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 Who’s Left to Sign Decisions?

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

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

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

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

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

So how does this impact on claimants?

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

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

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

How did this happen?

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

• 1997 to 1999: 25% of my MoDs had a panel without an attorney. Excluding the Chair, there were three attorneys on the Board.
• 2000 to 2003: 41% of my MoDs had a panel without an attorney. Excluding the Chair, there were usually three attorneys on the Board.
• 2004 to 2008: Other than 2006 when I had 11 cases without an attorney, I had no MoDs without an attorney on the panel. The number of attorneys ranged from two to four, but was usually three.

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

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

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

What’s the Solution?

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

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

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

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

Summary

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

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 The Legacy of Zach Weiss

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

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

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

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

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

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

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

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

ADJUDICATIVE

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

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

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

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

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

ADMINISTRATIVE

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

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

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

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

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

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

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

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

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 Judicial Economy vs Judicial Integrity

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

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

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

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

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

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

But first some statistics:

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

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

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

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

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

• In one case the panel denied the FBR, thus taking the position that the recommendation to change the original MoD was in error. In the case at hand we were not dealing with a black and white legal issue but one with shades of gray. After the three of us denied the FBR, overriding the OGC, we got e-mails arguing with us. We held our position. We then got a phone call from Libous asking, then telling us to accept the FBR. We refused and ultimately told that one of us would be taken off the panel unless we agreed to a FBR.
• In one case the panel did not accept the recommendation of the OGC although we did agree to a FRB. But our concern was that the FBR was not properly written and we rejected it. We were told to not waste time and just sign what we were given. We refused. The FBR was given to another panel. But since this issue had case had come up at a prior monthly meeting, the second panel refused to take the case. Ultimately, my panel’s rewrite had to be accepted. The dispute was over the fact that my panel wanted more than to write “We have changed our mind” but to explain why, so that all who read the revised MoD would understand our thinking and, in the long run, cut down on the number of appeals on this issue.

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

• As noted in my book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.As noted in my Book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.
• One of my panels (as well as one other) had a new issue come before us, one that was quite interesting and had the potential to set precedent. My panel had mixed feelings and felt that the issue was too important for just three of us to decide. So one of us volunteered to write a dissent so that the losing side (the carrier in this case) could ask for a FBR. (When there is a dissent in a decision and the losing party requests a FBR, it must be done.) But in this case the carrier did not. So we asked to put it down for FBR. We were told commissioners do not have that right.

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

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

A Guest Commentary on Board Doctors

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

Why we got rid of Board doctors in the first place

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But the real problem is three fold:

• Between the claimants’ and the carriers’ doctors, who is more unbiased?
• Why aren’t there any guidelines as to degree of functional disability?
• Why do cases on new medical issues take so long? It took about four years or more for cases in which claimants argued that colon cancer was consequential to asbestos exposure before there was sufficient medical evidence to establish the possible link. (see Behind The Closed Doors, Page 76-77).

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

• Although carrier doctors are called Independent Medical Examiners (IMEs), even if they are not salaried employees of the carrier or third party administrators (TPAs), their income is derived for these firms. Hence, their ‘independence’ can be questioned.
• Claimant doctors are the one usually chose by the claimants, some of who have had long term relationships with the claimant, the claimant’s family, friends, relatives and/or coworkers. And since they see the claimant on several occasions, particularly if they are regularly treating him, they do not wish to get their patient angry with them.

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

• Are these doctors going to be full time doctors, working exclusively for the Board?
• Where would their offices be located?
• From where would the funding be derived to pay for these doctors, their offices and all their equipment?

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

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

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

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

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

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

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

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Who Wins The Most Appeals?

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

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

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

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

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

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

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

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

• Some of the CARRIER appeals do not involve the claimant but deal with §25a, §15(8), §21(f) or other disputes between carriers and/or the Special Funds.
• Some of the CARRIER appeals do not directly involve the claimant but deal with penalties, denials of RFA-1’s, or late payment penalties , i.e What is 30 days late?.
• A small number of the ‘claimant’ cases actually involve FEES in which the claimant is not taking a position on this issue or they have a request to reopen a Lump Sum.

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

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

• Legal issues
• Procedural Issues: RFA-1, penalties, proper filing of forms (but not §18 or §28)
• Medical Issues: Degree of disability, further causally related disability, which sites
• Legal/Medical
• Legal/Procedural
• Medical/Procedural

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

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

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

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

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

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

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Fees: What’s Fair & What To Do

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

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

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

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

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

WHAT IS THE HISTORY OF FEES?

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

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

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

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

CAN THE BOARD SET FEES?

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

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

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

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

HOW TO PROTECT YOURSELF

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

• Since you firm has handled the case (particularly if you are not the first attorney), what is the total amount of compensation that has moved to the claimant though the date of the last fee you got.
  
• How much was that fee?
• Including the §32, what is the total amount of money moving to the claimant, and what is your total fee?
• If you have any sense of the amount of medical that has been paid and it is a lot, toss in how many office visits, physical therapies, or surgeries there have been.
• Since you don’t get fees for appeals and rebuttals, if you have had some since your last fee (and by fees, I do not mean a $75 appearance fee), put that in, too.

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

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

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

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

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

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

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

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Legal Reasoning vs Intuition

Indicia tables

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

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

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

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

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

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

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

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

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

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

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

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

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