Last Week’s Poll: The Rocket Docket
Is It Fair? Is It Working?
Is it fair or does it favor one side and if so, which one? And you said:
42% said it is equally unfair to both.
37% said it favors claimants over carriers.
16% said it is fair to both sides.
5% said is favors carriers over claimants.
The second part of the poll asked if the Rocket Docket and the new forms are working?
50% said no.
31% said it is too early to tell.
15% said it is working.
4% had no opinion.
And then there were some comments.
A number of people thought that the new C-4 forms were far too complex and, contrary to their intended purpose, sometimes slowed down cases because they were either not done at all or incomplete in the important parts. One participant wrote, “Information cannot be gathered quickly in many cases. C7 cases have a life of their own, and they follow the same path as pre rocket docket, except now with added stress, diarying, committee meetings and lengthy forms to complete.”
But perhaps the most telling comment was:
Again, it all depends on your definition of “working”. Does it mean that judges are reaching decisions quicker? (Under this definition, it probably is working.) Does it mean that fewer decisions are being appealed, or that fewer decisions are overturned on appeal? (Under this definition, it probably is not working, but I don’t have the numbers to know for sure.) Does “working” imply that a higher percentage of legitimate claims are being established and established sooner? (Under this definition, it probably is working.) Or does it mean that a lower percentage of fraudulently raised claims being established? (Under this definition, it probably is not working, but there is really no way to know.)
Based on the vote and the many comments that were included, it seems that while everyone seems to think that the ‘old’ system was too slow, the majority of people think that the new system still needs a lot of work. As to the forms, it seems that the majority feel they are not practical and do not help except in easy cases in which case the old forms and system would have been just as good.
The Board in the last two years has emphasized the number of cases it closes. But only those who practice at the Board really know what that means: there are no more outstanding issues, not that, as in civil court, the case is ‘finished’. So if there is something missing, rather than adjourn it to allow the parties more time to resolve something, the case is just ‘closed’, only to come back again for new hearings, but only after more delays and a great deal more paper work needed to reopen a closed case. As a commissioner, I and some of my fellow commissioners were occasionally taken to task for adjourning an oral argument or §32 settlement for a week or so, so that some minor problem could be ironed out and we put the case back on the calendar for the next hearing date. The ‘powers that be’ preferred we close the case as closing it kept the ‘open case’ numbers down.
I guess that behind the secure ramparts of the Park Street office, it is easy to make a claimant wait a few more months in order to get better statistics to show off but let them come down from the ivy towers to the hearings and tell that to a claimant to his face. As I noted in my book, “while the needs of 10,000 injured workers year are important (that is the average number of §32’s done each year), the needs of one person at a time 10,000 times a year is also important.” Where Park Street sees 100,000 cases, the commissioners and judges see ‘the claimant’ 100,000 times.
In talking to the practitioners and reviewing these and prior polls, it is my impression that the bureaucrats’ goal for the Rocket Docket is not to speed up the resolution of the cases for the benefit of the injured workers and their employers but to make the statistics prove that the Board is working better than ever, as the bureaucrats use these stats as stepping stones up the bureaucratic ladder to more prestigious, power-laden, and higher paying jobs.
It will be interesting to see what the next new chairman does with the Rocket Docket. My initial sense is that a Chairman Libous would push it further and a Chairman Beloten would fix it. We shall see.
June 8, 2009/te
The Poll: Who Said That?
Our May 25, 2009 poll, because it was a short week, asked a Trivia Question as to which public official made the following statement and then didn’t file income and payroll taxes, or WC premiums:
“I’m a corporation, I employ a bunch of people. I love corporations that play by the rules, and we have to make them play by the rules.”
So either the half of you are well-read or you know how to Google because exactly 50% correctly picked Minn. Senatorial Candidate Al Franken as the miscreant. 36% selected NY’S own, Congressman Charles Rangel, who made not have Paid or filed his taxes but simply said, “Who, me!. It’s my accountant’s fault.” And 14% picked U.S. Treasury Secretary Tim Geithner, possibly to justify their own tax planning for 2010.
Next time we’ll make the quote harder to find.
June 1, 2009/tv
Poll: Are more Commissioners Necessary?
Our May 18, 2009 Poll asked In view of the fact that (1) the commissioners no longer do §32’s, (2) rarely travel but do hearing by video, (3) the number of oral arguments has dropped about 70% or more in the last few years while the number of Memorandum of Decision has remained constant, and (4) every agency is being asked to cut back on expenses, is the expense of filling the last two vacancies on the Board appropriate? And two of these vacancies have been around for a few years and the reduced number of commissioners (11 including the Chairman) did not appear to affect the quality of their work.
And you replied:
38% leave the spots vacant for the next year or so.
25% fill the posts to help offset the 6 Republicans & 1 Conservative still on the Board.
25% Other
21% Fill the spots because the law allows (but does not mandate) 13 board members.
Based on the other comments which accompanied some of these votes (multiple choice) as well as some of the e-mails which I have received, 63% (38% + 25%) see to feel that the commissioners are not just worth the money, particularly with all the budget cuts being done and the additional ones being sought. However, a few of the comments seem to be very specific, indicating that there has to be something done to make sure that the commissioners who have been appointed actually do their work.
I can not add any more to that impression beyond the 100 or so pages devoted to the commissioners, both the engaged and the insouciants, noted in my book, Behind The Closed Doors.
For those who favor adding two commissioners just more than half (25% of 46% {25%+ 21%}) have a political reason for the appointments and the balance (the 21%) feel that since the Governor has the right to fill the slots, he should. My sense is that these people feel that the Pataki appointees were anti-claimant and the two new ones are needed to help bring the Board back to understanding the goal of the agency and it supporting legislation: helping injured workers.
Now as one of those Pataki appointees, I would not agree with that analysis but can tell you that once a Democrat became governor, a few of the insouciants suddenly too a strong pro-claimant stance on issues in the expectation that a Democratic governor would look kindly on their need/desire to get a re-appointment. (Fat Chance!) In fact, after Pataki came into office, I was told that a few of Cuomo’s appointees switched philosophical horses in mid-stream, too. But be that as it may, most people feel that Democratic appoints are more inclined to support claimants than are Republican or Conservative Party appointees.
In actuality for nearly half the commissioners, their political views have no meaning because they are the insouciants who do not read anyway but let the civil servants in the OGC write everything, with their opinions only occasionally coming into play at Full Board Reviews.
So we have a sort of 50-50 split. Perhaps the split is between the pragmatsis (save money) and the idealists (change the Board’s philosophy).
May 26, 2009 TS
Poll on Electronic Transcription
This poll had been done at the request of a number of my readers on a subject that is quite important to them: electronic transcription of the minutes. It was in my April 10, 2009 NEWSWIRE that I reported that Governor Patterson has asked the Workers Comp Board to eliminate 92 positions, referencing a story from a firm called “escribers” who do electronic recordings of hearings. According to e-scriber, “E-Reporting includes two elements: first and foremost, the electronic court reporter who oversees the process and who may be responsible for a subsequent transcript, and secondly, the sound recording equipment itself.” Therefore, we asked what should the Board do at this point in time. And the responses were:
- at 70% Cancel this project.
- at 22% First discuss this with the staff & attorneys.
- at 22% Explain the reasoning behind this.
- at 13% Do some sample hearings.
- at 13% Other.
- With 1 Vote: Continue with this project.
A further analysis showed that while 70% wanted the project canceled, there was a split in this group. 53% chose only to close the project. But 27% who wanted the project canceled also had other suggestions.
22% of the responses requested that the Board first explain why this change was being made with a number of them, as noted above, seeming to indicate that without an explanation from the Board the project should be canceled. Another 22% requested that the board run some tests, including having live reporters randomly come in at the same time as the eletronic transcription is being done and let the result be compared. But a number of them seemed to indicate that, without some sort of comparison testing, perhaps on an ongoing basis, the project should be canceled. 13% simply chose the option of doing the testing.
And there 13% who also chose OTHER in order to add some short comments. The two long comments, posted last week, are noted below. Among the most interesting was the recommendation that the deponent must certify the transcription for accuracy. And while at first glance this made sense, on reflection it does not. In a hearing when the proceedings include two lawyers (at a minimum) and a law judge there will have to be three people who would review the transcription for accuracy. And if it is a hearing in front of commissioners on a complex issue with the claimant and a translator, there could be as many of 10 parties who would have to confirm the accuracy. Based on the many minutes I have read of hearings in which I was a participant as a commissioner, even as simple as some of the §24-a and §50-3b/d interviews, I can speak for everyone when I say these are not always 100% accurate. If deponents were asked to certify the accuracy, we would need another adjudicative system the size of the WCB to do that.
Which comes back to a key point made by 47% of the poll participants*. What is the reasoning behind this plan? Perhaps like the proposal to have deponents certify the accuracy of the electronic transcription, at first glance electronic transcription makes sense. But upon refection (and listening to others), some ideas good at first glance do not survive the light of day. This plan may well be a good one but until the Board communicates with the participants in the system, no one will know.
Oh, yes, There was the one person who voted to keep the plan going. Perhaps that is a member of the WCB who will get a promotion and raise to help manage the new system!
The longer comments on this poll are:
As anyone knows who has ever sat in on a hearing, sometimes it turns into chaos with everyone talking at once and over each other. Even if the Chair sat in on one (or even a few) he could not have any conception of how hard it is for the reporters to sort out the contents. They are pros. I’ve experienced so many occasions where the reporter speaks out, “Hold it!” “Please slow down.” or “Who said that?” I’ve responded to practitioners and claimants alike, “Answer the question because without the transcript, this hearing is going nowhere!” If everyone had a separate microphone, everyone spoke in turn, and everyone was respectful of one another (a miracle!) it would work fine. Short of that, it’s another pipe dream to save money.
And
The e-Reporter system has been in effect in Social Security hearings for decades. It’s a disaster. The courts have learned to disregard the testimony because, simply, people don’t talk that way. The transcripts are a very bad approximation of what was said. Often the e-Reporters just make up whole sentences. They are a source of corruption. The contract goes to someone’s relative who hires minimum wage third-worlders to do the transcripts. Misspellings show that the transcribers are not native speakers. The judges will be sweating bullets. They often manipulate the record with a live reporter, insisting that whole sections be turned into oblivion - even hours after a hearing. A skilled attorney can drive them nuts if he/she knows the comments cannot be eliminated.
*[ED. NOTE] The 47% comes from the fact that 53% made only one choice, to ‘cancel’ where as 47% (less that one vote ‘to continue’) wanted more information and/or tests.
May 18, 2009 TF
Sharing Board Statistics
Our poll posted May 4, 2009 related to the collection and sharing by the Board of statistical data regarding decisions by issue.
The Board codes each Memorandum of Decision (MoD) with one or more three-digit issue codes, issue codes which should be used to publish information to the community. As the number of cases on a particular issue increases and in particular when the Commissioners reverse, rescind, or modify a judge’s decision on any one of these increasingly frequent issues, it is a sign that everyone needs to pay more attention to the issue and set some minimum indicia to cut back on not only the number of cases being litigated but, when it occurs which is not infrequently, to minimize inconsistent and contradictory decisions.
Since the Board should have this data (it is certainly more important than how many keystrokes an examiner does a day), should this information be published to help practitioners on both sides get a better understanding of key issues and how the Board deals with them? And, for the Board who will argue that there are over 130 issue codes, I suggest they do 30 each month as many are closely related. The question was:
With the Board’s ability to develop these statistics, should the Board …
The results of the poll were:
- 50% Issue a yearly analysis of the numbers
- 33% Issue a monthly analysis of the numbers
- 27% Ask the practitioners if there are any specific data they need
- 22% Other
- 13% Keep the information internal for Board use only
(Please note that because this was a multiple choice, the total exceeds 100%)
So we have 83% (5 out of 6) who would like the Board to publish the information, either annually or monthly, whilr another 27% said the Board should ask the practitioners which information was important.
13% said the Board should keep that information for their own purposes and interestingly did not have any comment under OTHER.
What was interesting was OTHER, which were 33%.
Some said that if the attorneys wanted this information they could collect their own. The problem with suggestion is that there are about 1000-1200 MoDs published each month and, aside from the fact that this would be time consuming (I know as I did it for 300-350 per month), the attorneys would have to look up all the cases in LexisNexis and devise their own data base. Based on my own experience with thousands of cases in my data base, this would not be practical for any practitioner.
A few made reference to the fact that since each case stood on its own, it would not be possible or advisable to look at statistics to determine if a case warranted an appeal to a Board Panel. In reality, this would not work. The data would offer two aids. First it would let everyone know what were key subjects so that the practitioners would now which upcoming cases at the Law Judge level needed more research as there were a lot more cases available. And for some, it would give the attorneyss a sense that because lot of similar cases were up for appeal that this would be another reason to review the issue and ‘sharpen the pencil.”
In my 12 years as a commissioner, I found these statistics, derived from my own database, to be helpful in selecting what were the key issues for which I had be to be better prepared so that I could better spend my time in research. As I noted in my book, Behind The Closed Doors, in Chapter 17 “The Machines Take Over”, there is no such thing as bad data: only bad use or interpretation of data. Since the Board has easy access to this data, I feel as do 5 out of 6 voters that the Board should make this information available.
What will the Board do on this issue? What they always do! Nothing.
May 11, 2009
WHOSE DOCTORS ARE FAIREST
Our poll posted April 27, 2009 related to the issue of IME’s: Independent Medical Examiners. In my SOLUTIONS page, I covered a number of the issues that had been raised by both N.R. Kleinfield in his March 30th article in the New York Times and the nearly 500 blog/comments sent to the Times. The poll asked your opinion as to who should do medical assessments and decide causal/consequential relationships: IME’s, claimants doctors, Impartial Specialists, Law Judges, etc. And, can they be really uninfluenced or unbiased?
Only 25% of you selected only one of the choices offered and that was equally split between “Board Doctors should replace both” and “Board doctors should replace carrier doctors”. The other 75% of you chose “Other”, adding a number of interesting comments and some also picked a second option in the poll, using “Other” to clarify their choice.
The results of the poll were:
- 53% replied “Keep it the way it is”
- 30% replied “Get rid of both carrier and claimant doctors and use just Board doctors”
- 18% replied “Use them if the other doctors are too far apart”
- 12% replied “Get rid of the carrier doctors” (not included in the 30% above)
- 6% replied “Board doctors would be biased”
(Please note that because this was a multiple choice, the total exceeds 100%)
The actual total not wanting Board doctors is actually 59%: the 53% for “Keep it the way it is” plus the 6% who felt the Board doctors would in their own way be biased by following the unwritten wishes of the Board.
Many of the 30% who wanted to get rid of both doctors clarified that position by stating that the Board should get an assessment from both doctors but when it came time to make a final assessment, Board doctors should be used for, in the past, they gave, summarized best in one comment, “fairly impartial and decent opinions”. Another 18% felt that the Board should continue to use both claimant and carrier doctors but, if there differences in the final assessment were too far apart, then the Board doctor would make the final decision.
So it seems that almost half the respondents liked the idea of using Board doctors to help close cases if there are differences of opinion between the two doctors that can not be resolved without litigation.
Perhaps the Board doctors could act like arbitrators, picking one of the two numbers offered by each side. So rather that having one side reporting 80% (very marked) and the other 15% (very mild), hoping that the Law Judge would average them out, the Board doctor would pick which of the two was the closest to reality. Perhaps then we would get a 40-60 split. Also, since under the new guidelines, the amorphous terms ‘mild’, ‘moderate’, ‘marked’, and ‘total’ would be replaced by fixed percentages, the Board could determine that only if the differences were more than 5% or 10% or whatever, would the case go before the Board doctor. Cases closer than this would go directly to the law judges, who could then pick an average if they wanted. This would certainly leave the current system intact, as favored by 59%, and be far easier to implement than hiring enough board doctors to do the tens of thousands of cases each year in which this issue arises.
Of course all this raises another issue. Will the use of Board doctors be limited to only permanent disability or would it also include temporary? The problem with this third set of eyes looking at the level of disability in a temporary disability case is that in the 6-8 month interval between the claimant’s doctors’ first assessments and the Board doctors’ assessments, the condition of many of the injured workers would have changed, often dramatically. So perhaps it should be limited only to the cases of SLU versus permanency and degree of permanency with each one of these issues having their own subsets of problems to be resolved.
One suggestion I make (sure to be unpopular) is that, in SLU cases, when the Board doctors have to choose between “A” and “B”, the losing side pays a small fee to the Board ($50 if a claimant and $200 if a carrier). Once one side has lost a of number of times, they may want to reconsider their choice of doctors or perhaps their own decision-making process, once again with the potential to reduce the number of litigated cases and insuring faster case resolution for injured workers. In fact, if the Board were really interested in this proposal, it would an ideal topic of a open discussion with representatives from both side of the table. and as an impartial outsider, I would be honored to chair it.
But, probably the best comment in OTHER category was the suggestion that,
“Board should enforce current rules & allow 2007 reforms/new forms to work before adding more changes“.
This is a point I have made on more than one occasion but which needs constant repeating. And putting a new color cover with the names of the new governor and new Board chairman on the Medical Guidelines book serves no purpose if the inside is the same 63 pages as in the 1996 edition.
May 4, 2009
WHO SHOULD ATTEND THE NEW DISTRICT MEETINGS?
Our April 20, 2009 related to the Board’s plan for the two new Regional Managers to periodically visit the districts with open meetings as was done years ago. The purpose of this poll was to ask who should attend. Perhaps a wider participation would help improve the congeniality of all those who are at the Board and improve the one goal all are supposed to have: better service for the injured workers and lower costs for the employers.
Part of the poll’s response is most distressing as it mirrors responses to a number of other polls:
50% chose the answer “Doesn’t matter - Albany doesn’t listen anyway.”
I have no comment to make on this 50% as I feel I am ‘beating a dead horse’ so let’s go to the other 50%.
The other 50% wanted the Senior Law Judges, the District Manager, and, yes, even the local commissioner(s). A few even asked that some of the law judges attend on a rotating basis.
When I attended the meetings (and I got similar assessments from a few of my colleagues who cared enough to attend in other districts), we would sit around a table or in a room filled with chairs. No podium with a lecturer but an open meeting for a free flow of ideas. The information gained was important but it was equally important to see everyone as a member of the same team. For, although some of us may have fancy titles, it is politics that makes DA’s, commissioners, and senior law judges, not necessarily brains or competence or hard work. So, the meetings were a chance for those who do not understand what the other groups were doing a chance to ask, “Why does xxx happen?” and to get an answer without anyone feeling that they were the target of a complaint. Some of the most simple of misunderstanding were clarified and problems resolved.
In the late 1990’s, I attended with two other commissioners a law judges’ conference at West Point. The three of us asked if we could chair a panel which would be us telling the judges what we would like from them and then asking them at length what they wanted from us. But prior to that, we had dinner and a breakfast with them. We discussed issues, really more from the perspective of what the commissioners looked for in making a decision and what limitations the judges had in trying to get all the information. The one point I remember at the panel was them asking us, that when we change one of their decisions, in particular when we rescind and restore, we explain WHY! Too often, then as now, decisions are rendered that are incoherent to the judges and practitioners on both sides.
I also ‘crashed’ two education seminars in 2005: Huntington and Bear Mountain, these for attorneys run by Board staff. Judges and commissioners were not invited. It was illuminating to hear the Board staff lecture them on what ‘shall be’ and have me (for which I am renown) interrupt and clarify with some shades of gray.
If the goal of the Board is to help resolve more fairly and expeditiously cases involving injured workers COMMUNICATION IS NECESSARY!! So, a suggestion to our new regional managers: Invite the local commissioner(s) and insist that the senior law judge be there, too.
April 27, 2009
WHAT DO YOU THINK OF THE BOARD’S
NEW TRANSLATOR PROCEDURES
The Board is now using translators at all hearing, not just §32’s. In our multiple choice poll we asked, “Does the Board’s current use of translators …?” The result of this poll show that, at least on this issue, the Board is moving in the right direction, that the use of translators for all hearings:
at 55% Improves the participation of the claimant
at 27% Makes no difference for the claimant
at 23% Wastes money better spent elsewhere
at 10% Makes it more difficult for the court reporters
at 45% Other
(Please note that because this was a multiple choice, the total exceeds 100%)
There has always been a question of the degree of participation by claimants in the pursuit of their cases. But in some districts as many as 30% or more of the claimants do not understand English sufficiently to understand what is going on at the hearing which are conducted in English. [ED NOTE: In some cases, including even some English only, some claimants just do not understand regardless of the languages used.]
55% of the respondents feel that the use of translators in all hearing is better for the claimant whereas 27% feel it makes no differences. 23% felt it was a waste of money, some under the assumption that it cost more money for live translators than it did for the ones on the phone. But considering some of the other projects (and new senior staff in Albany) on which the Board expends a great deal of money, I am sure most would agree that the cost of the live translators is a small item and more than worth the value.
10% felt that it would make it more difficult for the reporters and I am sure that this assumes that the reports are live. One can only image how many would have voted this way if they got back transcripts which were done by e-reporters.
As for the OTHER at 45%, some voted only in this category and some used the multiple choice option to add extra comments. There were those who felt it did slow down the process but, unlike the limited choice posed in the poll, they felt the additional time was worthwhile - a hint perhaps against the short time limit on all the other hearings? And while their honesty is appreciated, two responded, each in their own way, resenting the fact that the use of foreign languages was allowed and/or needed at the Board. All the OTHER responses were variations on the above main themes and some with a few suggestions.
In summary, this new Board policy is viewed by most as a positive step to help claimants better understand what is happening at their hearings. Perhaps a but more time should be allowed at the other hearing for the English-speaking claimants so they, too, will be given the same allowance of time to understand what is happening.
April 27, 2009
WHAT DO YOU THINK OF THE
ARTICLES IN THE NEW YORK TIMES
While the responses to the second question in this past week’s poll was expected, it is nonetheless disturbing. To the question “Do you think that, as a result of the article, the effect on the Board will have?”, you responded:
at 57% No impact
at 26% Negative impact
at 12% Positive impact
at 5% Other: mostly specific criticisms
Whether it will be true or not, the fact that slightly more than half the respondents feel that the Board will ignore the three articles in the New York Times mirrors our earlier poll regarding the accessibility to the Chairman and his executive staff. I have used the term Oligarchic Cabal to describe the small and select yet unknown group of people who autocratically make all the decisions at the Board. The response to this poll seem to indicate that many feel the same way.
It is quite different from the days of Robert Snashall, who as chairman, told us that we were in the business of providing a service and had to be mindful of our clients: the injured workers and their employers who pay all the bills as well as the Board’s expenses. It appears that these clients and their representatives now feel that that attitude is past history.
Now to the first poll which asked, “Were the NY Times articles accurate, inaccurate, too critical, not critical enough, other?”, you responded:
at 29% Accurate but not critical enough
at 18% Not accurate and too critical
at 14% Accurate but too critical
at 14% Fair
at 11% Not accurate and not critical enough
at 7% “Too liberal” - I assume that means too pro-claimant
at 7% Other: a lot of different answers**
And taking the number for “Accurate/Not Accurate”, it was 43% accurate and 29% not accurate. As for the question was it “critical or not critical enough”, the vote was basically split.
I was once told that you know your decision is fair when everyone thinks you favored the other side. Apparently Steven Greenhouse and N.R. Kleinfield, the writers of these articles, did just that.
There were about 500 comments to the blogs on these three articles. And after excluding the 50% or so that were from angry injured workers, the results were as mixed as the poll. The most common complaint seemed to deal with the medical examiners: about 1/3 said the carrier IME’s were all ‘bad’, another 1/3 said you can’t trust the claimant doctors, and a 1/3 offered as an alternative anything from nationalized medicine to board doctors. We will have more on that shortly.
But certainly the poll shows a substantial dissatisfaction with the Board’s operations and the Oligarchic Cabal’s unwillingness to listen to anyone.
April 12, 2009
WHO SHOULD DO THE §32′S?
The results are totally unexpected, at least by me. First I will give you the numbers, and then my analysis of the answers to the question, “Now that you have experienced §32 hearings with Commissioners and Law Judges, who should continue doing them?”
at 57% The Law Judges
at 34% The Commissioners
at 4% Both should do them
at 4% No Opinion
at 1% Other: too varied and small to be meaningful
Since we have no other way to identify our poll participants, could you please let us know in which group you are?
at 41% Attorneys for claimants and a few claimants
at 23% Attorneys for carriers or self-insureds
at 22% WCB staff and law judges
at 14% Other: Other: mostly attorneys who represented both claimants and carriers and a few who did not wish to be identified
First, I can not tell you how the claimant attorneys voted, just that they participated. As to the Board Staff, after reviewing actual vote count of the Law Judges and Other Board Staff, I felt it prudent to combine these into one total: 22%
Based on all the complaints I have heard during the many occasions I have had to talk to the attorneys, I was surprised that according to the poll so many prefer the law judges do the §32’s. But this may be because I talk mostly with New York City attorneys where they suffer from substantial fee cuts, in Manhattan in particular, where some fees had been cut by as much as 80%.
One reason I feel that Law Judges are preferred is that these cases do get onto the calendars faster than those of the commissioners. Other than Manhattan served by Comm. Zinck and Queens by Comm. Henry, it is the district’s own commissioners who would do the §32s hearings and some just did not want to work so that the hearings were not held regularly. A few of the engaged commissions were willing to do them every week but Albany said ‘NO’. A few years ago I was doing two full day sessions a week (25 cases each) for a few weeks until I was told it made some other commissioners who did 25 a month look bad. So rather than ‘raising the speed limit, they put governors’ on the engaged commissioners.
Since the Board Staff and Claimant Attorneys were 63% of the voters and only 34% of all the participants voted for the Commissioners, one must assume that many of them preferred the Law Judges. Because this site requires no cookies or other ID, I do not know that any poll done here will be able to breakdown results more clearly. As for now, we trust that everyone voted in the proper the correct categories in the WHO ARE YOU question
April 5, 2009
IS THE CHAIR & HIS STAFF MORE ACCESSIBLE?
Our March 23, 2009 Poll asked: “Over the last 10 years, the WCB has made many changes in its communications with the practitioners, claimants, carriers, etc? Has access to and cooperation with the Chairman and his executive staff?
at 55% Gotten worse
at 30% Not changed significantly
at 9% Gotten better
at 6% No opinion
[NOTE: A few participants used the OTHER box to add a bit more commentary including one who wrote “significantly worse”. These ‘other’ answers were included the one of the four categories that best matched their responses.]
I guess that there is no surprise here. Unfortunately I have no way of knowing if the 6% was mostly board staff but, even if it was, my sense is that as many voted in the other categories. I know from the time I was on the Board, and this relates to the new Poll for this week on §32’s, that most of the commissioners were left out of all substantive discussions. If we did not raise the subject at our monthly pre-board, it was not mentioned. And most discussions about issues that were of concern by the commissioners were answered in such the same way as every U.S. President answers questions at a press conference: evasive.
March 29, 2009
AND THE TOP LEGAL ISSUE FOR 2009 IS …
Our March 16, 2009 Poll asked: “What will be the most important legal issue to come before the Law Judges and Commissioners in 2009?” and you said:
at 50% Medical Guidelines Regarding Classification
at 22% Voluntary Withdrawal from the Labor Market
at 21% The ATF Deposit
at 4% Rocket Docket
at 3% The closing of the 2nd Injury Fund
[NOTE: A few participants used the OTHER box to list more than one answer and those answers are included in the specific category. In addition to the four issues listed in the poll, some voters added the Rocket Docket, sometimes as a single answer and sometime adding to OTHER some of the original four issues. Each issue mentioned was considered to have a vote, i.e. a vote for [OTHER: Rocket Docket, ATF] counted as one vote for each.]
Although the carriers are very concerned with the ATF, I have assumed that the fact that there are more claimant than carrier attorneys on my e-mail list and that the Medical guidelines have impact on both sides in controverted case, this is the reason this issue is overwhelmingly the top choice. And I have a sense that the law judges also consider this a key issue, because they are the ones faced with determining the degree of disability. However, since I can not identify who is voting, this is an educated guess on my part. Unfortunately, neither the doctors, attorneys, or law judges have any medical guidelines that the new law said would be available by December 1, 2007. As I have stated on more than one occasion, it is difficult enough for the law judges and commissioners to distinguish between mild, moderate, and marked and the various combinations thereof at 25%, 33-1/3%, 50%, 66-2/3%, and 75%. Now everyone is expected to slice the bologna into 1% thin slices.
So maybe this poll will give the Board a raison d’etre to get the guidelines done. And when they do, let us all hope it is an open process and not done by the Oligarchic Cabal. Or perhaps a relatively inactive attorney (to protect themselves from retribution), supported by Amicus Curiae from all the Bars, should pursue an Article 78 and ask the Court for an injunction on any decisions that are based on a definitive finding of a classification.
March 23, 2009
BEHIND THE CLOSED DOORS
