compensation premiums as low as possible is also in everyone’s interest. While there have been significant reforms and insurance cost reductions over the past few years in workers’ compensation insurance, there are many things you can do now to lower your costs further.”

Ronald Balter Commentary on Chmura v T&j Painting Co., Inc.

July 10, 200: Ronald Balter has written an excellent analysis on the 3rd Department’s ruling yesterday (on our DECISIONS page) of the Chumra v. T & J Painting Company case.

The Appellate Division Third Department recently ruled on whether or not an employer who obtains a workers’ compensation policy in New Jersey through the assigned risk pool has coverage under the New York State Workers’ Compensation Law when a claim is made against the employer before the New York State Workers’ Compensation Board. For his complete analysis, please …. link here

Without Good Reason, NYSWCB closes Rockland office

June 2009: In June, 2009 Kristina Dillon of lohud.com reported that the NYSWCB closed its New City office in April to save money in the state budget.

Gail Kizner, a lawyer who represented many workers at the New City board prior to its closing, expressed concern for her clients traveling from Rockland to the Peekskill office in Westchester for their hearings. “My clients would have to travel over the Tappan Zee Bridge, which is constantly under construction - that was a major issue to me,” said Kizner. “To travel a great distance to attend a hearing out of Rockland County causes [concerns]. If a claimant was stuck in traffic, they may not appear in time for their hearing.” Attendance for a hearing is often mandatory, she said. “And this is all assuming my claimant has a car.”

Joe Cavalcante, a spokesperson for the Board, stated that in 2008 the New City office held 3,041 workers’ compensation hearings, less than 1% of the statewide hearings. Cavalcante said there was no way to determine how many were affected while the New City office was closed. “As of April 15, the claimants were automatically directed to the hearing sites closest to where they live. Therefore, it’s not possible to tell how many would have went to New City.”

In response to a request by Dillon for my opinion on this closing, I was quoted, “I find Cavalcante’s statement hard to believe. The Board will not give out that information because they never studied it. If the Board doesn’t know how many individuals in Rockland were affected, then how could they have enough backing to open a new one?”

The four closest hearing sites to Rockland County are Peekskill, White Plains, Yonkers and Newburgh.

NYSWCB: “Workers Comp Rates Decline”

July 4, 2009: Neil Gilberg, the advocate for business for the NYS WCB, wrote a guest essay in the democratandchronical.com contending “that there is a misperception that New York’s workers’ compensation premium costs put us at the top of the chart. In fact, New York ranks 19th among the 50 states. We fell from 10th most expensive a few years ago.”

He writes that, “Since the 2007 reforms, the rates used to calculate premiums were reduced by nearly 25 percent. That happened because the state of New York brought business and labor together, to come to an agreement that reduced costs while simultaneously increasing the benefits for injured workers for the first time in 15 years.”

It will be interesting to see what happens when the full impact of the higher rates and the yet-to-be determined medical guidelines have been in place for a year or two.

Beloten Is New WCB Chairman

July 1, 2009: On July 1, 2009, Gov. David A. Paterson has chosen newly appointed Commissioner Robert E. Beloten to be the chairman of the Workers Compensation Board when current Chairman Zachary Weiss’ July 15, 2009 resignation becomes effective. In fact, in the recent poll conducted earlier this week on this website, 80% of the participants predicted that Beloten would be the next chairman.

Beloten was first nominated to the Board in May of this year, after having served as a workers compensation law judge from 1988 to 1996 in Hempstead and then again from 2000 until his appointment as a commissioner. As noted earlier in this website, because Beloten, who was a law student with Mr. Paterson at Hofstra University, is already a commissioner, he does not need to be confirmed by the State Senate for this new position.

During the four years between his stints as a compensation judge, Mr. Beloten worked for Keating & Klein, a law firm on Long Island that specializes in health care law. From 1985 to 1988, he was an assistant counsel for the New York State Racing and Wagering Board. He has lectured extensively on workers’ compensation and medical law.

[Editor’s note: for additional details, read the New York Times article by Steven Greenhouse.]

SIF has new Deputy Exec Director

June 30, 2009: According to James Odata’s June 30, 2009 article in the Times Union, State Appointments Secretary Francine James is taking a top job at the embattled New York State Insurance Fund as chief deputy executive director and secretary. Her transfer to the SIF means James will join an organization she has helped restructure in recent months with the elimination of some of the Pataki-era people in key top posts.

She takes the job lost in March by Chris Barclay, one of several casualties to leave the SIF after the Times Union reported about Randall Hinton, a $94,000 per-year employee who has been doing nothing for years. Barclay’s salary had topped out at $158,300. James had been among a few on Paterson’s staff who knew of the no-work SIF employee and had done nothing about it, according to Hinton.

GM Bankruptcy: So Where’s NY State?

July 2, 2009: Today both Ohio’s and Michigan’s Attorneys General agreed to the proposed sale of GM after they received formal assurances when New GM agreed to assume all of Old GM’s obligations.

These two consents should help make U.S. Judge Robert Gerber’S final ruling on this matter all the easier. As reported by Roberta Yafie in the business-journal.com, “The automaker has a July 10 deadline to conclude its business or risk losing the federal financing backing the Section 363 asset sale. Today’s session in U.S. Bankruptcy Court for the Southern District of New York was devoted to final oral arguments by objectors to the pending asset sale that will result in New GM, the restructured company unencumbered by debt and an overburdened corporate structure.”

The one issue that has not been addressed, nor even raised is “What is the State of New York doing?” Considering all the financial problems that exists with a number of other insurers/self-insureds, does the WCB have that much money to pay off GM’s outstanding workers comp claims that this issue need not be addressed? Or has an arrangement already been made but apparently so secret no one is supposed to know?

9/11 Worker Protection Task Force
Issues 2009 Annual Report

June 30, 2009: The 9/11 Worker Protection Task Force announced today that it has issued its 2009 Annual Report and that it is working with the Governor’s Office to implement its legislative recommendations for this year. All six legislative changes recommended by the Task Force in its 2008 Interim and Annual Reports were passed by the State Legislature last year. These six recommendations expanded the eligibility criteria in disability law for public employees, in order to:

• eliminate the requirement for pre-employment physicals.
• include injured workers whose exposures were limited to the first hours of the attack.
  include workers who suffered significant exposure-related health effects but whose work locations were not within the boundaries for World Trade Center sites set by law.
• allow workers who have retired or who are on non-World Trade Center-related disability to file for World Trade Center-related disability benefits if they otherwise qualify.
• Include law enforcement officers from outside New York City who were deployed to the World Trade Center sites.
• acknowledge the extended time limit for workers’ compensation claims by allowing workers who became disabled after 9/11/03 (the prior time limit for filing a workers’ compensation claim) an opportunity to file.

In addition, the Task Force made recommendations for the coming year. For details, you can read the full story by clicking here.

WCB Enforcement program: Useful or Abusive

June 1, 2009: In a series of articles printed by the Syracuse Post-Standard, they contend that the WC Board’s enforcement efforts in bringing judgments against employers who do/did not have workers compensation insurance borders on the abusive.

The articles cite some examples:

• Hot dog vendor Bob Luongo, who owns a stand in Lyncourt, was stunned to learn a $128,000 judgment has been filed against him for not having workers’ compensation insurance — even though he hasn’t had workers since at least 2003.
• Another former businessman, who had owned a landscaping business, ended up on the list, too. He hadn’t done any business in 10 years.
• The list also includes two closed churches. One of them, Calvary Episcopal Church — listed as owing $130,000 — closed in 1996.
• Darrell Controls dissolved in 1996. It’s listed as owing $128,000.
• American Logistics, which owes $139,000, went out of business in 2005.

WCB Spokesman Brian Keegan said there was a backlog dating to 2006 that was just cleared. He didn’t know the total dollar amount of the 10,000 judgments, but roughly 50 filed in Onondaga County alone in a week totaled more than $5 million. Keegan said the judgments come out of comp board’s automated system, and most of the cases go back to 2006. “That was likely when a first letter was sent to each business. If there’s no response to that letter and subsequent ones, the case is sent to a collection agency. If the agency can’t find the business, then the Workers’ Compensation Board files a judgment. That’s what happened to these 10,000 cases.“

As Post-Standard staff writer Marnie Eisenstadt reported, the NYSWCB filed judgments against about 10,000 companies just in the past 10 weeks for failing to have workers’ compensation insurance for employees.

Trouble is, some of the companies never had employees. They’re small enterprises like hot dog vendors or house painters in which the owner is the only person doing the work. And many of the businesses have been shut down for more than a decade. The NYSWCB fails to verify who legally owes money and who doesn’t, a stunning display of incompetence. It just sends out thousands of fine notices [ED.NOTE: ‘fine’ as in $$, not ‘fine’ as in quality] and hopes some are right. If a mistake was made, too bad. The burden of proof is on the business owners, who often have to find documentation going back years to make their case.

Editor’s Note: In my opinion this is another case of the NYSWCB seeking “good stats’ to show how great a job it is doing, regarding less of whom among the 10,000 does not belong there. In fact, I know of a case in which a California firm which the NYSWCB claimed had one person working in NY for one year got billed for $10,000 unless that firm could prove there were no employees in NY. When the firm stated that year in question was 15 years ago, the Board position is “You’re guilty unless you can prove otherwise.”

And while I agree that it is essential that firms who cheat on their WC insurance must be penalized, there has to be some common sense in the process. People have to make decisions on these cases and not have Board executives decide to run a computer program that takes away all human discretion and common sense.

More complete details can be found in the following links.

• http://blog.syracuse.com/opinion/2009/06/workers_comp_system_targeted_e.html
• http://blog.syracuse.com/opinion/2009/06/terrible_aim.html
• Marnie Eisenstadt can be reached at meisenstadt@syracuse.com or 470-2246.

My Open Letter to the Chairman

June 1, 2009: What follows is the e-mail I sent to Chairman Weiss on Wednesday June 3, 2009, with a copy to all my readers.

Dear Chairman Weiss,

Chrysler and HartMarx (maker of men’s clothes out of Rochester), both major New York State employers and both self-insured, are in the process of filing for Chapter 11.

Several weeks ago, Sedgewick had stopped paying claims in its capacity as the TPA (third party administrator) for Chrysler.

The concerns that have been raised are that, in the bankruptcy sale of both these firms, the new owners will have no legal obligation to pay any outstanding workers compensation claims. And, although the State of Michigan has apparently just made a deal with one of the possible new owners of Chrysler, nothing has yet been heard from the State of New York.

According to one of the NY State workers compensation claimant attorneys with whom I have been in contact, it does not seem that the State of New York, neither the Department of Insurance nor the WCB, have issued any public announcements to ally the fears of the injured workers of these two firms, although based on its May 29, 2009 press release stating that “New Rochelle Doctor Arraigned on Insurance Fraud Charge.”, the WCB does appear to have the mechanism to address this issue. And I have just looked at both the press releases and subject numbers on the Board’s website. And, yes, I am as are 99% of those who will read this e-mail aware of the Liquidation Bureau but I am equally sure that 99% of the injured workers are not, so they are unaware of what fate awaits them.

At the cost of $1 or so to the WCB to mail each one a letter, the anxiety levels of these injured workers will be greatly diminished by some sort of assurance from the State and the Board and go a long way to proving that the WCB does, in fact, care about the injured workers as human beings and not just a set of stats to show how effective the Board has been.

Michael T. Berns
Former Commissioner 1996-2008
New York State Workers Compensation Board.

I Defend the WCB’s Chairman & IG

June 1, 2009: James Odato of the Albany Times Union reports that two top officials at the Workers’ Compensation Board have arranged for their offices to be near where they live, allowing them to bill the board for weekly stays at Albany hotels on days they join the rest of central staff at headquarters. But Board Chairman Zachary Weiss and Fraud Inspector General William Gurin say they’re saving money by having their work stations more than 140 miles away from headquarters. Albany has routinely been where their predecessors have been stationed, even those who lived outside the Capital Region, although a spokesman said former Chairwoman Donna Ferrara, who rarely worked in Albany, had her work station designated near her Long Island home.

I responded to the Times Union in their defense with the following comment.

As a former member of the Workers Compensation Board, I feel strongly that your characterization of Chairman Weiss and IG Gurin are way off mark.

The fact that they may work out of a district office rather than the main Albany office is meaningless in terms of how the Workers Compensation Board (WCB) works. During the late 1990, under the leadership of Chairman Robert Snashall, the Board became highly computerized such that virtually every injured worker’s claim, WCB memos, and administrative activities are done electronically. The use of e-mail and video conferencing, and the phone, has allowed instant communication between offices.

I worked with these two gentlemen during the last year of my service at the Board and can assure you that they, Like Commissioner Ferrara whom you also mention, are highly effective using the new electronic media.

It is not them about whom you should be writing but the insouciants among some of the other commissioners who do not even go to their local district offices but spend an hour or so at home on the internet access to the WCB cases where they simply rubber stamp legal appeal decisions, often poorly written or legally incorrect, by staff writers.

As I am sure that you, too, often work from home, it is not ‘where the head is’ but ‘where the heart is.” Weiss, Gurin and many other have their heart in service of the injured workers. It is some other commissioners whose both heads and hearts are in locations I for one prefer not to contemplate but is it certainly not in serving the interest of injured workers.

Florida Now Limits WC Fees for Claimant Attorneys

May 28, 2009: According to WEAR/TV, Gov. Charlie Crist has signed a bill to restore caps on fees for lawyers representing workers in compensation appeals for on-the-job injuries. The new law will undo a Florida Supreme Court opinion by removing an existing provision saying such fees must be reasonable. [See the May 11, 2009 NEWSWIRE posting below.]

Business interests hailed the governor’s decision Friday. They said the new law will lower workers’ compensation insurance rates paid by employers. They’d been lobbying Crist to sign the bill while trial lawyers urged him to veto the measure. The governor signed the bill without ceremony or immediate comment.

The fee limits do not apply to lawyers who represent insurance companies and employers.

[EDITORS’S NOTE: This will definitely reduce rates for employers because there will be no more claimants’ attorneys left to help injured workers win their cases.]

Governor’s New Appointee on the Fast Track

June 3, 2009: As forecast in last week’s NEWSWIRE, Governor Paterson’s newest nominee to the Workers Compensation Board, Conrad W Lower, met with the Senate Labor Committee on Monday June 1, 2009 and then met two days later, Wednesday June 3, 2009, with the Senate Finance Committee. In view of the fact that the NYSWCB has in the past never announced appointments of new commissioners until weeks after the fact, Lower may be a commissioner by the time you read this e-mail, although next Tuesday June 9th is more likely for his approval by the State Senate.

Board Has New Medical Director

June 3, 2009: The New York State Workers’ Compensation Board announced Stephen M. Levin MD, a nationally recognized expert in occupational medicine and the health effects of the World Trade Center disaster, will serve as its interim medical director.

Dr. Levin is the medical co-director of the Mount Sinai–I.J. Selikoff Center for Occupational and Environmental Medicine at Mount Sinai Medical Center. He was the principal investigator for the Mount Sinai World Trade Center Data and Coordination Center, and is an associate professor at The Mount Sinai School of Medicine.

Dr. Levin will help design and create the Board’s Office of the Medical Director, provide guidance, advice and assistance with respect to medical treatment and medical impairment guidelines, and meet with interested parties to discuss medical issues relating to workers’ compensation.

“Dr. Levin is a world-class physician with a unique set of skills and extensive experience in our field,” Chair Zachary S. Weiss said. “I am grateful that he will use his talents to help the Board better serve injured workers and employers.”

A widely published practitioner with more than 40 years experience in medicine, Dr. Levin also testified before Congress on the health effects of the September 11th attacks. He received his medical degree from New York University Medical Center, and did residencies in surgery, community medicine and psychiatry.

“I have spent my career dedicated to improving the health of ill and injured workers,” Dr. Levin said. “I will bring the same focus and dedication to the medical director position at the Board.”

Another Nominee to the WC Board

May 28, 2009: Governor Patterson has just named his third nominee this year for appointment as a commissioner to the Workers Compensation Board, to be interviewed by the Senate Finance Committee, next Monday, June 1, 2009.

Patterson’s newest nominee, Conrad W Lower, of Brooklyn, is currently a staff attorney at the New York State United Teachers where he specializes in employment law. Prior to becoming a member of the New York State Bar in 1988, he practiced employment law in Indiana where he was also admitted to practice before the U.S. Federal Court, where he has successfully argued a number of cases on behalf of employees, just as he has been doing in New York for teachers and other employees of the educational system. He received his J.D. at Northeastern University School of Law in Boston in 1983 after receiving his B.A. from Antioch University in Ohio in 1976.

Assuming that he is approved by the Labor Committee, which is likely, he will most likely be fast-tracked to the Senate Finance Committee so that he can appear before the full Senate before they recess for the summer holidays.

If he is approved, he will be the second Paterson appointee whose practice prior to joining the Board was to represent employees against their employers, Higgins being the first. [ED. NOTE: Although Higgins is not an attorney, he worked with members of his union in representing their claims for workers compensation.]

Lower would also be the third attorney appointed by Paterson, which would give the Board seven: with the current six being the highest number of attorneys sitting at any one time, since at least 1996 when I first joined the Board: Chairman Weiss, Commissioners Bargnesi, Ferrara, Higgins, Beloten, and Firestone.

[ED.NOTE: Effective in July 2009, both Chairman Wiess and Commissioner Firestone resigned from the NYSWCB].

It will be interesting to see, with one vacancy left, how accurate was the rumor mill about which I reported in May 7, 2009 when Jim Eagan or Dan Ward were mentioned as possible appointees.

State Insurance Commissioner Dinallo Resigns

May 28, 2009: Governor David A. Paterson today announced that the Superintendent of the New York State Insurance Department, Eric R. Dinallo, will resign his position and become the Henry Kaufman Visiting Professor of Finance at New York University’s Stern School of Business

Superintendent Dinallo’s resignation will become effective on July 3, 2009. No official reason has been given for the resignation.

However, Irene Jay Liu of the Albany TimesUnion reported late today that Dinallo is reportedly considering a run at attorney general should Andrew Cuomo decide to run for governor in 2010. If Cuomo moves on, Dinallo would enter a crowded field where fundraising would be a key factor in winning the Democratic line. In his current position, Dinallo would not have been able to seek office or raise money in anticipation of running for office.

FUBAR: The NewMedicare Offsets Rules

May 28, 2009:As I reported in my April 17, 2009 posting on this page, beginning July 1, 2009, many employers and insurance companies will be required to report claims for workers’ compensation claimants that are also Medicare beneficiaries to the Centers for Medicare and Medicaid Services (CMS).

Michelle Landers, Esq. Executive Vice President—General Counsel, KEMI writing for the American Association of State Compensation Insurance Funds, has raised some significant questions about issues which have made it nearly impossible for the Responsible Reporting Entity (RRE) to comply with the new regulations. In fact, just this morning, I received a phone call from an executive at a state agency in the Mid-West who, after visiting my website, asked if I knew what were the reporting requirement or if I had a name of someone to contact.

My caller stated that he is willing to comply but does not know what are the standards or data required by CMS nor does he know what to do if the claimant refuses to give any information and/or if the injured worker’s status regarding Medicare changes two weeks after the injured worker has submitted his original form.

The problem is that the RRE is required to submit computerized data but no one seems to know exactly what is the data and what types of claimants or cases require the reporting of data. For example, if a carrier is only paying replacement wages but no medical, are they required to collect and submit that data?

As Ms Landers reports,

Planning for implementation of the new reporting requirements continues to be difficult, at best, because the process being established by CMS is ongoing. CMS has been holding conference calls (referred to as Town Hall Teleconferences) on a regular basis to allow carriers and industry representatives to ask questions and seek clarification about the requirements. However, numerous questions still remain to be answered. One of the most significant unknowns which is hampering preparation for compliance is the final list of data fields that CMS will require to be reported. Although CMS has already identified and proposed more than 100 different data fields for reporting, the list is not complete and CMS has indicated that it does not expect to finalize the details until sometime in February or March 2009.

As of May 9,2009 the most recent document on the CMS website is dated May 12, 2009 and does not seem to say anymore than “we are working on it.” The document link is:http://www.cms.hhs.gov/MandatoryInsRep/Downloads/RevisedImplementationTimeline050909.pdf

We Need Your Help

Does anyone know a human being at CMS? In fact, based on the phone calls that many people have made there trying to get information, with response limited to computerized telephone operators, does anyone know if there are human being who work there?

Please send that information to my attention at TheInsider@InsideWorkersCompNY.com. and I will post it in both my next Newswire as well as my next E-Mail Alert.

Up-Date: Commissioner Bios

May 28, 2009: Although her presence on the State Fair Board was not widely known nor mentioned in her official biography, Commissioner Paprocki did receive an approval from the Pataki administration and a confidential authorization from the State Ethics Commission to take this second State appointment, after she resigned her position as an employee of the State Fair Board in order to join the Workers Compensation Board, thus being able to use her influence on two State Boards.[EDITORS’ NOTE: The Biographies on the COMMENTARY & REPORTS page have been corrected.]<

A “Motion” is in Motion on FBR’s

May 22, 2009: I have just received information that the continuing practice of Vice-Chairman Frances Libous to be the sole signer in the denial of Full Board Reviews is under appeal on the grounds that this practice is a violation of WCL §142.

In my January 2009 Commentary entitled “FULL BOARD REVIEWS: Political or Legal?” I answered a question from a reader:

Why is it that Commissioner Libous has the sole authority to deny a full board review rather than having a panel of commissioner review the denials like they do the ones that are changed?

I expressed my opinion that this practice, started by Vice Chairman Sweet, was illegal under WCL §142 and I suggested that the Board review this process. They apparently did not and the issue will now be decided by the Appellate Division, 3rd Department.

New Commissioners Finally Confirmed

May 21, 2009: As previously forecast on this page, Governor Paterson’s two nominees for the position of Commissioner of the Workers Compensation Board have had their appointments confirmed by the State Senate and are already planning to take their place in the decision-making process of the Commissioners.
And I am sure that I can speak for the workers compensation community when I take this opportunity to formally thank both Commissioner Henry and Commissioner Groski for their years of service to the injured workers and employers of the State of New York as well as to the Board itself.

As of today’s date, no other names have been submitted to the State Senate Labor or Finance Committees.

Commissioners’ Biographies

May 21, 2009:A number of readers who asked if it would be possible for me to give them the type of background information on the sitting commissioners that I did on potential nominees for Commissioner/Board Member. I have. And now both the official and background biographies of the current eleven board members can be found on the new COMMENTARY & REPORTS page.

TX Court Says no WC suits allowed against GC’s

May 14, 2009: In the April 10, 2009 issue of The Austin Chronicle, Lee Nichols reports that the Texas Supreme Court reaffirmed its decision in the Entergy v. Summers workers’ comp case.

After a 2007 decision interpreted state law so that the owner of a work-site premises could receive the same shield from liability granted to insured general contractors under workers’ comp laws, legislators cried foul, stating that they never intended the law to be used that way. The court agreed to rehear the case and deliberated in October, but ultimately it stood by its decision. “Today’s majority has simply declared after the fact that the workers’ compensation law means the opposite of what it has always been held to mean when it comes to premises owners,” said Texas AFL-CIO President Becky Moeller. “As a result, more workers – like those injured in the BP explosion of 2005 – will be limited to meager workers’ compensation protections.”

The actual decision was affirmed 6-3, with two concurring opinions by three of the justices and one dissent signed by all three dissenting justices. The full opinion can be found by clicking here …

Former WCB Employee Agrees to Pay $3,000 Fine

May 14, 2009: According to the Midhudson News, Paul Wolfle, a former examiner for the State Workers’ Compensation Board, has agreed to pay $3,000 for violating the post-employment restrictions of the ethics law, the State Commission on Public Integrity announced Thursday, May 14, 2009.

Wolfle, a former examiner for the State Workers’ Compensation Board, is paying $3,000 for appearing before his former agency as a representative of Gallagher Bassett of New York. Wolfle submitted six applications for workers’ compensation insurance benefits for the company in 2007 within two years of leaving state service.

Utah’s workers comp provision unconstitutional: Court

May 12, 2009: A Utah state law’s “offset provision” that reduces workers compensation benefits for Social Security recipients over the age of 65 is unconstitutional, Utah’s Supreme Court ruled Friday.

The decision in Nathan H. Merrill vs. Utah Labor Commission and Vermax of Florida Inc., reverses an appeals court finding that legislators legitimately enacted the law to reduce employers’ workers comp costs while assuring injured employees adequate wage recovery, court records state. Mr. Merrill, who suffered a back injury while working for Vermax when he was 64, had been found by the Utah Labor Commission to be permanently and totally disabled. The commission ordered that he receive $395 a week, but his employer challenged the award, arguing it should be offset, court records state.

The high court said the statute—which reduces work comp benefits by 50% after 6 years—is unconstitutional because it singles out people over age 65.

As posted in Business Insurance.com on April 27, 2009 by Roberto Ceniceros.

CA Seeks Large WC Insurance Rate Hike

May 12, 2009: As the State of California’s financial situation continues to deteriorate, this has been reflected in the request by the California’s Workers’ Compensation Insurance Rating Bureau to request an increase effective this summer in the amount of ….. 23.7%.

Rumor has it that carriers in New York are hoping that the management skills exhibited by the Patterson administration are duplicated at New York Insurance Rating Board: then there will be no change in rates until after the next gubernatorial election in 2010.

FL Again Approves WC Legal Fee Limit
May 11, 2009: On March 6, 2009, on this page, I reported that the Florida Supreme Court had ruled that the State legislature’s attempt under HB 903 to limit attorneys’ fees in workers compensation cases was unreasonable.

This week, the law has been rewritten to address this concern and just passed the Florida State Senate 22-16 and the State House 84-35. It now awaits the signature of Governor Charlie Crist.

The law, in part, reads,

Any attorney’s fee approved by a judge of compensation claims for benefits secured on behalf of a claimant must equal to 20 percent of the first $5,000 of the amount of the benefits secured, 15 percent of the next $5,000 of the amount of the benefits secured, 10 percent of the remaining amount of the benefits secured to be provided during the first 10 years after the date the claim is filed, and 5 percent of the benefits secured after 10 years. The judge of compensation claims shall not approve a compensation order, a joint stipulation for lump-sum settlement, a stipulation or agreement between a claimant and his or her attorney, or any other agreement related to benefits under this chapter which that provides for an attorney’s fee in excess of the amount permitted by this section.

The full text of the bill can be found by clicking here ….

UPDATE ON NEW COMMISSIONERS:
Comings and Goings

May 7, 2009: It appears but one can never be certain until the final swearing in takes place, that:

• Soon-to-be new Commissioner Beloten will take the slot currently occupied by Commissioner Edel Groski (appointed 1998) for a full seven year term.
• Soon-to-be Commissioner Foster-Colbert will fill one of the two vacancies which would give her either three or four years.
• Retiring Commissioner Karl Henry’s slot will go to a third soon-to-be named candidate - see below.

Beloten and Foster-Colbert have both been approved by the Senate Labor Committee and have now been scheduled to appear before the Senate Finance Committee.

Rumor has it that either one or possibly both of the following have their names under serious consideration:

• Jim Eagan, a West Seneca financial executive, who is the County Legislature’s appointee to the Niagara Frontier Transportation Authority, was part of Senate Majority Leader Malcolm Smith’s “transition committee” and is now vice chairman of Smith’s statewide fund raising effort headed by Donald Carey, son of former Gov. Hugh Carey. (Buffalo News).
• Dan Ward, Amherst Town Board member, running for re-election in November 2009, and an unsuccessful candidate in the Democratic Primary for the NY State Senate 61st District seat vacated by the retirement of Senator Mary Lou Rath.

Commissioner Edel Groski Leaving the Board

May 7, 2009: Commission Agatha Edel Groski’s 11 years of service at the Workers’ Compensation Board now comes to an end.

Working out of the Albany District office, Groski brought to the Board a unique combination of legal and medical experience to the Commissioners’ deliberations and was one of the few commissioners who participated, in person rather than video, at hearings all over the State. Using her years of experience at a similar post at the NYS Department of Labor, her familiarity with the appeals process helped with the transition of the Board from its paper filing system to the current computerized ECF/CIS system.

Appointed in 1998 by Governor George Pataki, she worked for the New York State Department of Labor as an Administrative Law Judge for Unemployment Insurance and as a Reviewer at the Appeal Board before her appointment as Commissioner. Mrs. Groski has also worked in private law practice gaining experience in personal injury and family law. In addition to her legal experience, Mrs. Groski has a strong background in health. She worked as Nursing Home Administrator for Eden Park Nursing Home in Cobleskill. She also has an R.N. degree and served as the Director of Nurses for a period of time. Mrs. Groski is a graduate of the Western New England School of Law, Russell Sage College in Troy and Marymount College in Tarrytown. She resides with her family in Cobleskill, New York

Chrysler/Sedgewick Stops Comp Payments to Injured Workers

May 6, 2009 UPDATE: On Wednesday, May 6, 2009, Judge Arthur Gonzales overseeing Chrysler LLC’s Chapter 11 bankruptcy protection proceedings has ruled that the automaker can start taking steps toward selling the vast majority of its assets to Italy’s Fiat Group SpA. The case is In re. Chrysler LLC, 09-50002 and is being heard in the U.S. Bankruptcy Court, Southern District of New York (Manhattan).

Although these proceedings were precipitated by a motion filed by the State of Michigan, it also impacts as noted below on injured Chrysler employees in New York State.

Michigan State Attorney General Mike Cox filed papers (see below) in bankruptcy court in New York on Tuesday, May 5, on behalf of the State of Michigan Workers’ Compensation Fund and Funds Administration. The filing objects to the sale of Chrysler assets to automaker Fiat contending the sale could leave Chrysler unable to make yearly $25 million payments. The State of Michigan worries it’s Self-Insurers’ Security Fund could become insolvent and leave all eligible injured workers at larger companies without benefits.

As noted in my News Alert Tuesday May 5, one of my readers just informed me that their Chrysler employees have been calling attorneys indicating that their indemnity checks were late. Upon investigation, one firm was advised by Sedgwick Claims that payment of these claims in New York State has been “frozen” due to Chrysler’s filing for reorganization under Chapter 11.

One must assume that at some time in the near future, the WC Board will make some pronouncement as to its plan to protect the workers, or did someone forget that, although Chrysler may based in Michigan, they have employees and VOTERS in New York State.

The “First Day” Motion

A “First Day” motion was filed to permit the debtors in possession to continue to pay these claims. The Motion was filed by:

JONES DAY
222 East 41st Street, New York, New York 10017
Telephone: (212) 326-3939, Facsimile: (212) 755-7306
Corinne Ball, Veerle Roovers

And it reads:

Motion Of Debtors And Debtors In Possession, Pursuant To Sections 105(A) And 363(B) Of The Bankruptcy Code, For An Order (A) Authorizing The Debtors To (I) Continue Their Existing Workers’ Compensation Programs And (Ii) Pay Certain Prepetition Workers’ Compensation Premiums, Claims And Related Expenses; And (B) Granting Certain Related Relief.

You can read the original motion documents, undated and consisting of 23 pages, by clicking here >….

Patterson Nominates Two New Commissioners

May 1, 2009: Governor Patterson has named two people to become his second and third appointments as Commissioners for the Workers Compensation Board, nominees who are to appear before the Senate Labor Committee Monday, May 4, 2009.

As previously reported in the Newswire on this site, one of the nominees is Robert Beloten who I have been told is one of the better and hard working administrative law judges from Queens. It will be important to see if his many years of experience in the trenches will have any impact whatsoever on the Board’s policies and practices.

Freida D. Foster-Tolbert, a graduate of Borough of Manhattan Community College, was appointed in 2006 as a CUNY Trustee by Governor George Pataki, for whom who she previously worked as Director for Community Affairs in the state Executive Chamber (where I had the occasion to work with her). Governor Pataki also appointed her to serve on the Harlem Community Development Corporation’s Board of Directors. Leaving that position shortly after the election of Governor Spitzer, she took a position in a non-profit before becoming a manager at the public relations firm of Burson-Marsteller, which provides services to government, corporate, and community clients. Foster-Tolbert holds a BA in Communications, Sociology, and Speech from Hofstra University and received an MS in Corporate Communications from the University of Wisconsin-Whitewater. More information about her can be found on her Facebook page.

Either Beloten or Foster-Tolbert will fill the vacancy created by the retirement of Karl Henry, as reported last week. Whether the other will fill one of the two long-standing vacancies or take over the seat filled by Commissioner Edel Groski whose term, like that of Henry, ended December 31, 2008, won’t be known until and unless both nominees are approved by the State Senate.

NYSIF Chooses New Executive Director

April 29, 2009: The New York State Insurance Fund Board of Commissioners has announced the appointment of James J. Wrynn as NYSIF Executive Director.

A partner in the law firm of MacKay, Wrynn & Brady, LLP, with offices in Douglaston, Queens, New York and Hoboken, New Jersey, Mr. Wrynn’s appointment was approved unanimously by the board at its monthly meeting on April 22, 2009 and became effective the same day.

Mr. Wrynn’ s law firm specializes in the areas of civil litigation and appellate practice with an emphasis on insurance law. Designated as both an Associate in Risk Management (ARM) and Associate in Captive Insurance (ACI), he has an extensive legal background in insurance, counseling agents, brokers, risk retention groups and insurance companies in most lines of insurance and excess insurance, reinsurance, self-insurance and captive insurance.

Mr. Wrynn began his legal career in 1982 in the Manhattan office of McCormick, Dunne & Foley and has litigated cases in the areas of life insurance, accident and health, property and casualty, general liability, insurance coverage disputes, professional malpractice and product liability. Mr. Wrynn serves on the Board of Managers and the Grievance Committee of the Queens County Bar Association, and is a member of the New York and New Jersey State Bar Associations, the New York State Trial Lawyers Association and the Network of Bar Leaders, among others. He also served as a board member of the New York City Economic Development Corporation and the New York City Business Relocation Assistance Corporation.

Why Claimant Attorneys appeal losing cases

April 21, 2009: Sometimes when reviewing a case that is before us, either in our work queue or in oral argument, the commissioners would ask each other, “Why is this case on? It’s a loser for sure.”

One explanation can be found in an April 21, 2009 decision issued by the Appellate Division 2nd Judicial Department: the Court heard and then dismissed an action by a pro-se claimant to recover damages, inter alia, for legal malpractice by his workers compensation attorney.

The attorneys did everything by the book but the evidence was not there to support the claimant’s case, which claim was denied by a law judge, a board panel, and a Full Board Review. His attorneys then gave the claimant an option to proceed at the Appellate Division, which according to their retainer agreement, was not a service they provided.

As a result, in addition to losing the case and thus receiving no fees for their work (part of the risks claimant attorneys take all the time), this firm was saddled with the additional costs of hiring a defense at the Supreme Court and then, after winning there, having to hire defense at the Appellate level. As the Appellate decision was unanimous, it is unlikely that the claimant/plaintiff will be able to pursue this at the Court of Appeals.

So when someone wonders why some claimant attorneys pursue appeals on an obvious losing cases, this is why. And it is not the only one. The Appellate Division, First Department On October 21, 2008 also issued a dismissal of a complaint of malpractice in the Matter of Silverman v Reisman. And there is another similar and equally unworthy case now wending its way through Supreme Court in New York, which after several adjournments has its first hearing set in June.

The case decided April 21, 2009 can be found on the DECISIONS page and the pro-se claimant’s name is James R Turner, III.

CA. Workers’ comp ‘reforms’ failed to protect workers

April 20, 2009: As reported by Todd McFarren in today’s issue of Capitol Weekly, “The newspaper of California government and politics”, reports that five years after passage of Gov. Schwarzenegger’s SB 899, the evidence is clear that the law has failed Californians who are injured on the job.

While SB 899 has delivered billions in savings to employers and tens of billions in record-high profits to insurance companies, it has plunged tens of thousands of working Californians into pain, misery, poverty and despair. Since SB 899 was implemented by the Schwarzenegger Administration, Californians injured at work receive among the lowest disability compensation in the nation. If an ear, hand, leg, eye, or foot is lost in a workplace accident, Californians receive a pittance compared to other states and even the average of U.S. states.

Just one example tells the story. According to the U.S. Chamber of Commerce, loss of a hand at work is valued at $249,000 in Iowa, $162,000 in Oregon, $238,700 in Illinois, $134,000 in New York, and just $79,000 in California. That is the total compensation injured workers receive for the lifetime loss of that hand. They can’t sue for more. The Schwarzenegger Administration places lower value on your body than virtually any other state in the nation. This is what the governor touts as his signature success. It begs the question, “Success for whom?”

It is folly to believe insurance industry claims that the reforms are no longer reducing costs. Statutory limits on physical therapy and chiropractic treatment are still in place, medical treatment authorization requests are still judged against nationally developed treatment guidelines and are subject to utilization review, outpatient facility fees are still subject to the Medicare fee schedule, injured workers can still receive a maximum of 104 weeks of temporary disability, penalties for unreasonable delay are still minuscule, and permanent disability awards are still subject to apportionment.

To read the full article, click here ….

Retroactive ATF Deposits are Legal

April 22, 2009: As mentioned in the NEWSWIRE of April 10, 2009, a motion had been filed with the Appellate Court on a case in which a Board Panel, with one dissent, had determined that mandatory payments to the Aggregate Trust Fund (ATF) can be retroactively applied. That motion had been withdrawn at the request of all parties because the Board had scheduled a similar case for Full Board Review. In fact they had a total of 84 such cases.

At the Full Board Meeting Tuesday this week, the Board, with one dissent, affirmed that the mandatory payment to the ATF, included in the 2007 Amendment to the Workers Compensation Law, could and should be applied retroactively.

The lead case on which this decision was made is WCB#0012-4050 (NY Presbyterian Hospital).

However, no final decisions have been issued because of the manner in which all Board decisions are done and it is possible that the last of these decisions will not be formally issued for anywhere from 4-6 weeks (unless the Board reads this NEWSWIRE.) In those cases decided at the Full Board which require a final rewrite, the revised decision is entered into the work queues of the panel of three commissioners. If that is true with any of these cases, once it is in the work queue, it must be signed by all three of the members before it can be filed. And since some commissioner like to sign their cases only every few weeks, the ATF case in their work queue, like all the other cases they have, will languish until such time as they have a few minutes in their personal schedules to attend to their work.

If there is no change to the original MoD, then a form letter would be sent out by the Office of the General Counsel and those are usually done relatively quickly.

My experience has been that on some substantive issues, and this certainly should be one, even though the Full Board is affirming the individual panel decisions in all 84 cases (I am just assuming this as I do not have access to the other 83 cases), the Board would rewrite the decision to clarify its position on the issue under appeal, knowing that the case(s) would be going to the Appellate Court. And I know from talking to one carrier’s attorney that at least one of these decisions will be appealed.

Coincidentally, there were a number of other ‘bulk’ decisions made at the Full Board Meeting Tuesday. There were 11 cases on WCL §142 which I was told have their basis in a WCL §25-a issue (WCB #0031-4672, 0072-4430, 0995-1776, 2050-6812, 4030-3134, 6010-8531, 6880-5120, 6911-1903, 6940-1126, 6980-4047, and 6980-8732) as well as three cases brought individually under WCL §23 (WCB #5070- 8085, #5060-6061, #0074-8821) which is the same section of the law under which the 84 ATF cases were listed.

But as I have no access to the Board files, I am at this time unable to give any details of what was done and why. Any information, attributed or anonymous, would be appreciated.

Up-Date on Colorado’s Insurance Fund Raid

April 23, 2009: Just off the phone with a contact in Colorado regarding the currents status of that state’s Legislature’s attempt to confiscate the $500M surplus funds held by Pinnacol Assurance, its equivalent to our State Insurance Fund.There were a number of parliamentary procedures that delayed the passage of the bill long enough for the Legislature to come to its senses and not pass it. In its place, the Legislature is now considering a bill with two parts: 1) provisions for performance and financial audits to be conducted by the state auditor and paid for by Pinnacol and 2) an interim committee to study the Colorado workers’ compensation system and Pinnacol and make recommendations on future operations. Unfortunately, in New York, there is a precedent for raiding New York’s State Insurance Fund: Governor Mario Cuomo was successful in getting the Court to agree to allow him to ‘borrow’ a billion dollars for the fund on that promise that if ever needed it would be repaid. We’re still waiting.

Commissioner Karl Henry to Retire

April 22, 2009: It is with very mixed feeling that I confirm the upcoming retirement of my good friend and a great Commissioner Karl Henry, effective the end of this month, formally announced by him at the April 22, 2009 Full Board Meeting in Albany.

Karl is the last of the four Horsemen of the Apocalypse, as some called us. He was the second appointee of Governor Pataki, joining the Board in April 1995, the same day as Vice Chairman Jeffrey Sweet. Along with Commissioner Carol McManus (1996-2005) and myself, all under the leadership of Chairman Robert Snashall, we were charged with the responsibility of not only rendering fair and expeditious decisions but also helping bring the Board into the computerized world of the 21st Century.

Although Karl resided in Buffalo, he was willing to take on more than his fair share of traveling such that he became, for all practical purposes, the resident commissioner in Queens for §32’s and a frequent visitor to Brooklyn, where he joined me on innumerable panels hearing oral arguments.

For those of you who had the pleasure of appearing before Karl, I am sure you will miss, as I did when I left the Board, the pleasant banter when talking to him but applaud the seriousness with which he dealt with every case and issue that came before him.

As his 13th year as a commissioner brings to an end his career at the Board, I take this opportunity to say: Thanks for everything and best wishes.

New Commissioner(s)

April 23, 2009: Now that Commissioner Henry has formally announced his retirement, it is time to bring to the fore all the rumors that have been circulating regarding new commissioner appointments. There are currently, excluding the vacancy to be created by Henry’s retirement, two very old vacancies dating back a few years. And there is one commissioner, Edel Groski, whose term of office ended, as did Henry’s, on December 31, 2008.

To date there is one name that has surfaced as a new and probable appointee: Queens Administrative Law Judge Robert Beloten, supposedly an old college buddy of Governor Patterson. It has also been rumored that there is, and always has been, a long list of potential nominees supplied by every country chairman and major contributor and union. This would be no different from the days of the Pataki administration, although at that time other than maybe Local 1199 in the later years of his administration, there would have been no union recommendations on Pataki’s lists.

Now that the State Senate is back after the Easter recess, it is only a matter of time before Beloten’s name and those of others appear on the hearing schedules for the Senate Committees. Normally, the nominee is first interviewed by the Labor Committee, then by Finance, and finally to the full Senate. But this can all be done in one day, so on occasion the names of nominees do not appear on the Senate Hearing Schedules until the day or afternoon of their confirmation hearings.

What will be most interesting is if Patterson will fill all four slots. Two have been vacant for over two years. Nonetheless, the remaining commissioners have less work than ever: no more §32 hearings and the oral arguments are down to one or two panels a month as compared to the 6-7 when I first came to the Board. In fact there is so little work and with telecommuting and signing cases only once or twice a month, it is easy to see why some commissioners travel (live?) out of state and one can even be found overseas quite frequently. So unless more REAL work is given to them, why fill the spots? (See the news article that follows.) A $5 ink stamp saying APPROVED would do as well if not better than some of the current insouciants: it would always be at the ready to ‘sign’ a decision.

So with all the job cuts Governor Patterson is instituting statewide and his request that the Board eliminate 92 jobs, perhaps keeping two of the Commissioners spots vacant at $90,800 a year and keeping for example two reporters and still saving money, would make sense. Then again, since Patterson has not ruled out running for Governor in 2010, filling four highly sought-after commissionerships may endear him to a few county chairman sufficiently to gain their support in what may be a bruising Democratic brawl for the nomination.

“Minimum work” Judge Censured

April 16, 2009: The LA Times reported a story from a state judicial watchdog group that a Riverside County judge who was censured for working only a few hours a day has agreed to resign with a pledge to never work again for a state court. The San Francisco-based Commission on Judicial Performance publicly censured Riverside County Superior Court Judge Christopher J. Sheldon, 60, after determining that he routinely left court before noon for nearly two years without authorization or notifying his supervisors. Occasionally another judge handled Sheldon’s work in his absence, the commission found.

“Judge Sheldon has demonstrated a flagrant disregard for his obligations to his fellow judges, the public and the reputation of the judiciary,” the commission said in announcing Sheldon’s censure.

I don’t know if the NYS Workers Compensation Board has its own judicial watchdog group, but is does have WCL §147.

The original notice of the inquiry can be found at http://cjp.ca.gov/userfiles/file/Notice_FP/Sheldon_NFP_1-09-09.pdf

Colorado Raids its own ‘State Insurance Fund’

[ED.NOTE: KKTV 11 Colorado Springs just reported late Wednesday that at the last minute the Colorado State Legislature has backed off its plan to present the bill to the Governor. No reason has been given. But this story is being included here as a warning to the carriers in New York that they had better be prepared lest our legislature pass such a bill and NOT change their minds, for the recipients of NY’s Legislature’s largess are far stronger in fighting for their (really our) money than their counterparts in Colorado.]

April 16, 2009: The Colorado State Legislature has this week passed a new bill SB 281 which allows them to tap into the surplus funds held by Pinnacol Assurance, Colorado’s equivalent of the New York State Insurance Fund.

Pinnacol President and Chief Executive Ken Ross (formerly Executive Director of NYSIF) called this an ‘unconstitutional raid’ on the fund’s assets. In 1991 Colorado passed legislation making the insurer a quasi-public authority but the newly passed legislation changes that status. Ross also noted that Colorado’s attorney general accepted a legal opinion from the solicitor general “stating that a plan by Colorado lawmakers to raid Pinnacol Assurance assets is unconstitutional and impairs a vested interest our policyholders have in Pinnacol’s assets.”

Senator Brandon Shaffer (D-Longmont), a sponsor of the bill justified this ‘raid’ stating, “We still have a huge hole in our budget and are in a position where we may need to cut $300 million from higher education. That is simply unacceptable. Pinnacol Assurance is a division of the state. It pays no taxes and its massive surplus can be better spent on higher education in Colorado.”

As reported here in our March 20, 2009 Newswire, Connecticut considered raiding its surplus WC funds to balance its general budget. Colorado has now done it. Considering our own Legislature’s proclivity for developing new methods of converting (taxing) other people’s monies into funds for their own pet projects and those of their favorite lobbyists, how safe are the funds at SIF, or the UEF, ATF, or the Second Injury Fund, etc?

Carriers face $1000 per diem penalty on WC/Medicare

April 16, 2009: As reported April 15 2009 in Mondaq by John Cerilli and Ryan Grenn, beginning July 1, 2009, many employers and insurance companies will be required to report claims for workers’ compensation claimants that are also Medicare beneficiaries to the Centers for Medicare and Medicaid Services (CMS) and become subject to a $1,000 per day per claimant penalty for failure to comply with this mandatory reporting requirement.

While in theory this makes sense, does this not require that the injured worker alert the employer and/or carrier to the fact that he/she is already enrolled in Medicare? And if the claimant does not notify them, is the claimant subject to a $1,000 a day penalty?

As John Rummel stated, “In theory, theory and practice are the same. In practice, they are not.”

WCB Has no response to the NY Times

April 16, 2009: As noted earlier in this site, it seems that no one from the Board has yet to reply to the three articles in the New York Times about “A World of Hurt: the New York State Workers Compensation System”. And while some have been critical of the Times from using the following edited quote from Chairman Zachary Weiss on the front page of the Times , “There are millions of things I would like to correct . . . and I can’t.”, Chairman Weiss’ only public statement has been his April 6, 2009 remarks to the State Senate Labor Committee, as reported in several upstate Gannet newspapers.

The state Workers’ Compensation Board has reduced the waiting period for disputed claims and appeals but has more progress to make in this and other areas, the head of the board said Monday. “I think what’s very, very clear that’s happened in the last year is that we’ve implemented streamlined adjudication standards,” Zachary Weiss, chairman of the board, told the Senate Labor Committee. As a result, the waiting period for disputed claims is much shorter, he said.

For the record, Chairman Weiss’ quote on the front page did leave out one word. The complete quote, further down in the article, was, “There are millions of things I would like to correct immediately and I can’t.“

Bar Group Creates Model Code for NY’s Administrative Law Judges

April 15, 2009: The New York State Bar Association has created its first-ever model code for administrative law judges, hearing officers, referees and others who interpret and apply laws and regulations for New York state agencies. The new ethics canons, five in all, were developed over the past two years by the State Bar’s subcommittee on the Administrative Law Judiciary. Approved without opposition by the Bar’s executive committee and the House of Delegates during the group’s April meeting in Albany, the model code will be submitted to state agencies and the Legislature for their proposed adoption.

Currently only one state agency, the Workers’ Compensation Board, has a model code in place for its administrative law judges (ALJs), though most agencies have rules against law judges engaging in conduct that creates potential conflicts of interest.

And when will they do them for the Commissioners? Like setting some minimal work standards. There is a rumor that one commissioner, one of the insouciants, has over 200 unsigned cases on their computer. Maybe someone should post this person’s name so that the 200+ claimant waiting for a decision know what is holding up their lives for a few weeks while the commissioner in question pursues other activities.

The WCB Formally Defines Independent Contractor

April 14, 2009: As noted in the March 20, 2009 Newswire, the Oligarchic Cabal at the Board had taken upon itself the legislative prerogative to define an independent contractor in the Bulletin it prepares for municipalities when they do outsourcing.

The Cabal has now taken that prerogative one step further by including this definition in its website under Definitions of Terms.

As noted in the March 20 Newswire, the plumber who comes to your house to install a new sink or tub meets the definition of being your employee as are any assistants he may need to do the work. So probably is the painter and most of the other contractors you used to think were ‘contractors’ but the Oligarchic Cabal in its infinite wisdom knows these workers are really your employees for whom you are trying to avoid responsibility.

It will be interesting if any of the Commissioners (the ones who read the MoDs since the insouciants probably do not even read this website) or Law Judges, until now, were unaware of this change and whether or not they, or even the Appellate Court, will pay any attention to it.

Consumer Reports: Relief for Aching Backs & 173 Fixes

April 9, 2009: In its May 2009 Article, Consumer Reports states “About 80% of U.S. adults have at some point been bothered by back pain.”

They surveyed more than 14,000 readers. And the consensus was that “58% who tried chiropractic manipulation said it helped a lot.” Second at 55% were physical therapists and, in third place with 53%, acupuncturists. They also did a survey of an additional 10,000 readers who had had back surgery within the past five years. The results can be found in the May 2009 issue.

While this article has a lot of interesting information, there is another excellent article in The Spine Journal’s Volume 8 (2008) 1-7. Titled “A supermarket approach to the evidence-informed management of chronic low back pain”, the article also contains a chart of 173 modalities of treatment for back pain, from over-the-counter medicines to therapy to surgery.

I was told about this journal at a clinic run by Dr Lewis G. Maharam, MD, FACS Medical Director, of the New York Road Runners and The New York City Marathon. Unfortunately, there is no more access to the article or the modality chart on the web site of this journal, a division of ELSEVIER who is the world’s leading publisher of science and health information. However, I do have copies of the table and some of the medical information from the article. In April of 2008, I had sent these to Chairman Weiss suggesting that he invite Dr Maharam to address either the Commissioners and the writers at ARD or the Law Judges on this topic which effects about 20% of the injured workers seen at the Board. If you would like copies of either, please send your request to TheInsider@InsideWorkersCompNY.com.

ATF Case Sent Back To The Board

April 9, 2009: A motion to appeal was made to the Appellate Division on an ATF case regarding the legality of retroactive application of the new funding requirements. The Court stated that the Board must consider all the facts in the case before a proper decision can be rendered. However, this case is not in the DECISIONS page because no formal decision has yet to be issued by the Court. Full details should be available in this site next week.

Gov Patterson: WCB Must Cut 92 Jobs

April 9, 2009: In a recent press release, the Governor Paterson announced that among that staff cuts that he expected each agency to make are 92 cuts to be made at the Workers Compensation Board. The decision as to which jobs will be eliminated will be made by the Oligarchic Cabal and are expected to be announced shortly. It will be interesting to see if they fill the two commissioner vacancies in view of the fact that they have been empty for a number of years and the current commissioners’ work load gets less by the month.

Do Those 92 Jobs Belong to the Reporters?

April 9, 2009: Although this story was first published in February 19, 2009 in a self-promotional piece in the Internet by escribers, it is only now being put into this web site as, until now, there has been no independent verification that the Board was planing to replace live court reporters with electronic equipment.

It is now a plan that is being put into place.

Since there are about 50-70 court reports currently employed by the Board, will the elimination of these jobs made up most of the 92 cuts? The fact is that according to the press release from escribers, the firm who claims that they are already working at the Board, the equipment to be used will require a human to monitor it. So it looks like the 92 jobs may well be outsourced. And eventually, the electronic records will have to be transcribed. Will these also be outsourced? Out sourced outside of New York? Outside the U.S.?

According to the press release,

Electronic reporting uses professional-level audio recording systems to register court proceedings. For over thirty years it has been a successful reporting method in federal and other jurisdictions. The United States Supreme Court employs E-Reporting exclusively to capture and preserve its historic public records.

E-Reporting includes two elements: first and foremost, the electronic court reporter who oversees the process and who may be responsible for a subsequent transcript, and secondly, the sound recording equipment itself.

The electronic reporter faces certain challenges, especially when assigned to a remote location that is not equipped for electronic recording. The reporter may only have a few microphones and may not be able to adequately record people far away from the microphones. Before the proceeding begins, the e-reporter will explain to the participants the logistics of the microphone placement and request that they get close to the microphones to speak, but once the proceeding starts, the e-reporter will not interrupt unless absolutely necessary. It’s important that the electronic reporter not become part of the transcript. The electronic reporter should be a “fly on the wall”.

Speaking for myself, how do you deal with someone calling in on the telephone? How do you deal with a translator in the room, particlarly if it is a simultaneous translator? Who will tell everyone in the room to “SHUT UP! I can only listen to one person at a time.” Or, “Would you mind slowing down so I can understand what you are saying?” [NOTE: Those complaints by live reporters were warranted.]

Stay tuned.

The New York Times Articles

April 2, 2009: By now everyone knows about the three articles in the New York Times about the NY State Workers Comp Board, written by Steven Greenhouse and N.R. Kleinfield and I assume that most of you have read them.

• March 31, 2009 “For Injured Workers, a Costly Legal Swamp”
• April 1, 2009 “Exams of Injured Workers Fuel Mutual Mistrust”
• April 2, 2009 “System to Resolve Workplace Injury Leaves Ill Will on All Sides”

You may not be aware of the fact that these articles generated about 125 to 150 blog comments each, from people as varied as the eminent Professor John Burton of Rutgers, whom I often quote, to doctors, adjusters, lawyers from both sides and angry claimants and employers.

As to whether or not the Board is listening will be the subject of Monday’s poll.

Our Current Poll on §32’s

April 2, 2009: The results so far are quite unexpected in terms of who should do the §32’s as well as who is answering the poll. The results will be published Monday so you still have a few days left to vote at POLLS.

National Workers Comp and Illegal Aliens

April 1, 2009: Call them ‘illegal aliens’ or ‘undocumented workers’ or anything else, their presence in the workers compensation system has impacted all 50 States.

For those who need a quick guide to how New York State’s handling of claims by this category of workers is handled as compared to the other 40 states, you need only go to a study that was prepared by the Independent Insurance Agents and Brokers. There is also a chart that has been prepared by state. It lists the major statutes or regulations that cover illegal aliens as well as major case law and a commentary overview. I was pleased to see that the case I often cite (because I helped write it), Ramroop v Flexocraft Printing, is the only case in their chart of all 50 states that has a link to the actual decision.

A quick review of the chart seems to indicate that on a scale of 0 to 100, with 0 being Wyoming which appears to include only ‘legally employed’ aliens to a 100 for the states that treat them 100% equal, NY would rank about a 40 to 45. It Is noted that some members of the North Carolina legislature want to block all benefits as has been done in Wyoming.

For a look at the chart itself, click here…

Skydiving and Comp Awards

April 2, 2009: The Schenectady Daily Gazette reported that a Hudson Falls man who collected $83,000 in workers’ compensation benefits by claiming a back injury prevented him from working was arrested after investigators found that his reported injuries didn’t stop him from skydiving.

It reminded me of a case, in which I was in the dissent, for someone claiming a back injury which I felt was highly suspicious since he said immediately after the accident, and there was an OSHA inspector there, that he had no injury. But he did file a claim the next Monday for a serious back injury which required him to go to the emergency room the prior Saturday afternoon. At Pre-Board for this mandatory FBR, the tentative vote was 12 to 1 to allow the claim. But the next day, after combing through about 80 to 90 pages of medical reports, I quoted from the discharge report, “Injuries have healed sufficiently that patient can return to his weekend hobby of skydiving.” The 12 changed their votes.

Will a §25-a Case go to the Court of Appeals?

March 26, 2009: After losing a decision on §25-a in the case of Lauritano & Consolidated Edison Co. Inc v Special Funds, the Fund has sent a letter to the Appellate Court asking for the Appellate Court, which on February 5, 2009 unanimously affirmed the Board’s finding that §25-a applied, to either reconsider its decision or for its permission to proceed to the Court of Appeals. All papers have been submitted as of today’s date and a ruling on this motion is expected shortly.

Because of the number of other legal issues effecting the Special Funds, a case such as this may have significant financial impact on the losing side so it will be interesting to see what happens. So, for those who had expected a quick white flag from the Fund on such cases, they had better be prepared for a few more weeks of waiting time until the 3rd Department decides what to do.

I also understand that a motion has been filed on an ATF case but, as of now, I have no details. This may be an even more portentous case because of the ongoing fight, even within the Board, as to the real intent of the Amendment of 2007.

Value of Structured Settlements Jumps by 25%

March 25, 2009: Amanda Bronstad writes today in The National Law Journal that the total value of structured settlements jumped by 25 percent during the fourth quarter of 2008, compared to the previous quarter.

Randy Dyer, a consultant in Rockville, Md., and former executive vice president of the National Structured Settlement Trade Association, stated that this occurs in times of financial turmoil, such as in 2000 and 2001. “With a cash settlement, a poor investment could obliterate a plaintiff’s income from the lawsuit . . . The tendency in tougher economic times is to start thinking: ‘What is the securest way I can take care of myself and my family?‘”. Apparently the answer is a structured settlement rather than lump sum which the injured workers can invest ..where?

My question is: “What will this mean for §32’s?”

The Board has a new Database

March 25, 2009: Since 1997, a year after I joined the Board, I complained to the legal staff about the lack of any database with which we as commissioners could review prior cases for reference. In 2000 or so, they developed a system called MOD SEARCH which I describe in my book, Behind The Closed Doors, as useless at best, while offering them my own expertise to develop a real database.

They also had a list, in another database, of Appellate Decisions sorted by date and you had to click on each one to see the issue with which it dealt.

For years I told them that I had already written both a database which complied this information by issue, date, case name, etc., as well as a case handbook which listed both relevant Board decisions and Appellate Court decisions, within two days after they were issued.

I am pleased to learn that the Board has just recently introduced such a feature which they call called “The Source”. It is a subject matter search and it is not limited to MOD’s. It also contains Appellate Court and Court of Appeals case references. I am told that it is a good, quick search but does not eliminate the need to go to Lexis if more detail is required. Depending on how current they keep this database, the result may be a few more consistent decisions.

But, and this is not only true for the Board but also for some of the attorneys who have appeared before me at Oral Arguments or in written appeals, a citation should only be used after it is read in its entirety and not be based on a quick summary. As I recounted in two cases on page 142 of my book, the failure to read the entirety of the case but simply its summary can result in a lost case, if not also a rebuke from the Court.

But a TIP OF THE HAT to the Board for this new resource.

The Board does have new Law Judges

March 18, 2009: The Board has just announced the appointment of two new law judges in New York City, one for Manhattan and one for Brooklyn.

After having served as a conciliator for eight years in Manhattan, Rohan Marshall has been moved up to the position of law judge in that same office.

And as a further clarification of last week’s Newswire, it is John Laughlin who was, like Keith Longden still is, a senior attorney in the Office of General Counsel who has become Brooklyn’s newest law judge.

Gentlemen, welcome to the trenches and good luck.

Autopsy Barred in Asbestos Death Claim

March 18, 2009: A New Jersey Appeals Court has denied the defendants the right to an autopsy of the worker who died of allegedly asbestos-related causes.

The judges in the case of St. John v Affina Group, which includes Chrysler Corp. a