insideworkerscompny.com

NEWSWIRE

May 28, 2010: 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: injured workers, carriers and employers, their attorneys, Board staff, and third party vendors. This page also posts ‘insider’ information about proposed changes in practice and procedures at the NYS Workers Compensation Board, information not available anywhere else. 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.

COURT DECISIONS

►4 Affirmances This week, WCB wins!

►Another 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

►Vote in our new Poll:Questions on the Board’s Medical Procedures

ON OUR OTHER PAGES

►Commissioner Bios September updates

►A reader’s opinion of Appellate Court decisions

►Legal Fees on Medical Bill??

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

THIS WEEK’S NEWSWIRE

►Two new Commissioners nominated

►the Webinar

PRIOR WEEKS’ NEWSWIRE

►Majestic/CRM considers options

►Appellate Judges Reveal Pet Peeves, Winning Strategies

►NYSIF Elects Chair and Vice Chair

►Where are the FBR’s

►Senate Bill Adds COLA to WCB Awards

►Emergency Adoption of New Medical Fee Schedule

►What’s up, Doc? A 2nd WCB Doctor

►New Max. Weekly Benefit Rate Effective July 1, 2010

►Close Bars to Save on WC claims?!?

►Board has Educational Webinar

►The names of theTwo New Commissioners

►New Impairment /Wage Loss Guidelines Delayed

►WCB Buffalo Office Lease Political Controversy

►Friend or Foe? Pay or No!

►Two New Commissioners on the Way

►New Impairment/Wage Loss Guidelines Almost Done

►NY Woman Gets Fed’s ‘Goat’ for WC Fraud

►NY Woman Gets Fed’s ‘Goat’ for WC Fraud
NYSIF Discusses WC Insurance Rates

►NY’s Workers Comp System among the Nation’s Worst

►CRM Lays Off 15% of Staff

►Colorado’s Sale of its WC Insurance Fund is Cancelled

►Ohio Proposes: No WC benefits for Illegal Aliens

►WC Attorney Defeats Negligence Claim

►A Vaccine for Malignant Mesothelioma?

►Medical Guidelines Pilot

►The Board’s Regulatory Wish List

►Spine stimulation may not help after failed surgery

►Triangle Shirtwaist Group Names Award Recipients for 2010

►WCB’s Appearance Before Senate Finance Committee

►About Time: Legal Training for Commissioners

►Project 2015 Still Lives

►WAMO and the Dept. of Insurance

►Shortage of Doctors Upstate for Injured Workers

►Best Attorneys in 2009

►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

State Bar Association Announces Opposition to “Managed Adjudication Path” Program

May 20, 2010: The New York State Bar Association announced its opposition to the Managed Adjudication Path (MAP) program currently being proposed by the New York State Workers’ Compensation Board, arguing that the initiative would severely limit due process rights traditionally afforded to workers, employers and insurance companies in workers’ compensation claims.

The issue of settling disputes outside the Law Judge Hearing Process has been closely monitored by the Workers’ Compensation Law Division of the State Bar’s Torts, Insurance and Compensation Law Section, chaired by Christopher Lemire, Esq. (Lemire Johnson LLC of Malta). Members of the section division expressed their concerns and opposition to representatives of the Workers’ Compensation Board at a recent section division meeting in Albany. A webinar describing the Managed Adjudication Path program hosted earlier this month by the Board erroneously suggested the division and the State Bar were in favor of the MAP program.

The implementation of the MAP program will divert an undetermined number of cases with disputed issues away from Law Judge Hearings to an informal process that allows decisions to be issued without notice to or appearance by the involved parties, without the benefit of legal counsel, and without any development of the record.

“The MAP program represents a major departure from the Board’s longstanding practice of resolving disputed issues through adjudicatory hearings. Simply put, it would erode the due process rights of injured workers and employers,” said State Bar Association President Michael E. Getnick (Getnick Livingston Atkinson & Priore, LLP of Utica and of counsel to Getnick & Getnick of New York City). “The rights of both injured workers and employers will be protected, and the timely resolution of disputed issues accomplished, only by affording both parties a prompt hearing before a Law Judge. The State Bar Association continues to urge the Board to remove this proposal and work toward what should be the common goal of achieving efficiency with justice.”

Various States Eye Surplus Work Comp Insurance Funds

May 15, 2010: Sean P. Carr writing in ambest.com reports that state-backed workers’ compensation insurers share the same challenges as their private-carrier counterparts: rising ratios, falling premiums, higher medical costs. Like some insurers, state funds also have an uneasy, and sometimes hostile, business relationship with a partner — in their case, state government itself.

The approximately 20 state funds operating in the United States take many forms. Generally, they are the insurer of “last resort,” the guaranteed issuer, and often compete in the private market as well. In a few states, they are monopoly writers. Some funds consider themselves fully independent, others are hanging on to tax breaks and other considerations and still others have moved toward going fully private.

The relative health of state funds makes their reserves “very tempting” for cash-strapped state governments, said Laurence Hubbard, president and CEO of the Montana State Fund. “As long as there’s a political affiliation, they could become a target,” said Hubbard, also the new president of the American Association of State Compensation Insurance Funds.

Carr then lists several states which have failed in their attempt to access these funds.

He also quotes Bruce Wood, associate general counsel and director of workers’ compensation for the American Insurance Association, who stated “Lawmakers can also be liberators of state funds”. In addition to “an interest in grabbing money from anywhere,” states are showing an interest in privatizing their way out of the insurance business.

For the complete text of this very illuminating article, click here.

Finally, Two New Workers Comp Commissioners

May 13, 2010: Senator George Onorato, Chairman of The New York State Senate Standing Committee on Labor, announced that at next Monday’s May 17, 2010 Committee meeting, they will be considering the nominations of Loren D. Lobban and Samuel G. Williams as Commissioners/Members of the Workers’ Compensation Board

As reported here on April 16, 2010::

Samuel G. Williams who is the director of the United Auto Workers CAP and is also Co-Chairman of the Western New York Chapter of the Working Family Party. As a very active leader in the labor movement, Williams was also co-chairman of the Western New York Area Labor Federation and has been a frequent contributor to the opinion pages of various Buffalo newspapers on labor related issues.
Loren D. Lobban has been a member of the NY Bar since 1976, practicing insurance and criminal law. He graduated from Northern Michigan University with a BA and got his JD at Suny Buffalo. Like Williams, Lobban is involved in Democratic/WPF politic as an active contributor to Democratic candidates for nationa and statewide offices. As a matter of interest, Lobban has contributed to Brian Higgins for Congress ($5000 in 2006), the brother of current Commissioner Mark Higgins, but with enough left over for State Senate President Malcom Smith, among other state democratic office holders.

As often as not, if these two nominees are approve by the Labor Committee, the nominations will move either that day or the next day to the Finance Committee after whose approval then move to the Senate floor for a vote. Therefore, it is possible that Williams and Lobban will be confirmed by the end of the next week, assuming budget negotiations or some Senator getting their ‘nose out of joint’.

The Webinar

May 13, 2010: The Workers’ Compensation Board hosted an informational program on Wednesday, April 21, 2010 to discuss issues related to inpatient rate reform which went into effect on December 1, 2009.

The new system is based on All Patient Refined Diagnostic Related Groups (APR-DRG) and incorporates a new rate methodology for inpatient hospital care for patients covered by workers’ compensation and no-fault auto insurance beginning December 1, 2009.

In response to questions rasied by hospitals and carriers, the program provides a basic introduction to the new system. Representatives from the Department of Health (which prepares the rate schedule), 3M Health Information Systems (the Department of Health’s contractor on APR-DRG), and the Hospital Association of New York State answered from the audience. The webinar also covered issues related to reconciling previously paid bills from January to November 2009 when the DOH releases January 2009 rates.

Majestic/CRM considers options

May 6, 2010: Roberto Ceniceros reports in in the website Business insurance that CRM Holdings Ltd. is exploring “strategic alternatives” that could include a sale, merger or shedding operations, the troubled workers compensation management firm said Thursday.

“There can be no assurance that the exploration of strategic alternatives will result in any transaction, or that, if completed, any transaction will be on attractive terms,” the company said in announcing its first-quarter results. It stock traded at 36 cents share Thursday morning, down from 48 cents at the close Wednesday. Among other reasons, CRM said the decline in revenue occurred because its Majestic Insurance Co. unit could not retain or compete for certain rating-sensitive business because A.M. Best Co. Inc. downgraded its financial strength rating from A- to B++ last year.

Appellate Judges Reveal Pet Peeves, Winning Strategies

April22, 2010: Shannon Henson, in LAW360, lists the many do’s and don’ts discussed by a panel of Judges at the annual conference of the American Bar Association’s litigation section when arguing before an appellate court the most important of wihch is just common sense: “Don’t interrupt.”

“I’m allowed to interrupt you. You aren’t allowed to interrupt me,” said Judge Robert Smith of the New York Court of Appeals one subject of which was how attorneys can make a judge’s job easier, the importance of a well-crafted brief and their pet peeves. The judges agreed that attorneys should take pains to answer their questions during oral arguments, even hypothetical situations.

Judge Raggi said lawyers should welcome hypothetical situations because the process of talking through the various implications of a ruling is part of the court’s work. “We are inviting you to play a role in that process,” she said.

Judge Greenaway said an attorney should never pass up an opportunity to offer a last thought if a judge allows it at the end of the lawyer’s allocated time. “Be prepared to take advantage of that entreaty by a judge,” said Judge Greenway. He also said attorneys would be smart to answer the question a judge asked and not the question the lawyer thinks the judge should have asked.

Smith and the other judges stressed the importance of preparation, saying it is imperative for an attorney to know the facts of the case. “The worst thing to think is that the panel knows the case better than you,” Judge Raggi said. That said, attorneys would be wise to give the court an accurate and responsible reading of the underlying case law as well as the background of the case at hand.

Lawyers are not expected to give a neutral perspective of the case or the issues, Judge Smith said, but attorneys also should not misjudge how one-sided they should be. “Part of your job is to be partisan, but not too partisan,” he said.

NYSIF Elects Chair and Vice Chairs

May 5, 2010: The New York State Insurance Fund announced that during its January 20, 2010 monthly meeting, its Board of Commissioners reelected Robert H. Hurlbut as chairman of the Board and the elected H.Sidney Holmes, III as Vice Chairman.

Chairman Hurlbut received his initial appointment to the Board in 1989 by then Governor Mario Cuomo. He became vice-chairman in 1995 and was unanimously elected to succeed the late-NYSIF Chairman Terrnce Morris on May 17, 2006. Governor Paterson recognized chairman Hurlbut last December for 20 years of exemplary service to the Board with the proclamation setting is “dedicated leadership and compassion.”

Vice Chairman Holmes received his initial appointment to the board in June 2008 by Governor Paterson. A corporate partner of Winston and Strong LLP, he has served as a bond counselor, underwriters’ counsel and bank counsel in virtually every type of municipal bond financing throughout the United States and its territories. He also serves as a Commissioner of the Port Authority of NY & NJ, and a board member of the NYS urban league. the Greater Jamaica Development Corporation and the Brooklyn Navy Yard Development Corporation.

Where are the FBR’s

April 30, 2010: A few months ago, the Workers Compensation Board proudly announced that it would be publishing on its website selected Full Board Reviews and some regular Board Panel memorandum of decisions.

However, it did so only once.

So I would like to offer my services:

If the board would send me, even on paper, a variety of FBR’s, I will print whatever they send me.

Or is it possible that the two services (Lexis-Nexis and Westlaw) objected to the Board giving away for free what these two companies can charge for?

Senate Bill Adds COLA to WCB Awards

April 29, 2010: the New York State Labor Committee is expected to approve some time next month Senate Bill S1970B which provides for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits. Whether or not it gets approved on the floor is uncertain. The official summary of the bill reads:

An act to amend the workers’ compensation law, in relation to providing for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits AN ACT to amend the workers’ compensation law, in relation to providing for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits.

To read the specific details of this bill, go to http://open.nysenate.gov/legislation/bill/S1970.

Emergency Adoption of New Medical Fee Schedule

April 29, 2010: Although no formal announcement has been issued by the New York State Workers Compensation Board, There was a March 22, 2010 Notice of Emergency Adoption and accompanying documents relating to a new set Subchapter M. consisting of Parts 440 and 442 entitled “Pharmacy and Durable Medical Goods Fee Schedules and Appendices” will be published in the April 7, 2010, edition of the State Register.

What’s up, Doc? A 2nd WCB Doctor

April 26, 2010: The Board will welcome in the near term, Elain Sobol Berger, MD JD, as its new full-time Associate Medical Director. She will serve under Dr. Levin, the Board’s Interim Medical Director, who serves in a part-time capacity. Dr. Berger has been an integral part of the 2007 Reform Task Force, and her hands-on knowledge of that work will hopefully provide for continuity at the Board as that the recommendations get translated into guidelines and regulations. Dr Berger was a member of the task force which helped develop the medical treatment guidelines.

New Maximum Weekly Benefit Rate Effective July 1, 2010

April 19, 2010: On July 1, 2009, the statutory maximum benefit was raised to $600 per week, which resulted in a maximum payroll limitation of $900.

On July 1, 2010, and annually thereafter, the maximum workers compensation weekly benefit will increase to two-thirds of the statewide average weekly wage, as determined by the New York Department of Labor, in accordance with the provisions of the 2007 Workers Compensation Reform Act. This change in the maximum weekly benefit will result in a corresponding increase in the payroll limitation amount, which will now, in effect, be the average weekly wage as calculated by the Department of Labor.

Consequently, please be advised that, for policies with effective dates on and after July 1, 2010, the payroll limitation cap will be $1,109.75 per week. This information is also available from Subject No. 046-416 issued by the Workers Compensation Board on April 22.

Close Bars to Save on WC claims?!?

April 20, 2010: As reported by cbs6albany, the Saratoga City Council is considering a proposal to require that all bars close at 2AM rather than the 4AM allowed under New York State Law, in order to cut down on workers compensation claims.

According to John Franck who serves as the accounts commissioner for the city, between 2007 - 2009 Saratoga dealt with 80 workers comp claims in which 18 of those came between the hours of 2 a.m. - 4 a.m. He tells CBS 6 that the city will save on overtime and insurance premiums by just closing the bars two hours earlier.

However, there is nothing which explains what the City will save on workers comp claims since one has to assume that the employees of the bars work for private companies and any injured patrons would not be covered by workers compensation. The only explanation is that local law enforcement officers are being injured as a result of the bars staying open these extra two hours.

What does not make sense is that the Council plans that the new rule should not be in effect during the busy summer months (Memorial Day to Labor Day) so I guess that an injured city worker is less valuable during the summer than the winter.

Board has Educational Webinar

April 17, 2010: As an expression of the Board’s concern over the importance of its new programs, the Board on April 16 gave five days notice to members of the workers compensation community that the Board would be hosting an informational program to discuss issues related to inpatient rate reform which went into effect on December 1, 2009. The new system is based on All Patient Refined Diagnostic Related Groups (APR-DRG) and incorporates a new rate methodology for inpatient hospital care for patients covered by workers’ compensation and no-fault auto insurance beginning December 1, 2009.

In view of the fact that representatives from the Department of Health (which prepares the rate schedule), 3M Health Information Systems (the Department of Health’s contractor on APR-DRG), and the Hospital Association of New York State were to be participants in this program, it is surprising (or is it) that the Board did not give earlier notice to the community.

I would be interested in receiving any comments from those who participated which could be sent to my attention at TheInsider@InsideWorkersCompNY.com.

Judge bans WCB raids to pay unfunded injury claims

April 16, 2010: As reported by James Odata of the Albany/Times Union, Acting State Supreme Court Justice Kimberly A. O’Connor ruled Wednesday the NYS Workers Compensation Board can no longer raise its assessments on self-insurance groups to make up for the unfunded liabilities of a series of defaulted self-insurance trusts.

The Judge ruled that the Board has been unconstitutionally taxing healthy self-insurance groups, leaving the state’s workplace insurance system stuck with a nearly half-billion-dollar bill for unfunded injury claims.

As soon as I can access the actual decision, I will make it available.

Another Supreme Court decision, this time from NY County, also involving underfunded liabilities, was issued by Justice Carol R. Edmead with the two parties in this case being RBG Management and CRM regarding “a certain Indemnification Agreement, [under which] plaintiffs each agreed to be jointly and severally liable for expenses and obligations concerning workers’ compensation liability while they remained a ‘Participating Employer.’ ” To read this case, click here ….

New Commissioners (Corrected)

April 15, 2010: I now have the correct name of the second nominee for Commissioner on the New York State Workers Compensation Board.

I previously reported that the first nominee is Sam Williams who is the director of the United Auto Workers CAP and is also Co-Chairman of the Western New York Chapter of the Working Family Party. As a very active leader in the labor movement, Williams was also co-chairman of the Western New York Area Labor Federation and has been a frequent contributor to the opinion pages of various Buffalo newspapers on labor related issues.

The correct name of the second nominee is Loren Lobban, not Warren Logan. Loren D Lobban has been a member of the NY Bar since 1976, practicing insurance and criminal law. He graduated from Northern Michigan University with a BA and got his JD at SUNY Buffalo. Like Williams, Lobban is involved in Democratic/WPF politic as an active contributor to Democratic candidates fr for national and statewide offices. As a matter of interest, Lobban has contributed to Brian Higgins for Congress ($5000 in 2006), the brother of current Commissioner Mark Higgins, but with enough left over for State Senate President Malcom Smith, among other state democratic office holders. His partner, H. Todd Bullard, served as a Monroe County legislator.

It is expected that these names will be sent to the New York State Labor Committee and then the Finance Committee for the next few weeks.

These two individuals will fill two of three vacancies on the Board. It is expected that Robert Beloten will remain as chairman, certainly through the end of his friend, Governor Paterson’s, term of office and that Francis levels will remain as Vice Chairman as long as the governor’s office, be it Patterson or Cuomo, need the assistance of her husband, Republican State Senator Thomas Libous, to pass legislation.

Impairment/Wage Loss Task Force Delayed

April 15, 2010: It appears that the Impairment/Wage Loss Task Force is having some internal differences of opinion making it likely that the proposed guidelines to be used to determine lost wages will not be done by the end of April but delayed to some time in late May. There should be a lot of pressure placed on the parties in the Task Force as two upcoming events should be based on the new methods of calculating degree of functional disability in return to work.

First, the New York Compensation Insurance Rating Board will be publishing its rates shortly and the opportunity will be lost for lower premiums based on projected savings from the new functional disability schedules and return to work programs.

Second, the new average weekly wage for injuries occurring on or after July 1, 2010 will be $1,109.75 as calculated by the New York State Department of Labor’s Research and Statistics Division, pursuant to Workers’ Compensation Law § 2(16).

[ED. NOTE: I have not seen any the documents being used to produce the guidelines or any the guidelines themselves, I do have concerns as to their applicability in the real world known as the “hearing part” where the law judges and on occasion commissioners are required to make decisions regarding the degree of disability and the dollar amount of compensation. I also do not know who are the members of the Task Force. But I’m reminded of an incident which I regularly recount regarding the fact that too many of the policymakers have no experience working in the trenches of workers compensation, too “important” to even visit a hearing. When I invited one such person to attend the hearing I was conducting on §32 settlements, the response was, “I’m too busy writing the new regulations for conducting §32 hearings to attend them.”

Having been on the number of boards over the years as well as having been CEO of a number of private-sector companies, I am well aware of the dichotomies that exist between theory, policy, and practice. And while the Task Force is responsible for setting the policy, once the parties can agree on their philosophy, there must be somebody with hands-on experience to make sure that the policies can in fact be “practiced”.

I therefore make the following recommendations.

A law judge or commissioner, if not both, should be included in the discussions of the task force to make sure that the proposed guidelines have a practical application in the hearing parts. However, I’m aware of the fact that no sitting law judge would want to put up with the backroom pressures which they would be subjected, and I don’t think that those commissioners who would be competent enough to participate would want to put up with the potential political heat.

However, I can think of four individuals with real-world experience with these issues and would make excellent additions to Task Force for this purpose. Please note that the people being mentioned had not been given any forewarning of their inclusion in this recommendation. They are, in no particular order, Robert Snashall, former Board Chairman; Mark Solomon, former deputy general counsel and senior law judge and now a Social Security judge; Carol McManus, former Commissioner and still active as a consultant in workers compensation field; and, if I may be so bold, me.

I’m sure that the Task Force can think of others who have “on the ground experience” and have reputations for fairness and objectivity despite whatever philosophies they may have.

The functional equivalency guidelines and the return to work programs are far too important to be tied up in political or bureaucratic infighting. More importantly, these new Guidelines will put New York State in the national forefront of the treatment and rehabilitation of injured workers and prove that, despite the economic uncertainties faced by our state, New York can still lead the nation.

WCB Buffalo Office Lease Political Controversy

April 14, 2010: Nearly 9 months after signing a new lease to move the Workers Compensation Board’s Buffalo office to space owned by companies owned by Carl Paladino, the State of New York has suddenly discovered that the landlord, Paladino, has made what they consider to be politically incorrect statements. As reported in this website in July 2009 the Board’s former landlord was going into bankruptcy and the State selected the building owned by Paladino which coincidentally contains a number of other state agencies.

But no matter how objectionable the landlord’s statements may be, most people agree that the lease is a legally binding document and, unless there is a morality clause in the contract, it is hard to see how those leases can be broken.

The following was reported by Tom Precious in the Buffalo News but the main question which nobody seems to ask is why was this space rented for an agency which serves injured workers when the office is accessible only by a small elevator going to the fourth floor and the closest parking the building is far enough away that valet parking must be provided by the landlord. And despite finger-pointing at the Pataki administration, is important to note, as reported in the Buffalo News, that although the Pataki administration signed many of the leases, additional leases were signed by the subsequent administrations. And before the administration or the state legislature get too aggressive on seeking the automatic termination of otherwise legal contracts with landlords whose statements and or behavior is “inappropriate”, someone should remind them of the articles in the New York City press about some of the pork that was handed out in Queens, Brooklyn, and the Bronx.

On April 14, 2010, The Buffalo News reported “that Paladino has more than two dozen contracts — about $85 million in value — with various state agencies that lease space in buildings owned by him or partnerships in which he is a member. The current contracts, dating back to 1999,. . . . include the State University of New York; the departments of Education andMotor Vehicles; and the Office of Children and Family Services.

“The Paladino camp countered this morning, saying the Paterson administration for more than a year — long before Paladino became a gubernatorial candidate — has been trying to kill his contracts with the state. ‘They have been looking for any reason to pull the leases from landlords to give them to their political cronies,’ said Michael Caputo, Paladino’s campaign manager. ‘Carl has been in disagreement with the Paterson administration for quite some time. This is actually just the next step in the process,’ Caputo said of the administration’s move since the e-mails surfaced this week.”

Friend or Foe? Pay or No!

April 14, 2010: The New York State Workers Compensation Board today issued Subject Nbr 046–413 regarding billing procedures for unpaid penalties.

To quote Subject Nbr., “In 2009, as part of the development of an updated billing process for these penalties, all parties with unpaid procedural penalties received a bill for past-due penalties dating back to 2003. These bills contained an offer of settlement for those who did not wish to research and appeal each individual penalty because the Board recognized that a small number of invalid penalties might be included in those bills. This process of resolving old penalties is currently being concluded.”

Yet last summer, the Board boasted that it had sent bills to nearly 10,000 employers who failed to have had workers compensation insurance. It was widely reported in the press that many of those getting bills were employers who had been out of business for 10 or 15 years, churches and other nonprofits that had long since gone out of business, and a wide variety of entities who probably did not need to have insurance. Some of these claims went back well beyond the time frame for which most companies keep business records, thus making them unable to prove whether they had insurance or even if they had employees. Yet the Board boasted how tough they were going to be on all these small business owners.

Now the Board acknowledges that it is waiving substantial portions of penalties that could have been and should have been collected against carriers who are still doing business in the State of New York.

Perhaps the Board’s policy is a reflection of state bureaucracy in general: chase and beat up on the small employers and taxpayers but be very nice to your friends who are the big businesses because they can fight back and even make contributions to the political leadership.

Perhaps the Board would be so kind as to publish some statistics on the 10,000 firms it was chasing to let us know how many of these 10,000 firms even responded, how much money was due, and how much was collected. And when the New York State Worker’s Compensation Board puts in a request in their next budget for another $50 million for upgraded computer systems, perhaps they should be told that if they bothered using their current systems properly, that they probably have collected several million dollars for these past due penalties.

Two New Commissioners on the Way

April 8, 2010: It has been learned that negotiations between the Patterson administration and the leadership of the New York State Senate have resulted in an agreement on the next two nominees to the New York State Worker’s Compensation Board. The two anticipated nominees are from the Buffalo region, one of whom has been previously mentioned in this website although I do not currently have information as to which of the individuals it is. And, finally, one of the two is a practicing attorney.

It is expected that the names will be placed before the Senate Labor and Finance committees within the next six weeks, although with the current state of affairs in Albany one can never be certain of anything until the gavel comes down on the Speaker’s podium. This leaves one vacancy on the current board which can be filled by Governor Paterson with two terms, Mona Bargnesi (Buffalo) and Candace Finnegan (Peekskill), expiring December 31, 2010 which would then be filled by the next governor.

New Impairment/Wage Loss Guidelines Almost Done

April 8, 2010: Two years after it was first constituted during the Spitzer administration, the Impairment/Wage Loss Task Force will be submitting its guidelines to the New York State Workers Compensation Board on April 25, 2010.

The Board will then have the opportunity to review these guidelines and can either propose changes or recommend its adoptation by the Board.

These guidelines will dramatically change the way that injured workers have been compensated for lost wages as well as establishing various methods of assisting injured workers in returning to the workplace, with their employer of record, a new employer, or in a different occupation/trade.

It has long been recognized that two people with identical injuries can be impacted in two dramatically different ways in terms of wage loss. For example, a law judge and a court reporter can both break several bones in their nondominant hand requiring not only the wearing of a cast for several weeks but also losing the use of their fingers on that hand for a few months. The law judge may be incapacitated from doing their work for a few days whereas a court reporter may be unable to return to work for several months, if ever. And yet from a medical/disability perspective, both could be determined to have a mild-to-moderate disability. Under the new guidelines, it is the wage loss and earnings impairment that will be measured such that, after the first week or so, the law judge’s compensation would be minimal if anything whereas the court reporter,s award could come close to the maximum compensation allowed and continue for several weeks if not longer.

Another key element of the new guidelines for long-term wage loss would be in part determined by the availability of other occupations or trades. As was explained to me by one party familiar with the discussions on the guidelines, those whose work involves physical labor would gain greater benefits under the new guidelines than they currently have while office workers and other professionals, whose return to work in the same capacity as prior to their injury is far less limited, would be getting less benefits.

As a personal note, I do remember that as new commissioners would join the Board, after a few months of reviewing decisions and attending hearings, most ask why it was that two people with the same injury would get the same amount of money even though one could not return to their former trade while the second, if kicked hard enough in rear end, could return to work even if with some discomfort.

These long-awaited guidelines offer the current Board the opportunity to usher into the system an entirely new concept which addresses and hopefully corrects the inequities found in the workers compensation system in the past. One can only hope that the Commissioners and other top executives at the Board act upon these new guidelines as soon as they are received in order to allay the ever growing suspicions that this current Board and its executives have no concern for the injured workers or their employers.

NY Woman Gets Fed’s ‘Goat’ for WC Fraud

April 6, 2010: In the plea announced Tuesday, U.S. Attorney Richard Hartunian for the Northern District of New York announced that an upstate woman pleaded guilty in U.S. District Court to making false statements to the U.S. Department of Labor, while admitting that she sold goats while collecting more than $60,000 in federal workers compensation. As a result of a guilty plea, she faces up to five years in prison and a fine up to $250,000.

For those who think that the penalties imposed by the New York State Workers Compensation Board under WCL §114-a or those imposed by New York State Supreme Court under WCL §114 should note the penalties in the above federal case and recognize, in comparison, how minimal are the penalties for cheating in New York State’s workers compensation system.

[ED. NOTE: She worked for the U.S. Postal Service which is the reason this was a federal case, a point noted in the press release issued by the U.S Attorney’s office but omitted by the AP and other entities reporting this story.]

NYSIF Discusses WC Insurance Rates

April 5, 2010: In a just released document, the New York State Insurance Fund (SIF) explains why its annual rates are lower than those of its competitors in the private sector.

SIF writes that “A simple explanation is that the amount charged for your type of business is derived from the most recent total amount paid on claims for similar types of businesses statewide. This determines the loss cost for your class of business. The New York Compensation Insurance Rating Board (NYCIRB) promulgates these loss costs, reflecting data from all insurance companies, which become official upon approval by the New York State Insurance Department. As part of workers’ comp. reform, all insurance companies, including NYSIF, apply their own Loss Cost Multiplier (LCM) to the official loss costs in arriving at a manual rate for any given classification.”

The document then goes on to explain why it is that SIF’s rates are lower.

[ED. NOTE: Not to be judgmental, but isn’t that the same thing that CRM did?]

NY’s Workers Comp System among the Nation’s Worst

April 2, 2010: New York State’s workers compensation system ranks as one of the worst in the 2010 State Report Cards for Workers’ Comp in a report issued by the Work Loss Data Institute (WLDI). This report is based on eight years of data from 2000 through 2007 and covers 43 states plus Puerto Rico, Palm, and the Virgin Islands.

Minnesota performed the best of all the states for 2007 and Nevada and Arizona came in a close second and third. All three states received a grade of “A+” based on an average of their 2007 scores in the five categories above. A summary of each grade for all states is shown on a map of the United States. The worst performers for the years 2000-2007 were: New York, Illinois, Kentucky, Oklahoma, and Wyoming.

The 2010 State Report Cards, based on data from OSHA Forms 300 and 200, provide five different outcome measures compared among the states for each year: (1) Incidence Rates, (2) Cases Missing Work, (3) Median Disability Durations, (4) Delayed Recovery Rate; and (5) Key Condition: Low Back Strain. An essential requirement for production of this report was the proprietary crosswalk program that has been developed by Work Loss Data Institute, which converts OSHA-reported data into an ICD9 code format.

The WLDI special report, entitled 2010 State Report Cards for Workers’ Comp provides complete detail on all cases for the 46 participating states and territories, based on all cases reported to OSHA for the years 2000-2007 as a 79-page report with narrative, plus over 50 spreadsheet files with complete detailed backup data that is referenced in the narrative. It is available in both electronic and hardcopy formats for $250 each. Note: The electronic format is recommended to facilitate links to the electronic spreadsheet files and the supporting data and can be ordered over the internet at www.worklossdata.com

CRM Lays Off 15% of Staff

March 31, 2010: CRM, which specializes in workers compensation insurance, announced that it has eliminated 30 jobs, 15% of its total workforce, the majority at its Poughkeepsie offices. CRM stated that although it will record a one-time charge of the $417,000 with the termination benefits, annual savings should be $2.6 million. Nonetheless, CRM reported on March 9 that its net loss for 2009 was $45,000,000. And CRM again confirmed that the Office of New York State Attorney General Cuomo is continuing its investigation into CRM’s alleged mishandling of various self-insured trusts which managed.

As reported on August 18, 2009 by Roberto Ceniceros of Businessinsurance, among others, the list of victims of the underfunding of self-insured trusts continues to grow. Ceniceros reported that a New York State Workers’ Compensation Board spokesman reported that nearly 2,000 companies insured under group trusts formerly operated by CRM Holdings Ltd. have been billed $133 million to cover unfunded workers compensation claims.

Yet despite all financial problems that CRM Holdings, Ltd (NASDAQ: CRMH) currently has, and despite the fact that its stock has dropped from $5.00 a share two years ago to $.33 a share on March 30, 2010, approximately 1,000,000 shares of stock have been purchased by Ivan (John) Mihaljevic, either directly or through Mihaljevic Capital Management LLC and Mihaljevic Capital Management LLC, according to the Schedule 13G filed March 26, 2010.

Colorado’s Sale of its WC Insurance Fund is Cancelled

March 30, 2010: After nearly a year of discussions, arguments, and lobbying, Colorado Governor Bill Ritter has canceled a proposal to sell Pinnacol Assurance, thus denying Colorado the opportunity to sell the state-chartered workers compensation insurance fund and raise between $200 million and $500 million to help balance a budget shortfall estimated at between $212 million and $1.3 billion.

Originally, the Democratic-led legislature considered tapping $500 million from Pinnacol’s roughly $2 billion in assets but, when that plan failed, the next plan was to convert the company into a private entity after a payment of $330 million to the state.

Fortunately for the employers and injured workers of Colorado, the financial stability of this workers compensation insurance fund remains intact, perhaps a signal to other states who would also consider withdrawing assets from their state-chartered workers compensation insurance funds

[ED. NOTE: I would be most appreciative if one of my readers could explain to me why it is that if the reserve funds of a workers compensation insurance fund are too low because of actuarial errors that the carrier and its management are subject to potential criminal and civil penalties whereas, if the reserve funds are too low because the money was “confiscated” by a political entity ,that is considered to be legitimate, i.e. CMR v Pinnacol.]

Ohio Proposes: No WC benefits for Illegal Aliens

March 16, 2010: Ohio Senator Bill Seitz introduced Senate Bill 238 to the Ohio General Assembly. If passed, this bill would amend Ohio’s Revised Code to prohibit illegal and unauthorized aliens from receiving compensation and benefits under Ohio’s Workers’ Compensation Law.

Currently, in Ohio, illegal and unauthorized aliens are afforded the same benefits under Workers’ Compensation Law that other workers are. In other words, illegal and unauthorized workers who are injured in the course of and arising out of their employment are allowed to file workers’ compensation claims and receive benefits and treatment for their injuries.

Senate Bill 238 adds to existing legislation two additional categories of individuals who would no longer be qualified as “employees”: illegal aliens or unauthorized aliens. The legislation would require injured workers to submit along with their claim documentation proving they were covered under the amended law. The law also would prevent Ohio courts from having jurisdiction over claims for damages suffered by an illegal alien or an unauthorized alien in the course of employment but does give courts jurisdiction over these claims if the employer employed the illegal alien or unauthorized alien knowing that the illegal alien or unauthorized alien was not authorized to work under the Immigration Reform and Control Act.

The legislation defines an illegal alien as an alien who is deportable if apprehended because of one of the following:

The alien entered the United States illegally without the proper authorization and documents.
The alien once entered the United States legally and has since violated the terms of the status under which the alien entered the United States, making that alien an “out of status” alien.
The alien once entered the United States legally but has overstayed the time limits of the original legal status.

Additional details can be found at www.employerlawreport.com or www.daytondailynews.com.

Legal Fees for WTC Settlements Unreasonable

March 26, 2010: In a press release issued today, I agreed with Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.

I stated that the fees being sought in the settlements in the amount of 30% to 40% are excessive when compared to the fee structure that exists in the New York State workers compensation system. I ended my statement by suggesting that Judge Hellerstein consider hiring the services of those law firms specializing in the handling of workers compensation for injured workers. These attorneys are accustomed to handling large numbers of cases at a time but still have the ability to provide the injured workers and their families with the care and attention necessary to not only do financial justice to their clients but also to make them feel like human beings.

The full text of my statement can be found on the COMMENTARY & REPORTS page under the heading “Legal Fees for WTC Settlements Unreasonable”.

▼ Posted Friday March 26, 2010 ▼

WC Attorney Defeats Negligence Claim

March 4, 2010: An injured worker’s action against her workers compensation attorney, Alan M Cass, to win in civil court after she did not win at the New York State Worker’s Compensation Board was rejected by the First Department of the New York State Appellate Term of the Supreme Court. The Court in granting Cass’ motion for summary judgment reversed the decision of the Civil Court of the City of New York, New York County, which denied that motion.

In bringing her complaint, Elaine Lupo contended that the defendant was negligent in the handling of her claim, for his failure to present evidence and cross-examine opposing witnesses. The defendant made a prima facie showing that his firm was not negligent and, further, that “their claimed negligence did not proximally cause plaintiffs alleged damages”. The Appellate Court wrote in its decision that the allegations “amount[ed] to nothing more than criticism of defense’s considered tactical strategy of how best to pursue plaintiffs claim . . .” In its decision the Court was quite clear that it would not second-guess Lupo’s attorney, that some of her claims were based purely on speculation.

This decision follows a line of cases in which the Courts have refused to second-guess the strategies of the attorneys representing injured workers, essentially taking the position that not every case and every issue raised by claimants will be affirmed by the Board, regardless of the efforts of their legal representatives.

Details of the Court’s opinion can be found on our DECISIONS page or by linking to the actual decision: Lupo v Cass 2010 NY Slip Op 50310(U).

[ED.NOTE: perhaps a sign referencing the language in this decision should be posted over the door of every hearing part.]

A Vaccine for Malignant Mesothelioma?

February 17, 2010: The American Journal of Respiratory and Critical Care Medicine has accepted for publication an article about tests that show inoculations prevent Malignant Mesothelioma.

A group of scientists working out of the Netherlands demonstrated that dendritic cell-based immunotherapy induced protective antitumor immunity with prolonged survival in mice. Then now they then embarked on a trial of 10 patients with malignant pleural mesothelioma who received vaccinations at two-week intervals after chemotherapy. This study demonstrated that autologous tumor lysate-pulsed dendritic cell-based therapy is feasible, well-tolerated, and capable of inducing immunological response to tumor cells in mesothelioma patients.

Because the study is in the early stages, no mention was made of the time frame for its availability to the public at large nor is there any indication of the impact this could have on the thousands of cases of pleural mesothelioma currently in the workers compensation system not just in New York but throughout the United States as well as the tens of thousands of cases being fought over in civil courts throughout the country.

A summary of the study, titled “Consolidative Dendritic Cell-Based Immunotherapy Elicits Cytotoxicity Against Malignant Mesothelioma”, can be found at http://ajrccm.atsjournals.org/cgi/content/abstract/200909-1465OCv1. More information on the actual trials can be found at www.clinicaltrials.gov NCT00280982.

Our Newest Poll Now Ready

March 15, 2010: As a result of changes in the Board’s requirements for the issuance of medical reports, more medical providers have decided to no longer treat injured workers. As previously noted in my website as well as other sites, the Board acknowledges a shortage of medical providers in the Rochester area. But the problems occasioned by the shortage in Rochester are being found throughout the state. There are complaints that so many doctors, including IME’s, are dropping out that the Board’s list of doctors in woefully out-of-date, claimants cannot get timely medical treatment, and their return to health and decisions on their case are unnecessarily delayed.

This poll is now up and running - you are welcome to give your opinion by participating in this poll:

Questions on the Board’s Medical Procedures

Thank you for your participation. Results will be published Monday March 22, 2010.

Medical Guidelines Pilot

March 4, 2010: The New York State Worker’s Compensation Board has again revised its medical treatment guidelines, as a part of its continuing effort to meet the deadlines of the 2007 statutory reforms.

The ‘content changes’ are discussed in the “Substantive changes in the Proposed Medical Treatment Guidelines January 19, 2010 revision” document. The reformatting changes “Formatting changes in the Revised Medical Treatment Guidelines” are designed to make guidelines easier to use and more consistent.

In 2009, the Board requested public comments to the Draft Guidelines. Based on those comments and exhaustive reviews of recent medical literature, the Board revised the Draft Guidelines in January 2010. The Board anticipates issuing proposed regulations to adopt the Revised Guidelines in the near future.

On Monday, November 30th, the Board started a Medical Treatment Guidelines Pilot with both Providers and Payers. The pilot program is designed to test the process for implementing the adopted Guidelines. Participants in this pilot will have a unique opportunity to provide feedback that will help shape the final procedures. The pilot will run until the proposed Guidelines are formally adopted by regulation and the delivery of the comprehensive training program has been completed. The Board encourages both providers and payers to participate in this pilot program. It is our hope that a successful pilot program will help accelerate delivery of quality medical services to injured workers, reduce disputes and cut system costs. If your organization is interested in participating or has questions regarding the pilot, please contact the Medical Director’s Office at 1-800-781-2362 or WCBMedicalDirectorsOffice@wcb.state.ny.us.

The Board’s Regulatory Wish List

MARCH 4, 2010: The January 2010 Regulatory Agenda was published in the January 6, 2010, edition of the State Register , allegedly to provide small businesses, local governments, and public and private interests in rural areas with the opportunity to participate in the rule making process, as provided for in State Administrative Procedures Act sections 202-b and 202-bb.

The Workers’ Compensation Board agenda included 20 different items ranging from medical issues to the management of self-insured trusts.

Also among these items are a plan to amend Parts 390 and 393 regarding the Aggregate Trust Fund to conform to the amendments to Workers’ Compensation Law §27, the decisions of the Board and the recent decision by the 2nd Circuit Court of Appeals. The Board also proposes to repeal and readopt Part 302 regarding the rules governing licensed representatives. The amendments will separate the provisions that apply to third-party administrators from those of licensed claimant representatives and address applications, duties, standards of conduct and licensure.

However, a careful review of some of the proposed changes would suggest that the Board is seeking to bypass the state legislature and institute changes to the Workers Compensation Law by changing the rules and regulations that define how the laws are managed by the Board

You can read the entire regulatory agenda by linking here.

Spine stimulation may not help after failed surgery

February 17, 2010: Reuters Health today summarized a study which showed that a commonly used treatment for patients who still suffer chronic back and leg pain after having back surgery is essentially no better than specialized pain treatment or standard medical treatment.

But the findings do not mean that the procedure — spinal cord stimulation — will not help some people, Dr. Ajay D. Wasan of Brigham and Women’s Hospital and Harvard Medical School in Boston notes in a written commentary published with the study in the journal Pain.V(olume 148, Issue 1, January 2010, Pages 3-4 )

Spinal cord stimulation, in which implanted electrodes send small electrical impulses into the spine, has been used since the 1960s for patients with so-called “failed back surgery syndrome,” Dr. Judith A. Turner of the University of Washington in Seattle and her colleagues note in their report. However, questions remain about the procedure’s risks and long-term effectiveness. Also, they point out, no studies done to date have included patients on workers’ compensation, who are known to fare worse with any type of pain treatment.

To investigate, Turner and her team studied a group of patients with a workers’ compensation claim who had persistent low back and leg pain following previous back surgery.

They compared the outcomes of 51 people who had at least a trial of spinal cord stimulation (27 went on to have the electrodes implanted permanently) with those of 39 people who underwent evaluation at a pain clinic, and 68 who received neither spinal cord stimulation nor specialized pain treatment. Fewer than 10 percent of the patients in any of the groups showed notable improvements in leg pain and function, or were able to step down from daily use of opioid painkillers, the researchers found. While the spinal cord stimulation group showed slightly better improvements in leg pain and function at six months, these patients used more opioids than patients in the other two groups. At 12 and 24 months, there were no differences among the three groups.

While the researchers did not compare the outcomes for people who only had a trial of spinal cord stimulation and those who went on to have electrodes implanted permanently, Wasan points out, results for these two groups were “distinctly different,” with 30 percent of people who underwent permanent implantation showing improvement in leg pain and function at two years.

The full report is available from sciencedirect.com for a small fee.

Triangle Shirtwaist Group
Names Award Recipients for 2010

February 16, 2010: The Triangle Shirtwaist Factory Fire Memorial (TSFFM) announced that four individuals have been named to receive a Clara Lemlich Public Service award for their work and efforts in calling attention to and participating in the reform of workers’ compensation and improvement of occupational safety in New York State.

Those named to the Class of 2010 are: M. Patricia Smith, recently approved by the US Senate as Solicitor at the US Department of Labor and previously Commissioner of the NYS Department of Labor; Lillian Roberts, Executive Director of NYC’s District Council 37; Veronica Montgomery-Costa, President of DC 37; and Richard D. Winsten, Esq., a partner at Meyer, Suozzi, English and Klein.

Lee Clarke, a member of the Board of Directors of TSFFM and Director of Health and Safety at DC 37, in announcing the awards, observed, “Although history is supposed to be a great teacher, we too often are not familiar with its many heroes who slug it out day to day for working men and women. Clara Lemlich, a young Jewish immigrant, was among those who rose to the occasion and inspired many with her voice and her actions. The Lemlich Class of 2010 represents this ideal.“

In the early 1900’s, Lemlich participated in efforts to improve the working conditions of her co-workers in the garment industry. Despite a number of severe beatings by goons hired by factory owners, Lemlich continued her organizing efforts. On November 22, 1909, after hours of speeches from labor representatives mostly men, she mounted the stage at Cooper Union and addressed the workers in Yiddish. Her words inspired 20,000 workers to strike, one which lasted until February 10, 1910 and resulted in better wages and working conditions for members of the ILGWU.

“But,” noted Clarke, “the Triangle factory owners did not participate in the reforms of the 1909 labor action and it was the tragic fire of March 25, 1911 that woke up the entire nation. We need to be reminded of that. So, I am proud to honor these men and women and recognize their connection to, not only labor history, but to all who enjoy safer and better working conditions.“

The awards will be presented at TSFFM’s Eighth Annual Memorial dinner to be held at the NYC Fire Museum in lower Manhattan on March 25. Proceeds from the dinner and a journal are dedicated to a scholarship program for children of injured workers. Attendees are treated to cocktails, a four-star dinner, and entertainment with themes relating to the 1900’s, the Triangle era, and performed by an amateur theatre group. “In this way,” offered Jim McCarthy, President of TSFFM, “we fulfill TSFFM’s mission to commemorate the Triangle tragedy and remind the public of the need for vigilance in workplace safety. The Lemlich awards and our scholarship program are concrete testimonials to these ends.“

And their work continueth,
Broad and deep continueth,
Greater than their knowing!

For additional information contact James M. McCarthy (TSFFM) at 718-830-3200 or jmccarthy@nycomplawyers.com or www.trianglememorial.org.

Chief Justice Lippman’s Court of Appeals

February 17, 2010: The New York Times has today published a review of the first year of Chief Justice Jonathan Lippman’s stewardship of the New York Court of Appeals, having been appointed to that position by Governor Paterson in January 2009.

According to the author of the article, William Glaberson, “the parameters of the Lippman court are coming into focus. He has helped turn the Court of Appeals into a scrappier, more divided and more liberal panel, its rulings and court statistics show. the past year, the court has issued a series of sharply divided decisions that have been surprising from a judicial body with a clear 4-to-3 conservative majority. They have included decisions favoring criminal defendants and injured workers, expanding environmental challenges and extolling individual rights against the police.”

“The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court,” Vincent M. Bonventre, a professor at Albany Law School who studies the court, said of Judge Lippman.

According to Bonventre, a professor at Albany Law School who studies the court, “The message he is sending is he doesn’t mind fighting for a much more progressive direction at the court.” As noted in my NEWSWIRE posting of February 13, 2009, Bonventre’s blog makes reference to Lippman’s one workers compensation case. “In Bellamy v. Columbia University, Lippman wrote for a 3 - 2 majority, refusing to dismiss a lawsuit brought by a worker who hurt himself slipping and falling in one of the University’s kitchens where he worked. He rejected the University’s position that it was necessarily immune from this negligence claim under the Workers’ Compensation Law.”

At that time I noted that it would be interesting to see if Bonventre’s analysis of Lippman appearing to be pro-plaintiff proves to be correct. It is.

According to Glaberson,

The Lippman court has also shifted ground on worker injury suits, saying that in the past the court too rigidly limited some of them. It has also signaled a new interest in arguments from criminal defendants, sharply increasing, at Judge Lippman’s urging, the number of appeals it is considering. Early in his tenure, he wrote a 6-to-1 decision in favor of an injured patient against two doctors, a ruling that the dissenter, Judge Smith, called a “gross injustice” to the doctors.

In early December, Judge Lippman went further, indicating that he planned some changes in injury cases. He “reluctantly” agreed with the dismissal of a damages suit against New York City by a public school teacher who was injured by a student , saying an earlier ruling limiting such suits should be changed.

A couple of weeks later, he got all seven votes in the case of an injured worker, declaring that the court in the past had too narrowly construed a law originally intended to help workers win suits against employers. Legal commentators have noted the change from Judge Kaye’s court, which had voted 7 to 0 the opposite way in at least one case involving an injured worker.

The protection of the law for injured workers, Judge Lippman wrote, had “been construed to be less wide than its text would indicate.” In the coded language of the courts, that was a hand grenade tossed at the old Court of Appeals, before the arrival of Chief Judge Lippman.

In 2009, there were 4 cases in which the Court of Appeals issued decisions regarding injured workers although the New York State Workers Compensation Board was not a party of interest in any of them. In one pro-injured worker decision, the Matter of Passante v Agway Consumer Products, the dissenting Justice wrote “Decisions like today’s can only make things worse.”

The New York Times article covers far more detail as well as adding graphs and charts regarding the increasing divisiveness of the Lippman Court. As to the impact on any workers compensation claims that make their way to the Court of Appeals, only the future can tell.

Board Publicity: Selective at Best

February 18, 2010: Since January 1 of this year, the New York State Workers Compensation Board has published 16 Subject Numbers listing 16 doctors and one medical company whose practice of workers compensation medicine has been limited or ended.

Over the last few years the Workers Compensation Board has been very aggressive in investigating fraud, malpractice, malfeasance, misfeasance, and several other patterns of behavior by medical providers which deny both the injured worker and the carrier/employer proper medical treatment that an appropriate cost. In the Board, by issuing all of these Subject Numbers is taken steps to make sure that the people in the State of New York as well as those in the workers compensation community are aware of Boards steps to improve the system.

The Board’s interest in promoting its activities is substantiated by nearly 100 medical providers whose names were listed in Subject Numbers published in 2009.

Unfortunately, it is only the activities of outside parties whose actions impact on the Board that the Board wishes to publicize and not the Board’s own plans for changes in procedures. Interesting to note the fine line that the Board has drawn between changes in some procedures which are done secretly and announced after-the-fact and those which, by law, require advance publication in the NYCRR to allow public comment.

CO Legislature: “Video Surveillance Unfair”

February 18, 2010: Colorado’s House Judiciary Committee has approved a bill that would prohibit employers or insurers from conducting surveillance, including videos, of employees who have filed a workers’ compensation claim, unless there is “a reasonable basis to suspect that the employee has committed fraud.” According to Business Insurance, companies who break the proposed law face a $1,000-a-day fine.

The Colorado movement to curb insurers comes at a time when carriers are cracking down on employees who take extended sick leave or file disability claims. SmartMoney reports that an insurance case manager called a Washington state woman who has breast cancer at 7 a.m. to ask probing questions about her health, such as “Did she feel well enough to exercise?” The magazine says that insurers are cutting back coverage where possible and “putting employee complaints under a microscope.”

But insurers also have an argument. Workers’ compensation payments, along with no-fault medical fraud costs are “spiraling out of control,” according to the New York Insurance Association. Among the NYIA’s concerns are lawyers who hire “runners” to set up fake accidents, and then send the “injured” for medical treatment at prearranged doctors and chiropractors who split inflated fees. Over the last three years, suspected fraud cases have jumped 33 percent in New York State.

Further details on the story written by Bnet reporter Ed Leefeldt can be found at: http://industry.bnet.com/financial-services/10007029/smile-youre-on-your-insurers-candid-camera/

WCB’s Appearance Before Senate Finance Committee

February 11, 2009: On Wednesday February 10, 2010, the New York State Senate Budget Committee met to discuss issues dealing with the New York State Workers Compensation Board and spent nearly 2 hours discussing three subjects:

The Board’s plans to eliminate hearing
The Board’s Plans to Eliminate Verbatim Reporters
The $100 million in the “excess fund”

Speaking on behalf of the New York State Worker’s Compensation Board was Chairman Robert Beloten assisted by General Counsel Kenneth Munnelly and Budget Director Mary Beth Wood.

Other speakers included Stephen Zinone, President of New York State Court Reporters Association, and Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association.

ELIMINATING HEARINGS

After number of introductory remarks, Senator Honorato asked the Board could have more law judges but less hearings and what happens to Due Process under §25(2)(b). Munnelly noted that the Legislature in 1991 authorized a conciliation process and the Board has been aggressive in moving many cases to conciliation, He added that 80% of the proposed decisions made at conciliation are accepted, substantiating the Board’s position that many hearings are not needed. Chairman Beloten gave an example of a disputed medical bill, the resolution of which does not need an injured worker to take time off from work to attend the hearing. [ED. NOTE: His response ignores the fact that on many issues of this nature claimants are told by their attorneys that their attendance is not necessary.]

Senator Honorato asked for a further clarification of Project 2015. Mary Beth Wood explained that the idea was to reduce the number of hearings by using more conciliators but also stated that the plan was to give a “slight” $10,000 raise to the approximately 20 conciliators which then prompted a follow-up question as to why more conciliators and judges are needed if the Board plans to have less hearings. [ED. NOTE: only someone on the public payroll could consider a $10,000 raise to be “slight”.]

Senator Honorato then asked why was the Board planning on moving ahead with Project 2015 and the plan to reduce hearings without any legislative approval to which Chairman Beloten responded that these two changes were necessary to streamline the process as research has shown that injured workers who do not return to work for four months never return to the workplace so it was a goal of the Board to get cases settled in less than that time.

ELIMINATING VERBATIM REPORTERS

The Finance Committee then moved to the issue of digital recording, asking how was it that the Board could continue on this process when, after the October 2009 hearings, the Legislature in a letter signed by Senate Labor Committee Chairman Senator Honorato, stated its displeasure and disapproval of the project. Munnelly replied that they are not eliminating verbatim reporters and moving ahead with the project, but that they are simply doing a pilot program using both digital recording and verbatim reporters and plan to report to the Legislature when the pilot project is done. He then stated that “§142 (5) states that there is an obligation to keep records but does not state they must be verbatim.”

Senator Honora reminded Munnelly the Labor Committee’s strong objection to the refusal of the Board and the firms bidding on the project, who also testified at the October hearing, to give any costs. Munnelly responded that the bidders were afraid to disclose the proposed costs of their bids prior to the formal opening of those bids lest they be in violation of New York State law but, because the bids had just been opened, he would then give copies of those bids to the Senate Finance Committee.

In response to Senator Dianne Savino’s questions as to the cost, Chairman Beloten noted that it would be $35,000 for the pilot run for the four units, two upstate and two downstate. Beloten added that it is important to pursue this new process lest one day there are not sufficient reporters to attend hearings. Senator Savino reminded Chairman Beloten that he had testified in October 2009 there was no record of any hearing having been canceled for lack of reporters.

Senator Honorato then noted that the contracts that were just submitted by Munnelly showed that there was a contract, not for $35,000 for a one year pilot program, but for $917,000 for a three-year program. Munnelly responded that §8A of the contract allowed the Board to cancel at any time but the Board felt that having a three-year contract for all the hearing parts throughout the state was the best way to approach this program. Wood added that the $917,000 was not in the budget ‘per se’ but the contract had been approved by the State Controller and the cost was going to be $140,000 for the pilot program. It was then noted that, minutes earlier, Beloten stated that the cost was $35,000. [Apparently a misunderstanding: $35,000 for the entire project or was it the cost for each of the four pilot sites and not for the entire pilot program.]

EXCESS FUNDS

The next issue addressed dealt with an item one of the committee members referred to as “Excess Funds” which amounted to slightly over $100 million.

Wood explained that this money came as a result of higher than necessary assessment charge to the carriers. And, of course, the higher than necessary assessments were passed on to employers such that at the end of the year there was a surplus in the fund. Under Article 7 for the state budget, Governor Paterson took all but $20 million of that by sweeping it into the general fund with the Board keep that balance. When Wood was asked if that was fair to keep the over-assessment rather than return it to the employers in the State of New York who paid it, we would replied “It would be too difficult to figure out how to return the money and it was easier to keep it.” When the follow-up question asked if this was unfair, “an insult” to the employers of the State of New York, and what would keep the Insurance Rating Board from continuing to over assess the employers/carriers, she replied (1) the new assessment system would avoid these excess charges and (2) it was just too difficult to return the money to the people who paid it.

ADDITIONAL SPEAKERS

Next address to the Finance Committee was Stephen A Zinone, President of the New York State Court Reporters Association, who brought to the Finance Committee’s attention the same concerns raised to the State Senate Labor Committee in October 2009. One additional point raised by Zinone was that the very same concept of using electronic transcription was tried in a pilot project in 1995 and 1996 and was rejected by the Board. He noted that the Board has failed to explain why the new proposed project is any different from the earlier one.

Peter Walsh and William Crosset, representing a special Workers Compensation Committee of the New York State Bar Association, made reference to their appearances and comments at the October 6, 2009 hearings by the the Senate Labor Committee and made the observation that no matter what studies, reports, or communications there may be, the Board tends to look in one direction while the Bar and State Legislature look the other. They also noted that there is a total lack of communications from the Board on these projects until such time as the Board announced their implementation, that the only advance notice that the Bar or any of the other participants receive is from outside sources [this website, perhaps!] and not from the Board itself.

The entire hearing is available on video at http://www.nysenate.gov/event/2010/feb/10/joint-legislative-budget-hearing-workforce-issues. As a guide to finding specific appearances you will find that Chairman Beloten’s appearance started at 2:07, at 2:14 the issue of Project 2015 is raised, 2:18 starts a discussion of verbatim reporters, 2:23 Senator Savino asks why Chairman Beloten said the pilot project would cost $35,000 for one year but the contract is for $916,000 and three years, the issue of excess funds starts at 2:34, Stephen Zinone’s appearance start’s at 2:40 and Peter Walsh and William Crossest start their remarks at 3:58.

WCB Ignores State Senate Decision

February 3, 2010: State Senator George Onorato (D-Queens), Chairman of the New York State Senate Standing Committee on Labor, today took issue with the recent decision by the New York State Workers’ Compensation Board to move forward with a digital-audio recording pilot program in violation of state law. Under the plan, the Board is seeking to replace stenographers with recording equipment at some workers’ compensation hearings – a move the Senator contends is not authorized by law, will jeopardize the accuracy of transcripts, and will otherwise compromise workers’ compensation proceedings.

On October 6, 2009, the New York State Senate Standing Committee on Labor held hearings on this subject as referred to in this website in its October 8, 2009 postings.

In an apparent snub (as polite word as I can find), the Oligarchic Cabal at the Board decided to go ahead with this project, signing a contract shortly after Senator Onorato issued the Senate’s report stating that the consensus of the Labor Committee was that the Board should not proceed with this project on the grounds that (1) there were substantial technical problems with the project, (2) Chairman Beloten and other speakers promoting the Board’s position were unable to even guess at the proposed financial cost, and (3) there were a number of legal issues that had to be addressed before live court reporters could be taken out of the process.

The full text of Senator Honorato’s statement is available at the Senate website, using the following link . . .

[ED. NOTE: I guess this shows the attorneys and other members of the workers compensation community that they are not the only ones whose concerns and/or recommendations are being ignored by the Oligarchic Cabal running the Board who apparently feels omnipotent enough to “bite the hand that feeds it”: the New York State Senate. With budget hearings on a number of state agencies soon coming up, including the Workers Compensation Board, it will be interesting to see if the Senate has “teeth” and will be used them.]

NYSIF Distributes $173.3 Million in Dividends

February 2, 2010: The New York State Insurance Fund today announced the return of $173,323,008 in dividends for 2009 to approximately 34,025 policyholders in 98 NYSIF safety groups as a reward for exceptional record of workplace safety and sound business practices. The average 2009 dividend of 29.98% is the largest in recent years, surpassing the 28.20% in 2008 and 27.47% in 2007. All members of a safety group are eligible for the approved dividend with the percentage returned to the group applied to the individual policyholder’s earned premium. The dividends are in addition to very competitive up-front discounts applied earlier.

NYSIF Chief Deputy Executive Director Francine James said. “It clearly demonstrates the importance of a strong commitment to workplace safety and loss prevention. The dividend distribution underscores the strength of NYSIF’s safety group partners and the work they have done to ensure their groups are on sound financial footing.” NYSIF notes that past and present dividends are not a guarantee of future dividends.

About Time: Legal Training for Commissioners

February 3, 2010: At its regular monthly meeting in Albany, held on January 26, 2010, an announcement was made that effective next month the Commissioners and those members of the legal staff involved in drafting decisions of memorandum will be required to attend legal training.

The sessions will be similar to those offered for Continuing Legal Education (CLE) and may possibly count as CLE credits. My understanding is that these will be conducted Tuesday mornings prior to the beginning of the public meeting, this time having been chosen to avoid excuses from the few Commissioners notorious for finding excuses for not attending the Monday afternoon pre-board meetings at which the substantive discussions, such as they may be, are held covering decisions made prior to the pro forma discussions and votes seen at the public session.

CLE’s for commissioners or similar legal training is something I have been promoting for years, originally as a member of the Board and most recently in my book Behind The Closed Doors in Chapter 7 “The Monthly Board Meeting - Recommendations.”

Far too often in the past, even for those few commissioners who wanted to learn about the laws they were entrusted to enforce, there was no means to learn anything other than reading, as often as not, faulty decisions or by relatively brief conversations with writers. As a result, it could be months or even years before commissioners developed understanding of some of the issues with which they were faced which often meant that the pre-board discussions of cases set down for Full Board Review were monopolized by the few commissioners who were fortunate enough to have learned the law and one or two lawyer/Commissioners who felt admission to the bar automatically granted them extensive knowledge on the entirety of workers compensation law. Having attended CLE’s given by Board staff and some CLE’s outside the jurisdiction of the Board, I can only hope that the future presentations given to the Commissioners and legal staff will be as interesting and at least half as accurate as those given by Ronald Balter to the members of the Injured Workers Bar Association.

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.

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COURT DECISIONS

Two Guest Commentaries

►“Don’t Move the Buffalo Office”’

►An Attorney’s Review of Managed Adjudication Path (MAP)

THIS WEEK’S NEWSWIRE

►NYS Bar Assoc Condemns MAP

►More States Look to Raid Suprlus WC Insurance Funds

PRIOR WEEK’S COMMENTARY

►Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The INSIDER’s recommendations for the Board

►Stats on How Hearings Change Proposed Decisions or Why Hearing are necessary

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

June 3, 2009 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th 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. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 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, send them to: TheInsider@InsideWorkersCompNY.com.

THIS WEEK’S POSTINGS: The Board has a good week in not losing any cases at the Appellate Cout - there were no decsions issued yesterday. Earlier this week, the Court has agreed to hear oral arguments on all of the four ATF cases on its calendar: below, under Pending Cases, you will find the four cases scheduled. At the Board’s FBR in April 2008, the lead case was WCB #0012-4050 (NY Presbyterian Hospital).

FULL BOARD REVIEWS - Now being posted: The New York State Workers Compensation Board announced in March 2010 that it would each month post a few of the 15-20 Full Board Decisions it issues each month. Our FRB page will offer a permanent but brief summary of those decisions with a link to another page in this website to the entirety of the decision issued by the Board. As of today’s date, we have posted the nine cases made available from the Board.

The Two Top Attorneys for 2009
click here for details.

The Top Attorneys for 2010
click here the March 19, 2010 updated list.

Keles v Santos [Cleaning]
May 27, 2010 NYS Appellate Division, Third Department
Employment: Who is

AFFIRMED the Board’s ruling that claimant was not an employee of Augusto B. Santos and denied his claim for workers’ compensation benefits. Claimant, employed by Plymouth Beef Company, was allegedly injured at the facility prior to the start of his scheduled shift with Plymouth, thus seeking workers’ comp benefits. He claimed that his early presence at the facility was due to inspection work he performed for Santos, the proprietor of the business that cleaned the facility. A Law Judge, later affirmed by a Board Panel, disallowed the claim, finding that no employer-employee relationship existed between claimant and Santos. Although the claimant at one time worked for Santos, the relationship ended months before the injury. Nonetheless as part of his job at Plymouth, he was required to interact with employees of Santos. The Court wrote, “While claimant testified that he felt morally obliged to continue performing the safety inspections which he had done for Santos even though Santos no longer needed his services, that gratuitous work, absent other indicia suggesting an employer-employee relationship, and the fact that substantial evidence supports the Board’s determination we affirm the decision not to award workers’ compensation benefits.” Prevailing party represented by: Daniel Becker of counsel to Gregory J. Allen, State Insurance Fund for Augusto B. Santos and another, respondents and Patrick M. Conroy of counsel to Stewart, Greenblatt, Manning & Baez (Syosset) for Plymouth Beef Company and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Turner v Jaquith Indus
May 27, 2010 NYS Appellate Division, Third Department
Disability: Further Causally Related

AFFIRMED the Board’s ruling that claimant had no further causally related disability. Claimant, a machine operator, began experiencing respiratory problems after being exposed to toxic fumes in the course of his employment in July 1997 resulting in losing three weeks of work and an established comp claim involving his lungs and airways. He returned to work in August 1997 but in the summer of 2006, he was again exposed to fumes causing breathing difficulty. Subsequent to a diagnosed of asthma and chronic obstructive pulmonary disease, he submitted a second claim for benefits. A Law Judge, later affrimed by a Board Panel, authorized awards for February 16, 2007 to June 8, 2007, but found no futher causally related disability beyond June 2007. While the claimant’s and carrier’s medical providers submitted opposong opinions, the Court, as its norml position on such controversies, wrote, “[I]t is within the Board’s discretion to determine witness credibility and resolve conflicting medical opinions. . . . inasmuch as the resolution of conflicting medical opinions is within the Board’s province and both of the latter opinions constitute substantial evidence supporting the Board’s determination, we decline to disturb it.”Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent and Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for PMA Insurance Group, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Clark v Suny Upstate Med. [SFCC]
May 27, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that the award of workers’ compensation benefits be paid by the Special Fund for Reopened Cases. Claimant injured her back while working for the employer in 1994, initially paid for compensable lost time which came to an end in March 1977 when a Law Judge authorized treatment and closed the case. Further work-related injuries in 2001 and 2003 also resulted in the payment of workers’ comp benefits, beginning in 2003. The 1994 claim was reopened in 2004, when a hearing was held to determine, among other things, whether apportionment between the various claims was appropriate at which time the. The Special Fund for Reopened Cases (Fund) was then placed on notice that it may be required to assume liability for the 1994 claim per WCL §25-a.

Although on the face of the record, both of the times limits under §25-a (three years and seven years) were satisfied in this case, the Fund argued that the employer’s workers’ compensation carrier voluntarily paid benefits it knew were attributable to the 1994 claim in the three years prior to reopening. The carrier received the November 2003 report of an orthopedic surgeon who examined claimant and opined that the 1994 accident was partially responsible for her ongoing disability. Although the carrier did subsequently pay benefits under both the 2001 and 2003 claims, it also raised the issue that the Fund may be liable for any portion attributable to the 1994 claim, and the Fund was notified of its potential liability (see WCL §25[1][f]). The Court then wrote, “As substantial evidence in the record thus supports a finding that the carrier did not voluntarily assume liability for payments attributable to the 1994 claim, the Board appropriately followed the spirit and purpose of WCL §25-a to shift liability of that stale claim to the Fund.” Prevailing party represented by: Susan B. Marris of counsel to Gregory J. Allen, State Insurance for SUNY Upstate Medical Center and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….

Monteleone v Town of N. Castle
May 27, 2010 NYS Appellate Division, Third Department
§ 25(4)[a] Reimbursement

AFFIRMED the Board’s ruling that the employer was entitled to reimbursement for wages paid to claimant during the period of disability. After suffering a 2005 inury, claimant ultimately negotiated a 25% schedule loss of use encompassing 78 weeks of compensation. As claimant had been paid full wages for 46 days due ot his injury, the agreement also called for the employer to be reimbursed $11,380 of the total $31,200 award per §25(4)[a]. After a Law Judge approved the stipulation, the claimant requested that the amount of the employer’s reimbursement be modified because approximately eight days of claimant’s vacation and sick leave accruals had allegedly been deducted during those 46 days. Although the Law Judge agreed with the claimant and reduced the amount of the employer’s reimbursement, a Board panel reversed and affirmed the original reimbursement of $11,380. Here the Court noted that “pursuant to a collective bargaining agreement governing claimant’s employment, the employer was required to pay claimant’s full wages, without deducting any of claimant’s leave accruals, for the initial six months of any lost time arising from a compensable injury. Inasmuch as the instant record does not support claimant’s assertion that the employer did otherwise, the Board properly concluded that reimbursement of $11,380 to the employer would not create a disproportionate result in its favor.”Prevailing party represented by: Ralph E. Magnetti of counsel to Cherry, Edson & Kelly (Tarrytown) for Town of North Castle and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

PENDING CASES
May 28, 2010: The following list represents 18 cases, of which 12 have been heard,with the balance being scheduled for the next two weeks. A KEY LEAD CASE being argued June 2, 2010 deals with the ATF issue; four cases are listed but oral argument is being accepted only for the lead case.

May 27, 2010 Aides At Home v Workers’ Comp Board
May 25, 2010 Brown v New York City Dept
June 2, 2010 Collins v Dukes Plumbing (ATF-Lead case)
Apr 19, 2010 Dupuis v Frito Lay
June 2, 2010 Earle v Batavia Nursing Home (ATF)
May 24, 2010 Galanos v Nevada Utilities
May 27, 2010 Grill v Fashion Institute
May 27, 2010 Hilbrandt v Vil Of Red Hook
Apr 23, 2010 Kaja v Siller Brothers, Inc.
June 2, 2010 Moreno v Licea
Apr 26, 2010 Parkhurst v United Rentals (THREE CASES)
June 2, 2010 Perez v Licea
May 24, 2010 Poulton v Martec Industries
June 2, 2010 Raynor v Landmark Chrysler (ATF)
May 26,2010 Smallwood v Mereda Realty
June 2, 2010 Thomas v Cold Spring Constr (ATF)
May 28, 2010 Visic v O’nero & Sons Constr
May 28, 2010 Wooding v Nestle Usa Inc

▼ Posted Friday May 21, 2010 ▼

Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage

AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.

After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.“

However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens

RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.

“While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 14, 2010 ▼

Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.

Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant

AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.

In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.

The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.

In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 7, 2010 ▼

Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process

AFFIRMED the Board’s ruling which returned a case for development of the record on the issue of general/special employment. Claimant was employed by Snelling, a temporary employment agency, and was injured in a car accident for the owner of the car (Michael Comstock) to whom he been assigned as a laborer, providing services to Fortuna Energy.

Hearings were conducted on the claim, but before Snelling completed its examination of Comstock, a Law Judge rendered a decision finding, among other things, that, at the time of the accident, claimant did not have a general/special employment relationship with Comstock or Fortuna and that Snelling’s carrier was responsible for the payment of this claim. Snelling appealed, requesting that the hearing be reopened so that additional evidence could be submitted as to claimant’s employment status at the time of the accident. Although a Board Panel affirmed the Law Judge, a Full Board Review resulted in the case being returned to the Panel which determined that Snelling’s counsel should have been permitted to complete his examination of Comstock, and the case was sent back to a law judge for this further examination.

In its appeal to the Appellate Division, Snellng argued that the Board panel erred by restricting the hearing on remand to Comstock’s testimony and contends that it should be provided with an opportunity to present additional evidence on the employment issue from other witnesses. The Court ruled that “As the decision being appealed rescinds the original decision and remands the matter to the Law Judge for a new ruling on all issues, it is interlocutory in nature and does not dispose of all substantive issues nor reach legal threshold issues that may be determinative of the claim. As such, this decision may not be the proper subject of an appeal and this appeal must be dismissed.” Prevailing party represented by: Gary C. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Fortuna Energy, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Renz v Home Depot
May 6, 2010 NYS Appellate Division, Third Department
Causal Relationship: Aggravation or New

AFFIRMED the Board’s ruling that claimant was precluded from pursuing her neck injury claim by stipulating to a schedule loss of use award to her arms. The Board found that the claimant injured her left shoulder and authorized surgery and benefits. Following a hearing at which claimant asserted consequential injuries to her right shoulder and neck, a Law Judge amended the case to include a right shoulder injury, authorized medical tests of claimant’s neck and upper extremities for diagnostic purposes, and directed the parties to submit deposition transcripts regarding the issue of whether claimant suffered a neck injury. at a March 2007 hearing before a different LJ and without the submission of depositions related to the neck injury, the parties stipulated that claimant suffered a 25% schedule loss of use of her left arm and a 20% schedule loss of use of her right arm. When the WCLJ asked if there were “[a]ny other body parts,” claimant’s counsel replied, “[n]o.” The parties’ agreement which awarded the claimant approximately $55,000 in total benefits and indicated that “[n]o further action [was] planned” in the case.

Then one month later, claimant moved to reopen the claim, seeking benefits related to her neck injury, right thumb and right ring finger. The case was referred back to the original WCLJ, before whom claimant conceded that she had agreed to forego her neck claim when she entered into the stipulation. Claimant asserted, however, that her neck condition had since deteriorated. The WCLJ noted that claimant’s neck had been symptomatic since the date of the accident and concluded, as relevant here, that the claim for the neck injury and any claims flowing from that injury were barred by the parties’ stipulation. Finding that claimant’s bilateral carpal tunnel syndrome was linked solely to her neck injury, the WCLJ determined that there was no prima facie medical evidence of carpal tunnel syndrome. The Board affirmed, concluding that claimant had not been “forthright” about her intention to pursue the neck claim at the time she entered into the stipulation, and stating that “no further claim regarding the neck may be made at this time.” The Court in its affirmance wrote, “In light of the medical guidelines, the procedural history of this case, evidence that claimant’s neck was symptomatic at the time of the stipulation and the negative response of claimant’s attorney when asked by the WCLJ whether there were ‘[a]ny other body parts,’ the Board did not act irrationally in concluding that the stipulation barred pursuit of the neck claim and denying claimant’s application to reopen the case.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman(Hauppauge) for Home Depot USA, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Wilson v General Mills
May 6, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

AFFIRMED the Board’s ruling that claimant’s injury arose out of and in the course of her employment due to an assault and awarded workers’ compensation benefits. Claimant filed for benefits after a coworker struck her in the face with a work tool. The Law Judge ruled. and the Board affirmed that the assault upon claimant stemmed from work-related differences finding a sufficient nexus between the assault and the employment. The Court agreed that the claimant’s testimony was supported by an affidavit that claimant filed with the Equal Employment Opportunity Commission in support of her discrimination complaint, upon which the employer and its carrier heavily rely, which could be read as suggesting that at least some of the assailant’s offensive comments and conduct stemmed from a promotion and pay raise that claimant received in 2005. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday April 30, 2010 ▼

Hiser v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens

REVERSED the Board’s identical that the employer’s workers’ compensation carrier was entitled to offset its future compensation to claimant pursuant to WCL§ 29(4), to wit, one half of a $500,000 voluntary settlement paid pursuant to a policy of insurance is subject to the workers’ compensation carrier’s lien and offset rights under WCL§ 29. [In 2008, the Court reversed the Board’s determination that rejected claimant’s application for review of a Law Judge decision as untimely (2008 NY Slip Op 04981 [52 AD3d 915]).

The undisputed facts are that the claimant’s spouse died in a crash while in the employ of Richmor Aviation even though the plane was owned by Abrams Aviation. Case is established without controversy and paid benefits to claimant and surviving children. In addition to WC benefits, Richmor offered claimant a voluntary $500,000 settlement pursuant to the terms of an insurance policy purchased by and issued to Richmor. The policy required Richmor, as the first named insured, to request payment from the insurance company. Payment was to be made irrespective of legal liability and the claimant, individually and as executor of decedent’s estate, was to execute a release of all claims against Richmor and Abram’s. The Board found that the portion of the proposed voluntary settlement payable under the policy and attributable to Abram’s”constitutes a substitute for the usual third party recovery” and is subject to the lien and offset rights of the compensation carrier provided for in Workers’ Compensation Law § 29. [The Board found that $250,000 of the $500,000 was attributable to Abram’s.] The Court, in reversing, concluded such finding is not supported by substantial evidence.

In summary the Court agreed that WCL §29 does provide for reimbursement for “whenever a recovery is obtained in tort for the same injury that was a predicate for the payment of compensation benefits.” The Court noted that the Board relied on Matter of Ryan v General Elec. Co. (26 NY2d 6 [1970]) which was misplaced because the accident in Ryan was attributable to a US Navy jet whereas the parties in this case agreed that the crash was caused by “an act of mother nature.” The decision continued, “. . . there is no evidence that Abram’s caused decedent’s death or committed any wrong that contributed to his death and the Board’s decision to find Workers’ Compensation Law § 29 applicable to that portion of claimant’s voluntary settlement attributable to Abram’s, under these facts, was not supported by substantial evidence.” Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Whiteman v Richmor Aviation
April 29, 2010 NYS Appellate Division, Third Department
§29(4) 3rd Party Liens

The current case arises from the same aircraft accident as in Matter of Hiser v Richmor Aviation, Inc. (___ AD3d ___ [decided herewith]) and involves the identical issue. For the reasons set forth in Hiser, we reverse and remit to the Workers’ Compensation Board for further proceedings. Prevailing party represented by: James E. Buckley of counsel to Buckley, Mendleson, Criscione & Quinn (Albany) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday April 23, 2010 ▼

Thompson v Wiltsie Constr
April 22, 2010 NYS Appellate Division, Third Department
§ 21(4): Intoxication

AFFIRMED the Board’s ruling that claimant sustained a compensable injury and awarded workers’ compensation benefits. After the claimant filed for benefits after an injury sustained at work, the employer controverted the claim because a urine sample taken from the claimant approximately 18 hours after the incident revealed the presence of an abnormally high level of marijuana metabolites. The Court agreed with the Law Judge and Board that “the statutory presumption that the claimant’s injury was not solely caused by his intoxication” per WCL §21 (4) precludes disallowing a claim unless “all the evidence and reasonable inferences therefrom allow no other reasonable conclusion than that the intoxication intoxication is the sole cause of the claimant’s injury.” In addition, the claimant testified that while working on a lift, he removed his safety harness, climbed out of the lift, lost his balance, and fell. The Court then added “while claimant’s removal of his safety harness may have been in violation of the employer’s safety regulations, it is not a bar to his recovery of workers compensation benefits under the circumstances presented here.” Prevailing party represented by: Christopher Richmond, Oswego, for William Thompson, respondent and Iris A. Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Maher v NYS Div. of Budget
April 22, 2010 NYS Appellate Division, Third Department
Course of Employment: in and out of

AFFIRMED the Board’s ruling that claimant’s injury did not arise out of and in the course of her employment and denied her claim for workers’ compensation benefits, after she fell from a second story roof at a hotel while attending a training conference. After an evening of consuming several beers, claimant and two coworkers returned to the hotel where they had overnight accommodations and shortly after arriving at the suite of one of her coworkers, the claimant and two coworkers stepped onto the roof of the hotel which was accessible only via the bathroom window. Shortly thereafter, claimant placed her hands on the railings surrounding the roof, heard a loud crack, and fell to the ground below. Although the Law Judge allowed the claim, the Board reversed by concluding that “claimant deviated from her employment by climbing out onto the roof, that such action was not reasonable and, hence, claimants injury did not arise out of and in the course of her employment”. The Court summarized its decision by writing, “Based upon our review of the record as a whole, we cannot say that the Board erred in concluding that claimant’s conduct – accessing the hotel roof via the bathroom window – was unreasonable under the circumstances.” Prevailing party represented by: Thomas A. Phillips of counsel to Gregory J. Allen, New York State Insurance Fund, for NYS Division of the Budget and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Lopez v 395 Brook Realty Corp.
April 22, 2010 NYS Appellate Division, Third Department
§ 23: Late or Interlocutory Appeal

AFFIRMED the Board’s ruling that the application by the employer for a review of the Law Judge decision was untimely. Two months after the Law Judge found an employer-employee relationship between the claimant and the employer and awarded benefits to the claimant, the employer filed an application review which was denied by the Board per WCL §23. The Court referenced the Board’s decision which, in turn, “noted that [the employer] failed to acknowledge at the time of the filing that the application was untimely or offer any explanation as to why the application could not have been timely filed.Under these circumstances, the Board’s denial of the application for review as untimely was not an abuse of its discretion.” Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent.Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday April 16, 2010 ▼

McLean v Amsterdam Nursing Home
April 15, 2010 NYS Appellate Division, Third Department
§ 25-a: Advance Compensation

REVERSED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law § 25-a. The claimant, who sustained a work-related injury in 1996 and whose case was closed in 1997 when she returned to work, applied to reopen the case in 2006. Evidence was submitted showing that the claimant was absent from work, due to her 1996 work-related injury, for numerous days from 2002 to 2005 for which she was paid. After several hearings, the Board ultimately decided liability for the claim had shifted to the Fund. The real issue was whether the payments were “[a]dvance payments that are made voluntarily, in recognition of an employer’s liability, [and] are payments of compensation” or “[w]ages paid and credited to accumulated sick leave are not payments of compensation“. In reversing the Board and affirming the Fund, the Court determined that “[i]n the absence of proof regarding the manner in which claimant was compensated for the time absent from work, the Board could not properly assess whether the employer made an advanced payment of compensation precluding a transfer of liability to the Special Fund.” Prevailing party represented by: Jennie J. Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Zahm v National Fuel
April 15, 2010 NYS Appellate Division, Third Department
§123: Late Appeal (7 years)

REVERSED the Board’s ruling that claimant had a 20.4% schedule loss of use for binaural loss of hearing. Claimant worked for the employer in numerous capacities - first as a data entry clerk and then in various customer-related positions - for 31 years until she retired in July 2005. A preemployment hearing examination conducted in 1974 revealed that claimant had a measurable loss of hearing at that time. In August 2007, claimant filed this claim contending that she had sustained an occupational hearing loss due to long-term noise exposure “from being on the telephone for years.” The Board affirmed the Law Judge’s finding of a 20.4% schedule loss of use for binaural loss of hearing. While there was no dispute that the claimant suffered a hearing loss, the Court agreed with the employer the record as a whole fails to establish “both that claimant was exposed to injurious noise during the course of her employment and that [the medical testimoney did not support her contention that] her documented hearing loss was causally related to her employment.” The Court ended its opinion by writing “[b]ased upon our review of the record as a whole, we cannot say that her doctor’s testimony was sufficient to establish the requisite causal connection between claimant’s loss of hearing and her employment.” Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday April 9, 2010 ▼

Rebeor v Moose Lodge #1280
April 8, 2010 NYS Appellate Division, Third Department
§ 25-a: no current liability

AFFIRMED the Board’s ruling that liability shifted to the Special Fund for Reopened Cases pursuant to Workers’ Compensation Law §25-a. Originally injured in 1988 and awarded a 10% schedule loss of use with less payment made in 1990, the claimant in August 2007 was denied his request for payment for additional medical treatment. The carrier sought relief under WCL §25-a debt which time a law judge authorized medical treatment and found that liability had shifted to the Special Fund.

The Court wrote “The Special Fund argues that there has been no evidence of medical treatment since 1990 and, thus, no actual liability to shift. However, liability for compensation shifts to the Special Fund when an application to reopen a case is made after a lapse of seven years from the date of the injury and a lapse of three years from the date of the last payment of compensation (see Workers’ Compensation Law § 25-a. While it may be true that there was no current liability to be shifted to the Special Fund, we find no abuse of the Board’s discretion in reopening claimant’s case and determining that he has a potential claim for further medical treatment that would be the responsibility of the Special Fund. Nor are we persuaded that the Board improperly departed from its own precedent. Contrary to the Special Fund’s contention, the Board has sufficiently explained its reasons for shifting liability despite the absence of payable medical benefits in Matter of Del Labs (2009 WL 193434, *4-6 [WCB No. 2940 8739, January 14, 2009]). Although that decision postdated the Board’s decision here, it would provide the necessary explanation if we were to remit the matter as we did in Matter of Rogers v Del Labs (52 AD3d 1129 , 1130 [2008]).” Prevailing party represented by: [ED.NOTE: corrected 04/10/10] Gary G. Tyler of counsel to Hinman, Howard & Kattell (Binghamton) for Moose Lodge #1280 and another, respondents Click here to read the full court decision of the NYS Appellate Division, Third Department….

Wadsworth v K-Mart Corp.
April 8, 2010 NYS Appellate Division, Third Department
Course of Employment: Assault

REVERSED the Board, who in turn reversed the Law Judge, when the Board ruled that the claimant sustained an injury arising out of and in the course of her employment. Claimant’s personal vehicle was stolen while she worked as an assistant store manager. A week later, on seeing the car idling in the store’s parking lot, she approached the vehicle getting into an altercation with the driver. During the scuffle, a store employee who was acquainted with claimant’s assailant exited the store, jumped into the vehicle and began driving away. Claimant’s assailant then ran off, eventually got into the vehicle with the employee, and the two fled. Her claim for benefits based on psychological damages were disallowed by a Law Judge found that her injuries did not arise out of employment. The Board reversed finding the injuries were sufficiently related to her employment to be compensable. While the employer/carrier conceded the assault occurred course of employment, they rebutted the contention that the injuries arose out of her employment by submitting evidence that the assault was motivated by curly personal animosity. While noting that the Board can award benefits if “There is a nexus, however slender, between the motivation for the assault in the employment . . ., the decision must be based on such relevant evidence has a reasonable mind might accept as adequate to support a conclusion.” It seemed that although the Board used the involvement of a coworker to prove the nexus, the Court found the involvement to be peripheral and not providing a nexus. After further explanations, the Court concluded that the Board’s determination was arbitrary and should be reversed, thus supporting the Law Judge’s original determination. Prevailing party represented by: Susan R. Duffy of counsel to Hamberger & Weiss (Buffalo) for appellants. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Kitkas v Windsor Place Corp.
April 6, 2010 NYS Appellate Division, 2nd Department
§ 11: Grave Injury

REVERSED order of the Supreme Court, Queens County which denied the second third-party defendant/third third-party defendant, Boca Electric Corp. motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, on any matter relating to WCL §11. On January 22, 2003, the plaintiff was performing electrical work on a construction project in Long Island City and allegedly was injured when an electrical panel exploded. At the time of the accident, the plaintiff was employed by the second third-party defendant/third third-party defendant, Boca Electric Corp. In support of its motion for summary judgment dismissing all causes of action for contribution and common-law indemnification asserted against it, Boca met its burden of demonstrating that the plaintiff’s injuries to his right hand did not constitute a “grave injury” within the meaning of WCL §11. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday April 2, 2010 ▼

Howard v Stature Electric
April 1, 2010 NYS Appellate Division, Third Department
§114-a Fraud & Alford Plea

RESCINDED and sent back for reconsideration the Board’s ruling that claimant violated Workers’ Compensation Law § 114-a.. Although the claimant’s original claim of a work-related injury was properly established, the claimant was subsequently indicted on various charges of fraud and a violating Worker’s Compensation Law §114. In June 2007 after entering an Alford plea to insurance fraud of the fourth degree and he was convicted and sentenced accordingly.

At a subsequent hearing, SIF asked the WCLJ to find that claimant’s plea and conviction disqualified him from receiving benefits pursuant to WCL §114-a. Although the claimant requested a hearing, the Law Judge determined that the criminal proceedings did not involve a full hearing on the merits and, thus, claimant was entitled to a hearing. SIF sought review. The Board found that,based upon claimant’s criminal conviction, a violation of WCL §114-a§, modified the WCLJ’s decision, and returned the case for the determination of appropriate penalties.

In recognizing the Boards reliance upon the equitable doctrine of a collateral estoppel in rendering its decision, the Court ruled that “the determinative issue was not whether claimant had been convicted of a crime, but whether he ‘knowingly ma[de] a false statement or representation as to a material fact’ for the purpose of obtaining workers’ compensation benefits or influencing a payment determination. An Alford plea, by its very nature, is accepted on the explicit basis that the person making the plea does not admit having committed the charged acts . On the contrary, he made no factual admissions, his counsel specified that he was pleading guilty ‘without an admission of wrongdoing’. Thus the question of whether claimant committed the charged conduct, though decisive in determining whether he violated Workers’ Compensation Law § 114-a, was not determined in the criminal action. Thus, the requirement of identicality was not met, and collateral estoppel does not apply. Claimant must be provided ‘an ample opportunity to address the issue of whether he knowingly misrepresented material facts’ sufficient to establish the charged violation.” Prevailing party represented by: Christine A. Scofield, Syracuse, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Stojanov v Eastman Kodak Company
April 1, 2010 NYS Appellate Division, Third Department
§ 23: What does “late” mean?)

RESCINDED and sent back for reconsideration the Board’s ruling that claimants applications to review were untimely. After a Law Judge decision dated May 7, 2008 the claimant’s council on June 6, 2008 mailed application seeking Board review per WCL §23. Because the applications were not received by the Board within 30 days, the Board found that they were untimely (see 12 NYCRR 300.13 [a], [e]) and denied claimant’s requests for Board review. In Matter of McLaughlin v Saga Corp. (242 AD2d 393, 394 [1997]), this Court concluded that the mailing of an application for Board review within the 30-day limitation period “was sufficient to satisfy the time limitation of Workers’ Compensation Law § 23.” Subsequently, the Board promulgated the current version of 12 NYCRR 300.13 (a), which provides that an “application is deemed filed with the [B]oard on the date of actual receipt of such application by the [B]oard“. This amendment is obviously at odds with this Court’s holding in McLaughlin and, as such, violates the rule that “[a] court’s affirmance or reversal of an administrative body’s interpretation of its governing statute becomes binding on the agency.” Therefore, the Court reversed the Board stating that the Board could not promulgate administrative regulation that was inconsistent with this Court’s interpretation of WCL §23, remaining the case back to the Board for further proceedings on the original issue raised by the claimant. Prevailing party represented by: James G. Brooker, Rochester, for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Turdo v Dellicato Vineyards
April 1, 2010 NYS Appellate Division, Third Department
ATF Compensation: Mandatory vs Discretionary

RESCINDED and sent back for reconsideration the Board’s ruling that the New York State Insurance Department Liquidation Bureau was required to make a deposit into the Aggregate Trust Fund pursuant to WCL §27 (2). After awarding claimant widow death benefits, the Law Judge directed that the Liquidation Bureau, which had assumed liability for the claim following the liquidation of the original carrier, deposit the present value of any unpaid death benefits into the ATF. The substantive but very narrow issue in this case was whether or not the Liquidation Bureau was “an insurance carrier which is a stock corporation or mutual association” in which case “the Board shall immediately compete the present value thereof require payment of such amount into the ATF” (WCL §27 (2)). The Court agreed that, although the Board set forth a rational argument for considering the Liquidation Bureau as standing in the shoes of the insolvent insurer, the Court determined that the Legislature left no room to find that the Liquidation Bureau is subject to the mandatory deposit requirements of WCL §27. Essentially the ruling by the Board requiring payment to the ATF should have been based on the Board’s discretionary authority rather than a mandatory direction for which reason the Court, in its five page decision, returned the matter to the Board for consideration of the discretionary issue. Prevailing party represented by: Daniel A. Tufo of counsel to Rothstein & Tufo (Commack) for appellant. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday March 26, 2010 ▼

Cassata v General Motors Powertrain
March 25, 2010 NYS Appellate Division, Third Department
§25a: What is proper filing of the C-250

AFFIRMED the Board’s ruling that the self-insured employer was not entitled to reimbursement by the Special Funds Conservation Committee due to the late filing of the C-250 seeking reimbursement per WCL §15(8).

Although the injury occurred on September 14, 1998 the case was neither indexed or filed until November 22, 2000. At a May 2005 hearing, a dispute arose as to whether or not self-insured employer had filed with the Workers’ Compensation Board a claim for reimbursement from the Special Funds (form C-250) as required by WCL §15(8)(f). As neither the Board nor the Special Funds Conservation Committee had a copy of the form, the Law Judge directed the employer to provide evidence that it was timely filed. In, 2007, the employer filed with the Board a form C-250 bearing the date “November 30, 2000,” which it argued had been timely filed, but must have been misplaced by the Board. While the record showed that the Special Funds had hand written notes referencing the C-250 and “WCL §15.8″ dating back to “11/30/00″, the Special Funds argued that this document did not establish the employer’s timely filing of a form C-250 with the Board and that it had not waived the timely filing requirement. The Board affirmed the Law Judge finding that the form C-250, filed in 2007, was untimely and, thus, the employer was not entitled to reimbursement from the Special Funds, which it discharged. After reiterating long-standing case law to the effect that “A prerequisite to reimbursement, however, is the filing of a timely claim with the Board”[emphasis added by the Appellate Court]) on a form prescribed by the Board’s chair, here, form C-250…” , the Court agreed with the Board that it was undisputed that the Board’s file did not contain a form C-250 in 2005, when a finding of permanency was made. No documentation existed in the record to establish that the form C-250 bearing a 2000 date was sent to the Board until 2007. Court agreed that the Board’s decision was based on substantial evidence, notwithstanding that the evidence would also have supported the contrary conclusion of timely filing. Prevailing party represented by: Jennie Choy of counsel to Steven M. Licht, Special Funds Conservation Committee for Special Disability Fund, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

D’Avilar v New York Univ. School of Medicine
March 25, 2010 NYS Appellate Division, Third Department
Causal Relationship: Consequential while at treatment

AFFIRMED the Board’s ruling that claimant did not sustain causally related consequential injuries incurred after a session of therapy.

In August 2005, claimant sustained a work-related injury to her right knee, requiring reconstructive surgery and physical therapy and her claim was established. In 2006, right after undergoing physical therapy, she slipped and fell at that facility incurring additional injuries which the Law Judge determined were consequential to her initial compensable injury and amended claim. The Board reversed, concluding that the later injuries were not compensable because they occurred while she was engaged in personal errand. While agreeing with the claimant that injuries sustained in the course of traveling to and from treatment for a cause elite related injury may warrant a workers’ compensation claim, the Court agreed with Board that the claimant’s decision to get coffee after treatment “add[ed an additional] factor which weakens the connection between the initial consequential injuries” sufficient that “the Board could rationally conclude that the work-related aspects of claimant’s trip had ended and that the causal connection between claimant’s employment and her off-duty injuries was severed by her pursuit of a personal errand.” Prevailing party represented by: Theresa E. Wolinski of counsel to Foley, Smit, O’Boyle & Weisman (Hauppauge)for NYU School of Medicine and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday March 19, 2010 ▼

Sacco v Mast Advertising/Publishing
March 18, 2010 NYS Appellate Division, Third Department
Disability: Total Industrial
§ 14: Average Weekly Wage - Commission Salesman

ISSUED A MIXED DECISION AFFIRMING the Board’s ruling that claimant was totally industrially disabled but AMENDING his average weekly wage.

Claimant, working as a salesman, injured his back in the course of employment after which his claim was established and based on a C-240 form, his average weekly wage was set for $447.36. Originally classified with a permanent partial disability he was reclassified in 2003 with a marked permanent partial disability.

In 2007, he sought a finding of total industrial disability and requested that his average weekly wage be recalculated pursuant to WCL §14, arguing that it should have been based on the wages of a similar worker at the time of his injury, rather than his actual wages. Although the employer indicated that, since it maintained payroll records only seven years, no such records were available for an employee at the time of claimant’s injury, the Law Judge found that the C-240 filed in 1992 was “improper on its face” and modified claimant’s average weekly wage to $624 per WCL §14 (3). The Board affirmed.

Substantial evidence supported the Board’s determination that claimant suffers a total industrial disability, a determination that would not be disturbed if supported by substantial evidence. The Court agreed with the Board that the combination of testimony from the claimant and a rehabilitation counselor substantially offset the testimony of the employer’s vocational counselor, thus affirming the finding of total industrial disability.

As to the Board’s action of modifying the claimants average weekly wage, the Court made three determinations. First, the court dismissed the employer’s claim regarding the C-240, basing it on the employer’s original failure 1992 to submit information regarding wages of a similar worker. Second, the Court rejected the carrier’s contention that the Board could not modify the 1993 decision, writing that the Board is empowered to “make such modification or change with respect to former findings, awards, decisions or orders relating thereto, as in its opinion may be just.” Third, the Court supported the Board’s refusal to invoke the doctrine of laches to bar claimant from seeking modification of his average weekly wage. The Court cited WCL §14(3) which directs that a claimant’s average annual wage be computed based on “such sum as . . . shall reasonably represent the annual earning capacity of the injured employee” in agreeing with the claimant’s contention that his earnings in the last 10 weeks of employment would most accurately reflect his earning capacity at the time of the accident, since he was a new employee and did not receive commissions in his first several weeks of employment. However, the Court did not affirm that amount because of an arithmetical error in the original decision, an error overlooked in the Board’s affirmance of the Law Judge decision. Prevailing party represented by: Steven Segall of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Grant v New York City Transit Authority
March 18, 2010 NYS Appellate Division, Third Department
Course of Employment: Lunch Break

AFFIRMED the Board’s ruling that claimant did not sustain an accidental injury on her lunch break as it was not in the course of her employment. Claimant had walked to a deli across the street from her place of employment when she and the deli clerk were both robbed at gunpoint. Her application for workers compensation benefits claiming she suffered from psychiatric disabilities resulting from the traumatic experience was approved by the Law Judge, finding the injuries arose out of and in the course of employment. In supporting the Board’s reversal and disallowance of the claim, the Court wrote, “Significantly, ‘lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employees during the lunch break’. The record here shows that claimant had discretion over where she spent her lunch break, the incident occurred away from her place of employment and no evidence was produced that the employer retained authority or control over her during that time or benefitted from her going to the deli.” Prevailing party represented by: Andrea Rocchio of counsel to Weiss, Wexler & Wornow (NYC) for New York City Transit Authority, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday March 12, 2010 ▼

Laezzo v New York State Thruway Auth
March 11, 2010 NYS Appellate Division, Third Department
§13-b Medical Bills: Who Pays for Gastric Bypass Surgery

AFFIRMED the Board’s ruling that as a result of consequential injuries from a work-related accident the injured worker qualified for gastric bypass surgery. The original 2002 accident resulted in a successful claim for injuries to his head, neck, back, and knees. He alleged that his morbid obesity contributed to his knee and back problems seeking authorization for gastric bypass surgery. Both the Law Judge and Board approved, holding that the surgery was causally related to the compensable injuries. The Appellate Court wrote in its decision that “The employer is obliged to pay for claimant’s medical care ‘for such as the nature of the injury or the process of recovery may require.‘” because the claimants treating orthopedic surgeon opined that the injuries imposed a sedentary lifestyle thus increasing his weight thus exacerbating his injuries, the surgery would be appropriate, a position supported by an independent medical examiner. In support of its decision the Appellate Court cited The Matter of Bolds v Precision Health, Inc., 16 AD3d 1007, 1009 [2005] in which a request for causally related breast reduction. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Cicinnati v Clare Rose, Inc.
March 11, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal after termination for cause

AFFIRMED the Board’s ruling that the injured worker voluntarily withdrew from the labor market. On March 30, 2007, four days after returning to work after having been out for more than two years due to a compensable back injury, claimant was terminated for insubordination arising out of an altercation that he had with a customer. He then sought benefits asserting his subsequent reduced earnings were due to his work-related injury. Despite concluding that claimant had been terminated for good cause, a Law Judge determined that claimant was permanently partially disabled, that he had not voluntarily withdrawn from the labor market, and that he was therefore entitled to awards beyond the date of his termination. The Board rescinded those awards, finding that claimant’s employment ended as a result of misconduct — not due to his compensable injury — and that he had failed to demonstrate an attachment to the labor market.

After finding that there was substantial evidence supporting the Board’s termination claimant was terminated for misconduct, the Court found that the claimant was not entitled to the inference that his loss of wages was attributable to his compensable injury but that he bore “‘the burden of establishing by substantial evidence that the limitations on his employment due to his disability were a cause of his subsequent inability to obtain employment.‘” Additionally, although the medical evidence indicated that claimant could perform full-time sedentary work, claimant admitted that he had made no effort to find employment of any kind since his termination. Since “the Board’s determination is supported by substantial evidence, the Court perceived no basis upon which to modify the Board’s decision.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Clare Rose, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Guz v Jewelers Machinist
March 11, 2010 NYS Appellate Division, Third Department
1130__Causal Relationship: Was there?

AFFIRMED the Board’s ruling that claimant did not have a causally related psychiatric disability. Five years after her injury during which time her case was established for bilateral carpal tunnel syndrome and amended to include a neck injury and an aggravation of a preexisting back condition, the claim was amended in 2007 to include major depressive disorder after which a Law Judge included this condition and continued the case to determine the extent of her disability. Upon review, the Board reversed the inclusion of the depressive disorder.

The carrier’s IME found some symptoms of depression, but opined that there were no psychiatric restrictions on her ability to perform her job and that her depression did not result in a disability. After a subsequent exam, he “concluded that claimant did not suffer a causally related psychiatric disability or even objectively suffer from a depressive disorder.” The Appellate Court agreed with the Board’s determination that the claimant’s treating psychiatrist’s position on causally related psychiatric disability was “entirely lacking in credibility.” The Court wrote “It is well settled that a claimant bears the burden of establishing, by competent medical evidence, a causal relationship between his or her employment and a disability. Further, the Board is the sole and final judge of witness credibility, and it alone can evaluate the factors relevant to determining whether the testimony of a party or witness is worthy of belief.” Prevailing party represented by: David W. Faber of counsel to Cherry, Edson & Kelly (Carle Place) for Jewelers Machinist, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Lupo v Cass
March 4, 2010 Appellate Term of the Supreme Court, First Department
Legal Malpractice

AGREED to grant defendants’ motion for summary judgment dismissing the complaint by Elaine Lupo, a workers compensation claimant, who sued her workers compensation attorney, Alan M. Cass, the defendant, for mishandling her case.

Although the Civil Court refused to dismiss the motion, the Appellate Court disagreed. They reviewed the complaints and the plaintiff’s “purported expert’s assertion” and summarized their rejection of the plaintiff’s positions as “nothing more than criticism of defendants’ considered, tactical strategy of how best to pursue plaintiff’s claim”, “insufficient to raise a triable issue”, and “rank speculation.” Click here to read the full court decision of the NYS Appellate Division, Third Department….

Dunn v American Tr. Ins. Co.
March 2, 2010 Appellate Term of the Supreme Court, Second Department
Which Court decides Jurisdiction

AFFIRMED The Appellate Court ruled that “[P]rimary jurisdiction with respect to determinations as to the applicability of the Workers’ Compensation Law has been vested in the Workers’ Compensation Board and . . . it is therefore inappropriate for the courts to express views with respect thereto pending determination by the board.” In this case, the defendant’s motion presented factual questions as to the plaintiff’s “status as either an independent contractor, as he claims he is, or as an employee of” a car service dispatch base, as the defendant claims. Accordingly, prior to rendering a determination on the motion, the Supreme Court should have referred the matter to the Workers’ Compensation Board for a hearing and determination as to whether the plaintiff is relegated to benefits under the Workers’ Compensation Law. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday March 5, 2010 ▼

Garifo v Pathmark Stores
March 4, 2010 NYS Appellate Division, Third Department
Voluntary Withdrawal

AFFIRMED the Board which ruled that claimant voluntarily withdrew from the labor market. After incurring injury in November 2001, claimant was awarded compensation until his return to work March 2002. He sought to reopen his case in January 2006, alleging that the worsening of his condition prevented him from working. In January 2007 a Law Judge affirmed causally related disability as of January 2006, continuing the case for further development of lost time. At a subsequent hearing, claimant testified he ceased employment in February 2006 when his employer closed the store where he worked, made no effort to seek employment or retraining, and was subsequently approved for Social Security disability benefits . The employer then raised the issue of voluntary withdrawal to which the claimant alleged total industrial disability. In November 2007 the Law Judge awarded additional benefits ruling that the claimant was relieved of his obligation to seek work given his receipt of Social Security disability benefits.

The Board reversed the Law Judge, finding that claimant’s loss of earnings and cessation of employment were unrelated to his compensable partial disability and, therefore, he was not entitled to an award of benefits for the period in question. Where, as here, claimant’s loss of employment was due to circumstances unrelated to his partial disability and no finding of involuntary retirement was made by the Board, “the burden rests on claimant to demonstrate ‘by substantial evidence that his disability contributed to his continued unemployment’”. Claimant testified that he probably would have continued to work had the employer not closed the store. Additionally, the weight of medical testimony established that claimant was capable of resuming employment despite any disability. This evidence, together with claimant’s admission that he made no effort to find employment or seek retraining, provides substantial support for the Board’s decision that claimant voluntarily withdrew from the labor market), notwithstanding evidence in the record that could support a contrary conclusion. Prevailing party represented by: Lauren Camo of counsel to Jones, Jones & O’Connell (NYC) for Pathmark Stores, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

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COMMENTARY & REPORTS

ON OUR OTHER PAGES

► This week’s Appellate Court decisions

►Commissioner Bios September updates

PRIOR COMMENTARY

► Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The Insider’s Recommendations to Improve Board Procedures

►Eliminating Oral Arguments: A MAP or a PIG?

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

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

►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, injured workers, court decisions, or any other subject, if you have one you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com.

Two Guest Letters/Editorials

May 21, 2010: I am quite pleased to publish two letters from two well-known workers compensation attorneys on issues relating to the Board’s administrative announcements.

My first guest COMMENTARY is from Roslyn Sackel, partner at Sawers & Sackel, a Hamburg NY firm specializing in representing injured workers. In her letter which was published May 14, 2010 in the Buffalo News, Ms. Sackel explains why the plan of the Workers Comp Board to move its Buffalo office from the Cyclorama Building to Ellicott Square makes no sense financially, but more importantly, why it will negatively impact on injured workers who need to go to the Buffalo office. In our COMMENTARY page, we reprint the entire letter, not just the edited version posted in the Buffalo News.

I would like to point out that after this week’s confirmations of Commissioners Willams and Lobban, both from the Buffalo District, there are now four commissioners from the Buffalo district: Bargnesi, Higgins, Williams, and Lobban. I would like to think that they have thoughts on this subject and that several of the collegaues would join them at the next full Board Meeting on June 15, 2010 to firmly and formerly advise the executives at the Board that the Buffalo office should stay where it is.

Our second guest COMMENTARY is from Aaron Zimmerman, who represents injured workers out of his office in Syracuse, New York. Mr. Zimmerman took a few hours from his schedule to attend the Board’s Webinar about the new MAP program and writes that not only was it a waste of time but explains why this new program will further decrease the rights of injured workers and further impede their ability to get fair treatment from the Board.

The only question I have is:

Will the Board read these letters to see who they can punish or will the Board read these and actually listen to what Ms. Sackel and Mr Zimmerman have to say?

An Attorney’s Says “Don’t Move the Buffalo Office, Again!”

May 21, 2010: New York State is attempting to change the location of the Buffalo office of the Workers’ Compensation Board which will affect claimants in a negative way and will unnecessarily spend taxpayer’s money. The Buffalo office of the WCB handles approximately 25,000 hearing per year, which equates to approximately 480 hearings per week. The new location is less convenient to disabled claimants in both logistical and financial ways; it poses potential safety issues to disabled claimants; and it will cost taxpayers in the range of $700,000.00 of unnecessary funds.

As of 5/10/10, the Office of General Services approved and signed a 10 year contract to move to the Ellicott Square Building. However, the contract still needs to be approved and signed by the Attorney General and the Comptroller, so there is still a small window of opportunity to stop this from happening.

Currently, the Buffalo WCB is located at the Cyclorama Building at 369 Franklin Street. The WCB is the only business/agency housed in the building, and all of the court rooms are located on the first floor. The building is centrally air conditioned. Once a claimant enters the building they are greeted and directed to the appropriate areas to await their attorneys. The building has a large on-site parking lot immediately adjacent to the building’s entrance, with handicapped parking very close to the entrance. Claimants can park there free of charge.

Albany’s plan is to move the Buffalo WCB to the Ellicott Square Building at 295 Main Street. There is no immediately adjacent parking, and the parking will not be free. Claimants will have to pay for the parking themselves, which could present a financial hardship for claimants living on compensation benefits or for those who are receiving no benefits and are fighting with the insurance company for payment of benefits.

Logistically, the Ellicott Square Building is located in a much more congested part of the city where parking is at a premium and, as mentioned above, is not free. Claimants will have to drive around this congested area to find an available pay-to-park lot. Unfortunately, most of the parking lots surrounding the Ellicott Square Building already accommodate the people who work in that area on a daily basis, and they fill up quickly. Most importantly, even after driving around to find an available pay-to-park lot, disabled claimants will have to walk varying distances from those lots to reach the building.

The Ellicott Square Building sits on an entire city block, encompassing Main Street, Washington Street, South Division Street, and East Swan Street. The handicapped entrance is only located on the South Division Street side of the building. If handicapped claimants find available parking on the Main Street side of the building, they will have to walk all the way around the city-block sized building to access the handicapped entrance on South Division Street. Once inside the large building, claimants who utilized the handicapped entrance will then have to walk all the way back to the Main Street side of the building to access the elevators.

Once finally inside the building, claimants will have to make their way to the area on the fourth floor that is going to house the WCB. The experience of extra driving to find parking, as well as walking extra distances both outside and inside the building, will be physically and mentally taxing to the disabled claimants. In addition, the fact that they will have to pay for parking that was previously free is an additional expense for them at a time when they are struggling to meet expenses due to their disability and loss of wages.

The Ellicott Square Building has never been updated to accommodate a central air-conditioning system. Apparently, Albany plans on trying to cool the fourth floor WCB location using singular window units. The noise of window units would obviously be a distraction during hearings, as well as during pre and post-hearing discussions with claimants. In addition, it is questionable whether mere window units could sufficiently cool the fourth floor space that houses the significant number of people present at the Buffalo WCB on any given day. Remember that the Buffalo office of the WCB handles approximately 25,000 hearing per year, which equates to approximately 100 hearings per weekday.

The Ellicott Square Building was built in 1896 and has narrow, antiquated stairwells. In cases of emergency, such as fire or bomb threat (which just happened at the Ellicott Square Building in mid-April), all disabled claimants would have to evacuate from the fourth floor using these stairwells, as is required in any emergency evacuation. The numerous claimants present at the WCB on any given day would have to maneuver down four flights of these narrow stairwells as firefighters and response personnel are maneuvering up them. This seems potentially impossible and potentially catastrophic. We are yet unaware of whether there is a fire-proofed room available for the disabled claimants who are not ambulatory and require wheelchairs and/or walkers, and cannot maneuver down the stairwells during an emergency.

Seven months ago, NYS spent approximately $700,000.00 when it had to move the Buffalo WCB from the Statler Towers to the Cyclorama Building due to the condition of the Statler. Moving again, to the Ellicott Square Building, when the current location at the Cyclorama Building remains available, would most likely cost another approximate $700,000.00 of taxpayer’s dollars. That’s a total of $1,400,000.00 in taxpayer money for two moves within a seven month period.

Supposedly, the bid from the Ellicott Square Building was the lowest, but that bid apparently only included the rent. It did not include the utilities, the cost of air conditioning window units, and the potential cost of the state employee parking, which is free right now at the Cyclorama Building. The bid from the Cyclorama Building reportedly included rent, utilities, central air-conditioning, and the benefit of free parking.

Relocating the site at this point makes no sense when one considers the expense of the move from the Statler to the Cyclorama Building just seven months ago, and especially when one considers the current site’s convenient first floor access, handicapped accessibility, and free on-site parking.

I have practiced workers’ compensation while the Buffalo district was located at the Donovan Building, the Statler Towers, and currently the Cyclorama Building. There is no question in my mind that the current location has positively affected the claimants, financially, emotionally, and behaviorally. Their positive experience at the convenient Cyclorama Building translates to a positive experience for their attorneys, the carrier’s attorneys, the Judges, the court reporters, the security staff, and the WCB administrative staff. I can foresee that the claimant’s negative experience from the inconvenience of the Ellicott Square Building will unfortunately result in a negative experience for all involved.

The NYS WCB is supposed to be a customer-service oriented administrative system that services the needs of the people of the State who were injured while performing their jobs. Certainly, the most important consideration here must be the safety and convenience of the disabled claimants attending their hearings, and the Ellicott Square Building is not the best choice available to the State. When one examines the factors involved, it is hard to understand why Albany would make a decision with such a negative effect on those it is supposed to be serving.

I strongly encourage the public to contact Comptroller Thomas DiNapoli at www.osc.state.ny.us, 847-7122, (518)474-4044, 65 Court Street, Room 504, Buffalo, NY 14202, and Attorney General Andrew Cuomo at www.oag.state.ny.us, 853-8400, (518)474-7330, 350 Main Street, Buffalo, NY 14202, to stop them from signing this contract and stop this move from happening. In addition, although not as effective due to current circumstances, the public can contact their district’s NYS Assembly Representative and State Senator, the Office of General Services, and Governor Patterson to voice their opinions. Do not contact the Buffalo office of the WCB, as the decision does not lie with them, it lies with Albany. Time is of the essence.

Roslyn Sireci Sackel, Esq.
Sawers & Sackel, LLP
81 Buffalo Street
Hamburg, NY 14075-5003
(T) 716-648-1300 (F) 716-648-1700

An Attorney’s Review of
Managed Adjudication Path (MAP)

May 21, 2010: I just spent more than an hour listening to the Board’s presentation about the new MAP procedures, and how these procedures would not alter the substantive rights of the parties. Talk about the Board’s feigned concerns over claimants “wasting” their time by going to hearings to protect their rights– listening to the Board’s MAP Webinar on 5/7/10 was a complete waste of time.

This program was nothing more than propaganda to support the Board’s foregone conclusion that there WILL be less hearings. There is no question the fastest way to reduce “friction” in the system is to reduce the the number of hearings. Of course, the quickest way to reduce hearings is to reduce attorney representation of injured workers. And all the Boards needs to effect this goal, is to stop allowing attorney fees. For there are statistics which confirm the Board holds a lesser number of hearings for an unrepresented claimant as compared to a represented claimant.

My office has represented injured workers for more than 30 years. I have represented literally thousands of injured workers. Almost without exception, my clients want hearings. I speak from experience, and should the Board choose to investigate, the Board will find statistical proof injured workers who are represented by an attorney receive significantly greater benefits than the unrepresented injured worker. All the Board needs to do is look at the award of indemnity benefits granted to represented claimants as opposed to unrepresented claimants. A similar analysis is made by most insurance carriers on a regular basis and they know this statement is true.

A hearing before a law judge allows the parties an opportunity to be heard–this is called Due Process. The right to file an objection to a Proposed Decision, issued in the back-room by some nameless and faceless bureaucrat, is not Due Process. The reason so many Proposed Decisions are not objected to is because claimants do not understand the significance of the Proposed Decision. Upon receipt of the Proposed Decision, injured workers frequently do nothing–to their detriment. This is not substantial justice.

If the Board truly believes claimants do not want hearings, then send unrepresented claimants a form telling the unrepresented claimant that they can waive their right to a hearing by signing and filing the form. Then publish the statistics. We will see how many unrepresented claimants affirmatively waive their right to a hearing. Of course, this proposed procedure will never occur– because the Board has maliciously and purposely skewed the procedures and facts in an attempt to limit hearings. It is obvious this Board does not want to hear, nor does the Board seek, the truth. The Board has an agenda to limit hearings– and represented claimants create “friction” in the system as their rights are litigated.

It is submitted the vast majority of the practicing Bar believes the Board will unethically and improperly use the new MAP procedures to further limit hearings and further limit fees to claimant’s attorneys. If a fair attorney fee will not be approved by the Board, claimants will be quickly find they are unable to find an attorney who will represent their interests. And this is the true goal of the Board’s “procedural” changes. Represented claimants will demand justice–and justice takes time, effort and money. The evidence is clear the Board can not and will not “spend” the time, effort or endure the expense needed to justly administer the workers compensation law.

This is the only system where the Administration “protects” claimants by reducing attorney fees after a represented injured worker agrees the fee is fair and reasonable; and then further “protects” the injured worker by refusing to hold hearings where their grievances can be heard.

For the most part judges make decisions without actually listening to testimony. A transcript is enough. Now, the Board wants to make decisions without hearings. Every day there is less and less trust and respect in the Board. The proposed MAP procedures show why everyone who is required to adjudicate workers compensation claims does not trust nor believe the Administrators of the workers compensation system.

I urge the MAP procedures not be implemented and that every claim be physically heard at a hearing held before an administrative law judge.

THE LEGAL TEAM
Aaron Zimmerman, Esq.
117 South State Street
Syracuse, NY 13202
[T] 315.475.7777 [F] 315.475.4225
az@zipilaw.com

Judge Hellerstein correct: Legal Fees
for WTC Settlements Unreasonable

March 26, 2010: Federal Judge Alvin K. Hellerstein of United States District Court in Manhattan rejection of the proposed Ground Zero Settlement was correct, particularly with regards to the legal fees which are excessive when compared to other jurisdictions.

Based on my 12 years service as a Commissioner with the New York State Workers Compensation Board overseeing nearly 15,000 settlements as well as hundreds of cases in which the issue was legal fees, the filing and settlement of claims for these 10,000 workers involves legal work, and therefore a fee structure, more in line with the 10% to 15% in the workers compensation system than the 30% to 40% in civil litigation.

The similarities between these Ground Zero claims and those in workers compensation are many. The money necessary to make payment of the settlements has already been set aside and, unlike some civil litigation, the attorneys here do not have to worry about collecting their fees. There is no question that these claims are causally related in terms of injuries and illnesses. And there are minimal difficulties in establishing the identity of the injured workers.

The only issues being controverted deal with the specific injuries and illnesses of the workers, the impact of this medical condition on their future earnings capacity, and the amount of medical treatment that may be necessary in the future.

In the New York State Worker’s compensation system, final settlements known as §32 waiver agreements range from $5,000 to $150,000, similar in amounts to those proposed under the Ground Zero Settlement. If there were no prior fees paid, the §32 fees awarded were usually 10%-15%, occasionally not including medical expenses.

At this time, the original Ground Zero settlement projects legal fees of 30% to 40% which on a $600,000,000 settlement comes out to approximately $200,000,000. Based on the workers compensation settlements I approved in one four-year period, the average fee was 11.4% on an average settlement of a $46,300,. Were this more appropriate fee schedule used by Judge Hellerstein, each worker would receive an additional $13,000 while the attorneys would still receive $68,400,000.

In those cases in which the medical portion of the settlement was substantial, that amount was usually excluded before the fees were calculated. The concept behind not paying fees on medical expenses is based on the premise that medical expense reimbursements in the settlements are to pay for the entirety of the injured workers’ proposed future medical expenses. To deduct 15% for the legal fee is in effect requiring the injured worker to make a 15% copayment for his medical treatment. That a 30% or 40% “copayment” could be considered in these Ground Zero cases is at best an “injustice” and may in fact be the reason that the total fund is so high: in order for the injured worker in a civil case to get $100,000 to cover his projected future medical costs of $100,000, the settlement would have to be for a gross of $166,666 to allow for the 40% legal fee.

Putting aside the issue of the legal fee on medical expenses, the workers compensation system in New York and probably in the other 49 states is structured such that the handling of claims with the appropriate forms, procedures, and hearings are fairly consistent, thus minimizing the need of the workers compensation attorneys to reinvent the wheel every time that they have a new case, thus lowering their administrative costs as compared to a civil litigator.

Processing of the claims for these 10,000 workers would appear to also be consistent from one case to the next such that the 10% to 15% fee which has enabled attorneys in the New York State workers compensation system, who have successfully practiced for many decades, should be more than enough for attorneys involved in the Ground Zero settlement.

In fact I would even suggest that Judge Hellerstein consider hiring the services of those law firms specializing in the handling of workers compensation for injured workers. These attorneys are accustomed to handling large numbers of cases at a time but still have the ability to provide the injured workers and their families with the care and attention necessary to not only do financial justice to their clients but also to make them feel like human beings.

These workers who rushed to the aid of their fellow citizens without thinking about the future repercussions deserve to be treated with proper dignity. The issue is not one of a settlement of 10,000 cases but the settlement of a claim by 10,000 different individuals.

The Insider’s Recommendations
to Improve Board Procedures

March 15, 2010: The New York State Workers Compensation Board has been preparing a number of basic changes in operations and procedures which involve judges, conciliators, and court reporters, with justifications ranging from the budgetary requirements, to expediting the process, to finding more efficient ways of getting cases done faster.

In reality there are far simpler solutions for which the annual cost could well be under $30,000 a year. Of course this may well entail a solution which for some may be a totally unacceptable:

Use electronic transcription only for hearings on §32 waiver settlements
Have the Commissioners do all the §32 hearings

COURT REPORTERS

Let’s put aside for the moment the fact that the Board justifies its need for electronic transcription because of the shortage of court reporters while failing to cite one example of a hearing adjourned for the lack of a reporter. A legitimate review of this issue would ask the following question:

How many hearings were transcribed by reporters and for how many of these were the minutes actually needed?
Is there any category of hearing for which minutes are never needed, or often needed?

While I cannot answer that question for hearings conducted by law judges and conciliators, I can answer it with some numbers from 2002 when the Commissioners conducted the hearing for §32 waiver agreements. In 2002, I participated in approximately 1,100 §32’s, including about 30 or 40 of these which I heard twice as they were adjourned for a second hearing. But it was a rare month when after the hearing was completed that one of the attorneys asked for a copy of the transcript, almost always for cases adjourned because of some substantive legal issue.

At that time there were about 10,000-12,000 hearings held a year by the Commissioners. I know that many Commissioners approved virtually every agreement they heard so that I am sure that there were probably not more than 100 §32 hearings a year which required minutes.

As a result there were a lot of court reporters taking a lot of time taking minutes that were never used. Perhaps the trial of electronic transcription proposed by Chairman Beloten should be done at the §32 hearings.

Having participated in oral arguments as a Commissioner as well as §32’s and having sat in on a number of hearings conducted by the law judges, I can attest to the fact that some of the problems with crosstalk that exist in regular hearings do not exist at §32 hearings. The Commissioners are not under the time constraints as are the law judges. Thus the results of electronic transcription at these hearings, in such a simpler atmosphere, would prove their validity, or disprove it.

§32 BY COMMISSIONERS

Of course, for the above recommendations to take place, the §32’s would have to be given back to the Commissioners. Actually there was no legitimate reason for these to have been taken from the Commissioners in the first place. Originally every §32 agreement was heard before a Commissioner. Then, it was decided that waiver agreements which would have previously qualify as Lump Sum Settlements could be done administratively. Then additional categories were added to the list of cases that could be done administratively such that a goal of 70% administrative versus 30% hearing was set. The reason the §32 cases were taken from the Commissioners was the specious excuse that it would be best if all the claimants had a formal hearing and there were too many §32’s for the Commissioners to do. Actually one reason for the change was that a few commissioners did not want to have to attend hearings.

In the beginning years (1997-2000), the Commissioners were able to take care of 10,000 to 12,000 cases a year even though this meant that all the Commissioners had to actually work and attend hearings; some even had to travel. And I am referring not just to Commissioners flying from Buffalo to New York but to some Commissioners for whom a 40 mile drive from their home to the district office had suddenly become too much of a burden.

In view of the fact that there are now virtually no oral arguments, common sense would indicate that the Commissioners have more than enough time to do the §32’s. Back in 2002-2003, each Commissioner attended 5.29 hearings per month; now they do one every 2-3 months, a 90% drop in the number of hearings they attend, with no additional work or responsibilities. And much of the prior travel would be eliminated because, unlike when I was the only Commissioner in New York City, there are now more in New York City.

These hearings, once they have been transferred back to the Commissioners, should be done in person and not over video. I was told that the travel costs were about $110,000 a year in 2007, mostly because two Commissioners (Henry from Buffalo and Zink from Rochester) were assigned to hearing points in Harlem and Queens. In addition, if electronic transcription were done only for §32 hearings, the savings would more than make up for the additional travel costs incurred by having the Commissioners make in-person appearances when conducting these hearings.

LAW JUDGES

If one calculates that the average §32 hearing takes 12 minutes and there are 12,000 hearings a year, that comes out to a workload of the minimum of two law judges doing nothing but waiver agreements. (12,000 hearings ÷ 5 cases per hour = 2,400 hours of hearings but since most law judges prepare for their hearings by reading the agreements in advance and, at least in NYC, 40% of the hearings are conducted with translators, I calculate a minimum of 3600 hours of hearings.)

So, while it may be necessary to hire additional judges and/or conciliators, at least two new judge hires can be saved by using existing staff: the Commissioners.

CONCLUSIONS

The Board justifies:

its replacement of live reporters by electronic transcription to save money and make up for the shortage of reporters, both problems which can be resolved by using electronic transcription for an easily identifiable category of cases in which my statistics show minutes are very rarely needed. If the Board has other statistics, common sense would dictate they be made available in order to determine the validity of the Board’s arguments.
eliminating certain categories of hearings and hiring more conciliators and the law judges to help expedite the resolution of controverted cases because the current staff now has too many cases. Yet the Board has burdened its law judges with approximately 12,000 hearings on a category of cases that were more than adequately administered by the now underutilized Commissioners. Equally important is the attention given to the claimants who could be heard by and speak to someone in authority without having an invisible egg timer staring at the law judge. This change will make these injured workers, for what may be their last time before the Board, feel that they’re treated like a human being.

There may be some who feel that these recommendations are far too simplistic and that I do not have access to sufficient information to make an informed judgment. I shall let my record and my book speak to that argument. It’s time that those making decisions for the Board start listening to more than just the select few who make up the Oligarchic Cabal. Otherwise the Board will continue its march in a direction totally opposite that needed to serve the community for which it was established nearly 100 years ago: injured workers and their employers.

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

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COURT DECISIONS

Two Guest Commentaries

►“Don’t Move the Buffalo Office”’

►An Attorney’s Review of Managed Adjudication Path (MAP)

THIS WEEK’S NEWSWIRE

►Two new Commissioners nominated

►the Webinar

PRIOR WEEK’S COMMENTARY

►Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The INSIDER’s recommendations for the Board

►Stats on How Hearings Change Proposed Decisions or Why Hearing are necessary

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

May 21, 2009 (Friday): Weekly postings of court decisions regarding injured workers compensation issues from the New York State Court of Appeals, New York State Appellate Division (1st, 2nd, 3rd, and 4th 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. in which the NYS Workers Compensation Board is a party of interest, for which arguments have either already been made at the New York State Appellate Division, 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, send them to: TheInsider@InsideWorkersCompNY.com.

THIS WEEK’S POSTINGS: “Win some - Lose some” would be the title for yesterday’s opinions issued by the Appellate Court, with one reversal and a second case with an affirmance on one point and a rescind on the second. Finally, nearly one year after a Full Board Review took the position that payments to the Aggregate Trust Fund (ATF) can be retroactive, this issue finally makes its was to the Appellate Court. As noted below, under Pending Cases, there are four cases scheduled but only one of which will be heard in the oral arguments. That FBR case was WCB#0012-4050 (NY Presbyterian Hospital).

The Two Top Attorneys for 2009
click here for details.

The Top Attorneys for 2010
click here the March 19, 2010 updated list.

Bran v Wimpish
May 20, 2010 NYS Appellate Division, Third Department
Employment: Who is
§14: Average Weekly Wage

AFFIRMED the Board’s ruling that claimant was an employee of Ralph Wimpish but REVERSED the Board’s ruling on the average weekly wage.

After sustaining injuries on February 12, 2008 when he fell from a ladder while working in the apartment owned by Ralph Wimpish, the injured workers claim was established after a Law Judge found an employer-employee relationship and set the claimant’s average weekly wage at $620, decisions affirmed by a Board Panel. The Appellate Court noted that, “Wimbish hired the claimant in the parking lot of a home improvement store, provided daily transportation between the store and the worksite and instructed the claimant on what work needed to be done. . . . Wimbish paid claimant in cash at the end of each workday and supplied him with equipment, including spackle, spackling tools and a ladder.” Citing prior case law, the Court added, “The existence of an employer-employee relationship in a particular case is a factual issue for the Board to resolve and its finding must be upheld if supported by substantial evidence. . . . In our view, the record contains substantial evidence supporting the Board’s determination that an employer-employee relationship existed between claimant and Wimbish, notwithstanding evidence in the record that could support a contrary result.“

However, the Court did find merit in Wimbish’s contention that the Board’s calculation of claimant’s average weekly wage at $620 was improper and return this particular matter to the Board for further proceedings. Prevailing party represented by: John F. Clennan, Ronkonkoma, for appellant, on the issue of average weekly wage and Iris A Steel of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent on the issue of employee/employer relationship. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Catapano v Jaw
May 20, 2010 NYS Appellate Division, Third Department
§ 29: MVA liens

RESCINDED and sent back for reconsideration the Board’s ruling that the Special Disability Fund’s consent to a third-party settlement was not required. Claimant suffered injuries in an accident at work, and this workers’ compensation claim was established in 1996. The employer’s workers’ compensation carrier then filed a notice of claim for reimbursement out of the Special Disability Fund and, in 2000, the Fund was found liable for reimbursement pursuant to Workers’ Compensation Law §15(8)(d). Shortly thereafter, claimant settled a personal injury action arising out of the accident, and the carrier (State Insurance Fund) gave its consent to the settlement, waived its lien on the proceeds, and took a credit against claimant’s net recovery (WCL §29[4],[5). The Fund’s consent to the settlement was not sought and, as a result, it refused to reimburse payments of deficiency compensation made by the carrier. The Board ultimately held that the Fund’s consent was not required, and the Fund appealed.

“While the Board is free to alter a course previously set out in its decisions, it must set forth its reasons for doing so, and the Board’s failure to do so renders its decision arbitrary and capricious. The Board had previously held that where the Fund has been found liable for reimbursement to the carrier under WCL §15 (8)(d), the carrier waives its right to that reimbursement if it does not obtain the Fund’s consent to a settlement (see Matter of Care Diagnostic Laboratory, 2006 WL 832793, *2, 2006 NY Wrk Comp LEXIS 2612, *4 [WCB No. 29317021, March 28, 2006]; see e.g. Matter of Brigotta Farmland, 2006 WL 1064007, *2-4, 2006 NY Wrk Comp LEXIS 3343, *5-10 [WCB No. 80213739, April 18, 2006]). Indeed, the carrier here readily admits that the cited precedent does not support the Board’s present holding, but nonetheless argues that the prior cases were wrongly decided. However, as that prior precedent was not addressed in any way in the Board’s decision, the Court remitted this matter back to the Board for further proceedings.” Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

PENDING CASES
May 21, 2010: The following list represents 22 cases, of which 7 have been heard,with the balance being scheduled for the next two weeks. A KEY LEAD CASE being argued June 2, 2010 deals with the ATF issue; four cases are listed but oral argument is being accepted only for the lead case.

May 27, 2010 Aides At Home v Workers’ Comp Board
May 25,2010 Brown v New York City Dept
Apr 27, 2010 Clark v Suny Upstate Medical
June 2, 2010 Collins v Dukes Plumbing (ATF-Lead case)
Apr 19, 2010 Dupuis v Frito Lay
June 2, 2010 Earle v Batavia Nursing Home (ATF)
May 24, 2010 Galanos v Nevada Utilities
May 27, 2010 Grill v Fashion Institute
May 27, 2010 Hilbrandt v Vil Of Red Hook
Apr 23, 2010 Kaja v Siller Brothers, Inc.
Apr 26, 2010 Keles v Santos
Apr 26, 2010 Monteleone v Tn OF North Castle
June 2, 2010 Moreno v Licea
Apr 26, 2010 Parkhurst v United Rentals (THREE CASES)
June 2, 2010 Perez v Licea
May 24, 2010 Poulton v Martec Industries
June 2, 2010 Raynor v Landmark Chrysler (ATF)
May 26,2010 Smallwood v Mereda Realty
June 2, 2010 Thomas v Cold Spring Constr (ATF)
Apr 20, 2010 Turner v Jaquith Industries
May 28, 2010 Visic v O’nero & Sons Constr
May 28, 2010 Wooding v Nestle Usa Inc

▼ Posted Friday May 14, 2010 ▼

Bush v Montgomery Ward
May 13, 2010 NYS Appellate Division, Third Department
§ 25-a: True Closing

AFFIRMED the Board’s ruling that WCL § 25-a is inapplicable to claimant’s award of workers’ compensation benefits. Although claimant was injured at work in June 1978 and awarded compensation benefits, it appears that claimant did not receive awards for her injury after 1981; however, most of the records associated with her original claim were destroyed that year in a fire at the Binghamton office of the Board and the record contains no evidence indicating that the issue of permanency was resolved.

Accordingly, when claimant sought to reopen her claim in 2006, hearings held to determine the applicability of WCL §25-a lacked the benefit of documentation regarding the manner in which earlier proceedings were resolved. Claimant stated that her claim had never been closed and that she had worked in a light duty capacity since her injury. Medical reports submitted in April 1979 and April 2006 indicate that she was capable of performing only light duty work. Additionally, in 2008, her treating physician opined that claimant had suffered a 15% to 20% schedule loss of use of her right knee. Following the hearings, a Law Judge, affirmed by a Board panel, ruled that the claim was never truly closed and discharged the Special Fund for Reopened Cases from liability. The Court then ruled that “substantial evidence support[ed] the Board’s determination that, because further proceedings were contemplated to establish the extent of her disability, claimant’s case was not truly closed”. Prevailing party represented by: Jill B. Singer of counsel to Steven Licht, Special Funds Conservation Committee for Special Fund for Reopened Cases, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Thomas v Crucible Materials
May 13, 2010 NYS Appellate Division, Third Department
§ 15(6) Reopening by claimant

AFFIRMED the Board’s ruling which denied claimant’s application to reopen his workers’ compensation claim. In 2002 claimant suffered injuries to his right shoulder, underwent surgery to repair a massive tear in his right rotator cuff, which was not successful. At a November 25, 2003 hearing, claimant agreed to accept his doctor’s opinion regarding schedule loss of use (SLU), was classified with a 70% schedule loss of use of his right arm, awarded benefits, and the case was closed.

In 2007, claimant resumed treatment for his injury, then successfully applied to reopen his claim based on recent medical reports indicating that his medical condition had worsened since the 2003 classification. The Law Judge found sufficient medical evidence of a change of condition, rescinded the 2003 SLU determination, reclassified claimant with a permanent total disability from 2003 onward, and modified claimant’s award accordingly. Upon appeal, a Board panel reversed, concluding that claimant failed to show that his condition changed to such an extent that a reopening of his prior classification was justified.

The Board’s decision as to whether to reopen a case per WCL §15(6) is a matter committed to the Board’s discretion and will not be disturbed on appeal absent an abuse of discretion. Furthermore, it is for the Board to resolve conflicting medical evidence and, in so doing, it “may selectively adopt or reject portions of a medical expert’s testimony“. The Court agreed with the Board that there was no “meaningful distinction between Smallman’s preclassification and postclassification medical narratives. . . . Despite the existence of other medical evidence in the record to support a contrary result, we find that the foregoing constitutes substantial evidence in support of the Board’s conclusion that claimant did not establish a sufficient change in his medical condition warranting a reopening of his 2003.” Prevailing party represented by: John I. Hvozda of counsel to Falge & McLean (North Syracuse) for Crucible Materials Corporation and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Yarleque v Sally Lou
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s denial of claimant’s two requests for reconsideration or full Board review. Having worked for the employer for less than four months in 1996, claimant submitted in June 2000 two applications for benefits allegedly arising out of that employment — one for carpal tunnel syndrome and the second for back, neck and shoulder injuries. Although the carrier argued that both were time-barred pursuant to WCL §28, the Law Judge found the claims timely and established both. A Board panel reversed the Law Judge per §28. The claimant then requested and was denied full Board review on both cases, hence the appeal to the Appellate Court. The Court wrote,“In that regard, the grounds for seeking review or reconsideration are narrow; the movant must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”.

In this case, the Board in its underlying decision concluded that claimant’s CTS was an occupational disease for which the latest possible date of disablement was November 1, 1996, when claimant stopped working, thus making her claim untimely. As for the second claim,the Board found that her admission in the footnote of her brief confirms that she knew that those injuries were work-related no later than December 21, 1996 together with the evidence that claimant stopped working on November 1, 1996 because of her injuries, amply support the Board’s decision that both claims involved occupational diseases and were filed beyond the two-year period. Prevailing party represented by: Jeremy B. Davis of counsel to Gregory J. Allen, State Insurance Fund for Sally Lou, Inc. and another, respondents. Click here to read the full court decision of the NYS Appellate Division, Third Department….

Barone v Interstate Maintenance
May 13, 2010 NYS Appellate Division, Third Department
Procedure: Denial Full Board Review

AFFIRMED the Board’s ruling which denied the employer’s request for reconsideration and/or full Board review. Although the main issue in this case was jurisdiction as the claimant, an employee of a New York firm, was injured in 1993 while making deliveries in New Jersey, the appeal is based on the Board’s denial of a review on the basis that the case was dormant for 10 years, until the employer and its president applied for reconsideration and/or full Board review of the Board’s 1996 decision finding subject matter jurisdiction. The Court wrote, “the employer failed to demonstrate the existence of any newly discovered evidence, a material change in condition or that the Board improperly failed to consider the issues raised before it. Furthermore, the employer failed to make its application ‘within a reasonable time after [it] . . . had knowledge of the facts constituting the grounds upon which such application [was] made’ (12 NYCRR 300.14 [b]). Accordingly, we cannot say that the Board abused its discretion in denying the employer’s request for reconsideration and/or full Board. . . .Finally, we note that the employer’s arguments regarding personal jurisdiction and allegedly improper conduct of Travelers were not raised before the Board in the application for reconsideration and/or full Board review and, thus, are unpreserved for our review.. Prevailing party represented by: Estelle Kraushar of counsel to Andrew M. Cuomo, Attorney General, for Workers’ Compensation Board, respondent. Click here to read the full court decision of the NYS Appellate Division, Third Department….

▼ Posted Friday May 7, 2010 ▼

Carlineo v Snelling & Snelling
May 6, 2010 NYS Appellate Division, Third Department
Procedure: Due Process