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

COMMENTARIES: 2011

For subsequent periods, go to the   Commentary & Reports   link on the left for the calendar year in which you are interested. Early 2011 COMMENTARIES will be posted shortly as will those for prior years.


Reader Comments on my Zamora Analysis
Voluntary Withdrawal


December 8, 2011: My commentary on voluntary withdrawal from the labor market relative to the Zamora v New York Neurologic resulted in far more comments that any other posting I have done. But I was surprised that those who represented the claimant side were not as lengthy in their comments as those who favored the concept of VWLM. For those of you who would like to make a few points from the claimants' perspective (as you do when we meet), I offer you space here.

While I am not much for ‘talking heads’ on the TV public opinion shows, I feel strongly that we really need some discussions around the state to, dispassionately as possible, consider how to solve the problems noted below. And as the economy, not only in New York but all over the U.S., continues on its current trend, it becomes increasingly difficult to draw clear lines what the injured worker must do to be considered having been involuntarily removed from the labor market and what are the responsibilities of the employer and the government to find employment opportunities.

The following are some of those comments, edited for brevity and anonymity.

Wonderful, Thanks!

A neighboring state faces the same problems of finding a fair ‘line in the sand’.

In Pennsylvania, this issue was before the Supreme Court in October in the case of Robinson v. City of Pittsburgh. Essentially, the rule had been that the burden shifted to the claimant after accepting retirement benefits to show either (1) total disability from any level of work; or (2) a good faith job search after retirement. However, in Robinson the Commonwealth Court imposed a nebulous "totality of the circumstances" test putting the onus on the employer to establish that it was the intent of the claimant to remove themselves from the workforce.

And again from New York:

All your "What if..." scenario's are based on only one presumption about the injured worker - that they have a desire and motivation to return to work. You are missing a very large segment of the injured worker population...The one's with no desire or motivation to work any longer.

The VR defense has been pursued heavily by carriers because they are seeing (through surveillance, activity checks, database and social media searches, etc.) a relatively alarming number of worker's who for whatever reason simply don't want to work any more. These reasons run the spectrum from a late 50's year old who has been chronically under-employed or employed in low paying, physically demanding, unskilled and unfulfilling work to a 20-something college graduate who can't find work or who is starting a family and has a need for one parent to stay at home - It's less costly to stay at home on tax-free partial WC benefits (Plus extended unemployment that when added to the WC pays more than former wages) than it is to work and pay for child care.

The reasons are economic and if the economy in the state doesn't improve to offer decent well paying jobs, this will only get worse as disaffected workers realize they can "go on" comp rather than continue a long-term struggle with demeaning, under-paying, and unfulfilling work.

But the issue is best summarized by one reader as follows:

Judge’s decision vary greatly from district to district and judge to judge. As you can imagine, we live and die by the rulings that come down from the courts. The contradictions make our job very difficult and the appellate process takes so long that I don’t think either party is served waiting for the final decision.

I would like add a couple of points of observations that I have made from working the system from my point of view:

  1. Retraining: what is the responsibility of a person without a high school diploma or limited English to get the education they need to improve their chances to get a job. Same with computer skills – many high schools and libraries offer free courses. I have a 1995 case of a guy who says he can’t read or write – so in 15 years he couldn’t work on this?
  2. Is it the employer’s responsibility to continue benefits for the overweight or morbidly obese person who can’t get a surgery or has other health problems that add to their physical restrictions? (I would say 90% of my cases are overweight people.)
  3. Transportation: they were able to get to work before, but now they can’t afford to pay for a car or get it fixed. Is that responsibility of the employer?
  4. Relocation: an injured worker worked in the Bronx and now moves to Nowheresville where there is little to no commerce. Wages are affected as well even if they can find a job.

And then there was the case about which the I wrote last week, the worker who due to a work injury became severely mentally disabled (and classified without controversy as totally permanently disabled), who after his minimum wage job in a non-for-profit mail room was terminated, was reclassified as partially disabled. And then he was expected to seek employment in order to keep his compensation!

Yes, there are extremes for every issue. But, like the Bell curve, within the standard deviation are 68% of the cases. We should be able to develop some sort of method/indicia/rules to resolve the 16% on each end and work to slowly close the gap on the other 68% rather than fighting to the death on every case.

I look forward to your additional comments. [1N155-4059]

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The Court of Appeals’ Zamora Decision


December 1, 2011: In the next few weeks, the New York State Court of Appeals will issue a decision in one of the most hotly argued issues that has come before the Court in years:

Voluntary Withdrawal from the Labor Market

Although Appellate Court decisions on this issue, such as Okonsk, v Pollio Dairy Products Corporation et Al., 184 A.D.2d 871; 585 N.Y.S.2d 121; 1992 N.Y. App. Div. LEXIS 8001, predate my arrival at the Worker’s Compensation Board, as someone who has been given credit/blame for the proliferation of cases on this issue, I feel it is appropriate at this time for me to discuss this issue prior to what may be a precedent setting decision about to be issued by the Court of Appeals in the Matter of Zamora v New York Neurologic.

 

Philosophy

The purpose of workers compensation insurance is not to provide medical insurance or to supplement lost income to injured workers. It is to provide medical treatment and supplement lost income to workers whose need for medical treatment and supplementary income is a direct result of a work-related injury. This last point has been affirmed innumerable times by cases in which certain legitimate injuries of injured workers, wages lost due to them, and relevant medical expenses are denied coverage under workers compensation because those additional sites of injury are not accepted as either causally related or consequential.

This concept, lost on a number of my former colleagues as well as some practitioners on both sides of issue, raises two central questions:

  • Is there some point at which the loss of income and/or medical treatment is no longer the responsibility of the workers compensation insurance carrier?
  • And, if there is such a point, how is it determined and who determines it?

[I]t is well established that a partially disabled claimant has an obligation to look for employment within her physical limitations, and that benefits may be discontinued if the claimant is unable to establish that the limitations on her employment due to the disability were a cause of her subsequent loss of wage-earning capacity or inability to obtain employment . .

The above statement of purpose, often quoted in decisions from the Board and the Appellate Court, confirm that there is a responsibility by the claimant to return to the workplace. And there are other cases, i.e., Matter of Wilkins V. New York Power Auth., 3rd A.D. 2011-03-31, in which claimants can be denied compensation if they refuse medical treatment.

Policy

But the underlying problem is that the attorneys and very often members of the Board see this as a black-and-white issue. Yet there are several shades of gray. For during the history of the case and due to the changing economic climate which we have been experiencing the last few years, the responsibility of the injured worker and the employer for enabling a return to work is a pendulum that is swinging both ways, and erratically so. Thus, one must pose the following questions:

  • What happens if the job, employer, or industry in which the injured worker was employed at the time of the injury no longer exists when the injured worker is prepared, with or without a temporary or permanent disability, to return to the workplace?
  • What is the responsibility of the claimant to train for other types of employment that would be within their new restricted abilities? The Matter of Zamora involves the claimant who appears to no longer be able to do the job for which she was trained.
  • What is the responsibility of the claimant if they can only find a part-time job? The Matter of Leslie v Eastman Kodak (3rd A.D. 2011-11-17) deals with an injured worker who sought employment in a wide variety of positions in a wide variety of industries but could not find full-time work.
  • Is it the claimant’s fault and therefore sufficient reason for denial of benefits if his employer, the only one in economically deprived upstate New York, closes or reduces its staff by 80% and there is no other employment in the area? Should this claimant be treated the same as others who would now be going on unemployment or does the work injury and temporary removal from the labor market warrant special consideration?
  • Does the large employer who more often than not has many people doing the same work have a greater responsibility to seek a position for the injured worker then does a small company with only four or five employees?
  • What happens when an employer comes to town and seeks to hire 200 people but the worker cannot apply because he is not ready to return to work yet but, when he is ready, all those positions have been filled?
  • Does the employee’s union have a greater responsibility to an injured worker than other members when both are seeking reentry into the labor market?

I remember discussions on the issue of notice under §28 in which one of the Carey/Cuomo appointed commissioners would tell me that it is the purpose of the Worker’s Compensation Board to find a way around the time limits under §28 to make sure the claimants would be covered because we have a responsibility to help injured workers. Then again, I heard the very same philosophy in later years from some of the Pataki-appointed commissioners, that the workers compensation system was a safety net for injured workers in the State of New York.

But that is not correct. The mere fact that cases can be settled forever under a §32 waiver agreement implies that at some point during the course of the claim, the injured worker becomes removed from the safety net of the workers compensation system.

This next raises the additional question of what happens to those claimants who have a need for medical treatment for which there were insufficient medical set-asides in the agreement and/or were not covered by Medicare or Medicaid. And then there is the question of what happens to those claimants who are unable to find work and have used up the compensation portion of their settlement. Workers compensation is not available to them.

Although there have been 24 decisions on the issue of voluntary withdrawal from the labor market issued by the Appellate Court since the fall of 2009 and hundreds of decisions issued by the Commissioners at the Board, there really are no clear-cut guidelines as to what constitutes voluntary withdrawal from the labor market.

A great deal of the fault for this lies with the Commissioners too many of whom failed to read the cases, relying on the writers of whom there are somewhere between 50 and 70, to make that decision for them. As a result, there are dozens of contradictory decisions such that, if so inclined and having the time, one can find case law to support both sides of the issue in any case in which voluntary withdrawal from the labor market is being controverted; I am not talking about cases supporting the concept being argued, I am referring to prior cases in which the claimants have the same medical problems and same employment and yet the decisions are different. But I’m not going to further belabor the failure of the Commissioners and the Board to resolve that problem because history shows the current Board considers such issues unworthy of their attention.

Practice

If I were in charge of the Board, I would make it my business to visit all of the district offices and set aside time to meet with attorneys on both sides as well as having people from the Department of Labor, unions, and the business community discuss this issue and get a better sense of the many questions that must be answered. The purpose of these meetings would not be to solve the problem as I am afraid that lines would be drawn in the sand before the first words were spoken. It would be for the sole purpose of having an open-ended discussion without seeking a solution in the hope that in the course of these discussions some specific fact patterns or ideas may arise that would help get the injured worker back into the workplace thereby enhancing their own economic independence and minimizing the cost to not only to the employers in the State of New York but also to the taxpayers.

 

Prediction

As to the decision to be issued by the Court of Appeals in the matter of the Matter of Zamora v New York Neurologic, I would not all be surprised if it were either a very narrow decision or a general decision with at least one dissent and possibly one concurring opinion.

As a result, I do not see this issue being resolved. Yet the issue of helping the injured worker return to the work place and earn a living and maintain their self-respect is at the heart of the workers compensation system, a concept too often lost in the battles that take place in the hearing parts and appears to be outside the intellectual interest of the current Board.

Comments and criticisms are welcome from all parties as well as anyone interested in making a prediction as to how the Court will rule.[1D154-4058]

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Raynor & ATF
More Questions than Answers?


With the matter of mandatory deposits into the ATF finally resolved by the Court of Appeals on November 15, 2011, perhaps this matter will come to a conclusion.

But it will not . . . .

On November 15, 2011, in the Matter of Raynor v Landmark Chrysler, the Court of Appeals ruled that the Board’s interpretation of the 2007 Amendments in §§27(2) and 15(3)(w) which mandates that private carriers make deposits into the Agrregate Trust Fund is correct. (The matters of Collins v Dukes Plumbing, Hardy v Trico, Parkhurst v United Rentals;, and Salgy v Halsted Communications were covered by the Raynor decision.)>

This will lead to two major issues: unpaid balances in the ATF and alleged unfair settlement options foisted off on the private carriers as compared to the State Insurance Fund and self-insureds.

UNPAID BALANCES

As I wrote in my Editor’s Note at the bottom of my summary of the case on the DECISIONS page, I see a potential legal issue arising when the ATF settles a claim with a §32 settlement for a sum less than what has been deposited. To whom does the balance of the money belong? The fund or the carrier? In its decision on Line #177, the Court of Appeals wrote:

The Takings Clause prohibits the government from taking private property for public use without providing just compensation. The amended statute, as applied, does not violate this clause. The statute neither increases the amount of compensation owed to claimant, nor does it appropriate the carrier's assets for the use of the State (see Connolly v Pension Benefit Guar. Corp., 475 US 211, 225 [1986]; cf. Alliance of Am. Insurers v Chu, 77 NY2d 573, 577-578 [1991] [statute held unconstitutional because insurers had a property interest in the fund whose earnings were diverted to the State's general fund]). Here, there is no such diversion, the mandatory deposit only reflects the present value of what is owed to an injured worker.

I read this to state that these funds are held in trust by the ATF for the beneficiary, the injured worker. When events transpire that end that relationship and the terms of the trust, i.e., the trustee’s responsibilities have been completed but the fund not depleted, it seems that the remaining balance of the fund is to be returned to the depositor and not the trustee.

For what other purpose would the ATF hold these funds? But with the State’s overreaching on ‘surplus’ insurance funds, such as those held by the State Insurance Fund, will the State simply move the unused funds into the general budget? This is a question I have been asking practitioners for months and not one of them, probably 40 in total, can answer that question other than to assume that the State will, one way or the other, keep the funds.

 

UNFAIR SETTLEMENT OPTIONS

Historically §32 settlements have been for payment of compensation equal to 4 to 7 years. But the mandatory deposits to the ATF are based on actuarial tables and can be for up to 20 years or more worth of payments. The mandatory payments, however, are limited to private carriers. Therefore the cost to a private carrier can be 4 to 5 times that of the cost to the State Insurance Fund or self-insured, thus putting the private carrier at a substantial financial disadvantage not just in terms of reserves but in the terms of the need to have higher rates to cover the additional financial exposure.

An interesting question which will undoubtedly occur within the next few months is a §32 settlement which has been apportioned, hypothetically, 50% either in one case or because it involved several cases, between a private carrier and the State Insurance Fund (SIF). What will happen when SIF offers five years ($30,000) and the carrier 10 years ($60,000)? Will it be written into the agreement that SIF is to pay $30,000 and the private carrier $60,000?

If I were a claimant, I would want to know why SIF is only paying $30,000 while the private carrier is paying $60,000. Since the carrier is responsible for 50% and is paying $60,000, why am I being cheated by SIF? This is a question whose answer I shall leave to those with more wisdom than have I.

And what impact this will have on the ability of cases of this nature to be resolved, I do not know although I can anticipate there will be some sort of impact. As to whether or not this could result in another case going to the court I cannot anticipate.


CONCLUSION

While I know that I am preaching to the converted (the workers compensation community) who will consider this problem, it is the deaf (the Board) who should be looking at how these issues will be resolved since it is the Board’s law judges and, ultimately, commissioners will be responsible for making decisions on these issues.[1N151-4057]

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The NYSBA CLE Report

Board Staff Should Attend These

October 27, 2011: I had the opportunity last week to attend the New York Bar Association’s CLE on workers compensation. And although I have attended about eight CLE courses at the Board, given by Board attorneys for Board staff, this was my first ‘independent’ CLE. It was also interesting that about half the attendees were attorneys who did not practice workers compensation law but were there to use the requirement that they get credits to learn a new area of practice.

My impression?

V E R Y    I M P R E S S I V E

My first observation is that Board staff, including commissioners and law judges, should be required to attend the NYSBA’s CLE and not the Board’s internal CLE’s.

First of all I would like to thank Carl Copps from the NYSBA who helped organize this. And a thanks to the following speakers:

  • David Goldsmith: What is NYS Workers Compensation
  • James McCarthy: Workers Compensation Issues
  • Michael Chechanover: Ethical Consideration in a Workers’ Compensation Claim
  • William Jones: Medical Treatment Guidelines
  • Catherine Stanton: Section 32 Settlements
  • Hal Friedman: 3rd Party Actions

As to the presentation itself, it showed that all the practitioners, as noted on more than on occasion by the speakers, have difficulties dealing with the law and rules and regulations as currently interpreted by the Board. Equally frustrating to them was the fact that there does not appear to be any consistency in the way that the Board operates nor does there seem to be some direction in which the Board is heading, both of which need to be corrected so that the practitioners know how to best handle their claims.

Probably the area of workers compensation that attracted the most discussion dealt with not only the new medical guidelines but what appears to be an inability of the Board to develop a system that accurately reflects the degree of physical disability, degree of wage loss suffered by injured workers, and how to handle medical issues not properly addressed, if at all, in the medical guidelines. But there were other issues discussed at length, such as Medicare Off-sets. But these will be covered by me in future commentaries.

The reason that the Board attorneys and commissioners should attend is that they are currently hidden away in their ivy towers, made even more distant from the world by the Board’s trend to eliminating hearings. Added to the fact that the vast majority of commissioners only go to the Board offices for the one every other month oral argument or the once a month Full Board Meeting, they do not even have the opportunity of hearing differing points of view or interpretations on major issues in which they issue decisions every day. Fortunately the law judges do have the opportunity to speak to claimants but they are under time constraints and also, as one law judge put it in the minutes a few years ago, “I can do what is right but I know that I will be reversed so I have no choice in what I am about to do.”

Neither the papers presented to the commissioners for decisions nor the brief argument they hear at oral arguments touch upon the problems discussed by all the attorneys: from the blatant abuse of opiates to the difficulty getting the Board to understand that by setting a minimum of 10 visits to a chiropractor for a bad back, they have also set a maximum: the carrier informs the doctor to stop treating and the doctor, unless he is willing to take the financial risk of treating without authorization, then stops, even though many claimants still need treatment.

In discussing how to deal with certain Board rules and regulations, it was obvious that the participants have various interpretations of the Board’s rules. And any attempt to get a clarification from the Board resulted in the Board’s failure to respond.

The Board needs to meet regularly with practitioners for an exchange of ideas and thoughts in order to insure that the rules and regulations and the interpretation of the law are consistent and make sense. As I have argued for years and the Third Department of the New York State Appellate Court has opined quite frequently this year, the Board must be consistent in its interpretations and in its use of the underlying facts in the case.

I do remember being told, by someone further up the food chain than was I, that commissioners do not make policy. I responded that every time we interpret the law or move the gray line one way or the other, we are making policy. The law is not dry and deals with real people with real problems and it is important that we understand what happens out in the real world. That is why some of us felt that oral arguments and §32 hearings were so important: we got to see the face of the person whose fate in life we were determining. They would talk to us and let us know their concerns. After all, the difference between a 45% CLU and a PPD is not just a legal definition: it could be a life altering decisions. It was obvious from the lecture and Q&A that the attorneys for both sides understood this.

Attendance by board staff at these CLE would be a first step in the Board’s decisions makers understanding this as well.[11104056]

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I Answer Your E-Mails

October 20, 2011

Oops - A Reader is Right

A reader writes:

I take umbridge at your characterization of the death tax as "more importantly" in comparison to the layoff issue. The layoff issue affects whether certain Board employees keep their jobs at all, while the "death tax" issue is only about valuation of benefits. Both issues are indeed important, but don't devalue state workers.

My reply:

Point well taken and accepted. I certainly did not mean to disparage or minimize what could have been a serious problems for those effected by the budget games being played. Yes, there are a few ‘turkeys’ at the Board but the overwhelming number of the Board’s staff, as well as at most state agencies, do their jobs well. Unfortunately some of those who are positions of authority (but minimal responsibility) by virtue of their political connections often seem exempt from the games being played.

Getting Stats on MG-2 Variances

A reader writes:

  • How many MG 2 variances have been filed for low back pain as of September 1, 2011?
  • How many MG 2 variances for back pain were from medical physicians?
  • How many MG 2 variances for back pain were from orthopedists? How many were approved?
  • How many MG 2 variances for back pain were for active therapies? How many were approved?
  • How many MG 2 variances for back pain were from chiropractors? How many were approved?
  • How many MG 2 variances for back pain were for spinal manipulation? How many were approved?

The data will speak for itself.

My reply:

No!

The Board will not publish any statistics that do not show results which meet the projections they made when they originally proposed changes in the polices and procedures. And this assumes that they even both to not only run reports internally but look at these numbers.

But if they did want to issue these statistics, it would be quite easy to do so. The Board uses a multi-relational database. What this means is that they can take the data off of one form and match it up to data from another form so that the combined data will give results that looking only at one form at a time will not. I know from my own ability to convert the date the Board gave me during my 12 years there, into something meaningful I could use to track not only decisions but the result of changes in the administrative practices of the Board. But should you be able to actually speak to someone who will tell you that they have the authority to answer you, they will tell you that the data people are very busying updating the system, doing reports for someone important, designing new security software, working on the budget, ....

Another comment on Medical Variances

A reader writes:

I recently read you September 1, 2011 edition of The Insider. I also read the newswire article quote in the Daily New from a Mr Brian Keegan regarding the recent treatment guidelines and variance requests. I was astonished to hear Mr Keegan state that more than two thirds of the variances have been approved. These approvals must be taking place outside the Albany district, as virtually every variance hearing that I have attended has been denied, and I hear that same result from attorneys, and other licensed hearing reps who represent claimants in the Albany district. His claim is in direct contrast to the reality that I experience at variance hearing in the Albany district.

Other than the first e-mail, these are a random selection of e-mails I receive. Keep them coming as they suggest new commentaries. Thanks.[11104055]

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WCB Layoffs: A Charade

October 13, 2011: This week the New York State Workers Compensation Board is announcing layoffs, rumored at this time, to be 27 people, due to the need by Cuomo to find savings in this year’s state budget.

But this is a charade!

The cost of running the Board does not come out of NYS’ operating budget, a budget which is paid for with tax dollars (or debt, which is ultimately paid for with tax dollars).

It is paid for out of assessments against insurance companies and is, therefore, an ‘off the budget’ agency, one of the few that generates its own operating income.

Whether or not the Board’s income from assessment against carriers has decreased, just has the State’s income from taxpayers decreased, does not mean that the Board has to layoff workers to help balance the State budget. Whether the Board lays off 27 people, 200 people, or hires an additional 27 people will have no impact on the state’s budget.

Whether this be a sop to PEF or other unions or the state legislature remains to be seen but it is not going to have any dollar impact on the state budget.

Is there anyone at the Board who will stand up on this issue or are they keeping their heads low, hoping Governor Cuomo does not notice them and cut off some of those useless heads. [11104054]

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WCL DEATH TAX!!

By Ron Balter, Louis Dauerer, and James McCarthy

Have you sensed a bit of unease in attempting to explain to your client the Surviving Spouse offset off WCL §16? "Well," you might humbly state with your best attorney countenance, "it's the law."

Legislative History

The offset provision [50%] on workers' compensation of WCL §15.3(v) is based upon receipt or qualification for SS disability benefits and terminates the WC disability benefit upon receipt or entitlement to receive old-age SS benefits. This provision raises a question of age discrimination. Together with WCL §16, these reductions are characterized as "reverse offsets" as distinguished from the SS offset where the combination of workers' compensation and SS benefits are greater than 80% of the historic earnings record when combined. This latter "default offset" was authorized by Congress in 1965.

Prior to the enactment of the 2007 [WCL 15.3(w)] duration limits on workers' compensation, the 80% default offset often operated to spur a compromise of the workers' compensation indemnity rate from total to a partial rate despite evidence of a higher indemnity rate. Commentators observed that the duration limits of the 2007 reform statute "effectively removes this possibility for compromise." [NYS WC Handbook, 5.52(4)].

In 1981, Congress eliminated "reverse offset" provisions, but grandfathered those in NY and fourteen other states. WCL §16 was enacted in 1977. Among others, the legislative purposes cited: "tax incentives for employers"; "creates jobs"; and "dependents are not without other financial support." In 1977, the maximum statutory indemnity for a death claim was $125 per week for an Average Weekly Wage [AWW] of $187.50 compared to the 2011 maximum of $772.96.

Effect of the "Reverse Offset"

Recent AWW data [Joint Report of the NYS Insurance Department and NYS Workers' Compensation Board, (March, 2009, p. 21)] indicates that of 83,830 Claims With First Indemnity Benefits paid in 2007-08, 34,022 [69.1%] were male and 13,841 [28.1%] were female, or a ratio of more than two to one.

Thus, the "reverse offset" disproportionately affects the female surviving spouse likely in a similar ratio. [See Data Below]

DISTRIBUTION OF AWW BY GENDER

_146_1-table.jpg

Based upon the criteria of WCL §16 [Table 1: Sole Surviving Spouse, no children] the workers' compensation indemnity reduction ranges from 5% to 50% depending upon the AWW range from $$100 to $200 per week.The data further demonstrate that 78,339 claims have an AWW in excess of $224, representing 93.5% of the total number of claims potentially subject [in a death claim] to a "reverse offset." If the AWW is $450 [$300 per week statutory benefit] , a sole surviving spouse [over age 60] with a SS Survivor Benefit of $1200 per month is subject to a "reverse offset" of $138.46 per week [$1200 x 12/52 x .50] or nearly $7200 per year. This represents a 46.15% reduction. In the national debate, this would be characterized as "confiscatory" or a death tax.

Time to Act

It's been over 30 years since Congress prohibited (and grandfathered) "reverse offsets" and thirty-four since New York passed its legislation. Rescission of New York's "death tax" is long overdue and the Legislature needs to determine whether WCL §16 has met its purposes. It's difficult to imagine those goals have been achieved. While death and taxes may be inevitable, they ought not be even more distressing and painful to surviving spouses.

Since the "reverse offset" is by operation of law, the reduction occurs without a hearing on the issue. Due Process is at stake:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. . . . [Roth, 408 US at 577].

What do you think? Feel free to submit comments, take action, and offer your own "OpEd" column.

As always, thank you for your support.

Barbara Levine & Bill Crossett, Co-Chairs NYIWA

The Insider That OpEd piece can be in this website or on website of the New York Injured Workers Alliance.0[11094053]

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The Board's Not Working

Board's Stats Say So

♦September 22, 2011: A review of the Board’s public records show that the Board is taking twice as long to do its work in 2011 as in 2009 but accomplishing only half as much.¹

During this past July, the Board issued 549 Memorandum of Decisions, decisions that were to resolve appeals made by injured workers or carriers dissatisfied with the decision of an administrative law judge. Two years earlier, in 2009, the Board issued 1,235 Memorandum of Decisions. Thus, in 2011 they issued only 44% as many Memorandums of Decision as they did two years earlier.

This certainly appears to be encouraging, perhaps a sign of less appeals, the Board’s oft pronounced goal ... except for one additional fact:

The average MOD in 2011 took nearly nine months to get issued whereas in 2009, when there were more than twice as many appeals to review, the Board issued them in less than four months.

This explains why there is such a large backlog of cases: 17% of the July 2011 decisions took more than one full year to be issued whereas in 2009 only 1% of the decisions required more than nine months.

It is likely that the 2011 performance figures would have been far worse except for one anomaly: an inordinately large number of appeals from the month of April 2011 appear to have moved to the top of the pile and had their cases resolved by Board panels in July. As you can see from the chart, the 2009 figures (black) show a standard Bell curve whereas 2011 (blue) show a great degree of irregularity, aside from the longer duration to resolve appeals as compared to July 2009.

MoD Aging Per Lexis

Unfortunately, the Board no longer publishes any numbers of this nature, number such as those I posted in my Commentary of September 8, 2011 “An Attorney Questions Board’s Response on ‘Variance Requests’” in my letter to the Board Chairman.

Basically, the Board is spending its time resolving issues by forcing cases to be closed rather than using its resources to make decisions. I do not know how many people are employed in the Administrative Review Bureau (a ‘state’ secret?!?) But the number of commissioners on the payroll has not changed although the number of working commissioners appears to have decreased.

Medical variances appear to be suffering from the same problem. Claimant attorneys are complaining about the delays that they are encountering in seeking to reopen cases when medical treatment is terminated because the Medical Guidelines have determined that the injured worker has been cured or perhaps only stabilized. One can only assume, since the Board issues no data, that the requests for medical variance are treated with the same case as the appeals of law judge decisions: months if not years in the making.

But rather than address the issue of why the decision making process has crawled to a virtual stop, the Board is pursing a new debacle for the coming year: MAPP.

When is Governor Cuomo going to step in and clean house? [11094052]

¹The Insider  Detailed statistics are attached. The statistics are based on an analysis of 148 decisions for 2009 and 2011 for July 1 to July 31 as listed in Lexis and based on the difference between the date of the decision that was being appealed and the date the MoD was filed. The date of the underlying law judge decision was used as that date appears in all the MoD whereas the dates of the appeal are often not in the MoD. But since there are only 30 days to appeal the law judge decision, any adjustment that could be made, assuming it did not average out, would not significantly reduce the time differences between 2009 and 2011. In both 148 MoD’s review in 2009 and 2011, there are RFA’s (actually only showed up in the 2009 cases), Full Board Reviews and reconsideration of Appellate Court decisions, all of which were done faster than the average for cases in that time period but with a relatively minor effect on the final numbers. As I started with July 2011, I decided to take a 25% sample of the 549 cases, i.e. 148; as a result I used same absolute number, 148, for July 2009 rather than 25% of 1,235

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Patient Died BUT the case is closed!

September 15, 2011: In its 2010 Annual Report, the New York State Workers Compensation Board states that the number of pending claims is going down every year for a seven-year average of 7.5% (Chart 2). And this is all due to the new procedures to force both sides to set the issues before a law judge so that these matters can be settled.

However, that same Annual Report shows that, while fewer cases are being indexed every year, down 25% from 2002 to 2010, the number of cases being reopened has increased by 25% in the same period of time. In fact, as my charts show (all using the statics from the Annual Report), the number of cases that require the Board’s attention each year is increasing. Equally important, whereas in 2002 reopened cases were only 49% of the total number of cases handled by the Board, by 2010, reopened cases were 62% of the total and are increasing every year.

_143-stats.jpg

More importantly, if you take a look at the last column in Chart 2, you will see that the Board claims to have closed 72% of all cases it had in 2010. At this rate, by 2014, the Board will be closing more cases than it has. Each chart on its own, one on page 3 of the Annual Report and the other on page 21 of the Annual Report show that the Board is accomplishing its goal of speeding up the process. But putting the charts together shows something different.

What does this really mean?

Essentially you can cut down the number of hospitals beds you need and improve the morbidity rate of your hospital by releasing every patient in 10 days, whether or not they are cured. Just state that they are. Hence, a smaller patient population, a need for fewer beds, and no reports of anyone dying in the hospital.

By closing cases as fast as they can, the claims pending is reduced and the number for claims resolved increases. This is done by closing a case if a question comes up that can not be answered at a hearing. “Don’t adjourn - just close.”

Unfortunately, when either party wants to reopen a workers compensation case, the Board, in order to cut down on paper work by cutting down on hearings, now requires all sorts of documents to support the request for a reopening. And after a few weeks, or more likely months, if the Board approves a reopening, the clerical staff must set up hearing dates, schedule a law judge, etc. How much easier would it have been for a law judge to say, “Let’s adjourn until 2:30 next Tuesday which should give you enough time to either settle this issue or have all the facts I need to make a decision.”

But the Oligarchic Cabal, in Albany, who trust (do they have a choice) the law judges to make what are sometimes complex medical and legal decision on cases do not feel confident that the law judges are capable of determining which cases should be adjourned to give the parties time to resolve a case and which cases should be closed.

Is this really true?

Near the end of time that the commissioners were doing §32's, a complaint arose that was discussed at our monthly preboard meeting. The complaint from the Cabal was that some districts had too many §32 hearing adjourned, thus cluttering up the calendar. The hearings were supposed to either approve or reject the settlement. It was obvious from the districts mentioned that reference was being made to New York City and one update district office. (At that time, most districts, other than Brooklyn, only had one commissioner handle all the hearing.) I was the one commissioner pointed by name out for criticism.

I gave an example of an issue that came up at a hearing. It was a technical issue in which the agreement had to be redrafted to change a few words; the improper words could not simply be crossed out but had to be typed into the agreement as original text and not handwritten as was usually the case with changes. I adjourned the case for the agreement to be rewritten and set the next hearing for 10 days later when I was doing another §32 calendar. I instructed all the parties I would proceed now with the balance of the settlement hearing so that at the next hearing, we would need only a few minutes to tie up everything, that they could just show up during my calendar whether or not a Hearing Notice was ever issued and I would take them right away. Ten days later, the §32 was approved and the case closed.

At that preboard meeting, I was told I was supposed to have rejected the §32. The parties could then apply to reopen the case. When I raised the point that rejecting the agreement, closing the case, and then requiring them to formally seek a new hearing would take about four or five different filings, lots of board staff (examiner) time, and delay the settlement another two or three months, I was told that my argument did not address the issue. It simply did not look good that there were so many open cases and unresolved §32's. I was to understand that the policy was “Approve or Reject”; there was no third option.

I have been told by several law judges as well as attorneys from both sides that this policy, ‘Approve or Reject’, still seems to be the rule.

And it is the case that this same policy applies to ordinary hearings as well. If the parties have just received some new information and need another week to resolve the issue, the judge is instructed to close the case: “There are no unresolved issues because neither side has presented conflicting information that requires a decision today."

In the meantime, the number of open cases is skyrocketing. More often than not, claimants are being denied compensation or medical treatment while the Board awaits the proper filing of forms, and the Board proclaims “We have closed all ur cases and discharged all our patients/claimants. Look at our morbidity rare - No one has died in our hospital.”

The Invisible Gorilla

Too bad they do not leave their ivy towers and see all the bodies in the street. But then again, as noted in “The Invisible Gorilla” by Chabris and Simons, some people do not see that which is in front of their eyes even if they look at it: they have conditioned themselves to believe that what is in front of their eyes does not exist.

Next week, I will publish data from the Board regarding the time it takes for the Board to review an appeal. [11094051]

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An Attorney Questions Board’s Response on ‘Variance Requests’

 

September 8, 2011 Last week I received the following letter from John Klee, Esq. With his permission, I sent a copy of that letter along with some Board statistics on time delays for Board panel reviews to the following staff at the New York State Workers’ Compensation Board: Chairman Robert Beloten, Vice Chairman Francis Libous (within whose area of responsibility is managing the commissioners), and Brian Keegan, the Board’s spokesman. While I expect that neither Beloten nor Libous will read the e-mails, I certainly hope that Keegan is not just a spokesman but also an ‘answerman’.

A Letter from Jonathan Klee, Esq.

"Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board. Keegan said 78,178 variance requests have been filed, and more than two-thirds were approved, although no reference was made to the time it took for the variance request to be approved by the Board."

I find this statement by Mr. Keegan interesting and misleading. The interesting part is that based on the numbers provided by the Board at least 26,059 variances requests were denied. That is an exorbitant number of denials of treatment when compared to the system in place prior to December 2010. The misleading part is I'm sure these figures do not include the thousands of other requests for treatment which were denied because the medical provider failed to request the treatment properly since they failed to follow the complex rules of the variance process or medical providers who just refuse to treat patients who need care because they don't want to deal with the complex rules of workers' compensation anymore.

The approval time of variance requests by the Board is also an issue. We have had a number of cases where variances were requested. It took the Board a number of months to put the issue on calendar and decide the variance. Finally, after this delay, caused by the Board, the medical treatment was deemed necessary. However, all treatment rendered up to the Variance hearing was denied since it was not pre-approved. So, for example, variance for treatment was requested in January. The Board does not place the case on calendar and decide the issue until April. In April the Board approves the treatment from April forward as necessary and in the same Decision denies the medical provider payment of all medical bills rendered between January and April since they did not receive pre approval. Can anyone at the Board explain the logic of these Decisions? Last I looked, if treatment is necessary treatment is necessary. The only point of these decisions is to force medical providers out of the workers' compensation system, force delay in treatment since maybe the claimant will just give up and deny payment of bills so Insurance Companies can pad their already bloated profits.

Mr. Keegan, what is the Board's response to this issue? Please don't tell me expediting variance hearings because the Board is already flooded and back logged with thousands of requests and thousands more still to come. Attorneys who practice Workers' Compensation everyday at the Board know that is not a realistic response. That answer would just show how the Board does not really care about providing prompt and efficient treatment to injured workers (What you claim is the goal of the Variance process) and an insult to the medical providers who are underpaid already for the valuable services they provide.

Please Respond to: Jonathan Klee, Esq. Klee & Woolf, LLP 350 Willis Avenue Mineola, New York 11501 (516) 294-5775

My Letter to the Board's Executive Staff

Dear Chairman Beloten
         Vice-Chairman Libous

         General Counsel Munnelly
         Executive Director Fenster

September 8, 2011: In response to Brian Keegan’s comments which appeared on the September ,2011 article in the New York Daily News about the delays in the NYS Workers Compensation Board’s handling of medical variance requests, John Klee, Esq. asked me to publish the attached letter [posted above], for which I am now asking for your response.

Even members of your own executive staff, when asked about expediting appeals, have told those phoning for assistance that there is an ever growing backlog in the appeals unit and that, as a result, variance requests are taking many months to review and relevant decisions to be issued.

In addition to responding to Mr. Klee’s letter, I also ask that you publish every month statistics showing the status of appeals per the attached worksheet which used to be distributed to the Commissioners at pre-board meetings when I was on the Board. The letter codes represent categories of cases, with death claims and requests for surgery being the top two.

When Carl Copps took over the review bureau (or whatever is name for this month), he cut the review backlog down to only a few months. Since his departure, it is alleged to have increased back up to 6-8 months.

In view of your recent statement as to how well the new medical guidelines are working and considering Brian Keegan’s comments, I ask that an up-to-date set of statistics, similar to the attached, be made available monthly on the Board’s website and a statement made as to the specific steps to be taken by the Board to reduce the backlog.

It is a disservice to injured workers that their request for continued medical treatment be put on hold because the review bureau and the commissioners have other priorities.

Sincerely yours

Michael T. Berns
The Insider
Former Commissioner 1996-2008
New York State Workers Compensation Board
[19142-4050]

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MEDICARE SET ASIDE

An Issue Carriers & Injured Workers Can Agree On

Commentary courtesy of David J. Depaolo, President of WorkCompCentral which is a subscription based online publication of workers’ compensation news, education and data services and can be reached at david@workcompcentral.com. Originally published July 1, 2011.

August 25, 2011: Typically employer/carriers and injured workers are on opposite sides of any given issue in workers’ compensation, but a recent move by the federal government should align the two interests.

In January the Obama Administration instructed federal agencies to identify regulations that place an unreasonable burden on businesses. The U.S. Department of Health and Human Services responded to that order on June 6 by publishing a list of dozens of regulations that it intended to review for possible streamlining or elimination.

Medicare Secondary Payer Act rules were not on the target list.

The American Insurance Association (AIA) sent a letter to the department on Tuesday, urging it to review the burdensome reporting rules imposed by Section 111 of the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA).

All states are affected by the MMSEA, and it is no secret that these provisions slow down, sometimes dramatically, the claims resolution process leaving injured workers hanging without compensation many times and employer/carriers incurring needless additional expense.

The regulations that the Centers for Medicare and Medicaid Services (CMS) operates under often lack clarity, are changed frequently without sufficient notice, and overall fail to reflect the operating standards in the insurance and workers’ compensation industries (e.g. what CMS considers a “mass tort claim” is substantially different than what the insurance industry does).

While the AIA deals with the regulators, a coalition of insurers and employers has also been lobbying Congress to reform Medicare reporting requirements. The Medicare Advocacy Recovery Coalition supports adoption of House Resolution 1063, known as The Strengthening Medicare and Repaying Taxpayers (SMART) Act, which would require CMS to give insurers and claimants firm guidance about how much money should be set aside in future medical settlements to protect Medicare’s interest.

The likelihood of getting Congress’ attention on this issue during this legislative session is not high, nevertheless the efforts of the insurance industry should be supported by groups advocating for the rights of injured workers.

I urge both insurance and injured worker lobbying groups to join the efforts to persuade the DHHS to include the MMSEA in the list of regulations that should be reviewed for efficiency modification.[18140-4049]


Another Former Commissioner
Agrees on Commissioner Salaries

August 18, 2011: After my first year at the Board, I felt as if I was the last of the Four Horsemen of the Apocalypse )who were appointed, along with Chairman Robert Snashall, to bring back energy to the Board and help newly elected Governor George Padaki achieve his goals for the agency. Vice chairman Jeff Sweet, Commissioner Karl Henry, and Commissioner Carol McManus were appointed prior to my arrival at the Board.

Unfortunately with only a few exception, most of the new appointees were examples of the complaints raised by Rick Karlin in the Albany Times Union, which, in turn, prompted my COMMENTARY last week after Governor Cuomo proposed cutting commissioner salaries.

Weighing in on today’s COMMENTARY is Carol McManus, one of the Four Horsemen, whose letter speaks for itself.

As you must know, I agree with your commentary completely. However, I would add just a few notes, having participated in the Workers’ Compensation Commissioner’s role for a full 8 years, myself.

Oh, for the good old days, when Commissioners actually talked to one another (and even the draft writers) about any conflict(s) they perceived in agreeing with a draft decision. Even though some were less interested in dialogue than others (don’t confuse me with the facts, my mind is already made up!) most tough decisions were arrived at only after collegial discussion.

With the dawn of e-case, we know that Commissioners access their caseloads with a click of a computer button. They sit alone in front of their screens, clicking their agreement on individual cases and only rarely pick up the phone or write a comment to anther panel member to request further discussion on a matter.

While “signing” the case is the end goal, (thereby agreeing with the writer of the draft decision in all respects as to the content and conclusions drawn) actually reading and understanding the issue on appeal, reading and understanding the rationale(s) utilized by the drafter to reach his/her conclusions, and possessing enough information on the facts and the law pertaining to the matter to make a judgment and cogent decision to agree or disagree with the draft findings is the real goal of the Commissioners’ work.

No one, even a speed-reader, in my opinion, can access a case, read the draft decision, digest its contents and formulate a decision to agree or disagree in the span of 1 minute. If the Chair or his/her designee would only review the statistics (which are available to them) of how much time each Commissioner spends on 1 case, let alone an entire caseload or day’s work, it would become obvious that those who click through the entire computer queue of cases in 15 minutes should be called into account to answer for their amazing ability to complete the above-mentioned cognitive exercises in the blink of an eye. That is clearly a managerial responsibility which has not been exercised, to my knowledge, in the span of my history with the Board up until today.

When Commissioners are allowed to work or not work accountably by their own decision, mind-numbing mismanagement is the only conclusion I can reach. For those who do perform admirably, there is no incentive other than their own pride and work ethic to guide them. Real reform won’t come by just slashing salaries. True management oversight of agency Commissioners is the only path to better, more accurate, justifiable decisions.

Thanks for letting me “ring in” on this issue. You know it’s been a thorn in my saddle for a long time!

Regards, Carol McManus President Carol G. McManus Consulting, LLC 17 Pine Cone Dr. Pittsford, NY 14534 Ph: (585) 465-2365 www.CarolGMcManus.com [18139-4048]

 

Patronage, Commissioners, & Salaries

Gov. Cuomo Takes A Good Look

August 11, 2011: The recent decision by Governor Andrew Cuomo to slash pay 90% for political plum state commission seats, as reported by Rick Carlin in the Times Union on August 5, resulted in a number of e-mails to me asking my opinion. And who am I to deny the public that request.

However it must be understood that in New York State there are three types of commissioners:

  1. Group 1: Those who have full-time positions as the highest-ranking person in the various state agencies.
  2. Group 2: Those who have part-time positions sitting on various boards of state agencies, commissions, and authorities.
  3. Group 3: Those who are full-time employees of various agencies usually in a quasi-judicial full-time position.

Group 1 are essentially the chief executives of various state agencies with budgets ranging from $10 million to nearly $1 billion and in some cases have tens of thousands of employees. Salaries for the vast majority of these range between $110,000 up to $180,000 a year (if my memory serves correct). These are not the commissioners with whom Governor Cuomo is concerned.

Group 2 represents The vast majority of those whose salaries are being addressed by Governor Cuomo .I know many of these commissioners and, while the majority are honest and have good intentions, they are on board’s that, at best, meet twice a month and often only 10 times a year; some boards do not not meet in July and the vast majority not meet in August. Rick Carlin, the author of the article, was directly on point when he said that,

Commissioner positions on state boards and governing agencies have long been criticized as patronage plums, or at the very least jobs reserved for those with deep roots in the state’s political class. They have been given to both Republicans and Democrats, allies of governors as well as influential legislators.

Of course it is be expected, and I argued this point in one of my many appearances on New York 1, that every Governor who gets elected looks to appoint to positions throughout the state people who supported him, agree with his policies, and helped him win the election. One cannot seriously believe that a Democrat becoming governor after 12 years of Republican control would keep in place people who disagreed with him and worked to prevent him from getting elected and instituting his policies. Nor would one expect any more from a Republican becoming governor after 20 years of Democratic control who would put into these decision-making positions people whom they can trust to follow his directives and policies.

The question is how much should part-time commissioners earn and what should be some minimal requirements for them to get the position. As to the question of minimal requirements I will discuss that in more detail when I discuss Group 3, based on my firsthand knowledge of the 26 commissioners with whom I worked at the Worker’s Compensation Board and a number of people I know who were in similar capacities at the Department of Labor and Department of Parole.

I agree with Governor Cuomo that paying these people full-time salary is absurd, ridiculous, but self-serving for the various members of the Legislature and the executive branch who originally established these part-time jobs at full-time pay. And for many, the state salary as a commissioner is more than many have ever made prior to becoming a commissioner. Since many of these people either have full-time jobs or are retired, it is not all surprising that substantial portions of these wages end up in the coffers of political parties and elected officials.

Worse than that is that these commissioners, because they are full-time, enjoy all the benefits of other full-time state employees: very inexpensive health care insurance (for which they are vested after 10 years of service) and access to various state retirement plans (for which they are vested after five years of service and pay only 3% of their salary for the first 10 years after which they make no contribution.)¹

Group 3 includes the work of the commissioners on the boards of Workers Compensation, Parole, and Department of Labor, among others. These jobs are usually defined as full-time and prohibit the commissioners from having any other employment. In fact usually the only outside activities in which they are usually permitted to participate on a formal basis are as board members of nonprofit organizations.

My comments below are based primarily on my experience as a Commissioner at the Workers Compensation Board although this seemed to be true for people in similar positions as full-time commissioners at Labor and Parole.

What is most interesting is that the term Commissioner is not included in the laws covering the Worker’s Compensation Board. The 13 people on the Board are referred to in the law as board members with the additional title of chairman and vice chairman assigned to two of the 13 board members. But in keeping with tradition I shall use the term Commissioner.

Although these positions are defined as full-time, the amount of time a commissioner could spend could be as little as three or four hours a week even while other commissioners on the same board could work 20, 30, or 40 hours a week. When I first came to the Board in 1996, there were approximately 90 people at the Board who made more money than the commissioners; it was not until a few years later that the state legislature increased salaries for all commissioners including those at the Workers Compensation Board.

At that time the Board was paper-based and all the commissioners had to come to the office in Brooklyn and at a minimum spend several days every month signing decisions. But because there were always other commissioners around a lot of time was spent discussing decisions and/or meeting with the writers. And commissioners spent on the average of four or five days a month attending oral arguments and lump sum hearings. As the Board went paperless and some members of the Board sought to cut back on work, oral arguments were slowly eliminated and the responsibility for settlement hearings (changing from lump sum to §32) were transferred to the law judges. As a result some commissioners have no hearings for a month or two at a time and, if they feel like it, miss the monthly board meeting to be out of town, out of state, or out of the country for weeks or months at a time. And a look at the passport would show that one Commissioner spends a great deal of her time traveling overseas with her husband, while others spend a great deal of their time at their second (or is that their first) homes in Florida.

And since these commissioners have access to their case files over the Internet. they can “do their work” anywhere they have an Internet connection and, as exemplified by a former commissioner, click their way through weeks’ worth of decisions into a three hours a week. (I go into great deal more detail on this in my book, Behind The Closed Doors.

So this raises two questions:

  1. Are these full-time commissioners at these various agencies overpaid?
  2. What qualifications should they have to be appointed?

As to the amount of these full-time commissioners should be paid, I think the current salary levels are more than sufficient - I do not see any of them quitting for a higher paid job elsewhere. As for the commissioners who do not work, the fault for that lies directly with the chairman or vice chairman of each of the agencies under whose direct control are these commissioners. I can assure you that anyone who has been a manager and certainly all the managing partners of all the law firms in the industry know full well how to get their money’s worth out of their staff or how to get rid of them. Unfortunately far too often those who have the authority to make the commissioners work are often the very worst offenders as their “professional” goal appears to be maximum salary and benefits for themselves with minimal work.

To be blunt, the Workers Comp Worked needs a “Jeff Sweet” type of personality as vice chairman: he was quite firm but pleasant in making sure that the commissioners earned their salaries. The same could be said Labor and Parole.

As to the qualifications of those selected commissioners, the current requirement is minimal: New York State resident and I assume US citizen. I am unaware of any age requirements or educational requirements or even literacy requirements. As the jobs are highly sought after, for many justifiably feel these are nice no-show jobs, a selection for these positions is a plum for the governor’s office to give to satisfy his various constituencies. But also these people are approved by the state legislature and it is done on occasion on a non-partisan basis sometimes in exchange for favors and sometimes in order to assure that the opposition party will allow legislation relating to that agency not only to pass but even to get on the floor of the chamber.

But this does not mean that the appointees are incompetent, incapable, or lazy. I like to think that, despite my lack of knowledge of workers compensation, highlighted by my initial confirmation hearings, I proved to be an asset to the board whereas an attorney who has moved on to greener pastures proved to be one of the laziest and most arrogant of the 26 commissioners with whom I have served.

The commissioners on these boards as well as the part-time commissioners on other boards are supposed to represent policies of the sitting governor. At worst, they should just do the work and follow the lead of their fellow commissioners. Unfortunately some are so lazy and sloppy they interfere with the process.

There were 26 commissioners, 12 of whom had been appointed I joined the board and another 14 who joined after I did. I can tell you that with the exception of two whom I knew before they joined the board (and accurately predicted their uselessness) I was unable to tell who would be good and would not. However, I know of two people who, in the process of becoming commissioners, were told that at a minimum they were expected to work four or five days a month and, God forbid, have to go to Albany two days a month; they were honest enough to decide not to take the job while a few others took the job and then sought to avoid the work.

The bottom line is that, as in any organization, it is up to management to make sure that full-time employees, be they commissioners or clerical staff, fulfill their obligations. There is only so much micro management that the Governor or any chief executive can do. Hopefully these steps taken by Governor Cuomo to cut back on the salaries of the part-time commissioners and to look at the value of some of the full-time commissioners may result in those board members at the Worker’s Compensation Board, Labor, and Parole, among others, deciding to actually work. It is a shame that the excellent work and positive attitudes of a few commissioners are offset by those political appointees who give patronage it’s bad name. [18138-4047]

1Work for 10 years at $90,000/yr, paying 3% or $2700/yr into a pension fund. Retire after 10 years after having contributed $27,000 and get 10/60th’s a year pension which is $15,000 a year, a great return on a $27,000 investment. And you wonder why NY’s pension system is sucking up your tax dollars. And for part-time work.


The Russak Party

ED NOTE: This was originally sent out as an e-mail when I was on vacation and did not have access to my website.

July 25, 2011: Boy, does Brooklyn know how to throw a party!

The July 14th retirement party for Jack Russak was a great event, benefitting someone as respected as is he in the WC community.

There were probably about 200 people there, including attorneys from both sides, as well as administrative staff and ALJ’s and a number of his former colleagues, including Mark Solomon, whom Jack will be joining as a Federal Social Security ALJ.

I had the opportunity to talk to many of the guests and there was a recurring theme: the state of affairs at the WCB is getting worse. Not only is the Board less responsive but its new rules are confusing and often hurts both sides of the same case equally. Perhaps one of the most telling comments of the evening, and one of the most loudly applauded, was in one of the many speeches given in honor of Jack: “Boy, do I miss the Pataki days.”

Perhaps the most vocal complaints were those raised against the new medical guidelines. One complaint is that no one is sure if the new treatment guidelines apply to treatment that was ongoing at the time the new laws went into effect; some claimants found their treatment cut off in mid-session and appointments canceled.

A second complaint is that the carriers are only too fast to tell the medical provider to stop treatment, sometimes a few days in advance, writing something to the effect of “Please note that pursuant to the WCB’s new medical guidelines, your current treatment program for claimant must end on Friday, July 29.” Treatment stops midway and an entirely new adjudicative process must start, thus delaying necessary medical treatment and the inured worker’s return to the labor market.

Another complaint is the issuance of penalties by the Board for late filings. Based on the cases I have seen, it seems that the Board has developed a sort of reverse psychology of the 1990’s back when nothing was ever late - now even filings date stamped by the Board within the appropriate deadlines are often deemed ‘filed late’ and treated accordingly, thus necessitating further difficulties for the attorneys, whose time would be better spent assisting their clients than fighting the Board’s nameless bureaucrats.

But I must give some due to Jeff Fenster, one bureaucrat who has been the subject of much criticism by me. We were introduced by someone whom I assume was expecting fireworks. Instead, we had a very pleasant conversation in which he explained to me some of the personnel and budgetary problems from which the Board is suffering, thus making it difficult to clarify for the WC community, the goals and proper applications of some of the new rules and laws. And as I mentioned to him and do so here, sometimes there is no right answer to solve a problem so that whatever solution is raised, there will be faults in it to be criticized- if there were none I would have little about which to write. Perhaps the Board would be best served by making him the Board’s spokesman ot the community since he offers some clear explanations and is open to criticism. (Of which I am sure I shall have more to follow in the future.)

A special thanks for the evening is due to Judge Stogel for organizing the event and for Tom Agostino and Liz Lott for their singing rendition of an “ode to Russak” (Keep your day jobs!) [18137-4046]


Who’s Minding the Candy Store

June 16, 2011 [4052]: In the June 16, 2011 NYS Appellate Court, Third Department decision in the Matter of State of New York, Workers’ Compensation Bd. v A & T Healthcare, LLC, [see our DECISIONS page] the issue before the Court was how many years retroactively could the Board as the administrator of a group self-insured trust that it closed, charge the trust’s members for the annual underfunding which went back to 1999.

The ruling of the Court, which stated that the statute of limitations did not apply in this case, was not as important as some of its commentary on this case. These comments raise the question of who if anybody at the Board was fulfilling the Board’s responsibility to oversee the self-insured trusts.

The Trust involved in this action was New York Health Care Facilities Workers’ Compensation Trust (hereinafter the Trust), a trust established in 1997. Beginning in 1999, the Trust began operating at a level where its liabilities exceeded its assets. As this deficiency persisted, the Board — which is required by law to oversee the Trust per WCL §50[3-a— worked with the Trust to enact measures to close the shortfall. But the decision of the Board to close the Trust did not occur until 2006: seven years after the annual deficits started.

The Court wrote that,

But neither the Trust documents nor the regulation required the Trust or the WCB to levy an immediate assessment, instead permitting “such other action as may be appropriate in order to make up the deficiency“. The regulation lists numerous options for the WCB to use when addressing an underfunded group self- insured, and plaintiff tried many of the less severe options with the Trust prior to terminating it.

The Court then added,

Beginning in 1999, the Trust began operating at a level where its liabilities exceeded its assets. As this deficiency persisted, The WCB — which is required by law to oversee the Trust per WCL §50[3-a— worked with the Trust to enact measures to close the shortfall. By 2006, after the gap had become increasingly larger, the WCB terminated the Trust, assumed its administration (see 12 NYCRR 317.20) and retained.

I will now list the number of questions I’m sure have occurred to many but perhaps now, based on the Court’s decision, may result in some attention perhaps by the Office of the Attorney General or the state legislature.

  • What if anything did the Board do between 1999 and 2006?
  • Is there anything in the Board records that indicates the Board was even aware of these deficiencies?
  • Who were the specific individuals at the Board to whose attention these reports were sent?
  • What did these specific individuals do once they got these reports?
  • What prompted the Board in 2006, seven years after the deficiency started, to decide to take action?

Or, in shorthand, “Who’s minding the candy store?”

At this time hundreds of small businesses find themselves in an impossible position because of the Board’s failure to meet its oversight responsibilities. Enticed to join some of the GSIT’s by what appeared to be below market insurance premiums, these firms are finding themselves assessed not at what may have been competitive market rates but possibly much higher rates based on the failure of the original managers of these funds to properly handle insurance claims. Some of these managers received their fees on the basis of premiums collected, money which was to be used to cover the administrative expenses of the trust managers. One way to reduce administrative costs and move all those fees to the bottom line (bonuses and dividends and higher stock prices) was to approve every claim, knowing that this would result in increased underwriting costs to be assessed at some future date to members of trust. When I was in the private sector, it was my policy to pay my commission salesmen when I got paid lest they make very big sales to customers, collected their commissions, and then resigned when those customers did not pay. Many trust managers got paid on the sale, regardless if the ‘sale’ was paid for.

Someone at the Board had the responsibility to advise the Chairman, Executive Director, and/or the General Counsel about the situation. Either they were ignorant of finance and insurance and therefore had no ability to understand the documents they were receiving or they just assumed that it was too much work to deal with the problem, decided to ignore it, and hoped they would be moving on to another job before the issue blew up.

So now there are three new but very basic questions:

  • Who at the Board was responsible for this debacle?
  • What can be done to resolve the unfunded trusts without bankrupting hundreds if not thousands of small businesses?
  • Why aren’t the managers and stockholders of the managers of these trusts being held responsible for these failures, financially, civilly, and criminally?

‘Nuff said.

‘O pesce fete d’ ‘a capa1

Rebuilding the Workers Compensation System
Part II

June 9, 2011 [4051]: History shows that, as institutions change, there are four key factors that influence whether that change is positive, deleterious, or neutral, like four legs on a table. If it is carefully balanced, removing one or two legs does not cause the table to fall. But an unbalanced table can fall even with four legs if one is too short. The legs are leadership, a raison d’etre, organizational structure and personnel, and current events. Weakness in any one or more of the first three can have minimal effect if current events are stable. The history of the NYS Workers Compensation Board is no different from thousands of other bureaucracies, governments, societies, or business and a review of its recent history shows how true this is.

An event resulted in changes to the first three legs of the table listed above. In 1994 George E. Pataki was elected governor of the State of New York, breaking a 20 year run of Democratic philosophy running state government. The next leg changed when Governor Pataki appointed Robert Snashall as Chairman and Jeffery Sweet as Vice Chairman. They, in turn, redefined the goals of the Board by stating that service to its constituency — injured workers and employers — was the sole raison d’etre of the Board, and finally, they took steps to give the opportunity to the staff to join in this new goal by learning new skills and getting promotions in the process. And, of course, the key tool was not the decision to go paperless but the actions taken to actually implement the new paperless system, known as ECF (Electronic Case Folder) and CIS (Case Information System).

Unfortunately after the departures of Snashall and Sweet, the void in leadership left by their departure became apparent and, in the waning years of the Pataki administration and Pataki’s lack of focus on state government, apparachiks took over the leadership, changed the focus, and slowly eroded the esprit de core of the staff.

So what do we now have and what must be fixed?

The Board desperately needs a new chairman, vice-chairman, and executive director.

Current Chairman Robert Beloten, a former law judge, although knowledgeable about the law, appears to be unable to wield the power that should come with the position. As a result, individual ‘tribal-states’, also known as departments, have popped up within the Board, each one competing with and making deals with the other tribal states for a bigger share of the treasury (annual budget) and more power by taking on more authority, even if not more responsibility.

The Board needs someone who can bring back a vision and has the managerial/bureaucratic skills to get the staff to do their jobs or to have that staff removed.

The executive director essentially is supposed to be the person who handles the day to day affairs of the Board, making sure that the general directives of the Chairman are followed, and that the staff (management and civil service) perform their duties properly. And the executive director must have an open ear in order to bring to the Chairman’s attention those problems or issues which need the Chair’s attention, in order to achieve the Board’s ultimate goal: the fair adjudication of injury claims. It is not, as I have so often written, to set land speed records in closing cases and files, justice and fairness being run over in the process. Jeffery Fenster may have the strength to push Senator Vito Lopez through a crowded room2 but he has no background in management or budgets or any of the many qualifications one would find on a ‘help wanted’ ad for the executive director of anything, let alone a major state agency. A list of the skills and accomplishments of Commissioner Rick Bell and Joe Pennisi, former executive directors, must be a minimal requirement for the new executive director.

The vice-chairman’s legal responsibility is not defined under the WCL. But historically, they have been in charge of the other 11 Commissioner/Board members in terms of insuring proper training for new members, keeping them up to date on legal and medical developments as they may impact on their decision making, setting schedules and insuring their attendance at hearings and the once-a-month pre-board and full board meetings in Albany. And, of course, to make sure that they fulfill their duties by reviewing the decisions they are expected to approve, reject, or modify, on a timely basis. At least that is what Sweet did as Vice Chairman and those of us who joined the Board after he did (spring of 1995), assumed that this was the job of Vice Chairman, a working title which, by the way, pays $10,000 a year more than the other 11 commissioners. Unfortunately, the current Vice Chairman, Frances Libous appears to be far more concerned with protecting the image of her husband, Senator Tom Libous, the second most powerful member of the New York State Senate Republican majority. Too many commissioners, as documented in this website and my book, not only do not read any of the decisions they sign, they take weeks to do even that, thus delaying the resolution of controverted cases, the sole justification for the Commissioners’ existence. Some commissioners fail to appear for the monthly meetings, preferring to go on extended vacations or to attend political events, and nothing happens to them. The sole goal over the last few years, unimpeded by both the Chairman and the Executive Director, is to minimize the workload of the Commissioners by eliminating hearings and even discussions on legal issues.

As to other key personnel at the top levels of management, I am quite sure that once strong leadership takes over the three positions noted above, the rest will either willingly follow the lead or take flight from the Board, making room for competitive and dedicated staff to move up and help run the Board.

The new chairman must have a strong background in workers compensation, be it as an attorney or an insurance executive. This does not mean someone who has been just a law judge but someone whose prior work has included looking at the big picture, looking into all the areas in which the Board has responsibility. Not just litigating cases, but overseeing medical guidelines and treatment, insuring proper coverage by all the state’s employers, making sure that the insurers and medical community meet their legal, financial, and moral obligations to the injured workers and their employers. And finally, they must regularly travel the state and visit with various members of the workers compensation community, with an open ear and mind to possible improvements in the system.

The two key skills needed in the next the executive director are a history of management and an understanding of budgets. A background in workers compensation, or an understanding of the system, is an added plus. But the fact that someone can get a 100 on a test does not mean that that person is the one you want running your organization. Whether this person comes from the legal community, insurance or medical community, or a union, or even another agency is not what is important. The person must have experience managing people, getting them to do their jobs and be members of a team. They must be able to see who is not doing their jobs and help by either retraining that person, changing the job duties, or replacing that person. Executive staff who hide in an office in order to avoid meeting/confronting people or spend their time shopping or hanging out in the local watering hole is the exact opposite of what is needed.

The new vice-chairman, either from the existing Board or someone new, must also have organization skills. This is the person who will be responsible to make sure that the Commissioners do their work on a timely and professional basis. In fact, it is this person’s responsibility to make sure that there is work for the Commissioners, not to seek ways to get rid of it so that the Commissioners, who do not punch time clocks, can disappear out of state for weeks at a time. And the first order of business would be to give the administration of the hearings for Section 32 hearings back to the Commissioners. The commissioners used to do them when 32’s were first allowed and, with the ever decreasing calendar of oral arguments, there is no reason that the commissioners can now start to do them again.

At a trade meeting I attended about 30 years ago, someone said I was stepping on toes. I responded, “will everyone please get in line. That way I will be sure not to miss any one.” I am not mentioning names here to ‘get even’; if I were the list would be different. The names I mention are people who have taken position sof great responsibility. If they can not take the heat, they can get out of the kitchen. The Board is in dire need of leadership. One leg of the table has changed – the event leg – there is a new governor in town. Let us hope the Governor Cuomo takes the time to talk to the leaders of the workers compensation community and to then pick three qualified people who can help bring back the vision for the agency and pride for its staff.

1A Neapolitan proverb which translates as “A fish stinks from the head.” 2 As noted in this website and the New York Daily News.

The WCB - An Amateur Archaeologist’s Dream

Rebuilding the Workers Compensation System - Part I

June 2, 2011 [4050]: One major area of research in archaeology is the study of civilizations, not only how they develop but what causes them to fall apart and what are the results of the dissipation of these once great empires. And, while my focus over the last few years has been Meso-American pre-Columbian civilizations, the facts and concepts apply to civilizations everywhere. And to organizations as well.

And once such organization is the New York State Workers Compensation Board, an amateur archaeologist’s dream.

For the more classically educated, think of the glory of Rome, how an empire grew to control most of the known world. Then as a result of and/or coincidental with the invasion of the barbarians, the Roman empire disappeared to become a region of city-states, fiefdoms, and tribes until Garibaldi in 1861 brought about the reunification of Italy which is now again a major player on the world stage.

While I am not familiar with the WCB prior to my joining in 1996, I do note that under the leadership of Chairman Robert Snashall and Vice-Chairman Jeffery Sweet, the Board became a reasonably well-organized machine, with a newly adopted mantra — serve the injured worker. All the former tribes and city states, i.e., departments, were reorganized and strong competent leadership installed. But after Snashall and Sweet left the Board, there was no strong leadership put in place to maintain the ‘empire’ and the Board has fallen into a morass of city-states and tribal organizations with their chiefs wheeling and dealing with each other in order to control the ‘trade routes’ which run through their territories so that they will grow richer and more powerful.¹ And while the current department heads, constantly being moved around (many not around long enough to be blamed for anything but around long enough to show their ineptitude) are not getting rich in the traditional financial sense, they fight for an ever increasing share of the trade routes, i.e., Board’s budget, as they seek to enhance their power and prestige. Thus when it comes time to leave the sinking ship, just when the barbarians are at the gate or new competent leadership arrives, they move on to new territories boasting of all their accomplishments: “the surgery was a success even if the patient died.”

In the next few weeks, I will be publishing a series of commentaries which will review some of the problems created by the tribal structure now at the Board and make a number of suggestions to return it to the ‘empire’ it once was, including naming names. While some suggestions will be taken from 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, published just after I left the Board in June 2008, most will be new to take into account the current state of affairs.

¹Donna Ferrara was an interim Chair and everyone knew it, which prevented her from leading the Board. Zach Weiss had great potential but left the Board for greener pastures rather than put up with the tribal infighting.

 

Temporary Total Industrial Disability

May 26, 2011 [4049]: A 60+ year-old woman from Eastern Europe breaks four bones in her foot in a work-related accident, with her uncontroverted claim established. Initially awarded total temporary disability (TTD), after about four weeks when her foot started to heal, based on medical reports of the improvement in the condition of her foot, she was diagnosed with a temporary partial disability (TPD) and her compensation reduced accordingly.

But there was a problem. Although a legal resident living here for the past 30+ years, she speaks, reads, and writes minimum English, sufficient for her to work as a cleaning lady in commercial buildings. Her employer would not take her back until she could do her work, which necessitated her being on her feet virtually her entire shift. Since it was expected that she would probably recover sufficiently to return to that job, it made no sense for her to go into the job market and seek alternative employment, since due to her disability, lack of education, and language problem (and today’s economy), the only jobs for which she could probably qualify would also require her to be able to stand and walk during her shift.

Had her injuries been permanent, she would have qualified for a permanent partial disability (PPD) but probably with a total industrial disability (TID). But she was ready and willing to return to work and her employer to take her back, as soon as she was cleared in writing by her doctor to return to work.

Yet current law does not allow what would be other called ‘temporary total industrial disability’ (TTID).

This issue was raised by concerned commissioners when I first joined the Board in 1996. But Workers Compensation Law does not have such a definition. As a result, injured workers in the same condition as this woman cannot work for short periods of time but are treated as if they can do part-time work.

In fact, the issue of temporary partial rates raises the question of what do these rates mean?

Assume a worker is employed seven hours a day, five days a week at $20 an hour. AWW is $700 and maximum compensation is $466.62. They have a 60% TPD and can now return to work part-time, for 40% of their pre-injury work shift. If they work two full days (14 hours total), their compensation will be reduced: $700 - 280 = $420 x 2/3 = $280.00. But if their doctor says they should limit their work to just a few hours a day, i.e. 3 hours a day of 40% of their prior work shift, they get no compensation because they work a five-day week.

Anyone of you, the readers, who have ever had a serious injury, would agree that this raised an interesting question. If you could walk twenty blocks a day every day and then break your leg, when your recovery hits 20% (80% partial), this does not mean you can walk twenty blocks on Monday and nothing the rest of the week. It means you may be able to walk eight blocks every day. The shorter walks every day will help you return to your prior physical status, whereas walking the 20 blocks in one day can impede or reverse your recovery.

Is an injured worker’s return to work any different?

Let us forget for the moment that this could increase the cost to the carrier. But on the other hand, if the injured work is able to return to work, even part time, both the employer and the injured worker gain:

  1. The injured worker has more money. The 1/3 of AWW that is deducted when calculating awards was based on the assumption that 1/3 of wages went for taxes. So it was easy to reduce the award by the 1/3 and make the workers compensation awards tax free. But, other than social security tax, most injured workers, under current tax laws, pay far less than 33% of their wage as taxes: they will net more money by working.
  2. The employee stays in the mental mode of working and is easily able to return full-time. Alternatively, someone who has been out of work for months or years, even if only with a 20% TPD, gets into a mental ‘rut’ and finds it difficult to reenter the work place.
  3. The employer has someone who knows the job and has in the past been a satisfactory employee. And the employer avoids the expense of hiring someone new, with all the costs and risks associated with this hiring someone who turns out to be unqualified. And if the employer had others do overtime to fill the spot, he will save money on overtime. Also, by helping the injured worker return part-time shows that the employer has an interest in the workers, which can only help improve the attitude of all the employees.

When the workers compensation system was first conceived, even through the 1940′, most injuries were to limbs or organs and took time to heal. Now many of the injuries are soft tissue injuries or disease and changes in medical treatment have hastened healing and the subsequent ability for the injured worker to return to the job in a part-time capacity or with restricted duties.

Now before the Board says, “Hey, let’s set up a committee and then hire some outside consultants”, in the spirit of Mickey Rooney and Judy Garland in “Hey, gang, let’s put on a show in the old barn!”, I suggest that they look at the data already in their system.

But that is another story and will follow in my next commentary on this issue.

But the workers compensation community must take a look at the real meaning of ‘temporary partial disability’ and what it means in terms of the injured worker’s ability to return to work, supposedly the goal of the workers compensation system. It is not, contrary to the current operating philosophy of the Board, to minimize the processing of claims and expediting the closing of a case.

Are 5,000+ §32’s Null & Void?

May 19, 2011: As a result of the May 5, 2011 New York State Appellate Court, Third Department’s decision in The Matter of Nickel v Pilgrim Psychiatric, the question is posed as to whether the thousands of §32 settlement agreements approved as administrative decisions between 2000 and April 2004 by the NYS Workers Compensation Board are null and void. It was in The Matter of Hart v Pageprint/Dekalb, 6 AD3d 947 , 948-949 [2004] when the 3rd Dept. ruled that the Board’s procedural changes to allow approval of §32’s without a formal hearing were invalid because they conflicted with the provisions of 12 NYCRR 300.36 and the waiver agreement in that case was never properly approved. The §32 agreement which was the subject of the Matter of Nickel v Pilgrim Psychiatric also was deemed null and void. A few ramifications come to mind, when the Pilgrim case goes back to a Law Judge:

  • If the WCLJ sets aside the §32, is compensation due from the date the §32 was improperly approved through the date it is formally approved at a hearing, 7-9 years later? And what if the §32 is not approved? This would be interesting as most §32 settlements are for about 5 years worth of compensation.
  • Do late payment penalties apply to any compensation newly awarded in excess of what was in the §32?
  • Does this mean that every claimant whose §32 was approved during this time period by an administrative decision should request a reopening on the ground that their §32 did not legally close the case and they “have issues”?
  • And if so, does this mean that they, too, will qualify for back awards, reimbursement for medical expenses over and above those specifically delineated in the null and void §32, usually delineated as the Medicare set-aside?
  • Does this open an entire new problem for the carriers whereby the claimants ask the carriers for another $5K or so not to request a reopening? And if so, how would this issue be closed, since if these §32’s are null and void, the cases can be reopened. Would there have to be a new §32, incorporating the improperly authorized one, and the new one with the $5K (or whatever) “shut up” fee included?

You may argue that these are specious arguments. But when some of the Commissioners raised the issue of “what if” when we were told in 2000 about the Board’s plan to go to administrative decisions, we were told to do our jobs and sign our MODs (not one ever said ‘read’). But a little free thinking is what solves problems. Administrative decisions are an example of what happens when the goal of the Board is to expedite and/or eliminate hearings. The new medical guidelines with automatic treatment cut-off dates are another example as are the Board’s attempt to replace human reporters with electronic records (run by human technicians). In Pageprint, the case was brought up on appeal by a carrier who objected to the 20% late payment penalty; the claimant was otherwise satisfied with the §32. In Pilgrim, it is the claimant who is dissatisfied with the §32. Perhaps some of the answers to my above concerns will be addressed by a Law Judge. Then again, there may be more appeals once the Law Judge makes his decision.[15126-4039]

Court’s Reversal Again Shows Board’s Weaknesses

May 5, 2011: The NYS Appellate Court, Third Department’s reversal today of a Board panel decision in the Matter of Nickel v Pilgrim Psychiatric raises the troubling question of who at the Board is looking at the legal issues in cases that are submitted for Board panel review, Full Board Review, and Appellate Court review. In the Matter of Nickel v Pilgrim Psychiatric, the Appellate Court reversed the Board panel’s decision not to reopen a §32 settlement. While the issue discussed at length in the March 2010 decision issued by the Board panel was legally correct, a second issue was either overseen or ignored. In its opening analysis of the appeal, the Board panel decision noted that the claimant contended that the §32 settlement “was approved in 2001 without a hearing, and that the agreement it is fraught with mistakes and conflicts.” The Board, with legal precedent on its side, stated that the settlement “was approved, and that no claim is being made that the claimant was not paid the amount specified in the agreement. There is no evidence in this case to suggest that the agreement is unfair, unconscionable, or improper as a matter of law or the result of an intentional misrepresentation of material fact.” But they never addressed the issue of the fact that there was no hearing on the settlement. After having been hammered in 2004 in the Matter of Hart v. Pageprint/Dekalb, 6 A.D.3d 947; 775 N.Y.S.2d 195; 2004 N.Y. App. Div. LEXIS 4784, April 22, 2004, one would think that staff attorneys would be cognizant and thus watchful for appeals on §32 settlemenst done in the period covered by Pageprint. In that decision the Appellate Court ruled that the Board’s approval of the [§32] agreement without a hearing, pursuant to its “New §32 Settlement Agreement Procedures,“. . . “invalid because they conflict with the provisions of 12 NYCRR 300.36 and the waiver agreement was never properly approved.” Yet, in this decision, the Board made a quick decision to end the legal process (and the rights of the claimant as well) to make a fast decision and close a case. So how is it that this issue was missed not only by the legal staff who drafted the original Board panel decision but the staff in the Office of General Counsel (OGC) who are aware of all appeals of Board panel decisions that go erectly to the Appellate Court and bypass Full Board Review (FBR). It was obvious that in the appeal to the Appellate Court that the issue was the ‘non-hearing’ and thus the ‘non-legal’ approval of the agreement. The OGC should have taken note of same, authorized a Full Board Review, and, while not reversing the Board panel on the issue determined in its original decision, authorized a reopening of the case. I was always under the impression it was the responsibility of an attorney (and commissioner) not just the read the words in a document presented to them for review, but to pay attention to the words, their intent, both implied and inferred. But that takes time and it is obvious that the handling of this case is representative of the Board’s operating philosophy:

High numbers prove high efficiency, exceptions don’t count, i.e., the operation was a success even if the patient died.

Just as WCL §25-a cases have (one hopes) a three-year and a seven-year flag attached to appeals, §32 settlement appeals should also have one for the period cover by Pageprint. I had written many times in this website that one way to insure that the Board sees (since they often do not read) the issues being raised is to number them, indented in the appeal letter. And while the Board may still dismiss them, the odds are quite high that they will actually take note of and then address all the issues raised. As a final note: My experience as a commissioner when claimants appeared before me for a §32 settlement who were told that child support was to be deducted from their payment, when faced with the prospect of otherwise having their settlement rejected, always agreed to same. However, unlike many of my colleagues who said I was wasting time, I also made it a practice to give the claimant the NET AMOUNT of the check they would get, after legal fees and liens. Yes, this would add a minute or two to the hearing, but I was under the impression that this avoided any misunderstandings which could have resulted in a mess such as occurred in the Matter of Nickel v Pilgrim Psychiatric.[15124-4038]

 

The 100th Anniversary of the Triangle Shirtwaist Fire

February 24, 2011: One month from tomorrow, 100 years ago, on March 25, 1911, the life of injured workers in the State of New York was changed forever. The day before, March 24, 1911, saw the demise of the first New York “Workers Compensation” Law (actually the Labor Law), followed the very next day by the worst industrial accident in New York, until September 11, 2001, the Triangle Shirtwaist Fire. Because of the large influx of immigrants to the United States in the last three decades of the 19th century, many of whom settled in the New York City area, labor was plentiful and cheap, and perhaps for those reasons, exploited. Statutes to protect the safety of the working class existed in New York State but compared to the 21st century, protections were few and far between. One statute which did exist was Section 219-d of the New York Labor Law. The Law mandated compulsory coverage by employers of employees engaged in eight “dangerous” employments, and encourage voluntary coverage by all employers. Few employers elected voluntary coverage. In October 1910, Earl Ives was injured in the course of his employment for South Buffalo Railway Co. Mr. Ives was engaged in a dangerous employment. Mr. Ives applied for benefits in the manner provided for by Statute. He was required to apply to the employer and if the employer did not pay the benefits he could, and did, sue to compel payment based upon a statutory cause of action. He prevailed in a trial at Special Term, and judgment entered in his favor which was affirmed by the Appellate Division. The employer appealed. In a lengthy opinion the Court of Appeals held the statute to be unconstitutional as violative of both the State and Federal Constitutions. The essential basis of the holding was that liability had been imposed upon the employer in the absence of fault, and that the employer had been denied the right of trial by a jury which would decide the extent of damage caused by the employer and make an award therefor. The opinion was handed down on Friday, March 24, 1911. Saturday, March 25 was the first weekend of the spring of 1911, and many people were enjoying the spring weather in New York City. Persons walking in Washington Square, near New York University School of Law, were attracted by the sound of sirens and traffic to the Asch Building, the upper floors of which were occupied by the Triangle Shirtwaist Company. The Asch Building was adjacent to the law school. The upper three stories of the Asch Building were engulfed in flames. The fire only lasted a quarter of an hour, but in that time 146 people, 123 of them young girls, and more than half of them teenagers. The Triangle Shirtwaist Company fire was the worst industrial catastrophe in New York history until September 11, 2001. One witness to the fire was Frances Perkins, (Note 1) a labor activist who had been in the area to collect wages for “bindle girls” who worked in sweat shops but were traditionally not paid at the end of the week. Witnesses to the fire saw the Triangle employees try to escape from the fire by leaping from upper story windows because doors were locked and stairways were too narrow; they may have seen an overloaded fire escape pull way from the building, precipitating employees to the street below; they undoubtedly saw their crushed remains lining the sidewalk. Perkins and other labor activists joined forces with politicians from both political parties who were anxious to garner support for their parties from the labor pool in New York in the aftermath of the fire. The State Constitution was speedily amended and a new Workmen’s Compensation Law, as well as many other new statutes, were passed for the protection of labor. The new WCL was subsequently held to be not violative of the New York State or United States Constitution. A special thanks for Leonard Schnitzer for suggesting I post this important date and for putting together all the relevant information you have just read.[4037] Note 1: Later in 1926 Governor Al Smith appointed Ms. Perkins chairman of the Industrial Board (and so, ex officio, one of the Commissioners of the State Insurance Fund (Sec 77, WCL)), continued in that post by Governor Franklin Roosevelt and subsequently nominated by Roosevelt, when president, to be Secretary of Labor. She was the first woman ever to serve as a Cabinet member and she served longer than any other Secretary of Labor.[12114-4037]

Awards for Minors: Who gets paid?

February 24, 2011: The matter of the attorney who ‘mishandled’ an award made under a stipulated settlement generated a great many comments, some of which are noted in the following. To summarize, it seems that the claimant was illegally employed when he was injured resulting in an award for both compensation and a penalty under WCL §14-a, both of which were resolved with a stipulated settlement. Although the Court opinion is not clear on this and there was no Board Memorandum of Decision on the settlement, my assumption is that the stipulated settlements were done under WCL §32-a. The carrier paid the claimant directly but the funds from the employer, to be paid out over a fixed period of time, were made payable to the attorney for the claimant. The attorney, according to her own testimony, commingled the money with her administrative accounts and used that money for her own purposes, lying to the claimant about the status of payment from the employer. (In due course, full restitution was made by the attorney to the claimant.) The question I raised is “Why was the payments allowed to be made to the attorney and not the claimant?” Excluding minors and those with a guardian, WCL requires that payment be made directly to the claimant, the only exception being past due child support per WCL §33. NYCRR 300.32 references that payments be made to a “person legally responsible.” And although I have never conducted a hearing with a minor (neither oral argument nor a §32 settlement back when the commissioner worked did them), I do not know if a minor can conduct their case without someone with legal responsibility in tow, such as a parent or guardian. I am not aware of the fact that an attorney can act as in loco parentis without some specific underlying authorization from a civil court, even at a WC proceedings. It was pointed out that if the claimant is a minor, the Board requires a parent or guardian at the hearing. But hypothetically, the claimant could have been a minor on the date of the accident and turned 18 before the award is made. Once 18 he can act for himself. Also, I have been told that Section 11 court settlements are usually paid directly to the attorney. I actually don’t know for sure if a claimant can stipulate that §14-a hearing awards be paid in trust to the attorney but I can see how the §14-a employer would prefer that. By paying the attorney, there would be no question that the payments were made. But, if payment were made directly to the claimant by the employer, rest assured that if payment were not forthcoming on a timely basis, that claimant would be in contact with the Board or their attorney just as if a regular award for compensation was not paid timely. And for the employer, a copy of the deposited check is proof that payment had been received, something that can be also supported by registered mail, UPS, or Federal Express. Also, for claimant attorneys, getting the money and then having to send a check to the claimant is an additional bit of work I am sure most would want to avoid, particular these days when legal fees are decreasing. Perhaps it is time that the Board either issued a new rule or just sent a memo out to the law judges stating that all awards be made payable to the claimant or, in the event of a minor, to the person legally responsible. [12114-4036]