insideworkerscompny.com » 2010» January

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 Results: Should Nurses Have More Authority?

February 1, 2010: Last week I asked your opinion on pending legislation in Albany which would grant certified nurse practitioners additional authority and responsibilities with regard to the treatment of injured workers.

Specifically, Assembly Bill 3704 and Senate Bill 3908 authorizes, as a pilot program, certified nurse practitioners to provide care and treatment to injured workers pursuant to the provisions of the workers’ compensation law and establishes a nurse practitioner committee to regulate the practice of nurse practitioners under such law. Both of these bills have been presented to the labor committees in both chambers.

This poll was prompted by an e-mail from one of my readers who felt that the timing of the legislation was rather propitious in view of the January 7, 2010 Appellate Court decision in the Matter of Hassan v Ford Motor.

I asked your opinion as to the appropriateness of this legislation and here are the results:

70% approve the legislation
Excluding those who feel the legislation should not be approved, 55% feel the doctor should be required to sign any documentation while 44% felt it was not necessary.
As to who should set the limits of services to be allowed, 50% said it should be the State Legislature, 30% picked the committee, and 20% picked both. My assumption based on other comments from this 20% is that the Legislature should set some basic guidelines and the committee should deal with a specific procedures, perhaps by medical code.

There were two comments which I think best summarized the support for the legislation. I am not sure from whom the first comment comes but the second is obviously from an injured worker.

Workers Comp should go along with the rest of the medical world. When claimants visit the nuerosurgeon they are examined by a PA or NP first. When the go to an ER usually a PA or NP treats them and decides if they need to call in an MD. Not only is it good for claimants, who in the past could not rely on reports from such as constituting medical evidence to support an award, but it will also help carriers reduce the costs of treatment. Why force a claimant to see a doctor to do what an NP could have done. I do think MD supervision and review is required but the NP should be able to indicate who the supervising MD is, without going through the wasteful motion of making the MD sign the form too.

Before you read this relatively lengthy comment from an injured worker, I would like to remind everyone that injured workers very rarely have the opportunity to express an opinion before the Board, including oral arguments before the commissioners: they are asked fact-based questions. When I did §32’s, I asked “open ended” questions which was the first time many of these injured workers had the opportunity to express any kind of opinion. Perhaps if a bit more time were set-aside to allow such comments from injured workers, those who make decisions on how the process should run may actually learn how to make the system work better.

Injured Worker: I have a back case and am classified PPD on the case. I have had the situation arise where I woke up on a particular morning and discovered that my back injury had exacerbated and I was totally disabled and unable to work. I called my doctor’s office but could not get an appointment for a few days because his schedule was totally booked. I had no choice but to stay home from work and go in to see him on the day that I got the appointment for. After my condition improved I went back in to work. When I put in a claim for the lost time the Arbitrator, under Section 20, would only make an award for the days for which I had my doctor’s note. That was true even though I was classified PPD on the case. If some nurses are allowed to provide care and treatment to claimants I think that might have solved my problem because even though my doctor could not see me the first day that I telephoned for an appointment maybe if he had had a nurse practitioner in his office that person could have seen me. That way I would have had a report from the nurse practitioner and maybe I would have been awarded benefits for the days that I was out of work and totally disabled but unable to get a doctor’s note attesting to the fact. I think that by broadening the number of people that are able to care for and treat claimants would possibly stop the above situation from occuring as often as it does. I know that when I was a hearing representative the above scenario ofter happened and claimants were not awarded benefits for days of lost time simply because they could not see a medical professional on the day that they first called in for an appointment. Some WCLJs would make an award even when the claimant didn’t have medical (if the claimant was classified PPD) but there were many who would not. That is only one scenario where I feel that it would be beneficial to have nurse practitioners able to provide care and treatment to claimants.

And of course there are some valid reasons for not approving the legislation, as evidenced by all the Board’s Subject Numbers dealing with physicians who are longer authorized to treat injured workers in the workers compensation system.

As you are aware, Doctors are already trying to get over on the system by allowing PA’s and Nurse practitioners to perform examinations and saying that they provided the services rendered. This should be considered as fraud on their part. All these doctors are doing is milking the system.

This poll, like some of the earlier polls I have done, was proposed by one of my readers. Your suggestions for future polls will ensure that they deal with issues that are important to you so please continue to submit suggestions. Again, thank you for your participation in this poll.

Poll Results: What were the key issues in 2009

January 11, 2010: Our poll asked your opinion as to what was the most important case or issue to have come up in 2009. Because this was an open-ended poll and, unlike all the others I have conducted, did not give specific options but only a text box, there was no “clear” winner.

Only one case was mentioned and that was the Matter of Browne v the New York City Transit Authority in a case which dealt with the level of prima facie medical evidence required, if any, to meet the presumptions under WCL §21. But none were of the significance of the Matter of Ramroop v Flexo-Craft Printing, Inc. (2008) or LaCroix v Syracuse Exec. Air Serv (2007).

But one issue that was raised in a lot of the responses is one that will probably be the most important court case in 2010: payments to the Aggregate Trust Fund (ATF). The importance of this issue is signified by a Full Board Review early in 2009 in which there was one lead case and 83 related, at which time the Board made payments to the ATF retroactive. Another issue considers the fairness of requiring carriers to make these deposits but excluding the New York State Insurance Fund and self-insured trusts.

The second issue that was frequently mentioned is the Board’s failure to define disability not just in medical terms but in terms of wage earning capacity, which is necessary to implement the new time limits for permanent partial disabilities. In fact, other than treatment guidelines for soft tissue injuries, it has been over two years since the amendments to the Worker’s Compensation Law which required that the 1996 Medical Guidelines be updated.

But there is one issue that has been brought to my attention more and morefrequently over the past year and that is “Board’s on-going mindset of treating lawyers [both claimant’s and defense bar] as adversaries.” The new policy of allowing/requiring law judges to issue fines for “inappropriate” appeals by attorneys, without issuing specific guidelines that would draw some lines in the sand for the attorneys and law judges, is one of many examples of the words “mindset”.

And, finally, to quote one of the many respondents on an issue that has been dear to my heart probably within a month of my joining the Board in 1996, summarized by me in last week’s commentary on the quality of the Board’s 2009 decisions, is the “constant and ongoing pattern of arbitrary, capricious and inconsistent board panel decisions.”

In summary, there appears to be one open legal issue from last year whose resolution is awaited anxiously by the workers compensation community: payments to the ATF.

But more importantly is the issue of cooperation by the Board with its constituency who are the injured workers and the employers of the State of New York. If the Board’s continuing decision to block my e-mails alerting its staff to the news, commentary, and criticisms I report is evidence of the Board’s continuing self-imposed closed mind, then the workers compensation community and the attorneys who represent them can only expect that the Board’s ability and/or willingness to serve them will continue to deteriorate even further.

Poll Results: What do we do
with Undocumented Workers?

December 14, 2009: Last week my poll asked how we should treat undocumented workers, a poll based on the extensive discussions at LinkedIn which in turn were based on a press release from Ohio State Senator Bill Seitz seeking to deny workers compensation to undocumented workers.

After I posted this poll, recently appointed Supreme Court Justice Sonia Sotomayor in one of her first rulings used the term “undocumented” rather than “illegal”. In my poll I used the term “undocumented” but based on the following comment I shall now use the term “illegal immigrant” rather than “undocumented worker”. Political correctness, such as it may be, is the purview of the legislature and not those involved in the law, be it civil, criminal, or administrative. The comment was:

Aren’t you glad you had an education which stressed accuracy in choice of terms? An “undocumented” immigrant is a person who is in the US but is a citizen of another country and who, somehow, lost the papers which would demonstrate their current status. An “illegal” is a person whose status, after an inquiry, shows that there is nothing to support legal residency. Sotomayor’s deliberate use of incorrect terms to cloud or mischaracterize a status does not demonstrate incompetence, it demonstrates a violation of an oath to support the laws as they are.

Now to the poll which asked you to select those comments with which you agree as to the treatment of illegal immigrants as compared to documented workers. Other than for the first question on distinguishing between the two classes, all those who answered were virtually unanimous, with the majority seeking enhanced penalties against the employer and the illegal immigrant.

In response to the first question, 55% said there should be a distinction between classes and 45% said there should not be. As the following responses indicate, with one exception, everyone agreed that the illegal immigrant should get the same medical treatment as a documented worker. But also it appears to be agreement that the illegal immigrant should qualify for compensation only for a limited period of time. Many of those who said that there should be no distinction did not participate in the rest of the poll.

To the question of whether the federal government should deport illegal immigrants and limiting their compensation, 41% were in favor, 18% were against deportation, and a 41% had no opinion.

As to the question of penalties 60% were in favor of penalties similar to those imposed on hiring underage workers (§14a), 9% said New York State should not distinguish between employers, and 31% expressed no opinion. However, everyone who supported the penalty agreed it should go to the Workers Compensation Board.

In fact, 45% of participants selected all four of the following: treating the two classes of workers differently, penalizing the employer, with the money to go to the Board, and at the appropriate time deporting the illegal immigrant.

SUMMARY

In summary, the consensus seems to be that as long as an illegal immigrant is unable to work because of an established workplace injury, that person should get both compensation and medical treatment identical to that of a documented worker, but, once no longer disabled, the illegal immigrant should be deported. And the employer should be penalized with that money going to the Board.

The following are comments from two of the respondents and, while the second comment may be “tongue-in-cheek” (we hope), it does raise the issue of what are the economic conditions that result in the hiring of illegal immigrants. We know that some conditions are attributable to the economic advantages but it has been proposed that American workers believe that many of these jobs are beneath their dignity and only economically unviable wages would get them to take those jobs. Fortunately, these economic issues are not within the jurisdiction of the Board and, therefore, in this website, will not be commented upon. Two comments are:

The U/W should not be given Workers Compensation, and any amount deemed what would have been paid were he/she a documented worker should be doubled and split between the WCB and the State. Further, the employer should be investigated to determine the amount they didn’t pay both the WCB and the State. Legitimate employers through their insurance and self-insured funds are being assessed staggering amounts while constantly facing increases in HICRA and covered lives to pay for these fly-by employers. They need to be taken to task and it should start with the WCB.

And

Other - illegal immigrants are dependent on illegal employers. the employers want illegals because they work cheaper and accept more hazardous work conditions. if we do not penalize the complicit employers–as a society we should accept the reality of the situation and bring back child labor; and give bail-out money to aid the triangle shirt waist factory. think of all the jobs that could be created. maybe we could just rename our country New China.

Thank you for your participation in this interesting issue. If you care to add to the discussion, click here to send me your comments.

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 Results: 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 Results: 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.”

Comments (0)

NEWSWIRE

Weekly postings of news reports, press releases, legislative updates, and background stories of concern to those who participate in the State of New York Workers Compensation system. If you would like to be added to our weekly e-mail alert list or have any submissions or suggestions, they can be sent to me at TheInsider@InsideWorkersCompNY.com.

The full index of all the NEWSWIRE articles that have been published since this website started are now indexed into eight categories within which each posting is indexed by date, the most recent at the top. For the list, ►click here….

COURT DECISIONS

►Board gets two more affirmances

►ANOTHER NEW FEATURE on the DECISIONS page: Pending hearings & decisions..click here

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

OUR NEWEST POLL RESULTS

►Can/should Nurses Replace Doctors

ON OUR OTHER PAGES

►Commissioner Bios September updates

►§32 & Child Support Lien

►Legal Fees on Medical Bill??

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

THIS WEEK’S NEWSWIRE

►Project 2015 Still Lives

►WAMO and the Dept. of Insurance

►Shortage of Doctors Upstate for Injured Workers

►Best Attorneys in 2009

PRIOR WEEKS’ NEWSWIRE

►Fenster’s Path to His Appointment

►Two NYSIF Board Appointments

►WCB Signs New Lease for Harlem District Office

►WC Research Provides Insight into Curbing Health Care Costs

►Board Reduces Performance Standards For Carrier

►CMS Liens: No Statute of Limitations

►Paterson Announced New Exec Dir for the Workers Comp Bd

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

►The Success of TENS units questioned

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

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

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

►More WCB Staff Changes

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

►In Memoriam: Joseph Tauriello

►“Lazy” Judge on trial before Court of Appeals

►In Memorium:
Louis R. Salvo

►CA Insurance Commissioner Rejects WC Rate Increase

►Public WC Insurance Funds Better Run Than Private Ones

►CORRECTION

►Lobbyists Lose on ATF in Federal Court

►Typo not worth $1.6 Billion, this time!

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

►No New Commissioner under Consideration

►Oklahoma considers confiscating surplus workers comp funds

►New Commissioner being considered

►WC Law Suits v Fed Ex on Drivers

►Nebraska Waives Settlement Hearings

►WCB Exec. Dir. Pennisi Resigns

►NYS Issues Bonds for 2nd Injury Fund

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

►Link to our Archive Index

Project 2015 Still Lives

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

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

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

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

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

WAMO and the Dept. of Insurance

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

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

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

Shortage of Doctors Upstate for Injured Workers

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

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

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

Best Attorneys for 2009

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

John Clennan and David W. Faber

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

Fenster’s Path to His Appointment

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

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

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

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

Two NYSIF Board Appointments

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

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

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

WCB Signs New Lease for Harlem District Office

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

WC Research Provides Insight into Curbing Health Care Costs

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

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

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

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

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

Board Reduces Performance Standards For Carriers

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

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

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

CMS Liens: No Statute of Limitations

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

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

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

Paterson Announced New Exec Dir for the Workers Comp Bd

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

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

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

Are Dist Mgrs Going the way of the Dist Admins?

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

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

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

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

The Success of TENS units questioned

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

NYS Sues CRM Civilly and Criminally

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

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

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

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

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

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

‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

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

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

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

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

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

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

Ohio Senator wants illegal workers
banned from workers comp

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

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

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

The concensus of all the comments seems to be:

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

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

Higher Unemployment = Higher Comp Claims

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

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

Annsville man pleads not guilty
to shooting investigator

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

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

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

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

More WCB Staff Changes

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

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

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

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

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

The memo continues:

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

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

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

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

In Memoriam: Joseph Tauriello

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

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

“Lazy” Judge on trial before Court of Appeals

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

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

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

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

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

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

In Memoriam: Louis R. Salvo

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

CA Insurance Commissioner
Rejects WC Rate Increase

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

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

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

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

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

Public WC Insurance Funds
Better Run Than Private Ones

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

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

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

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

►CORRECTION◄

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

Lobbyists Lose on ATF in Federal Court

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

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

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

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

Typo not worth $1.6 Billion, this time!

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

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

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

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

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

NYSIF Introduces State-of-Art
Medical Bill Inquiry System

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

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

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

No New Commissioner under Consideration

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

Comments (0)

COURT DECISIONS

ON OUR OTHER PAGES

►Pending Legislation

OUR NEWEST POLL RESULTS

►Do you agree with legislation giving nurses more treatment responsibility?

COMMENTARY

►Commentary on the Quality of WC Board Decisions Reviewed by the Courts

THIS WEEK’S NEWSWIRE

Click here for the NEWSWIRE index

►Click here for the NEWSWIRE page

►Project 2015 Still Lives

►WAMO and the Dept. of Insurance

►Shortage of Doctors Upstate for Injured Workers

►Best Attorneys in 2009

Weekly postings of decisions regarding workers compensation issues from the New York State Court of Appeals, its four Appellate Departments, and various lower courts as well as decisions from other states that will be of interest to participants in the State of New York Workers Compensation system. Following the list of cases posted for this week is a list of cases for which arguments have either already been made at the 3rd Department and for which decisions have not yet been issued or for cases which have been scheduled but not yet heard.If you would like to be added to our e-mail alert list or have any submissions or suggestions, they can be sent to me at TheInsider@InsideWorkersCompNY.com.

The Two Top Attorneys for 2009
click here for details.

The Top Attorneys for 2010
click here for details.

NEW POSTINGS: two affirmances for the Workers Comp Board by the 3rd Department and the list of 18 cases scheduled for hearings at the 3rd Department for which decisions have yet been issued.

Wilcox v Niagara Mohawk
January 28, 2010 Appellate Division, Third Department
SLU Apportionment

AFFIRMED the Board’s ruling that apportionment did not apply to claimant’s workers’ compensation award. Claimant sustained a work-related injury to his right ankle in December 2004, 12 years after undergoing surgery on the same ankle for a condition that was wholly unrelated to his employment. Claimant’s treating physician opined that claimant suffered a 45% schedule loss of use (SLU) of his right foot and did not attribute any portion of the loss to the noncompensable 1992 injury. The employer’s medical examiner agreed that claimant had a 45% SLU but attributed 50% to claimant’s earlier injury. The Law Judge, affirmed by the Board, granted claimant a 45% SLU, rejecting the employer’s claim of apportionment. The Court noted that, although apportionment May be applicable in a schedule loss of use case if the medical evidence establishes that the claimant’s prior injury — had it been compensable — would have resulted in a schedule loss of use finding, the Board determined that medical records and reports relevant to claimant’s 1992 surgery were unavailable, and neither expert was provided with any objective documentation indicating to what extent, if any, claimant’s use of his right foot or range of motion had been impaired as a result of the prior injury. Consequently, although the medical examiner who evaluated claimant for the employer opined that claimant had a preexisting 22.5% loss of use, claimant’s treating physician testified that any opinion regarding a preexisting loss of use would be entirely speculative. Thus confronted with conflicting medical evidence, the Board was authorized to credit the opinion of one expert over that of another. Prevailing party represented by: Peter W. Hill (Oneonta) for Clyde F. Wilcox, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….

Shelley v Shelley Septic
January 28, 2010 Appellate Division, Third Department
Coverage: Sole Executive Exclusion

AFFIRMED the Board which ruled that, per WCL §14(6), claimant was not concurrently employed by Thompson Sanitation Corporation when he was injured working at Sheeley Septic Service. A review of the controverted Board decision shows that the issue was not concurrent employment but executive exclusion under a corporation’ s workers compensation insurance policy, per WCL §54[6][d]. At the time of claimant’s injury, he and another individual, Paul Walsh, were Thompson’s sole owners and officers. Walsh testified that he elected to be excluded from Thompson’s workers’ compensation coverage in 1994 and, while he did not remember if claimant did so that year, claimant had done so when Thompson was initially formed. According to documentation submitted by the workers’ compensation carrier, and admitted upon claimant’s stipulation, the policy in effect when claimant was injured contained an exclusion election for him. The Court found that the Board could properly find from the evidence presented that he did make such an election, thus removing himself from the definition of an “employee” and placing his work for Thompson outside of the ambit of Workers’ Compensation Law §14(6). Prevailing party represented by: Patrick B. Guy of counsel to Gitto & Niefer (Binghamton) for Sheeley Septic Service and another, respondents. And Jill Singer of Counsel to Steven Licht, Special Funds Conservation Committee for State Insurance Fund, respondent. Click here to read the full decision of the Court….

PENDING CASES
January 28, 2010: The following list represents 18 cases, with their hearing dates but for which no decision has yet been issued. Arguments have been heard in 11 cases with the other 7 scheduled for presentation in February.

Jan 12, 2010 Altobelli v Allinger Temporary
Jan 14, 2010 Cassata v GM Powertrain
Feb 09, 2010 Cicinnati v Clare Rose Inc.
Feb 11, 2010 D’avilar v New York University
Jan 15, 2010 Garifo v Pathmark Stores,
Feb 10, 2010 Grant v NYC Transit Authority
Jan 12, 2010 Guz v Jewelers Machinist Inc.
Jan 14, 2010 Howard v Stature Electric
Jan 15, 2010 Kot v Continental Ins
Jan 13, 2010 Laezzo v NYS Thruway Authority
Jan 07, 2010 Magidson v Strategic Telemkt
Feb 16, 2010 Rebeor V Mooses Lodge #1280
Jan 14, 2010 Sacco v Mast Advertising
Feb 17, 2010 Stojanov V Eastman Kodak Co.
Feb 16, 2010 Turdo V Dellicato Vineyards
Feb 10, 2010 Wadsworth v K-Mart
Dec 16, 2009 Wilcox v Niagara Mohawk Power
Dec 16, 2009 Wilson v General Mills

▼ Posted Friday January 22, 2010 ▼

Moysello v David
January 21, 2010 Appellate Division, Third Department
Employment: Taxi driver

AFFIRMED the Board which ruled that claimant was an employee of Charles David and David Enterprises, Inc. In January 2007, claimant was injured in a motor vehicle accident during the course of his employment as a taxicab driver for David’s Taxi. An investigation determined that the vehicle was registered to David Enterprises, Inc. and the was “true owner” of David Enterprises was Charles David. At the conclusion of the hearing, at which claimant was the only party to appear, a Law Judge concluded that claimant was employed by David and David Enterprises (D/DE) on the date of his accident– both of which were uninsured in violation of Workers’ Compensation Law § 50. D/DE filed an application for Board review, contending that claimant’s actual employer was a related entity, David Brothers, Inc., which purportedly had workers’ compensation coverage on the day in question, and that D/DE did not receive proper notice of the hearing. The Board affirmed, finding that D/DE met the presumptive definition of employer contained in WCL §2 (former [3]) and that jurisdiction had been properly obtained. The Court agreed pointing out that D/DE conceded David Enterprises was the registered owner of the vehicle and that there was sufficient indicia of control To support the Board’s finding that D/DE and that proper notice was served. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….

Lew v Younger
January 21, 2010 Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board which ruled that an employer-employee relationship existed between claimant and Richard Younger. Claimant, a cleaner, in 2006 had his claim for workers’ compensation benefits after he was allegedly injured in the course of his employment for Richard Younger, a site manager who arranged for the upkeep of a number of buildings. In 2007, the Board reversed the Law Judge, determined that claimant was employed by Younger, established the claim and restored the case to the calendar. Younger and others sought and was denied review of the argument that claimant was either an independent contractor or in the employ of the owner of the building where he was injured. The Appellate Court listed in its decision some of the evidence with which it supported the Board’s determination that an employer employee relationship existed, notwithstanding evidence that could permit a different result. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….

DiLascio v Tilden Glen Head
January 21, 2010 Appellate Division, Third Department
Coverage: sole executive exclusion

AFFIRMED the Board which ruled that the State Insurance Fund is not liable for the payment of workers’ compensation benefits to claimant. Claimant was the sole executive officer of an automobile repair business that maintained workers’ compensation insurance through the State Insurance Fund (hereinafter SIF). But in 1994 to 2001 elected to exclude himself from such coverage at which time without expressly notifying SIF that he intended to now be covered by the insurance policy, began including his salary in the chargeable payroll statements he submitted to SIF used to calculate premiums. A renewal policy covering the period from October 2005 to October 2006, however, was provided to the employer, which explicitly stated that claimant was not covered by the policy due to the election to have him excluded. In May 2006, during the time that this policy was active, claimant was injured while at work and he applied for workers’ compensation benefits. [SIF thereafter credited the employer’s account for the portion of the premiums applicable to the inclusion of claimant’s salary in the chargeable payroll paid from 2004 to 2006.] A Law Judge ruled that claimant, by paying the higher premiums based upon the inclusion of his salary in the chargeable payroll, believed that he was covered and SIF was estopped from denying coverage.The Court agreed with the Board’s decision to reverse agreeing that there was sufficient evidence that estoppel did not apply. Most importantly, the record reveals that the policy, in the year, expressly excluded the claimant from coverage, that he had actual knowledge that he was not covered by the policy and, therefore, could not have reasonably relied on SIF’s acceptance of higher premiums in believing that he was covered. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance for Tilden Glen Head, Inc. and another, respondents. Click here to read the full decision of the Court….

Li v Southern Garden
January 21, 2010 Appellate Division, Third Department
§ 15(8)Reimbursement Special Fund

AFFIRMED the Board which discharged the Special Disability Fund from liability under WCL §15(8) (d). After the injured worker claim was established for injuries sustained in a January 2000 accidents, the carrier filed a notice for reimbursement from the Fund based on a previous injury sustained by claimant.

In April 2005, the Board approved a settlement agreement between claimant and the carrier pursuant to WCL §32. In light of the carrier’s reimbursement claim, the Fund was also a party to the agreement. The agreement noted that the issue of permanency was outstanding and that the parties had decided to settle the claim rather than litigate the issue. The Committee gave provisional consent to the settlement, “subject to the carrier’s successful claim under [Workers’ Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the time of the approval of this agreement.” The agreement expressly provided that the Committee’s consent “is not to be construed as a concession of liability under . . . [s]ection 15 (8) (d).” Thereafter, the Law Judge granted the carrier’s reimbursement claim but was then reversed after a Board’s review. First the court accepted the board’s discretion to accept the Funds appeal which is one day late but not the carriers which was two months late. Court agreed Board’s reasoning denying reimbursement because the work-related injury did not result in a permanent disability, even though evidence in the record might support a contrary result. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full decision of the Court….

Davis v Ready Labor
January 21, 2010 Appellate Division, Third Department
Course of Employment: driving to work

AFFIRMED the Board which ruled that the death of claimant’s decedent did not arise out of and in the course of her employment. Decedent was employed by Labor Ready, an employment agency that provides temporary employees to its clients. On March 16, 2004, decedent was driven, along with two other employees, to a work assignment at Dunkirk Ice Cream by McKinley Barnes, a Labor Ready employee who was not working that day but had agreed to drive decedent and the two other employees to the work site. Barnes returned to Dunkirk when decedent and the other Labor Ready employees had finished their eight-hour shifts and, during the 26-mile return trip, an automobile accident occurred that resulted in decedent’s death. Claimant’s application for his comp death benefits was granted by a law judge but the Board reversed and disallowed the claim.

laimant argued that because Labor Ready assumed the responsibility for transporting its employees to and from their temporary job assignments, this accident should have been deemed to have occurred within the scope of decedent’s employment per WCL §10 [1]). Although there are exceptions to the general rule that travel to and from a work site is not considered to be within the scope of employment and injuries occurring during that period, the Court agreed with the Board that this case was not such an exception. It was noted that the employer did encourage car pooling with employees were assigned to the same job location but the vehicles used for transport were not owned by Labor Ready and it had no contract nor did it pay any driver to transport its employees to the work site. In addition the driver of the car was not working for the employer that day was not pay for the service by the employer but by the individual employees who did not get paid for travel time. The Court agreed with the Board that Labor Ready did not have exclusive control of the conveyance, which combined with the Board’s review of other evidence, supported its decision to disallow the claim. Finally the court stated that the Board did not abuse its discretion by refusing to consider her rebuttal because she failed to include the required cover sheet and affidavit of interested parties. Prevailing party represented by: Karen Darling of counsel to Hamberger & Weiss (Buffalo) for Labor Ready and another, respondents. Click here to read the full decision of the Court….

▼ Posted January 14, 2010 ▼

Domenico v United Way
January 14, 2010 Appellate Division, Third Department
Venue issues: Switch Law Judges

AFFIRMED the Board’s ruling which denied the pro se claimant’s request to move the case to a different venue. Claimant, after injuring her hand and wrist, was found to have a compensable partial disability but, when issues subsequently arose regarding permanency and the degree of her disability, the employer and claimant were directed to produce medical evidence relating to permanency and loss of use. The employer thereafter submitted an independent medical examination, but claimant did not. At a July 2008 hearing, a Law Judge again directed claimant to provide medical evidence, on or before October 14, 2008, if she wished to controvert that provided by the employer. The Law Judge noted as much in the resulting decision and continued the case. Claimant appealed that continuance to the Workers’ Compensation Board, requesting that her case be assigned to a different Law Judge and/or transferred to a different district, and arguing that the Law Judge improperly continued her case. The Board rejected claimant’s arguments and affirmed the Law Judge’s decision. Prevailing party represented by: David A D’Agostino of counsel to Smith, Sovik, Kendrick & Sugnet (Syracuse) for United Way and another, respondents. Click here to read the full decision of the Court….

Begor v Holmes
January 14, 2010 Appellate Division, Third Department
Coverage: Which carrier

AFFIRMED the Board’s decision which ruled that American Zurich Insurance Company is the liable workers’ compensation carrier. In this case, the injured worker was employed by Four Seasons who had no workers comp insurance. Four Seasons was hired by Mid Hudson who used a professional employer organization (PEO) to handle all its human resources functions, including payroll, employee benefits, and workers’ compensation benefits. Mid Hudson’s leased employees were covered by a workers’ compensation and employers’ liability insurance policy obtained by the PEO and issued by American Zurich Insurance Company (hereinafter Zurich), on which the named insured was the PEO as labor contractor for Mid Hudson. Mid Hudson in turn was hired by Brenner & McHugh, Inc., the general contractor on the projectwho was insured by NYSIF.

The Zurich policy provided, in pertinent part: “This policy provides coverage for the workers leased to the client [Mid Hudson] . . . This policy does not satisfy the client’s duty for the complete payment of any obligations it may have under the Workers’ Compensation Law for non-leased employees . . .” The certificate of liability insurance for the policy similarly provided that “[c]overage is provided for only those employees leased to but not subcontractors of Mid Hudson.“

After an initial hearing on claimant’s application for workers’ compensation benefits, a Law Judge issued a decision that found that Mid Hudson did not have coverage on the date of the accident extending to its subcontractor and that, since they both had failed to provide coverage for claimant, SIF was obligated under WCL §56, as Brenner’s carrier, to pay any outstanding awards and causally related medical bills. The Board in reviewing SIF’s appeal, concurred with the Law Judge’s determination that the claim was SIF’s liability, finding that Mid Hudson was an uninsured subcontractor because, although it had coverage for its leased employees, it had exposed itself to workers’ compensation liability for which it had no coverage by subcontracting work to Four Seasons. The full Board accepted review, rescinded the Board panel’s decision, and returned the matter for further consideration. The Board panel then issued a decision finding that the limitation of coverage in the Zurich policy to leased workers was ineffective to exempt claimant from coverage because, under WCL §54(4), the policy was deemed to include the statutory coverage provided under WCL §56 to employees of uninsured subcontractors such as claimant. The Board panel therefore found that Zurich, as Mid Hudson’s carrier, was liable for the claim.

Because the resolution of this matter depends on pure statutory construction, the Appellate Court recorded no deference to the Board’s determination but agreed with the Board’s statutory analysis, the specifics of which can be found in the Court’s decision. Prevailing party represented by:Kelly A. O’Neill of counsel to Gregory J. Allen, State Insurance Fund (White Plains) for Brenner & McHugh, Inc., and another, respondents. Click here to read the full decision of the Court….

Brook v Overseas Media
January 12, 2010 Appellate Division, First Department
§120: Discrimination: a workers’ comp issue, not Civil Court

DISMISSED a Supreme Court motion to proceed under which the plaintiff sought a finding of retaliatory discharge under the New York City Human Rights Law. The Appellate Court found that the allegation does not state a cause of action for retaliatory discharge under the NYC Human Rights Law. The Court explained that “[t]he mere filing of a claim for workers’ compensation is not a ‘protected activity’ within the meaning of that provision, because it does not constitute ‘opposing or complaining about unlawful discrimination’ [filing of a workers’ compensation claim not a protected activity under Title VII, 42 USC § 2000e-3(a)]). Plaintiff’s sole remedy for retaliatory discharge in violation of WCL §120 is to file a complaint with the Workers’ Compensation Board. Even when the complaint is liberally construed to allege that plaintiff’s employment was terminated in retaliation for requesting an accommodation for her disability, it does not state a cause of action because it fails to allege that she opposed her employer’s discriminatory failure to make reasonable accommodation.” Prevailing party represented by: Jason M. Zoladz of counsel for appellant. Covington & Burling (New York) for appellant. Click here to read the full decision of the Court….

▼ Posted January 7, 2010 ▼

Church v Arrow Elec
January 7, 2010 Appellate Division, Third Department
§114-a: Fraud
7050 Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings (1) that the claimant violated Workers’ Compensation Law § 114-a and disqualified him from receiving future wage replacement benefits and (2) which denied claimant’s request for full Board review but RESCINDED part of the mandatory penalty due to the Boards “undescernable” logic.

Claimant, injured in April 2003, was awarded benefits in December 2003. The carrier applied for review by a Board Panel which determined that claimant “knowingly made false statements and representations as to a material fact for the purpose of influencing the determination of workers’ compensation benefits in violation of [Workers’ Compensation Law] § 114-a,” as a result the Board rescinded prior benefits and disqualified him from future receipt of wage replacement. Claimant’s subsequent application for review by the full Board was denied. Claimant now appeals both from the Board’s decision reversing the WCLJ and from the denial of his application for full Board review.

The Court found find that the Board’s finding of §114-a fraud was supported by substantial evidence, i.e. “Claimant’s attempts to explain the discrepancies between his representations and the observations of the physician conducting the independent medical examination and the surveillance video presented issues of credibility that the Board was entitled to resolve.” But the Court then wrote, “turning to the propriety of the sanctions imposed, while it is clear that the Board assessed a mandatory penalty, we are unable to discern from the Board’s decision ‘a link between the false statement or representation and the forfeited compensation to show that the compensation was directly attributable to the false statement or representation’. Thus, we must remit to the Board to further develop the underlying decision in this regard. However, we are unpersuaded by claimant’s contention that the disqualification from receiving future benefits was disproportionate to his conduct, given the thorough explanation set forth by the Board in its assessment of this discretionary penalty.”

They added, “Claimant’s appeal from the denial of his application for full Board review is deemed abandoned due to his failure to raise any issues with respect thereto in his brief on appeal.” Prevailing party represented by: Matt Worth of counsel to Weiss, Wexler & Wornow (NYC) for Arrow Electronic, Inc. and another, respondents. Click here to read the full decision of the Court….

Epp v Cortland City DPW
January 7, 2010 Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings (1) that claimant sustained a causally related injury to his right knee, and (2) which denied the self-insured employer’s request for reconsideration or full Board review. Claimant, after allegedly ensuring his right knee on July 31, 2006, filed a claim for workers’ compensation. A Law Judge continued the case pending the deposition of claimant’s treating physician which the parties were directed to complete and submit by May 18, 2007. The employer encountered difficulties in procuring claimant’s physician’s testimony, prompting it to request an extension of time. The WCLJ indicated that the request would be held in abeyance pending receipt of an affirmation detailing, among other things, the employer’s efforts to schedule the deposition. When no responding affirmation was tendered, the Law Judge issued a reserved decision establishing the claim, which was affirmed by the Board which subsequently denied the employer’s request for full Board review.

It is well settled that the assessment of witness credibility and the resolution of conflicting testimony lie within the exclusive province of the Board, with the Board in this case siding with the claimant and his witnesses rather than those of the employer’s witnesses. As to deposing the physician or striking her reports from the record, the Court agreed with the Board that the employer failed to comply with the procedures outlined by the Law Judge. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….

Flores v Newstar Apparel
January 7, 2010 Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review

AFFIRMED the Board’s that (1) claimant sustained a compensable injury, and (2) denied the carrier’s request for full Board review. Claimant, injured in a fall that occurred at the start of her workday when she slipped on ice in the entryway of the building where her employer was a tenant, had her application for benefits denied by a Law Judge who determined that the accident did not occur within the precincts of her employment. The Board reversed and subsequently denied the carrier application for full Board.

“Although injuries that occur while an employee is traveling to and from work are not generally compensable, an exception may lie in the ‘gray area’ . . . courts must additionally consider whether (1) there was a special hazard present, and (2) if the route taken by claimant had a close association with the premises of [the] employer.” In this case the claimant’s testimony, including very specific facts regarding the location of injury, was substantially uncontroverted. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….

Friedman v NYC DOT
January 7, 2010 Appellate Division, Third Department
Income from self-employment

AFFIRMED the Board’s ruling that claimant was not entitled to an award of reduced earnings subsequent to November 22, 1987 as his business income was salary and not profits.

Claimant, having sustained work-related back injuries in 1979 and 1983, was classified as permanently partially disabled and was awarded reduced earning benefits beginning in 1985, when he stopped working for the employer. The benefits were suspended in November 1987, when the employer’s investigation revealed that claimant owned his own business and was also serving as a corporate officer for at least one other business. The case was closed in 1989 after he failed to comply with the Board’s direction to produce personal and corporate tax returns. In 2003 after 14 years of his failing to follow Board directions and subpoenas, the Board ultimately found that claimant had failed to provide sufficient evidence entitling him to reduced earnings, and closed the case pending his production of such evidence. In 2007 after testimony from the original employer’s accountant indicating the returns that were available were incomplete as well as testimony from the claimant, the Law Judge determined that claimant was actively engaged in gainful activity and had not demonstrated a diminution of earning capacity.

The claimant argue his income constituted profits rather than earnings and that “a self-employed claimant’s work primarily in a supervisory capacity has been found to be profits from an investment”. Unlike a business owner who passively supervises employees who carry out the actual work of the business, claimant’s testimony reveals that the inspection and review services that he performed constituted is company’s actual work.”[W]hether an individual’s income is based on profits or a salary for services performed is a factual determination for the Board” and, in this case, the Court agreed with the Board’s determination that “claimant’s income from LAF was actively earned from his labor and constituted actual earnings rather than a passive return on investment.” Prevailing party represented by: Ronald E. Sternberg of the Office of Corporation Counsel for the New York City Department of Transportation and another, respondents. Click here to read the full decision of the Court…

Hassan V Ford Motor
January 7, 2010 Appellate Division, Third Department
Hearing Loss

AFFIRMED the Board’s ruling that claimant had a 0.625% schedule loss of use for binaural loss of hearing despite claimant’s contention that the carrier’s medical witness was not qualified. In his appeal, the claimant contends that because the employer’s registered nurses who performed audiometric examinations on him are not “qualified professionals” pursuant to 12 NYCRR 351.7, the examination results should not have been admitted into evidence, for which reason, the opinion of the otolaryngologist who served as the employer’s independent medical examiner, lacks credibility and should have been rejected due to his partial reliance on those examination results.

The Court agreed with the Board’s findings that “the special certification and training received by the employer’s nurses in performing audiograms” as evidenced by the nurses’ uncontradicted testimony is sufficient to render them “qualified professionals” under 12 NYCRR 351.7. Also it was noted that the otolaryngologist’s conclusion was also based on tests he himself performed. The court noted that when there was conflicting but were relatively equal medical evidence, the “Board is vested with broad authority to evaluate the credibility of witnesses, weigh conflicting evidence and draw any reasonable inference from the proof .” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for Ford Motor Company, respondent. Click here to read the full decision of the Court….

Hurlburt v Cortland County
January 7, 2010 Appellate Division, Third Department
§ 29: MVA liens, malpractice
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling that (1) the employer was responsible for the payment of certain of claimant’s medical bills, and (2) denied the employer’s request for full Board review. Claimant, a former Cortland County Sheriff’s Deputy, sustained serious injuries at the Cortland County Jail in September 1981. Following a surgery to repair damage to his elbow, claimant developed a bacterial infection in his heart, causing him to suffer a heart attack and stroke, which eventually led to paralysis and aphasia. A Law Judge found claimant to be permanently physically disabled as a result of injuries sustained at work and awarded him benefits.

Between August 2005 and January 2006, claimant underwent emergency care for an infection of the area where a pacemaker had been installed at the time of his heart attack, resulting in substantial medical bills that the self-insured employer disputed. In a March 2006 hearing, the employer conceded that the disputed bills were causally related to a compensable injury, but indicated that it was investigating whether claimant had settled a third-party malpractice action related to his compensable injuries without the employer’s consent. After the employer stated that it had discovered no information other than that a lawsuit had been commenced, a Law Judge found for the medical providers with regard to the disputed bills.

The employer then applied for review by the Board, contending that it had evidence that claimant had settled or discontinued a third-party lawsuit without its consent, supplementing its application with a copy of a stipulation of discontinuance in a malpractice action. Nevertheless, the Board found that the WCLJ had “acted appropriately and within his discretion in denying the self-insured employer further opportunity to defend the claim” and commented that the employer did not file a copy of the stipulation of discontinuance with the Board in a timely manner and failed to explain why it could not have been produced at an earlier date. The employer now appeals from the Board’s decision and from the denial of its application for full Board review.

While the Court cited case law to the fact that “if a third-party action relating to an injury also subject to a workers’ compensation claim is settled without the consent of the employer/carrier or a compromise order, the claimant forfeits any further benefits for which a recovery might have been had in the third-party action (see WCL §29 [5] and the claimant bears the burden of establishing that the employer’s consent was obtained.” But in this case, among other reasons, the employer failed to present any evidence to the WCLJ that claimant had commenced a malpractice action, let alone settled or discontinued such action. Therefore, claimant’s duty “to demonstrate the employer’s consent never arose”. As to the denial of full Board review, the employer proffered no new evidence in support of its application. Prevailing party represented by: Phyllis I. Hulbert, Rotanda, Florida, as power of attorney for Mark Hulbert, respondent and Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….

Jaquin v Community Covenant
January 7, 2010 Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the Board’s ruling that the pro se claimant did not sustain a causally related injury, denying her claim for benefits.

Claimant alleges that she suffered a work-related injury when she lifted a heavy child out of a carriage during the course of her employment at a day-care center in February 2004 and filed the claim in March 2004. The Board affirmed the June 2004 closing of her claim for lack of prima facie medical evidence but reopened the case for submission of additional medical evidence. In January 2005, claimant submitted a second C-3 form that provided somewhat different statements of the date, nature, and circumstances of the injury and of the timing and nature of the notice allegedly given to the employer but she did not supply prima facie evidence until May 2007 at which time she and an employer witness testified. The Law Judge then disallowed the claim determining that claimant had failed to show a causal relationship between the injury and her employment by competent medical evidence, and that the opinion of claimant’s doctor as to a causal relationship, given two years after the accident, lacked foundation in the record.

The burden is upon claimant to produce competent medical evidence establishing that her injuries or limitations were causally related to her employment but her records show she had a prior history of chronic problems with the site’s allegedly injured at work, her medical reports did not substantiate her claims, and there were discrepancies in claimant’s own accounts of the event and its consequences. In supporting the Board’s decision, the Court stated, “Though the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where, as here, no opposing medical proof is presented . . . Claimant’s proof failed to definitively link her injuries to the February 2004 event rather than to the 2003 accident or to her preexisting conditions.” Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Community Covenant Church and another, respondents.Click here to read the full decision of the Court….

Kane v Unger/Compton
January 7, 2010 Appellate Division, Third Department
Coverage (including Death Claims)

AFFIRMED the Board’s decision which determined, among other things, that PMA Insurance Group was the liable workers’ compensation carrier as their policy was in effect at the time of the alleged accident of June 9, 2006. Although Unger began transferring ownership of his business in March 2006 to C/C, who took over day-to-day operations on March 31, 2006, transfer of ownership was not completed until August 2006. Unger canceled his workers comp insurance effective June 19, 2006 (six weeks before a final transfer of ownership and less than two weeks after the alleged accident) and C/C obtained their insurance on July 15, 2006 (one month after Ungar canceled his and six weeks after the alleged accident). The Law Judge ruled that, since formal control of the business did not take place until August 2006, the claimant was effectively an employee of Ungar. The Board did affirm the Law Judge as to the proper employer but noted that the Law Judge had misidentified Ungar’s workers’ compensation carrier, determining it should have been PMA Insurance Group. The Court added, “While there is evidence in the record that C/C had taken over the day-to-day operation of the business as of June 2006, which evidence could support a different conclusion, we nevertheless find that the Board’s determination was supported by substantial evidence.” Prevailing party represented by: Jason M. Carlton of counsel to Gitto & Heifer (Binghamton) for Andrea Compton and another, respondents Click here to read the full decision of the Court….

Nothaft v Hawkeye Construction
January 7, 2010 Appellate Division, Third Department
Causal Relationship: Death

AFFIRMED the Board’s ruling that the unwitnessed death of claimant’s decedent was not causally related to his employment. [I was on this panel.]

In March 2005, claimant’s husband (hereinafter decedent) was employed as a truck driver at a construction site. Approximately two hours after the start of his shift, decedent was found unconscious in the cab of his truck and later died. An autopsy determined that the causes of death were hypertensive and arteriosclerotic heart disease. Claimant sought workers’ compensation death benefits, but a Law Judge determined that decedent’s death was not causally related to employment. The Board determined that, “As decedent suffered an unexplained or unwitnessed accident during the course of his employment, a presumption of compensability arises (see Workers’ Compensation Law § 21 [1]) but that presumption may be rebutted by substantial evidence to the contrary, however, and ‘irrefutable proof excluding every conclusion other than that offered by the employer’ is not required.” Both the Court and the Board agreed that the autopsy report and death certificate indicated, and a medical expert who reviewed decedent’s medical records opined, that decedent’s death was unrelated to his work. “As substantial evidence supports the Board’s determination that decedent’s work had no connection to his death, we decline to disturb it.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Hawkeye Construction, Inc. and nother, respondents. Click here to read the full decision of the Court….

▼ Posted January 4, 2010 ▼

Comments (0)

COMMENTARY & REPORTS

ON OUR OTHER PAGES

► Board gets On Feb 4, two more affirmances

►Commissioner Bios September updates

PRIOR COMMENTARY

►Answers to Your E-Mails

►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.

Eliminating Oral Arguments: A MAP or a PIG?

February 8, 2010: The Workers Compensation Board’s plans to eliminate oral arguments appears to follow the Board’s normal policy for making change in procedure: they either ignore the facts or do not bother to look at them.

And, yes I have had the opportunity to review a great many documents on this subject including the very coherent presentation in the Board’s recent “Across-the-Board” dated February 3, 2010 entitled “Board Creating a New MAP for Claims”, for which MAP stands for “Managed Adjudication Path”.

And I have an excellent commentary supporting the new program by a member of the staff, which follows my commentary.

But to paraphrase an old quote, no matter how much lipstick you put on this is “PIG” (pragmatically impractical game-plan), I do not believe that a statistical analysis of Board’s records supports MAP.

As I have previously noted, while the Board believes in the mantra “Justice delayed is Justice Denied”, I must remind them that “Justice Uneven is Justice Unequal.”

Until such time as the Board is able to issue consistent decisions, it cannot continue to deny claimants and employers the opportunity to set the record straight at hearings. Equally important is that, while a good number the Law Judges would be fair in imposing Workers Compensation Law §114a-3 penalties against those who abuse the hearing process, there are also a good number of judges who will abuse this penalty such that a decision to appeal many more likely be determined by guessing before which law judge a case may be heard than it would be by the merits of the issue.

My records show that hearings change the results in 35% of decisions as compared to 6% done by simply reading the file.

I have reviewed the statistics from my own database of cases I heard on oral argument, in this case for the seven months of the calendar year 2008 when I was at the Board. Among the 55 fields I have for each record (workers compensation claim), I have the following four fields:

Recommendation of the Administrative Review Division/Office of Appeals (ARD)
My opinion
Whether the recommendation and my opinion agree
The final Board Panel decision.

A quick analysis of the relationship between these four fields shows the following:

I agreed with the ARD’s recommendations 76% of the time and disagreed with 24% of the time.
15% of the time that I did agree with the ARD, the decision was changed by the Panel after all oral argument.
90% of the time when I did not agree with the ARD, the Panel agree with my changes.

In response to those who would argue that I was an “overly contentious”, “argumentative” commissioner, I now give you the numbers to the Board Panels:

65% of the time the recommendation of the ARD was accepted.
16% of the time the decision changed pursuant to my recommendation.
But 19% of the time, even though I agreed with the recommendation of the ARD, the Board Panel’s final decision disagreed with that recommendation. So, after hearing the arguments and listening to my colleagues on the Panel, I agreed with them that my initial of the acceptance of the ARD’s decision was in error.

I also have an additional database of decisions made on paper alone: those decisions were changed approximately 6% of the time. (This 6% excludes another 10% rejected for typos, grammatical errors, and/or general incoherence.)

In summary, my record shows that the initial recommendations, which are subject to review and a formal hearing, are changed six times as often as those recommendations based simply on a review of written documents. This record strongly suggests that oral arguments/hearings before the Commissioners, and by extrapolation, before the Law Judges, have a place in the process.

I am sure that if I were to run these number for the prior 11 years I served on the Board, these numbers would not change substantially.

Bottom line is that at least on the Panels on which I served on hearings resulted in changes to 35% of the cases. What numbers does the Board have? Or, as my accountant once said about one of my partners, “What I like about him is he has already made up his mind so he doesn’t need to look at the facts.” Can we not expect better from the Workers Compensation Board?

A Reader’s Comments

[ED. NOTE: This commentary is in response to my NEWSWIRE article published on Friday.

Project 2015 Still Lives” (1/28/10 Newswire). Conciliation and Administrative Decisions have been around for 20 years. In my opinion, people are overreacting to Informal Resolution, which is simply Conciliation by another name with less paperwork. Hearings are not going out the window and cases that need hearings will get hearings. If I’m dead wrong, we’ll know by next month.

One misleading statement in that item is that hearings have been cut in half over the past 10 years while the number of judges has increased. Please recall that conciliators were de facto part-time judges 10 years ago. When NYC split up in 2001, the Board had 33 judges and 12 conciliators, the equivalent of 37-39 judges. Today, NYC has only 30 judges and 6 conciliators who due to union pressure act as judges only in emergencies. The board’s judge ranks are realistically down by 20% in NYC. (I can’t vouch for upstate).

Please also recall that 10 years ago the Board had tremendous backlogs of cases waiting for hearing dates for months on end. Manhattan alone had 10,000 hearing unsets in 2001. Obviously, the Board was shorthanded at the time. If you are willing to stipulate that tremendous backlogs like that are acceptable, then we can make do with less. Personally, I prefer staffing adequate to meet our mission. As you express very eloquently, the injured workers deserve the best; not a 6 month or more wait for a hearing.

Please also recall that 10 years ago the calendars were full of questionable hearings. The Board had C-7 cases without prima facie medical evidence and without claimants showing up. The Board had a bureaucratic mindset that cases had to regularly come on hearing even if there was no new issue. Those 1 minute hearings got the Board through the long calendars but didn’t really serve a purpose other than busywork for the Board and generating fees for services for the lawyers. There may be fewer hearings now but the average difficulty level is much higher.

Furthermore, judges work hard while may are not on calendar. 10 years ago doctors testified in court. Today, medical testimony is largely by deposition and the judge has to either write a reserved decision or prepare for a bench decision. The extensive reading required happens off calendar. Fewer hearings does not mean less work. Similarly, some Commissioners decided a few years ago that Section 32 hearings were an undue burden. Judges assumed that responsibility. Again, judges have to read the agreements off-calendar to be adequately prepared for calendar. Those of us who work with the judges think they are more productive, not less. Finally there are all those Administrative and Conciliation decisions to review, much more than 10 years ago.

Those who imply that judges are less productive than 10 years ago are mistaken and should try walking a mile in their shoes.
[ED. NOTE: The engaged Commissioners would agree with you, particularly on the section sign 32’s which were taken away from the Commissioners because one Commissioner in particular felt all those hearings interrupted vacations out of state.]

A Reader’s Opinion of the Appellate Court, Third Department

January 26, 2009: On January 4, 2010, I posted my commentary on the quality of decisions issued by the Workers Compensation Board that had been reviewed during 2009 by the New York State courts. In response of that commentary, I received a rather opinionated comment from a practitioner which I returned below after which I am also posting the response I sent to the practitioner, who did authorize many publishers is now. Any additional comments or suggestions are welcome.

My Reader’s Opinion

There is no question the Board operates in a lawless manner. The more fundamental question is why? The answer is right in front of our collective noses–the Appellate Division refuses to make this State Agency explain its decisions, or to be consistent. So the Board does what it wants, mostly with impunity.

There are 4 appellate divisions in the State but only the Third Department hears cases coming from the Board. It may be not be well known, but the Third Department hears all of the State’s agencies appeals. If I recall correctly there are about 150 agencies–of which the Workers comp Board is but one!!!! The list goes on and on: Alcohol Beverage Control, Education, Motor Vehicles, Environmental Conservation, State Retirement and Social Security, etc.

It is literally impossible for the few appellate division judges in the Third Department to have a complete grasp of the legal nuances involving every agency. And unless the facts are compelling, the court will almost always find some fact upon which to conclude the Board’s decision was based on substantial evidence. The most absurd situation is when the Board makes a decision, then the losing party appeals. Before the appellate division rules, and without any new evidence, the Board has on occasion issued an ‘amended decision’ reversing itself. In many instances the appellate division has affirmed the amended decision. This is one reason why the public has no confidence in the Board, nor in the Appellate Division decisions. Have you ever reviewed the appellate briefs? Every appellate lawyer will tell you frequently the court simply disregards the ‘tough’ issues with a dismissive ‘the court has considered the other arguments and finds them to be without merit.’ It is frustrating.

You know many of the Board’s Commissioners do not read the decisions they ’sign’ their name to–all that is needed today is a mouse click. What makes anyone think the Appellate Division is any different? Especially when in addition to a full load of civil and criminal cases they have 150 agencies to oversee.

My Response

There are a number of points in your e-mail I would like to address.

(1) While it is true that the Third Department hears from 150 state agencies, its decisions are almost exclusively limited to the Workers Compensation Board, Department of Labor Unemployment Insurance, Retirement Pensions, and the Department Of Corrections. Also when I posting decisions from the Third Department, I also check all the decisions issued by the First, Second, and Fourth Departments as well as the Court Of Appeals and various supreme and civil courts throughout the state. It is my observation that the First and Second Departments handle a far wider range of issues than does the Third Department. So I cannot agree with you on that particular point.

(2) As I noted in my book, Behind the Closed Doors, I have served with 26 commissioners. I would say that 1/3 of these read virtually every decision before they signed it, another 3rd would look at some and not others although their reviews were rather cursory, and the balance as you noted mouse-click their way through their work queues. Of course, all the writers in the legal department had to be active because they actually had to put words to paper but, for about 20% of them, their legal reasoning and attention to detail was an embarrassment. The bottom line is that you are correct: the decisions should have been better written, more coherent, and consistent.

(3) As for sending copies of my e-mail alerts or commentary from my website to the judges, that would be perfectly fine with me; you have the right to disseminate (crediting were blaming me for the content) my opinion and certainly if someone wishes to give them the advantage of the “pearls of wisdom” I periodically produce in my website, there’s nothing wrong with that. In fact I did try to acquire a list of their law clerks to send them my e-mail alerts; unfortunately I could not get that information.

The Quality of WC Board Decisions Reviewed in 2009 by the Courts

January 4, 2009: Now that this website has had the opportunity of posting one full calendar year’s worth of court decisions dealing with workers compensation-related issues, it is appropriate to do an analysis of those decisions issued by the Court of Appeals and Appellate Court as they impact on the New York State Workers Compensation Board, injured workers, and employers.

There were a total of 103 appeals in which the Workers Compensation Board was a party of interest covering 124 issues. A quick summary shows that the Appellate Court accepted the Board’s decision in only 80 (77%) of the appeals submitted to it for review, reversing 11 (11%) and sending 11 (11%) back for reconsideration, with two appeals receiving a split decision, affirmance on one issue reversal on the second. This compares to the affirmance rates of 92% in 2007 and 96% in 2006.

In doing this review, I assigned these appeals to 53 different issues in four different categories. It was only in 33 of these issues (62%) that the Board’s decisions were affirmed; on the other 20 issues (38%) the Board’s decisions met with mixed results: affirmances, reversals, and rescission. In eight cases the Appellate Court questioned the thinking process by which the Board made its decisions.

85 of these appeals involved issues raised by claimants (47 appeals) and issues raised by employers/carriers (38 appeals). Of the 47 appeals submitted by claimants, they lost 41. In the other six appeals, claimants were awarded with two reversals and four rescissions. Of the 38 appeals by employers/carriers, they lost 31 but the other seven appeals were favored with three reversals and four rescissions. Therefore one can conclude that the Court treats both sides equally.

All of the ten appeals argued by pro se claimants lost by having the original Workers Compensation Board decision affirmed by the Appellate Court.

The other 18 appeals of the 103 heard in 2009 involved disputes between carriers, employers, the State Insurance Fund, and Special Funds. In these appeals, the Board did not do well having had its decisions affirmed by the Appellate Court in only seven (41%) of the appeals with six reversals and three rescissions. There were two appeals each with two issues; in both appeals, the Court supported the Board on one issue and rejected the Board’s conclusion on the second. It appears that the issue with which the Board has the most difficulty understanding deals with the various sections of Workers Compensation Law §25 a, having its position affirmed in only three of seven appeals.

I have separated these 53 issues into the following four categories:

Was there an accident and/or does it qualify as a workers comp claim?

The 26 appeals in this category represented 21% of the appeals heard by the Appellate Court which affirmed the Board in 21 appeals (81%). Interestingly, in the other five appeals in which the Court did not support the Board’s decision, the Court rather than reversing any of them returned all five for reconsideration.

Seven of these appeals involve the issue of the timeliness of the filing of the claim, all of which were filed by claimants. The Appellate Court agreed with the Board in six of these appeals that the claim was time-barred; in the seventh appeal, the decision was returned to the Board with comments to the effect that the Board’s ruling against the claimant did not make sense.

In the seven appeals in which the Appellate Court affirmed the Board on issues involving “course of employment”, five of the losing appeals were brought by claimants and the other two losing appeals brought by carriers. The fact that the Appellate Court gives the Board discretion to choose between relatively equal sets of contradictory indicia certainly favors the Board being affirmed in these types of cases.

Who pays the bills?

The 35 appeals in this category, representing 28% of the 103 appeals heard by the Appellate Court, had the lowest affirmance rate: 69%. And even if the five appeals dealing with the definition of Workers Compensation Law §25 a are excluded, the affirmance rate is still only 74%, scattered randomly among the 19 issues in this category.

Probably the most important issue that has yet to make its way to the New York State Appellate Court deals with the issue of payments to the Aggregate Trust Fund. While I understand that there is at least one case set for argument in March or April of this year, the only case of which I am aware that has been made in any court is the Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al for which a decision was issued on March 9, 2009 by the Federal Court in the New York Southern District. In this decision, 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.”

How much should be paid and for how long?

The 41 appeals in this category represented 33% of the 103 appeals heard by the Appellate Court which affirmed the Board in 34 (83%) of these 41 appeals.

The most common issue dealt with voluntary withdrawal from the labor market in which the Board’s decisions were affirmed in 12 of 14 appeals. Interestingly, both the claimant and carrier each had seven appeals in which both were unsuccessful in six of their appeals asking the Appellate Court to reject the original Board decision. In the other two appeals, the carrier received a reversal and the claimant a rescission.

The second most common issue dealt with medical disputes over causal relationship in which the Board was affirmed in six out of eight appeals. In the seven appeals brought to the Appellate Court by claimants, claimants were successful in only one case resulting in a reversal of the Board’s decision. The only appeal brought to the Appellate Court by a carrier was successful, also resulting in a reversal.

The third most common reason for the appeal in this category were five unsuccessful attempts to have the Board’s findings on fraud pursuant to §114-a overturned, two appeals by claimants and three by carriers.

Were the laws and proper procedures followed?

The answer to this question is an 86% affirmance rate on the 22 appeals in this category.

However, there were at least eight appeals in which the Appellate Court, in returning the case to the Board for additional review, did so because the Board drafted a decision which contradicted prior decisions, misread the issues on appeal, or failed to review all the records in the file.

However “poor “decision-making was not limited to just the Board. There were seven appeals which were denied as the issue under appeal had not been previously raised (six of these appeals by claimant attorneys) and another six appeals for which the Appellate Court supported the Boards denial of a Full Board Review (again, five by claimant attorneys).

Summary

As noted earlier the Board’s affirmance record in 2009 compares unfavorably with prior years which perhaps explains why the Board had its decisions rejected in 20 (28%) of the 53 different issues the Board reviewed which made been their way to the Appellate Court.

One could argue that the reason for the low affirmance rate is because of the Board’s willingness to be more aggressive in its interpretation of Workers Compensation Law. But if this were the case, then one would presume there would be only a few issues which made up the bulk of these reversals. But the record shows that in 38% of the issues presented to the Appellate Court for review, the Board did not always do justice to the appellant. Could the answer be a combination of the Board’s insistence on speed versus quality and the writers and ultimately the Commissioners making decisions they think is fair rather than what is legal or perhaps not knowing what is legal.

The bottom-line is that there are certain issues in which the Board has failed to get its collective minds together in order to develop a better understanding of those issues and, in turn, issue more consistent and coherent decisions. For it is this lack of consistency which causes both claimants and their employers to view the Board’s claim of fairness with skepticism. And more importantly, the skepticism results in far more cases being controverted and unnecessarily clogging the Board calendar and appeals unit as well as the Appellate Court: “Why not appeal? We may win a case because nobody is really looking.”

It is this lack of consistency and lack of transparency that should be the key issue addressed by the Chairman, the Office of General Counsel, and the Commissioners as we enter the new year.

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

September 28, 2009: 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.

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

September 11, 2009: 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.

Project 2015: The end of the WCB Board

September 4, 2009: In a report published today by Mike Whiteley, the Eastern Bureau Chief of WorkComp Central, the Secret Cabal at the NYS Workers Compensation Board, actually a secret work group headed by Executive Director Joseph Pennisi, is making plans to eliminate all hearing, apparently by 2015 if not sooner, based on the Canadian WC system.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So why is this being proposed?

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

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

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

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

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

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

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

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

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

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

September 4, 2009

Comments (0)

POLLS: We Want Your Opinion

COURT DECISIONS

►2010 Board gets Five more affirmances

►Click here for PENDING COURT DECISIONS

►A NEW FEATURE on the DECISIONS page: Pending Legislation..click here

THIS WEEK’S NEWSWIRE

►Fenster’s Path to His Appointment

►Two NYSIF Board Appointments

►WCB Signs New Lease for Harlem District Office

►WC Research Provides Insight into Curbing Health Care Costs

OUR PRIOR POLL

►What were the top issues/cases in 2009

►What do we do with Undocumented Workers

►§32 and child support liens

ON OUR OTHER PAGES

►Commissioner Bios September updates

►§32 & Child Support Lien

►Legal Fees on Medical Bill??

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

BEHIND THE CLOSED DOORS

Chapter 24: How to Become A Commissioner

This Week’s Poll: More
Responsibilities for Nurses

January 25, 2010: In a rather propitious set of timing, the same time that the Appellate Court, Third Department affirmed the Board in the Matter of Hassan v Ford Motor, the State Legislature was considering Legislation to give greater responsibilities to nurses caring for injured workers.

Assembly Bill 3704 and Senate Bill 3908 authorizes, as a pilot program ,certified nurse practitioners to provide care and treatment to injured employees pursuant to the provisions of the workers’ compensation law; establishes a nurse practitioner committee to regulate the practice of nurse practitioners under such law. Both of these bills have been presented to the labor committees in both chambers.

Our poll this week asks your opinion as to the appropriateness of this or other potentially similar plans to expand Medicare available to injured workers. Please check those statements with which you agree and add any comments to the text box at the bottom of the poll:

Your Privacy is Assured
No Cookies or sign-in Required

The result of this poll will be published Monday February 1, 2010

This Week’s Poll Results: What were the key issues in 2009

In summary, there appears to be one open legal issue from last year whose resolution is awaited anxiously by the workers compensation community: payments to the ATF.

Poll Results: What do we do
with Undocumented Workers?

Aren’t you glad you had an education which stressed accuracy in choice of terms? An “undocumented” immigrant is a person who is in the US but is a citizen of another country and who, somehow, lost the papers which would demonstrate their current status. An “illegal” is a person whose status, after an inquiry, shows that there is nothing to support legal residency. Sotomayor’s deliberate use of incorrect terms to cloud or mischaracterize a status does not demonstrate incompetence, it demonstrates a violation of an oath to support the laws as they are.

To the question of whether the federal government should deport illegal immigrants and limiting their compensation, 41% were in favor, 18% were against deportation, and a 41% had no opinion.

SUMMARY

The U/W should not be given Workers Compensation, and any amount deemed what would have been paid were he/she a documented worker should be doubled and split between the WCB and the State. Further, the employer should be investigated to determine the amount they didn’t pay both the WCB and the State. Legitimate employers through their insurance and self-insured funds are being assessed staggering amounts while constantly facing increases in HICRA and covered lives to pay for these fly-by employers. They need to be taken to task and it should start with the WCB.

And

Other - illegal immigrants are dependent on illegal employers. the employers want illegals because they work cheaper and accept more hazardous work conditions. if we do not penalize the complicit employers–as a society we should accept the reality of the situation and bring back child labor; and give bail-out money to aid the triangle shirt waist factory. think of all the jobs that could be created. maybe we could just rename our country New China.

Thank you for your participation in this interesting issue. If you care to add to the discussion, click here to send me your comments.

This Week’s Poll Results:
The WCB, §32’s, Child Support Liens

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 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.

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.

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.

The majority of participants to this poll agree with this concept.

Poll Results: NYC’s Toxic WTC Tactics

“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.”

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?

QUESTION #2: Is the city being unfair to these injured workers?

SUMMARY

RECOMMENDATIONS

POLL: Legal Fees on 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.

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.

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.

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?

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

To eliminate lawyers from the system

After all, an uninformed claimant will not know their rights or alternatives.

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.

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.”

Comments (0)

NEWSWIRE

COURT DECISIONS

►Board gets two affirmances & 1st Dept rules on §120

►ANOTHER NEW FEATURE on the DECISIONS page: Pending hearings & decisions..click here

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

OUR NEWEST POLL RESULTS

►What was the most important case or issue in 2009?

ON OUR OTHER PAGES

►Commissioner Bios September updates

►§32 & Child Support Lien

►Legal Fees on Medical Bill??

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

THIS WEEK’S NEWSWIRE

►Fenster’s Path to His Appointment

►Two NYSIF Board Appointments

►WCB Signs New Lease for Harlem District Office

►WC Research Provides Insight into Curbing Health Care Costs

PRIOR WEEKS’ NEWSWIRE

►Board Reduces Performance Standards For Carrier

►CMS Liens: No Statute of Limitations

►Paterson Announced New Exec Dir for the Workers Comp Bd

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

►The Success of TENS units questioned

►NYS Sues CRM Civilly and Criminally

►‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

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

►Ohio Senator wants illegal workers banned from workers comp

►Higher Unemployment = Higher Comp Claims

►Annsville man pleads not guilty to shooting investigator

►More WCB Staff Changes

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

►In Memoriam: Joseph Tauriello

►“Lazy” Judge on trial before Court of Appeals

►In Memorium:
Louis R. Salvo

►CA Insurance Commissioner Rejects WC Rate Increase

►Public WC Insurance Funds Better Run Than Private Ones

►CORRECTION

►Lobbyists Lose on ATF in Federal Court

►Typo not worth $1.6 Billion, this time!

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

►No New Commissioner under Consideration

►Oklahoma considers confiscating surplus workers comp funds

►New Commissioner being considered

►WC Law Suits v Fed Ex on Drivers

►Nebraska Waives Settlement Hearings

►WCB Exec. Dir. Pennisi Resigns

►NYS Issues Bonds for 2nd Injury Fund

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

►Link to our Archive Index

Best Attorneys for 2009

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

John Clennan and David W. Faber

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

Fenster’s Path to His Appointment

Two NYSIF Board Appointments

WCB Signs New Lease for Harlem District Office

WC Research Provides Insight into Curbing Health Care Costs

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

Board Reduces Performance Standards For Carriers

CMS Liens: No Statute of Limitations

Paterson Announced New Exec Dir for the Workers Comp Bd

Are Dist Mgrs Going the way of the Dist Admins?

The Success of TENS units questioned

NYS Sues CRM Civilly and Criminally

‘Illegal Immigrant’ or ‘Undocumented Immigrant’?

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

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

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

Ohio Senator wants illegal workers
banned from workers comp

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

The concensus of all the comments seems to be:

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

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

Higher Unemployment = Higher Comp Claims

Annsville man pleads not guilty
to shooting investigator

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

More WCB Staff Changes

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

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

The memo continues:

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

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

In Memoriam: Joseph Tauriello

“Lazy” Judge on trial before Court of Appeals

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

In Memoriam: Louis R. Salvo

CA Insurance Commissioner
Rejects WC Rate Increase

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

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

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

Public WC Insurance Funds
Better Run Than Private Ones

►CORRECTION◄

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

Lobbyists Lose on ATF in Federal Court

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

Typo not worth $1.6 Billion, this time!

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

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

NYSIF Introduces State-of-Art
Medical Bill Inquiry System

No New Commissioner under Consideration

Comments (0)

COURT DECISIONS

ON OUR OTHER PAGES

►Pending Legislation

OUR NEW POLL

►Do you agree with legislation giving nurses more treatment responsibility?

COMMENTARY

►Commentary on the Quality of WC Board Decisions Reviewed by the Courts

THIS WEEK’S NEWSWIRE

Click here for the NEWSWIRE index

►Click here for the NEWSWIRE page

►Fenster’s Path to His Appointment

►Two NYSIF Board Appointments

►WCB Signs New Lease for Harlem District Office

►WC Research Provides Insight into Curbing Health Care Costs

The Top Attorneys for 2009

I announce the top two Appellate Court attorneys for 2009

click here for details.

NEW POSTINGS: Five affirmances for the Workers Comp Board by the 3rd Department and the list of 12 cases scheduled for hearings at the 3rd Department for which decisions have yet been issued.

Moysello v David
January 21, 2010 Appellate Division, Third Department
Employment: Taxi driver

AFFIRMED the Board which ruled that claimant was an employee of Charles David and David Enterprises, Inc. In January 2007, claimant was injured in a motor vehicle accident during the course of his employment as a taxicab driver for David’s Taxi. An investigation determined that the vehicle was registered to David Enterprises, Inc. and the was “true owner” of David Enterprises was Charles David. At the conclusion of the hearing, at which claimant was the only party to appear, a Law Judge concluded that claimant was employed by David and David Enterprises (D/DE) on the date of his accident– both of which were uninsured in violation of Workers’ Compensation Law § 50. D/DE filed an application for Board review, contending that claimant’s actual employer was a related entity, David Brothers, Inc., which purportedly had workers’ compensation coverage on the day in question, and that D/DE did not receive proper notice of the hearing. The Board affirmed, finding that D/DE met the presumptive definition of employer contained in WCL §2 (former [3]) and that jurisdiction had been properly obtained. The Court agreed pointing out that D/DE conceded David Enterprises was the registered owner of the vehicle and that there was sufficient indicia of control To support the Board’s finding that D/DE and that proper notice was served. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….

Lew v Younger
January 21, 2010 Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board which ruled that an employer-employee relationship existed between claimant and Richard Younger. Claimant, a cleaner, in 2006 had his claim for workers’ compensation benefits after he was allegedly injured in the course of his employment for Richard Younger, a site manager who arranged for the upkeep of a number of buildings. In 2007, the Board reversed the Law Judge, determined that claimant was employed by Younger, established the claim and restored the case to the calendar. Younger and others sought and was denied review of the argument that claimant was either an independent contractor or in the employ of the owner of the building where he was injured. The Appellate Court listed in its decision some of the evidence with which it supported the Board’s determination that an employer employee relationship existed, notwithstanding evidence that could permit a different result. Prevailing argument presented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, New York City for the Workers’ Compensation Board, respondent. Click here to read the full decision of the Court….

DiLascio v Tilden Glen Head
January 21, 2010 Appellate Division, Third Department
Coverage: sole executive exclusion

AFFIRMED the Board which ruled that the State Insurance Fund is not liable for the payment of workers’ compensation benefits to claimant. Claimant was the sole executive officer of an automobile repair business that maintained workers’ compensation insurance through the State Insurance Fund (hereinafter SIF). But in 1994 to 2001 elected to exclude himself from such coverage at which time without expressly notifying SIF that he intended to now be covered by the insurance policy, began including his salary in the chargeable payroll statements he submitted to SIF used to calculate premiums. A renewal policy covering the period from October 2005 to October 2006, however, was provided to the employer, which explicitly stated that claimant was not covered by the policy due to the election to have him excluded. In May 2006, during the time that this policy was active, claimant was injured while at work and he applied for workers’ compensation benefits. [SIF thereafter credited the employer’s account for the portion of the premiums applicable to the inclusion of claimant’s salary in the chargeable payroll paid from 2004 to 2006.] A Law Judge ruled that claimant, by paying the higher premiums based upon the inclusion of his salary in the chargeable payroll, believed that he was covered and SIF was estopped from denying coverage.The Court agreed with the Board’s decision to reverse agreeing that there was sufficient evidence that estoppel did not apply. Most importantly, the record reveals that the policy, in the year, expressly excluded the claimant from coverage, that he had actual knowledge that he was not covered by the policy and, therefore, could not have reasonably relied on SIF’s acceptance of higher premiums in believing that he was covered. Prevailing party represented by: Janis M. Riekstins of counsel to Gregory J. Allen, State Insurance for Tilden Glen Head, Inc. and another, respondents. Click here to read the full decision of the Court….

Li v Southern Garden
January 21, 2010 Appellate Division, Third Department
§ 15(8)Reimbursement Special Fund

AFFIRMED the Board which discharged the Special Disability Fund from liability under WCL §15(8) (d). After the injured worker claim was established for injuries sustained in a January 2000 accidents, the carrier filed a notice for reimbursement from the Fund based on a previous injury sustained by claimant.

In April 2005, the Board approved a settlement agreement between claimant and the carrier pursuant to WCL §32. In light of the carrier’s reimbursement claim, the Fund was also a party to the agreement. The agreement noted that the issue of permanency was outstanding and that the parties had decided to settle the claim rather than litigate the issue. The Committee gave provisional consent to the settlement, “subject to the carrier’s successful claim under [Workers’ Compensation Law § ] 15 (8) (d), less any statutory retention period remaining at the time of the approval of this agreement.” The agreement expressly provided that the Committee’s consent “is not to be construed as a concession of liability under . . . [s]ection 15 (8) (d).” Thereafter, the Law Judge granted the carrier’s reimbursement claim but was then reversed after a Board’s review. First the court accepted the board’s discretion to accept the Funds appeal which is one day late but not the carriers which was two months late. Court agreed Board’s reasoning denying reimbursement because the work-related injury did not result in a permanent disability, even though evidence in the record might support a contrary result. Prevailing party represented by: Jill Singer of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full decision of the Court….

Davis v Ready Labor
January 21, 2010 Appellate Division, Third Department
Course of Employment: driving to work

AFFIRMED the Board which ruled that the death of claimant’s decedent did not arise out of and in the course of her employment. Decedent was employed by Labor Ready, an employment agency that provides temporary employees to its clients. On March 16, 2004, decedent was driven, along with two other employees, to a work assignment at Dunkirk Ice Cream by McKinley Barnes, a Labor Ready employee who was not working that day but had agreed to drive decedent and the two other employees to the work site. Barnes returned to Dunkirk when decedent and the other Labor Ready employees had finished their eight-hour shifts and, during the 26-mile return trip, an automobile accident occurred that resulted in decedent’s death. Claimant’s application for his comp death benefits was granted by a law judge but the Board reversed and disallowed the claim.

laimant argued that because Labor Ready assumed the responsibility for transporting its employees to and from their temporary job assignments, this accident should have been deemed to have occurred within the scope of decedent’s employment per WCL §10 [1]). Although there are exceptions to the general rule that travel to and from a work site is not considered to be within the scope of employment and injuries occurring during that period, the Court agreed with the Board that this case was not such an exception. It was noted that the employer did encourage car pooling with employees were assigned to the same job location but the vehicles used for transport were not owned by Labor Ready and it had no contract nor did it pay any driver to transport its employees to the work site. In addition the driver of the car was not working for the employer that day was not pay for the service by the employer but by the individual employees who did not get paid for travel time. The Court agreed with the Board that Labor Ready did not have exclusive control of the conveyance, which combined with the Board’s review of other evidence, supported its decision to disallow the claim. Finally the court stated that the Board did not abuse its discretion by refusing to consider her rebuttal because she failed to include the required cover sheet and affidavit of interested parties. Prevailing party represented by: Karen Darling of counsel to Hamberger & Weiss (Buffalo) for Labor Ready and another, respondents. Click here to read the full decision of the Court….

PENDING CASES
January 14, 2010: The following list represents 12 cases, with their hearing dates but for which no decision has yet been issued. The Court has not yet scheduled any cases to be heard in the month of February.

Jan 12, 2010 Altobelli v Allinger Temporary
Jan 14, 2010 Cassata v GM Powertrain
Jan 15, 2010 Garifo v Pathmark Stores,
Jan 12, 2010 Guz v Jewelers Machinist Inc.
Jan 14, 2010 Howard v Stature Electric
Jan 15, 2010 Kot v Continental Ins
Jan 13, 2010 Laezzo v NYS Thruway Authority
Jan 07, 2010 Magidson v Strategic Telemkt
Jan 14, 2010 Sacco v Mast Advertising
Nov 17, 2009 Sheeley v Sheeley Septic Svc
Dec 16, 2009 Wilcox v Niagara Mohawk Power
Dec 16, 2009 Wilson v General Mills

▼ Posted January 14, 2010 ▼

Domenico v United Way
January 14, 2010 Appellate Division, Third Department
Venue issues: Switch Law Judges

AFFIRMED the Board’s ruling which denied the pro se claimant’s request to move the case to a different venue. Claimant, after injuring her hand and wrist, was found to have a compensable partial disability but, when issues subsequently arose regarding permanency and the degree of her disability, the employer and claimant were directed to produce medical evidence relating to permanency and loss of use. The employer thereafter submitted an independent medical examination, but claimant did not. At a July 2008 hearing, a Law Judge again directed claimant to provide medical evidence, on or before October 14, 2008, if she wished to controvert that provided by the employer. The Law Judge noted as much in the resulting decision and continued the case. Claimant appealed that continuance to the Workers’ Compensation Board, requesting that her case be assigned to a different Law Judge and/or transferred to a different district, and arguing that the Law Judge improperly continued her case. The Board rejected claimant’s arguments and affirmed the Law Judge’s decision. Prevailing party represented by: David A D’Agostino of counsel to Smith, Sovik, Kendrick & Sugnet (Syracuse) for United Way and another, respondents. Click here to read the full decision of the Court….

Begor v Holmes
January 14, 2010 Appellate Division, Third Department
Coverage: Which carrier

AFFIRMED the Board’s decision which ruled that American Zurich Insurance Company is the liable workers’ compensation carrier. In this case, the injured worker was employed by Four Seasons who had no workers comp insurance. Four Seasons was hired by Mid Hudson who used a professional employer organization (PEO) to handle all its human resources functions, including payroll, employee benefits, and workers’ compensation benefits. Mid Hudson’s leased employees were covered by a workers’ compensation and employers’ liability insurance policy obtained by the PEO and issued by American Zurich Insurance Company (hereinafter Zurich), on which the named insured was the PEO as labor contractor for Mid Hudson. Mid Hudson in turn was hired by Brenner & McHugh, Inc., the general contractor on the projectwho was insured by NYSIF.

The Zurich policy provided, in pertinent part: “This policy provides coverage for the workers leased to the client [Mid Hudson] . . . This policy does not satisfy the client’s duty for the complete payment of any obligations it may have under the Workers’ Compensation Law for non-leased employees . . .” The certificate of liability insurance for the policy similarly provided that “[c]overage is provided for only those employees leased to but not subcontractors of Mid Hudson.“

After an initial hearing on claimant’s application for workers’ compensation benefits, a Law Judge issued a decision that found that Mid Hudson did not have coverage on the date of the accident extending to its subcontractor and that, since they both had failed to provide coverage for claimant, SIF was obligated under WCL §56, as Brenner’s carrier, to pay any outstanding awards and causally related medical bills. The Board in reviewing SIF’s appeal, concurred with the Law Judge’s determination that the claim was SIF’s liability, finding that Mid Hudson was an uninsured subcontractor because, although it had coverage for its leased employees, it had exposed itself to workers’ compensation liability for which it had no coverage by subcontracting work to Four Seasons. The full Board accepted review, rescinded the Board panel’s decision, and returned the matter for further consideration. The Board panel then issued a decision finding that the limitation of coverage in the Zurich policy to leased workers was ineffective to exempt claimant from coverage because, under WCL §54(4), the policy was deemed to include the statutory coverage provided under WCL §56 to employees of uninsured subcontractors such as claimant. The Board panel therefore found that Zurich, as Mid Hudson’s carrier, was liable for the claim.

Because the resolution of this matter depends on pure statutory construction, the Appellate Court recorded no deference to the Board’s determination but agreed with the Board’s statutory analysis, the specifics of which can be found in the Court’s decision. Prevailing party represented by:Kelly A. O’Neill of counsel to Gregory J. Allen, State Insurance Fund (White Plains) for Brenner & McHugh, Inc., and another, respondents. Click here to read the full decision of the Court….

Brook v Overseas Media
January 12, 2010 Appellate Division, First Department
§120: Discrimination: a workers’ comp issue, not Civil Court

DISMISSED a Supreme Court motion to proceed under which the plaintiff sought a finding of retaliatory discharge under the New York City Human Rights Law. The Appellate Court found that the allegation does not state a cause of action for retaliatory discharge under the NYC Human Rights Law. The Court explained that “[t]he mere filing of a claim for workers’ compensation is not a ‘protected activity’ within the meaning of that provision, because it does not constitute ‘opposing or complaining about unlawful discrimination’ [filing of a workers’ compensation claim not a protected activity under Title VII, 42 USC § 2000e-3(a)]). Plaintiff’s sole remedy for retaliatory discharge in violation of WCL §120 is to file a complaint with the Workers’ Compensation Board. Even when the complaint is liberally construed to allege that plaintiff’s employment was terminated in retaliation for requesting an accommodation for her disability, it does not state a cause of action because it fails to allege that she opposed her employer’s discriminatory failure to make reasonable accommodation.” Prevailing party represented by: Jason M. Zoladz of counsel for appellant. Covington & Burling (New York) for appellant. Click here to read the full decision of the Court….

▼ Posted January 7, 2010 ▼

Church v Arrow Elec
January 7, 2010 Appellate Division, Third Department
§114-a: Fraud
7050 Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings (1) that the claimant violated Workers’ Compensation Law § 114-a and disqualified him from receiving future wage replacement benefits and (2) which denied claimant’s request for full Board review but RESCINDED part of the mandatory penalty due to the Boards “undescernable” logic.

Claimant, injured in April 2003, was awarded benefits in December 2003. The carrier applied for review by a Board Panel which determined that claimant “knowingly made false statements and representations as to a material fact for the purpose of influencing the determination of workers’ compensation benefits in violation of [Workers’ Compensation Law] § 114-a,” as a result the Board rescinded prior benefits and disqualified him from future receipt of wage replacement. Claimant’s subsequent application for review by the full Board was denied. Claimant now appeals both from the Board’s decision reversing the WCLJ and from the denial of his application for full Board review.

The Court found find that the Board’s finding of §114-a fraud was supported by substantial evidence, i.e. “Claimant’s attempts to explain the discrepancies between his representations and the observations of the physician conducting the independent medical examination and the surveillance video presented issues of credibility that the Board was entitled to resolve.” But the Court then wrote, “turning to the propriety of the sanctions imposed, while it is clear that the Board assessed a mandatory penalty, we are unable to discern from the Board’s decision ‘a link between the false statement or representation and the forfeited compensation to show that the compensation was directly attributable to the false statement or representation’. Thus, we must remit to the Board to further develop the underlying decision in this regard. However, we are unpersuaded by claimant’s contention that the disqualification from receiving future benefits was disproportionate to his conduct, given the thorough explanation set forth by the Board in its assessment of this discretionary penalty.”

They added, “Claimant’s appeal from the denial of his application for full Board review is deemed abandoned due to his failure to raise any issues with respect thereto in his brief on appeal.” Prevailing party represented by: Matt Worth of counsel to Weiss, Wexler & Wornow (NYC) for Arrow Electronic, Inc. and another, respondents. Click here to read the full decision of the Court….

Epp v Cortland City DPW
January 7, 2010 Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review

AFFIRMED the Board’s rulings (1) that claimant sustained a causally related injury to his right knee, and (2) which denied the self-insured employer’s request for reconsideration or full Board review. Claimant, after allegedly ensuring his right knee on July 31, 2006, filed a claim for workers’ compensation. A Law Judge continued the case pending the deposition of claimant’s treating physician which the parties were directed to complete and submit by May 18, 2007. The employer encountered difficulties in procuring claimant’s physician’s testimony, prompting it to request an extension of time. The WCLJ indicated that the request would be held in abeyance pending receipt of an affirmation detailing, among other things, the employer’s efforts to schedule the deposition. When no responding affirmation was tendered, the Law Judge issued a reserved decision establishing the claim, which was affirmed by the Board which subsequently denied the employer’s request for full Board review.

It is well settled that the assessment of witness credibility and the resolution of conflicting testimony lie within the exclusive province of the Board, with the Board in this case siding with the claimant and his witnesses rather than those of the employer’s witnesses. As to deposing the physician or striking her reports from the record, the Court agreed with the Board that the employer failed to comply with the procedures outlined by the Law Judge. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Estelle Kraushar of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….

Flores v Newstar Apparel
January 7, 2010 Appellate Division, Third Department
Causal Relationship: PFME, et al
Procedure: Denial Full Board Review

AFFIRMED the Board’s that (1) claimant sustained a compensable injury, and (2) denied the carrier’s request for full Board review. Claimant, injured in a fall that occurred at the start of her workday when she slipped on ice in the entryway of the building where her employer was a tenant, had her application for benefits denied by a Law Judge who determined that the accident did not occur within the precincts of her employment. The Board reversed and subsequently denied the carrier application for full Board.

“Although injuries that occur while an employee is traveling to and from work are not generally compensable, an exception may lie in the ‘gray area’ . . . courts must additionally consider whether (1) there was a special hazard present, and (2) if the route taken by claimant had a close association with the premises of [the] employer.” In this case the claimant’s testimony, including very specific facts regarding the location of injury, was substantially uncontroverted. “Finally, inasmuch as the employer failed to brief the denial of its application for reconsideration or full Board review, we deem that portion of the employer’s appeal to be abandoned.” Prevailing party represented by: Steven Segall of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….

Friedman v NYC DOT
January 7, 2010 Appellate Division, Third Department
Income from self-employment

AFFIRMED the Board’s ruling that claimant was not entitled to an award of reduced earnings subsequent to November 22, 1987 as his business income was salary and not profits.

Claimant, having sustained work-related back injuries in 1979 and 1983, was classified as permanently partially disabled and was awarded reduced earning benefits beginning in 1985, when he stopped working for the employer. The benefits were suspended in November 1987, when the employer’s investigation revealed that claimant owned his own business and was also serving as a corporate officer for at least one other business. The case was closed in 1989 after he failed to comply with the Board’s direction to produce personal and corporate tax returns. In 2003 after 14 years of his failing to follow Board directions and subpoenas, the Board ultimately found that claimant had failed to provide sufficient evidence entitling him to reduced earnings, and closed the case pending his production of such evidence. In 2007 after testimony from the original employer’s accountant indicating the returns that were available were incomplete as well as testimony from the claimant, the Law Judge determined that claimant was actively engaged in gainful activity and had not demonstrated a diminution of earning capacity.

The claimant argue his income constituted profits rather than earnings and that “a self-employed claimant’s work primarily in a supervisory capacity has been found to be profits from an investment”. Unlike a business owner who passively supervises employees who carry out the actual work of the business, claimant’s testimony reveals that the inspection and review services that he performed constituted is company’s actual work.”[W]hether an individual’s income is based on profits or a salary for services performed is a factual determination for the Board” and, in this case, the Court agreed with the Board’s determination that “claimant’s income from LAF was actively earned from his labor and constituted actual earnings rather than a passive return on investment.” Prevailing party represented by: Ronald E. Sternberg of the Office of Corporation Counsel for the New York City Department of Transportation and another, respondents. Click here to read the full decision of the Court…

Hassan V Ford Motor
January 7, 2010 Appellate Division, Third Department
Hearing Loss

AFFIRMED the Board’s ruling that claimant had a 0.625% schedule loss of use for binaural loss of hearing despite claimant’s contention that the carrier’s medical witness was not qualified. In his appeal, the claimant contends that because the employer’s registered nurses who performed audiometric examinations on him are not “qualified professionals” pursuant to 12 NYCRR 351.7, the examination results should not have been admitted into evidence, for which reason, the opinion of the otolaryngologist who served as the employer’s independent medical examiner, lacks credibility and should have been rejected due to his partial reliance on those examination results.

The Court agreed with the Board’s findings that “the special certification and training received by the employer’s nurses in performing audiograms” as evidenced by the nurses’ uncontradicted testimony is sufficient to render them “qualified professionals” under 12 NYCRR 351.7. Also it was noted that the otolaryngologist’s conclusion was also based on tests he himself performed. The court noted that when there was conflicting but were relatively equal medical evidence, the “Board is vested with broad authority to evaluate the credibility of witnesses, weigh conflicting evidence and draw any reasonable inference from the proof .” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for Ford Motor Company, respondent. Click here to read the full decision of the Court….

Hurlburt v Cortland County
January 7, 2010 Appellate Division, Third Department
§ 29: MVA liens, malpractice
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling that (1) the employer was responsible for the payment of certain of claimant’s medical bills, and (2) denied the employer’s request for full Board review. Claimant, a former Cortland County Sheriff’s Deputy, sustained serious injuries at the Cortland County Jail in September 1981. Following a surgery to repair damage to his elbow, claimant developed a bacterial infection in his heart, causing him to suffer a heart attack and stroke, which eventually led to paralysis and aphasia. A Law Judge found claimant to be permanently physically disabled as a result of injuries sustained at work and awarded him benefits.

Between August 2005 and January 2006, claimant underwent emergency care for an infection of the area where a pacemaker had been installed at the time of his heart attack, resulting in substantial medical bills that the self-insured employer disputed. In a March 2006 hearing, the employer conceded that the disputed bills were causally related to a compensable injury, but indicated that it was investigating whether claimant had settled a third-party malpractice action related to his compensable injuries without the employer’s consent. After the employer stated that it had discovered no information other than that a lawsuit had been commenced, a Law Judge found for the medical providers with regard to the disputed bills.

The employer then applied for review by the Board, contending that it had evidence that claimant had settled or discontinued a third-party lawsuit without its consent, supplementing its application with a copy of a stipulation of discontinuance in a malpractice action. Nevertheless, the Board found that the WCLJ had “acted appropriately and within his discretion in denying the self-insured employer further opportunity to defend the claim” and commented that the employer did not file a copy of the stipulation of discontinuance with the Board in a timely manner and failed to explain why it could not have been produced at an earlier date. The employer now appeals from the Board’s decision and from the denial of its application for full Board review.

While the Court cited case law to the fact that “if a third-party action relating to an injury also subject to a workers’ compensation claim is settled without the consent of the employer/carrier or a compromise order, the claimant forfeits any further benefits for which a recovery might have been had in the third-party action (see WCL §29 [5] and the claimant bears the burden of establishing that the employer’s consent was obtained.” But in this case, among other reasons, the employer failed to present any evidence to the WCLJ that claimant had commenced a malpractice action, let alone settled or discontinued such action. Therefore, claimant’s duty “to demonstrate the employer’s consent never arose”. As to the denial of full Board review, the employer proffered no new evidence in support of its application. Prevailing party represented by: Phyllis I. Hulbert, Rotanda, Florida, as power of attorney for Mark Hulbert, respondent and Iris Steel of the Office of Andrew Cuomo, Attorney General of the State of New York, for the WCB, respondent. Click here to read the full decision of the Court….

Jaquin v Community Covenant
January 7, 2010 Appellate Division, Third Department
Causal Relationship: Was there?

AFFIRMED the Board’s ruling that the pro se claimant did not sustain a causally related injury, denying her claim for benefits.

Claimant alleges that she suffered a work-related injury when she lifted a heavy child out of a carriage during the course of her employment at a day-care center in February 2004 and filed the claim in March 2004. The Board affirmed the June 2004 closing of her claim for lack of prima facie medical evidence but reopened the case for submission of additional medical evidence. In January 2005, claimant submitted a second C-3 form that provided somewhat different statements of the date, nature, and circumstances of the injury and of the timing and nature of the notice allegedly given to the employer but she did not supply prima facie evidence until May 2007 at which time she and an employer witness testified. The Law Judge then disallowed the claim determining that claimant had failed to show a causal relationship between the injury and her employment by competent medical evidence, and that the opinion of claimant’s doctor as to a causal relationship, given two years after the accident, lacked foundation in the record.

The burden is upon claimant to produce competent medical evidence establishing that her injuries or limitations were causally related to her employment but her records show she had a prior history of chronic problems with the site’s allegedly injured at work, her medical reports did not substantiate her claims, and there were discrepancies in claimant’s own accounts of the event and its consequences. In supporting the Board’s decision, the Court stated, “Though the Board may not fashion its own expert medical opinions, it may reject medical evidence as incredible or insufficient even where, as here, no opposing medical proof is presented . . . Claimant’s proof failed to definitively link her injuries to the February 2004 event rather than to the 2003 accident or to her preexisting conditions.” Prevailing party represented by: Robert E. Geyer Jr. of counsel to Wolff, Goodrich & Goldman (Syracuse) for Community Covenant Church and another, respondents.Click here to read the full decision of the Court….