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▼ Posted November 12, 2009 ▼
Porter v Triboro Bridge
November 12, 2009 Appellate Division, Third Department
Voluntary Withdrawal
AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. Claimant suffered work-related injuries in December 2005 and received comp benefits from that date until February 2006, when the employer, relying on an IME report, determined that claimant was able to return to work. A hearing was scheduled following claimant’s request for further action. While the hearing was still pending, the employer sent claimant a letter directing him to return to work no later than June 5, 2006 or be considered to have abandoned his position and terminated. In response, claimant tendered his resignation, noting that he was compelled to do so in order to preserve benefits that he had accrued during his employment. He further noted that other physicians who had examined him had advised against his return to work. Although the Board precluded reports of three IME’s due to violations of WCL §137, it affirmed the WCLJ’s determination. The Court ruled that, “The Board’s determination that claimant had voluntarily withdrawn from the labor market was supported by substantial evidence in the record. In addition to the Board’s reasonable conclusion that claimant refused to return to perform light-duty work, there is ample evidence in the record to support the Board’s conclusion that claimant simply chose to retire.” [Once again, the Court has determined,] “Inasmuch as the Board’s decision is supported by substantial evidence, we decline to disturb it.” Prevailing party represented by: Warren J. Fekett of counsel to Foley, Smit, O’Boyle & Weisman (Hempstead) for Triboro Bridge and another, respondents. Click here to read the full decision of the Court..
Jaworek v Sears Roebuck
November 12, 2009 Appellate Division, Third Department
§ 15(8)(f) Reimbursement Special Fund
AFFIRMED that Board the employer was not entitled to reimbursement from the Special Disability Fund. Claimant, who suffered a knee injury on July 28, 2007 in an undisputed claim, also maintained concurrent employment as the result of which the WCLJ determined that a substantial portion of claimant’s average weekly wage was attributable to the concurrent employer. Per WCL §14(6), the WCLJ directed the carrier to pay the full benefits award, $500 per week. The employer then sought reimbursement from the Fund for the portion of the award attributable to claimant’s concurrent employment. However, the WCLJ determined that the 2007 amendments to the WCL prevented such reimbursement. Initially, the Court noted, “[w]e note that because the issue presented here is one of pure statutory interpretation, we need not accord deference to the Board’s decision (see Matter of Belmonte v Snashall, 2 NY3d 560 , 565-566 [2004]; Matter of Belance v Manhattan Beer Distribs., 52 AD3d 1059 , 1061 [2008], lv denied 11 NY3d 715 [2009]). Nevertheless, we agree with the Board’s determination that the employer’s claim for reimbursement from the Special Disability Fund is barred by Workers’ Compensation Law § 15(8)(h)(2)(A), which provides that ‘[n]o carrier or employer . . . may file a claim for reimbursement from the special disability fund, for an injury or illness with a date of accident or date of disablement on or after’ July 1, 2007‘”. It is apparent from the legislative history of the 2007 amendments to the WCL that the Legislature intended to close the Special Disability Fund to new claims as of July 1, 2007. Although the employer contends that WCL §15(8)(l) opens a loophole around the amendments, payments referenced in that section are those made pursuant to WCL §14(6) and, accordingly, are subject to the date restrictions of WCL §15(8)(h)(2)(A). Inasmuch as the statutory interpretation advocated by the employer contravenes not only the unambiguous language of the statute but also the legislative intent, it is rejected and the decision of the Board is affirmed. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee (Albany) for Special Disability Fund, respondent. Click here to read the full decision of the Court..
Auchampaugh v Syracuse Univ
November 12, 2009 Appellate Division, Third Department
§ 11 Election of Remedies
DISMISSED a motion for summary judgment by the defendant on its contractual indemnification claim against third-party defendant. This case is discussed in far more detail in a prior decision by the Third Department but in this later appeal an additional issue regarding WCL §11 was addressed: “[A]n owner [may] bring a third-party claim against an injured worker’s employer in only two circumstances: where the injured worker has suffered a ‘grave injury’ or the employer has entered into a written contract to indemnify the owner” As there was no claim that plaintiff suffered a grave injury, GE could proceed only if International Chimney entered into a written agreement to indemnify it. The record showed that, although GE had an addendum in this contract referring to additional terms and conditions, the document ultimately submitted by GE was not the one reflected in the agreement nor did GE point to any evidence of the parties past practice that would permit an inference that they agreed to the terms of that document. There were a number of other factors noted by the Court but, in the end, GE lost the case because of an improperly drafted contract. Prevailing party represented by: Maureen G. Fatcheric of counsel to Costello, Cooney & Fear on (Syracuse) for third-party defendant-respondent. Click here to read the full decision of the Court..
NYSIF v. F&V Distrib.
November 4, 2009 Appellate Division, Second Department
Employment: Who is or dual
DISMISSED an action to recover allegedly unpaid premiums for a workers’ compensation insurance policy. Under the terms of the policy, premiums were to be calculated based on payroll and the remuneration earned during the policy period by the employees of the defendant engaged in its business operations, and “all other persons engaged in work that could make [SIF] liable under Part One (Workers’ Compensation Insurance) of this policy.” This case involves certain truck drivers who made deliveries of the defendant’s products and were not on the defendant’s payroll. The deliveries they made were based upon sales made by the defendant’s employees. The issue is whether compensation the defendant paid to the outside drivers should have entered into SIF’s calculation of the relevant premiums. If the outside drivers were the defendant’s employees, then SIF is correct that the defendant was in default of its premiums. However, if the outside drivers were independent contractors, then SIF has no claim. SIF failed to make a prima facie showing that the factors relevant to determining whether there exists an employer-employee relationship were met in this case, under either the “control test,” or the “relative nature of the work test“. Nor did SIF make a prima facie showing that there was a “reasonable risk” that the Workers’ Compensation Board would conclude that the outside drivers were the defendant’s employees, rather than independent contractors. Prevailing party represented by: Christopher P. Keenan of counsel to Westermann, Sheehy, Keenan, Samaan & Aydelott, (White Plains) for respondent. Click here to read the full decision of the Court..
Administrative Assets v Zurich Am. Ins. Co.
October 1, 2009 Civil Court Richmond County
§118 Rules of Evidence
A medical service provider commenced this action, pursuant to the No-Fault Law, to recover payments from Zurich for services plaintiff rendered to its assignor as a result of the injuries that he sustained in an automobile accident. Defendant moves to dismiss the action on the ground that the assignor is entitled to Workers Compensation because the assignor was an employee who was injured on the job while working, thus granting the WCB primary jurisdiction over issues of coverage. The issue related to a document supplied by the defendants claims specialist to prove WCB jurisdiction, a document which was obtained from the WCB: an “Employer’s Report of Work-Related Accident” (”Employer’s Report”) filled out by a third party - the assignor’s employer. The Court agreed with the plaintiff’s assertion that the claims specialist’s affidavit is insufficient to lay a foundation to admit a hearsay document (the Employer’s Report) into evidence. The Court addressed several issues relating to the hearsay exception to business records contained in CPLR 4518(a). With reference to this particular document, the Court ruled that because the document was not written in the regular course of business but was related specifically to this event, this record is inadmissible as evidence. Therefore the Court found that defendant has not submitted sufficient evidence that the assignor was employed at the time of the accident, that workers compensation is primary, and that the issue of coverage must first be presented to the Workers Compensation Board. As defendant’s motion for summary judgment is denied, this case shall proceed to trial. Click here to read the full decision of the Court..
▼ Posted November 5, 2009 ▼
Esparo v Buffalo Bd. of Educ.
November 4, 2009 Appellate Division, Third Department
Aggravation or New Injury
Poorly written decision
RESCINDED and sent back for reconsideration the Board’s decision, reversing the WCLJ, that claimant’s injury was an aggravation of prior compensable injuries. Claimant, sustained work-related injuries March 1999, returned to work eight months later, and remained asymptomatic from October 1999 until September 29, 2006 when she was alleged reinsured after turning her head to address a colleague in the hallway. Claimant’s subsequent application for workers’ comp benefits was denied by a WCLJ who determined that the act of turning one’s head does not constitute an accident within the meaning of the WCL. Upon review, the Board reversed, prompting this appeal by the employer and its claims administrator. Although the claimant’s two doctors testified that claimant’s 2006 injury was unrelated to the injuries she sustained in 1999, the Board determined “that claimant’s 2006 workplace incident constitutes an aggravation of the 1999 neck injuries.” The Court wrote in its decision that because they found that inconsistencies in the Board’s decision, the matter must be remitted to the Board for the purpose of clarifying its finding regarding what occurred and rendering a decision that will permit intelligent judicial review. Prevailing arguments presented by: Karen M. Darling of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full decision of the Court..
Rodriguez v Port Authority
November 4, 2009 Appellate Division, Third Department
§161 WTC Cases & Notice
AFFIRMED with modification the Board’s decisions that the self-insured employer is entitled to a credit against workers’ comp death benefits paid in New Jersey for the period of September 11, 2001 to June 1, 2007 and denied claimant’s claim for an award for that period. The minor son of claimant and decedent elected to receive workers’ comp death benefits in NJ at the NJ rate, payable to Rodriguez as McNeil’s parent. In 2007, after seeking death benefits in New York on her own behalf and being adjudicated decedent’s domestic, she was awarded workers’ comp death benefits in NY commencing June 1, 2007 – the day that, as found by the WCLJ, McNeil’s NJ death benefit payments ceased. As for the period between September 11, 2001 and June 1, 2007, the WCLJ determined that the employer was due a credit in the amount of the NJ award paid to claimant on McNeil’s behalf and, therefore, she was not entitled to an additional death benefit award for that period. The Court wrote, “Although a domestic partner of an employee who died in the terrorist attacks is deemed a surviving spouse of such employee for the purpose of any death benefits, here, claimant received the NJ award on behalf of her son, who was the only claimed surviving beneficiary. Therefore, allowing claimant to collect death benefits in NY without entitling the employer to a credit against the NJ award payments would amount to an impermissible double recovery by decedent’s surviving beneficiaries.” Turning to the date upon which claimant’s award of death benefits commenced, the record does not support the Board’s finding that the New Jersey award payments ended on June 1, 2007. Rather, the evidence submitted to the Board establishes, and the employer concedes, that those payments ended on February 17, 2007 and, therefore, claimant should be entitled to an award of death benefits commencing on that date. [ED. NOTE: April 1, 2010 - Mo. No. 2010-120: Court of Appeals denied motion for leave to appeal]. Prevailing arguments presented by: David Sanua of counsel to Gorman & Rankin (NYC) for Port Authority of New York and New Jersey Click here to read the full decision of the Court..
Campos v Richmond Home Need
November 4, 2009 Appellate Division, Third Department
§ 23 Late or Interlocutory Appeal
REVERSED the Board’s decision that claimant’s application for review of an administrative decision was untimely. Claimant’s counsel argued that the claimant’s doctor (Persuad) had been improperly precluded from presenting evidence in a decision filed on February 1, 2008. In a decision filed on February 8, 2008, the WCLJ determined that Persuade “remain[ed] precluded” and found that claimant suffered a further psychiatric causally related disability, but made no monetary award. Claimant’s appeal, received March 7, 2008 by the WCB, sought reversal of the WCLJ’s decision to preclude Persuad’s testimony and reports and referenced February 8, 2008 as the filing date of the decision to be reviewed. The Board panel denied review, concluding that claimant’s application was four days late because she should have appealed from the WCLJ’s February 1, 2008 decision as opposed to the February 8, 2008 decision. The Court wrote, “[T]he fact that interlocutory review can be sought of a threshold legal issue does not, as the Board held in this case, mandate a claimant to seek review at such time or risk the issue being foreclosed as untimely“, and send the case back for consideration of whether Persuad’s testimony and reports were properly excluded, ruling that the Feb 8, 2008 was the correct decision as the WCLJ expressly revisited the question of Persuad’s preclusion, thus making the Feb 1, 2008 decision date irrelevant. Prevailing arguments presented by: Brian M. Mittman of counsel to Markhoff & Mittman (White Plains) for appellant. [ED.NOTE: opposing party failed to present an argument.] Click here to read the full decision of the Court..
Liberty Mutual Insurance Company et al v. Hurlbut et al
March 9, 2009 New York Southern District Court
Aggregate Trust Fund
DISMISSED a claim brought by insurers against the NYS WCB challenging the constitutionality of amendments to the WCL which modified insurers= ability to settle claims by empowering an aggregate trust fund (ATF) to settle claims following the required deposit by the insurer of the present value of the claim without the ATF required to obtain an insurer’s approval before entering into a settlement nor to refund to insurers deposit amounts in excess of settlements. The Court ruled that “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.” Prevailing arguments presented by: Barbara K. Hathaway of counsel to Andrew M. Cuomo, Office of the Attorney General
▼ Posted October 29, 2009 ▼
Browne v NYC Tr. Auth
October 29, 2009 Appellate Division, Third Department
§21(1) Presumptions
RESCINDED and sent back for reconsideration the Board decision that there was no prima facie medical evidence of a causally related injury. Claimant, a railroad track employee, was bending down to pick up a rail flag when he began experiencing weakness on the left side of his body, went to the hospital the next day, and was diagnosed with having suffered a stroke. Thereafter, claimant submitted an application for workers’ comp benefits, asserting that his stroke arose out of and in the course of his employment. Following the hearing, at which no testimony was taken, a Law Judge determined that there was no prima facie medical evidence and designated the claim “no further action” pending claimant’s submission of such. The Court ruled that inasmuch as the employer never refuted the allegation that the onset of symptoms occurred while claimant was at work, claimant was entitled to the statutory presumption that his stroke arose out of and in the course of his employment (see WCL §21 [1]) “Here, the record is clear that neither the Law Judge nor the Board gave claimant the benefit of that presumption and it was ‘err[or to] requir[e] claimant to come forward, in the first instance, with prima facie medical evidence of a causal relationship between’ his injury and his employment. Accordingly, this matter must be remitted to the Board to afford the employer an opportunity to rebut the presumption and, if it does so, to then allow claimant to proffer other prima facie evidence of causality.” Prevailing arguments presented by: Robert E. Grey of counsel to Grey & Grey (Farmingdale) for appellant. Click here to read the full decision of the Court..
Hammes v Sunrise Psychiatric
October 29, 2009 Appellate Division, Third Department
§114-a Fraud
AFFIRMED the Board’s decision which ruled that claimant violated WCL §114-a and disqualified her from receiving wage replacement benefits. Claimant had been receiving benefits for a permanent partial disability. Based on the carrier presentation of the testimony of its investigator and video surveillance evidence of claimant’s disability, the Board imposed mandatory and discretionary penalties pursuant to §114-a. Once again the Court has affirmed its position that the Board is the sole arbiter of witness credibility and its determination that claimant violated §114-a will be upheld if supported by substantial evidence. In this case substantial evidence, together with claimant’s eventual admissions, supported the Board’s determination. The Court also agreed that the mandatory and discretionary penalties imposed by the Board were appropriate particularly as the Board set forth a thorough explanation for the discretionary sanction. Prevailing argument presented by: Alison Kent-Friedman of counsel to Gregory J. Allen, State Insurance Fund (Melville) for Sunrise Psychiatric Clinic, Inc. and another, respondents. Click here to read the full decision of the Court…
Koebel v New York State Comptroller
October 29, 2009 Appellate Division, Third Department
WTC Notice
AFFIRMED a Supreme Court decision dismissing petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Comptroller denying petitioner’s application for accidental disability retirement benefits. On November 25, 2002, petitioner applied for accidental disability retirement benefits from her employment with the Port Authority of NY & NJ, describing her disabling condition as posttraumatic stress disorder that resulted from her observation of the terrorist attacks on September 11, 2001 from a location in New Jersey and her subsequent performance of emergency management duties. The Comptroller denied petitioner’s application based upon her failure to give timely written notice to him as required by Retirement and Social Security Law §63(c). Petitioner challenged this determination in a CPLR article 78 proceeding which the Supreme Court dismissed. The Appellate Court disagreed with the Petitioner’s Contention that the widely-known events of September 11, 2001 themselves satisfied the notice requirements of Retirement and Social Security Law § 63 and that her oral notice to her supervisor was sufficient or that her mental state following September 11, 2001 constituted good cause under 2 NYCRR 331.2 (b) for not giving written notice. Finally the Court explained why it did not accept the petitioner’s contention that Executive Order No. 113.7 tolled the 90-day time period. Click here to read the full decision of the Court..
Ashley v Worsell
October 29, 2009 Appellate Division, Third Department
§33 Child Support Lien
AFFIRMED a Family Court order granting the mother’s (the petitioner) application to modify a prior child support order in which the father was ordered to make monthly payments in the amount of $58. But prior to that modification, the father was involved in a workers compensation accident from which he received a $100,000 §32 settlement. In 2006, after becoming aware of this settlement, the mother sought an increase in child support and a second action that the father violated the order by failing to report his §32 settlement. Family Court affirmed the Support Magistrate’s decision that the father had not willfully violated the order, but directed the father to pay the mother 17% of the total amount he received in this settlement, as well to reimburse her for counsel fees.
The father does not dispute the fact (pursuant to Family Ct Act § 413 (1) (b) (5) (iii) (A)) that $30,000 of the award served to compensate him for lost wages but that $70,000 of the settlement was specifically earmarked to pay for future medical and, as such, is not income that should be included in child support calculations. However, as Family Court noted, the father spent the entire amount on expenses that were clearly not medically related. Therefore, he used the entire proceeds of the award to supplement his income and pay for routine expenses, such that for child support purposes, the entire settlement should be counted as income and, in part, be used to support his child. As for the decision that this entire amount be paid by the father in a lump-sum payment rather than in monthly increments, the Appellate Court noted that the father historically paid a bare minimum in child support and did not use any of the funds from this settlement to supplement the child’s ongoing support or care. Given this history, Family Court had ample justification not only to require that the income the father received from the settlement be used to provide for the needs of his child, but also that this payment be made in a lump sum. The Court ruled in the father’s favor on the issue of the legal fee. Click here to read the full decision of the Court..
▼ Posted October 22, 2009 ▼
Mott v ITT Indus
October 22, 2009 Appellate Division, Third Department
§ 28 time bar
RESCINDED and sent back for reconsideration the Board’s decision which ruled that claimant’s application for workers’ comp benefits was time barred. Claimant was diagnosed with bilateral carpal tunnel syndrome in 2006 and applied for benefits. The Law Judge disallowed the claim as time barred pursuant to WCL §28. Here, the Board determined that claimant knew or should have known no later than 2001 that her bilateral carpal tunnel syndrome symptoms were related to her employment. The Court noted, however, that notwithstanding claimant’s prior awareness that her symptoms were work-related, the Board failed to establish the date of claimant’s disablement. Thus, absent “the necessary concomitant finding that claimant’s date of disablement was more than two years prior to the filing of her claim for benefits, … any conclusion on our part concerning whether the Board’s overall determination is supported by substantial evidence would be speculative.” Prevailing argument presented by: Kevin J. McDonald of counsel to Bond, McDonald & Lehman (Geneva) for appellant. Click here to read the full decision of the Court..
Williams v City of New York
October 22, 2009 Appellate Division, Third Department
§161 WTC Cases
RESCINDED and sent back for reconsideration the Board’s decision which ruled that the claimant was not a participant in the World Trade Center (WTC) rescue, recovery or cleanup operations and denied her claim for workers’ comp benefits. Claimant was employed as an auditor working in lower Manhattan and returned to work within a week of the terrorists’ attacks on September 11, 2001. It is undisputed that her employment was within the area defined as the “WTC site” by the WCL §161(2). She had a special assignment until February 2002, returning to her normal duties until September 2002, when she took a regular retirement with over 30 years of credited service. She allegedly began experiencing an exacerbation of her respiratory condition while working on the special assignment. In 2006 and 2007, she submitted forms registering as a participant in the WTC rescue, recovery and cleanup so as to be entitled to the provisions of the recently enacted WCL Article 8-A. The Law Judge found that because the claimant had been involved in rescue, recovery and cleanup, her claim was protected by WCL Article 8-A from dismissal for being untimely (see WCL §28). Upon review, the Board determined that claimant’s activity did not constitute rescue, recovery and cleanup within the meaning of WCL §161(1) and, thus, disallowed her claim as untimely.
To qualify for the coverage afforded by the statute, a claimant must essentially establish three elements, which relate to time, location and activity. The Court wrote, “This language, which is susceptible to varying interpretation and application, is the focus of the current appeal.” and agreed with the claimant’s contention that the Board construed the qualifying activity in the statute too narrowly and focused unduly in her case on the word “rescue” rather than “recovery”. Here, the Board’s original decision and amended decision repeatedly relied upon its conclusion that claimant’s “work was not a rescue-type activity” in finding the statute inapplicable: neither decision discussed “recovery”, despite the fact that this was the relevant activity in this case. The Court said, “This is not to suggest that the Board must always address each activity (rescue, recovery, cleanup) separately or that it cannot group the terms in its decision. However, repeatedly referring to and ostensibly premising a decision on an activity that is not germane, with no analysis of the pertinent activity, does not permit meaningful judicial review.” Prevailing argument presented by: Robert E. Grey of counsel to Grey & Grey ( Farmingdale) for appellant. Click here to read the full decision of the Court..
Iannaci v Independent Cement Corp.
October 22, 2009 Appellate Division, Third Department
§ 25-a: Advance Compensation
RESCINDED and sent back for reconsideration the Board’s decision that ruled that liability shifted to the Special Fund for Reopened Cases (SFCC) pursuant WCL §25-a. Claimant sustained a work-related injury in 1992, receiving benefits until his case was closed in 2001. In 2007, the carrier requested that the claim be reopened to determine whether §25-a was applicable. The SFCC asserted that further development of the record was necessary before such a determination could be made. The Law Judge disagreed and, finding that the relevant time periods had been met under §25-a, shifted liability to the Special Fund. The Court noted that the Board’s determination that §25-a was applicable was based upon an erroneous finding that there was “no evidence” that claimant received an advance payment of compensation within three years of the date of the application to reopen his claim. The Court noted the absence of any proof regarding the nature of claimant’s light duty work meant the Board could not determine if the claimant received an advance payment of compensation, and determined “The Board could not assess whether an advance payment was made for the purposes of determining the applicability of §25-a. Accordingly, the Board’s decision is not supported by substantial evidence and the matter must be remitted for further development of the record on this issue.” Prevailing argument presented by: Jill Waldman of counsel to Steven M. Licht, Special Funds Conservation Committee (Albany), for appellant. Click here to read the full decision of the Court..
Sajeski v Waldbaum’s
October 22, 2009 Appellate Division, Third Department
Apportionment: Awards
RESCINDED and sent back for reconsideration the Board’s decision that claimant sustained a compensable injury and awarded benefits. Claimant, a maintenance worker, began working for the self-insured employer in 2001. At that time, he was receiving chiropractic treatment for a 1999 neck injury he sustained at a previous place of employment. On September 6, 2006, claimant allegedly re-injured his neck while lifting buckets filled with recyclable materials. Five days later, he submitted an application for workers’ compensation benefits. The employer challenged the claim, asserting that injury did not arise out of employment. Claimant’s immediate supervisor, Donald Allen, testified at an ensuing hearing. In light of an opinion from an independent medical examiner that claimant’s condition was 15% attributable to the 1999 incident, the WCLJ so apportioned his award. Upon review, the Board determined that apportionment was inapplicable, but otherwise affirmed the decision of the WCLJ. In doing so, however, the Board observed that claimant’s immediate supervisor “was not produced for testimony.” The Court ruled that, “While it is true that the Board’s factual determination that a claimant suffered a work-related injury will generally be upheld if supported by substantial evidence, when it appears that the Board’s decision may have been based on an inaccurate reading of the record or incomplete facts, it cannot be sustained.” The court added that it appeared from the language in the Board’s decision that Allen’s testimony was not reviewed, such that an analysis of the Board’s apportionment ruling at this juncture was considered to be premature. Prevailing argument presented by: Theresa E. Wolinski of counsel to Foley, Smith, O’Boyle & Weisman (Hauppauge), for appellants. Click here to read the full decision of the Court..
Mlodozeniec v Trio Asbestos Removal
October 22, 2009 Appellate Division, Third Department
Coverage
REVERSED the Boards decision, and thus affirming the Law Judge’s decision, that the State Insurance Fund (SIF) was liable for the payment of compensation benefits. Claimant was employed until September 1995, performing asbestos removal for Trio Asbestos Removal Corporation. During claimant’s employment, SIF provided workers’ compensation insurance to Trio but in 1996, after claimant left Trio’s employ, Trio replaced the SIF policy with one written by Zurich American Insurance Company, a policy remaining in effect until 1999. After claimant’s health subsequently deteriorated and he was diagnosed with an occupational condition August 1999, he filed for workers’ comp benefits and a Law Judge found that (1) claimant’s pleural and hyperactive airway disease was caused by his asbestos related employment, (2) he was disabled as of August 24, 1999, and (3) concluded that Zurich, Trio’s insurer on that date, was responsible for the payment of this claim. The Board reversed this decision, finding that because SIF was the insurer when claimant was employed by Trio when he was last exposed to asbestos, SIF was liable for the claim.
The question to be decided on this appeal is which carrier is liable for the payment of claimant’s workers’ compensation benefits — the carrier who insured Trio on the date claimant became disabled (Zurich) or the carrier that insured Trio when claimant was last exposed to the asbestos (SIF). In reversing the Board, the Court noted there is no question that Trio, as the last entity to employ claimant to perform asbestos removal work, is responsible for the payment of this claim. The Board’s reliance on Cammarata v Caldwell & Cook Inc. to reach a different conclusion is in error as in Cammarata no policy was in place at the time of Cammarata’s death: as a result, the policy that was in effect at the time Cammarata was last employed was found to be responsible for the payment of this. However, where a policy is in place on the date of a claimant’s disablement, that carrier is responsible for the payment of the claimant’s workers’ compensation award even though it was not in place at the time the claimant was last exposed to the condition that brought on his or her disablement. Prevailing argument presented by: Marc H. Silver of counsel to Gregory J. Allen, State Insurance Fund (NYC) for appellants. Click here to read the full decision of the Court…
Virtuoso v Glen Campbell
October 22, 2009 Appellate Division, Third Department
Disability: Further Causally Related
AFFIRMED the Board decision that claimant did not sustain a further causally related injury to his back as the result of a work-related accident in 1991; he did not qualify in 1991 for workers comp benefits due to insufficient lost time. In 2003, he requested further action on his case, alleging a change in the condition of his back that had required surgery in 2002 at which time the SFCC, now on notice questioned whether claimant’s worsened condition at the times of that surgery and a second surgery in 2006 were causally related to his accident. The Board cited several factors in determining that claimant had not established that his condition at the time of the surgeries was causally related to his accident and denied him benefits for certain time periods. It observed that claimant had failed to file medical reports during the time periods for which benefits were denied, reports required because he had not been found to be permanently disabled and the presumption of continuing disability did not arise. The Board also noted that the physician who performed the surgeries declined to say whether a causal relationship existed. Moreover, the Board concluded that proper authorizations for claimant’s surgeries in 2002 and 2006 were not obtained as required by WCL §13-a(5)et al. Nor did claimant’s proof demonstrate that either surgery was necessary as an emergency procedure. Prevailing argument presented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee (Albany) for respondent. Click here to read the full decision of the Court..
POLLS: We Want Your Opinion
Every Monday I pose a question that is of interest to everyone who participates in the New York State Workers’ Compensation system: attorneys, carriers, 3rd party vendors, and, yes, even the Board staff and other state agencies. The following Monday, I will publish an analysis of the results as well as a new poll. If you have any suggestions for a poll or would like to make a comment, contact me at TheInsider@InsideWorkersCompNY.com.
This Week’s Poll: Does
Medicare Language Hinder §32’s?
November 23, 2009: During the many discussions regarding the nationalization of health insurance, one suggestion that has been raised is that each states’ workers compensation insurance should be dropped and that all workplace injuries be covered under the national health plan.
Whether or not this is a good idea (and I don’t think it is), the federal government has inserted itself into the workers compensation systems of the states by forcing its way into waiver settlements. They are doing this by insisting that various types of language be included which take into account Medicare’s set-aside provisions, an insistence backed up by all sorts of penalties accruing to the carriers, employers, claimants, and the attorneys.
The NYS Workers Compensation Board has acknowledged this intrusion with its Subject No. 046-372 dated November 13, 2009, in which the Board has stated that it will not approve agreements which contain indemnification or hold harmless provisions in §32’s to protect a carrier or employer from liability for Medicare payments related to the established workers’ comp claim.
As I noted in the NEWSWIRE report on this subject number, several years ago I proposed that Medicare not be included in the §32 other than a simple statement:
While the parties to this agreement understand that the provisions of Medicare, Medicaid, and/or Social Security may determine the terms agreed to in this settlement, the parties acknowledge that these provisions are not within the jurisdiction of NYS WCL or the WC Board. Nonetheless, these provisions that have been taken into account by the parties in reaching this settlement are attached to this settlement for information purposes only. Any future issues pertaining to the accuracy, completeness, or reliability of information in this attachment shall in no manner impact on the finality of this settlement pursuant to §32, §23, §123, or any other provisions of the WCL.
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| The result of this poll will be published Monday November 30, 2009 |
This Week’s Poll Results:
The WCB, §32’s, Child Support Liens
November 16, 2009: The results of this poll were interesting, in particular, because it was pointed out that Workers Compensation Law already allows for the acceptance of liens against alimony and federal taxes. But, first to the poll results.
As to the question of whether or not the Board should follow precedent regarding attachments for future child support, alimony, and federal taxes, two-thirds supported the position that the Board should rule in favor of these attachments and effectively force the issue, with one-third of the participants disagreeing.
One participant wrote:
What makes child support or tax liens so special?
And a second participant wrote:
The Board should seek to have the Legislature amend §33 to get rid of the lien for outstanding child support liens. Section 33 only creates problems within compensation cases and delays and prevents resolution of the cases. To paraphrase former Chairman Weiss, it just creates unnecessary friction within the system. [ED. NOTE: I do not believe that Weiss mean to get rid of any controversial laws just to ‘speed up’ the system.
But 80% also felt the state legislature should change the law to allow for the deduction of alimony liens as well as future child support liens although 80% of the poll participants felt that federal and state tax liens are not within the jurisdiction of the Workers Comp Board.
But key to this issue was a comment from one participant who wrote:
Section 33 permits deduction for judicial orders of support for “alimony maintenance support or child support.” There is no basis for treating alimony differently from child support.
This participant is correct, for §33 includes the phrase “. . . that compensation or benefits other than payments pursuant to section thirteen of this chapter shall be subject to application to an income execution or order for support enforcement . . .”. And the Court was quite clear on this issue as it wrote, with reference to §33, in the case of Dallesandro v Dallesandro (1981, Fam Ct) 110 Misc 2d 342, 442 NYS2d 400:
It is clear from a reading of the statute that the benefits are exempt from all claims of creditors and from levy or execution for recovery, or collection of a debt. However, it has been generally stated that claims for alimony and support are an exception to the exemptions granted by statute on the theory that an adjudication of alimony or support is not a debt within the meaning of the exemption statute. The whole theory and purpose of the Workers’ Compensation Law is to provide a substitute for the loss of wages and for the protection of the employee and his dependents from want and to prevent, if possible, the injured employee and his family from becoming objects of charity or dependent upon the State. (Matter of Wilkosz v Symington Gould Corp.,14 A.D.2d 408; Westchester Light. Co. v Westchester County Small Estates Corp., 278 NY 175; Matter of Bowne v Bowne Co., 221 NY 28; 22 NY Jur, Exemptions, § 57, p 260; 65 NY Jur, Workmen’s Compensation § 14, p 323-324.)
The protection of section 33 of the Workers’ Compensation Law, is not restricted only to the family that is intact but also to the beneficiary and his family whether they are living together as a family unit or separated. It appears quite clear that the Legislature did not intend to insulate the husband and father against his legal responsibilities and obligations to support his wife or child, only the family against creditors.
And while state tax liens may be exempt until the state legislature changes WCL §33, there are several cases which state otherwise for federal taxes, such as in McCampbell v Di Nuzzo (1966) 50 Misc 2d 437, 278 NYS2d 685.
It is true that a Federal statute which mandates an act supersedes a State statute prescribing procedures to be followed by State or local statutes. (Hoye v. United States, 277 F. 2d 116 [C. A. 9th, 1960].) Also liens for Federal taxes and provisions for their collection are strictly Federal and strictly statutory. (Bank of Nevada v. United States, 251 F. 2d 820 [C. A. 9th, 1958], cert. den. 356 U.S. 938.) Further that State exemptions statutes such as subdivision 2 of section 166 of the New York State Insurance Law and section 33 of the Workmen’s Compensation Law are ineffective against Federal statutory liens for Federal taxes; and States may not interfere with power of Congress to levy and then to collect Federal taxes on income. (Fried v. New York Life Ins. Co., 241 F. 2d 504 [C. A. 2d, 1957], cert. den. 354 U.S. 922.)
Call it what you will, compensation or otherwise, the employer must still pay wages to his employee, albeit on a reduced scale, either directly as a self-insurer or indirectly through an agent, while that employee is incapacitated from employment for injuries sustained in his employer’s business.
Had that injured worker been drawing a wage instead of compensation, liens not only for child support but also for taxes and alimony could legally be deducted from wages. Since workers compensation awards are in lieu of wages, there is no logical reason that these compensation awards should be exempt.
The majority of participants to this poll agree with this concept.
It is now time for the law judges to insist that the legal financial rights of children, spouses, and the American taxpayer be taken into account at the time that awards are made, either for continuing disability, Schedule Loss of Use, or §32 settlements. And it is the responsibility of the Commissioners to support the law judges by affirming these decisions citing precedent, including but not limited to the decisions noted above.
Poll Results: NYC’s Toxic WTC Tactics
November 2, 2009: In Sunday’s NY Post, the headline of a story read “Toxic WTC Tactic” which prompted my poll of October 26, 2009 asking about your thoughts on NYC’s aggressive approach in deny all the claims.
“The WTC claimant should not be treated any differently than any other worker claiming on-the-job injuries. There is no need to create a special class of claimants simply because of the emotional nature of the WTC collapse.”
This comment from one of the participants in the poll summarizes the vast majority (77%) of the votes and comments.
Another participant wrote, “These cases should be subject to the same standard of proof of causation as any other claim. The only reason they are treated differently is for political reasons.”
In looking back at the history of the legislation which established the WTC fund, it appeared that one unspoken goal of the legislation was to avoid the necessity of determining the ‘employer of record’ and/or the apportionment of payments when multiple employers were established. After all, the reason for establishing ‘employer of record’ is to determine who will pay the bills. In this case, the Federal Government established a fund to pay for all related awards so that the issue of determining who is the ‘employer of record’ became moot. The only remaining question is whether or not the injured workers claim met the workers compensation standard of ANCR: accident, notice, and causal relationship, and not whose fault it was.
This is the forte of the workers compensation system.
And now to the poll questions and answers regarding the Post story.
Question #1: Who is better equipped to handle these claims: workers comp attorneys or personal injury attorneys?
As if to emphasize the fact that these cases should be dealt with as standard workers compensation claims, of the 77% who responded to this question, 100% voted in favor of the workers compensation attorneys. “Personal injury attorneys often inflate claims and/or conditions to increase settlement potential. The potential for exaggerated/inflated claims is worse in the personal injury field then the compensation field.”
I feel this is a rather harsh assessment. The difference between these types of litigation is that personal injury includes pain-and-suffering proof of fault whereas workers compensation is no-fault and takes less time to litigate (in most cases). I do have some personal injury attorneys on my e-mail list but do not know any participate in this poll, but in my discussions with them I have found that they have the same level of integrity as the attorneys in the workers comp system even though their tactics may be different.
QUESTION #2: Is the city being unfair to these injured workers?
The vote was 66% fair and 34% unfair. Those who felt the city was doing the right thing by denying the claims felt that the City, like any self-insured employer or carrier, had the right to defend itself although most agree the city was being inordinately aggressive. Unfortunately it appears that the attorneys, outside attorneys at that, who represent the City take the expected position of any defense attorney: “There are no injuries. If they are any injuries, they are not related to anything for which my client is responsible. If there are any injuries the majority not related. The claims exaggerated.” Of course one can ask why Mayor Bloomberg does not get involved in this issue. This would resolve this problem. However, that is a separate issue and not the subject of this poll although, when I use the term ‘City’, I do mean Mayor Bloomberg. As for the respondent who asked me a direct question on this issue, please read my response posted today on the COMMENTARY page.
Again quoting one of my respondents (his third reference in this commentary), “issues involving work conditions are best left to the comp realm WC attorneys (claimant and defense alike) know how to deal with such issues best and fairly.” This also holds true for the attorneys in the NYC Department of Law, under the direction of John Sweeney, who represent the City in workers compensation cases: they are far better qualified to handle these cases then the current outside guns.
In the workers comp system, attorneys for carriers and self-insured do recognize that people are injured in the course of their work and, after fighting that ½% of cases that do not belong in the system, accept the fact that money is going to be paid for both compensation and medical expenses. This is not the primary responsibility of the personal injury attorney on the defense side.
One respondent commented, “Re-examine the complex disability benefits, workers compensation, negligence, retirement benefits interactions in civil service workers claims.” But these are issues workers compensation sees all the time and, while some of these issues may be complex (I was one of four commissioners involved in 2,000+ cases and four Appellate Court decisions dealing with the interpretation of ERISA for Verizon employees), the Board has shown its ability to deal with these complex issues.
SUMMARY
The most important fact to consider in this issue is that the federal government, by establishing this fund, has aknowledged that there would be claims involving thousands of injured workers with enough claims being sufficiently legitimate that a fund in the hundreds of millions of dollars was necessary to pay these injured workers, not the City’s outside defense attorneys. For the City, through its hired guns, to fight every claim with some of the tactics noted in the New York Post article presupposes the City and the Mayor has taken a position that there are no legitimate claims.
RECOMMENDATIONS
I propose legislation be written at both the state and federal level that moves the adjudication of all these cases from the control of the City of New York into the jurisdiction of the New York State Worker’s Compensation Board. As for any arguments that this would necessitate more hiring by the Workers Comp Board, the cost of additional personnel and physical assets will be far less than the tens of millions of dollars the City has spent on outside attorneys and denying as many of the claims as it has.
I also recommend that a fee schedule be established with a sliding scale of fees from 5% to 10% for compensation awarded and another sliding scale of fees of 3% to 5% (paid for out of the fund and not the claimants awards) on medical expenses. Some may feel the fee schedule on WTC cases represents the “nose of the camel under the tent” for fee schedules on regular workers compensation cases. It is not as these cases do differ in many ways fromthe standard workers compensation claim.
The Workers Compensation Board and the attorneys for both sides who appear before it understand the humanitarian nature of the underlying law. The City must understand that a proper humanitarian goal is not counting how many donuts we have with our lattes but to treat each WTC claim on its merits.
POLL: Legal Fees on Medical Expenses
October 12, 2009: Our poll questions of October 5, 2009 makes reference to the Michigan State Supreme Court decision (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) which supports the proposition that carriers should pay legal fees to claimant attorneys when the only issues being controverted deal with medical expenses. Our poll consisted of three questions and the overwhelming majority of our readers took the position that carriers should pay for legal fees if the only issue at hand is medical expenses.
- 84% agreed that fees should be paid in medical only cases/hearings.
- 16% disagree.
- 68% agreed that they should be paid on §32 set-asides.
- 32% disagreed.
- 89% agreed that, if fees are to be paid, carriers should pay them.
- 11% disagree.
It is interesting to note that while 32% disagreed that legal fees should be paid on Medicare set-asides, half of that 32% (16%) agreed that, if it is a regular hearing and the only issue is medical, the fee should be paid.
89% agreed that carriers should be responsible for paying the fees rather than the claimant. And while I do not have a breakdown of the categories of voters (carrier, claimant, law judge, or other), based all the prior polls I have gotten, I think that respondents represent an even mix of these groups. Therefore it appears that carrier attorneys also feel it is appropriate that the claimant attorneys be paid a fee by the carrier.
One respondent stated the claimant attorneys are not retained to represent the interests of the medical providers. But the issue here is not the financial interests of the doctors but is almost always whether or not the claimant should get medical treatment in the future or have access to certain types of “appliances”. As to the appropriateness of the treatment or the costs, these questions are covered by the medical fee schedule set by the Board and the right of the medical provider to seek arbitration.
Another respondent noted that the payment of a classification fee does not end the attorneys’ involvement with the claimant, and the attorney should be prepared for future litigation.
There were two other interesting statements:
This is a contingency fee system. Therefore, fees should be paid on all recoveries. Simply look at the negligence claims. The jury pays damages on past present and future loses–including lost wages medical needs of every type–and the attorney generally receives 1/3 of all damages. Why should the comp attorney be short-changed. The comp system already limits damages and does not pay for physical pain or emotional suffering.
And
The claimant’s attorney should be compensated for his/her efforts concerning all issues. If the issue only concerns medical services the attorney should still be paid. The attorney’s efforts in resolving these issues is as much of a service for claimants and the Board as their efforts concerning indemnity issues. The big question is how to award a fair fee with the limited funds of a Section 32 or of an ongoing claim. This way I believe that medical issues will be resolve more expeditously and the medical providers who do not have any standing will have some representation.
But more importantly, one respondent noted that the “law already permits fees on medical IF the Board approves”. I reviewed NYCRR §300.17 and the sub sections therein. Although this refers to fees charged by claimant attorneys, it only states the manner in which the presentation of the bill must be done but does not in any way delineate who is ultimately responsible for paying the legal fee.
Therefore, in order to get the discussion rolling, I recommend the following:
- In §32’s any money allocated for medical should be subject to a 5% fee paid by the carrier directly to the claimant’s attorney. And it should be for all expenses, be it in the general text of the agreement or a specific Medicare set-aside, whether the money is paid directly to the claimant or put into an escrow account.
- In cases in which the claimant has been classified, the classification fee historically has meant that the attorney be available at no additional cost for future litigation. But there must be a limit as to how often the claimant’s attorney should be called upon to fight for medical treatment. I recommend that in all hearings and/or appeals necessitated by a medical-only controversy, in which the claimant’s attorney is successful, a fee of $75 per hearing and an additional $100 for an appeal should be awarded the claimant’s attorney, paid for by the carrier. These fees would not apply to the first hearing or appeal after the classification fee has been awarded.
- For those claimants who have not yet been classified, I recommend that a fee of $75 be paid for each hearing and $100 for each appeal.
Both frivolous adjournments and appeals are subject to penalties. Also §25(2)(c) awards a penalty in those cases in which the carrier or employer has objected to an award of compensation without just cause, but does not subject them to a penalty for failure to agree to medical treatment, thus necessitating a hearing by the claimant.
This proposal to pay fees on medical-only controversies evens the playing field between the claimant and carrier and may help cut down on the number of hearings that deal with medical-only issues. Therefore, I suggest one of the law judges and/or one of the panels start instituting such fees. Be sure be sure to quote the Matter of Peterson v. Magna Corp.
POLL ANALYSIS: Secret Project 2015
September 21, 2009: Just a little more than two weeks ago, the news broke about a here-to-fore top secret project being conducted at the Board and we asked you your opinions:
Our September 14, 2009 poll asked “Based on what you have read about this here-to-fore top secret project, do you believe:
- the Project should go forward?
- the explanation given by the WCB?
- there are too many hearing?
- there are too few hearings?
- less hearing help the claimants?
- more hearing will help the claimants?
- is there another agenda behind this Project?
Only 10% of you agreed that Project 2015 should go forward and these 10% were the only ones who felt that the Board’s explanation for Project 2015 gave the true purpose of the Project, that there is/was no hidden agenda. What was interesting was that only one person of this 10% who believed the Board’s explanation had other comments to make. It gives the impression that the others in this 10%, who supported the Board’s decision, may have been voting as ‘good employees’ as none took the time to justify what they thought was good about the project. Which goes to prove the adage that sometimes saying nothing says a great deal more than saying something.
Only 10% of you agreed that Project 2015 should go ahead and these 10% were the only ones who felt that the Board’s explanation for Project 2015 gave the true purpose of the Project, that there is/was no hidden agenda. What was interesting was that only one person of this 10% who believed the Board’s explanation had another other comments to make. This gives me the impression that the others in this 10%, who supported the Board’s decision, may have been voting as ‘good employees’ as none took the time to justify what they thought was good about the project. Which goes to prove the adage that sometimes saying nothing says a great deal more than saying something.
62% of you feel that the Board has a hidden agenda and had nothing else to say although some of you marked other choices. These other choices basically took the position that there were far too few hearings, which in turn would negatively impact on claimants.
As to the question as to how Project 2015 will be help or hurt the system, this is the breakdown.
- Are there are too many hearing?
- Do less hearing help the claimants?
Not a single person voted for either of these two. To the two questions which asked the opposite:
- Are there too few hearings?
- Do more hearing will help the claimants?
28% stated that there are too few hearings and that more hearing help claimants.
The two sets of answers appear to go to the heart of the issue concerning Project 2015 and are better understood when reading the comments in OTHER:
- no hearings-no attorney fees. with no attorneys the board can screw the parties all they want.
- to eliminate lawyers from the system
There has been an underlying concern brought to my attention frequently over the past few months and commented upon in this poll:
Legal fees and attorneys’ involvement in the system
I was told that the goal of Project 2015 is to reduce the number of hearings and have administrative personnel review the paper files and make the decisions that are now before the law judges. In fact, as I write this posting, examiners who review certain submissions have been given the authority to determine if the medical submissions are sufficient for a hearing on SLU, examiners who do not have the formal training that law judges undergo before they are allowed to hear cases. And because decisions by administrative staff, unlike decisions by law judges, are not appealable under the current rules and regulations, the Board can in effect make a determination on claimant injuries that it, the Board, feels is best and that is the end of the matter.
And while it is true that claimants have the right to ask for a hearing, there is a question as to whether or not the Board has to give them that hearing. And this is as true for employer and carriers as well, as they too have perspectives they feel should be heard, not just read.
When this is combined with the increasing attempts by the Board to penalize both claimant and carrier attorneys for not being prepared, as defined by a law judge, it appears that the real goal is to reduce the income of the attorneys, thus minimizing their ability to serve their clients.
To eliminate lawyers from the system
After all, an uninformed claimant will not know their rights or alternatives.
The 2015 project will hurt the people that it should be helping…the injured worker. The Board will take hands off approach unless the claimant asks. How do the uninformed know what they are entitled to?
No hearings-no attorney fees. with no attorneys the board can screw the parties all they want.
The essential question is, not what is the goal of the Board, but what is the goal of the Oligarchic Cabal who is trying to impose this Project 2015 onto the claimants and employers.
About a year or so before I left the Board, I participated in a decision denying an undocumented worker additional compensation, a case that went to the Court of Appeals who affirmed my panel’s decision. If there were no hearings but simply decisions made by examiners, would that case have been appealed? Would the public have known about it and attempted to seek redress for what they felt was an improper decision through the political system? The recently signed ‘LaCroix’ law bill came about because of the public nature of the debate at the WCB, the public hearings, and public record of the appeals of those hearings. Project 2015, which to this date the Board has not yet explained, will deny all participants in the system an open window. Are these member of the Oligarchic Cabal setting up a Star Chamber with them as the members of this secret society or will we move in the other direction, as one voted stated, “ The more Hearings the greater the scrutiny the greater the public is served.”
The Board is here to serve the needs of the injured workers and their employers, not the secret ambitions of a select few who view cutting the Board budget and making faster decision making regardless of the fairness as a means to their personal advancement through government and into the private sector.
I think I can speak for the workers compensation community when I say,
“Dear Board, we await your explanation as to what is Project 2015 and its purported goals.”
October 9, 2009 Appellate Division, Fourth Department
Burnett v Columbus Mckinnon Corp.
Jurisdiction
REVERSED the order of the lower court by finding that the Supreme Court erred in granting plaintiffs’ motion for an order applying the substantive law of New York, rather than Indiana, in this personal injury action. Burnett, the plaintiff, a resident of Ohio, was injured in Indiana, with a piece of equipment manufactured by the defendant, a New York corporation, but owned by his employer. The Appellate Court first addressed the ancillary issues (1) of the site of the tort which should be the place of injury rather than a location where the allegedly defective product was manufactured and (2) whether “New York’s choice-of-law principles govern the outcome of this matter”. Turning to the merits of the case court then addressed two additional issues: New York State’s adoption of a “pure” comparative negligence approach and then New York’s law which posits that comparative fault may not be apportioned against the employer of an injured worker covered by workers’ compensation insurance unless that worker suffered a grave injury within the meaning of WCL §11. After review of these four points plus a number of other issues raised by both parties in the Appellate Court determined that the Supreme Court should have granted defendant’s motion seeking a determination that the substantive law of Indiana applied. Prevailing party represented by: Richard A. Clack of Counsel to Amigone, Sanchez, Mattrey & Marshall, Llp, (Buffalo) for Defendant-appellant. Click here to read the full decision of the Court..
October 8, 2009 Appellate Division, Third Department
Chiesa v Stillwater Cent. School Dist.
Causal Relationship: Medical (ANCR/ODNCR)
AFFIRMED the Board which affirmed the Law Judge’s ruling that the claimant did not sustain a causally related injury. Claimant applied for benefits, claiming that she had been injured due to exposure to particulate matter released into the air as the result of an explosion that occurred due to construction and asbestos abatement work at the school where she worked. The WCLJ, subsequently affirmed by the Board, disallowed the claim, finding, among other things, that claimant lacked credibility and failed to establish causally related injury that stemmed from this accident. The claimant’s contention that she was exposed to a toxic cloud which engulfed the school after an explosion was contradicted by the employer’s witnesses who testified that neither recalled an explosion that caused a dust cloud to engulf the school or any portion of it. Each denied being informed of such an incident nor with claimant’s alleged injury until three years later when claimant filed her application for compensation benefits. And there were no other witnesses or documentation to support her claim of the toxic cloud. Although the claimant testified she resigned from her position the day after the incident in part because of her alleged injuries, her letter of resignation states that she resigned for “personal reasons”, with no mention of the accident or any injuries. The school principal testified he requested her resignation because of her poor work performance. As to the medical evidence the claimant’s medical providers based their opinion on her claim of exposure whereas the carriers doctors noted her pre-existing respiratory ailments. The Court agreed with the Board’s determination that claimant lacked credibility and did not establish a causally related injury to be supported by substantial evidence. Prevailing party represented by: Sean F. Nicolette of counsel to Walsh & Hacker (Albany) for Stillwater Central School District and another, respondents. Click here to read the full decision of the Court…
Ancrum v NYC Bd. of Ed.
Disability: Further Causally Related
AFFIRMED the Board which affirmed the Law Judge’s ruling that the claimant had no further causally related disability. The claimant sustained a compensable injuries in February 2005. The employer thereafter controverted the claim based upon the results of an IME in 2007 as which time the WCLJ, later affirmed by the Board, determined that claimant had no further causally related disability. It is well settled that “[s]o long as the Board’s determination is supported by substantial evidence it will be upheld“. As occurs in most of these cases in which the treating physician and the employer’s expert disagreed, the Court stated that “the Board’s determination is supported by substantial evidence and it will not be disturbed, despite evidence in the record which might support a contrary conclusion.” Prevailing party represented by: Marta Ross of counsel to Michael A. Cardozo, Corporation Counsel (NYC) for NYC Board of Education, respondent. Click here to read the full decision of the Court…
Frederick v Lindenhurst
§ 21 Unwitnessed Death
AFFIRMED the Board which, in reversing the Law Judge, ruled that the death of claimant’s decedent was not causally related to his employment. The decedent, a school custodian, went to the school’s boiler room on a break from work and was later discovered there slumped on a staircase, not breathing and unresponsive. He subsequently died. The Board reversed the WCLJ’s establishment of the claim, finding that the presumption of compensability contained in WCL §21(1) had been overcome. Given that both the death certificate and the results of an autopsy attribute decedent’s death to arteriosclerotic heart as well as the lack of any medical evidence which would call that conclusion into question or otherwise suggest that decedent’s work and his death were causally linked, the Court declined to disturb the Board’s decision. Prevailing party represented by: Peter D. DeCurtis of counsel to Davis & Venturing (Hicksville) for Lindenhurst Union Free School District and another, respondents. Click here to read the full decision of the Court…
Reynolds v Essex County
Reimbursement
Procedure: Denial Full Board Review
AFFIRMED the Board which (1) affirmed the Law Judge’s ruling that the employer is entitled to reimbursement for certain benefits paid to claimant and (2) denied the application of the employer for Full Board Review. Claimant sustained a work-related injury for which a WCLJ awarded the claimant benefits and directed that the employer be reimbursed for wages paid to the claimant. While not disputing either the underlying award or the amount of reimbursement ordered, the employer objected to certain language in the WCLJ’s decision outlining the circumstances under which reimbursement would not be permitted, language which the Board accepted. The employer’s appeal of that decision by means of a Full Board Review was subsequently denied. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General (NYC) for WCB, respondent. Click here to read the full decision of the Court..
Curtis v Xerox
Causal Relationship: Medical (ANCR/ODNCR)
AFFIRMED the Board which affirmed the Law Judge’s ruling that claimant sustained a work-related occupational disease and awarded benefits. During her 33-year with the employer, claimant worked in various positions requiring she spend most of her day performing data entry on a keyboard, thereafter developing pain and swelling in her wrists, hands and fingers. She stopped work in 2005 pursuant to her doctor’s orders and submitted a claim, after which the WCLJ in 2007 found, due to the lack of medical records that a case could not be established. But the Board rescinded that decision, directing that medical records be produced by the employer within two weeks, or the Board would infer a diagnosis of a causally related occupational disease. In subsequent hearings, the employer testified that they had no medical records at which time the WCLJ ruled, based on the remaining evidence, claimant had failed to submit prima facie medical evidence of a work-related injury. But the Board reversed basically positing that the employer’s inability to supply medical records entitled to an inference that the records exist and show a diagnosis favorable to claimant that, along with the other medical evidence, established the claim. The Court agreed that where an employer, without excuse, fails repeatedly to present evidence as directed by the Board, it is an abuse of discretion for a WCLJ to grant an adjournment for the purpose of later submission of such evidence, and as the employer had ample opportunity but failed to present evidence, the Board did not err in precluding the subsequent introduction of testimony. Likewise, they found that it was within the Board’s authority to draw an inference in favor of claimant based on the employer’s failure to produce the evidence as directed. In addition, the Court found that the Board’s determination that claimant sustained a work-related occupational disease was supported by substantial medical evidence from the claimant’s own doctors, even without such negative inference. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, New York City for WCB, respondent. Click here to read the full decision of the Court…
Brown v City of Rome
Employment: Who is or dual
AFFIRMED the Board which affirmed the Law Judge’s ruling that an employer-employee relationship existed between claimant and the City of Rome. Claimant, after entering into an agreement with his alleged employer, the City of Rome, to provide guidance to certain community organizations and to develop and implement various urban renewal initiatives, was injured while at work and filed a comp claim. Although the City argued he was an independent contractor, the Board found an employer-employee relationship. The Court agreed that, “The record reflects that claimant was supervised by City employees and that the City had authority to discharge him. He was required by those supervisors to work certain hours and attend City department meetings, he received directives from the City’s mayor and other City officials, and he supervised City employees that were assigned to him. Claimant was paid by the City on a monthly basis, needed preapproval from the City for his expenses and used office equipment and supplies provided by it. In our view, these facts constitute substantial evidence supporting the Board’s determination, notwithstanding the presence of evidence that could support a contrary result.” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for WCB, respondent. Click here to read the full decision of the Court…
October 1, 2009 Appellate Division, Third Department
Burns v Town of Colonie
Voluntary Withdrawal
AFFIRMED the Board’s ruling that claimant was entitled to reduced earnings benefits subsequent to November 3, 2004. Claimant, a police officer, sustained multiple injuries in a work-related automobile accident in January 2000, awarded accidental disability retirement benefits and workers’ comp benefits and, in July 2004 classified as permanently partially disabled. Thereafter, with the consent of the workers’ compensation carrier per WCL §29[5], he settled a 3rd-party negligence action against the driver of the vehicle that struck his car, resulting in accrued credits to the carrier against payment of future benefits per WCL §29[4], for which reason the carrier as not made any payments to claimant since November 2004. After that date, the claimant asserted an entitlement to additional compensation payments but was denied. When the Law Judge determine the claimant was not eligible because he had not sustained a sufficient attachment to the labor market, the Board Panel reversed; the carrier then requested a full Board review, which was denied. The Court determined that because the claimant’s involuntary retirement and classification are not in dispute, “an inference arises that his earning capacity is reduced by [his] disability and claimant is entitled to compensation until the inference is removed from the case” and the carrier failed to submit”direct and positive proof that something other than the disability was the sole cause of claimant’s reduced earning capacity after retirement.” Here, claimant testified that he has performed work as an accident investigator for insurance companies and attorneys since his retirement. Contrary to the carrier’s assertion, claimant’s failure to advertise or seek work other than by word of mouth is not sufficient to defeat the inference and the burden of proving that his reduced earning capacity is a result of his disability never shifted to claimant. In any event, claimant also testified that the injuries he sustained in the accident prevent him from working for extended periods of time, which was supported by records and testing to regular medical attention from the date of the accident 2007, which limited claimant’s ability to work. Prevailing party represented by: Kevin F. McCane of counsel to Erwin, McCane & Daly (Albany) for Owen F. Burns, respondent and Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the WCB. Click here to read the full decision of the Court…
Cali v Militello Concrete, Inc
Causal Relationship: Was there?
AFFIRMED the Board’s decision which denied pro-se claimant’s application for reconsideration and/or full Board review. Claimant, a cement mason, began experiencing fatigue and shortness of breath in November 1998 and immediately sought medical attention. He did not return to work and submitted an application for workers’ compensation benefits one year later, asserting that he suffered injuries to his internal organs as a result of exposure to cement dust. After the Law Judge initially concluded that there was no prima facie medical evidence to support the claim, a physician diagnosed claimant with mild small airways dysfunction caused by dust inhalation and a hearing was held. According to the WCLJ, claimant’s testimony at the hearing did “not sufficiently support an exposure history which would form a basis for any medical opinion on causal relationship,” and the matter was discontinued. Although claimant’s request to reopen the case was granted, the WCLJ’s identical determination was upheld by the Workers’ Compensation Board. Claimant did not appeal from that decision, but subsequently applied for reconsideration and/or full Board review. The Board denied claimant’s application, prompting this appeal. In affirming the Board’s decision the Court wrote “As claimant appeals only from the denial of his request for reconsideration and/or full Board review, the merits of the Board’s underlying decision are not properly before us, and our analysis is limited to whether the Board abused its discretion or acted arbitrarily or capriciously in denying claimant’s request. We conclude that it did not and now affirm.” Prevailing parties represented by: Prudence F. Philbin of counsel to Hamberger & Weiss (Buffalo) for E.J. Militello Concrete, Inc.; Frank S. Kedzielawa of counsel to Abbarno, McLaughlin & Kedzielawa (Buffalo) for BVR Construction; Ralph M. Visano of counsel to Gregory J. Allen, State Insurance Fund (Buffalo) for State Insurance Fund. respondents. Click here to read the full decision of the Court…
Ford v Fucillo
Apportionment: Medical
AFFIRMED the Board’s decision which, among other things, ruled that apportionment applied to claimant’s workers’ compensation award. Claimant suffered work-related injuries to his lower back while working for a previous employer in 1991 and 1992 and was found to be permanently partially disabled. Claimant settled the claims pursuant to WCL §32 and eventually returned to work. In 2002, claimant sustained an injury to his right hip and leg while employed at Fucillo. The Law Judge, affirmed by a Board Panel, awarded workers’ compensation benefits finding a moderate partial disability, to be apportioned equally between the 2002 claim and the prior claims. The court found that apportionment “is appropriate where the medical evidence establishes that the claimant’s current disability is at least partially attributable to a prior compensable injury“. Based on the fact that the employer’s medical expert testified towards apportionment in the claimants treating physician wasn’t able to get an opinion as to apportionment and the claimant did not give any event’s contradicting the conclusion of the employer’s witness court found that the board’s decision was supported by substantial others. Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman, L.L.P., (Syracuse) for Fucillo and another, respondents. Click here to read the full decision of the Court…
Person v LI Maintenance
Causal Relationship: Was there?
AFFIRMED the Board’s decision which ruled the pro-se claimant did not sustain an accident in the course of his employment and from a second decision which denied claimant’s application for reconsideration or for full Board to review. Claimant alleged that he sustained injuries as a result of a slip and fall at his work site. They Law Judge denied the claim, which was affirmed by a Board Panel after which claimant’s request for full Board review or reconsideration was denied. The record shows that coworkers testified they were with the claimant the day in question and did not witness an accident, the claimant did not inform them of an accident or his injury and he worked the day of his alleged injury, as well as the following day. Claimant was then informed that the lack of work he was not needed by the employer at which point the claimant informed them that he was leaving employment and the next day, three days after the alleged fall, claimant advises employer of the alleged fall and placed claim. Based on the issues of credibility, the court agreed with the board for the claimant failed to present any substantial evidence of a compensable accident. Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smith, O’Boyle & Weisman (Hauppauge) for LI Maintenance Ad and another, respondents. Click here to read the full decision of the Court...
LeFever v City of Cortland Fire Dept.
Voluntary Withdrawal
AFFIRMED the Board which, inter alia, ruled that claimant did not voluntarily withdraw from the labor market. The claimant suffered a compensable injury in 1999 later modified to include a consequential injury and ultimate classified as a permanent partial disability in 2005. In the interim, claimant had stopped working after suffering an unrelated cardiac arrest , which require implantation of a defibrillator, which disqualified the claimant from performing his work duties, and he accordingly retired in 2003, although it was not until his left elbow was classified as a permanent partial disability that he sought postretirement benefits, arguing that the elbow injury affected his decision to retire. The Law Judge and Board Panel awarded benefits and the self-insured employer appealed. Claimant here testified that he was having problems with his left elbow which affected his ability to work prior to his cardiac arrest, and he successfully applied for performance of duty disability retirement benefits based upon both his cardiac condition and arm injuries. In addition, claimant’s left elbow injury has already required three surgeries and his orthopedic surgeon testified both that additional surgery would likely be required and that the condition would progressively worsen over time. As such, the Board’s finding that claimant’s decision to retire was partially based upon his compensable disability is supported by substantial evidence. Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell, L.L.P., (Binghamton) for Bradley J. LeFever, respondent and Estelle Kraushar of counsel toAndrew M. Cuomo, Attorney General, New York City for the WCB respondent. Click here to read the full decision of the Court…
September 24, 2009 Appellate Division, Third Department
Tucker v Fort Hudson Nursing Home
§ 25-a: True Closing
REVERSED and then castigated the Board for it’s decisions to rule that WCL §25-a is inapplicable to claimant’s award of workers’ compensation benefits and denied subsequent review of the facts. After suffering a back injury in 1999 with medical treatment beginning in 1999, the claimant ultimately found her job too strenuous, obtained other employment, and in March 2007 filed for compensation. The Board (1) disagreed with the carrier’s argument that the claim was closed and therefore liability should be shifted to the Special Fund for Reopened Cases per WCL §25-a and (2) denied a request for review.
In its reversal, the Court faulted the Board for “fail[ing] to resolve or even acknowledge the existence of such an issue, namely the employer and carrier’s contention that the medical records from 2000 onward refer to treatment for separate injuries and should not be considered in determining whether the present claim was truly closed. That omission is particularly troubling given that the Board expressly relied upon those documents in concluding that the claim was not truly closed. ‘The Board failed to engage in its fact-finding role, thereby depriving [the employer and carrier] of the opportunity to have the Board consider the merits of an issue that was properly preserved.’ ” Prevailing party represented by: Lauren E. Ryba of counsel to Walsh & Hacker (Albany) for the appellants. Click here to read the full decision of the Court…
Puig v New York Armenian Home, Inc.
Causal Relationship: Death
RESCINDED the Board’s decision that the death of claimant’s decedent was causally related to his employment. [ED. NOTE - Sept 29, 2009: The Court therefore supported the original finding of the Law Judge that the case was not compensable.] In November 2003, decedent was declared dead as a result of cardiopulmonary arrest after being discovered lying on the floor of a room that he had just cleaned in the nursing home where he was employed. The Law Judge denied the claim but a Board Panel reversed.
The Court, while acknowledging that presumption of compensability under WCL §21 arises when an unwitnessed or unexplained accident occurs during the course of employment, such a presumption may be rebutted by the employer with substantial evidence to the contrary. Moreover, in contrast to the articulated basis for the Board’s decision, rebuttal of the presumption does not require that the employer submit irrefutable proof excluding every other explanation as to potential causes of death. If the employer does rebut the presumption, the burden of proving that a death is causally related to the employment shifts back to claimant. In this case all the medical evidence, including that from the claimant’s own doctor, stated that the claimant died from cardiopulmonary arrest and myocardial infarction with hypertension and high cholesterol as contributing factors. Finally, evidence in the record suggests that decedent felt ill the night before the incident and went to work despite not feeling well that morning. He was advised to go home, but did not. The Court then sent the case back for a determination of whether claimant established that decedent’s work activities contributed to his death. Prevailing party represented by: Charlotte Flynn of counsel to Gregory J. Allen, State Insurance Fund, New York City for appellants. Click here to read the full decision of the Court…
September 22, 2009 Civil Court: Kings County
JJesa Med. Supply v. GEICOMedical Billing
Jesa Medical commenced this action against Geico to recover 1st party no-fault benefits pursuant to CPLR 5102 of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. Seq.), for medical services rendered, during the course of which both sides asked that the other’s documentation be rejected by the Court. The litigation started when Geico stated that the claims for no-fault benefits were timely denied based upon lack of medical necessity and fees charged in excess of the Workers Compensation Fee Schedule. In the course of the hearings, both sides argued that improper signatures on the reimbursement application and denials were done improperly, filing were done late, and therefore, each side argued that the other’s supporting documents should be disallowed. The court ruled that all documents were sufficiently up to par and resolved the bills, some for Jesa and some against. The Court cited many WC cases to explain its logic in making the decisions in this case, which could be cited at WC hearing when similar bill disputes and issues regarding proper medical documentation arise. Click here to read the full decision of the Court..
September 10, 2009 Supreme Court: Richmond County
Perry v AHRC NYC New Projects Inc
§ 11 Election of Remedies
ORDERED that alleged employer‘s motion for summary judgment is hereby granted and that the claimant’s complaint is hereby dismissed in its entirety. The claimant allegedly sustained injuries when she fell while descending stairs at the owned and utilized as a home for developmentally disabled consumers by defendant AHRC NYC New Projects, Inc, an injury for which she successfully sought workers compensation. At the time of the accident the plaintiff contends that she was employed by AHRC NYC as distinct from AHRC NYC New Projects. The Court determined that New Projects presented evidence sufficient to establish that it and AHRC were operating as a single integrated entity, therefore entitling them to summary judgment on the ground that claimant’s action is barred by WCL §§ 11 and 29(6), which restricts an employee’s ability to sue her employer after she receives workers compensation. The claimant contended that AHRC NYC is her employer, not defendant New Projects, and that summary judgment is inappropriate. (No attorney are noted in the decision.) Click here to read the full decision of the Court...
NYS to Confiscate §25a fund?
See November 5, 2009 correction
October 22, 2009: Rumor has it that recent meetings between Joe Pennisi, former Executive Director of the Worker’s Compensation Board and now Secretary of the New York State Finance Committee, and Stephen Licht of the Special Funds Conservation Committee Had Informal Discussions regarding the subject of moving “surplus” funds from the §25-a Fund to the State’s general funds.
Oklahoma considers confiscating
surplus workers comp funds
October 21, 2009: In a related story , Oklahoma’s legislators should find out whether the state or policyholders will get the money if the state’s workers’ compensation carrier is sold to a private insurance company, members of a task force looking at privatizing CompSource Oklahoma said Wednesday.
The co-chairman of the task force said a bill will be filed in the upcoming session stating that the financial assets of CompSource belong to the state. Its intent will be to draw a lawsuit that would allow the courts to settle the matter. However, Oklahoma’s state Supreme Court already ruled in 1975 that lawmakers could not use cash reserves from CompSource and appropriate that for state operations, leaving some task force members to believe money obtained through a sale of the agency would go to policyholders.
But it seems that in Oklahoma, when it comes to balancing the budget, state legislators will not take “NO” for an answer, even from their own Courts.
As previously reported in the NEWSWIRE, in the past, New York State “borrowed” from surplus workers compensation funds paid for by the carriers and employers, not for the benefit of the taxpayers or Legislators, but for the benefit of injured workers. And that money has never been repaid.
New Commissioner being considered
October 22, 2009: Apparently as part of PROJECT 2015, the Oligarchic Cabal at the Board has been in contact with the Appointment Office at the Governors office to explain to them the qualifications they seek in new commissioners. As has been reported in this website and many other places, the Board is interested in expediting the hearing process and getting decisions signed as quickly as possible, with as little interference as possible by the Commissioners.
One of the names I’ve heard mentioned is Cumminosa Balbutio, whose background is in education. Balbutio has been involved in literature, primarily the classical languages such as Latin, from which his name is derived. I have been unable to get any more details on this person but understand that as the head of a department dealing with what many consider to be “dead languages”, he has some of the qualifications sought by the Oligarchic Cabal. I also understand in order save time from the very busy Administrative Review Division, the training of new commissioners will be conducted by one of two commissioners currently at the Board who the demise the new goals of the Board once some time can be found in the very busy schedules.
WC Law Suits v Fed Ex on Drivers
October 21, 2009: New York State Attorney General Andrew Cuomo is being joined by Anne Milgram and Steve Bullock, the attorneys general of New Jersey and Montana, in any suit against FedEx Corp, accusing the second-largest U.S. package delivery company of violating labor laws by illegally classifying drivers as independent contractors rather than employees to save money.
According to a letter sent to FedEx and released by Cuomo, misclassification causes the drivers to be deprived of the workers compensation coverage and the protection of state antidiscrimination and labor laws. “By blatantly misclassifying its drivers, FedEx has denied these individuals the employment rights they guaranteed by law.” To support his position, Cuomo noted that FedEx subjects the drivers to strict work rules, down to the colors of their socks, and to thousands of dollars of expenses to buy or lease trucks and use company uniforms and scanners.
This issue of classification has previously been addressed by the Workers Compensation Board in cases involving drivers for UPS as well as for drivers for potato chip and soda companies who supply vending machines on routes which they have purchased. FedEx has been given until October 27 to show why a lawsuit should not be filed.
Nebraska Waives Settlement Hearings
October 20, 2009: Effective May 27, 2009, the Nebraska Workers’ Compensation Act was amended to eliminate court review of certain lump-sum settlements. Legislative Bill 630 provides that in cases where lump-sum settlements are not required to be submitted for approval by the compensation court, a release shall be filed. LB 630 further provides that the release shall be made on a form approved by the compensation court.
A release form has been approved by the Workers’ Compensation Court Administrator and is accessible at the link below. The approved form was written in accordance with the language found in LB 630. However, additional provisions or documentation pertaining to the release of liability may be added or attached when the release is filed.
A review of the legislation indicates that there are a very limited number of cases which qualify with this new procedure and one of the qualifications is that the claimant must submit what the legislation references as “Addendum 3, Personal and Financial Account Information”.
For detailed information on this legislation, click here …
WCB Exec. Dir. Pennisi Resigns
October 15, 2009: This posting adds additional details to last Friday’s e-mail Bulletin.
On October 9, 2009, Joseph Pennisi, executive director of the Workers Compensation Board, announced that he was reigning his position to become Senate Finance Secretary, as confirmed in a later press release by Senator Carl Kruger, Finance Committee chairman.
Prior to his service with the Workers’ Compensation Board, Mr. Pennisi worked in local government as a Deputy County Executive for Albany County, and Commissioner for the Department of Housing and Community Development for the City of Albany. He also previously served as an Assistant Secretary/Staff Director with the former Senate Minority’s Finance staff, and as a Senior Legislative Budget Analyst with the Assembly’s Ways and Means Committee.
As Senate Finance Secretary, Mr. Pennisi will earn an annual salary of $180,000. He will officially start with the Senate on October 29th.
NYS Issues Bonds for 2nd Injury Fund
October 15, 2009: dBusinessNews.com reports that the $804 million worth of bonds issued by the Dormitory Authority of the State of New York (DASNY), set for sale the week of November 9, 2009, have been given an ‘AA’ rating by Fitch Rating, one of the three major bond rating companies.
These bonds had been issued to settle claims related to the Special Disability Fund and the goal is to reduce the volatility and, ultimately, the cost of workers compensation insurance. The article then goes on to note that “New York workers compensation costs are the highest in the nation.”
The report continues, “The bonds are secured by assessments on workers’ compensation insurers and self-insured employers. There is a pledge by the state not to take any action that would impair the ability of the Workers Compensation Board to levy and collect assessments. Bondholders have a priority security pledge on revenues, the funds pass through a segregated account maintained by the New York State Dept of Taxation and Finance, and are not subject to bankruptcy risk of DASNY. Initial and expected coverage is very strong considering the historically high collection rate, but could theoretically be diluted down to 1.1 times debt service if the full authorization is issued by 2010 or if statutes are changed to increase the authorized level of debt.”
NYCIRB Analysis: COLA Increase
in WCB Rates = Higher Rates
October 15, 2009: The New York Compensation Insurance Rating Board has done a cost analysis of proposed Senate bill S. 1970-A which requires that workers compensation benefits be adjusted periodically for a cost of living allowance.
The bill has various provisions depending on the date of the accident and the level of permanent disability.
The NYCIRB estimates that if this bill is enacted in its current form it may well result in an overall workers compensation system cost of somewhere between 1.9% and 5.0%. As with great deal of the legislation proposed by both the State Assembly and State Senate, while there is some degree of specificity in the language of the proposed bill, they also tend to leave out very important information. For example, “the cost-of-living adjustment” is based on the increase in the Consumer Price Index has propagated by the US Department of Labor, but the build fails to specify which of the many Consumer Price Indexes are supposed to be used for this under the terms of this legislation.
This table represents the basic additional costs expected to be incurred by carriers if the legislation id passed. A full copy of the report is available by ► clicking here.
WCB’s Executive Staff Changes
October 8, 2009: According to the grapevine, Elizabeth Lott has been moved from adjudicative management where she held the formal title “Chief, Adjudication Division”, and placed in charge of operations.
Former Senior Law Judge John Barry, who most recently had been in a Key administrative position and had the ear of former Chairman Zach Weiss, has been moved to a position, although I have been unable to find anyone who can tell me his new title or, for that matter, delineate his new authority and responsibility.
PROJECT 2015 Still Lives
October 8, 2009: Although Chairman Robert Beloten has expressed serious reservations about the previously top-secret PROJECT 2015, the project appears to be moving ahead, although the recent changes in key staff at the Park Street offices of the Board may result in substantive changes to the program and/or its timing.
There is a new Board memo which reads “We need to increase referrals to conciliation for two reasons. First, this is a new environment which we will be working in once the reclassification takes place, and, two, in order to relieve some of the pressure from the current hearing calendars.” The memo continues, “Under the new plan everything but the following cases will be considered appropriate for conciliation:”
- Illegal employment of a minor
- fraud under WCL §114 –a
- penalty objections or issues
- waiver agreements under WCL §32
- issues in a death case
- C-7 or controverted cases where the claim has not been established or resolved
- cases referred by the Board Panel to the hearing process (Rule 300.13 (F) ) or for the testimony of an impartial specialist (Rule 300 .11)
- request to suspend or reduce continuing payments under Rule 300.23 (B) (2)
- requests for a non-schedule adjustment under WCL §15 (5–b) (Rule 300.24)
- cases/issues expedited under WCL §25 (3-d) (Rule 300.34) or WCL §142 (7)
- cases heard at a formal hearing where in the WCLJ has continued the case for another formal hearing
- UEF cases
- authorization for special medical services for termination of treatment under C-8 Part A where there is a current conflicting medical report
But ommitted from this list are a number of other issues which, based on my 12 year experience as a Commissioner, seem to require, more often than not, a formal hearing to resolve:
- §14.6
- §15.8(d)
- §25-a
- apportionment
- SLU
- WISK
- independent contractor
- special/general employer
- Jurisdiction
- Voluntary withdrawal from the labor market
- §120 discrimination cases
- legal fee disputes
And I am sure that you practitioners can name more.
What is interesting is that the people involved in this project understand that there are certain cases which should never go to conciliation primarily because of the statutory restrictions that require hearings, e.g. controverted cases and cases involving illegal employment of a minor.
However, I am reminded of the case of Hart v Pageprint/Dekalb in which the Appellate Court reminded the Board it could not arbitrarily disregard the laws, rules and regulations under which the Board is supposed to operate; this case came about because the Board , in order to expedite the hearing process, decided to do §32’s administratively and ignore both the legislative and the Board’s own rules that the settlements be done in a formal hearing.
And as one can see from New York State Senator George Onorato’s statement of October 8, 2009 regarding electronic transcription, the Board is seeking to redefine the fine print and the legislative intento f the workers compensation laws in order to eliminate hearings altogether, which was the goal of PROJECT 2015.
Electronic Transcriptions: DOA
October 8, 2009: In my April 10, 2009 NEWSWIRE, I quoted a firm who claimed that they had already embarked on a plan with the Workers Compensation Board to replace all the live reporters with digital audio recording equipment.
Late yesterday Thursday, October 8, the Committee Chairman, Senator George Onorato, issued a statement which for all practical purposes has killed this project.
The headline of his press release is:
Workers’ Compensation Board May Not Electronically Record Hearings Unless Legislature Changes Current Law Requiring the Use of Stenographers
The only persons who spoke in favor of this new project were Board Chairman Robert Beloten, who actually had very little information about this project, and the marketing directors of the three firms who are bidding on the project.
The general impression on the future prospects for this project were best summarized by Senator Diane Savino who questioned, “Since the attorneys for the claimants, the attorneys for the carriers, the law judges and other staff are against the system, and the only person favoring it is Chairman Beloten who had no idea what was the cost, why is the Board pursuing this project?”
Probably the best answer to that question was from one speaker: “This project is only of interest to the administrators and of no interest to those involved in adjudication.” And by “administrators”, I assume that speaker was referring to those I call the Oligarchic Cabal.
For those of you will have an interest in further details on the hearings and the testimony, I have the following two links:
New Medicare Offset Guide
September 26, 2009: CMS (centers for Medicare and And Medical Services) has recently published a 38-page booklet giving up-to-day information on how to fill out the Medicare Set-Aside §32 agreements. For years I and a number of the engaged commissioners tried to figure out how the Medicare set-aside was being calculated, but nobody seemed to be able to give us that information.. After approving one section 32 settlement with the rows of $55,000 fee of $5000 in the Medicare set-aside of $49,600.. I asked for and was given a copy of the Medicare set-aside to determine how it was the claimant was left with $400. What I saw was that Medicare had calculated that somebody who had a permanent partial disability for carpal tunnel syndrome on one wrist was calculated as having a potential medical exposure of $50,000.
That made no sense to me until I took a look at page 15 of this booklet and found what they call “Life Care Plan - Future Medical Care Medicare” covered items and services and prescription drugs. This document was prepared for a hypothetical claimant, and it was estimated based on information supplied by various third parties that at the age of 67, she would have a life expectancy of 17 more years. , it was on the basis of the 17 year life expectancy that they calculated her future medical expenses and prescription drugs to treat medical conditions with which she was diagnosed. Out of As curiosity, I looked up these drugs on the Internet and found that at the corner drugstore, some of these items could be bought for 1/6 of the price that had been used in these calculations.
Injured Workers Alliance Scholarship Fund
September 29, 2009: The Triangle Shirtwaist Factory Fire Memorial (TSFFM) has named twenty-two Triangle Scholars for the Academic Year 2009-2010. Each grant is in the amount of $2,000 bringing TSFFM’s total awards to $218,000 since inception of the program in 2002. Scholarship funds are raised through the organization’s annual memorial journal and dinner which is planned for March 25, 2010 in New York City at the Fire Museum on Spring Street in lower Manhattan. TSFFM was founded by attorneys from the NYS Injured Workers Bar Association (IWBA) which counts members throughout NYS.
John Sciortino, a Rochester attorney and Chair of the Scholarship Committee, stated that 13 of this year’s class of Triangle scholars were previous recipients and 8 are in the fourth year of study. “We are proud of the students and believe that those completing their studies represent the aspirations of their families who are dependent upon workers’ compensation to survive in this dreadful economy,” Sciortino said. “Their families may be receiving compensation benefits as little as $200-300 per week,” he continued referring the benefit limits in effect in previous years, “so these awards are significant and we wish we could do more for them.”
This year’s Triangle scholars pursue studies in institutions of higher education across the state from Buffalo, to Rochester, to Albany, to Pleasantville, to Potsdam, to St. John’s on Staten Island. They are in attendance at sixteen private colleges and six public institutions including community colleges in fields of study including teaching, forestry, pharmacy, liberal arts, and science. “Sixty-three individuals have received scholarships and some of the students,” Sciortino noted, “have been in the program for all four undergraduate years.”
How Much Money
Do Insurance Companies Make?
September 30, 2009: Uwe E. Reinhardt , a professor at the economics at Princeton University, writes an interesting article about how much money insurance companies make, using as an example the recent income statement of WellPoint found in the annual report called a 10-K , which all public companies must file with the SEC.
Among the various topics that he discusses are Revenues, Revenues from the “Float” the Health Benefit Ratio, Which in the Past Was Called Medical Loss Ratio, Marketing and Administrative Cost,s and The Profit Margin. This analysis goes to show that in some years net income is derived not from the premiums collected but from the interest and other investment income derived from those funds which have been collected on premiums but not yet spent on the benefits for which those premiums were collected. And this in part explains why, in those years in which the stock market goes down, the premium costs for insurance go up, not because the revenues from premiums are down but because the investment income is down.
But it is not just the explanations and definitions offered in this article that are interesting, but some of the comparative analyses that he does with these numbers, as well as comparisons to other large insurance companies. This article explains the relationship between benefits paid out in premiums collected and why the more demands are made from more benefits the higher the premiums must be, be it for workers compensation insurance life insurance or general health insurance.
Win Workers Comp and then Win under ADA
September 24, 2009: In a case decided by the U.S. District Court, Northern District of New York in the case of Fowler v. Kohl’s Department Stores, Inc., No. 1:07-CV-1197 (GLS/RFT) (N.D.N.Y. 07/16/09), the Court decided that having a case at workers’ compensation does not preclude also bringing a case under the Americans with Disabilities Act (ADA).
As reported in Business Management Daily, Madeline Fowler worked for Kohl’s Department Stores as a customer service supervisor. She was expected to help run registers as needed and to work the sales floor.
Fowler injured her back at work, and her doctor placed her under medical restrictions. Eventually, he concluded that she had a degenerative spinal condition and should never stoop, bend, twist, squat, kneel, pull or use stairs. She asked for accommodations, but Kohl’s concluded none was possible and discharged her. Fowler sued under the ADA and the New York Human Rights Law, claiming disability discrimination.
Kohl’s argued that, because she was also receiving workers’ compensation benefits for the injury, she couldn’t also sue for accommodations. It said the workers’ comp law trumped other claims and was the exclusive remedy. The court disagreed. It said that as long as Fowler wasn’t telling the workers’ comp system she was completely unable to work, even with accommodation, she could collect workers’ comp and sue for disability discrimination.
Exotic dancers are employees,
not independent contractors
September 24, 2009: The Montana Supreme Court, the State’s highest court, fund that exotic dancers were employees of the establishment where they worked and were not independent contractors.
Even though the dancers had to sign agreements which indicated that they were independent contractors and laid out all the terms of their employment, the Court looked at their actual working conditions. Most important, they looked at other aspects of the agreements the dancers had to sign to work at the club, found that there were several violations of Montana’s labor and tax laws, and thus determined that due to the invalidity of those agreements, the dancers were employees.
The case is the Matter of the Wage Claims of Renne L. Smith, et al. v. TYAD, Inc., No. 07-0305 (Mont. 05/20/09).
I do remember a case on this same issue at the WCB many years ago. And although I was not on the panel with Commissioner McManus, I do remember her talking to me about this at great length before she, and her panel, made a final decision.
Va. drops Facebook fine
in workers comp case
September 21, 2009: The on-line site Business Insurance reports that an official of the Virginia Workers’ Compensation Commission has vacated a $200-per-day fine on Facebook Inc. for failing to reveal information from a subscriber’s account. Virginia imposed the fine Aug. 28 after Facebook did not respond to a workers comp defense attorney’s subpoena seeking information about an employee for Colgan Air Inc. Facebook responded later and argued that federal law prohibited it from responding to the subpoena. A deputy commissioner agreed and vacated the $200-per-day fine, the state agency said. -The case reportedly involved the airline’s attempt to obtain vacation photos of an employee to counter a workers comp claim.
Daycare Worker: Get Flu shot or you’re Fired
September 24, 2009: Dozens of media outlets, including the Albany TimesUnion, issued a story about a daycare worker employed by Northeast Health in Albany New York who was told she would be fired if she did not take a flu shot. And other stories are being circulated that taking the H1N1 flue shot will be a condition of employment.
But the story is not this work but the issue of the flu, the shots, and their relationship to workers compensation. I noted last week, in story below, about the potential pandemic H1N1, there is a lot of discussion by those in Human Resources and various carrier claims departments what to do when claims start to come in from those who get the flu.
But I do not think that there is a problem with those getting sick from taking the flu shot if it is a requirement of employment.
The issue of whether or not someone can be fired for refusing the shot is another story and, fortunately for most of us, does not involve workers’ compensation.
COMMENTARY & REPORTS
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ON OUR OTHER PAGES
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►Four new decisions for October 29, 2009 and the WCB is 50-50, again.
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| ►Commissioner Bios September updates |
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THIS WEEK’S NEWSWIRE
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| ►NYSIF Introduces State-of-Art Medical Bill Inquiry System |
| ► No New Commissioner under Consideration |
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PRIOR COMMENTARY
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| ►Legals Fees On Medical Expenses? |
| ►Project 2015: The end of the WCB Board |
| ►The New Medical Guidelines(?!) |
| ►The Appellate Court’s Split Decision |
| ►Comp Board Blocks “The Insider” as Spam! |
| ►Part III: More Comments on “bench briefs” - unedited |
| ►Part II: Reader Comments on “bench briefs |
| ►Reader Comments on “bench briefs” |
| ►Should the Board present “bench briefs” [pro and con opinions] to panels?? |
| ►Who’s Left to Sign Decisions? |
| ►The Legacy of Zach Weiss |
| ►Judicial Economy vs Judicial Integrity |
| ►A Guest Commentary on Board Doctors |
| ►Mirror Mirror on the Wall! Who’s the Fairest Doctor of them all? |
| ►Who wins the most appeals: Claimants or Carriers |
| ►LEGAL FEES: What’s fair, history, Can Bd set fees, etc? |
| ►Legal Reasoning vs Intuition |
| ►How do get paid on medical bills with the HP-1J |
| ►Who actually decides the decisions? |
| ►Rebuttals: a waste of time? |
| |
To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, or if you have one you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com.
Answers to Your E-Mails
November 2, 2009:
QUESTION #1:
nyc is doing the right thing by contesting claims without merit at the start of WTC cases carriers were not geting exams and many thousands or claims without merit were established now if a carrier or nyc wants to get an exam they are simply doing what they should have been doing all along. Don’t you believe that if a or self insured such as NYC is prevented from getting an IME or using an investigator at least some phony claims will be established? I would like a response from you.
There is no question that New York City has the responsibility to ‘review’ claims with which it is presented, be it against the WTC fund or a general workers compensation claim. You will note that I put the word ‘review’ within quotation marks as that is what this city supposed to do: to investigate the validity of the claim and not spend money seeking ways to deny every claim.
On September 11, 2009, the Workers Compensation Board released a full report, World Trade Center Cases in the New York Workers’ Compensation System, on claims made to date. In Table 1 page 18, the WCB reports 11,627 cases were filed, of which are 5,220 cases had no follow-up leaving a total of 6,407 cases to be reviewed. Of these, 461 were denied, resulting in a denial rate of 7%. New York City’s denial rate exceeds the 93%+ approval rate of the WCB which is particularly disturbing when you consider that many of the uniformed services (fire, police, and sanitation) are not covered under workers compensation law. Although fraud cases get a lot of coverage, particularly if they involve the New York State Insurance Fund, I’m sure there are well under ½% of all claims.
That New York City has a right to have investigators and/or IME’s review these claims is correct but not the use investigative techniques long since disavowed under workers compensation law precedents.
QUESTION #2:In response to my commentary supporting the payment of legal fees on medical benefits, I was sent the following question by e-mail:
My reading of the Shea case, which the board apparently now agrees with, is that whenever money moves to a claimant an atty fee lien may attach. I would be interested to review the case or cases where you challenged the board’s prior interpretation re atty fees on medical expenses. You may not remember, but you were on the original Shea panel which denied any atty fee.
The reader in this case is absolutely correct in that the original decision, in which I participated, ruled against payment of legal fees. Since the original decision, the Delacorte decision, and the revised decision are available on LEXIS-NEXIS and Westlaw, I shall not quote any language in the decision but explain why I originally denied the fee.
Very often in cases like this which deal with “black-and-white” legal issues, the commissioners depend on the Board’s legal staff of writers, of whom all are attorneys, to research case law. From the time I first joined the Board until the time of my departure, we were told consistently by the Office of the General Counsel and our writers that there was some legal issues that could never be challenged.
I am the first to admit that I’ve challenged the Office of the General Counsel and the writers on many occasions, whenever I saw a little bit of light at the end of the tunnel but I’m also realistic enough when presented with such blanket pronouncements to spend my energy elsewhere. For years the same two groups told the commissioners that attorneys had no right to challenge our determination on the amount of legal fee to be paid in a §32 settlement. Then one day we received a memo which effectively said “Oops, we made a mistake. Legal fees can be challenged.” Shea v Icelandair is another example in which I mistakenly relied upon legal obstinacy of the Office of General Counsel and writers.
Had I been on the Board after this decision, I would’ve addressed the staff attorneys as I did after the Court decision in Horton v Akzo Nobel Salt (see my book Behind the Closed Doors, page 8): “How can we trust your judgment and advice if you contradict each other or don’t understand why you do what you do?”
QUESTION #3: On occasion I get requests for an analysis on specific legal or medical issue in terms of what can be expected in the future from the Board. Because of the individual nature of these requests, my responses will be by e-mail and not in this website. If you have any such requests, send me an email addressed to TheInsider@InsideWorkersCompNY.com.
§32 Settlements & Child Support Liens
October 29, 2009: Several years ago, one of the commissioners raised an issue when faced with an upcoming §32 agreement in which there was a substantial amount of unpaid child support. There was a question as to whether or not any of the settlement award above that necessary to pay the outstanding lien could be set aside to guarantee future payment of child support. A review of WCL §33 and applicable case law made it quite clear that the only child support that could be withheld from the settlement was the amount for which there was an existing lien.
At a pre-board meeting in Albany the subject was discussed at length at which time it was determined that the Board did not have the authority to offer any other interpretation of law. And while we discussed the practical application of methods to set aside some funds from the settlement to ensure future payment of child support liens, the consensus felt this was a legislative rather than an administrative matter. In view of the decision issued today by the 3rd Department in the matter of Ashley v Worsell, perhaps it is time for the Legislature to act.
(For the record, I led the argument against using workers comp law to escrow funds from §32 settlements, arguing that this had to be done by the Legislature. As a commissioner, however, I and my fellow colleagues were prevented from expressing our opinion on this subject outside of that room. Now that I am not a Commissioner I can again raise the subject, but this time to the world at large.)
Devising a formula for the withholding of sums from the proposed settlement is relatively simple.
Since allocation rates are used in many cases dealing with Medicare, it should not be difficult to set an allocation rate on most cases in which the claimant has an outstanding lien against them for nonpayment of court-ordered child support. In most cases, child support liens range from 5% to 20% of compensation payments. Since we already know the gross amount of the settlement, less any medical set-aside (this is only for those put into escrow accounts) we can divide that by the allocation rate to determine how far into the future the settlement has been calculated to extend. And we simply multiply those number of weeks times a weekly lien to get a fixed amount to be deducted from the settlement and turned over to the state agency responsible for ensuring payment of child support liens.
- $50,000 settlement less $4,000 escrowed medical set aside = $46,000 net
- $200/week allocation rates = 230 weeks advance payment
- at $30/week current child support lien for 230 weeks = a total of $6,900 additional deduction for the child support escrow account.
There are two additional issues must be considered the legislation.
First, the child support escrow account should be modified if the child is approaching the age at which child support payments would stop. For example, if the child would reach that age in 200 weeks, then only $6000 should be put into the child support escrow account. There also has to be a means by which, if there is any other reason for the child no longer being the legal recipient of child support, then those payments stop and any excess amounts be returned to the claimant.
Second, if the amount of money being put into the child support escrow account will not be sufficient to ensure payments to the child until they reach the age at which they no longer qualify and the claimant/parent has not been paying child support directly but has been having that sum of money deducted from the escrow account, the claimant/parent may be lost to the system in any of a dozen ways and may also no longer feel any connection to the child if they have not had to pay child support for four or five years due to the escrow account.
Not to attach these settlement funds is to give an additional inducement to irresponsible parents who see taking a lump sum as a way of avoiding child support payments. This legislation not only could but should also apply to any disability or other similar payments including those awarded in any civil or administrative court action.
Next Monday’s poll will be on this subject. Then on November 9, 2009 when the results of the poll is published, this commentary in the poll results will be sent to the appropriate members of the state legislature asking them to consider changes in legislation necessary to ensure that those individuals who receive money as a result of civil court or administrative decisions do then ignore their financial responsibilities to the children that have brought into this world.
FEES ON MEDICAL EXPENSES
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
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