ARCHIVE OF E-MAIL ALERTS
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| . . . | June 6, 2013 |
Volume 233 Issue 1 |
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WCB +1; Clt loses malpractice; Board’s Misfeasance
DECISIONS After a long string of affirmances, the Court reversed the Board, this time in a §25-a case. The Board was affirmed in the issue of voluntary withdrawal from the labor market and a dissatisfied claimant has again found that failing to find a pot of gold at the end of the WCB rainbow is not the attorney’s fault. As another example of the Board’s misfeasance, read my note in the Matter of Schroeder v US Foodservice (§25-a) neither the carrier nor the Board submitted a brief in its defense nor did they appear at the Appellate Department hearings. What an unmitigated, inexcusable waste of time and money and an insult to the already overburdened Court system when the Board could easily have issued a Full Board Review sending the case back for further review. But then again, for too many top executives at the Board, this would be work.
| . . . | May 30, 2013 |
Volume 232 Issue 1 |
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Quietly Winning
DECISIONS A quiet week at the Third Department with two affirmances for the Board and one dismissal requested by the claimant, And that’s all she wrote.
| . . . | May 23, 2013 |
Volume 231 Issue 1 |
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WCB Wins 3; What is 231??
DECISIONS A 15-decision winning streak continues for the Board with three more affirmances from the Third Department this week, with claimants, this week, winning on causal relationship and dependency benefits under the VFBL while a carrier wins one over the Special Fund on §15(8).
It is hard to believe, as one of my readers pointed out, that this email represents the 231st week I have been publishing this email and posting legal decisions and other related stores and commentary about the New York State Workers Compensation Board. In addition, I have published two books about the system. it is nice to know that my work has proven of continuing interest. If you have any suggestions or comments or would like to have something published, under your own name or anonymously, feel free to submit it.
| . . . | May 16, 2013 |
Volume 230 Issue 1 |
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Board - 5, Claimants - 0
DECISIONS The five affirmances of Board decisions this week by the Third Department covered a wide range of issues, with claimants on the losing side in all five: §114-a fraud, causally related death, denial of FBR, causal relationship, and no awards as loss of income was economically related..
The Third Dept. has added five cases to its May hearing calendar giving a total of 16 cases pending a decision. It is interesting to note that the oldest of these cases dates back to April 15, 2013, one month ago whereas some appeals at the Workers Comp Board date back to April 2012. But who’s counting? Certainly not the Board.
| . . . | May 9, 2013 |
Volume 229 Issue 1 |
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GSITs lose again, this time at the 3rd!
DECISIONS In one of the two opinions issued by the Third Department this week, an appeal of a Board decision to rescind a law judge decision was dismissed. Issue was whether an injured work was an employee and/or covered by home owners insurance.
In a much more interesting case, and a second opinion on the subject in two weeks on the matter of a GSIT’s manager/administrator’s fiduciary responsibility, the Court found that the member of a trust has the right to sue the trust’s managers for the Trust’s default.
| . . . | May 2, 2013 |
Volume 228 Issue 1 |
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GSITs lose another one at the 2nd!
DECISIONS Although there were no workers comp-related opinions issued this week by the Third Department (nor any new hearings for May listed), the Second Department issued a ruling on a GSIT issue, once again putting the members of defunct trust deeper in the proverbial hole. And I have added at the bottom of the case some comments from a reader about the Board and GSITs and WCL §50.
| . . . | April 25, 2013 |
Volume 227 Issue 1 |
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WCB Wins 1; Advisors to GSITs lose 1
DECISIONS The one decision issued by the Third Dept this week affirmed the Board’s ruling that a thoracic back condition was not consequential to the original work-related injury.
But, more importantly the Second Department found that members of an insolvent GSIT had sufficient grounds to pursue an action against the trust manager, accountants, and actuaries from failing to properly inform them of the true financial condition of the trust and their real liability risks as members of the trust. Unfortunately, to date, no one has inquired as to whether the WCB had the authority and/or the responsibility with regards to auditing/reviewing these same trusts. Ahhh, how long will it be before the WCB is also noted as a party in these cases?!
| . . . | April 18, 2013 |
Volume 226 Issue 1 |
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WCB Wins all 3,+ 3 Cases from 1st & 2nd
DECISIONS The Board won all three appeals this week at the 3rd Department, with one claimant losing in his §114-a claim but two claimants winning cases in which Board discretion ruled the day: occupational disease and issue of 30-days notice (§18). In the 1st Dept, a claimant lost his right to challenge his WC attorney’s fee. And at the 2nd Department, both injured workers were given the right to bring suit for injuries received while working, with the Court clarifying when WCL does not preclude such action.
| . . . | April 11, 2013 |
Volume 225 Issue 1 |
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No News is Good News
DECISIONS Although the Third Department issued no cases in which the Board was a party, the Third Department did add 15 cases to its April calendar bringing the total number to 22 of workers comp related cases awaiting a decision.
Rumor has it that the Cuomo administration is now interviewing people for the Workers Comp Board. So if you’re looking for a change of pace, now is the time to send “IN” your resume. And if you’re at the Board, now may be the time to send “OUT” your resume.
| . . . | April 4, 2013 |
Volume 224 Issue 1 |
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Best case this week is from Pennsylvania
DECISIONS Although the Board was affirmed when it denied an appeal as being too late, the most interesting case this week came from the Workers Compensation Board in Pennsylvania in which that State’s Supreme Court wrote a unanimous 28-page ruling finding that the claimant did not voluntarily withdraw from the workplace: an analysis both interesting and detailed. No new cases posted this week for upcoming hearings at either the Third Department or the Court of Appeals.
| . . . | March 28, 2013 |
Volume 223 Issue 1 |
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A Moot Appeal raises questions
DECISIONS Although the only decision issued this week by the Third Department was to find the appeal moot, the case raised an important question about the function and responsibility of the NYS Workers Comp Board, discussed in this week’s COMMENTARY. Also, last week, the Court of Appeals affirmed the Board’s change of heart on Alford pleas, a posting delayed as a key fact was missing of the Court’s decision. And an employer/defendant refuses to authorize NYSIF to pay the awards that have been made to the injured worker.
| . . . | March 21, 2013 |
Volume 222 Issue 1 |
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WCB Wins 5 but Loses 1
DECISIONS The Board had a reasonably good week (for the Board) at the Third Department, winning five of six cases, including three §15(8) reimbursement cases. In the only case involving a claimant, the claimant lost an appeal asking the Court to find that the decedent’s death was causally related. The Board was reversed on a §123 issue for failing to see, or perhaps place value on, evidence that contradicted its own ‘fact-finding’. There was one case at the Court of Appeals which will be posted Monday.
| . . . | March 14, 2013 |
Volume 221 Issue 1 |
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WCB Win 3, Loses 2
DECISIONS Although the Board was affirmed in three decision issued by the Third Department today, all ruling against the carrier, the Board was reversed in two cases, again for failure to follow precedent and/or legal procedure, making a total of six reversal this year (2013), not on legal issues but the Board’s faulty decision making process..
| . . . | March 7, 2013 |
Volume 220 Issue 1 |
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Robert H. Hurlbut, R.I.P.
NEWSWIRE I regret to announced the passing of long-time NYSIF commissioner and former Chairman of the Board Robert H. Hurlbut. Details in the NEWSWIRE.
There were no DECISIONS this week.
| . . . | February 28, 2013 |
Volume 219 Issue 1 |
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Board Wins 2 GSIT Cases
DECISIONS The Board wins in all three cases for which opinions were issued today, including two separate appeals on GSITs by William Held as Chair of Contractors Compensation Trust versus the Board’s methods and procedures for making assessments for the underfunded trusts. And SIF won a case against an employer for its failure to cover its ‘leased’ employees. And no new cases have been posted by the Third for arguments which are to start again March 18, 2013.
| . . . | February 21, 2013 |
Volume 218 Issue 1 |
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2012’s Top Attorneys
Board’s Loses Again at the 3rd: 50% for 2013
I am pleased to announce The Insider’s Top Attorneys for 2012. For the list click here.
DECISIONS Third Dept affirms Board on one case and reverses it on a second case, a case in which the Board approved a second claim by the claimant on the same issue. Not a good start for the year: 10 decisions with five affirmances and five reversals. For the sessions (September 1, 2012) to date, the Board has been reversed in 25% of the cases.
| . . . | February 7, 2013 |
Volume 216 Issue 1 |
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Fed and NYS Plans for the WCB & SIF
NEWSWIRE The SMART Act just signed into law by President Obama should expedite the processing of Section 32’s and eliminate the Damocles sword of federal penalties that have been hanging over lawyers and carriers under the old laws. The New York State Senate has issued a lengthy report on the Governor’s budget plans for 2013. The two pages that relate to WC issues and NYSIF raids are detailed in this week’s NEWSWIRE.
DECISIONS No new decisions have been issued this week by the Third or Court of Appeals.
| . . . | January 31, 2013 |
Volume 215 Issue 1 |
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The Board Swings Both Ways
DECISIONS As evidence that the Board (apparently) decides cases on the facts, in two §114-a fraud cases affirmed by the 3rd Department today, one claimant won and one lost. And although another claimant lost a case on the issue of casually related death, carriers lost two additional cases: §15(8)(d) reimbursement and mandatory ATF deposits. Interestingly, three of these cases have been before the Appellate Court before and one before the Court of Appeals (the appeal was dismissed).
| . . . | January 17, 2013 |
Volume 213 Issue 1 |
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DECISIONS Although this first posting for the new year is being done in the third week of January, neither the Appellate Court - Third Department nor the Court of Appeals have issued any workers-comp related decisions. But the Third has listed 13 cases which it has heard in the first two weeks of this month, whose decisions should be, unlike the WCB, forthcoming shortly. And there are, as always, motions answered by the Court of Appeals.
COMMENTARY Governor Cuomo’s 236 page State of the Union devoted 8 pages to the Workers Compensation System but offers primarily broad strokes of the pen rather than any concrete proposals. A quick analysis is on the COMMENTARY page.
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There were no postings January 3 or January 10, 2013.
| . . . | December 27, 2012 |
Volume 210 Issue 1 |
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DECISIONS It’s nice to see the Board end the year with two wins, even if one was a dismissal of an appeal and the second was an affirmation per Rivera v North Cent Bronx Hosp issued by the Third on December 13, 2012.
And let us all hope for a healthy and happy new year.
| . . . | December 20, 2012 |
Volume 209 Issue 1 |
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If you can read this, then we have survived the ‘end of the world‘ although as an amateur archaeologist specializing in pre-Columbian culture, I am one of those who know that the Mayan calendar only references a new ‘calendar count‘ and not the end of the world. This year has ended with a tough October 30 for many of us. As they say in the Breezy Point (where I have a bungalow) phone alert every day, “One day at a time, we will rebuild.” Let’s hope our leaders (?!) in Washington give us that chance and don’t push us off the cliff, making the Mayan prophesy a preference. Happy Holidays.
WCB Wins Two More at the 3rd
DECISIONS The Board wins the right to deny a §24-a licensed representative a renewal of their license. And again the Board is affirmed in denying an injured worker who is collecting a maximum on a PPD an additional sum for an SLU. No new arguments set for the Third or the Court of Appeals..
| . . . | December 13, 2012 |
Volume 208 Issue 1 |
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WCB Wins All Four at the 3rd
DECISIONS The Board continues its winning streak with four affirmances, three favoring claimants and SIF losing in a dispute with One Beacon by its failure to submit its evidence on a timely basis. In a case dealing with WCL §13-a(7), The Board and Court apparently have given claimants the right to go to their own doctor (if an approved WC provider) for tests rather than one selected by the carrier. No new cases have been set for hearings at either the Third or the Court of Appeals.
| . . . | December 7, 2012 |
Volume 207 Issue 1 |
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Two more AFFIRMS for the WCB
DECISIONS The Third Department has affirmed the Board in two cases. One requires the carrier to pay the spouse who was serving as the home care provider for her husband. In the second case, the timeliness of filing a C-250 was based on the date of the Law Judge decision, not the signing of the underlying stipulation. The last case, from the Second Department, deals with proper notice of a claim. No new case listing at the Third or the Court of Appeals.
| . . . | November 29, 2012 |
Volume 206 Issue 1 |
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Another AFFIRM from the 3rd AD
DECISIONS The only decision issued by the Court this week from the 3rd Department in its affirmance of a case appealed by a pro-se claimant on three issues: a new CR medical problem, payment for travel to an approved out-of-state medical provider, and the issue of VWLM. The Third Department has no cases set for oral argument for December. And one “motion to appeal” at the Court of Appeals was denied as was the request for a hearing at the third. Yes, there was no posting last week as there were no decisions issued.
| . . . | November 21, 2012 |
Volume 205 Issue 1 |
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The WCB goes 1-2 from the 3rd; 2 from the 1st
DECISIONS The Third Department issued two cases involving the Board which was affirmed on an employee/employer relationship but reversed on apportionment. The First Department clarified its interpretation of §11 grave injury stating that a grave injury was not defined by the inability to work and issued a ruling on legal fee reimbursement. The Third Department has no cases set for oral argument for December. Yes, there was no posting last week as there were no decisions issued.
| . . . | November 8, 2012 |
Volume 203 Issue 1 |
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This week the WCB goes 5 for 5
DECISIONS This week’s five decisions from the Appellate Court, Third Department run the full gamut of issues, from §114a to §44 to §15(8)(d) and more, all of which affirmed the Board’s decisions. And there are now a total of thirteen cases from the Third Department awaiting decisions and one from the Court of Appeals. Last week there were three decisions from the Third Department including two reversals of the Board. Because of the priority of dealing with Hurricane Sandy and this week’s snow storm, I will - hopefully - post those decisions next week. Neither were major issues but one, again, pointed out the Board’s inability to follow its own precedents.
| . . . | October 4, 2012 |
Volume 198 Issue 1 |
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Four Cases from 2nd & 4th
WC Rates in the news
NEWSWIRE This week’s news highlights the complaints that the 2007 Amendments are not reducing WC insurance rates as promised. And there is now a continually up-dated service listing the best WC doctors in the system
DECISIONS The Third Department posted a notice that no decisions were being issued this week. Nonetheless, the Second and Forth Departments had some interesting cases which have just been posted. The most interesting, and important, discussed the humanitarian aspect of workers compensation and how the possible conflicting federal and state jurisdiction must be resolved to favor otherwise qualified claimants who are undocumented aliens. Other cases involved ‘horseplay’, proper notice to NYSIF, and relationship between WC, Social Security, and NYS Retirement Fund definitions of disability, all listed on the DECISIONS page.
| . . . | September 27, 2012 |
Volume 196 Issue 1 |
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Lots from the 3rd AD; New WCB Hires(?!)
NEWSWIRE The Board has some new hires and the Times Unions writes about the WCB commissioners and Cuomo’s Republican appointees..
DECISIONS Ten decisions have been issued by the Third Department this week, eight of them affirming the Board, one dismissing an appeal as interlocutory, and the last reversing the Board. Ranging from §114-a fraud to SLU, §25-a’s, and some §29 cases, this week’s list covers a wide range of subjects, all listed on the DECISIONS page.
| . . . | September 14, 2012 |
Volume 195 Issue 1 |
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NYS WC Assessment US’ Highest
NEWSWIRE Once again the Board issues some new directives for mailing documents with the result hat there will be two large ignored piles of incoming mail rather than one.
DECISIONS As of September 20, 2012. no decisions on WC issues have yet to be issued by the Appellate Court, Third Department nor have any new cases been added to their calendar or tot he Court of Appeals.. But I have posted all those WC cases being heard in September at the 3rd, all listed on the DECISIONS page.
| . . . | September 8, 2012 |
Volume 194 Issue 1 |
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Courts have Scheduled Cases
DECISIONS The Appellate Court, Third Department, has now started to schedule cases for hearings, as noted in the list below. As of today’s date there are three undecided civil motions at the Court of Appeals. All are listed on the DECISIONS page.
| . . . | August 31, 2012 |
Volume 193 Issue 1 |
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Raises for the Commissioners?
COMMENTARY Upon its return to Albany some think, despite all the recent indictments, arrests, and convictions of its members, the state legislature will give itself a salary increase. Historically, this means that commissioners and agency heads also get an increase. But is an increase warranted for this Board? What do you think?
| . . . | August 16, 2012 |
Volume 191 Issue 1 |
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Legal Fees & More on Beloten
COMMENTARY As a follow-up to my commentary last week on Michael Whiteley’s excellent article about the New York State Workers Compensation Board, I have posted my opinion on legal fees. It is my opinion that the Board’s potential interference with legal fees is based in part on their desire to eliminate lawyers from the system. I also explain why the comparison to legal fees in other states is not relevant.
Also there were several readers who came to the defense of Chairman Beloten after they read my article on his issuing a Subject Number dealing with AWW. Two emails have been highlighted with my response to all those who emailed me on this subject.
And both commentaries explain how the solution to ‘excess’ legal fees and my criticism of Beloten all have the same solution: The Board doing its job “for” the workers compensation system, not doing a job ‘on’ the system.
| . . . | August 9, 2012 |
Volume 190 Issue 1 |
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A Stinging Article About the Boards
COMMENTARY This week’s commentary is a review of an article from WorkCompCentral.com calling the Board “big, busy, and battled.” I have added more details about some of the issued raised by Michael Whiteley, the article’s author, taken from my perspective as a ‘disgruntled’ former Board employee, a description offered by the Board itself.
| . . . | August 2, 2012 |
Volume 189 Issue 1 |
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WCB’s new updates & memos
NEWSWIRE The new AWW and Beloton changes the WC law, updating a 24-year-old interpretation of ‘wages’.
| . . . | July 26, 2012 |
Volume 188 Issue 1 |
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Good for the Goose? Good for the Gander!
NEWSWIRE Since the Board sees fit to announce new proposed regulations for employers, carriers, and claimants, I thought it would be appropriate for me to do the same for the Board. Their 2012 proposed agenda is attached is as mine.
| . . . | July 19, 2012 |
Volume 187 Issue 1 |
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The Gov Mixes in WC Business; Board’s secret moves?
NEWSWIRE The Governor’s reach into the New York State workers compensation system is demonstrated by the Board’s vote to proceed with electronic transcriptions and his reversal of NYCRIB’s rate increase. And does the Board have more secrets about its move to Schenectady while more staff leave the WCB
| . . . | July 12, 2012 |
Volume 186 Issue 1 |
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WCB flees Albany, Prisoners Get Comp, & More
NEWSWIRE 
By the time you read this, moving trucks will be on their way from 20 Park Street in Albany to the Workers Comp Board’s new main offices in Schenectady. Deja Vu all over again as Comptroller DiNapoli sends a second report to the Board regarding the WCB’s two-year failure to stop comp payments to incarcerated felons. And “Errors & Omissions” insurance claims thrive because of errors in placing WC insurance.
| . . . | July 5, 2012 |
Volume 185 Issue 1 |
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6 Cases Decided; Libous attacked by Palladino
NEWSWIRE In an open letter/email, Palladino attacks the Republican leaders in the NYS Senate, and then Senator Tom Libous, and even WCB’s Vice Chairman Fran Libous.
DECISIONS Although the New York State Appellate Division, Third Department, did not issue any workers comp-related decisions this week, in the past few weeks, there have been a number of cases which should be of interest to the workers comp community, including one which listed the rights of undocumented workers who, after leaving the United States, are then unable to return to pursue their cases in person. Another interesting decision was the rather short opinion of the Court which resulted in a statement we all wish we had the nerve to say or write, all in the defense of the State Insurance Fund.
| . . . | July 2, 2012 |
Volume 184 Issue 2 |
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Commissioner Reappointed; ID Theft at the Board
NEWSWIRE The details on the reappointed commissioner and the theft of injured workers’ ID’s can be found on the NEWSWIRE page.
| . . . | June 28, 2012 |
Volume 184 Issue 1 |
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11 Cases since I left: 3 Reversals among them
DECISIONS I’m back and, as one person said last year “no bites, no bruises, no breaks”. Lot’s of other stuff but not in this e-mail. Most of the time I was in a field camp in which internet and phone access were very intermittent and the last weeks when in town, the internet cafes did not have AC or even decent connections. That is why today I am posting the 11 Third Department cases that came down since I left to ‘dig’.
There were three reversals and eight affirmances. As usual, the three reversals were not errors of interpretation of case law but representative of the ongoing failure of the Board to follow its own rules and its continuing riding roughshod over claimants (the three cases reversed were all in favor of claimants), carriers, and employers alike. Highlights were a reversal won by a pro-se claimant over the State Insurance Fund; the AG’s office from some reason declined to defend the Board on this one and two more findings of voluntary withdrawal from the work place.
Next week, I will list some cases from the last few weeks from other jurisdictions that impact on workers compensation.
As to why I dig, I have a short memo for those of you who may be interested, to be found at the following link: WHY I DIG
| . . . | May 24, 2012 |
Volume 179 Issue 1 |
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3 Interesting cases this week & Goin’ Diggin’
DECISIONS While there were no decisions issued this week on workers comp cases involving injured workers, there was one involving a Board employee who fought their termination, one involving whether an undocumented alien can collect unemployment (shades of Ramroop!), and an issue of §11 jurisdiction for an employee killed while sleeping on the employer’s farm. And with the addition of the June cases to be hear at the 3rd, there are now 11 cases awaiting decision from the Third Dept.
GOIN’ DIGGIN’ For the next four weeks, I will attempt to keep up-to-date on this website while I am working on an archaeological dig, again in western Belize, so you can expect that I will be a bit slow in answering my emails; in some areas there is neither internet nor cell phone access, nor roads.
Heard in the closing seconds of the TV series ‘HOUSE” finale this week, these lyrics by Guy Lombardo’s song “Enjoy Yourself (It’s Later Than You Think)” should explain it all:
You work and work for years and years, you’re always on the go
You never take a minute off, too busy makin’ dough
Someday you say, you’ll have your fun, when you’re a millionaire
Imagine all the fun you’ll have in your old rockin’ chair.Enjoy yourself, it’s later than you think
Enjoy yourself, while you’re still in the pink
The years go by, as quickly as a wink
Enjoy yourself, enjoy yourself, it’s later than you think.You’re gonna take that ocean trip, no matter come what may
You’ve got your reservations made, but you just can’t get away
Next year for sure, you’ll see the world, you’ll really get around
But how far can you travel when you’re six feet underground?Your heart of hearts, your dream of dreams, your ravishing brunette
….
| . . . | May 17, 2012 |
Volume 178 Issue 1 |
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Board Affirmed in 7 of 8 Cases by 3rd A.D.
“Salvet Soper, Esq”
COMMENTARY To the attorney who wrote me last week in response to my guest writer’s COMMENTARY on Schmidt v LaCroix “You have been duped. There is no attorney admitted to practice in New York State by the name of Salvet Soper. The name is bogus and based upon the Salvet case that Miller sought to overrule.” No kidding! I wonder if it took you more time to look the name up than it did for the writer to come up with the pseudonym. To eliminate confusion, I have just put quote marks near that name.
DECISIONS The Board had a good week, being affirmed in 7of 8 decisions issued by the Appellate Court this week. While four of the cases dealt with procedures, two involved the Fund winning on §15(8)(d): one Bard decision affirmed and a second reversed. The Board issued two contrary decisions on identical §15(8)(d) indicia and, as usual, shows confusion on the issue §15(8) reimbursements or perhaps it is just a failure to read the doctors’ testimony and reports. The VFBL case was in keeping with prior decisions but the one unique case dealt with §16 survivor benefits and the 2007 Amendments. And both pro-se claimants lose their cases.
| . . . | May 10, 2012 |
Volume 177 Issue 1 |
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A Reversal for the WCB; Guest Commentary on Schmidt
COMMENTARY This week we have guest COMMENTARY from Salvet Soper, Esq. about last week’s Schmidt decision and its relationship to LaCroix. Obviously the legislative intent of pre-200 WCL and the 2007 Amendment are so craftily written that they are open to interpretation: lawyers passing laws requiring lawsuits (and lawyers) to fight over for the supremecy of their interpretation.
DECISIONS The New York State Workers Compensation Board got a another reversal from the NYS Appellate Court, Third Department, this time “given the lack of reliable medical evidence” to support the Board’s decision. As I note in my EDITOR’S NOTE, this case exemplifies how the Board fudge’s statistics to make itself look good.
| . . . | May 3, 2012 |
Volume 176 Issue 1 |
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A 2nd Court of Appeals affirmed the Board, reversing the 3rd; two from 3rd A.D. affirm Board
DECISIONS In addition to Zamora, The Court of Appeals affirmed the Board and reversed the Appellate Court in the Matter of Schmidt v Falls Dodge by agreeing that as long as a claimant is receiving an ongoing award at the maximum amount allowed, that claimant can NOT collect an SLU. In addition, there were two other decisions issued today by the Appellate Court, both of which dealt with average weekly wage and both of which affirmed the Boards’ decisions.
| . . . . | May 1, 2012 |
Volume 175 Issue 2 |
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Court of Appeals decides Zamora against Claimant
DECISIONS Earlier today the Court of Appeals issued its long-awaited decision in Zamora on the issue of what constitutes voluntary withdrawal from the labor market. In a 4 to 3 split decision, the Court of Appeals reversed the Appellate Court, thus affirming the original Board decision, finding that the Board is not required to make the inference that physical limitations caused by her established workers compensation-related injury are the cause of her post-accident wage losses.
| . . . . | April 26, 2012 |
Volume 175 Issue 1 |
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Is the ‘Fix’ in on ATF cases?;WCB loses at the 3rd, again
COMMENTARY In an ATF case, brought to my attention by Christopher Richmond, Esq., I raise a question as to how, among other points, it is that a carrier’s appeal of a Law Judge decision to make the ATF deposit gets a favorable Board panel decision in only five weeks, despite failing to give a legitimate reason for the appeal, other than “I don’t like the ALJ decision - please re-do.” But injured workers whose payments have stopped wait nearly a year for a decision. Perhaps Hamlet’s Marcellus is correct: “Something is rotten …”
DECISIONS The New York State Workers Compensation Board gets a another reversal from the NYS Appellate Court, Third Department, the eighth time this year the Court has rejected the Board’s opinion, this time finding for the claimant in a §28 time-bar. In the second case, the Court issued a mixed ruling on a legal malpractice claim pertaining to LL §240 that was both a successful WCB and personal injury claim.
| . . . . | April 19, 2012 |
Volume 174 Issue 1 |
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Two Non-WCB cases: quite interesting
DECISIONS The New York State Workers Compensation Board was not a party of interest in the one case decided by the Appellate Court this week, which involved a claimant whose claim for the amputation of his lower arm was accepted by the Board could not then sue his employer, their parent company, or the manufacturer of the equipment. The one case just accepted by the Court of Appeals considers whether an Alford plea in a fraud case in criminal court warrants an automatic finding of §114-a(1) at the Board. In this week’s NEWSWIRE I post a case in which an employee, injured while having sex “out of and in the course of employment” received workers comp.
NEWSWIRE In this week’s NEWSWIRE I post a case in which an employee, injured while having sex “out of and in the course of employment” received workers comp.
| . . . . | April 12, 2012 |
Volume 173 Issue 1 |
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WCB 2 for 3; new Chief Justice at 3rd AD, & More
DECISIONS Although several new cases have been added to the April hearing calendar for the Third Department and its new Chief Justice (see below), the three rulings today were relatively insignificant, except of course to the parties involved in the cases: one reversal, one dismissal and one affirmance. But then again the reversal was par for the course for the Board as the Court stated that the Board’s decision was based on a report containing “inherent contradictions”.
NEWSWIRE Governor Cuomo appoints the new Chief Justice for the Appellate Court, Third Department and I list her 2011 opinions. Also $200 Million has been found in the State’s budget to help GSIT’s and apparently comes with new oversight demands on the Board.
| . . . . | April 5, 2012 |
Volume 172 Issue 1 |
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3rd Dept Affirms Board’s decision, 1st & 2nd issue two decisions
DECISIONS This week the Board was a party of interest in only one case and the attorney representing the employer received an affirmance, prevailing against the Special Fund. In the other two workers comp-related cases, NYSIF at the 2nd and New York City at the 1st, both were winners, both cases dealing with jurisdiction and the two Appellate Courts reversing lower court decisions.
| . . . . | March 29, 2012 |
Volume 171 Issue 1 |
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My New Book on §32’s and Court of Appeals decides
I am pleased to announce the availability of my new book — Workers’ Compensation Section 32 Settlements: A Treasure or A Trap? — a 158-page guide for injured workers and their families answering hundreds of question they have about accepting or rejecting a §32 and learning what is ‘fair’. Details on on the §32 Book Page.
DECISIONS The Court of Appeals, in the Matter of Bissell v Town of Amherst, again settled a dispute on credits and offsets for future medical expenses under §29, after the civil suit has been settled.
| . . . . | March 22, 2012 |
Volume 170 Issue 1 |
. . . |
John Sciortino & Another Trust Law Suit
NEWSWIRE I regret to note the passing of John Sciortino this past week, enclosing a brief version of the obituary prepared by his firm. And I list the six new forms announced by the Board and ask why the Board publishes so many forms when they don’t get their own work done, giving an example of this failure on the DECISIONS page.
DECISIONS Although the New York State Workers Compensation Board was affirmed in the two decisions that were issued by the NYS Appellate Court, Third Department today, the most interesting case, which peripherally involves the Board, is a suit by a member of a defunct group trust against the trust administrators and all the trust’s trustees.
| . . . . | March 15, 2012 |
Volume 169 Issue 1 |
. . . |
One Affirm and One Excellent Quote
DECISIONS While today’s affirmance is rather straight-forward on a simple question - when is a case really closed -, this week it applies to Workers Compensation Law §123 rather than WCL §25-a. But I have also posted some text from a non-workers comp ruling from the Supreme Court - New York County because it takes a rather definitive position on timely filings, something about which I have been referencing with increasing frequency as the current Board seems to feel that “30 days” in §23 is an amorphous term rather than a fixed number. See my footnote in the Matter of Wheeler v Bloomingdale issued and posted March 1, 2012 below. in which the Board panel decided to rescind the Law Judge’s decision. The Board Panel determines to exercise its discretion and, in the interests of justice to consider the claimant’s application for review and the settlement transcript.
| . . . . | March 8, 2012 |
Volume 168 Issue 1 |
. . . |
1 Affirm; Cappellino Part II; Updated Comm Bios
DECISIONS In what is becoming a frequent observation by the Appellate Court of the Board’s rulings, the Court, in reversing the Board on a §25-a case, noted that “It is well settled that a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious.” I remember many years ago at the unofficial pre-board meeting, the afternoon before the formal “dog and pony show” Full Board meeting, that the then General Counsel berated me for citing prior cases in my arguments on a Full Board Review case before the Commissioners, stating that “each case stands on its own and you can not use facts from another case to argue in this one.” Seems like the message has gotten through: “The hell with precedent - let’s decide what feels good.” Of course, that does not make sense - but do you have a better explanation?
NEWSWIRE The Directors of the Triangle Shirtwaist Factory Fire Memorial announce this year’s annual memorial dinner: March 22. A report indicates that assessments to cover the Workers Compensation Board’s budget are the highest in the country while a second report shows that a lot of that money goes for high salaries: the $100K+ Club. And the Buffalo News essentially calls the New York State Insurance Fund a “bully“.
| . . . . | March 1, 2012 |
Volume 167 Issue 1 |
. . . |
1 Affirm; Cappellino Part II; Updated Comm Bios
DECISIONS In the one decision issued by the Appellate Court this week, the Workers Compensation Board was affirmed in the matter of a §29(4) lien and its effect on the §15(8)(d) reimbursement sought by the carrier. Bottom line was that some of the reimbursement was granted but a part was denied.
COMMENTARY I received another interesting comment in the Matter of Cappelline v Baumann & Sons Bus, and added to it an additional COMMENTARY on the issue of the Board’s amorphous, capricious, and arbitrary ‘interests of justice‘ to justify its decisions. In an earlier decision in today’s Appellate Court case, Wheeler v Bloomingdales, the Board after acknowledged that the application for review was defective but to accept it anyway and then to rescind the Law Judge’s carefully reasoned decision.
COMMISSIONER BIOS After being on the Board for nearly a year, Commissioner Lobban’s official biography is now on line. And I have added to Commissioner Paprocki’s bio that her brother Tom O’Mara is now a State Senator (R-C) possibly giving her the same ‘juice‘ enjoyed by Vice Chair Libous whose husband is Senator Tom Libous (R-C-I).
| . . . . | February 23, 2012 |
Volume 166 Issue 1 |
. . . |
1 Affirm: Cappellino Part II; Updated Comm Bios
DECISIONS In its first workers comp-related decision since February 9, the Appellate Court affirmed the Board’s decision, a decision in which the Board was critical of the carrier’s attorney’s method of defense, while not commenting, in its reversal of the Law Judge’s decision, on the Law Judge who accepted that defense.
COMMENTARY I received an interesting comment regarding the decision by the Court of Appeals in the Matter of Cappellino v Baumann Bus to the effect that the Court of Appeals was wrong. As I note in my COMMENTARY this week, the answer to that question depending on the purpose of workers comp: justice or speed.
| . . . . | February 16, 2012 |
Volume 165 Issue 1 |
. . . |
Board is moving; Virtual offices, More on GSIT’s
COMMENTARY Last week’s COMMENTARY on Assessments on GSIT’s resulted in some interesting comments as to why the amount of the projected reserve funds may well be overestimated.
NEWSWIRE The Board is not, oh yes it is, moving from Park Street in Albany; NJ is considering allowing virtual offices (great for commissioners who do ‘virtual’ work); Wrynn resigns, and the Board’s two-year delay in issuing some revisions on rates are revised a week later. And you wonder why MOD’s are taking so long!
DECISIONS None this week but the oral arguments on Zamora have been delayed.
| . . . . | February 9, 2012 |
Volume 164 Issue 1 |
. . . |
2011 Review of Appellate Court Decisions
COMMENTARY Earlier this week I asked for the names of attorneys who could help GSIT trust members being sued by the WCB. The feedback I got back is perhaps the clearest answer why individual trust members can not get their cases resolved, although there is light at the end of the tunnel, hopefully Diogenes and not a train!
DECISIONS Although the Board has prevailed in two cases at the Appellate Division, Third Department, this week the Board as well as the Third Department have been reversed on a case that has seen the Board issue five related decisions while trying to get to the correct answer. As a result of this reversal, the claimant has another opportunity to prevail at the Board.
| . . . . | February 6, 2012 |
Volume 163 Issue 2 |
. . . |
Help Needed on GSIT’s
Recently I have received a number of phone calls and e-mails from representatives of firms who were at one time members of the troubled group trusts who now find themselves being sued by the Worker’s Compensation Board for retroactive premiums sometimes almost equal to these companies annual revenues.
Some have attempted to contact the Board for the purposes of negotiating or at least discussing some of the problems but have met with either a lack of response or a demand for payment in full without any interest by the Board in discussing the possibility that there may have been an error in calculations. Also some are considering pursuing legal action against the Board for its alleged failure to audit or in any way supervise these trusts until after it was brought to the Board’s attention by a third party that there was a substantial amount of fraud taking place.
Also, perhaps to protect itself, the Board has also removed from its website a number of documents prepared by the Board or its outside advisers regarding these self-insured trusts.
As a result I have in been asked if I could find any attorneys who have experience either in negotiating with the Board on its demands for retroactive premiums or taking legal action against the Board for its failure to perform its fiduciary responsibility. Some firms wish to take action individually and other would consider some sort of class action. But they all need counsel experienced with this issue.
Let me know if you are interested or know of any firms interested in being listed on a reference list I can send to those seeking legal assistance. This list will not be posted to the website but available only on request by qualified parties of interest.
Finally, if there is an interest. I would be happy to set up a website that could act as a clearinghouse for information for all the firms whose financial viability has been threatened by the Board’s failure to meet its obligations as well as listing any and all documents and press releases relating to this debacle.
| . . . . | February 3, 2012 |
Volume 163 Issue 1 |
. . . |
2011 Review of Appellate Court Decisions
The fact that 2011 saw the worst performance by the NYS Workers Compensation Board at the New York State Appellate Court, Third Department only summarizes the obvious. This week I have gone into detail in my COMMENTARY as to the types of issues heard by the Court and how the Board fared in the 45 issues, in four categories, covered this year. The initial review shows that both claimants and carriers fared equally on review by the Court, with both losing more than half their appeals. What makes this increasing poor performance by the Board a real tragedy is the impact it has on injured workers and their families as well as their employers who rightfully feel their problems are being treated with disdain by the Board and thus are distrustful and angry at the Board. Unfortunately, it is the the examiners and clerical staff and law judges who face these people regularly while the commissioners and the executive hide in their ivy towers.
There were no workers comp-related decisions issued by the Courts this week.
| . . . . | January 26, 2012 |
Volume 162 Issue 1 |
. . . |
This week the Board wins one!
DECISIONS: For the 21st time since the fall of 2009, in the one decision issued by this week by the NYS Appellate Court, Third Department, the Court has affirmed the Board’s denial of a request fro reconsideration or Full Board review, this time denying the review to a carrier.
| . . . . | January 19, 2012 |
Volume 161 Issue 1 |
. . . |
Board reversed 3rd week in a row!
Anyone in charge?
Three weeks into the year and the Board’s legal review process seems to be going in a rather predictable direction this year. With a number of reversals, not on the interpretation of the law but for the Board’s continual failure to explain its reasoning or justify contradictory decisions, one has to question who was in charge of this process in late 2009 through late 2010 when these decisions were being issued? And this runs from the Chair to the commissioners to those in the Administrative Review Division.
And if you have yet looked, now is the time to read about THE TOP ATTORNEYS FOR 2011 - Sean Nicolette and Robert Golan.
DECISIONS: Another bad week for the Board, although it won two affirmances, the Board was again castigated by the Appellate Court, Third Department for its failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so
| . . . . | January 12, 2012 |
Volume 160 Issue 1 |
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2011’s BEST ATTORNEYS
Board loses two including an ATF case
Well, like all of us who start off the year with great New Year’s’s resolutions and then break them, the Board has ended its 11 for 12, one-week winning streak. But more importantly, today I name THE TOP ATTORNEYS FOR 2011 - Sean Nicolette and Robert Golan - as well as listing all those attorneys who prevailed in arguments before the Appellate Court and Court of Appeals, along with their cases.
DECISIONS: This week the Board was handed two reversals. In one the Court decided for a claimant improperly accused of §114-a fraud. In the second case, the Board suffered it first reversal on an ATF case “because the Board did not provide any rationale for exercising its discretion.”
COMMISSIONER BIOS: These have some updates including David Dudley and Loren Lobban. Lobban’s bio on the Board’s website is blank; my bio of him is not.
| . . . . | January 6, 2012 |
Volume 159 Issue 1 |
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Board wins 11 of 12 cases at the 3rd - a Propitious start?
Well, it is nice to see the Board start off with a bang but there are some questions in its winning 11 of 12 decisions at the Third Department.
DECISIONS: This week’s decisions for the Appellate Court covered a wide variety of topics, ranging from §25-a (The Board won one!) to ‘spaghetti runs‘, volley ball injuries, and occupational disease. The only interesting case, from a purely procedural perspective, is Richman v NYS Unified Court. The Board was rather emphatic in denying an appeal, clearly justifying its decision. Then, a few months later, after a FBR, it reversed itself but this time gave no reasons to explain why its reasoned decision of denial as few months earlier was in error. And, it is interesting to note how fast this case went to a FBR and got a response. As to whether or not WCL §21 was properly applied (the Court gives the Board a great deal of leeway on this issue) is another matter.
COMMISSIONER BIOS: These have some updates including David Dudley and Loren Lobban. Lobban’s bio on the Board’s website is blank; mine is not.
| . . . . | December 29, 2011 |
Volume 158 Issue 1 |
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HAPPY HOLIDAYS for you but not the Bd: It loses again!
DECISIONS: With the Appellate Court’s last opinion (a reversal) of 2011 issued yesterday, the Board’s record for the year would be a flunking grade in any decent college (and one would hope every law school). Considering that there are between 50 and 60 writers in the Administrative Review Division, it is obvious that some writers had an grade in excess of 70 and a few well below that.
Any heads going to roll?
Added to the failing grade for the Board this year is the fact, as previously noted in this web site, that the Board is doing half as many cases as it did two years ago and taking twice as long to get them done, and gettng the wrong in the process: it is incredibly astonishing that nearly a third of its decisions should be rejected by the Appellate Court and Court of Appeals.
And while I have posted tens of thousands of words to this website over the past three years, I can not find one to properly describe the above scenario. In the losing decision just issued, the Board has again this year misunderstood or misapplied Burns v Varriale.
| . . . . | December 22, 2011 |
Volume 157 Issue 1 |
. . . |
HAPPY HOLIDAYS but a lump of coal for the WCB!
DECISIONS: The Board has just about reached the end of the year in a style all too consistent with its performance so far this year: two reversals, one favoring the claimant and the other the carrier. The Court rejected the Board’s decision making process when the Board determined that the claimant voluntarily withdrew from the labor market and in the second decision that the Board improperly denied the carrier the right to cross examine witnesses.
| . . . . | December 15, 2011 |
Volume 156 Issue 1 |
. . . |
Affirmances all around
DECISIONS: With three affirmances from the Third Department, it looks like the Board may squeak past this year with a passing grade of “D” for the year. There was also a case from the Court of Appeals on a claim against the employer on the issue of an uninsured motorist and one from the First Department determining by whom it was that a worker at a trade show was employed. As for one of the cases of the Third Department regarding the Board, the Board was affirmed but I shall leave it to you to determine, “Why?”
| . . . . | December 12, 2011 |
Volume 155 Issue 2 |
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The State Taketh & The Board Taketh!
NEWSWIRE: The Albany Times Union reports that State budget officials are looking at the surplus in SIF to help balance the State’s budget while several newspapers are reporting that the Board, a State agency, is looking to sue thousands of small business, and their owners personally, to collect the GSIT underpayments. even if it means closing down thousands of small employers all over the State. A lot of issues have been raised, including, again, the position of the Board on it what one would have thought was its fiduciary responsibility to oversee the trusts.
DECISIONS: Just a reminder for you to send in your list of the most important Court decisions so far this past year. And a note that the Board has its worst affirmance rate ever at the Court of Appeals and Appellate Court: 70.4% barely a passing grade at any good college.
| . . . . | December 8, 2011 |
Volume 155 Issue 1 |
. . . |
The Zamora decision analyzed;
Board looses again on §25-a case.
COMMENTARY: You, the readers, had many comments on my COMMENTARY on Zamora v NY Neurologic but the longer ones, the ones I posted, were only from those who appeared to support a strong interpretation of VWLM. I know from speaking personally to those who do not take that position that they have strong and well-reasoned opinions and would welcome the opportunity to publish a few here.
DECISIONS: Aside from a 1st Department case, the Board split 1-1 at the Third Department this week, bringing its record for the year to date to a dismal 70.4% pass/affirm record. With three more weeks of decisions to go, will the Board get a ‘failing grade’ for the year. Or do you agree with me that anything under a 90% affirm record is a failure? And YES, a PRO-SE claimant handed the Board a reversal, even after an amended Board panel decision.
| . . . . | December 1, 2011 |
Volume 154 Issue 1 |
. . . |
The Zamora decision analyzed;
Board looses again on §25-a case.
COMMENTARY: With a decision in Zamora v NY Neurologic on the immediate horizon, I weigh in with my opinion and prediction on the case, warranted if for no other reason than there are many in the community who look at me, incorrectly I may add, as the architect of the concept of voluntary withdrawal from the labor market. I was not THE architect, just one of the more vocal members of a board of 26 commissioners (over the 12 years I served) who argued and attempted, on rare occasion, to develop some coherence on this subject.
DECISIONS: Par the for course, the Board is again on the losing side of a decision on the definition of what is a true closing under §25-a.
| . . . . | November 24, 2011 |
Volume 153 Issue 1 |
. . . |
Yes, Board knew of Fee for Guidelines:
Court Affirms Bd in 4 Cases
NEWSWIRE: Michael Whiteley has written an article which seems to indicate that the Board did acquiesce to the American College of Occupational and Environmental Medicine (ACOEM) charging a fee for anyone seeking access to the State mandated Medical Treatment Guidelines, although the Board seems to have no record in its own files or institutional memory on this issue. Finally, new medical tests on 911 workers could be used to indicate which prospective employees would have a higher risk for occupational disease in some occupations.
DECISIONS: This week, the Appellate Court affirmed the Board’s rulings in three cases in which the Board determined which carriers would pay how much money and in a fourth denying a pro-se claimant’s appeal. The fifth case posted this week deals with a §11 jurisdictional matter in which the Board is not a party of interest or even an interested party.
| . . . . | November 17, 2011 |
Volume 152 Issue 1 |
. . . |
Court Affirms Bd in 3 Cases; MTG: Pay to Pay?
NEWSWIRE: A controversy has erupted over the possible requirement that carrier and medical providers pay a fee to the American College of Occupational and Environmental Medicine (ACOEM) to use the new Medical Treatment Guidelines.
DECISIONS: This week the Appellate Court affirmed the Board’s rulings in three cases as well as a workers compensation related case won by the Office of the Comptroller. And just as happened last week, it appears, at least to me, that an employer in a death case had a different perspective than that of the carrier. As I noted in my summaries of these cases, the history of these cases shows that it can take the Board years to make a decision on just one issue.
| . . . . | November 16, 2011 |
Volume 151 Issue 2 |
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Court of Appeals Affirms Board on ATF
DECISIONS: This week under the lead case Raynor v Chrysler Landmark, the Court of Appeals affirmed the Board’s position requiring that private carriers make mandatory deposits into the ATF.
| . . . . | November 10, 2011 |
Volume 151 Issue 1 |
. . . |
Court Affirms Bd & Clts on AWW
NEWSWIRE: Based on the second PEF vote, the layoffs at the Board, as well as all the other state agencies, have been cancelled it. But I see an issue with furloughs.
DECISIONS: This week the Appellate Court affirmed the Board’s ruling i favor of the claimant’s decedent’s AWW. In fact, it seems the employer agreed as well; just the carrier was unhappy.
| . . . . | November 3, 2011 |
Volume 150 Issue 1 |
. . . |
Court Affirms Bd 4-0; NEW Medical Guidelines
NEWSWIRE: The Board announces its 125-page 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.
DECISIONS: This week the Board had four affirmances issued by the Third Dept. The claimant prevailed in a VFBL death claim but lost on VWLM and a WTC claim. The last case was apportionment between two carriers.
| . . . | October 27, 2011 |
Volume 149 Issue 1 |
. . . |
Bd loses again at 3rd; CLE Should be required for WCB
This week’s postings seems to prove the point that the Board is not/does not/will not listen to anyone. And there is more to come.
COMMENTARY: My attendance at last week’s NYS Bar Associations CLE on workers compensation law prompts to me to suggest, among other points, that attendance at same should be required for all Board attorneys, the commissioners, and top Board staff Details in the COMMENTARY page.
DECISIONS: Nothing new: The Board loses again, again to the Fund. And there was an interesting case about uninsured employers and death claims. Details on the DECISIONS page
| . . . | October 25, 2011 BULLETIN |
Volume 148 Issue 2 |
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Board layoffs: Legal or Political
NEWSWIRE: According to an article just published in Crain’s today, there are some serious questions as to whether or not the 27 layoffs proposed by the Workers Compensation Board are not only required but legal. In fact one industry insider (not me) suggested this is being done to save one political appointee’s own job. Details in the NEWSWIRE page.
| . . . | October 20, 2011 |
Volume 148 Issue 1 |
. . . |
Bd gets an “Oops”; So do I; CMS updates
DECISIONS: The Board gets smacked on the back of its hand from the 3rd A.D. for again contradicting itself on a legal issue while the 1st A.D. also issues two workers comp-related cases. Details on the DECISIONS page
COMMENTARY:A review of some of your e-mails including one that correctly point out an error in a recent COMMENTARY.Details on the COMMENTARY page.
NEWSWIRE: CMS continues to change/upgrade/mess up the Medicare Set-Aside program with a number of new rule changes. Details in the NEWSWIRE page.
| . . . . | October 13, 2011 |
Volume 147 Issue 1 |
. . . |
WCL has a death tax; WCB job layoffs a charade, and mor
DECISIONS:This week I explain why the Board layoffs are a charade. Also, Ron Balter, Louis Dauerer, and James McCarthy explain why WCL §15.3(v) is a ‘death tax’, reducing benefits to the spouses and families of injured workers who die as a result of their injuries. While this is an example of the ‘law of unintended consequences’, it is also an example of the Board’s failure to bring this deficiency to the attention of the State Legislature.Details in the NEWSWIRE page.
DECISIONS: Although neither the Appellate Court, 3rd Dept nor the Court of Appeals issued any workers comp-related decisions, they both have heard a number of arguments in the last few weeks so that a number of decisions from both court scan be expected shortly.
NEWSWIRE: The Board announces its Medical Treatment Guidelines for Carpal Tunnel Syndrome. The Board is asking for comments no later than December 11, 2011. But based on their abject failure in the past year to respond to anything from the workers compensation community, let alone acknowledge that there is such a community, one could accurately presume that the proposed guidelines will become formalized in due course as is. Details in the NEWSWIRE page.
| . . . . | October 6, 2011 |
Volume 146 Issue 1 |
. . . |
Good Day at Park Street; CLE Courses and more
Now that the fall season is here, it looks like the workers compensation arena will be quite full of stories, issues, and perhaps some new appointments.
DECISIONS: The Board’s results this week at the Appellate Court, Third Department, are a marked departure from last week: this week the Board was affirmed in all six opinions issued. In another ATF issue, the Court ruled that even though the deceased claimant will not collect any more money, the carrier must still put a sizeable deposit into the Fund. Claimants came out on top in two §114-a fraud cases and a third case on AWW. In two decisions, the Court accepted the Board’s denial for a Full Board Review, although I have questioned the legality of same on the basis that §142(2) does not, by my reading, give the Vice-Chairman the authority to be the sole signatory on these decisions. Details on the DECISIONS page
NEWSWIRE: A major workers compensation-related internet business, workcompcentral.com, has written an article about my recent COMMENTARY in which I offer the Board’s own stats to show that the Board is not working, supporting my allegations with remarks from a wide range of members from the New York State workers compensation community. And, belatedly, I am listing the last two in the series of CLE courses offered by the New York State Bar Association on workers compensation law. Details in the NEWSWIRE page.
| . . . . | September 29, 2011 |
Volume 145 Issue 1 |
. . . |
Bad Day at Park Street: WCB loses 4 of 5 at 3rd A.D.
DECISIONS: The September 29, 2001 opening session at the Appellate Court, Third Department does not present itself as a propitious start for the Board’s decision making record: 1 win - 4 losses. So while the Board did get an affirmance on one aspect of its plan to speed up the adjudicative process (regarding notices per NYCRR 300.38), it got reversed for its failure to understand that speculative opinions do not a case make and reversed for deciding against a carrier for failing to supply testimony from witnesses the Board stated it did not need. In the third case, it was reversed for misinterpreting the calculation of average weekly wage for a seasonal worker. And, far too typical for the Board, the Court ruled against the Board’s new interpretation on legal fees, contrary to an interpretation a Full Board Review took pains to define, an interpretation supported by an Appellate Court decision, and an interpretation cited in prior MoD’s by the Board. As a result, under ‘issue code’, I did not use my issue codes for legal fees but one for ‘Decision Inadequately/poorly written.’ Details on the DECISIONS page
| . . . . | September 22, 2011 |
Volume 144 Issue 1 |
. . . |
Bd Stats Show BD isn’t Working; 3rd AD’s Calendar
COMMENTARY: The Board stats show Board isn’t working based on a review of appeals shows: in 2011 as compared to 2009, the Board is issuing half the decisions but taking more than twice the time to do that half, i.e it is 75% less effective in work that effects injured workers.. Details on the COMMENTARY page.
DECISIONS: Although there were no workers compensation-related opinions issued this week, the 3rd Department of the Appellate Court as heard 19 arguments on WC cases.Details on the DECISIONS page
| September 15, 2011 |
Volume 143 Issue 1 |
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WCB’s stats mislead; Court of Appeals says Held (ATF) OK
Unfortunately for me, there is no free lunch: no one took my bet “The Board will not respond or even acknowledge my posting of Jon Klee’s letter asking about medical variances.”The Board has not even acknowledged receipt of my e-mail or Jon’s letter.
DECISIONS: Board Wins on Aggregate Trust Fund Case: In a major setback, in the one workers compensation related opinion issued this week, the Court of Appeals ruled that the retroactive imposition of required payments to the ATF is constitutional. Details in COURT DECISIONS. Seems that those few at the Board whose raison d’être was to represent the carriers/lobbyists on this use had better brush up their resumes. Details on the DECISIONS page
COMMENTARY: The Board Fudges Stats on Appeals: And equally important, since the Board likes to toss out statistics to show how great they are, I have included in the COMMENTARY some of the Bard’s own statistics from a few years ago, asking the Board to again generate them but this time make them public. Unless, that is, the stats show John Klee’s complaints have merit. Details on the COMMENTARY page.
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September 8, 2011 |
Volume 142 Issue 1 |
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Carl Copps moves on;An Attorney Questions Bd on Medical Variances
While there are no workers compensation related decisions issued by any of the courts in New York, there is a story the NEWSWIRE and some letters in the COMMENTARY that evidence the continuing deterioration of the Board’s ability to serve its constituency.
NEWSWIRE: Carl Copps, who was responsible for establishing the Board’s Office of Appeals/ Administrative Review Bureau, has recently left the WCB and moved to the office of the NYS Bar Association. Details in this week’s NEWSWIRE
COMMENTARY:In response to last week’s Daily News Story about the deleterious effects the new Board’s medical guidelines are having on injured workers continuing medical treatment, John Klee, Esq., has written a letter to the Board questioning the Board’s official position reported in the article.In support of Klee’s letter, I have included a letter I have emailed to the Board’s chief officers questioning their sincerity not only in their answers but their attitude towards this issue and the injured workers who they are supposed to be serving.
And equally important, since the Board likes to toss out statistics to show how great they are, I have included in the COMMENTARY some of the Bard’s own statistics from a few years ago, asking the Board to again generate them but this time make them public. Unless, that is, the stats show John Klee’s complaints have merit. Details in the COMMENTARY.
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September 1, 2011 |
Volume 141 Issue 1 |
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NYS Injured workers are ‘High”; Daily News on new Med Guidelines “Bad”
Two of this week’s news stories deal with the problems with the NYS Workers Compensation Board’s new medical guidelines, as well as the approval of NYCIRB’s WC insurance rate increase.
The recent investigations into new medicines now consider that a single solution to a disease may not work, that it may be necessary to tailor the chemistry of the new wonder drugs to take into account various differences in the individual patient’s body and medical history.
The Board seems to be going in another direction with a ‘one size fits all’ approach. The New York Daily News has an article, promoted most likely by lobbying by a medical group, explaining why the new guidelines with time limits for medical care do not work.
And this is not a Republican v. Democratic issue as one of the leaders promoting changes in legislation regarding medical guidelines is Republican Sen. George Maziarz.
And a national study shows that another medical practice, apparently well within Board guidelines, may be turning New York’s injured workers into drug addicts, thus making their return to the workplace, or their own lives, as productive citizens difficult.
And of course, an increase in insurance rates is approved under the maxim “if you need $10 ask for $20 and then graciously settle for the $10 you originally wanted.”
Comments on this subject on our NEWSWIRE page or any other subject, as always, are welcome.
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August 25, 2011 |
Volume 140 Issue 1 |
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A Guest Writes About Medicare Set-Asides
This week I am pleased to have a commentary from David J Depaolo, president of President of WorkCompCentral which is a subscription based online publication of workers’ compensation news, education and data services.
He explains how the Obama bureaucracy has joined the NYS WCB in giving the workers compensation community, claimant and carrier attorneys, and medical providers a common cause.
In this case, it is the federal governments inability to develop a coherent and consistent policy regarding Medicare set-asides that have added another layer of complexity and a meaningless impediment for the injured worker and carrier seeking a §32 settlement.
Go to the COMMENTARY page for his interesting perspective on this problem.
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August 18, 2011 |
Volume 138 Issue 1 |
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Former WCB Comm supports my last week’s COMMENTARY
After my first year at the Board, I felt as if I was one of the Four Horsemen of the Apocalypse (Vice chairman Jeff Sweet, Commissioners Karl Henry, and Commissioner Carol McManus being th other three)who were there to bring back energy to the Board and help newly elected Governor George Padauk achieve his goals for the agency. Vice chairman Jeff Sweet, Commissioner Karl Henry, and Commissioner Carol McManus being the other three.
Unfortunately with only a few exception, most of the new appointees were examples of the complaints raised by Rick Karlin in the Albany Times Union, which, in turn, prompted my COMMENTARY last week after Governor Cuomo proposed cutting commissioner salaries.
Weighing in in today’s COMMENTARY is Carol McManus, one of the Four Horsemen, whose letter speaks for itself.
I take this opportunity to thank Carol as well as all the others who wrote in agreeing with my posting.
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August 11, 2011 |
Volume 137 Issue 1 |
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Patronage, Commissioners, Salaries
The recent decision by Governor Andrew Cuomo to slash pay 90% for political plum state commission seats, as reported by Rick Carlin in the Times Union on August 5, resulted in a number of e-mails to me asking my opinion. And who am I to deny the public that request?
As with any organization, they are some who are overpaid while there are others who are underpaid. One could argue that all the commissioners are overpaid - look how many people seek the job. But, then again, many want the job so that they do not have to work with the result that some would take the job at the Workers Compensation Board currently paying $90,800 for only $30,000 while for $30,000 you may not get anyone who can or will do the work properly as some of the current commissioners now do. For a more detailed analysis, read the COMMENTARY.
