In my COMMENTARY last week about the result of the poll on the Board’s failure to issue medical guidelines and the impact it had on §32 waiver agreements, a number of people pointed out that the NYS WCB has in fact published those guidelines.
These were published under Subject Number 046-270 (January 26, 2009) “Proposed Medical Treatment Guidelines” and Subject Number 046-346 (August 13, 2009) “Final Request for Comments on Medical Treatment Guidelines”.
But these are not what I was making reference to, as I already made reference to these documents months ago, when they were first published. I find fault with these documents for two reasons:
FIRST REASON: Degree of Disability
While these guidelines go into great details on defining certain medical conditions, treatment, and therapy, there is nothing in here that references the key point: the injured workers’ ability to return to their prior job and therefore the degree of disability, be it Mild-Moderate-Marked-Total or 25%, 50%, etc.
As has been noted several times in this web site, in my book “Behind The Closed Doors”, and dozens of other articles by other writers, the loss of the left pinkie finger for a right-handed file clerk is substantially different from that for a right-handed professional violinist. The fact that two individuals have the same injury does nothing to address degree of disability and the impact of that disability on their ability to return to work, which would be different for a file clerk, a construction worker, or a teacher.
SECOND REASON: Medical terms and treatment
Now I am the first to admit that I am not a doctor BUT, my wife, my mother, and I, all within the period of one year each had major surgery done by one of the top orthopedic surgeons in New York City for the same site of injury although for different problems. I have copies of all the medical records but I could not find anything in the medical guidelines for that body part that matched our injuries/conditions that required the complex surgery for each of us.
SUMMARY
So not only is there no treatment guidelines that applied to our injuries and I am sure dozens of other injuries for others, the most important part of the puzzle is the degree of disability. What I found interesting is that my wife’s condition qualified her for a minimum 66% SLU even though her functional capability was almost returned to normal. She was considered to be at the 95% recovery level. But the 1996 Medical Guidelines were very specific: she could not qualify for a ppd but only for an SLU and at a minimum of 66% even if she were 100% functionally ‘cured’.
So not only is there no treatment guideline that applied to our injuries and I am sure dozens of other injuries for others, the most important part of the puzzle is the degree of disability. What I found interesting is that my wife’s condition qualified her for a minimum 66% SLU even though her functional capability was almost returned to normal. She was considered to be at the 95% recovery level. But the 1996 Medical Guidelines were very specific: she could not qualify for a ppd but only for an SLU and at a minimum of 66% even if she were 100% functionally ‘cured’.
The Medical Guidelines are just that: guidelines to define, classify, and treat injuries.
Perhaps what the legislation should have called for is “Degree of Disability Guidelines” or “Functional Capability Guidelines”.
August 28, 2009
As I noted in today’s DECISIONS page, today’s 3-2 split decision in D’Errico v New York City Dept. of Corrections at the New York State’s Appellate Department, Third Division, the issue had to do with the size of the class within which the claimant’s employment fell. This issue was whether or not the claimant’s various psychological problems were the result of exposure to a greater amount of work-related stress than that normally experienced by similarly situated employees at correctional facilities.
Although the claimant’s appeal of the underlying decision was denied due to a late appeal, it seems as though there was no question that the claimant did suffer from severe major depressive disorder with psychotic features, posttraumatic stress disorder and panic disorder with agoraphobia. Claimant sought workers’ compensation benefits, asserting that his illness was caused by his exposure to violent incidents in the course of his employment as a maintenance worker for the New York City Department of Corrections.
The Law Judge ruled in the claimant’s favor only to be reversed by a Board Panel, which used a narrower definition of a work class than did the Law Judge. A Full Board Review (FBR) was denied on the grounds, per the Appellate Court’s 3-member Majority, that the claimant “must generally show that newly discovered evidence exists, that there has been a material change in condition, or that the Board improperly failed to consider the issues raised in the application for review in making its initial determination”, but in this case, failed to do so.
After having served on the Board for 12 years and been involved in dozens of decisions on cases involving WCL §2(7) stress issues, I agree with Judges Garry and Stein in their dissent.
I have often said that the difference between a conservative and a liberal is that the conservative throws a dart to try to hit the bull’s eye on a target whereas the liberal throws that dart and then paints the target.
In this case and similar cases in determining the size of the ‘class’ of claimants, the decisions are more often than not, for many of the commissioners, dependent on the employment of the individuals whose cases are being reviewed and how sympathetic they are. Because the legal precedents quoted several times in this decision allow the Board discretion, the decisions are usually upheld. But as happens in many cases including this, there are no specific list of indicia given in the decision that would help anyone distinguish this case from any others.
And while there does not have to be a numeric census of a group to determine how big a ‘class’ has to be, there has to be something to distinguish the decisions. The first time I had such a case involved a traffic enforcement agent (who issued parking tickets) who filed a stress claim due to harassment for the public to whom she was giving tickets. My panel ruled and won a FBR on the issue that this particular class of employees (those who give out parking tickets) were not only regularly subject as a part of their job to harassment from the public but were trained as a part of their duties how to deal with it.
But this list of indicia to distinguish one group from another takes a lot of work and it appears that the writers of the original decision which reversed the law judge, the commissioners on the case, and attorney in the Office of General Counsel who recommended denying FBR, and Vice Chairman Libous who signed the denial felt that Board discretion was sufficient to withstand an appeal to the Court.
As such, this is another example of a poor Board decision. Poor in the sense that it deals with a major issue and a simple ‘yes/no’ does not suffice. A clarification of indicia would have resulted in the Board making a decision that would have received unanimous affirmance from the Appellate Court.
Now, not only was a lot of time and money wasted, and a claimant’s’s expectation dragged on for another year, but an opportunity was lost for the Board to define an issue which in my expectation would prevent or at least minimize additional appeals on such issues. Hopefully, based on a 3-2 decision by the Appellate Court, this will go to the Court of Appeals where it will be, hopefully, determined that the Board has a responsibility in such cases where it has the discretion noted by the Majority which referenced the Matter of Green v Kimber Mfg., Inc., 59 AD3d 782 , 783 [2009], lv dismissed 12 NY3d 865 [2009]; see Matter of Barber v New York City Tr. Auth., 50 AD3d 1402 , 1403 [2008]; see also Matter of Lehsten v NACM-Upstate N.Y., 93 NY2d 368, 372 [1999]).
August 21, 2009
After nearly one year after my departure from the New York State Workers Compensation Board, the Board has formally recognized my existence . . . By denying it.
Sometime between the 3rd and the 7th of August, 2009, the Workers Compensation Board added my e-mail to its SPAM list so that members of its staff can no longer receive my e-mail alerts, or any personal messages, for that matter.
The WCB is like many bureaucracies with little centers of power each of which has its own objectives, even if for many it is not for the betterment of the injured workers and their employers. During my time at the Board these various interest groups ignored or rejected recommendations not just from me but from other concerned staff and commissioners. And, even though I am no longer at the Board, this practice continues and I assume is the reason my e-mails are now being blocked.
The NYS WCB has the legal right to do this. And I am sure that they will explain the reason is that they wish to restrict the use of Board’s limited resources to only those flows of information which they feel enhance the goals of the Board, as determined by them.
I have no intention of getting into a ‘whose is bigger’ contest with the Board for the simple reason that is not the purpose of this website. I see no reason to take away from this web site’s goal by getting in a ‘tit for tat’ with the Board. I, too, have limited resources but feel they are best used helping the workers compensation community in New York State, including Board staff, rather than limiting the number of people who can contribute to the community and participate in the necessary conversations.
My postings have included unedited comments from some who vehemently but articulately and maturely disagree with my points of view. Many have made excellent points and, as a result, I find myself readjusting my views and recommendations. And, when I have made mistakes in my postings and I have made a ‘beaut’ or two, I have admitted same and fixed it.
Yes, I have been critical of the Board but I have also given a tip of the hat when it is deserved, as often as not for putting into play some of the suggestions which I have made. (I am not claiming that it was my suggestions alone which prompted these changes but I like to think they may have been the straw that broke the camel’s back.) In fact, I have been told that the Board now duplicates another of my features by letting key staff know about workers compensation related decisions issued by the Appellate Division 3rd Departments within days of their being issued and not once a month or so.
And I understand that serious consideration is now being given to CLE courses for Licensed Reps and even better training for the new commissioners, perhaps on a regular basis.
As for the decision by the Oligarchic Cabal to ‘silence me’ because I am ‘abusing’ e-mail access to their staff, my e-mails have always offered every recipient the opportunity to opt out and some have. But for each one who has said “take me off your list” there have been another five who have asked to be put on the list. But, again, if the Board does not want Board staff getting these e-mail alerts about news and updates on my website, that is their option. And I will not use my computer skills to get around that block. [ED NOTE: On August 14, 2009 I did use my computer skills to by-pass the Board block solely to let Board staff know I and the web site are still around. I will not do that again.]
For if anyone at the Board would like to continue receiving my alerts, they need only to click here TheInsider@InsideWorkersCompNY.com and give me a non-Board e-mail address. My list is stored not on any website but on a secure hard drive so everyone’s privacy insured.
Closing one’s eye, covering one’s ears and loudly repeating “nah nah nah nah” only means that you will not know what is going on in the world around you, for the world, its critics and its cheerleaders alike, will still exist. To those at the Board whom the Cabal would like to block from knowing of my continued existence, I invite you to continue to participate in the conversation as you have in the past: privately and in confidence but now from your homes.
This is the last I will have to say on this subject for there are far more pressing issues in the workers comensation world that need to be addressed.
August 14, 2009
The following is the unedited comment from an attorney:
Having read the latest dialogue on the issue, I offer these as considerations:
That non-attorneys may represent claimants and carriers does not fully justify that fact - it is self-serving and does not rise to “legal representation” which was the category on the Board’s web site until recently;
- The limits on non-attorney representation [e.g. non competence to appeal to the AD3d or represent a corporation] should be clearly defined on the Board’s web site;
- Legal reasoning is a predicate based upon jurisprudence [including case precedent, analysis, and application] that supports an argument; non-attorneys, unfamiliar with such analysis, may not appreciate this art;
- The WCL has grown increasingly legalistic, including regulatory reference to the CPLR and rules of evidence [viz. video tape and “chain of evidence”];
- CLE should be required of Lic Reps and all Commissioners as a means to restore the long standing mission of the WCL and its jurisprudence.
The point is that there exists a more vital set of public policy issues that need to be addressed.
It would be nice to hear from a licensed rep!!
I am pleased to post the following response from an attorney on my discussion of legal briefs. As I did in last week’s commentary, I do agree with a great deal of what is written.
I think I can summarize these comments by stating that the writer feels that the Board must put its best foot forward in its decision making process and I agree. But the question is whether or not attorney can assure the best results. His remarks follow after which is my response.
READER’S COMMENT
It’s up to you if you publish the comment or not. I think it will find wide acceptance among the attorneys on both sides, since I often hear defense attorneys complain about the non-attorneys on the Board Panels as well. Everyone just wants a fair hearing, and those of us who spent years studying legal theories which go back centuries want somebody with a similar background to hear our arguments.
For instance, I once used the following statement of law in a successful matter before a Board Panel, where a carrier’s attorney attempted to submit redacted correspondence (offering a specific but paltry settlement and further terms that were redacted, in addition to a demand to see attachment proofs if my client did not accept the offer, which condition was also redacted while leaving only the demand for attachment proofs) from himself to myself in order to prove that the carrier was entitled to an immediate reopening in a PPD case:
The Best Evidence Rule is a common law rule of evidence. This rule precludes admissibility of secondary evidence such as copies or facsimiles or hand-redacted versions of correspondence between parties whenever the original document still exists. The reason for preclusion is that such evidence is not “the best that the nature of the case will allow.” Omychund v. Barker (1745) 1 Atk, 21, 49; 26 ER 15, 33. In this case, the carrier has attempted to submit redacted correspondence to prove the truth of its assertions, yet the carrier has not provided the Board with the full context provided by the un-redacted, original correspondence. In doing so, the carrier has denied the Board a chance to fairly consider whether the redacted “evidence” may stand for that which the carrier asserts.
Now, the problem for attorneys related to the above-stated example is that the Commissioners all know that there is no strict application of the rules of evidence in WCB matters, but the prudential reasoning which resulted in the 1745 Omychund case is well-known to practicing attorneys in ways that political appointees would not be trained to immediately realize. What would they think of the language, “the best that the nature of the case will allow?” Maybe nothing. Would they immediately recognize that some of the redactions might cover, as it did in this case, conditions precedent to the carrier’s demand for attachment proofs (which were not met)?
Thus, if there is an attorney on a Board Panel, I can basically just remind the Board Panel regarding the rule and then not go into every prudential consideration which may apply, because I can trust that in mentioning the rule under the circumstances described above, any trained attorney is going to have convulsive flash-backs to incidents where the Best Evidence rule applied in that attorney’s own private practice, or at least back to law school where the expansive reasoning for the Best Evidence Rule, together with specific examples for why the rule evolved, were DRILLED into each prospective attorney’s head by countless professors who knew the pitfalls for not respecting this venerable rule. By contrast, if there is no attorney on a Board Panel, I am much more likely to suffer some rather dim analysis that “the Board will just accept the [doctored] evidence because there is ‘no strict application of the evidence rules.’”
Indeed, the WCB must consider judicial interests which apply in the collateral civil courts, such as the perception of fairness which the public has when considering whether the WCB is doing a good job adjudicating comp cases. If the WCB cannot be perceived as doing a good job, its mission will be adversely impacted because more injured workers will opt out based on a real perception that they won’t get justice anyway. For this and many other important reasons, the Board should likely not play fast and loose with the rules of evidence and procedure which have evolved over centuries of western legal thought, even if the plain language of WCL §118 might permit otherwise. In short, a trained attorney provides a safeguard to protect against imbalanced, inconsiderate, arbitrary and capricious process; and in so doing, the presence of the trained attorney communicates the WCB’s commitment to deep and proper adjudication of the cases and arguments which are brought by the parties before the Board. This furthers an underlying mission of the Board to obtain and foster the public’s confidence and trust while the Board is resolving the various claims it considers.
For these above reasons, I continue my position that the Board would be incorrect in convening panels without an attorney, even if the technical language of the statute might allow for this in a particular case, or where the omission of an attorney was incidental and not the product of a formal Board policy. The Board should not reduce itself to relying on mere political appointees. That will do nothing to foster the public’s confidence, nor to ensure that venerable rules and notions of law are properly considered within the disputes the Board must resolve.
MY RESPONSE
Attorneys do have training in legal reasoning that most non-attorneys do not. However to make the case that only someone trained to be an attorney has the ability to reason in such a manner is not a point with which I will agree. Nor do I feel it is necessary. And the State Legislature would seem it agree with me in two different perspectives.
- Non-attorneys who meet certain Board-established standards are allowed to practice workers compensation law: Licensed Reps
- WCL §142 only requires that there be a minimum of four attorneys on the Board thus implying that up to nine need not be attorneys.
Based on my statistics, about 60% of the cases deal with medical issues (causal relation in ANCR, further causally related disability, Schedule loss of use versus permanency). These require more medical understanding than legal training.
Another 20% or so deal with basic legal issues with which board panels deal on a regular basis: ingress/egress, in and out of the course of employment, special/general, independent contractors, etc. While there are thousands of prior cases to be cited and hundred of Court decisions to use as a guide, essentially, many of these cases deal in the gray area and a non-attorney as is qualified to draw the line where they feel it is appropriate as is an attorney.
And then there are about 5% or so of the cases that deal with complex legal issues. I shall reference two.
- ERISA and SLU’s: The issue had to do with the interpretation of the ERISA agreement with Verizon on about 2000 cases. This was a complex issue that one could agree was beyond the skill set of the non-attorneys. But the Office of the General Counsel wrote most of the original decisions on this issue, after conferences with attorneys from both sides of the issue, many of their original decisions were reversed or rescinded by the Court and it took about four years before some basic guidelines for these cases could be done. So it would seem that this issue was beyond the skill set of the attorneys at not only the Board but at Verizon and the claimants’ counsel. In fact, even the Court spent a lot of time communicating with the NYS WCB in order to get a sufficient understanding of the issues to make a decision.
- ATF and the deposit: retroactive and future. This is an ongoing battle internally at the Board with a Full Board Review being used as the basis for 82 cases. There is also a case pending in the U.S. District Court for the Southern District. By the way, the controversy at the Board started when one of the non-attorney commissioners raised some questions. So while one can argue that this issue is beyond the skill set of the non-attorneys, it would seem that the attorneys are not doing that much better.
As to the respect that will be given to decisions issued by the Board panels, this is a function of the commissioners who sit on the panel.
Your respect for the decision being rendered is a function of how you feel that the panel members dealt with our case.
But the writer of the above comment and I agree on one point: MORE TRAINING
The fact that someone has a law degree does not mean they automatically know what they are doing. How often have we all had at a hearing a non-comp attorney come in thinking that administrative law was second-class law and proceeded to make a fool of themselves, even if the person on the other side of the table was a licensed rep?
As to the comments, “The Board should not reduce itself to relying on mere political appointees. “, I add the following comment: “The lawyers on the panels area also appointees. In the 12 years I was on the Board we had as chairman (appointed, pro-tem, acting) six individuals. Some were ‘mere political appointees’. Others offered true leadership.
If there were rigorous training of the commissioners and those who sought the position realized that the position entailed actually working, then be they attorneys or non-attorneys, the goal of the writer and I would be achieved: better and fairer decision making.
August 7, 2009
I received a number of comments regarding my COMMENTARY (see below) last week about legal briefs for the Commissioners.
Today’s posting will address some of the issues raised in one of them.
With respect to “bench briefs”, I am not convinced that the Board staff even knows what they are. However, the substantial issue, as with most legal ones, also involves process, especially with lay Commissioners. The Board has a responsibility, not merely to craft MOBPDs, but to advise Commr’s on the issues. By limiting proposed decisions to the last precedents, the Board fails to communicate the purpose of the law.
In this same vein, the Board has a public responsibility to require CLE of licensed representatives as its web site holds them out - and provides a list - as legal representatives for claimants. Just another example of the Board’s failure to perceive its public mission.
While it may be true that most do not or cannot read [I assume the wrier refers to the Commissioners and not the Lic Reps], the process is equally important. It may be argued that the historical legal context should be covered, e.g. Husted and its progeny, i.e. just what are the safe precincts in traveling to and from work?
CLE’s: I agree 100% with the recommendation that both the Commissioners and the licenses rep take CLE’s.
In my book, Behind The Closed Doors, in Charter 6, I wrote that “some discussions have been held about requiring licensed reps to keep up-to-date with an educational program. Just as attorneys in New York State are required to take CLE (Continuing Legal Education) credits, licensed reps should be required to do so as well. Since the WCB does conduct its own in-house CLE programs, it would not be too difficult for them to conduct three or four a year, via video conferencing, for which all licensed reps would earn two or three credits a year. The course outline would be identical and the WCB staff attorney who gave the in-house CLE could easily give the same course to outside parties as the CLE credits are approved by the New York State Bar Association.”
I even suggested at the Injured Workers Bar Association dinner I attended earlier this year that that association should set up some sort of ‘associate’ membership so that licensed reps could join and thus get access to all the CLE courses.
As for the Commissioners taking CLE courses, I totally agree and I also address this in my book.
Since the pre-board meetings vary in length, there is no reason that one hour can not be used to have either a formal CLE course or an open (planned in advance) discussion on the issues. During the time that Chairmen Snashall and Weiss conducted the pre-board meetings, there were informal discussion on issues such as Husted. And when Commissioner Henry was acting Vice-Chair he, too, attempted to set up some similar discussions. But far too often these have not only NOT take pace, but there are some who feel that the commissioners should not be discussing these issues lest they be consider to be making policy. Duh? Isn’t that what they are supposed to do.
The current training program for the commissioners is abysmal and the only time they really get involved in any substantive discussion is when they are either at pre-board or oral argument, too late to suddenly learn about an issue and its history.
This is one reason I had always been critical of short decisions which essentially said “You win, and you lose” rather than taking some time to explain the basis for the decision, with possibly referencing prior citations to explain why they were being followed or how the small differences between them and the case at bar warranted a different conclusion.
This is one reason I had always been critical of short decisions which essentially said “You win, and you lose” rather than taking some time to explain the basis for the decision, with possibly referencing prior citations to explain why they were being followed or how the small differences between them and the case at bar warranted a different conclusion.
But this process takes work and there are still too many people in power who just do not want to do that. A Monday afternoon at Crossgate Mall is far mor rewarding for some than learning about an issue that effects thousands of injured workers.
Any while I hate to make his life more difficult, Chairman Beloten, who has been in the trenches and undoubtedly the victim of some horrendous reviews of his own decisions as an administrative law judge, is in the position to make these changes happen.
In the meantime the IWBA could talk to the licensed reps and seek some sort of accommodation with them.
I received another long e-mail on this subject and shall reply to that one next week.
July 31, 2009
Should the Board present
“bench briefs”
[pro and con opinions] to panels??
Today’s commentary was suggested by an e-mail exchange with an attorney, who has appeared before the Board, asking if it would make sense for the Board to present “bench briefs” to the panels.
In fact, this had already been done. In late 2000, it was decided to assign an attorney from the General Counsel’s office to each of the four panels. One was Rick Anderson and the other was Michael Hanuszczak who was assigned to my panel although Anderson also wrote for us on occasion. This concept did not work an was discontinued after just a few months into 2001.
To understand why the briefs did not work, you must first understand how commissioners reach the decision that they do.
When a party to a law judge decision does not like the results, they file an appeal with the Board and then the other side files a rebuttal with the Board. So who is the ‘Board’ with whom these documents are filed?
The first point to understand is that there is no ‘Board’. The word ‘Board’ is an amorphous term which includes about 1,500 employees. The decisions are not those of a ‘collective’ but of one, two, or more individuals, specific individuals, and it necessary to understand who are these individuals.
[This concept applies to all level of government. It is not some beneficent collective making decisions and setting policies. The collective may go along with the concepts suggested/ordered by these ‘individuals’ but these are department heads or commissioners, or political leaders who sits at a desk and announces “This is what we will do.” The ‘Board’ is no different.]
Those who get the appeals and rebuttals are a group of about 60 attorneys, called writers, working in the Administrative Review Division (ARD) under the leadership of former Albany Senior Law Judge Madeline Pantzer, a department formerly know as the Office of Appeals and before that the Review Bureau.
Allegedly assigned randomly to a panel of three commissioners, they collect all the papers and write a proposed Memorandum of Decisions (PMoD) which the writer then submitts to a panel. The panel is supposed to read the PMoD and review the attachments. The commissioner can either approve the PMoD or reject it, for anything from a minor typo to a disagreement with the entirety of the PMoD and the reasoning incorporated into it by the writer. If rejected, the PMoD would then be subject to dialogue by the panel and writer until such time as a resolution was reached, be it a unanimous decision, one with a dissent, or concurring opinion. And on occasions, the case would be sent for an oral argument.
That many commissioners just sign MoDs without readying them is a subject about which I have written quite often but is an important part of this discussion. A more detailed description of the decision making process in noted in Chapter 8 through 16 of my book, Behind The Closed Doors.
When there is a panel of engaged commissioners, they read the PMoD, look at the backup documents (appeal, rebuttal, medical reports, minutes, etc), think about the issues and other related cases and make a decision. If we all agree, who needs a ‘special’ counsel or a brief. After all, the brief is nothing more than another analysis of the case, like the PMoD drafted in outline form. But if the three of us on a panel disagreed and we all knew what we were talking about (which the engaged commissioners did), the last thing we needed was a fourth voice (Anderson or Hanuszczak) who could not vote.
But for those insouciants who did not read the backup documents or even the PMoD, does any one really think they would then look at the legal brief? Of course not.
It was even suggested that the special counsel be available during oral arguments in the event that the commissioners had any questions. But I reference the point I made above about reading the MoDs. Those of you who have argued before a panel at oral argument know that some commissioners know the details of the case quite well and ask very direct questions. Others kind of take up space and, when they ask a question, it is based on something said at the hearing rather than based on something in the papers in the file or even the PMoD.
As the quality of MoDs gets better, the engaged commissioners will get even more information about each case, as the MoDs explain the reasoning behind the decision and all the facts used in making that decision. And the insouciants will continue mindlessly signing cases and attending hearings regardless of any attempt to help them better review the cases.
If the commissioner is interested and takes pride in their work, if they have a question about a PMoD or an issue, they will ask someone in the ARD. If they don’t, then any number of briefs and hand holding will make no difference.
In summary, while legal briefs are a good thought, those who need them won’t use them and those who would use them don’t need them.
July 23, 2009
