7

NEWS FOR
THIS WEEK

December 31, 2015
Thursday

COMMENTARY: A few thoughts as the year ends and some suggesions for next year.

DECISIONS: There are no decisions from the Third Department this week but seven new cases have been added to the Third Department's January hearing calendar.

Week
#367

Issue
#1

Contact The Insider at:    TheInsider@InsideWorkersCompNY.com                                                                         212-734-9450

COMMENTARY & REPORTS

To suggest a subject for a report or 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 of interest to you, send an email to TheInsider@InsideWorkersCompNY.com

The Insider will also publish, anonymously, any relevant commentary you would like to have seen by staff at the NYS WC Board and members of the NYS workers compensation community.


A Claimant’s Suggestions:
How the Board Can Help Claimants
Part II                       Part I
December 11, 2015     December 4,2015
Privacy vs Legal History
November 24, 2015

Good for the Goose?
Good for the Gander!

November 10, 2015

Why No New Worker Comp Commissioners?
November 4, 2015
How to Help Pro-Se Claimants
October 19, 2015

Affordable Care Act Increases WC Costs
October 1, 2015

Board’s Road Show #3: Less Hearings
Sept. 17, 2015

Board’s Road Show #2: Less Hearings
Sept. 10, 2015

Some Q&A on RX Lawsuits
August 27, 2015
The Board's Legal Record
August 20, 2015

A Goodwill Gesture to Injured Workers?
August 16, 2015

Whose Moral Compass - Part II
July 30, 2015

Death by Flatulence

July 14, 2015

Medical-Variance System Changes
July 1, 2015
Board’s Road Show: A+
June 25, 2015

Court's Denial re Legal Malpractice Absurd June 18

Fixing The Board - Part II
April 2, 2015
Letter to New WCB Exec Dir Mark Wade
March 26, 2015
Medicare Set-Aside & Bankruptcy
January 15, 2015
Fixing The WCB: Part I Administration
January 8, 2015
The Board Finally Follows The Law
January 1, 2015
The WCB Allows a "Ponzi Scheme"
November 6, 2014

Who Fills Libous' shoes?

October 30, 2014

Res Ipsa Loquitur

October 23, 2014

 

Pending at the 3rd: Dobney v Kodak
October 16, 2014
Who is Running the WCB Store?
October 16, 2014
Florida’s WC Laws Unconstitutional??
August 21, 2014
I propose a Study of §32 Recipients
July 31, 2014

Whose Moral Compass (Libous)

July 10, 2014
Not Fair? MyWCB winner/loser stats
June 26, 2014
Stats, Lies, & The Truth
May 8, 2014
Who is Running the Board
May 1, 2014
 Top Attorneys in 2013: Questions
March 27, 2014

Problems of Pro Se Claimants

March 8, 2014
NYS’ WC
Conspiracy Theory

March 1, 2014
Marijuana at Work: Legal now?
March 1, 2014
CA: Hi WC costs due to Attorneys
February 18, 2014
Ironman Athlete
Collecting WC

February 6, 2014


2012 Commentary
2011 Commentary


As We Approach The New Year

December 31, 2015 [4126]: There are no court cases this week and my planned commentary (on IME’s) needs a bit more research, so I am taking this opportunity to thank all those of have supported me this last year, those who read my postings as well as those who have sent in suggestions and criticisms.

I like to think that this website acts in the manner I suggested for the Board. While I may take the lead in discussing issues, it is with the participation of you, my readers including both my regulars and occasional visitors, who give me a wider perspective on the issues and sometimes bring to the fore issues with which I am not particularly familiar or solutions that did not occur to me

The goal of this site, as was my first book – Behind The Closed Doors −, is not just to criticize, which is far too easy, but also to offer suggestions as to how to improve the Board, even if that means explaining to some who work there exactly what is the mission of the Board.

As the new year of 2016 starts, the Board finds itself without an executive director, with two open seats for commissioners, and a need for real leadership as well as formal appointments for Executive Director and General Counsel.

And, while I will continue to highlight problems and proffer suggestions, it is my hope for the new year that the members of the workers compensation community can find common ground by bringing to the attention of Governor Cuomo the need to make some substantive appointments to the Board to insure that the Board meets its raison d'être: the service of injured workers and their employers.

For, without leadership, all the legislation in the world will be nothing more than words written on the memorial of what could have been.

Hope you have all had a good holiday and are rested up for the challenges that will face all us all in the coming year.

Email the Insider with your comments and questions on this COMMENTARY


Rethinking The Board’s Function:
It’s All Wrong!


December 24, 2015 [4125]: My recent COMMENTARIES on how to fix the Board have resulted in a large number of responses from readers.

As a result, I have taken a careful look at how the Board operates and have come to the conclusion that the entire operating principles of the Board are wrong.

The Board, well before I joined it in 1996, has taken on the responsibility of overseeing claims of injured workers and acting as a judge to determine the solution to disputes between the various parties who deal with the Board: claimants, carriers, attorneys for both sides, medical provers and other third-party service providers.

This is wrong.

The Board should be acting as a ‘mediator’ and not as an ‘arbitrator,’ by working with these parties to resolve issues  - mostly before they start.

Specifically, most of the Board’s energy is spent resolving disputes that arise between the various parties and most complaints I get about the Board deal with the time it takes to resolve claims and how often the results are in conflict with prior decisions, or decisions made the same day on identical cases.

I have in the past suggested indicia lists to establish standards for issues in the expectation that a proper and consistent decision requires that all the facts be present before a decision is made and that, once all the facts are known, many disputes can be resolved without hearings, based on the totality of the evidence matched against prior legal precedent, be it administrative law judge decisions, Board panel memorandum of decisions (MoD), full Board reviews (FBR), Appellate Court decisions, and even Court of Appeals decision.

But it should not be the Board preparing the indicia.

Yes, there are hundred of issues that are raised every year but there are always a few that dominate the scene. At various time in the past, hernias, carpal tunnel syndrome, asbestos, and colon cancer from asbestosis were hotly contested issues, but a series of decisions set guidelines as to how the facts would point to a specific resolution and these cases became fewer and fewer.

The Board should select seven or eight key issues, such as LWEC, and assign a study group to setup appropriate indicia, groups that would consist of:

One or two commissioners
One or two attorneys from the Administrative Review Division,
          the group which writes proposed decisions for the Commissioners
One or two administrative law judges
One attorney from the claimants’ bar
One attorney from the carriers side, either a staff attorney or one from outside counsel
One medical provider, if the issue deals with a medical subject.

They should meet periodically (reporting at the monthly Board meeting) to set up a list of minimal indicia necessary for the Board to properly adjudicate cases. As I have done on my indica tables (Legal Reasoning vs Intuition —Taxi Indicia Table), numeric values should be assigned to the various indica such that, when all the facts are considered, the column with the highest number will indicate that the overwhelming evidence supports conclusion “A”. This will avoid endless hearings, now taking years for the initial claim to arrive at a final MOD or a FBR, not to mention the years necessary for an Appellate Court review.

Moreover, the claimant and carrier attorneys have something at risk every time they take on a case, something which has ‘real world‘ ramifications for them rather than the philosophical ruminations or political positions often taken, not just by the commissioners, but also by other Board staff.

If the party to a controverted case does not agree with the conclusion reached in their claim as determined by such an indica list, they would have the right to request hearing as if the list did not exist. But, if the indicia list decision is upheld, carriers should be assessed a penalty of $500 or $1000. Claimant attorneys should be assessed $250. The reason for the lower penalty against claimant attorneys is that they are often under pressure from their client to ‘fight, fight, fight’ to the bitter end, and, if they decline to do so, can find themselves subject to complaints by their clients. Perhaps a small penalty of $50 against claimant’s future awards would be an additional option.

The main point of this COMMENTARY is that when there are substantive legal issues relating to new legal topics, the Board may have been given by the Legislature the right to make decisions as the ‘arbitrator’ in controverted cases. But as I told many of my fellow commissioners, the fact that the Governor nominated them as a commissioner and the New York State Senate confirmed them does not automatically imbue them with some great wisdom, wisdom they must learn over time in the interest of properly taking on their responsibility to fairly interpret workers compensation legislation and adjudicate controverted cases.

The same holds true with the Board. After all, it is not some ethereal ‘Board’ that makes decision but a number of human beings at the Board who do so. And, just as with the commissioners, being an executive at the Board does not imbue them with any more wisdom than they had before they were hired/appointed.

Just as legislation is like a soup made up in a kitchen with 20 chefs/lobbyists adding in their own ingredients/definitions, the ultimate interpretation of that legislation as it relates to the adjudication on a case by case basis would better be left up to a decision reached by a committee of equal peers.

Email the Insider with your comments and questions on this COMMENTARY


How to Force Carriers to Pay


December 17, 2015 [4124]: One issue that has upset many claimants is the one in which carriers just do not pay M&T and/or medical bills on a timely basis. And in some cases, they do not pay penalties on a timely basis. For whatever reason, the Board seems either unable or unwilling to take steps necessary to resolve these claims.¹

An attorney brought to my attention that Workers Compensation Law §54-b allows a claimant to force a carrier to pay an award or judgement.

Entitled “Enforcement on failure to pay award or judgment”, the opening text of the law reads:

In case of default by a carrier or self-insured employer in the payment of any compensation due under an award for the period of thirty days after payment is due and payable, or in the case of failure by a carrier or self-insured employer to make full payment of an award for medical care issued by the board or the chair pursuant to section thirteen-g of this chapter, the chair in any such case or, on the chair's consent, any party to an award may file with the county clerk for the county in which the injury occurred or the county in which the carrier or self-insured employer has his or her principal place of business, ...[list of documents]...,  and thereupon judgment must be entered in the supreme court by the clerk of such county in conformity therewith immediately upon such filing. . . .  

Perhaps the reason I was not familiar with this section of the law was that this omission was just an oversight.

On the other hand, when hearing from a number of medical providers whom I met over the years when I was introduced as ‘the’ Commissioner of the Workers Compensation Board², I was told by them that they were owned money on approved medical services, sometimes for over a year, sometime as high as $60,000. And they were unable to get paid despite their calls to the Board for help; most dealt with one self-insured.
                                    
I then proposed to the then WCB Chairman that the Board was in the position to suspend/revoke the right of both a carrier and self-insured to underwrite workers comp insurance if they were failing to meet their obligations, one of whihc was to pay their bills. I was told rather bluntly that this was none of my business.

So, maybe the fact I was never made aware of §54-B was not an oversight.

Be that as it may, the Board does have within its authority the means to force carriers and self-insureds to pay, not just awards, but also M&T, medical bills, and penalties on a timely basis.

But, if the Board does not wish to avail itself of its own tools to do the job, perhaps a flood of §54-b applications will do just that. My reader suggests that:

The trick is that writing an application for a security payment and sending it directly to the Chair WITH A COPY TO THE CARRIER CEO gets the result. The CEO generally doesn’t realize what screw-ups are occurring. This gives the CEO a chance to raise hell, going from the top down, with everyone on the chain of command. The CEO will not hold the underling liable. No, he will hold the superiors liable. And it will happen immediately, not waiting for the Chair to do something first.

¹ In the Matter of Frank v New York City Tr. Auth. 2005 NY Slip Op 08241 [23 AD3d 804] November 10, 2005, whose underlying Memorandum of Appeal I wrote, one factor which influenced the decisions of the Law Judge, Board, Panel, and the Third Department in the claimant’s favor was the failure of the self-insured to pay M&T and penalties, never appealed, that had been awarded by the Board.
    
² Commissioner ‘of’ was far more impressive for the hosts than Commissioner ‘at’ or ‘on.’

Email the Insider with your comments and questions on this COMMENTARY


A Claimant’s Suggestions:
How the Board Can Help Claimants
Part II


December 11, 2015 [4123]: This is a continuation of last week’s COMMENTARY in which I posted a number of suggestions as to how the Board can improve it communications with injured workers and help them to better participate in their own cases, such as getting medical authorizations.and dealing with medical only cases.

4. WRITE IN ENGLISH

This point raises a number of issues. I raised this with members of the Board’s legal staff when I asked why decisions are not in plain English. One attorney explained that the decisions are legal documents, not written for claimants but for attorneys. To ‘convert them into vernacular English’ would be very difficult as much of the language is from the workers compensation law itself or is medical language. Moreover, since some of the arguments relate to the interpretation of the law, it is difficult to write in the vernacular and still be sure that all the claimants understand.¹ He went on to state that this is one reason they strongly recommend claimants have attorneys and not act pro-se. His argument was persuasive and I still agree with his position. Therefore, as I note in Items #2: Pro- Se Claimants, this point must be made in the form pro-se claimants must sign when they decide to represent themselves.


5. BOARD MINUTES


These are not being done on a timely basis. Not only are appeals to the Administrative Review Bureau delayed extra month(s) because of this but claimants, particularly pro-se, have no formal record of what occurred at their hearing. It is very difficult to (1) testify and take notes at the same time and (2) take notes when the attorneys, law judge, and medical providers testify, using workers comp jargon and abbreviations. Only by reading a transcript can the claimant understand what is going on. This is also true if, after the hearing, the attorney would go on to another hearing or the claimant was not at the hearing. Their attorney’s ‘short hand’ report, through no fault of their own, may not cover everything. In addition, minutes should be FREE to claimants, not just when a Law Judge orders them to be posted in the claimant’s file, but whenever requested by the claimant. If this means that the reporters have to be paid more money BY THE BOARD, so be it. An immediate source of funds is all those salaries and benefits not being paid for the vacant Board Member seats.

My own experience has been, in reading appeals, law judge decisions, and the minutes, that there are occasions when a seemingly innocuous statement or fact, not in the decision, can make a difference in an appeal. But we will not know that until the appeal. There may be information therein that a claimant, who does not know what he is supposed to ignore, may be the only person to realize that such a fact is relevant.

6. CARRIER PENALTIES


These have to be enforced far more often than they are now. I know when I was at the Board, I was told by one Chairman that one measure of effectiveness carriers had for their attorneys was the number of penalties incurred. Carriers did not like to be near the top of that list, although I was told the dollars involved were meaningless compared to the carrier’s expense for medical and comp awards. Nevertheless, I have always had the sense that the Board is hesitant to apply penalties against the large carriers and self-insureds as they are, in a sense, working partners with the Board.

7. M&T (Medical and Transportation)


The Law Judge must inform the claimant each time they attend a hearing that they must submit their M&T as soon as possible, giving them the Board form C-257. Better yet, the EC-16 hearing notice should list the C 257 as well as any other documents that would help the claimant navigate their case.In addition, the C-257 should but does not include the current mileage reimbursement rates or at least a link to where that information is on the Board’s website. Travel to the Board and to their attorney’s office should be allowed. After all, the claimant would not have had those expenses had they not been injured and the last time I looked there was no claimant deductible or co-paying workers comp insurance policies.

Carriers should have 30 days after receipt of the C-257 to either pay or appeal. If a hearing is not set within a month, the dispute should be sent to a conciliator. Finally once M&T is approved by a law judge or conciliator, or the carrier does not formally object, payment must be made within 20 days or a penalty of, for example, $100 + 20% shall be applied with another 20% each additional month payment is not made.

8. PROOF OF PAYMENT


Doe writes, “The Board should require proof that the carrier has mailed the settlement check by the date stipulated in the ruling.” His check was received two weeks after it was dated but “[t]here was no indication anywhere on the envelope as to when the check was actually mailed.” This would not apply to bi-weekly awards but to checks that are settlements, M&T, and retroactive payments or adjustments.

9. IME APPOINTMENTS


Claimants must be given a choice of three IME’s and the Board must ascertain the accessibility of their offices for claimants who have disabilities. Languages spoken by those IME's must also be listed, for those injured workers who neither speak nor comprehend English. Finally, being on the same block as the subway stop is not ‘accessible’ if that subway stop is three flights above or below street level.

SUMMARY


There are many other steps the Board can adopt to better insure that claimants understand what is happening, enabling the clamant to be a factor in the decisions regarding their life, not just be a case number in a computer system to be dealt with. A key element in making sure that claimants feel that the system, any system, is being fair to them is to make sure that they understand how it works.

While not every claimant will be able to avail themselves of the assistance and access provided by the Board, these new proposals will go a long way to making injured workers and their families feel that the Board treats them as valued members of the community.

¹  At what readability level on the Flesch-Kincaid level should the decision be written? To look at your own writing, in WordPerfect, go to Tools/Grammatik/Options/Analysis/Readability and, in Word, Spellcheck. The F/K readability level of this commentary is grade level 11.9; last week's  'Privacy v Legal History' is 14.53. Most Board decision are at 16 or higher.

Email the Insider with your comments and questions on this COMMENTARY


A Claimant’s Suggestions:
How the Board Can Help Claimants
Part I



December 4, 2015 [4122]: In my October 22, 2015 COMMENTARY “How to Help Pro-Se Claimants” where I suggested that the Board supply an advocate to pro-se claimants to at last help them navigate the maze of the NYS workers compensation procedures and legal system, I struck a nerve with a number of claimants and attorneys.
   
One of the most troubling aspects of the workers compensation system over the past 10 or so years is the increased documentary and procedural burdens placed on claimant attorneys, forcing them to spend less time handling cases, just making it more difficult for them to produce enough economic activity to continue to serve injured workers and their families. Even when I was at the Board, it was not possible for the attorneys to go into every detail and review every document with their clients. And it is for this same reason that so many doctors in private practice are either closing their practices or limiting their patient load.

What follows is a summary of nine suggestions (3 this week - 6 next week) from one claimant, Mr. John Doe, based on his own experience, having been represented by both an attorney and, on occasion over this rather lengthy case, pro-se.

Probably one of the most important points, touched upon in Suggestion #4 is the fact that most injuries are incurred by laborers or blue collar or service workers, those at the lower end of the education scale. It is not that they are stupid; it is that many are not sufficiently educated to understand some of the legalese or pseudo-legalese used by the Board, for example, in its on-line Glossary, a selection of terms many of which I only understand because I was at the Board for 12 years. In addition, this does not include the probably (in NYC) 40% of claimants for whom English is not the primary language.


1. ECF/CIS

Every claimant should be given by the Board on their first contact with the Board, not their attorney, specific details as to how to access the Board’s files on their case. This is the first step in making sure that they can follow their case and make sure proper forms have been filed and the information therein is correct.

In this way, they can make sure that their medical providers submit the reports/forms on their visits on a timely basis. In a few cases, it would let the claimant see that their medical provider is charging the carrier for serves the claimant has never received. In addition, it gives the claimant the option to have their own medical provider review the information supplied by the carrier’s medical advisor. Too many claimants can not completely understand the medicals and it would be good to give them the opportunity to have their medical advisor review same.

Moreover, access to their file adds an extra layer of communication for those claimants who complains they do not always get their mail.

I have told every injured worker who has contacted me in the seven years I have been posting this website that they are their own best advocate. Only they know all the details of their injury and the pain, physical, financial and psychological they suffer. The ‘squeaky wheel’ not only gets the grease but those claimants who sit on the sidelines may find that their attorney pays more attention to other claimants who feel that their injuries and case are important.

2. PRO-SE

On more than one occasion, Doe was admonished for not having an attorney. It seems that some law judges do not accept the complainant that not every attorney can take every case which is a ‘medical only.’ Perhaps the NYS Court system which proposes that all lawyers right out of law school perform pro bono work can devise a solution, some way of working with the NYS WCB on this. However, we all know what happens when a non-workers comp attorney wanders into our forum: it is like feeding Christians to the lions.

If a claimant wishes to appear pro-se, the claimant should just be told of the risks, not admonished, castigated, or berated. Perhaps the Board can adopt a form that pro-se claimants must sign before they can appear pro-se. If nothing else, this would protect the Board from a claimant who says they did not know any better and, quite bluntly, places the burden on the claimant when they formally agree to take on the risk of being their own attorney.  

While many of us would quote Abraham Lincoln’s admonition that “He who represents himself has a fool for a client!", the fact the pro-se claimants have occasionally won workers compensation cases, even at the NYS Court of Appeals, can, for some claimants, make that admonition moot.


3. BOARD FORMS


The Board must provide a 3-4 page brochure about forms. While some forms, such as the C-3, have detailed instructions, there are carrier and medical provider forms that directly impact on the claimant’s case but which most claimants do not understand what the info means. For example, most claimants do not fully understand what constitutes ‘wages.’ As Doe writes regarding the C-240's, “I still don't know if are accurate, as my part time job included compensation at the contract rate, and also compensation at the non-contract rate. I am still not sure if my income at another non-profit counts. There is no information on the website regarding how income is calculated.


Yes, the Board does have its forms on-line but knowing what a form is is different from knowing that you need a specific form and under which condition each form is needed.

To Be Continued Next Week

 

Email the Insider with your comments and questions on this COMMENTARY


Privacy vs Legal History


November 24, 2015 [4121]: I have had an interesting exchange with a claimant over the last few days regarding a Third Department workers compensation case in which that person felt many embarrassing personal details were included. The claimant asked that I remove the link or 'hide' it¹.

This person felt that as a result of both my publishing the case summary and posting a link to the full decisions with the full name of the case, which included the claimant's name, I was causing this person additional embarrassment. I wrote back that it was the Court system itself which posted the complete text of the decision and that many sites make reference to the case when dealing with the issue at hand and dozens more either have the full text directly on their website or link to the Court's sites so that the reader can review the entire decision as issued by the Court.

All Third Department decision involving workers compensation cases list the name of the claimant. Other than divorce, certain sex crimes, and child custody cases, all New York courts list the full name of the person whose detailed personal medical or psychological history is often the subject of or a main contributing factor in the case at hand.

While, in the case of the person who contacted me, I have a great deal of sympathy for them, I can not take off my website or remove any links to it  or any cases in which one of the parties therein is upset by the publication of the decision. I have even had an attorney ask me to take down a case they lost because it made them look 'bad'.

The New York State Court system has two sites which list links to the full decision of various state courts and then. Accordingly, as long at the State continues to list all decision issued by it, access to these cases is available to anyone who uses the internet and enters the name of the claimant in the search box.

The Real Issue

Nevertheless, the real issue is whether or not workers compensation cases should list the name of the claimant. This is particularly true when the dispute is between two carriers, e.g. §15-8, §3(2)(29), and the claimant has no position or interest in the ultimate outcome.

I do not know what is the procedure for modifying how case names are listed by the Court, be it a legislative matter or simply within the Court's administrative purview but note that The New York Official Report Official Reports Style Manual Section 8.0 Titles of Actions and Proceedings deals in part with this subject.

This claimant has raised a legitimate concern. It really does not make sense that if someone wished to purse satisfaction in the courts that their entire life must become an open book, certainly not in a workers compensation case. After all, the Court is supposed to be looking at the issues and not care at all as to the identity of the claimant.

Perhaps those who feel that we, the people, are losing our privacy due to the internet can propose some solutions for how the Court lists cases: perhaps something as simple as using the initials of the claimant rather than the full name.

¹While there are techniques for 'hiding' a link from an internet search, it requires changes in the HTML code for each name so designated and since there are over 1000 cases posted to this site which has already received some similar requests, there is an enormous expenditure of time involved to 'hide' publically available data.

Email the Insider with your comments and questions on this COMMENTARY

What's Good for the Goose
Should Be Good for the Gander


November 10, 2015 [4120]: On October 22, 2015, WC Board Chairman Robert Beloten updated all of us on the Payor Compliance Program, whose data will indicate which of the carriers are meeting their obligations:
    
    timely filing of first reports of injury (FROIs),
    timely first payments,
    timely filing of reports of first payment,
    timely filing of notices of controversy, and
    rates of controversy.

Excellent idea.

But we also need a complementary Board Compliance Program.

To use Beloten’s own words, the Board’s “performance measures  will be included in the quarterly reports sent to payers beginning in January 2016 . . .”

  • Time to respond to a request for a medical variance
  • Time for a Memorandum of Decision to be completed,
  • Time between a request for a hearing and the scheduling that hearing,
  • Time to process a request for Full Board Review, and
  • Time between request for a hearing before a law judge or conciliator and the actual date of the hearing

Again to use Beloten’s own words, “The sole purpose of the Board Compliance initiative is a better functioning system.”

So, what is good for the goose should be good for the gander. Or, perhaps, this Thanksgiving the constituents of the Board will get their usual gift from the Board: another turkey.

The Insider: If any one has any suggestions for other performance measures they would like to see the Board publish on its website every quarter, please let me know and I will list them next week.

Email the Insider with your comments and questions on this COMMENTARY

Why No New Worker Comp Commissioners?


November 4, 2015 [4119]: I had an interesting call this week from a colleague quite familiar with the NYS Workers Compensation Board, asking why I thought Governor Cuomo had not yet filled the two $90,800 per year vacancies on the WCB’s board, leaving only 11 commissioners in place.

The simplest and most political (and cynical) answer is that, since these are considered by many to be plum appointments - no work, all play, Cuomo is saving these two slots for when he needs a political favor.

On the other hand, he may feel that adding two commissioners to the Board will not serve the interests of the Board.

Currently, of the 11 current commissioners, which includes the Chairman and Vice Chairman (the latter position still being open)¹, at least three serve no function. They are not even bench-warmers as they not only never show up at any Board office, they do not even sit at a desk or table at home and do their work online. In fact, one was renown when I was at the Board for simply not showing up at the monthly board meetings or even hearings, oral argument as one of three commissioners or §32's as the only one - no commissioner meant no hearings.

My colleague noted that this makes no difference if that commissioner does no work.

However, I disagreed.

There are three types of bad appointments.

“No Need Manager” (NNM)²: I have a friend who was appointed as a manager of a department. This person is bright but semi-literate and cannot write a coherent two-sentence paragraph. He did nothing in his job. Like some of the district administrators at the Board, their staff was more than fully capable of functioning without the input from the manager.

“Screw Up Manager” (SUM): This is one who thinks they know what they are doing and makes personnel changes or procedural changes which muck up everything. An NNM is a far better option.

“Really Needed Manager” (RNM): All Board commissioners fall in this category. They are assigned a certain number of cases to review (or, at a minimum, sign off on). Their failure to act timely means that a case - an injured worker or employer - must wait a few extra weeks or months for a decision in their case to be issued. Missed hearings could mean an additional delay of months. In these cases, the failure of the RNM to perform the duties assigned to them creates real difficulties.

When I was in the private sector, back when incoming phones ran through a plug-in switchboard, my telephone operator staring missing lot of days. I told her that if I could not count on her coming in every day, I would have to let her go. She responded, “Why? If I’m not here one of the typists in the typing pool can do my job and besides, if I’m not here, you don’t pay me.” I replied, “I have typists in the typing pool because I need them there, not on the switchboard. And one of the reasons you get guaranteed to be paid every week is that part of your pay is for you to be here every day so I can count on the job being done.”

So it is with the RNM.

All the commissioners at the Board are RNM but several, including one holder-over from my days on the Board, are slackers in every sense of the word, as are some of those appointed after I left.

And it is easy to prove.  (A December COMMENTARY.)

It could well be that Cuomo is unable to find potential appointments who are actually willing to do the work. And it may be that the new Executive Director Mark Wade does not want the two vacancies filled until he has a better handle on the Commissioners, what they do (and do not do) and how he can better utilize them.

Former Vice-Chairman Jeffrey Sweet wanted to join to Board because he felt that Board has lost its way and was not serving its constituency. Other subsequent Pataki appointments, through 1998 or so, felt that having been given this appointment by the Governor they had a responsibility to work and improve the Board.

I know that some of Patterson’s and Cuomo’s appointments have joined the Board with this perspective. But too often it is a ‘hit and miss.’ and I would like to think that Cuomo is holding off until he can be sure his next two appointments have a positive impact on the Board and do not join the ranks of the insouciants.

¹ Doing my time at the Board, it was the practice that, when the slot of Vice  Chairman was vacant, the commisisoner with the longest tenure would become Vice Chairman de facto: Canda Finnegan.

²  The scientific abstracts I read for one of the courses I am taking at Hunter College appear to have a requirement that every page must have two newly created acronyms, otherwise the paper just doesn’t warrant publication, a bad custom habit I have recently started to utilize.

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How to Help Pro-Se Claimants

October 19, 2015 [4118]: I just got off the phone this morning with a claimant who said that he could not get an attorney to help him on his case because it was a “medical only” claim and he was told by the attorney whom he called that, since they do not get paid for ‘medical only’ cases, they do not take them.

This matter of 'medical only' is a subject about which I have been writing for years but now I have a partial solution:

  • Have a Workers Compensation Board staff attorney act as an advocate. . . . with caveats noted below.
  • Let the claimant hire an attorney/lic. rep. and, initially, use funds received as penalties to pay them a fee, perhaps at some hourly rate. I have already proposed a method for paying fees in medical only cases.¹

There are two aspects to dealing with a worker’s compensation claim:

         The facts and legal issues at stake
         Procedures

If there is any question as to why I consider these as two separate functions consider the fact that many top lawyers, in particular litigators, do not always know how to file papers such as motions or mail them to all relevant parties even though they are responsible for drafting the language contained therein.

Procedures

The claimant advocate should be there, including at hearings, to help the claimant understand the procedures and forms. This morning’s claimant told me he got a letter confirming that the carrier denied the claim and that there was a ‘pre-hearing’ schedule. He had no idea what that was nor what were some the papers referenced in the document he received.

Most claimants do not understand filing dates for §18 versus §28 or differences among all the forms that are used, i.e., RB-89, RB-89.1, RB-89.2, and RB-89.3. It is totally against the principles of the worker’s compensation system for a claimant to lose case because of their inability to differentiate between the hundreds of forms the Board has. Or to have their case delayed while they ‘get it right’.

Also most claimants do not understand the language of the Board. And while every profession, from the law to medical to auto mechanics, have their own ‘lingo’, it still does not help a claimant when they are told their case will be ‘closed’ if they do not do something. In most circumstances, ‘case closed’ means final, not subject to amendment or variation. In worker’s comp, it means “nothing further will be done unless something new happens.”

It is stressful enough for the pro-se claimant to deal with the law and facts. They should not be subject to stress while trying to figure out how to proceed or what a Board form means.


Facts and Legal Issues

The advocate would not argue the case at any hearings as that would be the responsibility of the pro-se claimant nor suggest legal citations to support a claim or defeat a defense. But that advocate would help them fill out or explain how to review a C-240. The advocate would explain to them what are common indicia for certain types of claims. (A list of indicia tables by the Board would prove most useful, as I have written many times in this site.)

The advocate could also explain what are meant by ‘out of and in the course of employment’, that stupid acts resulting in injury are sometimes covered, how reporting an injury as ‘consequential’ has different legal consequences from stating that they did not realize how serious was a site of injury when they first filed their papers.

Summary


It should be obvious to any claimant’s attorney who has had to deny an injured worker representation because the attorney would not get paid for their work how difficult it is to turn down someone in need. (For those in public service, that fee covers not just salary but overhead, too!)

The workers compensation system is supposed to be a compassionate state agency. Let it show some by developing a program to help the pro-se claimant, particularly those with no-fee medical claims.

Yes, the Public Advocate’s Office does a great job and deserves a tip of the hat. But a ‘help desk’ is not a ‘helping hand’.

For Cuomo and the legislators who draft and get such legislation passed, that would be a true legacy.

¹The Florida legislature has addressed the issue of "medical only" fees under Fla. Stat. §440.34, setting the rate at $150.00 per hour.


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Affordable Care Act Increases WC Costs


October 1, 2015 [4117]: The law of unexpected consequences (or is it?) of government legislation is detailed in a report which forecasts that the passage of the federal Patient Protection and Affordable Care Act (ACA) will result in a shift of personal health care expenses to individual state’s workers compensation systems.

The Workers Compensation Research Institute (WCRI) has just detailed this probability in its newly published report “Will the Affordable Care Act Shift Claims to Workers' Compensation Payors?

Their answer is ‘yes’, their premise is quite simple, and their fears appear to be well justified.

They contend that, since doctors under many of these ACA programs are paid by the patient’s medical condition and not by the visit or time spent with that patient, there is an incentive to either limit treatment or transfer it elsewhere. And where better to shift it then to the workers compensation system where those same doctors’ income is based on the number of types of treatments.

“[WCRI calls] this case shifting from group health to workers’ compensation. To illustrate its potential importance to workers’ compensation, if just 3 percent of group health cases with soft tissue conditions (including non specific back pain) were shifted to workers’ compensation, workers’ compensation costs in a state like Pennsylvania could increase by nearly $100,000,000. The increase would be higher in a state like California (more than $225,000,000). Even in a smaller state like Iowa, the added workers’ compensation costs would be noticeable (about $25,000,000 or about 5 percent of total benefits paid).”

Their concern is for a patient presenting with a soft tissue condition (e.g., non specific back pain or strain/sprain of knee or shoulder). These cases are often controverted and, based on the New York State Appellate Court decisions I have been reviewing for the past eight years, anywhere from 2% to 4% of those cases appear to deal with such ‘discretionarily’ defined injuries.

As evidence of the validity of this concern, WCRI writes:

When we measured the amount of case shifting by looking across all states, we found that a patient covered by a capitated group health plan was 11 percent more likely to have a soft tissue injury (e.g., back pain) called work related than a similar patient covered by a fee for service group health plan.

At the beginning of this Commentary, I added the words “or is it” when I noted that this problem may be an example of the law of unintended consequences.

When I first joined the Board in 1996, as the 5th appointment of Governor George Pataki, there had already been the start of an examination of the purposes and uses of the workers compensation system. One highly respected commissioner, a Democrat, told me, as a ‘newbie’, that it was important that injured workers be covered by workers comp if they did not have personal health insurance. He made this quite clear at oral arguments when, in such cases, he would ask the claimant if they had health insurance. At the end of the hearing if the consensus seemed to be ruling against the claimant, that commissioner would say “Well maybe, but he has no other access to health insurance and we have the responsibility to injured workers to make sure that they do have access to medical care. That’s what the law is for.”

But it not just the Democrats who felt this way. There was also a Republican commissioner who joined the Board years later who openly took the same approach: workers compensation was there as a safety net for injured workers.

After all, an increase in workers compensation premiums is just a cost to business and therefore lessens the need for the government, federal or state, to use tax payer dollars to pay for the treatment.

So whether the WCRI’s justifiable concerns are based on the law of unintended consequences or an intent to shift the cost of medical care to employers, the bottom line is the same: legislators continue to stick their hand into employers’ pockets in their continued goal to win votes.


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Board’s Road Show #3: Reducing Hearings


September 17, 2015 [4116]: One of the key topics presented during the NYS WCB’s Road Shows by David Wertheim, director of the Office of Issue Resolution among his many titles, was a plan to reduce the number of issues that went to hearings or appeals. This COMMENTARY explains how this program can really be effective.

There are basically two types of issues on which decisions are made by the Board:

    Black & White: Is the appeal timely or not?

   Discretionary: As the Appellate Court so often writes,
        “[t]hat, although contrary .... evidence was given which could have ordered
         a contrary decision, the board’s decision was supported by substantial evidence.”

My analysis of decisions issued by the Court for the first 8 ½ months of this year, going back to 2010 shows that approximately 36% of the cases involved Black & White legal issues while 61% were Discretionary.


I have also broken down each of these two categories by issue codes by year in two tables.

BLACK & WHITE LEGAL ISSUES

Of the 42 issues that I have listed as Black & White, 41 are appealed randomly over the years. The only issue with a major decrease is the one dealing with the payment to the Aggregate Trust Fund (Issue 5250). It seems that in 2011 carriers realized that, despite the fact that one commissioner refused to accept legal precedent on this issue, neither the Board nor the Court would accept that commissioner’s erroneous interpretation of the law despite her constant proselytizing to the contrary.


DISCRETIONARY

Of the 43 issues I have listed as Discretionary, the numbers appear to show that three issues are decreasing in frequency, although this could be a statistical anomaly. These three issues are:

        1100...Course of Employment: in and out of
        3030...Employment: Who is or dual
        5110...Voluntary Withdrawal


ANALYSIS

I am proceeding with this commentary upon the assumption that the ratios I show here for the Appellate Court decisions hold true for the decisions issued by the Board panels on the appeals of administrative law judge decisions: that is, about one-third involve Black & White legal issues and two-thirds deal with Discretionary issues.

The problem is that, if on Black-&-White legal issues the Board decisions are reversed by the Appellate Court, when similar decisions are issued by administrative law judges and Board panels, claimants and employers (particularly the self-insured and members of trusts) will appeal with the expectation that there is a chance they will win their case on appeal.


SOLUTION

The Board could take two steps to cut down on these appeals, thereby reducing the number of deals by several thousand every year.

  1. As noted by David Wertheim in this summer’s Road Show, the Board should include all these issues in the voluntary binding review process, with the goal of ultimately making it non-voluntary.
  2. The Board should spend time training its legal-decision staff on the major issues being litigated (see my attached charts) to ensure consistency of decisions on these issues and let carrier and claimant attorneys know all the indicia the Board will expect before any dispute on any of these issues is scheduled for a hearing or a review.


On Discretionary issues, the Board can simply write an analysis of the courts decisions and some of the full Board reviews (although not all of the latter holdup to judicial review) on key indicia used in making decisions on these issues. When I was at the Board, and I would like to think it is still being done, the Board would periodically issue internal “white papers” on various legal subjects. The purpose was to make sure that the board’s legal decision-makers (Counsel’s office, Office of Issue Resolution, administrative law judges, and the occasional Commissioners) were up-to-date on the indicia used to make decisions.

Some of these “White papers” were used when staff attorneys conducted CLE (Continuing Legal Education courses) which the Board held for its legal decision-makers.

But more importantly, these “white papers” and the CLE’s should be made available to the claimant and carrier attorney’s. These documents and discussions should not be “confidential”. The information disseminated to the decision-makers at the Board directly impact on claimants and carriers. It only makes sense that those affected should also participate in the process. It is even possible that these outside parties could offer modifications or solutions to the Board that would go further towards the goal of minimizing the number of cases under dispute.

I have had the opportunity to attend CLE’s offered by the “New York State Bar Association on workers compensation issues (see my commentary of October 27, 2011) I found those discussions interesting and educating and wished at that time that the boards legal decision-makers could have attended as very often the emphasis on a particular legal subject at this CLE was quite different from the CLE conducted by the Board on the same subject.

It is not that there is an absolute right or wrong on many issues, although it is on several of the issues I define as black-and-white, it is important in the interest of justice to minimize that area of decision-making which could be called “the mushy middle.”


SUMMARY

In any system, the key element to avoiding controversy is to offer certainty. And, in the administrative process that is the NYS Workers Compensation Board, which regularly deals with over 100 different issues every year, the number of the appeals could be substantially reduced if the Board were to take a few issues every month and work to standardize the indicia and thinking processes that go into resolving disputes on those issues.

Not only would such an endeavor reduce the number of appeals as well as the time claimants and employers stress-fully await decision on their fate, both these endeavors would also go a long way to eliminating the contradictory decisions so often an issued by the Board, contradictions which caused both injured workers and their families and small employers to question the “justice” in the New York State workers compensation system.

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Board’s Road Show #2: Reducing Hearings


September 10, 2015 [4115]: One of the stated goal explained by David Wertheim, Director of the Office of Issue Resolution (OIR), during this summer’s Board Road Show is to eliminate certain type of issues from going into the review process.

The plan is to take certain types of disputes such as those which deal with money - Average Weekly Wage, Further Causally Related Disability, and Degree of Disability - and submit them to voluntary binding resolution. If the parties are amenable, they would have to sign an Election to Waive an Appeal (EWA) and a type of §32 agreement would be issued. It is understood that new legislation will be necessary to put this new type of pseudo §32 into effect but it is expected that this new procedure would cut the number of appeals and administrative hearings by eight thousand or so a year.

The advantages to both parties to selecting this EWA is that a decision would be rendered in a few week rather than the 8-14 months appeals now require.

This is an important step in the process of reducing the backlog, although, and I will raise this for the last time in this commentary, back when George Pataki was Governor, Robert Snashall was Chairman, Jeffrey Sweet was Vice-Chairman, and Carl Copps was in charge of what is now the OIR, the backlog of 12,000 appeals was reduced to 3,500 within two years simply by making everyone work to their full capacity, including the commissioners.

But I propose another step that would substantially reduce, not only the number of appeals but also the number of cases which could be subject to voluntary binding review.

Look at the issues currently subject to review, not only at the Board but also at the Third Department. One has to make the assumption, and virtually all the attorney to whom I have spoken agree with the following assessment, appeals to the Appellate Court represent about 10% of those that could reasonably be heard on the merits, even though 90% of the original decisions would be upheld.

I have made reference to my issue codes which I use to categorize the issues decided by the Court..

Many of the issues involve Board discretion. As the Court has opined on many occasions, “that, although contrary .... evidence was given which could have supported a contrary decision, the Board's decision was supported by substantial evidence.”

Other issues deal with black and white legal issues or procedures.

A proper review of Court decisions will reveal that if the Board pays proper attention to those two issues, it can probably reduce the number of appeals substantially.

Specifically:  LEGAL ISSUES AND PROCEDURES

So far this year the Board has had 11 decision reversed by the Third, the same as were reversed in all of last year. My analysis of these, broken down with my four new issue codes, indicates that half were reversed for misinterpretation of the law, mostly in cases involving §15-8 and §25 The question these reversals raise is “Why can’t the Board get its legal procedures and definitions in order?’


7252...Misinterpretation of WC Law

7253...Insubstantial Evidence
7254...Failure to follow procedure
7260...Procedure: Failed to address all issues

TOTAL
 10
 6
 2
 3

2015
6
2
1
2
2014
4
4
1
2

These reversals, particularly those involving Special Funds raise the question of how many of the 12,000 or so appeals the Board reviews every year are on the issue of §25 and §15-8. My own records on the cases I reviewed when I was on the Board shows that 1.9% were on the issue of §25-a and §15-8.  Get all the law judges, commissioners and OIR attorneys on the same page and that would be nearly 2% of the cases disappearing. Perhaps the Special Funds lead attorney on these cases, Jill Singer, could coach the Board rather handing them so many reversal every year.

Another 4%-5% dealt with issues as simple as

        1100...Course of Employment: in and out of
        1105...Course of Employment: Slip & Fall
        1110...Course of Employment: Special Events
        1112...Course of Employment: Assault
        1120...Course of Employment: Egress/Ingress
        1200...§18 notice to employer
        1210...§28: time bar
        3030...Employment: Who is or dual

Again, I go back to the issue of INDICIA TABLES. At this point in time there is no reason that a set of indicia with individual values can not be assigned to each of these issues such that both parties in a dispute would have a very good idea of what were the odds on winning their case. And perhaps, once indicia table are established, a party who goes before a law judge and loses should pay a penalty of $200 and an additional $400 for seeking a Board review and losing.

The above list of eight issues represent another set of cases that would lend themselves to Voluntary Binding Review. But I think that, if both sides were required to have all the facts listed in the indicia table ready for presentation before such a review, they would not pursue the matter.

The table on the right is the example of an indicia table I use most often as an employer attorney to whom I gave a copy told me that showing this to her clients substantially reduced litigation when the points in the Service/Employee column exceeded those in the Drive/Contractor column.

I will discuss additional aspects of Wertheim’s very interesting and promising proposal to expedite the hearing process. But the bottom line is that consistency by the Board in its decision making process will go more towards eliminating appeals and administrative law judge hearing than anything else.

The following is the list of reversals issued by the Third Department in 2014 and to date in 2014.

CASE NAME                               

Levitsky v Garden Time
Beck v Con Ed
Bank v Village of Tuckahoe
Liberius v NYC Health & Hosp
Logan v Westchester Med Ctr
Nicpon v Zelasko Constr
Thurston v Con Ed
Williams v Lloyd Gunther El Serv
Mott v Central NY Psychiatric
Hazan v WTC Volunteer Fund
Cohen v NYS WCB
Greenwood v Inland Fisher Guide
Ouderkirk v Nestle Food
Lombardo v Otsego County Empls
Gramza v Buffalo Bd of Educ
Connolly v Covanta Energy
Visic v O'Nero & Sons
Cox v Saks Fifth Ave
Hillman v Kohls NY DC
Winters v Advance Auto Parts
Hill-Chapman v Earlybird Delivery
Mejia v Drake Group

REASON FOR REVERSAL

Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Misinterpretation of WC Law
Insubstantial Evidence
Insubstantial Evidence
Insubstantial Evidence
Insubstantial Evidence
Insubstantial Evidence
Insubstantial Evidence
Failure to follow procedure
Failure to follow procedure
Failure to follow procedure
Failed to address all issues
Failed to address all issues

ISSUE APPEALED                            

Apportionment: Awards, SLU
§15(8) Reimbursement Special Fund
§25-a: True Closing
Penalties - other
§28 time bar
§25-a: True Closing
§25-a: True Closing
§29: 3rd Party/MVA liens
§25(4)[a] Reimbursement
WTC Cases §161 & article 8-A
Article 78
Disability: Degree of or R/E
Voluntary Withdrawal
Voluntary Withdrawal
§114-a: Fraud
Accident vs Disease
§15(6) Reopening
Causal Relationship: Stress
Procedure: Due Process/Mailings
Voluntary Withdrawal
Causal Relationship: Death
Untimely Submissions/Defenses

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Some Q&A on RX Lawsuits


August 27, 2015 [4114]: The following two questions were sent me to in response to my recent postings on compounding pharmacies, followed by my answers.

QUESTION #1: Do you think these cases will get over the exclusivity provisions of the WC Law or will get over the requirement that decisions of the Board be appealed to the Third Dept?

An injured worker goes to a witch doctor who waves a chicken over his head and the worker says he feels better.

But does that mean that (1) the workers comp carrier must pay the witchdoctor’s bill, (2) since the WC fee schedule does  not include ‘witch doctoring’, any fee, let alone cost of the chicken, is reasonable, (3) the claimant saying he feels better is sufficient scientific evidence as to the efficacy of waving a chicken over one’s head,?

No. No. And no.

In essence, it is my expectation that the civil courts will toss out all these cases as being within the exclusive jurisdiction of the Workers Compensation Board. Also, the Third Department exclusively hears cases involving the Workers Compensation Board because the Board, like most of state agencies, and its attorneys (NYS Attorney General) are located in Albany and the court system has decided that, since one of the parties is always in Albany (the Board), it may as well have all the agency’s cases heard there, just like Parole, Corrections, Unemployment, etc.

The only way these cases will get to the Third is after the Board either rules in favor of the pharmacies or the carriers.

One only has to look at all the debates and discussions in the State Assembly and Senate that have preceded major legislation dealing with workers compensation. The entire goal of WCL has always been to eliminate as much civil litigation as possible by giving the Board exclusive jurisdiction over all issues pertaining to claims, in particular lost wages and medical treatment. Over the years, various medical treatments have become accepted by the Board either because legislation was passed – chiropractic care in the late 1990’s – or medical evidence was given as to causal relationship. I am unaware of any case in the past nearly 20 years (12 as a commissioner and seven since then editing this website) in which the Court has mandated that the Board accept medical treatment outside the Board’s own guidelines.

In fact, the closest case to touch on this issue, in which the Courts deferred to the legislative exclusivity of the Board’s rules and regulations, was the Matter of Kigin v State of N.Y. Workers' Compensation Bd. (Decided on July 18, 2013):

… the Legislature expressly authorized the Board to "issue and maintain a list of pre-authorized procedures under this section" (Workers' Compensation Law § 13-a [5]), which the Board accomplished by promulgating the subject regulations and incorporated Guidelines (see 12 NYCRR part 324). The purposes of the reform legislation were sweeping: to remove impediments to prompt [*4]diagnosis and treatment of injured workers; to confer regulatory flexibility on the Board to maintain a list of preauthorized medical tests and treatment reflecting best practices, cost fluctuations and managed care opportunities; to reduce litigation costs and disputes between medical providers and payers; to lower costs for employers and increase benefits to injured workers; and to eliminate unnecessary and potentially harmful treatment (see Governor's Mem approving L 2007, ch 6; Letter from St Ins Dept, Mar. 13, 2007, Bill Jacket, L 2007, ch 6). We find that the Legislature expressly delegated to the Board the authority and obligation to promulgate the regulations (and incorporated Guidelines containing the list of preauthorized procedures) and that the Legislature's delegation of this authority to the Board was lawful (see Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d at 191). Further, we determine that the Board acted lawfully, as the regulations and incorporated Guidelines are "consistent with and supplemental to" the provision of the Workers' Compensation Law and statutory scheme (Workers' Compensation Law § 117 [1]; see Matter of Smith v Albany County Sheriff's Dept., 82 AD3d at 1335), and "fulfill the policy goals embodied in the statute [i.e., Workers' Compensation Law § 13-a (5)]" (Matter of Consolidated Edison Co. of N.Y. v Department of Envtl. Conservation, 71 NY2d at 191).

QUESTION #2: Assuming the attorney understands the matters you have mentioned, primary jurisdiction, exclusivity, exhaustion of remedies and proper forum, what do you suppose the attorney hopes to gain from bringing apparently thousands of lawsuits headed nowhere?

(1) Thousand $ of free publicity.

(2) I am quite sure that you have experienced the same demeanor as have I on more than one occasion when a non-WC attorney shows up at a hearing.  Litigators who do not practice administrative law look down their noses at administrative law and all that it entails and all those who practice it. I am quite sure that these attorneys feel that they can explain easily prevail over a WC attorney and convince the courts why WCL is irrelevant.

(3) Threatening to bring hundreds of cases and seriously tie up not only the courts but defense attorneys. So I am sue that one tactic is to intimidate the defendants into making a deal. My sense is that Lewin & Baglio do not realize the enormity of the issue they raise in terms of national WC issues and that carriers have billions of $ at stake nationally on the issue as to who determines what is proper medical care. So for the carriers, their petty cash (coffee and donut) budget is beyond anything firms like Lewin & Baglio have ever seen and it is they who will be overwhelmed in this process.

The Insider: The original articles on the law suits for compounding pharmacies, brought by Lewin & Baglio, can be found on the NEWSWIRE page

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The Board's Legal Record


August 20, 2015 [4113]: I have posited for years that there are two types of cases that the WCB adjudicates: discretionary and ‘Black and White.’

Because the Board did not supply any of the commissioners with access to prior decisions ( no Lexis, Westlaw, or in-house database)when I joined the Board in 1996, I designed my own database for the cases I reviewed so I could look at how I decided a case yesterday before doing so today, in the interests of consistency. My review of my data after two months and 750± cases indicated that there are these two types of cases. For example, whether an appeal of an administrative law judge decision is late or timely is ‘black and white'; there is only one way to count 30 days, even if it took the WCB years of prodding by me to recognize that 30 days is not the legal equivalent of a month. A discretionary case is one in which a decision is made on the degree of disability or SLU: even in an SLU, where deciding if a finger bends 49° or 51° is subjective.

So, in preparation for my review of the new proposal for reviewing cases discussed at the Road Show, I looked at the data I have collected in the 1000+ cases I have posted over the years. I found I have been entering the data incorrectly.

I realized that the issues listed in the opening paragraph of the decisions by the Third Department are not always the ones being decided in that opinion. For example, the Court may reverse the Board’s decision on causal relationship. But in reality, they have rejected the Board’s decision for its failure to review all the documents in the file or failing to address all the issued raised by the appellant. So the real issues is “Board’s failure to review the record” or “The Board’s failure to address the issues raised in the appeal.”  Hence, this is not so much as a ‘legal’ issue but a procedural error by the Board, far more serious an error than a difference of opinion on a legal issue.

So, actually although there are two types of issues - discretionary and B&W - the Court’s decisions really compromise three categories: discretionary, B&W, and WCB procedural.

You can see from the attached list of ISSUE CODES I assign to the cases I post on the DECISIONS page (listed under the date and name of the Court), I have broken issues down into four basic categories:

    Was there a compensable incident?
    Who pays?
    How much is due?
    Was proper procedure followed?

But the last category I was using to identify the issue as defined by the Court: denied of Full Board Review, late filing, etc. Only on rare occasions, when the Court specifically rebuked the WCB, did I use ISSUE CODE 7200.

I am now in the processing of changing the ISSUE CODE where appropriate, adding 7060 for a start.

Why is this important?

Because the Board should never, NEVER, lose a case on a B&W legal issue. When they have in the past, it is usually because they missed some info in the file, did not deal with all the appellant’s issues, or did not pay attention to precedent. While some of these cases, like §25-a and §15(8) for which the Board has record of being frequently reversed, have somewhat complex indicia lists to be reviewed, these lists are not infinite and, with a a little bit of effort, such a list can be developed that not only would result in the Board no longer being reversed on these cases, but would result in a consistent and, hence, predictable outcome, in turn resulting in 99% of the appeals of law judge decisions on this issues disappearing.

If §25 and §18 cases represent 5% of the Appellate Court decisions (and it is higher), just getting these issues corrected would result in a substantial decrease in the number of cases being adjudicated, the goal of the some of the new procedures announced by David Wertheim at the Road show. And these disputes could ultimately go before a conciliator!

More to follow.
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A Goodwill Gesture to Injured Workers?


August 16, 2015 [4112]: The recent decision in the Matter of Laurette Liberius v. New York City Health and Hospitals Corp. gives the New York State Worker’s Compensation Board the substantive opportunity to prove that its commitment to improving service to injured workers is real, by opening up review more than 100 cases dealing with late payment penalties, the subject of Liberius.

Specifically, the NYS Appellate Division, Third Department ruled on June 4, 2015 that the Board misapplied rules regarding statutes on the award of late payment penalties against by insurance companies. The Court determined that the Board should have applied WCL §25(3)(f) under which “claimant was statutorily eligible for that provision's 20% penalty” whereas the Board had incorrectly ruled that WCL §25 (2-b)(h) was the sole remedy, which provided a fine of $500. As a result,  the correct penalty on the $25,905.90 award was $5181.18 due to the claimant and not the $500 awarded by the Board.

The prevailing attorney in the case, Robert Grey, according to the July 28, 2015 article by Michael Whiteley, stated that “he has asked the Board to reopen two dozen cases with about $50,000 in proposed fines. He said he has identified 231 cases throughout the New York workers' compensation system in which workers were denied 20% penalties worth about $1 million.”

Whiteley also reported that “Albany defense attorney Peter Walsh, who serves on a worker's compensation committee of the New York State Bar Association, said Monday he doesn't expect SWCB to reopen past cases.

And, based on my experience at the Board, Walsh is basically correct. I know that because in 2004, I asked the Board to review approximately 30 to 35 cases in which the Board had ruled against claimants. The Board had regularly been denying asbestos-related colon cancer cases for the lack of medical evidence showing causal relationship. In 2004 I was on the first case that did show C/R. I asked the Office of Review [of appeals] and the General Counsel to reopen all the prior cases (mostly since 2000) for review and reconsideration, something which the Board has the legal right to do under WCL §123. They refused. So I casually mentioned this panel decision to an attorney who had some of the cases we denied so that he could request a reopening. Sometime later, the General Counsel’s office sent the Commissioners a memo that the Board was in the process of reopening several dozen cases for review and reconsideration.

If the Board’s efforts to improve service to its constituents is real, it should, under §123, immediately open all those cases involving imposition of late payment penalties and submit them for review and reconsideration. There is no reason why Grey, to whom I have offered my assistance by e-mail, or any other attorney should have to undertake the arduous task of searching through all their case files and then submitting the onerous documentation to the Board to seek such a review.

The Board has a database in which cases are filed by issue. It should not take the Lord more than 20 minutes to print up a list of such cases and another five minutes for Chairman Robert Beloten or Executive Director Mark Wade to send a directive to the Office of General Counsel to immediately review all of these cases, simultaneously sending notice to the claimants, their attorneys, and the carriers of this review.

As for the good intentions of the Road Show, “Actions speak louder than words.”

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Whose Moral Compass - Part II

July 30, 2015 [4111]


   Some people do no wrong because it is immoral and
          God won’t like it.
   Some people do no wrong because it is unethical and

          their neighbors won’t like it.
   Some people do no wrong because it is illegal and
           they will go to jail.
   Some people do wrong because they are psycopaths.

In his book, Wisdom of Psychopaths, psychiatrist Kevin Dutton talks about those attributes which make serial killers, and for that matter, corporate and political leaders. One characteristic is not that they are ‘immoral’ per se but that they are better described as those who do not recognize and/or care about the risks that they are taking.

Or perhaps it is George Santayana who stated, "Those who do not learn history are doomed to repeat it."

What else can explain the thinking (or lack of same) of recently elected State Sen. Marc Panepinto's attempt to press state Workers Comp Board officials to take action favored by his multi-million-dollar law firm Dolce, Panepinto, P.C. which specializes in personal injury and workers compensation issues.


Blair Horner with the New York Public Interest Research Group (NYPIRG) said of Panepinto, “If you're an elected official and you're going to weigh in on an area where you have a potential conflict because of your outside job, you should seek an opinion from the entity that regulates that.”
                
But according to Michael Wooten reporting for WGRZ, “Panepinto's office confirmed he did not seek such an opinion, saying it was unnecessary, because he knew he was within the law.” And, yes, this is the same Panepinto who “pleaded guilty in 2001 to misdemeanor election fraud charges for collecting false signatures on nominating petitions,” as reported by the New York Daily News.

But, then again, this IS Albany.

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Death by Flatulence
& Other Bad Medical Data


July 14, 2015 [4110]: Last month, in writing about the recent Workers Comp Board’s road show and Elizabeth Lott’s discussion of changes in the handling of medical variances, I raised the question of the misclassification of data pertaining to sites of injury.

Stuart Buck, Vice President of Research Integrity at the Laura and John Arnold Foundation in Houston, Texas, also wrote a similar article while researching which diseases are responsible for the most lost years of life.

His review of death certificates found, among causes of death, “Sexual aversion and loss of sexual enjoyment,” “flatulence and related conditions,” and “mouth breathing.” One reason he discovered is that medical schools provide “minimal training” on how to complete a death certificate. For example, if a patient with a few weeks to live due to terminal cancer falls and breaks a leg and was originally hospitalized for “broken leg,” then “broken leg” can show up as the official cause of death.

I noted that the information on the C-2 is taken either from the doctor’s report or from the claimant, who had no understanding of the need for a ‘clearly defined’ medical data input. I gave an example of someone who tripped and fell on their hands: the injury could be listed as ‘hands, ‘wrist’, or ‘palm’. With these three definitions of the site of injury, how is it possible to create accurate information on sites of and cost related to the treatment of injuries?

As Buck succinctly writes:

These systematic inaccuracies should give us pause about the much-heralded era of “big data” in medicine. How can anyone use this information to research how medical treatments or the effect of nutrition affect mortality when something as basic as the cause of death might be misreported? And without reliable research, how can society know where to allocate precious research dollars related to health and mortality? If big data is going to be of any use to medical professional and public, better training and oversight is needed for those who compile such records, and anyone seeking to use the information must remember that, as The New York Times put it, some “janitor work” is required in order to draw insights.

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Medical-Variance System Changes

 

July 1, 2015 [4109]:This COMMENTARY will deal with medical variances, requests for changes in medical treatment not prescribed in the Board’s Medical Guidelines.

Elizabeth Lott, Director of Operations and Compliance, discussed several of the new plans to be put into effect in the coming year.

Among the many issues uncovered over the past few years, Lott noted that there are nearly 8,000 MG-1 and MG-2 requests a week for medical variances. The Board has been working very hard to respond to them but that the current “paper system”, first introduced back in 1996 when the Board first went electronic, no longer serves their customers.

Aside from the extensive cost incurred by the Board in scanning all of the forms is the fact that a substantial number of the submissions contain errors which results in them being rejected until such time as the medical provider makes the necessary corrections. These errors can be anything as simple as omitting certain data and entering obviously incorrect dates as well as entering medical information that is misspelled or otherwise unidentifiable. Scanning, reading, replying to errors and then awaiting the corrected submission and starting all over again has resulted in unacceptable delays in the processing of these requests.

The new system will be similar to those used when ordering products online. There will be a number of input boxes, some of which allow limited responses in order to minimize input errors. If incorrect/meaningless information is input or answers are not completed, the system will, like ordering on Amazon, alert the user of the errors. This new procedure should ensure that over 95% of variances currently rejected are accepted on their first submission.

 

As part of the planning, these changes will be done in steps:  the first iteration of the portal is only for medical authorization transactions (MG-1, MG-2 and C-4AUTH transactions), but future iterations will require data points like the ICD-10 code that can certainly result in better reporting.

With regards to the future iterations, I suggested that, since the data including the medical information is being input directly into a computer, the Board develop a system to be able to count the number of variance requests by type of medical procedure and site of injury as well as keeping track of how many are accepted and how many are rejected.

Accordingly, if out of the 400,000± requests a year, 8,000 are for physical therapy and at 4,000 of those are for the back and 80% are approved, the Medical Guidelines should be revisited to allow greater flexibility regarding physical therapy for back injuries. And the Board may find that other treatments/sites of injury with a high reject rate that may need treatment guidelines be better explained in the Medical Guidelines.

The potential for “data mining” of the medical information does come with one major warning:

GIGO: garbage in-garbage out

For example, a person trips and falls forward onto their hands. One medical provider may list the site of injury as “hands” while another may list “right-hand and left-hand”, “palms and wrists”, etc. Same site but statistical data generated therefrom will definitely result in inaccurate and, possibly, meaningless data. The sum total of such accidents could be 5% of the Board’s listed injuries but because each is “defined” differently, each “line item” falls under 1% and is tossed into the “misc injury’ category, thus presenting a misleading data base from which to make conclusions.

The Board must set up a field in which acceptable medical sites of injury/and or procedures are listed. After all, Carolus Linnaeus (1707-1778) published his Species Plantarum in 1753, a work now internationally accepted as the starting point of modern botanical nomenclature: the classification of plants into phylum, class, series, family, genus, and species. The book consisted of over 1,200 pages and described over 7,300 species. If he could do this without a typewriter or ball point pen or electric lights, let alone without a computer, the Board should be able to develop such a list. Or the Board can find some other database used by insurance companies or hospitals or the NIH to develop a list.

In fact, this database of sites of injuries, diagnoses, and procedures should also be used whenever any medical information is provided to the Board from the first C-2 all the way to the closing of a case by stipulation or §32 settlement. This database would ensure that there is a consistency in the medical information provided to the Board, rating agencies, and the insurance companies so that their decisions will be based on fact-based data and not the random input of thousands of medical providers and clerks under the expectation that the “law of averages” will kind of “balance things out”.

As a result of this two-step process, not only will medical variances be processed faster but the Board will get regular input as to changes necessary for the medical guidelines, minimizing the need for medical variances. And then cases such as the Matter of Kigin v State of N.Y. Workers' Compensation Bd (November 2014) can be avoided. In addition, proper analysis of the newly collected data could possibly result in adding new sites of injury, diagnoses, or treatments not contemplated at the time the guidelines were last updated.

Although it is too early to make a definitive analysis, my initial impression is that the Board’s “listening tour” was heard by open ears and open minds and appears to be on the way to accomplishing its primary goal:

Serving its constituency:
Injured workers and their families and their employers

 

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Board’s Road Show: A+


June 25, 2015 [4108]: As anyone who has read this website over the years, I have been very critical of the Board, not only in its practices but in the many solutions it has offered up to improve service.

Yesterday, I had the opportunity to attend the Manhattan road show, which ran about 1½ hours but seem much shorter than that because of the excellent presentation.

So, today, I must congratulate the Board for, not just a excellent presentation in its road show, but also the detailed plans they have to improve the system.

First to speak, and introduce himself, was the new Executive Director, Mark Wade, who emphasized that the Board understands that it must give better serve to its constituency, that that is the one and only purpose of the Board.

The three main speakers were Elizabeth Lott, Director of Operations, Dave Wertheim, Head of the office of Issue Resolution, and Mary Hart, Assistant Director Of Operations.

Lott focused in speeding up medical variances and the new procedures for no-lost-time cases. Hart addressed the issue of making sure that carrier and self-insured were timely in their payment of compensation. And Wertheim discussed steps being taken to expedite both hearings and appeals, and a new use for and system of approval for §32's.

Details will follow in the next two weeks. But if you have the opportunity to attend one of the road shows, do so.
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Court's Motion Denial 'Beyond Absurd'

June 18, 2015 [4107]: As I noted in today’s posting of Court cases, the Second Department’s reasoning in denying a motion to dismiss a malpractice claim, while perhaps legally valid (and as a non-attorney I question that), essentially requires law firms to practice the kind of ‘defensive medicine’ that is driving up the cost of medical bills.

In this case, the claimant alleges that because his workers comp attorneys, for three years, did not pursue a civil action for injuries he sustained in a work-related vehicular accident for which they favorably resolved his workers compensation claim, and the statute of limitations passed on his civil suit, he was the victim of malpractice.

The law firm claims they told the claimant by phone and by regular and certified mail that they would not proceed with the civil action because "a personal injury action was not feasible." Yet, rather than hire another attorney during that period of time, the injured worker did nothing. Only after the statue of limitations had passed did the claimant allegedly become aware of the fact that is workers comp law firm would not proceed with his civil case, hiring another firm who then proceeded with a malpractice claim.

The Court, as I interpret their decision was basically given two affidavits. One was from the claimant alleging that no one, during the three years he was with the workers comp law firm, which won his comp case, told him they would not purse the civil case. The other affidavit was from the law firm which asserted that an attorney orally informed the plaintiff that "a personal injury action was not feasible" and thereafter sent letters stating that point, dated June 8, 2007, to the plaintiff by regular and certified mail.

The Court then determined that the claimant’s affidavit was truthful but the law firm’s was not valid because the evidence submitted by the defendant failed to establish that the plaintiff has no cause of action. The evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted. With respect to regular mail, "[t]he mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing," in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt. It also determined that the affidavit of its former attorney did not constitute documentary evidence.


As I interpret the court’s reasoning, to offer a defense, the Court is essentially requiring that every law firm to:

  1. Require each of its attorney’s go to the post office to mail a letter
  2. Launch a formal investigation every time a certified letter is sent out for which a return receipt of not received (How long after the letter is sent should the investigation begin?)
  3. Tape record very single phone conservation it has with anyone and then have it transcribed.
  4. Take photos or video of every meeting with every claimant to prove the potential plaintiff was at a meeting.

And, of course, it is hoped that the Court will also give detailed instructions as to the steps the law firm must take to insure that all the above evidence is tamper free.

While it is true that the burden to ‘dismiss’ is heavily placed on the defendant, the judges must occasionally take their heads out of the clouds, or wherever it is, and look at the reality of what they are requiring:

A tremendous administrative burden so cumbersome and expensive that law firms would not be able to give injured workers proper representation.

If the Court decides it will take a jury of peers to review the evidence and determine who is, in effect, lying, let us hope that they are peers of the plaintiff and not the judges. After all, one can easily get the impression that the injured worker realized that while he would not win his personal injury case, if he did nothing until the statue of limitation had passed, he could successfully sue for malpractice. It is hard to believe that for the first three years, he never inquired as to the status of his civil case  - this would make him the frist claimant who did not complain about how long his case was taking!

But then again, as someone who is not an attorney, the nuances of some Court decisions are well beyond my intellectual capacity to comprehend. Finally, Pasternack Tilker Ziegler Walsh Stanton & Romano did not wish to comment as this matter is still in litigation.

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FIXING THE BOARD - PART II


April 2, 2015
[4106]: As I promised last week in my open letter to the Board's new Executive Director Mark Wade, the following are some of my suggestions for Wade to help him fix the Board. Items are listed randomly, even though I always seem to start with the Commissioners. I also refer him to my January 8, 2015 posting, which was Part I.

 

COMMISSIONERS


EDUCATION: Since Commissioners are supposed to review the Memorandum of Decisions prepared for them by the attorneys in the Administrative Review Division (ARD), it is expected that after being at the Board for a few weeks/ months the Commissioners would know some of the laws that pertain to the documents they review. The Board periodically has CLE (Continued Legal Education Courses). Attorneys are supposed to attend a certain number these every year and the Board usually has one of its own staff conduct a CLE specifically for Board attorneys on a particular legal subject: AW, §114, §25, etc. Commissioner should be required to attend at least one each year.

There is nothing more frustrating than at a pre-Board meeting when the cases for Full Board Review are supposed to be discussed to have a few commissioners, even some who are attorneys, who have absolutely no idea what they are discussing. When I went to school (and am in fact still taking graduate courses), the assumption on handing in papers for review was that the reviewer was, at a minimum ,as knowledgeable about the basic subject as the writer. I can point to at least one current commissioner who was there when I was who can not explain “out of and in the course of employment.”

TIMELY REVIEW Proposed MoD’s from the ARD are submitted into computer work queues in which the Commissioner are supposed to review and accept/reject/modify the MoD’s. Unless a particular case was being subjected to discussion, the cases in the queue should be accepted/rejected/modified within one week. Yes, it may be argued that under such ‘rush’ conditions, some of the insouciant commissioners might not read the MoD’s. Nonsense! Commissioners like Henry, Bargnesi, Zink, McManus, and several other cleared out their work queues every few days frequently and I can assure you that they read everyone of them. Those who do not read the MOD’s usually have the oldest work queues. So, if they are not going to read them, let these insouciants ‘not read but at least sign’ them every two days just to keep the flow going.


MEDICAL VARIANCES


OPIATES: With all the discussion about abuse of opiates in the system, it should be required that no renewals for opiates shall be granted unless there is a blood test first. Unlike most workers who should not be using opiates, someone on workers comp who is supposed to be using opiates had better have a record of these drugs in their system. If not and they are getting prescriptions, (1) what are they doing with the drugs and (2) what is the prescribing doctor doing in terms of an exam or are they just an RX mill?

TIME LIMITS
: Set time limits for medical variances to be processed, i.e. surgeries in 2 weeks, continued PT in 3 weeks, etc. The insurance companies wanted medical guidelines so if they feel that the reduced time is to their disadvantage, let them pressure the Board to get these done faster. I am reminded of one claimant who told the Commissioners at one of my oral argument (why I like oral arguments) that while continuing her PT would not make her any better, stopping it as she once did in the past made her condition rapidly deteriorate.

CONTINUING TREATMENT: During the time that the variance decisions are pending, PT and medication should continue automatically while doctor visits and surgery (unless life threatening) could be postponed until a decision is made or the variance automatically approved by the Board’s failure to act.

FINDING UNINSURED EMPLOYERS


The Board seems not to care about uninsured employers until one of their employee is injured and then the Board, using all the police power of the State of New York, assesses substantial financial penalties, seemingly to force that business out of business. The emphasis should be making sure that firms have workers comp insurance before someone gets injured. And that is relatively simple.

Virtually every business large enough to have one or two employees has a bank account. Set up a system (or have the Legislature pass a law) that requires banks, when an account is opened with a d//b/a, LLC, Corp., company, et al, to have the person opening the account fill out a form which gives the company name, owners name, SS# or Fed ID #, type of business, and street (not POB) address and a phone number. And that form should include whatever is the basis for that person’s identification, identification they must present to the bank on opening an account, i.e driver’s license, passport, green card, etc.

Then a copies of that form should be sent to:
    (1)  Board (to follow up on WC insurance)
    (2)  Dept of State (make sure the company is properly registered)
    (3)  Dept of Labor (unemployment insurance)
    (4)  NYS Finance Department (filing income and sales taxes)

Finally, set a limit as to how far back in time the Board can go to assess penalties. I know of firms who have been assessed for not having coverage 15 years ago and don’t have records that old to prove their innocence.


MORE LEGAL FEES


Come up with a plan (including new legislation) that would pay claimant’s attorneys if they are successful in getting medical treatment for their clients, getting bills approved for their clients (not on behalf of the doctors), or get their clients reimbursed for out-of-pocket medical and travel. For example, the carriers should pay, if they lose even on one bill/charge, a fee of 5% on the bills approved with a minimum of $75 and a maximum of $2,000. (I am aware of at least two cases in which contested medical were in excess of $50,000).

There are far too many claimants whose sole issue is medical and do not have any ongoing comp awards from which fees could be deducted. In addition, a fee on awards for getting medical expenses means the claimant would be co-paying on the medical, exactly what workers compensation was designed to avoid.

 

SUMMARY


Next week, I will have more recommendations. But, it would be far better for Wade, as noted in my open letter to him last week, to meet with practitioners, other providers, and some claimants. But in the meantime, my list will join lists undoubtedly being submitted by others.

Is he listening? We can only hope for the best.

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Open Letter to New WCB Executive Director Mark Wade


March 26, 2015 [4105]: Welcome to the New York State Workers Compensation Board. I assume that you like a good challenge because that is what you face as you take over the reins of the agency.

There are many problems at the Board which has in the past few years failed in its primary responsibility to insure prompt medical care and wage replacement for injured workers, while maintaining a reasonable cost for the employers who ultimately pay for the medical treatment and lost wages. Below I list some of the problems and then list some recommendations.

The most meaningful step you can take is to meet directly with the workers compensation community: the attorneys for the claimants as well as for the carriers, licensed reps, the carriers themselves, and medical providers.

Equally important is that you must speak directly to a number of injured workers who feel that the system has betrayed, ignored, mistreated, humiliated and basically made their lives miserable by failing, as noted above, to remember that their needs and the needs of their families must come before those of the staff at the Board. Yes, some of these claimant may not be justified regarding the outcome of their claims but waiting year or more to lose a case is not acceptable. And far too often there is no one at the Board to give them answers and the attorneys are, these days, in a financial squeeze as the Board does its best to eliminate them from the process while the Board at the same time increases the complexity of pursing a claim. The Office of the Advocate for Injured Workers can give you the names of some of these workers whose frustration and outrage at their treatment exemplifies what has gone wrong with the Board in the last few years. (I get enough calls I must refer to the Advocate that I know thye have a good list for you.)

And while the Board has a great number of superb employees dedicated to serving the Board’s constituency, its suffers for what is called the ‘mushy middle’ syndrome: 20% are excellent workers. 20% will not produce no matter what and are inherently destructive. It is the mushy middle of 60% who will look to you for leadership. If the bottom 20% along with some of the political hacks continue to ‘rule the roost’, that mushy middle will do what they have been doing for years while the top 20% continue to be badgered for making the bottom 20% look bad.

In the seven years since I have left the Board, I have written dozens of Commentaries on how to fix the Board, just as I did in my book  Behind The Closed Doors - An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them..

Over the next few weeks, I will again list areas in which the Board need real redirection.

But I start at the top. Chairman Beloten should be the Board’s leader and should not, for whatever reason, be involved in reviewing Memorandums of Decision (MoD). That is what the other 12 commissioners are supposed to be doing, although a careful examination of the record will show that several probably have not read an MoD in years. Yes, these insouciants may sign the MoDs (by computer) but, by not reading them, they have allowed the bureaucratic staff to make policy decisions and they infect the entire Board with the sense that you can do nothing and still get paid.

The commissioners need to be put back to work, hearing Section 32 settlements so that the Law Judges have more time to handle appeals. And the Board can start setting up more oral arguments. The Commissioners who set policy by determining how the laws are interpreted must hear from the opposing attorneys face to face and not, for the few who actually read the MoD’s, rely on what the writers feel are relevant points or legal arguments. The writes are supposed to suggest decisions for the Commissioners, not make them.
Also by doing Section 32 settlements and conducting oral arguments, the Commissioners can see for themselves the injured works whose lives are impacted by the decisions of the commissioners as well as the timeliness of those decisions.

The Board also has to stop issuing new forms and let the practitioners, both legal and medical, get used to what is in place now. Too much change is being done to justify the employment of those bureaucrats who can otherwise not justify their existence.

And, as a last note for this first open letter, the Board must start publishing meaningful statistics, such as the age of appeals. The Board is supposed to be, like all government agonies, a servant of the people, not its master.

If Governor Cuomo’s appointment of you as the new Executive Director is a sign of his commitment to fix the Board, you will have the opportunity to make substantive and positive changes as was done it the early years of the Pataki administration under the aegis of Chairman Robert Snashall and Vice Chairman Jeffrey Sweet. The injured workers of New York and their families deserve this.

Good Luck.

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Medicare Set-Aside & Bankruptcy

 

January 15, 2015 [4104] On January 5, 2015, a federal bankruptcy judge ruled that, although an injured worker improperly spent the funds from the Medicare set-aside (MSA) in a workers compensation settlement case to buy cars and real estate, those properties were exempt from the injured workers Chapter 7 bankruptcy filing.

It is noteworthy  that the Chapter 7 bankruptcy filing specifically indicated that the issue that the set-aside funds were improperly used was not a factor in the decision. It also appears that fact that the MSA was supposed to be a “trust” also was not a factor in the judge’s ruling. Rather the key factor is the judge’s determination that the assets purchased from the set-aside account and the remaining cash were necessary to maintain “the Debtor’s support.”

But the fact that this very detailed, 21-page decision was drafted by one of the approximately 350 Federal Bankruptcy Court Justices means there exists not only the likelihood of an appeal but also the probability that another judge could issue a contrary ruling in a similar case.

It is important that attorneys who represent claimants in New York’s §32 settlements make sure that their clients, who may hear about this case, do not feel they have free reign to do whatever they wish with the monies allocated to the MSA. For example, there is nothing in the decision which indicates what steps Medicare may take against this claimant to resolve the issue of the misspent funds.

Equally important is the fact that many claimants take their §32 settlements in New York State in order to escape the emotional and financial stress created by the bureaucratic morass known as the New York State workers compensation system. By misusing the funds in the MSA account, they open themselves up to even greater emotional and financial stress generated by the even larger bureaucratic morass known as the Federal Government.

One concern that occurred to me over the years when I presided over and approved several thousand §32 settlements was that there was no provision to ensure that the funds from the MSA could only be used for that purpose.

In this particular case, Medicare has the option of bringing legal action against the claimant if and when medical expenses are incurred relating to the original injury for which the claimant contends there is no money left in the MSA but while the claimant still has possession of the assets purchased with those funds and, in the case of one property, monthly installment payments consisting of both amortization and interest.

But if those funds had been spent on vacations or other “non-durable” items, the question remains as to who will be responsible for paying for those medical expenses for which the now nonexistent medical set-aside funds have been expended. I do not know the answer to this nor in my many wanderings through the Internet have I found anything that addresses this issue. It was my experience that some of the claimants felt that the funds and the MSA were just part of an accounting requirement for the insurance companies paying the settlement but, for the claimant, it was just more cash to be used just as the balance of the funds in the settlement account.

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FIXING THE BOARD: Part I - ADMINISTRATIVELY


January 8, 2015 [4103]

"The cornerstone of administrative law is derived from the principle that the Legislature may declare its will, and after fixing a primary standard, endow administrative agencies with the power to fill in the interstices in the legislative product by prescribing rules and regulations consistent with the enabling legislation."(Matter of Nicholas v Kahn, 47 NY2d 24, 31 [1979]


The second cornerstone is an administrative agency that understands that it has the responsibility, both legal and moral, to set forth specific rules and regulations according to that ‘primary standard’ to accomplish the goals of that administrative agency, in this case the New York State Worker’s Compensation Board (WCB):

To provide wage replacement and medical benefits to employees for accidental injuries or diseases related to the employee’s work, under a no-fault insurance paid for by the employer, with the goal to maximizing benefit to the injured worker while minimizing costs to the employer as compared to having such incidents subject to civil or “tort” action.


Instead, the leadership of the WCB since 2009 has been one of not only total disregard of its primary function but also has given the appearance of striving to do as little work as possible while enhancing the careers of its top personnel.

It would be impossible for the state legislature to draft legislation that would fix many of the current problems at the Board as, historically, laws are passed with verbiage that either (1) is purposely vague to allow the agency to refine the meaning or (2) are so specific and detailed as to make administration of agency virtually impossible. It is, therefore, the responsibility of the executive staff at the WCB, by changes in administrative practices and by example of executive leadership to make the changes necessary for the Board to meet its primary goals and the efficiencies achieved in the late 1990's and early 2000's.

There are of course some legislative changes which need to be done but do not impact on the day-to-day operations of the Board nor the expeditious and judicious handling of claims.

This COMMENTARY offers administrative suggestions; legislative suggestions will follow. In my 12 years at the Board as well as in the six years since I left, I have had contact with attorneys for claimants and carriers, medical providers, carriers, claimants and their families, and current and past Board staff. Therefore, I feel that the suggestions represent the views of the vast majority of those who are involved in the administration of the workers compensation system as well as those who are the beneficiaries.

 

ADMINISTRATIVE CHANGES

NEW LEADERSHIP:
Perhaps the departure of Vice Chairman Frances Libous and the fact that Governor Cuomo must appoint a new vice chairman will be sufficient impetus for him to replace the Chairman and most of the other members of the executive staff. As I noted in my June 9, 2011 COMMENTARY, “ 'O pesce fete d' 'a capa”. No change in rules and regulations or underlying legislation will serve any purpose if the current dysfunctional leadership remains in place. Once they are replaced, new leadership should recognize the following problems and take the steps necessary to resolve them.

TIMELY HANDLING OF APPEALS:
Over the years I have make constant reference to the fact that appeals of administrative law judge decisions which, before I joined the Board in 1996, took nearly a year to be completed were soon being done within less than 120 days. Since 2009, time to complete an appeal has increased to the point where a wait of over one year is not uncommon. For those claimants who had their benefits reduced or denied altogether while they wait one year for the Board to review their case, the financial burden has driven many to the edge of bankruptcy and/or the loss of their homes. For those carriers who have sought to have benefits reduced or stopped while they wait one year for the Board to review their case, the out-of-pocket costs can be $30,000 in payments improperly made to claimant that cannot be recovered.

While carriers and self-insured employers may have the wherewithal and cash reserves to wait out the one year, injured workers do not. So, how many of them have been forced to take settlements that a prompt resolution of their case would have avoided. Also the stress placed on an injured worker and their family is not something that disappears once a Board panel finally issues a decision.   

SOLUTION: In 1997 under the leadership of three individuals (Chairman Robert Snashall, Vice-Chairman Jeffrey Sweet, and Review Bureau Chief Carl Copps), the backlog of appeals was reduced from 13,000 cases to less than 4000 cases. As much as I would like to describe them as ‘extraordinary’, the real characteristic that defined them was their dedication to improving the system. Perhaps an occasional phone call to any of these three will result in some suggestions as to how to improve the handling of appeals.

Perhaps one way to expedite the process is for a change in legislation which would require that for every month past eight months which an appeal is pending the Board pay both parties in the case $100 per month, these funds to come from those penalties the Board assesses carriers and claimant attorneys for not adhering to the Board’s strict administrative rules. What is good for the goose should be good for the gander.


TIMELY ADMINISTRATIVE HEARINGS:
§32 HEARINGS:

One complaint I hear from both carriers and claimants is how long it takes to get a hearing before a law judge. In 2007, a policy change was made, and I know this for fact as I was there when it was done, to lessen the workload for the already under whelmed Commissioners by transferring the 10,000 or so Section 32 settlement hearings from the Commissioners to the Administrative Law Judges. That decision should be were reversed immediately. The time spent by the Administrative Law Judges in handling those 10,000 cases is better spent resolving controverted cases and writing their decisions.

TRAINING THE COMMISSIONERS
Workers compensation law, like all law specialties, is very complex and has a 'language' of its own. It takes a great deal of time and training to learn even the most basic elements of workers compensation law, be it an understanding of the concept of “out of and in the course of employment” or the various nuances of §25 and §15(8). CLE courses, given each year by Board staff on various aspects of the New York State Workers Compensation Law, are mandatory for all practicing attorneys at the Board with the exception of three or four attorneys who are Commissioners. Not only should they be required to attend at least two CLE each year, so should those Commissioners who are not attorneys. I used to be amazed how some the Commissioners with whom I worked who knew absolutely nothing about the law were able to review proposed Memorandums of Decisions (appeals of law judge decisions). I quickly learned that several of them back then just as now do not review the decisions but simply sign.

But their lack of knowledge was rather evident during §32 hearings and oral arguments, usually made apparent by their absolute silence during the proceedings. With some level of formal training, they may actually be able to participate in the decision-making process for which they are currently being paid $90,800 a year.

ORAL ARGUMENTS:
One of the reasons that attempts were made, unfortunately successfully so, to eliminate oral arguments was that the Commissioners would not have to have the additional work to review nor the inconvenience of having to show up at a district office one, two, or three times a month, let alone possibly embarrass themselves by not having read the files nor understanding the law. As to the extent to which some Commissioners were willing to sacrifice the best interest of others for their own convenience, a quick history lesson:

From when I first joined the Board until about 2005, prior to the formal monthly Tuesday Board meeting which members of the executive staff attended, coffee, Danish, etc. were supplied and we all had a chance to socialize. One day, Vice-Chairman Libous, at the Board’s private informal Monday Board meeting, said that she was under pressure to save money and, therefore, the Commissioners had two choices. A few months earlier she had started program in which all of the documents needed by the Commissioners for the monthly meeting (about 40 to 60 pages) were sent by FedEx to the homes of the Commissioners so that they would not have to drive to the local district office nor use their home printers to print out the documents. “We have a choice of either stopping the FedEx and requiring you to go to your district office once a month. Or we can stop the coffee and Danish before the Board meeting. I suggest we stop the coffee and Danish.” Since the majority of Commissioners felt going to the district office was an inconvenience, no more coffee and Danish for the Commissioners and staff.

   
Oral arguments are not only an excellent way for the Commissioners to learn the law and the rules and regulations but also help foster a better relationship between the attorneys for both sides with the Commissioners. I found that the opportunity given to me to ask detailed questions of the practitioners and learn what was their reasoning behind the positions not only gave me a better understanding of the law and insured that decisions which I wrote addressed the concerns they raised.

For some of us, oral arguments were by far the best part of being a Commissioner. But more importantly, it made us better at our job and gave the practitioners an opportunity to explain their positions in a manner in which written appeals and rebuttals could not do justice.

There will be those who argue that those cases set for oral argument delayed the decision-making process but adding one month to a three-month decision-making process pales in comparison to the one-year it takes now for a Board panel decision.

MEETING WITH PRACTITIONERS:
In the early years when I was at the Board, every few months the District Manager and/or District Administrator and occasionally the Chairman would hold a meeting at the district office with the practitioners. I was one of three Commissioners who made it our practice to attend those meetings.

While many of the questions were addressed to the District Manager or District Administrator, some were addressed to the Commissioners who attended as it was the one opportunity for the practitioners had to ask us about some of our procedures and policies. And I had the opportunity to tell them some of the ways in which I thought they could make our decision-making process much easier.

MEDICAL VARIANCES
Somehow or other, a system must be put in place in which medical variance requests are processed within one month of their receipt and the Board must place its emphasis on resolving the medical issues rather than using a typographical error or an unchecked box to deny the request just so that the Board statistics give the impression that medical variance requests are being resolved on a timely basis.

Next week I will review the decision in Kigin and make recommendations as to how the concerns raised by plaintiff attorney Robert Grey can be addressed, as it is contrary to everything the workers compensation system is supposed to represent that any claimant’s medical treatment should be stopped while a bunch of bureaucrats 'diddle' with paperwork.

 

SUMMARY

While in two weeks, I will propose changes in legislation, I think that the primary theme in this commentary is 'communications.' There has to be a better dialogue between the practitioners and the Commissioners, who represent the appeals process, so that some touch of humanity enters into the decision-making process, which now seems to be based solely on the overriding principle of the Commissioners that the need to minimize their work load is the primary purpose of the workers compensation system.

The goals I have outlined are not impossible: they have already been achieved. But recent changes in leadership have resulted in the Board being misdirected and failing to meet its obligation to injured workers and their families and employers who are ultimately responsible for paying all the bills.

It is incumbent on all members of the workers compensation community in the State of New York to let their legislators and Governor Cuomo know that it is time to fix the Board.

 

 

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The Board Finally Follows The Law

 

January 1, 2015 [4102] For several years now, in this website, I have noted that the denial of a Full Board Review signed only by the Vice Chairman of the Board is not legal but just one of many actions taken to minimize the amount of work to be done by the Commissioners. And the Court itself opined that this procedure is illegal. In Matter of Scalo v C.D. Perry & Sons, Inc., [2013]), the Court wrote “Applications for Board review are to be considered by a panel of at least three members and may not be decided by the chair, or any other single member of the Board, alone .”

Now it appears the Board has finally taken my complaint, supported by a Court decision, to heart.

A note in the decision issued December 31, 2014 by the Appellate Division, Third Department, in the Matter of Lleshi v DAG Hammarskjold Tower seems to support the validity of my complaint, although this decision says “solely by the chair”, although at one time it was “solely by the vice chair”..

Recently I commented on the fact that for the first time in years, the Office of the General Counsel appears to be reviewing appeals that go directly to the Appellate Court rather than seeking a Full Board Review. As a result, some of the Board panel decisions are reviewed and often an amended decision is issued, with the result that the revised Board panel decision is one that would be affirmed by the Appellate Court.

It now appears that the Board has recognized the validity of my complaint that denials of a Full Board Review signed solely by the Vice Chairman or Chairman is not legal so that now, in those cases sent to the Appellate Court in which this issue is raised, the Office of the General Counsel resubmits the denial to a full Board panel, as was apparently done in the Matter of Lleshi v DAG Hammarskjold Tower.

While to some people this may appear to be a meaningless distinction, it is about time that the Board pays as much attention to the “letter of the law” with regards to its own administrative practices as it does to the “letter of the law” when ruling against a party in a controverted case, even if the result of adhering to the law is more work, as a minimal as it may be, for the commissioners.

Let us hope that the end of this year, (1)  in bringing the retirement and end of the  negative impact of the reign of the Vice Chairman Frances Libous, and (2) as noted by this apparent change in Board policy will be the beginning steps in ensuring that the Board remembers its raison d’être: serving the workers compensation community rather than the ambitions of the Board’s Commissioners and executive staff.

My original comment on this issue:

This is an issue I raised in May 26, 2009 in my COMMENTARY “Judicial Economy vs Judicial Integrity” and in my book, Behind The Closed Doors. I questioned the legality of requests for Full Board Review being denied after review by only one member of the Board, the Vice Chairman. And it is the Vice Chair who deals with FBR’s, even if it is the Chair’s name that is on the document itself. In a practice started by Vice Chair Sweet, under current Vice Chair Frances Libous, the number of request for Full Board Review (FBR) that were accepted by the Board when I was there dropped about 20% to 25%. In effect, Libous can make the arbitrary decision that a request for a FBR should be rejected. By the same token, although there may be very legitimate grounds for denying a FBR, Libous also has the ability to put one forward. And it should be obvious that Vice Chair Libous, whose husband is the ranking Majority Leader of the State Senate, will not have too many civil servants or appointed staff disagree with her. In effect, until this ruling, Libous has essentially had the sole discretion as to whether a FBR should go forward or not. And I can assure you, after having served on the Board with her for as many years as I did, legal reasoning was not the major factor in all her decisions.

 

 

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The WCB Allows a “Ponzi” Scheme


Nov 6, 2014 [4101]
: I was quoted by Jim Kenyon, the chief investigative reporter for CNY Central, as “Accusing the state of allowing a ‘Ponzi scheme’ that is forcing hundreds of small b
usiness owners to shell out thousands of dollars to the Workers Comp Fund.

“[Berns] blames the Board for allowing these self insured trusts to be mismanaged by companies approved by the state.
 
 "So these management companies came in and started collecting their thousand dollar premiums , when in reality they were skimming the money. The State of New York allowed what I would call a Ponzi scheme to take place and therefore the State of New York should take the responsibility of making these people whole."

Among a number of statements issued by an unnamed Board spokesman were:



“During the Pataki Administration (which coincided with most of Mr. Bern’s tenure) group trusts grew in number and membership.
    
First, upon assumption of these trusts, the Board worked to ensure the affected claimants were provided timely benefits, despite their former group trust’s lack of funds.  Second, the Board initiated forensic reviews of the defunct groups to determine the circumstances that led to their demise.  These forensic reports identified significant areas of improper actions on behalf of the Group Administrators, Third Party Administrators, accountants, actuaries, and in some instances even the Trustees.  Based upon these forensic reports the Board has commenced over a dozen damages actions against these parties, on behalf of the former group trust members, to recover the cumulative deficits of these trusts.
    
Since Mr. Bern’s left prior to the majority of these actions, it is likely that Mr. Berns is not aware of the extensive lengths the Board has taken to ensure the timely benefits for these affected workers and aggressive management of the trust to mitigate the costs to their employers."

Yes, these trusts were started during the Pataki administration but it was two years into the next administration(s before the first Board resolution came before the Board on which I was a member to ask for approval of an investigation of the trusts run by CRM.

But, all the responses from the Board’s spokesman fail to address the one issue I have raised for years:

Has there been any investigation regarding the validity of the claims
themselves or the issue of continuing disability or medical treatment.

I have been in communications with both trust members, their representatives, and investigators, and not one has told me of any such investigation by the Board.

The Board’s failure to act on this issue is akin to retail stores finding out that a flaw in the credit card company’s system allowed some people to fraudulently get credit cards for those stores. The credit card companies were then sued but nothing was done about the actual cards that were improperly issues - those card holders continue to spend money. And this is likely true for many of the improper claims accepted by the trust managers.

So I return to one of the initial issues I raised: Has the Board or any of the firms assigned by the Board to manage these claims taken a look to insure that the approval of the initial workers compensation claim was proper or are there thousands of non-workers compensation claims that have been accepted, unchallenged into the system, thus requiring the payment of millions of dollars in improper compensation and medical expenses. The Board must issue a report that compares the following information for claims placed through the defunct trusts compared to those placed with the State Insurance Fund as well as private carriers and compared to the funded trusts:

  • what is the percentage of claims controverted?
  • What is the average duration of medical payments and compensation payments?
  • What is the range (as in a table) of the cost of claims in terms of medical expenses and compensation payments?

Finally, the newspapers get press releases from the Board as  to how it is going after small business to collect assessments. Any reports on the Board’s attempts to collect money for the trust managers? Or is all the money being collected there being spent on legal fees?

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Who Fills Libous’ Shoes

 

October 30, 2014 [4100]: Now that Frances Libous has filed for retirement as of December 31, 2014 leaving the post of Vice Chairman of the NYS Workers Compensation Board vacant, the question is who will be appointed by Governor Cuomo to fill her shoes. A quick answer is:

    Hopefully no one!

I served with Libous from 2001 to 2008 and had a rather tumultuous relationship with her. Why, because I respected those of my colleagues, commissioners and staff, who did their work and showed an interest in serving the workers compensation community. Not only was Libous not one of those, but her interest from the day she joined the Board was to convert the Workers Compensation Board into a patronage empire, with her as the head.

Without going into more detail (for which I have documentary backup), her primary goal among others was to reduce the work load of the commissioners. She had the Section 32 settlement hearings taken away from the commissioners, assigning those 10,000 or so cases a year to the already over-burdened administrative law judges. She sought to reduce the number of cases that went on to oral argument so that, hopefully, she did not have to appear at a hearing in front of claimant and carrier attorneys. In addition, as Vice-Chairman of the Board, she ran the Full Board Meetings, during which time substantive discussion of cases was not allowed and there always appeared to be a rush to finish both the Monday afternoon informal meeting by no later than 4 PM and the Tuesday formal meeting as quickly as possible.

In essence, Libous was, to say the least, counterproductive. Sometimes someone in an executive position, like some of the current commissioners, do nothing. “No Harm, No Foul.” but not in this case. Even Governor Pataki agreed (noted below).

 

WHAT THE BOARD NEEDS NOW

 

What the Board needs now, as often noted in this website, is a vice chairman dedicated to the service of the Board’s constituency: injured workers and their families, and their employers who pay for the compensation and medical expenses, followed by the attorneys on both sides and the medical professionals who serve the injured workers.

It needs a vice chairman who will take charge and hold the staff responsible for getting their jobs done, starting with the Administrative Review Bureau, in order to cut down the egregiously humongous backlog of cases, taking a year to resolve.

It needs a vice chairman will make sure that all the other 11 commissioners do their work properly (actually read the proposed decisions) and do their work on a timely basis.

The next question:

 

WHO IS QUALIFIED TO BE VICE-CHAIR?


Governor Cuomo has three options:

  1. Appoint one of the sitting commissioners as Vice-Chairman, an action which does not require State Senate confirmation
  2. Appoint a new commissioner by picking someone from outside the agency, which requires State Senate confirmation, nominating them as Vice Chairman.
  3. Appoint a new commissioner by picking an executive from inside the agency, which requires State Senate confirmation, nominating them as Vice Chairman.

Since Libous is not an attorney, the next vice chairman/commissioner also need not be an attorney which opens up the selection of a replacement to a much larger field of qualified candidates.

AMONG THE CURRENT COMMISSIONERS

Two commissioners stand out, although I personably only know one. But the other’s reputation is one of a diligent worker in terms of attention paid to his responsibilities and his interest in learning and understanding workers compensation law.

The first is former General Counsel Kenneth Munnelly.
The second is Conrad W Lower.

Richard A. Bell is a third but highly unlike choice because of his Republican pedigree and close relationship with the man who, in 1994, defeated Govern Andrew Cuomo’s father, Governor Mario Cuomo: George Pataki. Bell, as the Board's Executive Director, was one of the lead executives in the late 1990's when the Board, under the direction of Chairman Robert Snashall, turned the Board from a third rate, underperforming bureaucracy into the most efficient workers compensation board not only in the U.S. but in the world. That is, if visits by executives from all over the world are a testimony to the Board’s newly gained efficiencies during Snashall’s leadership.

CLICK HERE  to go to the page with the official and informal bios of the commisioners.

OTHER STAFF AT THE BOARD


Based on my working experience with a number of individual who have worked they way up to key executive positions at the Board, with probably only three exceptions, I would not only not appoint them as Vice Chairman, or even as a Commissioner, I would fire them as many of them reached their current position with the aid of Vice-Chairman Libous.

There is a maxim I use all the time when talking about elections:

Very few people win election. It is the other guy who loses.

Take away those who vote on party line regardless of the candidate, more people vote against a candidate than vote for one. Another way to demonstrate this is a foot race. I may be slower than you, but if I trip you and you get injured, I will win by default.

So while I can not speak about the entire executive staff currently at the Board, I can tell you that Libous attempted that maneuver on two Commissioners who did not give her the homage and deference she felt she deserved: Commissioner Karl Henry and me. She made formal complaints against both of us of unethical/illegal behavior to the Office of Governor Pataki, charges that were not just dismissed but, based on what I was told by one of the people involved, charges considered absurd on their face:

Henry’s travel expenses were substantially higher than any one of the other Commissioners. The reason: Henry was the only upstate Commissioner (Buffalo) who was willing to fly to New York and Long Island at least one a month to do hearings.

My “misdeeds” were that (1) I designed a data base of most of the cases in which I participated,about 20,000 (for years commissioners did not have access to Lexis) and (2) I had assembled into one book all my notes on the law and medicine as it applied to the cases which I was being asked to review as commissioners and for which we commissioners were given no training. As I have noted more than once, the Board attempted, after refusing my assistance, to duplicate my data base (rather unsuccessfully) and, when I was leaving in 2008, asked me for a copy of my 500+ page CaseNotes hand book.

I write the above to explain one of the many arts of politics. If you cannot make allies, let someone else destroy them. Others have felt the sting of Libous and been forced to leave the Board. So a good number, albeit not all, of those who remained to move up the ranks did so because she either pushed them for the job or cleared the way for them.

But my stance that Libous was not qualified was apparently shared by Governor George Pataki who felt strongly enough that he was willing take the risk oftaking the big step over Libous and angering her husband, State Senator Thomas Libous, NYS Senate Deputy Majority Coalition Leader.

Frances Libous became Vice-Chairman when her predecessor Jeffrey Sweet retired in 2006 and she took the position of acting Chairman for a few months later after Chairman David Wehner left the Board. But a few months later Governor Pataki formally nominated Commissioner Donna Ferrara as Chairman Pro-Tem. Perhaps Pataki realized the damage that could occur at the Board has Libous remained as Chairman Pro-Tem, particularly if her husband, Senator Tom Libous used his position to block the appointment of a new chair to replace his wife, while she was Chairman Pro Tem.

These are the reasons that the Board, once Libous leaves, needs a good house cleaning. And I am sure that an outsider would do just that.

They would, that is, if they were given the authority by Governor Cuomo who has, to date, shown a lack of interest in the Workers Compensation Board.

WHAT IS A GOOD VICE CHAIRMAN


I have been told recently by a number of people that Board’s executives and, in particular, commissioners have almost been somewhat passive. That the early years I spent at the Board under the active leadership of Snashall and Vice-Chairman Jeffery Sweet were anomalies.

Well, if so, we need more anomalies like those years.

Sweet came in with an agenda. He asked to be on the Board and to be its Vice-Chairman because of his experience dealing with the New York State workers compensation system when he was at theWestchester County Medical Center, where he administered the Workers' Compensation and Labor Relations Programs. He saw a dysfunctional system and felt he had the responsibility, and with Pataki’s election, the opportunity to do more than complain. He could help manage the Board and fix it.

Well, he did.

While the review of appeals is only a part of the work done by the Board, it is the face that is seen most often by injured workers and small employers. And since the commissioners are at the top of the operation, Sweet was in the position to make sure that the Commissioner got their work done. He listened to our suggestions as to how to speed up the system, including such minor details as to how the physical folders (we were on paper in my early years at the Board) should be handled to save time. We took time at our informal monthly Monday board meetings to open discussion on key issues and what we should do to make sure we were consistent and rational. The result was that the inventory of appeals dropped from 13,000 (about one year’s worth) to 3,500 cases (three months’ worth),

While in many ways, Sweet is a unique individual, I seriously doubt that there does not exist at least one individual in New York State who has the skills and political ‘saykhel’ to get the job done. And while Chairman Robert Beloten has not shown the leadership skills necessary to run the Board, at least he will not, like Libous, interfere in someone else’s effort to rehabilitate the Board

As for Beloten, since he seems to like reviewing appeals, perhaps an escape from the stress of management or the political infighting, he should return to his position as one of the twelve sitting Commissioners and let Governor Cuomo select a new person to return the Board to the glory days of the Snashall/Sweet/Rick Bell administration.

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Res Ipsa Loquitur*

 

October 23, 2013 [4099]

Court-ordered time frames are requirements that must be taken seriously by the parties, as "[t]he failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but . . . breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution" (Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]; see Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725, 726-727 [2004]; Brill v City of New York, 2 NY3d 648, 652 [2004]; Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

I do not think that setting a firm deadline for all Memorandums of Decision would be appropriate but perhaps a rule that 90% shall be done within 6 months would go a long way to (1) cutting the inventory and (2) getting back some minimal respect for the Board.

*Speaks for itself

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Pending Decision at the 3rd:

Dobney vs. Eastman Kodak Co

WCL §25(4)(a) v §25(4)(c)

October 16, 2014 [4098]: Daniel A. Bronk, the attorney representing the claimant in the above case, has submitted the following commentary and attachments on this case. Bronk states, and I remember the disagreements on this issue when I was at the Board, that:

The import of this case is that it may impact many large employers who have wage continuation plans or "sickness and accident" plans that bring the injured worker's payments up to her/his base salary.

Bronk writes:

"The issue is the application of WCL 25(4)(a) versus 25(4)(c) to the Kodak Wage continuation employee benefit plan and whether the employer must meet the requirement of filing the plan as a condition precedent to any request for reimbursement above the Workers' Compensation rate.  The prior case precedent is Staruch v. NY Telephone, 277 A.D.2d 830 (3d Dept. 2000).

The Board found in my client's favor holding that the employer was required to file the plan prior to any award to be eligible for reimbursement above the amount of the award in a NOD dated 09/23/11.

A Three Member Panel affirmed 11/23/12 citing heavily to Judge Kotwas' original decision. (Attached).

The Full Board denied the carrier's application for review in a NOD dated 04/15/13.

While the Appeal to the Third Department was being briefed, the Board issued an amended decision dated 09/16/13 affirming the outcome but for different reasons than in the prior WCLJ, Three Member Panel, and Full Board decisions.

Justice Stein was the only Judge that asked questions at oral argument.  The crux of the questions was whether the Kodak benefit plan was subject to WCL 25(4)(c).  Stephen Wyder for H&W argued that 25(4)(c) did not apply because it was not limited in the overall benefit received by the injured worker when one takes in to account the Kodak WCS benefit plus the WC payment.

I argued that the employer's analysis was incorrect because it counted benefits outside the plan, i.e. WC payments.  The WCS benefit plan is limited because a worker injured outside of work would receive full benefits without reduction or reimbursement to the employer.  A worker injured at work would receive the same payment initially as the STD plan, but then the benefit was limited by reimbursement to the employer at the WC comp rate and, if a SLU applied, full reimbursement to the employer.  Under the latter scenario, the benefit plan would have paid $0.00.

The import of this case is that it may impact many large employers who have wage continuation plans or "sickness and accident" plans that bring the injured worker's payments up to her/his base salary.  Under WCL 25(4)(c) and Staruch,  the employer is not entitled to reimbursement without meeting the two conditions precedent: filing a reimbursement request before each award and filing the terms of the employee benefit plan before the first award.  Despite losing this case in front of the Board, Kodak has failed to file their employee benefit plan in any WC cases to my knowledge.  While many large employers in the Rochester area have plans that would fall under WCL 25(4)(c), none of them are filing their employee benefit plans as required to meet the condition precedent for full reimbursement.

It will be interesting to see whether the Third Department adheres to the Staruch case precedent or makes some exception for the Kodak plan.


Daniel A. Bronk
Bronk & Somers, P.C.
The Park at Allens Creek
110 Allens Creek Road
Rochester, New York 14618

The detailed PDF file (MoD's, Briefs, etc) can be found if you

The Insider: Staruch was actually one of about 2,100 individuals at NY Telephone/Verizon who had virtually identical claims. The work on this case took several years including the time spent awaiting the Third Department's response to the Board’s submission of several Certified Questions. Once the answers and the formal decision were rendered, the cases were split into several groups and put in the basement at 20 Park Street to be signed by a panel of commissioners. Commissioners Carol McManus, Mona Bargnesi, and I would spend hours in a small room manually signing hundreds of identically worded 6-8 page decisions, still on paper, differing only in the claimant's name, site of injury, date of injury, and dollar amount involved. The transfer of these files to ECF/CIS only meant we could do the work from our district offices. Yet, between the three of us, we found that about 1% of the decisions had substantive errors in them and had to be re-done.

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Who is Running the WCB Store?

 

October 16, 2014 [4097]: The answer to the question, “Who is running the WCB?” is simple only to the extent that Chairman Beloten can be ruled out of the equation. Why do I make that statement?

Because Beloten apparently prefers to spoend his time doing the duties of a commissioner rather than those of the chairman.

I have had several reports from participants in the Worker’s Compensation system: Robert Beloten is participating in the issuing of Memorandums of Decision.

During my 12 years as a Commissioner at the Board, I was repeatedly told that the Chairman was the chief executive officer of the Board, responsible for the management of a state agency with a budget well in excess of $150 million and over 1000 employees. Historically, the work on the Memorandums of Decision was the responsibility of the other 12 commissioners who were supposed to spent their working time either reviewing proposed decisions or participating in settlement hearings (originally Lump Sum, then Section 32 Settlements) and oral arguments.

Now that the settlements are being heard by the law judges and the number of days set aside for oral arguments has dropped from the 15 – 20 a month when I was on the Board to maybe one each month, it would seem to most reasonable people that the 12 commissioners would have far more time to attend to their one remaining duty: reviewing Memorandums of Decision.

Yet it appears that the Memorandums of Decisions, the appeals made by claimants and carriers of administrative law judge decisions, now take as much as one year to be done as compared to three months when I was on the Board.

And now we have a thirteenth commissioner reviewing Memorandums of Decision.

This raises two questions:

Why does it take longer for Memorandums of Decision to be issued when there are 13 people reviewing than it  took when there were 12?

Now that Commissioner Beloten is spending many hours each week participating in the issuance of Memorandums of Decision, who at the Board is making those management and executive decisions which would have been made by a real Chairman during those hours Beloten is not fulfilling those duties?


It should be obvious to anyone who has any involvement with the New York State Worker’s Compensation Board that this agency has serious problems in its operations and requires strong leadership. Yet the individual who is supposed to lead the agency is busy participating in work that apparently is not being done in expeditious manner by 12 other commissioners who are paid $90,800 a year to now do nothing more than review Memorandums of Decision.

This is but another example of why it is imperative that Gov. Cuomo replace the leadership at the Worker’s Compensation Board.

The Insider I am not questioning Beloten’s legal qualifications to participate in the process but the fact that his appointment as chairman requires him to participate in activities exclusively those of the chairman. In fact, Beloten is far more competent than several of the current commissioners when it comes to reviewing decisions.

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Court Says Florida’s
Worker Comp Laws are Unconstitutional


August 21, 2014 [4096]
: The 11th Judicial Circuit Court of Florida in Miami on August 13, 2014 ruled in the Matter of Padgett v State of Florida that Florida's workers' compensation law as an “exclusive remedy" is unconstitutional.

In this case, an injured employee brought a civil complaint against the employer for damages as the result of the employer’s alleged negligence in the workplace, which resulted in the employer seeking to bar the case on the grounds that Florida’s workers compensation law is the ‘exclusive remedy’.

On reading the case, however, it seems that Florida has set itself up for this type of decision by recent changes in its workers compensation legislation, in effect, eliminating most awards except for those for permanent total disability. The Court noted that,

There was, however, a significant change to the rights of the Citizens of Florida in the legislative session of 1970. This change repealed the right of the employee and the employer . . . to "opt out" of coverage of the Act, a right which was present as of the date of the Constitutional revision in November 1968. There was no 'reasonable alternative' or additional benefit provided by the legislature in exchange for elimination of the right to "opt out". Florida forever changed from being a state that followed the contributory negligence doctrine to one that followed the rules of comparative negligence. It is obvious that working people would not have been likely to opt out of coverage under the Act knowing they had to be 100% free of their own negligence to prevail in tort against their employer. As a victim of an on-the-job injury, a Plaintiff employee also had to be the victim of an accident that was not caused, even slightly, by a fellow servant and also be an employee who did not accept the dangers of hazardous employment. The Act became unconstitutional as an exclusive remedy in stages. By the time Hoffman v Jones (July 10, 1973)  was decided, the "Quid Pro Quo" had already been destroyed. The 1973 Legislature made no changes to the Act to account for the change in the value of the 'trade'; workers' compensation exclusively in exchange for the value of the lost tort remedy.

The Court summarized its decision by commenting that,

[Legislative] Statutes are subject to strict scrutiny if they impinge upon fundamental rights. . . . The purpose of a workers' compensation act is not for it to be used as a weapon in an economic civil war. Its purpose is to provide adequate compensation for on the job injuries in place of the tort remedy so as to relieve society from the costs of industrial injuries. . .  The test for 'overpowering public necessity' is whether the Act promotes public morals, health, safety and welfare of the citizens.

  • As to promoting Health, the Act fails miserably. It allows Employers to avoid and evade responsibility for injury by apportioning medical care expenses; part paid by the employer and the balance the responsibility of the injured worker. If the employee cannot afford his or her share, no medical care at all is provided.
  • As to Welfare, the Act fails miserably. There is no replacement for wages lost due to permanent injury unless the disability is total. If total, benefits end at age 75 or after 5 years of benefits are
  • As to Safety, the Act and the rest of the Florida laws fail miserably. The legislature abolished the Florida Division of Safety and all safety rules and regulations leaving OSHA to regulate all Florida private business and no agency to regulate the safety of government employees paid out.
  • As to Morals, the Act fails miserably.

The bottom line is that the State of Florida, by slowly eroding the benefits and legal protections of its workers compensation program, left a substantial number of its workers without access to medical benefits or payment of compensation for time lost from work as a result of their injuries.

Although some writers, in looking at this case, are warning that all workers comp systems are at risk, it is only those that reduce benefits without any concomitant increase in some other rights.

On the other hand, could it be argued that the recent changes in the New York State Workers Compensation Law, the one which limited payment for permanent partial disability to a period related to the degree of disability, did not offer a sufficiently valuable consideration: the new medical guidelines or an annual increase in maximum average weekly wage used to calculate benefits?

It is my view that, while there may be claimants who were subjected to the PPD time limits who did not benefit from the new medical guidelines and certainly not from the non-retroactive AWW limits, there were as many claimants who did benefit when the law was amended and certainly will benefit into the future.

Be that as it may, it is such issues that keep the lawyers in business and another example of the state legislature, not just limited to the State of Florida, who write legislation without any understanding of the consequences of same. As I have previously noted in this site, Thomas Jefferson to Oliver Wendell Holmes to John Marshall as far back to Hammaburi may have been great legal writers but to ask each one to draft a sentence or two to be combined into a new law will result in the poorly written multi-interpretable laws we have now.

I end this piece by taking a quote (used in my book Behind The Closed Doors) from Michael D. Langan a former U.S. Treasury official wrote the following in an op-ed entitled "The Language of Diplomacy": His description seems to apply to the State of Florida’s legislative attempts to rewrite and modify its workers compensation laws and, on careful review, most of New York’s.

At one point in my federal government career, I wrote up an explanation of a complicated matter in which I considered to be an extremely clear, cogent manner. The senior government official to whom I reported read it carefully, ruminating and adjusting his glasses as he read it. Then he looked up at me and said "This isn't any good. I understand it completely. Take it back and muddy it up. I want the statement to be able to be interpreted two or three ways." The resulting ambiguity enabled some compromise between competing government interests.

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I Recommend A Study of §32 Recipients


July 31, 2014 [4095]: It has been nearly 20 years since the first Section 32 settlement agreement began appearing at the NYS Workers Compensation Board and, as someone who in the early years was hearing over 100 settlements a month, I have always wanted to know how they turned out.

Not in the sense that the Board and carriers like to proclaim in terms of dollars saved and cases closed, but from the perspective of the injured worker.


        Does the claimant, after taking a settlement, feel their life is better for it?


As often noted in this website, the real goal of the workers compensation system is not to generate numbers that make the executive staff and elected officials look good. The goal is to insure that injured workers get proper medical care for the injuries they got at work and replacement income before they are able to return to the work place.

Therefore, I recommend that a study be done of these injured workers and what they think of the settlements. I am sure that the Board can come up with the funds to do such a study or work with the Workers Compensation Research Institute to do one.

The study would ask some of the following questions, dividing the claimants into various groups:
•    1 year, 5 year, and 10 year closings
•    PPD, C-7, other
•    Those still residing in the U.S. and those who have left. Nearly 40% of the settlements
      I did in New York City were with translators. It would be interesting to know how many
      of these and English-speaking immigrants decided to leave the U.S. after getting their
      settlements.

    • Fo
r those classified with Permanent Disabilities (Partial or Total)
        -Have they returned to work?
        -Same occupation or different?
        -High, lower, or same earnings?
    • How is their degree of disability, allowing for their getting older
        - Better, worse, same?
        -Any consequential medical issues/disability related to the
           original claim?
    • Medical
        -Has there been any need for more medical treatment?
        -The same or different treatment
        -Frequency: more, less, the same i.e., therapy RX
    • Was the set-aside sufficient, too low, or is there still money in acct?
    • If not e
nough money how were new medical expenses paid for?
        -Out of pocket
        -Private/group insurance
        -Medicare/Medicaid

    • Has their lifestyle, since the settlement
        -Improved,
        -Stayed the same
        -Gotten worse
    • Satisfaction: If they had to do it again knowing what they do now and
       the settlement was exactly the same, would they
        -Take the settlement
        -Prefer to stay in the WC system
    • Are they satisfied they took the settlement?
    • After they got their settlement check, was there a need for them
       to contact their attorney or the WCB again? If yes, why?
    • Did anything happen to them that was not in the §32 agreement or
       about which they had no discussions prior to the settlement?

The ans
wers as to how effective were the changes in the law in 1996 will be shown by the level of satisfaction or dissatisfaction measured by such a study. The Board's position has been the operation was successful even if the patient died; the injured worker is more interested in how well they have survived and not what their doctor thinks.

The legislature, the Board, and attorneys and parties on both sides can tweak the system all they want but until those who are the recipients/targets of these changes make their opinions know, we have, in effect, a debating society.

As always, I would be more than happy to work with whatever group, even the Board, in designing a meaningful study and the analysis of the data collected. And I am more than happy to share with them detailed data I still have, including use of translators, on about 5000+ cases I did at hearings I conducted (See Figure at the left to see the fields on which I collected data. A legible version of this and all the questions in it can be found in the attached §32 Cheat Sheet. Also, there is an entire chapter addressed to how the Board handled §32 settlements in the early days, found Chapter 18 of my book, Behind the Closed Doors, as well as my handbook about the §32 settlement itself: Workers Compensation Section 32 Settlement: A Treasure Or A Trap.

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Whose Moral Compass?

 

July 10, 2014 [4094]: Since the announcement of the indictment of Senator Tom Libous, husband of controversial NYS Workers Comp Board Vice-Chair Fran Libous, people have asked me, by email and phone call, how could he do this?


First let me make it clear, only indictments have been issued. Like a C-2 in the workers comp system, an indictment solely means an allegation that something happened. Senator Libous and his son will both issue the equivalent of a C-7 and the case will ultimately go before the equivalent of an Administrative Law Judge and a jury for a finding of guilt or innocence.

This commentary addresses a more basic issue:

“How could they do this?”

For most of my life, I have argued that questions like the above are MEANINGLESS!!

Many of you who visit this website are Christians, many Catholic. You believe that Jesus is the son of God.  I am Jewish. I do not believe that Jesus is the son of God. Will you ever convince me to change my mind? Will I ever convince you to change your mind?

Of course not. Every human being has certain core beliefs. Not just on Jesus’ parentage but also on such topics as the death penalty, abortion, and when life begins. Are humans born innocent and taught corruption or born corrupt and taught morality and dozens of other issues be they categorized as political, religious, philosophical, or legal? (Hobbes, Hegel, Kant, and Descartes all present substantial arguments on these issues.)

You are probably like the majority of people who assume that everyone has the same moral compass as do you.

Wake up and smell the coffee – you’re wrong!

Put it another way:
    Some people do no wrong because it is a sin and will offend God.
    Some people do not wrong because it is immoral and will offend their family and neighbors.
    Some people do no wrong because they do not want to go to jail.
    And some people do not care if they go to jail or just think they never will.

. . . So much for your sharing your moral compass!


26 members of the NY State Legislature and NYC Council have been indicted in the past few year along with political consultants of both parties and almost all found guilty . . . guilty as defined by law.

Last week, in her indictment and removal from the NYS Assemblywoman Gabriella Rosa pleaded guilty in Manhattan Federal Court in a deal that required her to immediately resign from the Assembly, admitting to, among other crimes, faking a marriage to gain American citizenship. She stated that her resignation was due to her mother’s illness and it was noted in the papers that she will be allowed to retain her American citizenship. Kind of like getting caught stealing four cookies and, for punishment, being required to put back three.

I had a friend while in college (not a student) who over the course of ten years intentionally, on three separate occasions, caused the death of three people (two stabbings, one shooting). Maybe these acts were illegal (he was convicted each time) but in his mind and that of his most of his other friends these acts were neither immoral nor wrong but part of the way they were brought up:

. . . So much for your sharing your moral compass!


Back to our politicians and other political appointees.

I have managed a number of political campaigns, some with candidates with minimal chance of wining. As a candidate, they get hundreds of questions asking their opinion on a wide range of subjects. They get these questions because they are candidates. But many of them, after a while, feel that they are getting these questions because ‘they know the answer’; why else would people ask them these questions.

Some of these people get elected. To them, this proves that they do know the answers, that the people selected them because they are so smart, not because their opponent is a bigger idiot than are they and the election choice was “which idiot would do the least damage if elected.”

Suddenly, they feel that they are above average, special, imbued with a superior intelligence and therefore ‘anointed’  by their fellow citizens to lead them into the future. Their special gifts, affirmed by their coronation election to public office, make them different, i.e., better/superior, than those they represent. And, obviously, subject to a different set of standards.

Hence, they feel they have the right to use their positions for their own advantage. When the head of the Mafia asks you for a favor, he just asks. In your own mind, you think of everything that could happen if you say ‘no’ so you don’t. Even if he said or did nothing, his position and reputation were enough to gain him an advantage.

Asking a lawyer to hire your son, just a few years out of law school ,is something all of us would like to do. 99.9% of us wouldn’t get our calls answered. An elected official, on the other hand, knows his call will be taken, and that, more often than not, no more need be said.

What I am saying is that the question many of you ask “How could he/she do that?” is based on your assumption that everyone has the same moral compass as do you. You can spend all your time arguing with some of these recalcitrants as to the error of their ways, but, as we see far too often in the Middle East where the value of human life is quite different from ours, those recalcitrants will agree to come into your home to ‘see the light’ just so that they can kill more people as they commit suicide to go a martyr’s heaven.

. . . So much for your sharing your moral compass!

For every person who does a genuine act of kindness, there is another whose moral compass will allow them to act in such as way as to make you ask “How could they do that?

I had an employee arrested for stealing from my warehouse in Manhattan: he was found in the Bronx at 3AM selling on the street my electronics, custom-made for me, in boxes with my name on them. The judge threw the case out on the grounds that the search by the police was illegal. Later that day, my general manager said we would never see that guy again. I countered that, “the Government of the United States just told him he was not guilty. I bet he will be back at work tomorrow.” An hour later that person called up to ask if he should come in for the balance of the day or just wait to come in tomorrow.

That person’s moral compass was set, in part, by his misunderstanding of the American judicial system.

I could list a dozen more incidents, from violent crimes and abuses of power to financial improprieties, in which people ask “How could they do that?” and my answer would be the same every time:

From which point on the moral compass are you looking?

Perhaps this piece is a bit too heavy on the pontificating but, on the other hand, let’s stop asking “How could they do that?” and work on “How severe must we make the penalty so that they are afraid to do that?” 

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My WCB “winning/losing” Stats Not Fair?


June 26, 2014 [4093]: Below is an exchange I had with an attorney regarding my listing the Board as a winner or looser at the Appellate Court. The attorney’s point is well-made and I would appreciate any suggestions as to how to better measure the Board’s successful/unsuccessful interpretation of the law.

EMAIL: Appreciate your reporting of appellate decisions; describing them in terms of "the Board" winning or losing the cases is perplexing. In appellate cases, the Board is along for the ride. It is the claimant or carrier who either wins or loses a case. The Board sets their own policy and agenda by the manner with which cases are decided by the Administrative Review Division. Appellate cases cannot accurately be used as a barometer to measure the tenor of the Board since most claimants can ill afford the appellate process.

MY RESPONSE When I was at the Board, at our monthly meetings, cases from the Appellate Court were presented to us, usually the rare (at that time) reversal. It was felt among the more conscientious members of the Board that when there was a reversal, the Board had made the wrong decision.

I sort of adopted that reasoning when I started to list cases on my website. Someone does have the prevailing argument and one side does not but how the winner and loser are picked is somewhat arbitrary.

The fact is that there are two types of cases, a point I tried to make at the Board but to no avail.

BLACK AND WHITE LEGAL: either an appeal is timely or it is not, the §25-a time limit has been exceeded, the AWW is $389.20 and not $423.18, etc. When such case is reversed, it is the Board’s fault in my mind. You can not appreciate the battles I had with the General Counsel, Review Dept, and some Board member over the fact that some of the decisions being lost were because the writers, commissioners, and GC’s office in those cases were just not paying attention; it took me three years to convince everyone that a month is not 30 days, for example, late appeals.

BOARD DISCRETION: Most of these deal with degree of disability, consequential injuries, and whether or not there was ANCR and the Board’s discretion is usually upheld by the Court. But, in the last few years, the Board has either misread or not read the underlying files and been reversed. Or they did not even address the issue on appeal.

Back in the good old days when I was on the Board, we lost only 7%-9% of the cases and many of these were new issues and the Board, when reversed, had not looked at all the underlying argument properly. Now the Board is just sloppy. Last week’s Ercole v NYS Police is quite unusual for the current Board: it actually explained in its decision why it took a position that seemed contrary to prior board decisions. Now this is a well written case and had the Court disagreed, it would still have been a well-written decision

When I pick the BEST ATTORNEY OF THE YEAR, I note that the AG’s office, SIF, and Special Funds are not included because these attorneys are on so many cases and, for the AG’s office, many are a ‘slam dunk’.

But if the Board were consistent and, unlike Ercole v NYS Police, took the time to explain what would otherwise appear to be inconsistent decisions, and actually read the files and underlying documents, then reversals and rescinds would be far fewer.

So, while there may be other parties who are arguing the case, the bottom line is that it is a Board decision that is being litigated and, when that Board decision is not accepted by the Court, it is, bottom line, the Board’s responsibility. No attorney (well maybe except the late Johnnie Cochran) can make a silk 'case' out of a pig’s ear.

As to your statement “Appellate cases cannot accurately be used as a barometer to measure the tenor of the Board since most claimants can ill afford the appellate process.”, I agree.

But as an archaeologist studying a lost civilization, one can only work with what one finds, as little as it may be, hoping that an extrapolation of a graph with 10 points is as accurate an interpretation as one with a thousand. Right all the time? Nope, but beats nothing.

All I see now is a 75% pass rate at the 3rd and over a year to issue a Memorandum of Decision as compared to 90%+ and three months. Same lawyers, same Court so it must be the different Board ‘management’.

If you have a better suggestion, I am all ears.

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Stats, Lies, & The Truth


May 8, 2014 [4092]. This week, Mayor de Blasio announced, that as the result of his new initiatives, the number of traffic related pedestrian deaths is down. But there was no mention of the fact that January, February, and March were not only among the coldest in years but also by far the snowiest. More snow means less pedestrian and car traffic, hence less pedestrian deaths.

As I have written on more than one occasion, a hospital can brag about how the mortality rate in their hospital has dropped to almost zero: they have a special squad that takes patients who are about to die and moves them into the parking lot next door to die.

The same holds true for the New York State Workers Compensations Board.

It is interesting to note that the number of cases going to the Appellate Court (in terms of having decisions issued) has dropped dramatically in the last two years: 112 in 2012 versus 82 in 2013. And for the first four moths of each year: 44 in 2012, 36 in 2013, and 25 so far this year.

If I were Board Chairman, I would proudly announce that this proves that the attorneys representing both sides have recognized that the Board’s ruing are correct and do not warrant an appeal.

But that is basically false

The Board’s affirmance rate is still well below 75%.

I can offer one explanation for the drop in appeals: claimants can not wait two or three years for a decision by the Appellate Court and are willing to settle just to get out of a system that is holding their future, and their lives, hostage.

The backlog in the Administrative Review Division now averages about 8-9 months and cases lingering for over a year are not uncommon. And it is only then that a case can be appealed to the Appellate Court. The Board has very high numbers for closing cases; they just do not publish numbers stating how many of those cases are reopened shortly thereafter, I mean attempt to get reopened shortly thereafter: the process to reopen a case takes months, adding further to the delays being encountered by claimants.

There are more and more cases in which the main controversy involves medical variances. But since these do not effect compensation directly, fees are minimal for the attorneys. And, for those cases in which the claimant is not getting compensation, a ‘medical only’ case pays no fees at all. Claimant practitioners can not afford to stay in business and provide injured workers with the assistance they need in dealing with this humongous monstrosity into which the Board has metamorphosized in the last few years, a kind of Mothra when the Patterson administration and Cuomo, by his inaction, appeared to have promised a pretty butterfly.

More than half the calls and emails I get from claimants deal with the questions, “How long should I expect to wait for an answer to my appeal?” or “My appeal is almost a year old. What can I do to get a decision?

I have also gotten calls asking about §32's but ultimately I am told that the decision to take the settlement is just to get out of the system because they can not wait forever for a decision.

So perhaps Deloitte Touche will make sure that Mothra goes back into molting but this time comes out as a pretty butterfly.

But, in reality, as I wrote in my June 9, 2011 commentary “ 'O pesce fete d' 'a capa!” And until the Governor addresses that problem, Deloiite Touche will be doing no more than putting another coat of lipstick on the pig.

Until the Adminstraive Review Board is overhauled, the Commissioners are put to work, and the Board stops counting sheets of paper as its sign of success, we may well see even less appeals in the future: justice served by a white flag of surrender.
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Who is running the Board?


May 1, 2014 [4091]: The WCB staff is in really thin right now with the departures of Fenster (Friday), Munnelly and Humowiecki (last summer).

What will happen now to the “Re-Engineering” project with Deloitte?  Who’s in charge? Who’s going to set the tone for reshaping the system - labor or Unshackle NY.
        
There are some important points to consider.

Most of you who read these commentaries are involved with the Board in some capacity and therefore the WCB is the main focus of both your career and your income.

But the problems that exist at the WCB are not that much different than exist at many other state, city, and federal agencies as well. You know a lot of details about the WCB’s many faults because you deal with them on a day-to-day basis whereas the faults of other agencies your hear of only anecdotally. I have friends who were appointed to top positions at many other agencies and the stories from some agencies are similar to yours.

Equally important, in my continuing study of archaeology, we study the evolution of hominids into homo sapiens, from hunting bands into tribes, then chiefdoms, and then into formal states. But as history shows, some states revert back into chiefdoms and even back to tribes. So goes the WC Board: no longer a unified state agency working towards a common goal, but independently operating departments operating for the benefit of their respective managers, working together only when it benefits their departments rather than the Board’s constituents.

The WCB is not different. The lack of leadership is a key factor in the WCB’s decline over the last few years. And what do I mean by leadership. Consider Lyndon Johnson and Ronald Regan. When they walked into a Cabinet meeting and everyone stood up and said “Good Morning, Mr. President”, they were addressing the leader of the free world. When Jimmy Carter or Gerald Ford walked into a cabinet meeting and everyone stood up and said “Good Morning, Mr. President,” it was because the guy entering the room had the title.

The current leadership that is left at the Board has not one person with the ‘gravitas’ necessary to lead the Board. Some of those recently given additional responsibilities are very qualified in their own right but have not shown the ‘gravitas’ necessary to reorient the Board.

So what does this mean?

One point raised asked is “Wondering how/what the commissioners are contributing to this rather chaotic situation.” The answer is very little. Some are at best useless. Some are good at what they do. The commissioner are in a sense like a college rowing crew. Even if one of the rowers is exceptional, that can do little to ‘right the boat’ if the coxswain is no good. Normally the only commissioner with the ability to have an impact on the Board is the Vice Chairman. Unfortunately the current Vice Chair is the polar opposite of former Vice Chair Sweet in terms of all those characteristics I would rate as being necessary to have a positive impact on the Board.

The WCB staff is in really thin right now with the departures of Fenster (Friday), Munnelly and Humowiecki (last summer). My dealings with Ken Munnelly were in his position as General Counsel and I found him to be excellent at that job, even if we had different views on a number of topics. But he no longer has any authority to help manage the Board.

Examine the efficiency at the Board ,measured in terms of the time it takes to resolve cases, really resolve them and not to just stamp them “Closed” and move them to the “reopen next month” pile: the Board has been thin since Zach Weiss left.

Who’s in charge? Of what? Until there is real  leadership which can establish a meaningful goal for the WCB, those who are in charge of their little fiefdoms will not care if the overall ‘state’ collapses.

Who’s going to set the tone for reshaping the system - labor or Unshackle NY. There have been rumors for years that there are attempts to shut down the WCB and turn over its functions either to Labor or Insurance. But the grass is always greener on the other side. Putting a new driver in a broken down vehicle may make those who picked the new driver feel like they have done something. But the passengers will continue with the same lousy service with which they have suffered for years.

The real question is, “What does it take to get Governor Cuomo’s attention?

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Best Attorneys for 2013: Questions!


March 27, 2013 [4090]: My annual listing of the Best Attorneys also elicits several responses, one of which follows, albeit slightly edited to insure the writer’s anonymity:

The E-Mail


Re "
Best Attorneys for 2013,” I don't think it's right to simply use appellate court results to rate WC counsel -- that is, unless you're going to limit your listing to best "appellate" attorneys.  My own experience, over several decades since Bar admission and law practice in another specialty area and half of which was spent as a compensation referee, tells me that the best non-appellate lawyers are those who are able to accomplish what their clients seek without having to litigate.  That being the case, I would come up with a somewhat different listing of the best workers' compensation attorneys in my County bailiwick -- although one of your honorable mentions gets on my list as well.  How about best judges/referees?   Based upon what?

My Response:


As I noted in the listing of Top Attorney’s, this list, in reality, is good for nothing more that arguing over who pays for coffee or beer. My experience has been that very often law suits are brought by parties who have been told that they have no chance of winning. I had dealings with one union president who would fight tooth and nail for their members, even though, as this official told me, when they are done with the fight they will get rid of that @)!*## who creates more problems for the union than he does for the employer but, because he is a member, they will fight, not for him, but for all the others. So the fact that some lawyers are asked to take on cases they know they have no chance of winning essentially means that the winning attorney had a ‘bye’.

Actually what is interesting is the names that repeat, on both the winning and losing sides. There are obviously attorneys who specialize in appeals and are called upon frequently to represent one side or the other.

I also do not agree with the statement that a good attorney can avoid such litigation. I can be the best attorney in the world but if my opposing counsel is an idiot (actually represents a client who is an idiot) who insists on fighting unless I surrender, how can I avoid litigation? I have worked on a board (not the WCB) with an attorney (long since fired) who has never been in a law suit: push him far enough and he will concede but his record of never going to court is intact.

As to the matter of rating judges, there is really no objective way to do that. Would it be based on their record at the appeals level before a panel of three commissioners?  And then before a Full Board Review? And then at the Appellate level? Yes, I can write software to do this but I, for one, am not going to input the data! Can we ask the practitioners? Or could this be subject to ballot stuffing – look at baseball’s All Star voting.

And, with the Board’s management demanding more and more cases be closed and more penalties issued against attorneys, can one really measure output on the basis of quality when it is obvious that the Board is interested only in quantity, not quality?

What is far more important is how well the Board’s own legal staff does at the Appellate Court where it continues to get a barely passing grade in the low 70’s. (Analysis next week.)

This is what causes litigation:

When the Board takes both sides of the same issue, either on philosophical grounds or failure to read the documents in the file or makes a decision without noting/caring that it is disregarding its own rules and regulations, how can an attorney deny their client the right to litigate when everyone knows that far too often decisions are issued on the basis of not what is ‘right’ legally but what they ‘write’ to clear cases out of their work queue?


For the last few years, the Board’s decisions on §25-a and §15(8) clearly prove the point that the Board is unable/unwilling to figure out how to interpret the law so that it does not get reversed on this issue so often. The Board may try and play hardball with everyone but, as exemplified by these two issues, they tend to pitch underhanded. Too many other issues are treated the same way.

Litigation is generated when the resolution is uncertain.

The Board’s record of one defeat for two every affirmance at the Appellate Court not only invites but demands litigation to insure that the parties get true justice.

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The Appellate Div. Proves
Why Claimants Need Attorneys


March 13, 2014 [4089]: Two of the cases decided this week at the New York State Appellate Court, Third Department prove the need for competent legal representation for injured workers seeking compensation and medical treatment in New York State’s workers compensation system.

Both the comments from the Workers Compensation Policy Institute (which follows this commentary) and my own commentary the prior week explain why injured workers and their families need attorneys familiar with not only workers comp law but with the NYS WCB’s decision making process.
            
In the Matter of Visic v O’Nero & Sons for the second time in two years, this pro-se claimant has somehow managed to present arguments sufficient for the Court to reject the positions of the NYS WCB and return a decision favorable to the claimant. I do not know Mr Visic or if he had any ‘unofficial’ help in filing his appeals but could it be possible that he is the only pro se claimant to present motions, let alone appeals to the Court that can legally prevail over those presented by the Board’s and carriers’s experienced legal representatives? How many other injured works have had good cases but could not get the representation they need, nor understand the nuances of the appeals process, to prevail?
1

Equally important is the Matter of Danin v Stop & Shop. Robert Grey, Esq., has apparently been able to refine the issues that are pertinent to the matter of defining want constitutes voluntary withdrawal for the labor market. This has been a contentious issue over the years with advocates on both sides, inside and outside the Board, pushing, with all their might, the pendulum towards their side of the equation. In this decision, the Court has agreed with the Board that the carrier, if they wish to allege voluntary withdrawal, must take some steps to resolve that issue but offer more than a “go look for a job” letter. Apparently Mr Grey was able to draft an appeal sufficient for the Board to acknowledge a departure from its prior position by explaining why, at this point in a claim, the burden shifts from the injured work back to the employer carrier.

Does anyone who reads my website, and others like it, feel that an injured worker, even Mr Visic, would have been able to show an understanding of this complex issue sufficient to get the Board and the Court to take a look at this issue from a new perspective?

Unfortunately, all the good lawyering in the world, all the pro-bono work that could/should/would be done will serve no purpose if the appeals from claimants continue to languish for more than a year in the labyrinth of documentary requirements and red tape that the Board has become in the last few years.

It should not take dozens of meetings with the various constituents of the Board for Deloitte Touche to understand that, until the staff at the Board and its ineffective leadership decide that the prompt and efficient processing of old forms and procedures is just as effective as reinventing the wheel, even if less worthy of self-congratulatory press releases, nothing will change.
 
FN 1: And that is aside from all the phone calls and  e-mails I get asking me for help, enough to keep me busy almost full time, if I were an attorney and desirous of having a small WC practice.

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NYS’ WC “Conspiracy Theory”


March 2, 2014 [4088]: In response to my COMMENTARY of February 20, 2014 relating to an article in which California attorneys were blamed for that state’s high WC costs, writer and researcher Peter Rousmaniere writes about what he calls the "conspiracy theory” which explains why the cost in New York State’s WC system are so high.

I also looked over some of the comments received by the NYS Workers Comp Board regarding problems to be focused on in its new initiative to improve the system.

Rousmaniere’s comments are quite on point:

 

I am responding to the column, “CA Attorneys Blamed for high WC Costs.” I am a journalist in the field of work injuries. I write primarily for the business media. I wrote an award winning series on the health problems of WTC recovery workers. For seven years, I have often written about workers comp claims practices – rarely about individual claims, mostly about trends in claims practices.

The author of the column states: “When a dispute arises, who are the parties?

One is an injured worker who needs time off from work to recover from a work-place injury that requires proper medical treatment. On the other side is an insurance adjuster whose sole function is to keep costs down…..On the other side is someone who is good at keeping costs down - if they were not, they would not still have that job.”

Has any one else noticed this?  Not those who have examined claims operations.

(1) The best recent study of insurer claims behavior, NYCOSH’s New York State Injured Workers Speak Out, misses this conspiratorial design entirely! It focuses on inefficiencies and errors by insurers (especially noted is the State Insurance Fund).

(2) Another probing national study of claims practices, Rising Medical’s 2013 Workers’ Compensation Benchmarking Study, does a virtual proctologic exam of claims practices and completely misses the conspiracy.

If this conspiratorial perspective is shared by many in New York State, it helps to explain why New York is the grand-slam most complicated workers comp system in the country:

(1)  It is the only state in the nation where even a minor injury, such as a foreign body in the eye, must go to a judicial administrative decision to be put to bed.

(2) It is the only state in the nation to have a state-funded occupational health clinic chain. Virtually all other states, many with much less contentious systems, rely on private non-profit and for-profit clinics to handle work injuries

(3) Its permanent impairment rating system, which a insurance executive calls “incredibly complicated” is totally unique and thus all the experience of the other 49 states in managing this crucial function goes to waste.

(4)  Its system of assessments on claims payers and insurers is so byzantine that it is impossible to figure out how the proclaimed 25% savings due to 2013 reforms are in fact savings rather than a smoke and mirrors.

I am not sure if the conspiracy theory gave birth to the complexity, or the complexity caused the conspiracy theory. The injured worker and her employer are not helped by either.


Peter Rousmaniere
29 Church Hill Rd.
Woodstock VT 05091
802-457-9149 voice
802-291-3843 cell
800-381-3129 fax
pfr@rousmaniere.com


professional website:
www.peterrousmaniere.com

weblog:
www.workingimmigrants.com

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Marijuana at Work: Legal now?

March 1, 2014 [4087]: What happens if an employee who lives in New Jersey and who works in New York State is injured while at work and it is determined that he has been undergoing legally and medically approved treatment in New Jersey, by smoking marijuana on a regular basis?

Is the claim automatically disallowed, since the use of marijuana is not legal in New York State. Nor for that matter is its possession.

In Florida this past week, perhaps in anticipation of such problems in that state, State Senator Alan Hays filed bill (SB 1214) that could tighten requirements for injured employees in workers-compensation insurance cases. Specifically,

Under part of a law dealing with employers who take part in the drug-free workplace program, the bill says workers would be required to submit to drug testing after receiving initial treatment for injuries and, if they refused, "it shall be presumed, in the absence of clear and convincing evidence to the contrary, that the injury was occasioned primarily by the influence of drugs."

This raises a number of interesting questions.

  • Must the employee tell the employer that they may be under the influence?
  • If the employer discovers this usage (from the worker or a third party), can he fire the worker or take whatever other disciplinary measures are allowed for the employee being under the influence (alcohol or illegal drugs) while at work?
  • What happens if the employee is found to have his prescription medication on him? Possession is marijuana is illegal in NY and most work places have rules against it.
  • Does the worker qualify for workers comp or unemployment insurance because they cannot work or were fired for having in their systems drugs which are illegal in New York but not in the state where that person lives and was legally prescribed said drug?

And this is aside from what happens in New Jersey where the drug may be legal?

What happens if an employee takes a prescription drug that may impair their ability to do their job? Considering the issues raised in the recent Kennedy/ambien case, this is an issue which should be addressed sooner rather than later.

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CA Attorneys Blamed for High WC Costs

February 18, 2014 [4086]: I was originally going to post this to the NEWSWIRE page but realized that this is more than just a news item - it is a poorly written analysis based on a misunderstanding of workers compensation and the world of injured workers.

More than 11.6% of all California workers compensation claims and 80% of claims for permanent disability benefits involve attorneys, resulting in significantly higher costs compared with claims in which attorneys are not involved, according the California Workers' Compensation Institute. The study found that California temporary disability claims that involved an attorney resulted in an average of $30,319 in benefits and expenses, compared with $5,598 for such claims without attorneys. About 6.6% of temporary disability claims in the state include litigation, CWCI said.

To be blunt, the fact that injured workers who do not use attorneys costs the system less than those who do is the same as saying that sick people who self-medicate costs less money than those who go to doctors and get prescription medications.

Yes, there are some claims that would be better resolved without an attorney but there are many people who do not have (nor can get) an attorney who, as a result, do not get all that they should.

When a dispute arises, who are the parties?

One is an injured worker who needs time off from work to recover from a work-place injury that requires proper medical treatment. On the other side is an insurance adjuster whose sole function is to keep costs down. The difference is that for the injured worker this is a first time: they are faced with a myriad of forms and a new language whose words often do not mean in ordinary English what they mean in the compensation system, i.e. ‘Closed’. On the other side is someone who is good at keeping costs down - if they were not, they would not still have that job.

From where is it that the injured worker, particularly from a small firm that does not have a real HR department, going to get help?

From an attorney/licensed rep!!

When one considers that most of the commissioners do not know how to calculate the AWW (ask a newly injured worker what that means) of someone who works part-time or a school bus driver or a commission-based salesman or a teacher injured as a summer camp counselor, how do we expect an injured blue-collar worker to know how to do this? And what about an injured worker who does not speak or read English?

This study, based on what I have read of it, compares apples and oranges. Did they compare a ‘no-attorney’ broken finger claim with an ‘attorney-assisted’ carpal tunnel claim, only to discover, wonder of wonders, that the former cost less than the latter.

While the introduction of attorneys into the WC system may result in higher costs, this study did not compare that value of the addition expenses and whether or not those who did not have attorneys got short-changed.

Who is going to sit down with a claimant and explain the difference between an SLU and a PPD? How to deal with sick leave credits? What do to when the carrier refuses to pay for medical treatment?

I may have had my battles with claimant attorneys over the years, but I had as many with carrier attorneys and just as many with attorneys employed at the Board, some of whose incompetence made the resolution of cases even longer, be it a writer whose ignorance on a subject was astonishing or an executive with a law degree who felt, by virtue of that law degree, they knew everything about everything and could redesign the entire WC system in a week.

Bottom line: lawyers are a necessary evil, spawned by the very system that decries their necessary existence.

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Ironman Athlete Collecting Worker's Compensation

February 13, 2014 [4085]:The following commentary is posted with the permission of the author Ashley Reaves and the website on which it was originally posted on Februrary 6, FreedomWorks.org

A recent report out of Mesa, Arizona demonstrates the inevitable negative consequences of supposed problem-solving government programs. Audrey Glemba, a 49-year-old triathlon runner, became a medically-retired police officer collecting worker's compensation for an injury she claimed prevented her from working. Taxpayers in her city are now paying her $508 a month, in addition to medical retirement benefits.

In the years between Glemba's back and knee injury in 1995 and her retirement in 2008, she ran 29 races, including 10 triathlons. At the time she was applying for medial retirement, she and her squad were under investigation for hanging up photographs of themselves, the homeless, and the disabled, alongside demeaning comments. While she was appealing her termination, the local pension board approved her retirement. In the meantime, she participated in an Ironman race just months prior to the approval, and has since completed another one.

Glemba is part of a worrying national trend that has seen the number of people receiving disability benefits rise from 1.5 million in 1970 to 8.8 million in 2012, plus an additional 2.1 million dependent spouses and children. The program's fund is projected to be depleted by 2016 as payments continue to outweigh revenues.

While a difficult job market and an aging population are likely contributing to the increase in program participants, the nature of the rise and reported disabilities suggest that far more concerning factors are also at play.

The government is encouraging people to sign up by creating ways to game the system, and an increasing number of Americans are taking advantage. Relaxation of medical eligibility criteria under the Reagan administration made it easier to qualify for benefits. Unlike the medical impairments more commonly reported in the past, such as strokes and heart attacks, the majority of issues today are difficult to verify, inviting fraud. According to a recent NPR report, just 17.9% of recipients in 1961 were claiming mental illness, back pain, and other musculoskeletal problems as their disabilities. Today, this group makes up over 50%.

In addition, the economic value of disability payments has increased, and recipients qualify for Medicare after two years, regardless of their age. Furthermore, there is a concern that states encourage people to apply in order to transfer the economic burden of the unemployed to the federal government.

Still, government programs do not deserve all the blame. In recent years, our culture has strongly emphasized a distorted view of justice and equality that runs counter to the principle of individual freedom. Rather than admiring responsibility, hard work, and charity, people are resentful and have an inflated sense of entitlement. You cannot watch television today without being bombarded by ads with lawyers promising to fight for you and win the benefits that you deserve.

With government bureaucracy encouraging fraud, and society constantly reminding us that life is unfair, it is no wonder that programs designed to be a last resort are now looked upon not only as another option, but a more just one. These factors contribute to the distrubing trend exemplified by Audrey Glemba, resulting in an increasingly significant proportion of the population reliant on the government and taxpayers. As long as the public continues to allow more and more people to choose disability over work, the numbers will only get worse as the program expands and further spreads dependency and waste.

Ashley Reaves
FreedomWorks
400 North Capitol Street, NW #765
Washington, DC 20001
Toll Free: 1.888.564.6273   Local: 202.783.3870

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2013 Commentaries in the process of being re-posted