COMMENTARY & REPORTS

ON OUR OTHER PAGES

► This week’s Appellate Court decisions

►Commissioner Bios September updates

PRIOR COMMENTARY

► Judge Hellerstein correct: Legal Fees for WTC Settlements Unreasonable

►The Insider’s Recommendations to Improve Board Procedures

►Eliminating Oral Arguments: A MAP or a PIG?

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

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

►Answers to Your E-Mails

►Legals Fees On Medical Expenses?

►Project 2015: The end of the WCB Board

►The New Medical Guidelines(?!)

►The Appellate Court’s Split Decision

►Comp Board Blocks “The Insider” as Spam!

►Part III: More Comments on “bench briefs” - unedited

►Part II: Reader Comments on “bench briefs

►Reader Comments on “bench briefs”

►Should the Board present “bench briefs” [pro and con opinions] to panels??

►Who’s Left to Sign Decisions?

►The Legacy of Zach Weiss

►Judicial Economy vs Judicial Integrity

►A Guest Commentary on Board Doctors

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

►Who wins the most appeals: Claimants or Carriers

►LEGAL FEES: What’s fair, history, Can Bd set fees, etc?

►Legal Reasoning vs Intuition

►How do get paid on medical bills with the HP-1J

►Who actually decides the decisions?

►Rebuttals: a waste of time?

To suggest a subject for a report or a commentary that you’d like to see on on this page dealing with New York Workers Compensation issues, injured workers, court decisions, or any other subject, if you have one you would like to submit, by name or anonymously, send an email to TheInsider@InsideWorkersCompNY.com.

Two Guest Letters/Editorials

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

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

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

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

The only question I have is:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Judge Hellerstein correct: Legal Fees
for WTC Settlements Unreasonable

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

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

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

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

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

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

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

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

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

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

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

The Insider’s Recommendations
to Improve Board Procedures

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

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

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

COURT REPORTERS

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

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

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

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

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

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

§32 BY COMMISSIONERS

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

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

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

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

LAW JUDGES

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

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

CONCLUSIONS

The Board justifies:

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

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

Eliminating Oral Arguments: A MAP or a PIG?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Reader’s Comments

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

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

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

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

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

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

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

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

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

My Reader’s Opinion

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

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

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

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

My Response

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who pays the bills?

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

Probably the most important issue that has yet to make its way to the New York State Appellate Court deals with the issue of payments to the Aggregate Trust Fund. While I understand that there is at least one case set for argument in March or April of this year, the only case of which I am aware that has been made in any court is the Matter of Liberty Mutual Insurance Company et al v. Hurlbut et al for which a decision was issued on March 9, 2009 by the Federal Court in the New York Southern District. In this decision, the Court ruled that, “Federal abstention was proper where the claims implicated important state interests and the insurers were afforded adequate opportunity to raise their federal constitutional claims in state court proceedings.”

How much should be paid and for how long?

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

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

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

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

Were the laws and proper procedures followed?

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

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

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

Summary

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

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

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

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

Answers to Your E-Mails

November 2, 2009:
QUESTION #1:

nyc is doing the right thing by contesting claims without merit at the start of WTC cases carriers were not geting exams and many thousands or claims without merit were established now if a carrier or nyc wants to get an exam they are simply doing what they should have been doing all along. Don’t you believe that if a or self insured such as NYC is prevented from getting an IME or using an investigator at least some phony claims will be established? I would like a response from you.

There is no question that New York City has the responsibility to ‘review’ claims with which it is presented, be it against the WTC fund or a general workers compensation claim. You will note that I put the word ‘review’ within quotation marks as that is what this city supposed to do: to investigate the validity of the claim and not spend money seeking ways to deny every claim.

On September 11, 2009, the Workers Compensation Board released a full report, World Trade Center Cases in the New York Workers’ Compensation System, on claims made to date. In Table 1 page 18, the WCB reports 11,627 cases were filed, of which are 5,220 cases had no follow-up leaving a total of 6,407 cases to be reviewed. Of these, 461 were denied, resulting in a denial rate of 7%. New York City’s denial rate exceeds the 93%+ approval rate of the WCB which is particularly disturbing when you consider that many of the uniformed services (fire, police, and sanitation) are not covered under workers compensation law. Although fraud cases get a lot of coverage, particularly if they involve the New York State Insurance Fund, I’m sure there are well under ½% of all claims.

That New York City has a right to have investigators and/or IME’s review these claims is correct but not the use investigative techniques long since disavowed under workers compensation law precedents.

QUESTION #2:In response to my commentary supporting the payment of legal fees on medical benefits, I was sent the following question by e-mail:

My reading of the Shea case, which the board apparently now agrees with, is that whenever money moves to a claimant an atty fee lien may attach. I would be interested to review the case or cases where you challenged the board’s prior interpretation re atty fees on medical expenses. You may not remember, but you were on the original Shea panel which denied any atty fee.

The reader in this case is absolutely correct in that the original decision, in which I participated, ruled against payment of legal fees. Since the original decision, the Delacorte decision, and the revised decision are available on LEXIS-NEXIS and Westlaw, I shall not quote any language in the decision but explain why I originally denied the fee.

Very often in cases like this which deal with “black-and-white” legal issues, the commissioners depend on the Board’s legal staff of writers, of whom all are attorneys, to research case law. From the time I first joined the Board until the time of my departure, we were told consistently by the Office of the General Counsel and our writers that there was some legal issues that could never be challenged.

I am the first to admit that I’ve challenged the Office of the General Counsel and the writers on many occasions, whenever I saw a little bit of light at the end of the tunnel but I’m also realistic enough when presented with such blanket pronouncements to spend my energy elsewhere. For years the same two groups told the commissioners that attorneys had no right to challenge our determination on the amount of legal fee to be paid in a §32 settlement. Then one day we received a memo which effectively said “Oops, we made a mistake. Legal fees can be challenged.” Shea v Icelandair is another example in which I mistakenly relied upon legal obstinacy of the Office of General Counsel and writers.

Had I been on the Board after this decision, I would’ve addressed the staff attorneys as I did after the Court decision in Horton v Akzo Nobel Salt (see my book Behind the Closed Doors, page 8): “How can we trust your judgment and advice if you contradict each other or don’t understand why you do what you do?”

QUESTION #3: On occasion I get requests for an analysis on specific legal or medical issue in terms of what can be expected in the future from the Board. Because of the individual nature of these requests, my responses will be by e-mail and not in this website. If you have any such requests, send me an email addressed to TheInsider@InsideWorkersCompNY.com.

§32 Settlements & Child Support Liens

October 29, 2009: Several years ago, one of the commissioners raised an issue when faced with an upcoming §32 agreement in which there was a substantial amount of unpaid child support. There was a question as to whether or not any of the settlement award above that necessary to pay the outstanding lien could be set aside to guarantee future payment of child support. A review of WCL §33 and applicable case law made it quite clear that the only child support that could be withheld from the settlement was the amount for which there was an existing lien.

At a pre-board meeting in Albany the subject was discussed at length at which time it was determined that the Board did not have the authority to offer any other interpretation of law. And while we discussed the practical application of methods to set aside some funds from the settlement to ensure future payment of child support liens, the consensus felt this was a legislative rather than an administrative matter. In view of the decision issued today by the 3rd Department in the matter of Ashley v Worsell, perhaps it is time for the Legislature to act.

(For the record, I led the argument against using workers comp law to escrow funds from §32 settlements, arguing that this had to be done by the Legislature. As a commissioner, however, I and my fellow colleagues were prevented from expressing our opinion on this subject outside of that room. Now that I am not a Commissioner I can again raise the subject, but this time to the world at large.)

Devising a formula for the withholding of sums from the proposed settlement is relatively simple.

Since allocation rates are used in many cases dealing with Medicare, it should not be difficult to set an allocation rate on most cases in which the claimant has an outstanding lien against them for nonpayment of court-ordered child support. In most cases, child support liens range from 5% to 20% of compensation payments. Since we already know the gross amount of the settlement, less any medical set-aside (this is only for those put into escrow accounts) we can divide that by the allocation rate to determine how far into the future the settlement has been calculated to extend. And we simply multiply those number of weeks times a weekly lien to get a fixed amount to be deducted from the settlement and turned over to the state agency responsible for ensuring payment of child support liens.

• $50,000 settlement less $4,000 escrowed medical set aside = $46,000 net
• $200/week allocation rates = 230 weeks advance payment
• at $30/week current child support lien for 230 weeks = a total of $6,900 additional deduction for the child support escrow account.

There are two additional issues must be considered the legislation.

First, the child support escrow account should be modified if the child is approaching the age at which child support payments would stop. For example, if the child would reach that age in 200 weeks, then only $6000 should be put into the child support escrow account. There also has to be a means by which, if there is any other reason for the child no longer being the legal recipient of child support, then those payments stop and any excess amounts be returned to the claimant.

Second, if the amount of money being put into the child support escrow account will not be sufficient to ensure payments to the child until they reach the age at which they no longer qualify and the claimant/parent has not been paying child support directly but has been having that sum of money deducted from the escrow account, the claimant/parent may be lost to the system in any of a dozen ways and may also no longer feel any connection to the child if they have not had to pay child support for four or five years due to the escrow account.

Not to attach these settlement funds is to give an additional inducement to irresponsible parents who see taking a lump sum as a way of avoiding child support payments. This legislation not only could but should also apply to any disability or other similar payments including those awarded in any civil or administrative court action.

Next Monday’s poll will be on this subject. Then on November 9, 2009 when the results of the poll is published, this commentary in the poll results will be sent to the appropriate members of the state legislature asking them to consider changes in legislation necessary to ensure that those individuals who receive money as a result of civil court or administrative decisions do then ignore their financial responsibilities to the children that have brought into this world.

FEES ON MEDICAL EXPENSES

September 28, 2009: My reading of a case in Michigan (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) in which their top court found, in a 4-3 decision, that claimant attorneys should receive fees on received medical expenses brings to mind two different types of cases I have seen on this issue:

• §32’s: Assuming we all agree that a 15% or 10% fee is appropriate, should that fee also be on the amount allocated to the Medicare set-aside?
• Fights over medical treatment only, on which fees are not historically awarded.

WCL and precedent are that legal fees are to be based only on compensation awarded. But I have had, during my 12 years on the Board, a number of instances in which medical expenses and fees became relevant.

FEES FOR ONGOING CASES

On occasion, when a claimant has been awarded ongoing comp or it has stopped, there are no controversies regarding the compensation. But the need for a particular type of treatment or the frequency therein become the cause of controversy between the claimant and the carrier, the claimant’s attorney is called into the controversy to fight for the claimant’s rights. Be it in the form of letters, phone calls, formal hearings, or appeals, the claimant’s attorney incurs expenses and expended time on behalf of the claimant but, historically, is awarded no fee, except the occasional $75 appearance fee.

I remember a case in which a claimant’s spouse, an RN, provided that claimant, who had been classified for a permanent total disability (100% bedridden), with his medical care and then billed the carrier for her services at the rate for which an 3rd party RN would have charged for that 24/7 treatment. Without going into the details, this case involved an staggering amount of work, in part because the wife did not file her claim for the medical charges from several years so not only was the sum of money at dispute quite large, so were all the pages of backup. But since the claimant had already been classified PTD at the maximum rate, none of the work the attorney was doing would have an economic benefit for the claimant but only to the medical provider to insure proper treatment for the claimant. When the file came to me as a member of the panel hearing the appeal, the file must have been a foot thick. I am sure that the claimant attorney spend at least 50 hours or more working on this case. Yet, if he won, there would have been no fee.

On the other hand, the carrier attorney does get paid of defending against that same claim

This fee structure obviously puts the claimant at a serious disadvantage.

§32 FEES ON MEDICAL SET-ASIDES

Several years ago, I had a §32 settlement for about $800,000 of which $650,000 ( I am guesstimating at the numbers) was specifically noted in the agreement as a Medicare set-aside to be deposited into an escrow account. The claimant’s attorney sought a fee on the $800,000 but I calculated it on the $150,000 of comp. For to do otherwise, would have netted the claimant, after the $65,000 10% fee on the set-aside, $585,000 to pay for what was expected to be $650,000 in future medical expenses.

On the other hand, many §32’s for permanent partial disability (PPD) are settled for 5½ years as compared to the 5 years of similar settlement under §15-5b Lump Sums; The extra ½ for the §32 is assumed to be for any possible future medical expenses. But since many of these PPD claimants taking §32’s are similar to those taking the §15-5b settlement in that they have not had medical treatment in years and, unless that ½ year is put to an escrow account, the claimant has effectively received extra cash to use for ‘income’.

But since only about 35% or so of the §32 cases I saw were PPD’s, one could not so easily determine how much of the settlement was in lieu of future comp and how much in lieu of future medical. The carrier certainly was not going to give such a breakdown and the claimant’s attorney was interested in maximum dollars regardless of whatever ‘ghost’ allocation was done between medical and compensation.

Thus in most of these §32’s, without the formal escrowed set-aside, it made sense to most of the commissioners to accept a fee based on the gross amount of the settlement. In fact, if the set-aside was not more than 5%-10% or the gross settlement, most of us approved the fee as requested.

It was only on those occasions when he Medicare Set-aside was 20% or more that the fee was based on the ‘net’ compensation moving to the claimant.

Be that as it may, the Medicare Set-aside is subject to negotiations and the claimant attorney does work to get the amount he and the claimant feel is most appropriate. So perhaps some sort of renumeration is appropriate.

PROPOSAL

I propose the following:

§32s: The fee be set on the net, if there is a formal set-aside into an escrow account. Thus the claimant, if he really feels that that extra money is for medical expenses and should not be subject to a fee, should be wiling to deposit it into the escrow account. But if the claimant feels it is really just extra compensation, let them pay a fee on it.

Open cases: There should be a sliding fee schedule, the higher the medical expenses being disputed , the higher the fee to be paid the claimant’s attorney should they win, a fee to be paid bu the carrier over and above the medical expenses and not to be deducted from the claimant’s compensation. This would not be for those cases in which the issue of controversy is solely the degree of disability which may incur additional medical treatment.

The following fee structure, based on total medical expenses being controverted, is made up out of ‘thin air’ and is included here solely for the purpose of starting a discussion.

• under $1,000______No fee
• $1,000 - $4,999____5%
  
• $5,000 - $9,999____4%
• $10,000 - $24,999__3%
• $25,000 - $49,999__2%
• $50,000 and up ____1%

SUMMARY

Paying compensation to the injured worker is only part of the process necessary to allow the injured worker to return to the workplace as a productive member of society. Insuring prompt and appropriate medical care is just as important, as $400 a week in tax-free compensation but waiting eight months for surgery can well result in a PTD rather than temporary partial disability or a small SLU.

Ladies and Gentlemen, the floor is yours.

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

September 11, 2009: The following is a guest commentary on this issue followed by my own brief comment.

Mental stress injuries related to the work place continue to challenge the WCB and the Courts and produce decisions of questionable jurisprudence. Matter of D’Errico reflects this phenomenon.

The element central to the Board’s and court’s analysis is the class of employees or threshold for compensability of a causally related mental stress claim. Unaddressed in both the Board’s and court’s opinion, however, is whether the facts of the claim ought to be analyzed as an occupational injury.

In Wolfe v. Sibley [ N.Y. 2d, 505 (1978)] the court held compensable a mental stress accident where the claimant discovered the body of her supervisor in his office. Here, the competent producing cause was a single event. In subsequent decisions, the courts attempted to fashion a threshold rule to evaluate other mental stress injuries which threshold, in effect, also established a norm for the required stress exposure:

• In Loh Lin [75 A.D. 2d, 702 (1980)], the court held that claimant’s job aggravation was the aggravation normally expected in the usual give and take of employment.
• In Wood [27 A.D. 2d (1980), the court held that the issue of mental stress must be examined on the facts from the common sense perspective of the average person.
• In Kaliski [151 A.D. 2d, 687 (1989)], the threshold norm was refined to require that the stress experienced by the claimant must be greater than the “usual irritations and differences to which all workers are occasionally subject.

Subsequent decisions have employed other criteria to establish the threshold class of workers:

• Pecora [13 AD3d, 917 (2004) held that there must be a showing that the affected claimant experienced stress greater than that which other similarly situated workers experienced in the normal work environment.
• Pinto [19 AD3d, 948 (2005)] the threshold required a showing greater than that experienced by the claimant’s peers. Unless all parties engage in demonstrating by evidence and proof of the threshold norm to support or deny the claim, the trier of fact is without a basis to evaluate the threshold norm.

In the case at bar [D’Errico], the WCLJ held the threshold norm to be “all municipal maintenance workers employed by New York City.” A Board Panel reversed the WCLJ stating that the threshold norm to be used “without evidence or proof” is the stress experienced by “other employees in the ordinary course of employment at a correctional facility.” The Appellate Division upheld this threshold.

The danger in these rules is that “ unsupported by proof or evidence “ they become self-sustaining without life, a ‟zombie” rule. Nor was this oversight neglected by the dissent which stated the threshold was employed in a “wholly conclusory fashion without any stated rationale, discussion of pertinent evidence in the record, or explanation of the reason for rejection of the classification applied by the Workers’ Compensation Law Judge.” The dissent also noted “that the record includes no evidence that non-penal correctional facility employees, such as administrators, clerks of cooks, were exposed to traumatic experiences comparable to those he alleged.” The threshold rule in mental stress claims can be said to be arbitrary as it is absent evidence upon which to base a legal decision or conclusion. In this way, the Appellate Division may avoid a challenge that its determination in upholding the Board is arbitrary, since it is based upon prior holdings; however arbitrary the rule may be. In its application, the rule creates unpredictable results which, by definition, are capricious.

Moreover, in light of the absence of rigorous legal analysis, the same rule can be deemed an abuse of discretion as the threshold rule is subject to no discernable legal scrutiny. These analyses are also supported by two observations in the mental stress cases herein cited: the several claims involving correctional facilities, each with a different class threshold [“peers”; “all employees in a correctional facility”; “similarly situated workers”]; and the fact that such claims arise in correctional facilities cogently suggests a more wide spread worker safety or exposure issue.

Neither the Board nor the courts have looked to the jurisprudence concerning analysis of mental stress injuries as occupational in nature. These include ( NYS Workers’ Compensation Handbook, Sec 302[1], 2008) “physical hazards as well as exposure to diseases and toxins. Repetitive stress injuries and degenerative back disorders are commonly established as occupational diseases.” The court has “clearly held that a case may be analyzed as either an accident or occupational disease as long as the disability developed over a reasonably definite period of time.” [ Handbook, ibid.]The occupational injury analysis avoids the “zombie” rule by focusing the evaluation on the lay and medical evidence to determine whether the mental stress experienced is, in fact, the competent producing cause. Such analysis also avoids the class threshold permitting the trier of fact to assess the “personal” nature of the injury without the enormous burden of determining whether any class [viz., peers, average person, all workers, similarly situated, etc.] may be found to experience mental stress.

In addition, the occupational analysis affords the trier of fact an additional factor to consider: the length of time in which the stress was experienced.

Some supporters of the threshold norm or class argue that, where the employer affords training to defend against mental stress, such should also be considered. Under this criterion, repetitive motion injuries held as occupational would be open to proof or evidence that the claimant had received training in the safe use of the machinery that caused an extremity injury and deny the claim. Or, that the claimant alleging carpal tunnel syndrome belonged to a class of workers that does not experience repetitive motion. The point is that it’s not the class of employees but the individual’s experience that must be regarded.

Is the claimant with a history of poor driving in a class suspect for accidents? Assuming, arguendo, that the class threshold were empirically demonstrated [viz., by research studies or reasonable evidence] it is not relevant to the experience of the individual. The claimant has neither a duty to develop nor can it be said that he enjoys some greater tolerance to mental stress than co-workers.

This is true even where prevention or safety training is evident because such relies upon yet another set of norms to be considered relevant. Absent proof or evidence, the D’Errico rule requires, at a minimum, that the trier of fact have some knowledge of the work experiences of employees in correctional facilities in order to assess the claim. Clearly, this is not possible. This same experience would be necessary for the trier of fact to assess hateful conduct to which the claimant was exposed (e.g. sexual or gender, racial or ethnic). Should the class be employees at Sing Sing, Attica, or Riker’s Island? Again, the length of time to which the claimant was exposed becomes a crucial issue in the fact pattern.

D’Errico and its antecedents present infirmities of legal reasoning and jurisprudence not consistent with the purpose [Wolfe, supra] of the statute or case law. Employing a threshold of a class of workers fails to consider the fact pattern and further suffers from establishing classes of questionable criteria, application, and relevance and are not demonstrable.

What, in fact, is the experience “norm” for any class and what must the trier of fact rely upon for that evaluation? Ultimately, it is the medical and lay evidence.

My review of the above

Had I been on the Board Panel, I would have affirmed the law judge. Would a staff worker in the warden’s office who visited the area of incarceration every three or four weeks also be considered part of the same class as officers who deal with these conditions every day? I think not. Or I would hope not.

Also, the writer raises a point about which I have raised my concern on more than one occasion at the board. He call it the ‘zombie’ rule. I call it the ‘domino tree effect’. Pile up some dominoes with each successive layer moved to one side every so slightly. After 20, 30, or so dominoes, the one on top is no longer over the one on the bottom, possiblye covers only 5% of the bottom one and the pile falls over. Too many legal arguments are like that. The Board, because it is easier to move the line, say for a ‘class, slightly in size rather than rethink what was the purpose of the class in the first place, generates automatic ‘zombie’ decisions.

Under Chairman Weiss, at pre-board, such issues would be discussed to make sure that the legal zombie/domino rule did not blind us to (1) common sense and (2) the real goal of workers compensation. But these discussions were only once a month, for well under an hour, usually only on one issue.

But I do not feel, unlike the writer, that having an attorney on every panel would solve the problem. I have served on panels with attorneys who were too intellectually lazy to think about the bottom domino. Rather it was the ‘ignorant’ non-attorneys who felt that the proposed decision missed the point.

But until the Commissioners, all of them, are willing to spend some intellectual capital discussing threshold issues, more bad controversial decisions like D’Errico will be made.

Comments are welcome.

Project 2015: The end of the WCB Board

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So why is this being proposed?

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

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

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

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

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

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

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

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

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

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

September 4, 2009

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