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COMMENTARY & REPORTS

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►Three new decisions for September 24, 2009

►Commissioner Bios September updates

THIS WEEK’S NEWSWIRE

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►Win Workers Comp and then Win under ADA

► Exotic dancers: employees, not independent contractors

►Va. drops Facebook fine in workers comp case

► Daycare Worker: Get Flu shot or you’re Fired

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BEHIND THE CLOSED DOORS

An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them.

“Everyone sort of knew but to see it in writing!” - A Brooklyn Attorney

“Tell us who is Commissioner X - I’ve got $10 on it”- Claimant attorney from Albany

PRIOR COMMENTARY

►Project 2015: The end of the WCB Board►The New Medical Guidelines(?!)

►The Appellate Court’s Split Decision

►Comp Board Blocks “The Insider” as Spam!

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

►Part II: Reader Comments on “bench briefs

►Reader Comments on “bench briefs”

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

►Who’s Left to Sign Decisions?

►The Legacy of Zach Weiss

►Judicial Economy vs Judicial Integrity

►A Guest Commentary on Board Doctors

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

►Who wins the most appeals: Claimants or Carriers

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

►Legal Reasoning vs Intuition

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

►Who actually decides the decisions?

►Rebuttals: a waste of time?

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

FEES ON MEDICAL EXPENSES

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

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

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

FEES FOR ONGOING CASES

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

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

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

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

§32 FEES ON MEDICAL SET-ASIDES

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

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

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

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

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

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

PROPOSAL

I propose the following:

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

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

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

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

SUMMARY

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

Ladies and Gentlemen, the floor is yours.

September 28, 2009

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

The following is a guest commentary on this issue followed by my own brief comment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My review of the above

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

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

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

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

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

Comments are welcome.

September 10, 2009

Project 2015: The end of the WCB Board

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So why is this being proposed?

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

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

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

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

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

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

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

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

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

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

September 4, 2009

Comments (0)

The New Medical Guidelines(?!)

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

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

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

FIRST REASON: Degree of Disability

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

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

SECOND REASON: Medical terms and treatment

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

SUMMARY

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

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

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

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

August 28, 2009

The Appellate Court’s Split Decision

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

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

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

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

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

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

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

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

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

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

August 21, 2009

Comp Board Blocks “The Insider” as Spam!

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

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

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

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

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

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

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

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

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

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

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

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

August 14, 2009

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

The following is the unedited comment from an attorney:

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

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

The limits on non-attorney representation [e.g. non competence to appeal to the AD3d or represent a corporation] should be clearly defined on the Board’s web site;

Legal reasoning is a predicate based upon jurisprudence [including case precedent, analysis, and application] that supports an argument; non-attorneys, unfamiliar with such analysis, may not appreciate this art;

The WCL has grown increasingly legalistic, including regulatory reference to the CPLR and rules of evidence [viz. video tape and “chain of evidence”];

CLE should be required of Lic Reps and all Commissioners as a means to restore the long standing mission of the WCL and its jurisprudence.

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

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

Part II: Reader Comments on
“bench briefs”

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

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

READER’S COMMENT

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

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

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

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

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

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

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

MY RESPONSE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

August 7, 2009

Reader Comments on
“bench briefs”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 31, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 23, 2009

Comments (0)

Who’s Left to Sign Decisions?

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

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

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

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

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

So how does this impact on claimants?

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

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

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

How did this happen?

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

1997 to 1999: 25% of my MoDs had a panel without an attorney. Excluding the Chair, there were three attorneys on the Board.

2000 to 2003: 41% of my MoDs had a panel without an attorney. Excluding the Chair, there were usually three attorneys on the Board.

2004 to 2008: Other than 2006 when I had 11 cases without an attorney, I had no MoDs without an attorney on the panel. The number of attorneys ranged from two to four, but was usually three.

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

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

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

What’s the Solution?

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

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

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

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

Summary

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

The Legacy of Zach Weiss

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

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

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

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

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

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

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

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

ADJUDICATIVE

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

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

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

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

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

ADMINISTRATIVE

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

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

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

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

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

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

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

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

Judicial Economy vs Judicial Integrity

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

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

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

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

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

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

But first some statistics:

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

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

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

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

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

In one case the panel denied the FBR, thus taking the position that the recommendation to change the original MoD was in error. In the case at hand we were not dealing with a black and white legal issue but one with shades of gray. After the three of us denied the FBR, overriding the OGC, we got e-mails arguing with us. We held our position. We then got a phone call from Libous asking, then telling us to accept the FBR. We refused and ultimately told that one of us would be taken off the panel unless we agreed to a FBR.

In one case the panel did not accept the recommendation of the OGC although we did agree to a FRB. But our concern was that the FBR was not properly written and we rejected it. We were told to not waste time and just sign what we were given. We refused. The FBR was given to another panel. But since this issue had case had come up at a prior monthly meeting, the second panel refused to take the case. Ultimately, my panel’s rewrite had to be accepted. The dispute was over the fact that my panel wanted more than to write “We have changed our mind” but to explain why, so that all who read the revised MoD would understand our thinking and, in the long run, cut down on the number of appeals on this issue.

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

As noted in my book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.As noted in my Book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.

One of my panels (as well as one other) had a new issue come before us, one that was quite interesting and had the potential to set precedent. My panel had mixed feelings and felt that the issue was too important for just three of us to decide. So one of us volunteered to write a dissent so that the losing side (the carrier in this case) could ask for a FBR. (When there is a dissent in a decision and the losing party requests a FBR, it must be done.) But in this case the carrier did not. So we asked to put it down for FBR. We were told commissioners do not have that right.

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

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

A Guest Commentary on Board Doctors

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

Why we got rid of Board doctors in the first place

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But the real problem is three fold:

Between the claimants’ and the carriers’ doctors, who is more unbiased?

Why aren’t there any guidelines as to degree of functional disability?

Why do cases on new medical issues take so long? It took about four years or more for cases in which claimants argued that colon cancer was consequential to asbestos exposure before there was sufficient medical evidence to establish the possible link. (see Behind The Closed Doors, Page 76-77).

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

Although carrier doctors are called Independent Medical Examiners (IMEs), even if they are not salaried employees of the carrier or third party administrators (TPAs), their income is derived for these firms. Hence, their ‘independence’ can be questioned.

Claimant doctors are the one usually chose by the claimants, some of who have had long term relationships with the claimant, the claimant’s family, friends, relatives and/or coworkers. And since they see the claimant on several occasions, particularly if they are regularly treating him, they do not wish to get their patient angry with them.

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

Are these doctors going to be full time doctors, working exclusively for the Board?

Where would their offices be located?

From where would the funding be derived to pay for these doctors, their offices and all their equipment?

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

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

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

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

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

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

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

Who Wins The Most Appeals?

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

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

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

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

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

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

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

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

Some of the CARRIER appeals do not involve the claimant but deal with §25a, §15(8), §21(f) or other disputes between carriers and/or the Special Funds.

Some of the CARRIER appeals do not directly involve the claimant but deal with penalties, denials of RFA-1’s, or late payment penalties , i.e What is 30 days late?.

A small number of the ‘claimant’ cases actually involve FEES in which the claimant is not taking a position on this issue or they have a request to reopen a Lump Sum.

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

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

Legal issues

Procedural Issues: RFA-1, penalties, proper filing of forms (but not §18 or §28)

Medical Issues: Degree of disability, further causally related disability, which sites

Legal/Medical

Legal/Procedural

Medical/Procedural

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

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

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

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

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

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

Fees: What’s Fair & What To Do

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

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

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

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

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

WHAT IS THE HISTORY OF FEES?

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

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

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

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

CAN THE BOARD SET FEES?

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

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

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

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

HOW TO PROTECT YOURSELF

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

Since you firm has handled the case (particularly if you are not the first attorney), what is the total amount of compensation that has moved to the claimant though the date of the last fee you got.

How much was that fee?

Including the §32, what is the total amount of money moving to the claimant, and what is your total fee?

If you have any sense of the amount of medical that has been paid and it is a lot, toss in how many office visits, physical therapies, or surgeries there have been.

Since you don’t get fees for appeals and rebuttals, if you have had some since your last fee (and by fees, I do not mean a $75 appearance fee), put that in, too.

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

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

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

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

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

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

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

Legal Reasoning vs Intuition

Indicia tables

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

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

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

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

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

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

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

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

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

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

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

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

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

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COMMISSIONER BIOGRAPHIES August 23, 2010
This report is done at the request of 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.
The first section is the official biography supplied by each commissioner for insertion into the annual reports originally printed but now available only on the web site. Although a seven-year term of office would run, for example, from January 1, 2009 to December 31, 2015, some commissioners are appointed to fill terms for which one, two, or more years have already run: their term would run until the end of that seven-year period, not seven years from the date of their formal confirmation. After each name is the year first appointed and in brackets the [year] their appointment ends. But some are reappointed and others, get “term swapping” so the dates in brackets are always tentative.
The second section is the ‘unofficial’ background of each commissioner. You will notice that three of the current commissioners (Libous, Finnegan, and Paprocki) have been the beneficiary of “term swapping”. Term swapping occurs when a commissioner is reappointed before the end of their term to a new term that has just started that should have gone to either an existing commissioner up for reappointment (Libous for McManus, Finnegan for Zinck, Paprocki for Berns) or a vacancy created by another commissioner’s departure (Libous for Sweet).
More information about the commissioners can be found in my book: Behind The Closed Doors. Key chapters are: “Why Commissioners are Important“, “How Commissioners are Selected“, “Responsibilities of a Commissioner“, and “Make More Commissioners’s/s Work“.

▲ Beloten, Robert E
▲ Bargnesi, Mona
▲ Bell, Richard A
▲ Ferrara, Donna
▲ Finnegan, Candace
▲ Foster-Tolbert, Freida

▲ Lobban, Loren D.
▲ Higgins, Mark D
▲ Libous, Frances M
▲ Lower, Conrad
▲ Paprocki, Ellen O’Mara
▲ Williams, Samuel G

▲ And there is one vacancy
Plus former commissioners …..
▲ Firestone, Scott
▲ Weiss, Zachary
▲ Former Commissioners before 2000


ROBERT EDWARD BELOTEN 2009-[2015]
District: not applicable open Party: Democratic Prior Profession: Workers Comp Law Judge/Attorney Official: On July 1, 2009, Governor Paterson announced his selection of Robert Edward Beloten as the next chairman of the Board, as of July 21, 2009, the day his predecessor Zachary Wiess’ resignation took effect. Beloten had been a presiding law judge at the New York State Workers’ Compensation Board from 1988-1996 and 2000-2009. From 1996-2000, he was a Senior Law Associate at the law firm of Keating and Klein of Syosset, New York, a firm specializing in health care law. In addition between 1996-2000 , Mr. Beloten, also served as a part-time hearing officer in the New York Supreme Court in Mineola, New York conducting hearings on property assessments on residential properties in Nassau County and was an arbitrator and mediator for the Workers’ Compensation Alternative Resolution Panel for the Construction Trade in Albany, New York. From 1985-1988, he was an assistant counsel For the New York State Racing and Wagering Board. He instituted Administrative proceedings to ascertain violations of statues, rules and regulations governing racing and pari-mutuel wagering which include the administering of controlled and/or prohibited substances to horses, as well as the failure of employers to provide their employees with required workers’ compensation insurance. Mr. Beloten clerked for New York Civil Court Judges Herbert A. Posner and Pearle Appelman from 1981-1984, in Kew Gardens. He has lectured extensively throughout New York on medical law and workers’ compensation. He earned his law degree from the Hofstra University School of Law, and a Bachelor of Arts degree from the University of Maryland, College Park with concentrations in History, Government and Politics and Zoology. (Term expires 2015)
Background. Confirmed May 2009. Prior to his appointment was a WC law judge in Queens. As we have little information on him, his reference as being Paterson’s roommate only explains why he out of many was chosen. This was not meant to detract from his credentials. Beloten graduated from Hofstra Law School after earnings a B.A.and with honors from the University of Maryland. Originally a judge in Hempstead, he left the Board for a few years, and then returned as a judge in Queens. He as described in a recent e-mail to me as being “ well liked by Claimant and Carrier Attorneys. Practitioners on both sides respect him as a caring well informed Judge. No claimant has ever left his part feeling that they were rushed or shortchanged. It’s extremely rare that someone with so much experience and knowledge of the day to day operations of the WCB becomes a Commissioner.” He has been practicing law since 1982. (Last edit: July 1, 2009)

MONA A. BARGNESI 2001-[2010]
District: Buffalo Party: Republican Prior Profession: Attorney Official: Mona A. Bargnesi is a graduate of Brown University and the University of Pittsburgh School of Law. Ms. Bargnesi was previously associated with the firm of Gibson, McAskill & Crosby, LLP of Buffalo, where she practiced in the areas of medical malpractice and general litigation. Prior to that, she held the position of Assistant Attorney General in the New York State Attorney General’s Office. Ms. Bargnesi is fluent in Spanish and French. She has extensive volunteer experience, including service as a member of the Board of Hispanics United of Buffalo, the Amherst Senior Citizens Foundation and the Olmsted Center for the Visually Impaired.
Background: Originally appointed in 2001 to finish the term of the late Commissioner Frank Ryan. Reappointed in 2005, her term ends December 31, 2010. (Last edit: May 21, 2009)

RICHARD A BELL 2006-[2012]
District: Albany Party: Republican Prior Profession: Insurance Executive Official: Richard A. Bell was Executive Director of the Workers’ Compensation Board, acting as the principal assistant to the Chair, before his appointment as Commissioner. Mr. Bell brings to the Board a strong background of workers’ compensation expertise. Prior to state service, Mr. Bell had almost 25 years of claims management experience in the workers’ compensation field. Mr. Bell is a graduate of Gettysburg College with a Bachelor of Arts in Economics and is a graduate of the State University of Albany with a Masters of Science in Educational Administration.
BACKGROUND. His wife is Monica Bell who worked for George Pataki during his term as a State Senator, then becoming his personal Secretary/Aide when he became Governor. Appointed in 2006, Bell’s term ends December 2012. (Last edit: May 21, 2009)

DONNA FERRARA 2005- [2011]
District: Hauppauge Party: Republican Prior Profession: State Assemblyman/Attorney Official: Donna Ferrara is the previous Chair of the Workers’ Compensation Board. Ms. Ferrara also served six terms in the New York State Assembly. She was the ranking member of the Assembly Insurance Committee, where she authored legislation for the benefit of breast cancer victims. Consistently ranked at or near the top of all state legislators every year for her exceptional voting record on environmental issues, Ms. Ferrara also received awards for her work in crime prevention and victim rights. Ms. Ferrara was proud to be named a Beatrice Koretsky Fellow at Harvard University’s JFK School of Government Women and Power Program. Ms. Ferrara graduated from St. John’s University School of Law. She also received a Bachelor of Arts in English from the State University of New York at Albany. She is married to Robert Gregory, and they have two children.
BACKGROUND. Some time after Robert Snashall retired, when Governor Pataki decided to formally select a Pro-Tem Chairman, Pataki selected Commissioner Ferrara who retained that position until the formal appointment of David Wehner as Chairman. At that time, Ferrara returned to the position of Commissioner for the balance of her term which expires in December 2011. (Last edit: May 21, 2009)

CANDACE KELLOGG FINNEGAN 1998- [2010]
District:Peekskill Party: Republican Prior Profession: Human Resources Executive Official: Candace K. Finnegan brings a wealth of experience in human resources management to the Workers’ Compensation Board. She began New York State service in 1977 and has served as Personnel Administrator and Deputy Director of Labor Relations for the Department of Labor, Higher Education Services Corp., and OMH’s Rockland Children’s Psychiatric Center, where she conducted special investigations, mediated employee grievances and served as the State’s advocate in employee disciplinary arbitrations. Mrs. Finnegan is a graduate of Skidmore College and attended SUNY Albany’s MBA program in Human Resources Administration.
Background: Her husband is Michael Finnegan, a former law partner of then Senator George Pataki. Immediately upon Pataki’s election as Governor, M. Finnegan became his General Counsel, leaving in 1997 to become managing director of investment banking for JPMorgan Chase. Candace Finnegan was someone whom the Albany Times Union once described as Pataki’s wife’s “best friend.” She was originally appointed in June 1998 for a term to end Dec 2004. In 2003 when Commissioner Zinck’s term expired and he was up for a full seven-year term, that term was given to Finnegan and Zinck given the balance of Commissioner Libous’ term because she was also switched to someone else’s full seven year-term. Finnegan’s new term ends Dec. 31, 2010. (Last edit: May 21, 2009)

FRIEDA FOSTER-COLBERT 2009-[2014]
District: New York (Harlem) Party: Democrat Prior Experience: Public Relations - private and public sector Official: Ms. Foster-Tolbert brings over 15 years of varied professional experience in the areas of education, public relations and government/civic service. Serving as a Trustee for the City University of New York (CUNY), she helps to oversee the management of CUNY campuses city-wide and serves as Vice Chair for the Student Affairs Committee; and serving on the Harlem Community Development Corporation’s Board of Directors, she assists in the guidance of the organization to make the best development decisions for the growth of the Harlem Community. Ms. Foster-Tolbert worked as a PR professional with one of the largest PR firms in the world and served as Director for Governor Pataki’s Office of Community Affairs; Assistant to the Governor for African American Affairs; a Residential Life Professional where she developed and administered policy and provided enforcement and guidance to thousands of students on campus. In addition, she served as the NYC Human Resources Administration Liaison and Recruiter for BMCC’s College Opportunity to Prepare for Employment Program where she primarily worked with hundreds of students and helped to solve difficult benefit cases which ultimately enabled the students to continue their academic careers. A lifelong Harlem resident, Ms. Foster-Tolbert holds a BA from Hofstra University and an M.S. from the University of Wisconsin. (Term expires 2014)
Background: Confirmed May 2009. Foster-Colbert’s late husband, Terence D. Colbert, was a well-know political operative who worked in the office of or campaigned for President Obama, Congressman Rangel, Assemblyman Wright, State Senator Connor, and Mayor Bloomberg, among others. The following is from her May 2009 biography as posted on the CUNY website. 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 [Ed. NOTE: 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. (Last edit: July 1, 2009)

MARK D. HIGGINS 2008-[2014]
District: Buffalo Party: Democrat Prior Experience: Union Employee Representative Official: Mr. Higgins came to the board after serving over 30 years as a staff representative with the Civil Service Employees Association, Inc. where he negotiated collective bargaining agreements and represented workers in all workplace issues including workers’ compensation. He holds a Bachelor of Science and Master of Science degrees from SUNY College at Buffalo. He is a lifelong resident of Greater Buffalo.
Background: 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, a three-term Congressman from the 27th CD (Buffalo); his father also served as a Commissioner at the WCB. His term ends December 2014. (Last edit: May 21, 2009)

FRANCES M. LIBOUS 2001-[2013]
District: Binghamton Party: Republican Prior Profession: Nurse Official: Frances M. Libous, R.N., B.S. is Vice Chair of the Workers’ Compensation Board. Mrs. Libous brings a valuable health care background to the Board. She has held a Registered Nurse’s license since 1983. As a Public Health Nurse at the Broome County Health Department she helped seniors, children, people with AIDS, people with disabilities and many others to avoid institutional placements by providing direct clinical care to them at home. As a Manager at the Susquehanna Nursing Center, she helped more seniors by creating and directing home health care and outpatient medical day care programs. She also brings to the Board a commitment to fair and efficient case handling for injured workers. As the Board’s District Administrator in Binghamton, she led efforts in a 10-county region to improve the quality and speed of customer service to injured workers through pilot programs involving improved case management, experimental video conference conciliation and tougher fraud prevention.
Background: Her husband is Senator Tom Libous, one of the leaders of the then majority and now minority Senate Republicans, thus assuring her of political access denied other commissioners. First appointed in 2001 but yet to fill a single 7-year term, she has been reappointed twice more to other commissioners’ slots in order to insure her continued input at the Board, with her current term expiring December 2013. She became Vice-Chairman when her predecessor Jeffrey Sweet retired in 2006 and was took the position of acting Chairman for a few months after David Wehner left the board until it was decided by Governor Pataki’s office to formally nominate Commissioner Ferrara as Chairman Pro-Tem. (Last edit: May 21, 2009)

LOREN D. LOBBAN 2010-[ 20??]
District: Brooklyn Party: Democrat Prior Profession: Attorney, Private Practice Official: As of August 23, 2010, there is no official biography published by the Workers Compensation Board.
BACKGROUND. Loren D. Lobban has been a member of the NY Bar since 1976, practicing insurance and criminal law. He graduated from Northern Michigan University with a BA and got his JD at Suny Buffalo. Like Williams, Lobban is involved in Democratic/WPF politic as an active contributor to Democratic candidates for national and statewide offices. As a matter of interest, Lobban has contributed to Brian Higgins for Congress ($5000 in 2006), the brother of current Commissioner Mark Higgins, but with enough left over for State Senate President Malcom Smith, among other state democratic office holders. Although he was nominated by Governor Paterson and appeared before the Senate Standing Committees on Labor and Finance in May 2010 (at the same time as Samuel Williams). Lobban did not actual take the oat of office for several more weeks. (Last edit: August 23, 2010)

CONRAD W. LOWER 2009-[ 2015]
District: Brooklyn Party: Democrat Prior Profession: Attorney, Labor Union Official:Conrad W. Lower practiced labor and employment law for over 25 years. As Senior Counsel with the New York State United Teachers (NYSUT) he represented public employees and their local unions before administrative agencies such as the Public Employment Relations Board and the State Education Department, and in New York’s state and federal courts. As a Labor Relations Specialist for NYSUT he was responsible for negotiating and enforcing collective bargaining agreements, and advising local union officers and members on workers’ compensation and other employment issues. Mr. Lower’s significant cases include a jury verdict in favor of seven teachers and aides who suffered carpal tunnel and emotional distress injuries from a school district’s unconstitutional actions, and an order of reinstatement and back pay for school bus drivers and mechanics whose jobs were unlawfully outsourced. He began his legal career in private practice in Indiana representing unions before the National Labor Relations Board and in the courts, and litigating workers’ compensation, social security disability and personal injury actions on behalf of injured workers. Mr. Lower graduated with a B.A. in economics from Antioch College in 1976, and received his law degree from Northeastern University School of Law in 1983. Appointed by Governor Paterson in May 2009, he was confirmed by the State Senate September 10, 2009.(Term expires 2015)
BACKGROUND. Although his May 2009 appointment was expect to breeze through the State Senate, his formal nomination was one of nearly 100 confirmations held up for months by the State Senate during its few months in the summer of 2009 when leadership and majority control of the Senate shifted back and forth between the Democrats and Republics and a variety of individuals who claimed to be Senate Speaker . There appears to be no other reason for this delay. (Last edit: August 23, 2010)

ELLEN O’MARA PAPROCKI 2001-[2011]
District: Syracuse Party: Republican Prior Profession: Management Executive, Public Sector Official: Ellen O. Paprocki brings a varied background to the Workers’ Compensation Board. Prior to joining the Board, she served as Assistant Director of the New York State Fair in Syracuse, where she provided management and program/policy development for the annual State Fair and for more than 200 other events throughout the year. She spent many years in Washington, DC, working with the U.S. Department of Labor as a Field Office Coordinator, Labor- Management Liaison and Investigative Trainer, as well as serving as a Congressional Liaison for the Agency for International Development. Ms. Paprocki spent time as a Peace Corps volunteer in the early 1980s. She is a graduate of St. Bonaventure University with a Bachelor of Arts degree.
Background. Her father is Judge John O’Mara, an influential lobbyist and power broker both during and after the Pataki administration. As reported in the NY Times, “Paprocki won another term on the WCB by means of a favorite old Albany switcheroo. She changed places with another board member whose term is expiring while Mr. Pataki is still in office. This was done after an attempt in June 2006 to nominate her to two consecutive terms, then to a single seven-and-a-half-year term, exceeding the term specified by state law.” After the June incident, her name was temporarily withdrawn. She also had the rare distinction for a commissioner by sitting on two State boards at one time. After leaving the her paid position at the State Fair, she was then appointed as a director of that Board, a creation of and funded in part by the State of New York, in where she continued to influence the State Fair’s Board‘s decisions, a position she has held for eight years until the State Fair Board was voted out of existence by the State Legislature early in May 2009. Although her presence on the State Fair Board was not widely known nor mentioned in her official biography, she did receive approval from the Pataki administration and a confidential authorization from the State Ethics Commission to take this second State appointment, thus being able to use her influence on two State Boards. Her current term at the Workers Compensation Board ends December 2011. (Last edit: May 29, 2009)
SAMUEL G WILLIAMS 2010-[2016]
District: Buffalo Party: Democrat Prior Profession: Labor Union Official Official: Samuel G. Williams was born in Niagara Falls, New York. Mr. Williams graduated from high school in 1970 and started his union career as a sheet metal apprentice. He served as a journeyman for Sheet Metal Workers Local 71 until 1976 when he was hired at the former Harrison Radiator division of General Motors Corporation and became a member of the UAW Local 686. Mr. Williams rose through the union ranks as alternate, district, and shop committeeman. In 1996, he took part in the development of the “Transitional Work Center” concept within General Motors, which allowed and encouraged UAW members collecting Worker’s Compensation to return to work early. The program allowed injured workers to return to work in non-traditional jobs until they were able to return to their normal work duty. This program is still in place today, greatly reducing the Worker’s Compensation costs throughout the industry. Mr. Williams was appointed to the International Staff of the UAW Region 9 as a Servicing Representative. In this capacity he negotiated collective bargaining agreements, handled arbitration issues and PERB hearings for numerous UAW locals throughout the Western New York area. In 1998, he was appointed Director of Education for UAW Region 9, encompassing New York, Pennsylvania and New Jersey. And in August of 2004 he was appointed Director of the CAP (Community Action Program) Region 9 UAW New York State. Throughout the years, Mr. Williams has received many awards and honors for his tireless dedication to causes he believes in. He was honored in 1994 with the UAW Citizenship Award and in 1999 as Labor Citizen of the Year from the Niagara/Orleans Labor Council AFL-CIO. In 2009 he received the Norm Harper Labor Award from the Coalition for Economic Justice (CEJ), and the Buffalo Central Labor Council “Labor Person of the Year” award for his commitment to labor and community partnership through legislative and electoral solutions. In January 2010 he received the Martin Luther King Jr. Social Justice Award. Mr. Williams has been married to his wife and high school sweetheart Catherine for 38 years and has three grown sons; John, Sam and Tom. Mr. Williams proudly became a first-time grandfather with the birth of a grandson, Elijah Jaxon. (Term expires 2016)
Background. The above official biography should be quite clear as to how Williams arrived at the Board. Appointed by Governor Paterson in May 2010, his current term at the Workers Compensation Board ends December 2016. (Last edit: August 23, 2010)

▼ FORMER BOARD MEMBERS ▼
SCOTT FIRESTONE 2000-2004, 2005-2009
District: Hempstead Party: Conservative Prior Profession: Public Official/Attorney Official: Scott C. Firestone announced in June 2009 his resignation from the Board on July 21, 2009, to take a position as a Federal Social Security Judge. He practiced law and served as Deputy Supervisor of the Town of Huntington before joining the Workers’ Compensation Board. He was admitted to the New York State Bar Association in 1989. Mr. Firestone is a graduate of the Bridgeport School of Law in Connecticut. In addition to New York State, Mr. Firestone is admitted to the Bar in Connecticut and Florida. He resides in the Town of Port Washington in Nassau County.
Background: His father was a leader in the Independence Party during the 1998 Pataki re-election campaign when the Independence Party was fighting internally to either run its own candidate or leave the line blank, thus giving a ‘pass’ to Pataki. As a result, after Pataki’s re-election, Scott Firestone received his appointment in March 2000. When his term of office expired in 2004, he then joined the New York State Conservative Party through whose efforts he became a District Administrator in Hauppauge. Then in August 2005, again through the Conservative Party, he was reappointed to the Board with a term ending December 2009. (last edit: Sept 24, 2009)

ZACHARY S. WEISS 2007-2009
Chairman. Party: Democrat Prior Profession: Public Official/Attorney Official: In June 2009, Weiss announced his resignation as both the Chairman and a member of the Board on July 21, 2009, to take a position as a Federal Social Security Judge. In 2007, Mr. Weiss joined] the Board from the New York State Insurance Department, where he was Special Counsel to the Insurance Superintendent.Prior to joining the State Insurance Department, Mr. Weiss held senior positions at the Office of the New York State Attorney General, beginning in 1999. He first served as Deputy Chief of the Criminal Prosecutions Bureau, where he supervised white collar criminal prosecutions. In that capacity, he oversaw an investigation that led to significant reforms at the New York Racing Authority.From 2003 to 2005, Mr. Weiss was the First Assistant in the Organized Crime Task Force, supervising organized crime investigations, setting legal policy and reviewing all filings, including eavesdropping applications. He also worked with state and federal agencies, including the State Inspector General in an investigation of procurement fraud at the New York State Canal Corporation. In 2005, Mr. Weiss became Counsel to the Criminal Division, where, among other achievements, he directed the grand jury investigation into bid rigging at Marsh & McLellan that resulted in 20 convictions. From 1985 to 1999, Mr. Weiss served in the office of the New York County District Attorney, beginning as an Assistant District Attorney. He later moved to the Trial Division as a Homicide Assistant, and then served in the Organized Crime Narcotics unit and as a Senior Investigative Counsel for the Rackets Bureau. Mr. Weiss was also an adjunct professor at Benjamin Cardozo Law School from 1998 to 2002, where he taught a course in fact investigation. Mr. Weiss clerked for Michigan Supreme Court Justice Charles Levin from 1981 to 1982, and subsequently joined the Chicago law firm Sonnenschein Carlin Nath & Rosenthal as an associate. He earned his law degree from the University of Chicago, and a Bachelor of Arts degree, with a concentration in psychology, from Sarah Lawrence College.
BACKGROUND. In early 2007, Weiss was asked by Governor Spitzer to join a committee established to review the activities of the Workers Comp Board in order to improve its effectiveness. During that time, Weiss not only visited the Board, but actually attended a number of hearings in Brooklyn to learn for himself how they were conducted and he spoke to judges and other staff people. Shortly thereafter, it was announced that he would become Chairman of the Board. He has often described himself, not as a litigator, but a prosecutor. (Last edit: July 1, 2009)
OTHER FORMER COMMISSIONERS

Berns, Michael 1996-2008
Botta, Leslie 1999-2005
Charles, Ray -1998
Groski, Edel 1998-2009
Henry, Karl 1995-2009
Hill, Marjorie 1994-2001
Jorge, Julia -1999

Korn-Koren, Lindy 1990-1998
Madigan, Robert 1998-2001
McManus, Carol 1996-2005
Perotta, Carmine -1998
Ruberto, Carmine -1998
Ryan, Frank 1998-2001

Shields, Walter pre-1987-2001
Snashall, Robert 1995-2002
Sweet, Jeffrey 1995-2006
Wehner, David 2005-2007
Zinck, Robert 2001-2007
Tremiti, Ferdinand 1978-2000

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