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. and Honeywell, pointed out that if St. John had not died right before trial, Chrysler and Honeywell would have gone ahead and defended without autopsy evidence. The Appeals Court also “affirmed a trial judge’s finding that defendants Chrysler Corp. and Honeywell failed to show that examination of the dead man’s lung tissue would produce significant evidence.”

The lower court judge stated that the defendants failed to show a “sufficient showing of need, on the family’s religious objections and on the compelling public necessity standard set forth in the law governing autopsies by medical examiners.”

This does raise a number of interesting questions that should be of concern to those who feel that the NYS WCB is becoming more claimant-friendly.

• Should all defendants in asbestos and other such disease related claims demand an autopsy as a part of the standard defense even while the claimant is alive? (And you can interpret this either way.)
• Is this autopsy of no ‘compelling public necessity’ because it is a private company who will pay if the case is lost but if it were a government agency, the autopsy would have been allowed as a ‘compelling public necessity’?
• Can the Courts deny the defendant the right to have the claimant undergo invasive or even non-invasive medical exams and treatment if the claimant objects on religious grounds?

For full details on this analysis of this case, link here to the March 18, 2009 article by Mary Pat Gallagher in the New Jersey Law Journal.

Did the Board secretly define an Independent Contractor?

March 17, 2009: For many year, there has been an issue which the law judges and the commissioners faced in cases regarding the employment status of injured workers: were they self-employed - independent contractors or were they employees (General/Special, etc)?

(For the purposes of this and future commentaries, I will be using the phrase Oligarchic Cabal to refer to those select few at the Board and maybe one or two policy makers from outside who make all the real decisions.)

In a 38-page document issued in December 2008 ane entitled [take a deep breath] STATE & MUNICIPAL AGENCY REQUIREMENTS UNDER GENERAL MUNICIPAL LAW §125, & WCL §57 & §220 FOR WORKERS’ COMPENSATION AND DISABILITY BENEFITS, the Board’s Oligarchic Cabal has defined an independent contractor. And it states that:

To be considered an independent contractor, and thus not an employee,an individual must meet and maintain All ten of the following conditions

So aside for the fact that the Oligarchic Cabal is insisting on a definition that would effect legal decisions by law judges and commissioners but has not seen fit to tell anyone about them, this list as presented is RIDICULOUS. The list:

1. Obtain a Federal Employer Identification Number from the Federal Internal Revenue Service (IRS) or have filed business or self-employment income tax returns with the IRS based on work or service performed the previous calendar year.
2. Maintain a separate business establishment from the hiring business
3. Perform work that is different than the primary work of the hiring business and perform work for other businesses
4. Operate under a specific contract, and is responsible for satisfactory performance of work and is subject to profit or loss in performing the specific work under such contract, and be in a position to succeed or fail if the business’s expenses exceed income
5. Obtain a liability insurance policy (and if appropriate, workers’ compensation and disability benefits insurance policies) under its own legal business name and federal employer identification number
6. Have recurring business liabilities and obligations
7. If it has business cards or advertises, the materials must publicize itself, not another entity
8. Provide all equipment and materials necessary to fulfill the contract
9. Control the time and manner in which the work is to be done
10. The individual works under his/her own operating permit, contract or authority

So when your plumber comes over to fix a broken pipe, you better have your multi-page questionnaire prepared with all these questions as well as a lawyer on retainer to insure that he submits proper documentation and your accountant to make sure he has a proper list of ‘business liability and obligations’. Because if he, like my plumber, does not have business cards nor advertises nor has he submitted a financial statement to me and I rather than he buys the sink to be installed, he could be considered an employee.

Oh, it is so nice for us peasants that we have such bright people in this Oligarchic Cabal looking out for us.

Conn. Tries to Balance Budget with WC Funds!

March 16, 2009: According to Gregory Hladky’s article in the New York Times on March 15, 2009, the pressure of a looming multibillion-dollar state deficit has produced a plethora of ideas from legislators and Gov. M. Jodi Rell for ways to reduce spending or raise new revenue.

But Governor Rell and a few others are unhappy with various portions of the legislature’s package, including a proposal to take $220 million from various “off-budget” state programs, one of which is the ‘excess’ cash in Connecticut’s Workers’ Compensation Fraud Unit.

No wonder the NY State Workers Comp Board doesn’t include any information on how much money is in its many funds, such as the Second Injury Fund. The Legislature may want some of that money to subsidize the MTA. After all, there are more commuters who vote than there are injured workers.

No More District Adminstrators

March 14, 2009: The political appointee positions of District Administrators have gone the way of the paper files.

In their place there will be two Regional Administrators. Joyce Perry who has been the Brooklyn DA for the last two years is now the Downstate Regional Administrator and Ray Struzik who has been the Buffalo DA is now the Upstate Regional Administrator.

Over the 12 years that I was at the Board, some of the DA’s, like Frank Vernuccio (Manhattan) and Alida Carey (Peekskill), were excellent, as dedicated as the engaged commissioners. And I have been told by my fellow Commissioners that some of the other district administrators upstate were also excellent. But there were also many who were not. I remember one who was in the office only two or three hours a day but could easily be found sitting on a stool in a location just around the corner from the office. And another who may have been in the office more hours than that but always had the door to his office locked.

I also know that some of the really good ones had a positive impact on Board operations and could be counted on to give feedback to Albany, even if Albany did not listen. For the districts who had ‘insouciant’ DA’s, the lucky ones had really good District Managers.

Some staffers have told me that the changes have been done for budgetary reasons ($1,000,00 a year saved: 9 less DA’s at about $100,000 a year in salary, benefits, support, etc). Others claim it is another step in insuring 100% control by a few executives in Albany. And perhaps it is both.

In about six months I will have a poll asking if this change was for the better. In the meantime, good luck to Ms. Perry and Mr. Struzik.

A New Law Judge! (☹W/corrections)

March 14,2009: An apology is due to Keith Longden as it is John Laughlin who is the new law judge. Seems that both of my ‘unimpeachable sources’ got confused. Of course it still would have been nice if Keith Longden or someone else in his position could spend some time in the trenches. But there is one person who has.

That person, high up the food chain, has spent time in the trenches and has, in my dealings with her, used that experience to make the system more reflective of reality, in so far as the work of the commissioners is concerned. Elizabeth Lott was in the OGC in Albany when I first met her and later moved to the Queens District where she handled most of the WTC cases. Chairman Weiss had the foresight to bring her back to Albany where she is now in charge of all the law judges.

As originally reported:
March 12, 2009: Keith Longden, a former member of the staff of the Office of the General Counsel (OGC) of the WCB, has just become a law judge in New York.

For many years, he was the person to whom the Commissioners were told to direct any questions that they had on §32’s. And he was the person who was the pointman for the OGC at the pre-board meetings (held Monday before the monthly public meeting) at which time he would present the reasoning behind the proposed Full Board Reviews (FBR) that were being accepted that month. Longden was also the person who would give the annual review of the prior year’s Appellate and Court of Appeals decisions to the Commissioners. For a more complete account of some of his activities as a senior member of the OCG, read pages 52-54 in my book, Behind The Closed Doors.

So it will be interesting to see what are his thoughts now that he will be out of the ivory tower of Park Street in Albany and down in the trenches, facing claimants and attorneys from both sides, having to make decisions that will be subject to review not only by the Commissioners but also by his former colleagues in Albany.

I suggest that, in five or six month, he be a guest speaker at one of the public Full Board Meeting and let us know what are his thoughts on the process now. And how much better the food is in Brooklyn than Albany.

Welcome to Brooklyn!

NY Workers’ Comp Alliance has New Leaders

March 8, 2009: Today New York Workers’ Compensation Alliance announced that John Sciortino and Troy Rosasco completed two full terms as the Alliance’s Co-Chairs and turned leadership of the organization over to well known attorneys Brian Mittman and Victor Pasternack. Both Sciortino and Rosasco will remain on the Board of Governors. Also joining the Board of Governors are James Buckley, Robert Helbock and Robert Grey. For details on the announcement and other important information from the Alliance, please link here.

SIF Chairman Defends His Agency

March 12, 2009: In an editorial today in the Albany Times Union, SIF Chairman Robert H. Hurlbut challenged allegations in the Times Union with regard to whether one employee at the New York State Insurance Fund has been given enough workload or properly carried out his responsibilities. Another employee contends that certain employees are not properly qualified.

Hurlbut addressed his comments to the Albany Times Union, writing,

“We will cooperate with the state inspector general to investigate these matters. We strongly disagree with the blithe presumption of your most recent editorial that paints with a broad brush, tarring the organization — and therefore its work force — with regard to carrying out its mission.”

The full text of his remarks can be found on the Albany Times Union web site.

March 12, 2009

New Fee Schedule for Dentists

On March 9, 2009, eight days after it goes into effect, the WCB has announced in Subject No. 046-298 the new schedule of fees for dental treatment and procedures will be effective eight days prior to the issuance of the subject number.

The new dental fee schedule is applicable to dental treatment and procedures performed on or after March 1, 2009, for the necessary care and treatment of an injured employee, regardless of the date of accident or date of disablement. Dental treatment and procedures performed prior to March 1, 2009, shall be reimbursed at the usual and customary rate in the location where the claimant resides.

Copies of the fee schedule may be obtained from the Board by writing to the Bureau of Health Management, New York State Workers’ Compensation Board, 100 Broadway-Menands, Albany, N.Y. 12241, by telephone at 1-800-781-2362 or by e-mail at general_information@wcb.state.ny.us. Copies can also be viewed at each district office of the Workers’ Compensation Board and other State offices described in part 442.2(2) of the regulations. Electronic access is limited to those parties involved in billing, or paying, for a dental procedure: in a workers’ compensation case. Self-insured employers, third-party administrators, insurance carriers and dentists.

Wanna Buy a Carrier?? Cheap, too!

March 5, 2009: For all those who say carriers make too much money, here’s your chance.

The New York Liquidation Bureau (NYLB), which manages more than 60 insolvent insurance company estates on behalf of the New York State Insurance Superintendent, has issued for public comment draft Request for Proposal (RFP) documents seeking bids from private investors to buy the billion-dollar Midland Insurance Company in Liquidation, NYLB Special Deputy Superintendent Mark G. Peters announced today.

I personally suggest that the regulators in the Department of Insurance along with members of the State Assembly and Senate and some of the staff at the Workers Comp Board pool their resources, not on the Mega Millions lottery ticket, but to buy Midland and show us how its done. After all, they’ve been telling all the carriers what they should be doing. Or are they all examples of George Bernard Shaw’s observation, “Those that can do. Those that can’t become [regulators].”

Fla Legislatures revisits Legal Fees

March 6, 2009:A few months ago, I listed on the DECISIONS page what I felt was a key case regarding legal fees as determined by the courts in the State of Florida, Murray v Mariner Health No. SC07-244 (Fla. 10/23/08) which stated that the Legislature’s fee schedule for claimants’ attorneys was too low.

It has been reported that this ruling will pit attorney’s and workers’ rights advocates against business and insurers. And then explains what steps are being taken by both sides of the issue to have the State Legislature change the law. One legislator suggests that the law be changed by striking the word ”reasonable” from the law while retaining the same fee schedule. Details can be found at JDJOURNAL.COM as well as the Miami Herald.

NY’s Got Crooked Doctors, too

March 6, 2009: In my February 19, 2009 NEWSWIRE, I noted how Orange County California set up a sting and caught a lot of crooked doctors. Such prescience.

On March 1, 2009, the New York State Insurance Department’s reports that it, too, has recovered $9 million from among the significant cases investigated by the Bureau last year.The money was recovered from five medical providers. The providers submitted inflated claims to the New York State Health Insurance Program for treating state and local government employees. The medical providers also paid fines totaling $78,551.

The complete report can be found on the Insurance Department’s website, www.ins.state.ny.us.

But Beats Up On An Honest One

March 6, 2009:For those of you now in New York City, this may be old news. A New York City doctor’s attempt at value pricing has put him at odds with state insurance regulators. Dr. John Muney (MOON’-ee) says he’s been told to stop his flat-fee, $79-a-month medical practice. The state says the arrangement amounts to illegal insurance. Dr Muney stated he can afford to do this with all the savings he has from not having to hire staff to do all the insurance filings that would otherwise have required him to substantially increase his fees.

Fees too high or fees to low. You can’t seem to win.

State’s IG investigates SIF’s patronage jobs

[This is a breaking story was in a special HOT NEWS Alert sent out March 4, 2009.]

March 4, 2009: James Odato of the Albany Times Union today reports that,

Inspector General Joseph Fisch has ordered an independent investigation of the State Insurance Fund in the wake of a slew of allegations of mismanagement, abuse and waste at the agency, which is being described by a whistle-blower as a landing spot for political patronage appointees.

Prominently mentioned in this story as well as Fred Dicker’s February 6, 2009 New York Post column are:

- Randall Hinton, $93,803 a year, who complains he has not been allowed to do any work in years.
- Edward Obertubbesing, an insurance fund lawyer who once managed Randall Hinton.

As a former political appointee of the WCB, I am, to quote Captain Louis Renault of Casablanca fame, “Truly Shocked!” at this revelation. Coincidentally, I already set up in my BOOK page an excerpt from Chapter 19 that deals with patronage but at the WCB.

Rocket Docket Fizzles a Little

February 26, 2009: In the Workers’ Compensation Board’s Subject Number 046-283, the Board has announced that it will delay the imposition of penalties for employers failing to submit the new form C-2 (Employer’s Report of Work-Related Injury/Illness) until April 1, 2009, this after the Board received complaints that the original January 1, 2009 deadline presented significant challenges, including the need to inform over 600,000 employers in the State and the time it takes to implement the revised form into their office software and/or business practices.

To paraphrase John Rummel, “In theory, policy and practice are the same. In Practice, they’re not!.”

Does anyone hear another shoe dropping from one of the ‘mad scientists’ who designed this ‘rocket’?

Wyoming Now Has COLA for Comp benefits

February 21, 2009: On February 21, 2009, the Casper (Wyoming) Star Tribune reported that a Senate committee approved a bill Friday that would expand benefits for people injured on the job, including cost-of-living adjustments for workers on permanent disability. And who said cowboy country is anti-labor?

Who says the Assembly’s not busy?

February 26, 2009: At last count, the New York State Assembly has 19 bills dealing with Workers Compensation issues in committee, with enough co-sponsors to convince every labor group that each member of the assembly is working hard for them. Maybe they think of the bills as a whine wine in that they age with time because many of these have been around for years. If you’d like a list, contact me at TheInsider@InsideWorkersCompNY.Com.

SC: No Comp for Undocumented Workers?

February 26, 2009: According to some reports from a few lawyers in South Carolina, legislators there have come up with a truly bad idea. They are proposing to reduce the Workers Compensation benefits for illegal aliens. While the bill would still have the WC system pay for medical costs for injured illegals, it would deny them disability payments.

This would certainly flies the face of the intent of workers compensation which is to give not just medical but compensation to those injured on the job. In Chapter 21 ‘Other Recommendation’ in my book, Behind The Closed Doors, I have a recommendation that proposes a penalty but not o the inured work. After all many of them do not speak English and certainly would not know that there exists a law that specifically discriminate against them. But my suggestion one that goes to the heart of the matter: cost advantages to employers who hire (and underpay) illegal workers. Details are in my OPINIONS & REPORTS.

Workers moving from Jones Act to Workers Comp

February 27, 2009: According to a recent article in the MegaYachtNews, the Longshore and Harbor Workers’ Compensation insurance requirement for recreational marine service and repair businesses has been removed.

The move may save small businesses more than $100,000 a year in insurance premiums, allowing them instead to be covered under state comp systems.

As a part of the American Recovery and Reinvestment Act (HR 1), members of the U.S. Congress voted to implement a no-cost modification to the Longshore Act. Business operators should contact their insurance agent to determine if their coverage is affected.

The New York Times Article on the WCB

February 19, 2009: Starting in the spring of 2008, two top reporters from the New York Times began a series of interviews with key members of the WCB staff including Chairman Zachary Weiss and former Chairman Donna Ferrara as well as several former board members. I know because I was in the WCB office in Brooklyn the day they interviewed Ferrara. And I was told by another person from Park Street (main WCB office in Albany) that they had planned to interview several others at the Board, some of who subsequently told me about their interviews. The reporters even called me up to ask questions

But those of us who were interviewed were asked such a diverse selection of questions we were and still are unable to figure out the general direction of the article.

As you know from my having starting and continuing to manage this website, I have an interest in seeing the Board improved. I and some of those who are aware of the article assume that this is the purpose of the New York Times article. But we are not sure. No one knows if it is an exposé or a comparative analysis with other states’ workers’ compensation systems. The writers are Steven Greenhouse and Sonny Klein, both of whom specialize in labor issues. Maybe a tidbit or two from you can be just what is needed to help get the article published.

A 100% Salary increase at the WCB by Patterson?!?

February 19, 2009: When Governor Patterson got caught by the press increasing his staff’s salaries by as much as 100%, the Governor argued that these were necessary and that he cut the budget for his own office by $2,000,000.

But the Albany Times-Union political blog, Capital Confidential, reports that Patterson also increased the salaries in a few other agencies as well. There was one formerly lowly staffer at the Workers Comp Board who got an increase in salary from $38,724 to $77,454 which was defined as a ‘salary correction’. Oh well, who needs an office in Orleans anyway! Click here for the link..

Boy, Did They Catch Some Crooked Doctors

February 2, 2009: On February 2, 2009 Brandon Poole of the Los Angeles Business Journal writes about a fraud sting in California. Based on a list compiled by the National Insurance Crime Bureau, the Orange County (California) District Attorney’s office sent 248 letters to medical providers suspected of engaging in fraudulent practices or billing.

The letter outlined opportunities for medical professionals to engage in an illegal fee-splitting scheme with a fake attorney’s storefront office set up by the district attorney’s office. The scheme involved medical professionals agreeing to pay up to 30 percent of specific patient billings to district attorney undercover investigators posing as law-office administrators in exchange for that patient’s referral. Undercover investigators also posed as patients who claimed to be suffering from soft-tissue damage from car accidents. Of the 248 letters, 20 inquired about the scheme and 12 were netted by the DA’s office.

So how far behind are Andrew Cuomo, SIF, or the WCB Inspector General in doing the same?

A Tip of the Hat to the ARD

February 13, 2009: During my many years at the Board and in my book Behind The Closed Doors, I have complained about several problems with the writing of the Memorandum of Decisions issued by the Board.

A major step has been taken in resolving some of the problems I discussed.

The Memorandum of Decisions now have a formal structure. After a lengthy opening there are now paragraph headings: ISSUE(S), FACTS, ANALYSIS, and CONCLUSION.

And, while some of the information I have seen in some of these newly formatted decisions leave a lot to be desired, this is the first in a series of many steps necessary to develop coherent and hopefully complete decisions that do not ignore some of the issues under appeal while at the same time not degenerating into a 5-page recitation of the claimant’s medical history when the issue is AWW.

So a ‘tip of the hat’ to Madeline Pantzer, head of the Administrative Review Decision, and her deputy, Dave Wertheim, probably Chairman Weiss’ best two promotions.

Chief Judge Nominee Lippman
and Workers Comp cases

In a lengthy review of Chief Judge Nominee Jonathan Lippman’s decisions, Vincent Martin 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.”

As Lippman moved to the Court of Appeals, it will be interesting to see if Bonventre’s analysis of Lippman appearing to be pro-plaintiff proves to be correct. An analysis of Lippman’s decisions can be found at his blog New York Court Watcher or for information on this one case you can go to this website’s Court Decisions.

Olean’s District Office to Close

February 13, 2009: The Olean Times Herald confirms that the WCB Board has announced the closing of the Orleans satellite office set for this month. They have estimated savings of $100,000 a year for each of the many satellite offices that they are closing. Now injured workers will have to travel an extra one to two hours each way to attend a hearing.

At the same time, the Board in its most recent report indicated that the collection of fines has increased substantially so it would be interesting to know why the increase in fines from people like Al Franken can not be used to keep these satellite offices open.

What is interesting is that the Board is making arrangements to have live translators at hearing for non-English speaking claimants. The Board feels that the very large expenditures being committed here is important for a claimant to understand what transpires at the hearings. But I guess that is only if they do not have to drive two hours to the hearing point.

On the other hand, as I noted in Chapter 17 “The Machines Take Over” of my book Behind the Closed Doors, if my experience in Brooklyn of a few years ago still holds true, it is as likely as not that the Board thinks it only has a few foreign language cases a year in the City.

Or perhaps these offices upstate could be kept open if the Board delayed its purchase of new computers and high speed color printers for another year.

 

Will the Feds Define Independent

Contractors for Comp Insurance

February 5, 2009: FORBES magazine in its February 16, 2009 issue has an article titled “Payroll Politics” whose subtitle is “Who’s a full-time employee and who’s an independent contractor? Democrats think they know”. Forbes writer Janet Novak continued,

“In 2007 then Senator Obama and fellow Illinois Democrat Richard Durbin cosponsored a bill that would have repealed what’s known as the Section 530 safe harbor–a 20-year-old provision that bars the Internal Revenue Service from writing regulations clarifying who’s an independent contractor. Last year he joined Massachusetts Democrats Edward Kennedy and John Kerry to sponsor a bill with similar aims. In January the IRS’ Taxpayer Advocate called for repeal of Section 530.”

In one of the last discussions I had with Chairman Weiss in Albany before I left the Board, he expressed a great deal of interest in this subject, particularly when I told him that there was some sort of an indicia table in New York, similar to the one used California. What he then found out is that the indicia table was one I designed and which has been ignored by the office of Appeals, as noted Chapter 16 “‘Consistency Versus Speed’ – The Solution” of my book, Behind The Closed Doors.

In view of the interest that the Chairman, as well as the U.S. Senate and presumably the President have in this subject, maybe it is time for the various interest groups in New York State to adopt a definition or indicia table that is to their liking before the State makes this decision for them, one perhaps based on the State’s need to balance its budget rather than what may be fair to all the parties involved in this issue.

NYCOSH Complains About Budget Cuts

February 5, 2009:Why raise taxes when you can just increase workers compensation insurance rates?

Go to www.nycosh.org to download a model letter protesting proposed state cuts to the New York State Occupational Safety and Health Training Program.

Administered by the State Department of Labor’s Hazard Abatement Board, this program is funded by an assessment on employer-paid workers’ compensation premiums.

It provides grants for safety and health training to a broad range of workers including employees of small and medium sized businesses, union members, and teenagers who are about to enter the workplace. This training is often the only safety and health training available to these workers.

States look to dissolve monopolies

in workers compensation insurance

February 5, 2009: Roberto Ceniceros of the web site BUSINESS INSURANCE has written,

Debates are under way in Ohio and North Dakota whether to eliminate state-established workers compensation insurance monopolies by allowing private insurers to compete for employers’ business.

The two states are among four states, including Washington and Wyoming, with workers comp monopolies. The Wyoming system is considered monopolistic, although certain companies can opt out of purchasing coverage from the state.

And while New York State does have competition, the fact is that the State Insurance Fund’s market share is continually increasing. According to the General Building Contractors of New York 2008 press release, NYSIF’s market share was estimated at 37.5%, and it is anticipated to grow as more employers turn to the fixed or guaranteed cost insurance that is its main selling point. NYSIF’s expenses are already lower than those of the private carriers because it does not pay commissions. Further, its salaries are bound by civil service rules. NYSIF, by default, could be the big winner in terms of market share, which would be ironic considering that the goal of converting to a Loss Cost system was to encourage competition among the insurance carriers.

Now with all the problems with the self-insured trusts, it is possible that NYSIF may end up taking all that coverage as well, slowly eliminating private sector choices for small and medium sized businesses. The article explains what each of the four states is doing and why.

Spelling Errors

January 29, 2009: Although I have on many occasions decried the occasional poor writing of decisions issued by the NYS Workers Compensation Board, I never said that these typos were fatal to a decision drafted by one of the attorneys in the Administrative Review Division and approved by the three commissioners who allegedly read the proposed decision before signing off on it. I just indicated that it showed a lack of attention to the work and lack of respect for the parties to the claim who are being led to believe that the Board and its staff really do take care in making their decisions.

Apparently, the Supreme Court in Queens County agreed that typing errors, including the omission of dollar amounts in the complaint, are not sufficient to warrant a motion to dismiss the complaint. Among other points made in the decision decided January 15, 2009, the Court in its opening paragraph wrote, “There is no merit to defendants’ assertion that the complaint should be dismissed due to errors in the spelling of defendants’ names. Defendants have not demonstrated any prejudice from the insignificant errors. A defect or irregularity in a summons or pleading will be disregarded or subject to amendment in the absence of prejudice. (CPLR 305[c], 2001, 3026.)“

FRAUD -Who’s More Guilty

January 29, 2009: While I may not have access to every single article published about indictments and convictions for workers compensation fraud, over the last few months I have found stories about nine claimants, one broker, and, other than repeated stories in the political press about Minnesota Democrat candidate Al Franken’s failure to pay workers compensation for his business in New York, no stories about fraud by employers.

I am sure we can all offer suggestions as to this ratio but maybe the employers and doctors have better press agents.

Solvent Exposure In Kentucky

January 29, 2009: Ever since the New York Times on January 25, 2009 published “Exposed to Solvents, Worker Faces Hurdle”, there have been dozens of articles and commentaries as to how unfair was the decision. In my opinion, it is no more than one state’s interpretation of the law.

The story discusses the case of Ed Abney, now sidelined by Parkinson’s, who had spent more than two decades up to his elbows in a drum of the solvent, trichloroethylene, while he cleaned metal piping at Kentucky plant.

The University of Kentucky published new research in 2008 which Abney and 27 co-workers had either the anxiety, tremors, rigidity or other symptoms associated with Parkinson’s, or had motor skills that were significantly impaired, compared with a healthy peer group. But the medical researchers would not sign the form attesting that Mr. Abney’s disease was linked to his work.

The author of the article wrote “Individuals like Mr. Abney are caught between the conflicting imperatives of science and law — and there is a huge gap between what researchers are discovering about environmental contaminants and what they can prove about their impact on disease.“

Dwight Lovan, Kentucky’s commissioner of worker’s compensation, said, “We are dependent on the scientific and medical communities for the element of causality.”

But if you review some of the colon cancer cases decided by the NYS WCB after 2004, the Board (i.e. my panel) used its discretion to connect all the dots that had been collecting in other case files dealing withe colon cancer as a consequence of asbestos exposure. It would be interesting for someone to review case history in Kentucky because of Lovan’s statement.

The Court in NYS have given the WCB the right to make a decision, stating that “the weight accorded to the conflicting medical testimony is a matter resting within the sole discretion of the board if there is It is now axiomatic that where, as here, the Board’s decision is supported by substantial evidence, such findings are conclusive despite the presence of evidence that might have supported a different result.” ( Keeley v Jamestown City School Dist., 295 AD2d 876, 877 [2002])

If anyone knows of any NYS WC cases involving trichloroethylene, please send them to me at TheInsider@InsideWorkersCompNY.Com and I will put them together in a commentary along with the metamorphosis of the colon cancer cases from being disallowed to being established.

 Legal Fees. Again!

January 22, 2009: In an editorial in the Connecticut Law Journal, attorney Norm Pattis addressed the concern of the Connecticut Bar that the State of Connecticut, suffering from severe budget shortfalls, has discussed taxing legal fees.

Lest anyone think that this would cut into lawyers fees, they are mistaken for, as Pattis clearly states, he will simply increase his fees by the amount of the tax to his fee structure.

Norm Pattis is a criminal defense lawyer and civil rights attorney in Bethany.<

While such taxes in New York State are unlikely, as long as Sheldon Silver gets most of his income from his law practice, it would not at all be surprising if the Workers’ Comp Board considered this as a way to ‘save’ money.

I sometimes feel like I am beating a dead horse but I feel that there is a lot more discussion these days by governments about using legal fees to help balance their budgets or cut their expenses, such as workers comp rates.

The position of many in the new administration at the Board is that workers’ compensation is social legislation and that claimant attorneys should not be ‘making money’ off the pain and suffering of injured workers. [I do not see anyone at the Board asking for a pay cut just because they are making money the same way.]

But one point that all of the ‘engaged’ commissioners noticed was that when we had §120 discrimination cases at oral argument, many claimants could not get attorneys since fees for §120 were not covered by §24. As a result, many claimants just could not get proper legal representation. I do not think that in a single case the ‘engaged’ heard that it made a difference; claimants won or lost on the facts of the case. But, for those who did lose, I think it gave them the impression that the system was being unfair.

So while they are those who say, “If the lawyers can’t make money in comp, let them practice elsewhere.” who will be left to defend the claimants?

Former Commissioner McManus to Speak

January 22, 2009: Former Workers’ Compensation Board member Carol McManus (1996-2004) with be speaking at the NYS Association of Towns Annual Meeting at the Hilton Hotel in New York City on February 16, 2009.

The subject of her talk is compliance with the new state mandate directing the development and implementation of “Zero tolerance” policies for violence in the workplace. With her business partner Dolly Malik PhD, they work with public and private sector employers to identify conflict generators within the workplace and develop and implement effective intervention strategies. M&M will also be exhibiting at the meeting at the NY Hilton from February 15 to the 17, 2009.

They can be contacted M & M Intervention Specialists LLC, 17 Pine Cone Dr., Pittsford, NY 14534, (585) 746-4762 or at MandMConsulting@rochester.rr.com.

 A Black Car Fund for Truck Drivers?

January 22, 2009: In a January 22, 2009 article in the New York Daily News opinion page, Congressman Jerrold Nadler (8th CD-NY) and Batista Schlesinger, executive director of the Drum Major Institute for Public Policy, discuss the fact that the 7,000 truck drivers in and around New York’s ports are not covered by workers compensation. Because of trucking deregulation that began in the 1980s, this deregulation enabled companies to dispatch cargo through so-called independent contractors, treating these drivers as small businessmen rather than employees. These drivers have to pay for their own truck maintenance, fuel, road taxes, tire insurance and tolls. They are covered neither by workers’ compensation nor by any labor legislation that protects fair wages, hours, occupational safety or health.

Although the article claims that the majority of these drivers are recent immigrants who are being taken advantage of, the real issue is that many small independent contractors such these do not have any idea of the requirements of running a small business, from the tax forms they must complete, the licenses they need, and the types of insurance they should have. [A solution to these issues is in Chapter21: Other Recommendations in the book, Behind The Closed Doors.]While these drivers and their helpers would be covered under insurance they require to register the vehicles, there is no coverage for them for injures incurred loading and unloading their trucks, probably responsible for far more injuries than any MVA’s. Perhaps a relatively simple solution would be to establish a fund similar to the Black Car Fund (Article 6-F of the New York State Executive Law) for these drivers.

Berns to Speak January 31 at The Injured Workers Bar Association Meeting

January 16, 2009:The Injured Workers Bar Association meeting is being held Friday January 30 and Saturday January 31, 2009 at the Hotel Roosevelt at 45 East 45th Street in New York City. Friday is the Reception and Cocktails (6:00pm to 7:00pm) followed by the annual dinner which honors Edward I Pitts, Esq., with a Lifetime Achievement Award.

On Saturday, January 31, 2009, after breakfast Saturday, the formal CLE program starts, which includes:

1. Michael T. Berns, Former WCB Commissioner:

An Insider’s View of the WCB

2. Ron Balter, Co-Editor NY Workers’ Compensation Handbook:

2008 Appellate Review

3. To be announced: Rocket Docket and Indexing

For meeting and registration information online, click here.

I look forward to seeing you Friday and Saturday.

New York Self-Insurers Association 2009 Annual Meeting

January 16, 2009: Starting with a reception held in the evening on Wednesday January 14, both the Thursday January 15 and and today’s January 16 meetings were open to allow visits to the many exhibitor sites and to attend a number of presentations. After a formal welcome from NYSIA Chairman Steve Perroots (2008-2009), speakers on Thursday and Friday included:

• Michael Cardoza (Corporation Counsel City of New York)
• Steven M Scotti (Con Edison of NY)
• Dr Robert Moriarity, MD
• Chairman John Sweeney (2009-2010)
• Zachary Weiss (Chairman NYS WCB)
• Dr William DeGasperis,MD (Atlantic Imaging Group)
  
• Robert Manning (Stewart, Manning, Greenblatt and Baez)
  
• NYSIA Vice-Chairman Jim O’Brien
• Michael Vecchione (Vecchione, Vecchione & Connors, LLP)
  
• Christopher R Mason (New York Compensation Managers, Inc.)
  
• Gregory Saxum, NYSIA Special Counsel (Hamburger & Weiss)

The detailed program can be found on the NYSIA website. Their Spring Workshop is scheduled for June 10-12, 2009 at the Grand Island Holiday Inn, Grand Island, NY (near Niagara Falls).

North Carolina to Set Legal Fees?

January 16, 2009: Apparently, the case that was in the Newswire last week (the Matter of Emma Murray vs. Mariner Health Care, decided by the Florida Supreme Court) is but one of many attempts by state governments to take control over legal fees in their workers’ compensation systems.
In a January 13, 2009 Web Alert from the Steinberg law firm, the concern is expressed that that North Carolina’s Governor Mark Sanford appears to be attempting to control fees paid to workers’ compensation attorneys.

Since 2007, Gov. Sanford has been trying to gain access to information regarding commission awards and attorney fees for workers’ compensation cases. This came about when he tried to impose new standards for workers’ compensation.

Unfortunately, had these standards been implemented, it could have meant that deserving people would not qualify for workers’ compensation. This is an ongoing battle of Sanford’s, and while it is currently on hold, it will likely be coming up again soon.

Workers’ compensation can sometimes be the only source of income for a family.

For additional details contact the Charleston workers’ compensation lawyers of The Steinberg Law Firm at 843-720-2800.

New Commissioners

January 9, 2009: Mark D. Higgins was nominated as a Commissioner of Workers’ Compensation by Governor Patterson and his appointment confirmed by the State Senate on June 26, 2008. Higgins served over 30 years as a staff representative with the Civil Service Employees Association. His brother is Brian Higgins, 3-term Congressman from the 27th CD (Buffalo); his father also served as a Commissioner at the WCB.

However, Patterson’s next two nominations were not confirmed.

Daniel M. McCandless of Franklinvillle, chairman of the Cattaraugus County Democratic Party, was set for an appearance before the Labor Committee December 18, 2008 but his name has apparently been withdrawn.

This summer, at the same time Higgins was nominated, Dr. Geraldine M. Chapey, Queens County Democratic District Leader and Professor of psychology at Kingsborough Community College, was nominated, but her name was also later withdrawn.

Considering the $90,800 annual salary, a seven year term, and the fact that many current commissioners treat this as a ‘no-show’ job, it is hard to believe in these times of economic turmoil that there is no line snaking out the door of the Governor’s office for people lining up for these jobs.

And, now that the Democrats control the both the State Senate (1st time in 40 years) and Governor’s mansion, it will be interesting to see what will be their first order of business at the Board.