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

HOME PAGE ALERTS - 2012

These are the contents of the free e-mail ALERTS I send out every Friday after the opinions of the New York State Appellate Division, Third Department are issued on workers comp related issues and on other occasins when their is breaking news.

To receive these e-mail alerts which are sent to the New York State workers' compensation community as well as staff at the New York State Workers Compensation Board, send your full name and email address to TheInsider@InsideWorkersCompNY.Com. Access to this website is free-of-charge and there is no advertising other than for the two books I have written which help offset the cost of running this website:

Workers Compensation Section 32 Settlements: A Treasure or A Trap?
Behind The Closed Doors - An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them.


 

. . .December 27, 2012

Volume 210 Issue 1

. . .

DECISIONS It’s nice to see the Board end the year with two wins, even if one was a dismissal of an appeal and the second was an affirmation per Rivera v North Cent Bronx Hosp issued by the Third on December 13, 2012.

And let us all hope for a healthy and happy new year.

      December 20, 2012                                                                                     Volume 209 Issue 1   . . .

If you can read this, then we have survived the 'end of the world' although as an amateur archaeologist specializing in pre-Columbian culture, I am one of those who know that the Mayan calendar only references a new 'calendar count' and not the end of the world. This year has ended with a tough October 30 for many of us. As they say in the Breezy Point (where I have a bungalow) phone alert every day, "One day at a time, we will rebuild." Let's hope our leaders (?!) in Washington give us that chance and don’t push us off the cliff, wihc would make the Mayan prophesy a preference. Happy Holidays.

WCB Wins Two More at the 3rd

DECISIONS The Board wins the right to deny a §24-a licensed representative a renewal of their license. And again the Board is affirmed in denying an injured worker who is collecting a maximum on a PPD an additional sum for an SLU. No new arguments set for the Third or the Court of Appeals.

. . . December 13, 2012                                                                    Volume 208 Issue 1

WCB Wins All Four at the 3rd

DECISIONS The Board continues its winning streak with four affirmances, three favoring claimants and SIF losing in a dispute with One Beacon by its failure to submit its evidence on a timely basis. In a case dealing with WCL §13-a(7), The Board and Court apparently have given claimants the right to go to their own doctor (if an approved WC provider) for tests rather than one selected by the carrier. No new cases have been set for hearings at either the Third or the Court of Appeals.

. . . December 7, 2012

Volume 207 Issue 1

. . .

Two more AFFIRMS for the WCB

DECISIONS The Third Department has affirmed the Board in two cases. One requires the carrier to pay the spouse who was serving as the home care provider for her husband. In the second case, the timeliness of filing a C-250 was based on the date of the Law Judge decision, not the signing of the underlying stipulation. The last case, from the Second Department, deals with proper notice of a claim. No new case listing at the Third or the Court of Appeals.

. . . November 29, 2012

Volume 206 Issue 1

. . .

Another AFFIRM from the 3rd AD

DECISIONS The only decision issued by the Court this week from the 3rd Department in its affirmance of a case appealed by a pro-se claimant on three issues: a new CR medical problem, payment for travel to an approved out-of-state medical provider, and the issue of VWLM. The Third Department has no cases set for oral argument for December. And one "motion to appeal" at the Court of Appeals was denied as was the request for a hearing at the third. Yes, there was no posting last week as there were no decisions issued.

. . . November 21, 2012

Volume 205 Issue 1

. . .

The WCB goes 1-2 from the 3rd; 2 from the 1st

DECISIONS The Third Department issued two cases involving the Board which was affirmed on an employee/employer relationship but reversed on apportionment. The First Department clarified its interpretation of §11 grave injury stating that a grave injury was not defined by the inability to work and issued a ruling on legal fee reimbursement. The Third Department has no cases set for oral argument for December. Yes, there was no posting last week as there were no decisions issued.

November 15, 2012          Volume 204 Issue 1
No postings this week.
. . . November 8, 2012

Volume 203 Issue 1

. . .

This week the WCB goes 5 for 5

DECISIONS This week’s five decisions from the Appellate Court, Third Department run the full gamut of issues, from §114a to §44 to §15(8)(d) and more, all of which affirmed the Board’s decisions. And there are now a total of thirteen cases from the Third Department awaiting decisions and one from the Court of Appeals. Last week there were three decisions from the Third Department including two reversals of the Board. Because of the priority of dealing with Hurricane Sandy and this week's snow storm, I will - hopefully - post those decisions next week. Neither were major issues but one, again, pointed out the Board's inability to follow its own precedents.

         November 1, 2012                                                                                    Volume 202 Issue 1

       No postings this week.
        October 26, 2012                                                                                       Volume 201 Issue 2

3rd AD's One Reversal This Week

DECISIONS : In the only decision issued this week, The Appellate Court reversed the Board in its finding of employer/employee relationship when it determined that the Board that the Board, basically, had its interpretation of the facts backwards.

NEW THIS WEEK: This page now lists, after the Court of Appeals list of pending cases, Motions issued by that court, both approved and denied.

         October 23, 2012                                                                                         Volume 201 Issue 1

New York Daily News:  Fire Fenster

The New York Daily News Columnist Bill Hammond has just called for the firing of the NYS Workers Compensation Board's Executive Director, Jeffry Fenster, a call made for more than a year in this website.

         October 19, 2012                                                                                      Volume  200  Issue 1

NYSIF Quasi-public; NYSIF a Winner

FREE PUBLICITY: Many of you own or manage business or work for various non-for-profit entities which occasionally send out press releases about your organization, personnel changes, reports being issued, cases won, etc. I occasionally come across them in my wandering around the internet but my life would be much easier, and you would get some free publicity, if you were to send them to me. With a link to your website, it will be published FREE OF CHARGE.

NEWSWIRE: NYSIF is in the news, winning one award and giving out one. And while the NYS WCB may not get an 'AA+' rating, the bonds recently issued to settle claims related to the Special Disability Fund have been rated 'AA+' by the Fitch Rating Service.

Of course, the most interesting news item is the report by the WCRI which, while applauding some gains as the result of the 2007 amendments, did not reference any positive results from internal changes at the Board.

DECISIONS: The Appellate Court 3rd Department decided that NYSIF is quasi-private and quasi-public, thus can ask NYS Comptroller to withhold another agency's payment to satisfy NYSIF debt, listed on the DECISIONS page.

           October 12, 2012                                                                                      Volume 199 Issue 1

Not Much New

I would like to tell you that Governor Cuomo has finally announced major changes at the Board by replacing the Chair, Vice-Chair, and Executive Director.

But despite the fact I would like to announce that, I can not as it has not happened. Yet.

However, those in the know have indicated the resignation of Republican DeCarlo as head of NYSIF and the replacement of Governor Cuomo's Director of Appointments is the first step in the Governor making some major changes in his administration,starting with the agencies with which he has yet to deal: Workers Comp and Labor.

For the second week in a row, the Third Department has posted no decisions: no workers comp decisions and no decisions on anything else except one dealing with the discipline of an attorney. But the Third Department did add a number of cases to their hearing schedule as noted below, as did the Court of Appeals.

. . . October 4, 2012

Volume 198 Issue 1

. . .

Four Cases from 2nd & 4th
WC Rates in the news

NEWSWIRE This week's news highlights the complaints that the 2007 Amendments are not reducing WC insurance rates as promised. And there is now a continually up-dated service listing the best WC doctors in the system

DECISIONS The Third Department posted a notice that no decisions were being issued this week. Nonetheless, the Second and Forth Departments had some interesting cases which have just been posted. The most interesting, and important, discussed the humanitarian aspect of workers compensation and how the possible conflicting federal and state jurisdiction must be resolved to favor otherwise qualified claimants who are undocumented aliens. Other cases involved ‘horseplay’, proper notice to NYSIF, and relationship between WC, Social Security, and NYS Retirement Fund definitions of disability, all listed on the DECISIONS page,

. . . September 27, 2012

Volume 197 Issue 1

. . .

Lots from the 3rd AD; New WCB Hires(?!)

NEWSWIRE The Board has some new hires and the Times Unions writes about the WCB commissioners and Cuomo's Republican appointees..

DECISIONS Ten decisions have been issued by the Third Department this week, eight of them affirming the Board, one dismissing an appeal as interlocutory, and the last reversing the Board. Ranging from §114-a fraud to SLU, §25-a's, and some §29 cases, this week's list covers a wide range of subjects.

         September 21, 2012                                                                                 Volume 196 Issue 1

New Board POB (Pile of BS) in Binghamton

NEWSWIRE: Once again the Board issues some new directives for mailing documents with the result that there will be two large ignored piles of incoming mail rather than one.

DECISIONS: Other than the list of cases set for oral argument at the Appellate Court, Third Department, there are no new  listing for October for this Court or any for this calendar year at the Court of Appeals.

. . . September 14, 2012

Volume 195 Issue 1

. . .

NYS WC Assessment US’ Highest

NEWSWIRE Once again the Board issues some new directives for mailing documents with the result hat there will be two large ignored piles of incoming mail rather than one.

DECISIONS As of September 20, 2012. no decisions on WC issues have yet to be issued by the Appellate Court, Third Department nor have any new cases been added to their calendar or tot he Court of Appeals. But I have posted all those WC cases being heard in September at the 3rd.

. . . September 8, 2012

Volume 194 Issue 1

. . .

Courts have Scheduled Cases

DECISIONS The Appellate Court, Third Department, has now started to schedule cases for hearings, as noted in the list below. As of today's date there are three undecided civil motions at the Court of Appeals.

. . . August 31, 2012

Volume 193 Issue 1

. . .

Raises for the Commissioners?

COMMENTARY Upon its return to Albany some think, despite all the recent indictments, arrests, and convictions of its members, the state legislature will give itself a salary increase. Historically, this means that commissioners and agency heads also get an increase. But is an increase warranted for this Board? What do you think?

. . . August 16, 2012

Volume 191 Issue 1

. . .

Legal Fees & More on Beloten

COMMENTARY As a follow-up to my commentary last week on Michael Whiteley’s excellent article about the New York State Workers Compensation Board, I have posted my opinion on legal fees. It is my opinion that the Board’s potential interference with legal fees is based in part on their desire to eliminate lawyers from the system. I also explain why the comparison to legal fees in other states is not relevant.

Also there were several readers who came to the defense of Chairman Beloten after they read my article on his issuing a Subject Number dealing with AWW. Two emails have been highlighted with my response to all those who emailed me on this subject.

And both commentaries explain how the solution to ‘excess’ legal fees and my criticism of Beloten all have the same solution: The Board doing its job “for” the workers compensation system, not doing a job ‘on’ the system.

. . . August 9, 2012

Volume 190 Issue 1

. . .

A Stinging Article About the Boards

COMMENTARY This week’s commentary is a review of an article from WorkCompCentral.com calling the Board "big, busy, and battled." I have added more details about some of the issued raised by Michael Whiteley, the article’s author, taken from my perspective as a ‘disgruntled former Board employee, a description offered by the Board itself.

. . . August 2, 2012

Volume 189 Issue 1

. . .

WCB's new updates & memos

NEWSWIRE The new AWW and Beloton changes the WC law, updating a 24-year-old interpretation of 'wages'.

. . . July 26, 2012

Volume 188 Issue 1

. . .

Good for the Goose? Good for the Gander!

NEWSWIRE Since the Board sees fit to announce new proposed regulations for employers, carriers, and claimants, I thought it would be appropriate for me to do the same for the Board. Their 2012 proposed agenda is attached is as mine.

. . . July 19, 2012

Volume 187 Issue 1

. . .

The Gov Mixes in WC Business; Board's secret moves?

NEWSWIRE The Governor's reach into the New York State workers compensation system is demonstrated by the Board's vote to proceed with electronic transcriptions and his reversal of NYCRIB's rate increase. And does the Board have more secrets about its move to Schenectady while more staff leave the WCB.

. . . July 12, 2012

Volume 186 Issue 1

. . .

WCB flees Albany, Prisoners Get Comp, & More

NEWSWIRE By the time you read this, moving trucks will be on their way from 20 Park Street in Albany to the Workers Comp Board's new main offices in Schenectady. Deja Vu all over again as Comptroller DiNapoli sends a second report to the Board regarding the WCB's two-year failure to stop comp payments to incarcerated felons. And "Errors & Omissions" insurance claims thrive because of errors in placing WC insurance.

. . . July 5, 2012

Volume 185 Issue 1

. . .

6 Cases Decided; Libous attacked by Palladino

NEWSWIRE In an open letter/email, Palladino attacks the Republican leaders in the NYS Senate, and then Senator Tom Libous, and even WCB's Vice Chairman Fran Libous.

DECISIONS Although the New York State Appellate Division, Third Department, did not issue any workers comp-related decisions this week, in the past few weeks, there have been a number of cases which should be of interest to the workers comp community, including one which listed the rights of undocumented workers who, after leaving the United States, are then unable to return to pursue their cases in person. Another interesting decision was the rather short opinion of the Court which resulted in a statement we all wish we had the nerve to say or write, all in the defense of the State Insurance Fund.

. . . July 2, 2012

Volume 184 Issue 2

. . .

Commissioner Reappointed; ID Theft at the Board

NEWSWIRE The details on the reappointed commissioner and the theft of injured workers' ID's can be found on the NEWSWIRE page.

. . . June 28, 2012

Volume 184 Issue 1

. . .

11 Cases since I left: 3 Reversals among them

DECISIONS I’m back and, as one person said last year “no bites, no bruises, no breaks”. Lot’s of other stuff but not in this e-mail. Most of the time I was in a field camp in which internet and phone access were very intermittent and the last weeks when in town, the internet cafes did not have AC or even decent connections. That is why today I am posting the 11 Third Department cases that came down since I left to ‘dig’.

There were three reversals and eight affirmances. As usual, the three reversals were not errors of interpretation of case law but representative of the ongoing failure of the Board to follow its own rules and its continuing riding roughshod over claimants (the three cases reversed were all in favor of claimants), carriers, and employers alike. Highlights were a reversal won by a pro-se claimant over the State Insurance Fund; the AG’s office from some reason declined to defend the Board on this one and two more findings of voluntary withdrawal from the work place.

Next week, I will list some cases from the last few weeks from other jurisdictions that impact on workers compensation.

As to why I dig, I have a short memo for those of you who may be interested, to be found at the following link: WHY I DIG

            May 30, June 7, June 14, & June 21                                       Volume2 180, 181, 182, & 183
       Gone Digging in Belize
. . . May 24, 2012

Volume 179 Issue 1

. . .

3 Interesting cases this week & Goin’ Diggin’

DECISIONS While there were no decisions issued this week on workers comp cases involving injured workers, there was one involving a Board employee who fought their termination, one involving whether an undocumented alien can collect unemployment (shades of Ramroop!), and an issue of §11 jurisdiction for an employee killed while sleeping on the employer’s farm. And with the addition of the June cases to be hear at the 3rd, there are now 11 cases awaiting decision from the Third Dept.

GOIN' DIGGIN' For the next four weeks, I will attempt to keep up-to-date on this website while I am working on an archaeological dig, again in western Belize, so you can expect that I will be a bit slow in answering my emails; in some areas there is neither internet nor cell phone access, nor roads.

Heard in the closing seconds of the TV series ‘HOUSE” finale this week, these lyrics by Guy Lombardo’s song “Enjoy Yourself (It's Later Than You Think)” should explain it all:

You work and work for years and years, you're always on the go
You never take a minute off, too busy makin' dough
Someday you say, you'll have your fun, when you're a millionaire
Imagine all the fun you'll have in your old rockin' chair.

Enjoy yourself, it's later than you think
Enjoy yourself, while you're still in the pink
The years go by, as quickly as a wink
Enjoy yourself, enjoy yourself, it's later than you think.

You're gonna take that ocean trip, no matter come what may
You've got your reservations made, but you just can't get away
Next year for sure, you'll see the world, you'll really get around
But how far can you travel when you're six feet underground?

Your heart of hearts, your dream of dreams, your ravishing brunette
....

. . . May 17, 2012

Volume 178 Issue 1

. . .

Board Affirmed in 7 of 8 Cases by 3rd A.D.
"Salvet Soper, Esq"

COMMENTARY To the attorney who wrote me last week in response to my guest writer's COMMENTARY on Schmidt v LaCroix “You have been duped. There is no attorney admitted to practice in New York State by the name of Salvet Soper. The name is bogus and based upon the Salvet case that Miller sought to overrule.” No kidding! I wonder if it took you more time to look the name up than it did for the writer to come up with the pseudonym. To eliminate confusion, I have just put quote marks around that name.

DECISIONS The Board had a good week, being affirmed in 7of 8 decisions issued by the Appellate Court this week. While four of the cases dealt with procedures, two involved the Fund winning on §15(8)(d): one Bard decision affirmed and a second reversed. The Board issued two contrary decisions on identical §15(8)(d) indicia and, as usual, shows confusion on the issue §15(8) reimbursements or perhaps it is just a failure to read the doctors' testimony and reports. The VFBL case was in keeping with prior decisions but the one unique case dealt with §16 survivor benefits and the 2007 Amendments. And both pro-se claimants lose their cases.

. . . May 10, 2012

Volume 177 Issue 1

. . .

A Reversal for the WCB; Guest Commentary on Schmidt

COMMENTARY This week we have guest COMMENTARY from Salvet Soper, Esq. about last week’s Schmidt decision and its relationship to LaCroix. Obviously the legislative intent of pre-200 WCL and the 2007 Amendment are so craftily written that they are open to interpretation: lawyers passing laws requiring lawsuits (and lawyers) to fight over for the supremecy of their interpretation.

DECISIONS The New York State Workers Compensation Board got a another reversal from the NYS Appellate Court, Third Department, this time “given the lack of reliable medical evidence” to support the Board’s decision. As I note in my EDITOR’S NOTE, this case exemplifies how the Board fudge’s statistics to make itself look good.

. . . May 3, 2012

Volume 176 Issue 1

. . .

A 2nd Court of Appeals affirmed the Board, reversing the 3rd; two from 3rd A.D. affirm Board

DECISIONS In addition to Zamora, The Court of Appeals affirmed the Board and reversed the Appellate Court in the Matter of Schmidt v Falls Dodge by agreeing that as long as a claimant is receiving an ongoing award at the maximum amount allowed, that claimant can NOT collect an SLU. In addition, there were two other decisions issued today by the Appellate Court, both of which dealt with average weekly wage and both of which affirmed the Boards’ decisions.

. . . . May 1, 2012

Volume 175 Issue 2

. . .

Court of Appeals decides Zamora against Claimant

DECISIONS Earlier today the Court of Appeals issued its long-awaited decision in Zamora on the issue of what constitutes voluntary withdrawal from the labor market. In a 4 to 3 split decision, the Court of Appeals reversed the Appellate Court, thus affirming the original Board decision, finding that the Board is not required to make the inference that physical limitations caused by her established workers compensation-related injury are the cause of her post-accident wage losses.

. . . . April 26, 2012

Volume 175 Issue 1

. . .

Is the ‘Fix’ in on ATF cases?;WCB loses at the 3rd, again

COMMENTARY In an ATF case, brought to my attention by Christopher Richmond, Esq., I raise a question as to how, among other points, it is that a carrier’s appeal of a Law Judge decision to make the ATF deposit gets a favorable Board panel decision in only five weeks, despite failing to give a legitimate reason for the appeal, other than “I don’t like the ALJ decision - please re-do.” But injured workers whose payments have stopped wait nearly a year for a decision. Perhaps Hamlet’s Marcellus is correct: “Something is rotten ...”

DECISIONS The New York State Workers Compensation Board gets a another reversal from the NYS Appellate Court, Third Department, the eighth time this year the Court has rejected the Board’s opinion, this time finding for the claimant in a §28 time-bar. In the second case, the Court issued a mixed ruling on a legal malpractice claim pertaining to LL §240 that was both a successful WCB and personal injury claim.

. . . . April 19, 2012

Volume 174 Issue 1

. . .

Two Non-WCB cases: quite interesting

DECISIONS The New York State Workers Compensation Board was not a party of interest in the one case decided by the Appellate Court this week, which involved a claimant whose claim for the amputation of his lower arm was accepted by the Board could not then sue his employer, their parent company, or the manufacturer of the equipment. The one case just accepted by the Court of Appeals considers whether an Alford plea in a fraud case in criminal court warrants an automatic finding of §114-a(1) at the Board. In this week’s NEWSWIRE I post a case in which an employee, injured while having sex “out of and in the course of employment” received workers comp.

NEWSWIRE In this week’s NEWSWIRE I post a case in which an employee, injured while having sex “out of and in the course of employment” received workers comp.

. . . . April 12, 2012

Volume 173 Issue 1

. . .

WCB 2 for 3; new Chief Justice at 3rd AD, & More

DECISIONS Although several new cases have been added to the April hearing calendar for the Third Department and its new Chief Justice (see below), the three rulings today were relatively insignificant, except of course to the parties involved in the cases: one reversal, one dismissal and one affirmance. But then again the reversal was par for the course for the Board as the Court stated that the Board’s decision was based on a report containing “inherent contradictions”.

NEWSWIRE Governor Cuomo appoints the new Chief Justice for the Appellate Court, Third Department and I list her 2011 opinions. Also $200 Million has been found in the State’s budget to help GSIT’s and apparently comes with new oversight demands on the Board.

. . . . April 5, 2012

Volume 172 Issue 1

. . .

3rd Dept Affirms Board's decision, 1st & 2nd issue two decisions

DECISIONS This week the Board was a party of interest in only one case and the attorney representing the employer received an affirmance, prevailing against the Special Fund. In the other two workers comp-related cases, NYSIF at the 2nd and New York City at the 1st, both were winners, both cases dealing with jurisdiction and the two Appellate Courts reversing lower court decisions.

. . . . March 29, 2012

Volume 171 Issue 1

. . .

My New Book on §32's and Court of Appeals decides

I am pleased to announce the availability of my new book — Workers' Compensation Section 32 Settlements: A Treasure or A Trap? — a 158-page guide for injured workers and their families answering hundreds of question they have about accepting or rejecting a §32 and learning what is 'fair'. Details on on the §32 Book Page.

DECISIONS The Court of Appeals, in the Matter of Bissell v Town of Amherst, again settled a dispute on credits and offsets for future medical expenses under §29, after the civil suit has been settled.

. . . . March 22, 2012

Volume 170 Issue 1

. . .

John Sciortino & Another Trust Law Suit

NEWSWIRE I regret to note the passing of John Sciortino this past week, enclosing a brief version of the obituary prepared by his firm. And I list the six new forms announced by the Board and ask why the Board publishes so many forms when they don’t get their own work done, giving an example of this failure on the DECISIONS page.

DECISIONS Although the New York State Workers Compensation Board was affirmed in the two decisions that were issued by the NYS Appellate Court, Third Department today, the most interesting case, which peripherally involves the Board, is a suit by a member of a defunct group trust against the trust administrators and all the trust’s trustees.

. . . . March 15, 2012

Volume 169 Issue 1

. . .

One Affirm and One Excellent Quote

DECISIONS While today's affirmance is rather straight-forward on a simple question - when is a case really closed -, this week it applies to Workers Compensation Law §123 rather than WCL §25-a. But I have also posted some text from a non-workers comp ruling from the Supreme Court - New York County because it takes a rather definitive position on timely filings, something about which I have been referencing with increasing frequency as the current Board seems to feel that "30 days" in §23 is an amorphous term rather than a fixed number. See my footnote in the Matter of Wheeler v Bloomingdale issued and posted March 1, 2012 below. in which the Board panel decided to rescind the Law Judge's decision. The Board Panel determines to exercise its discretion and, in the interests of justice to consider the claimant's application for review and the settlement transcript.

. . . . March 8, 2012

Volume 168 Issue 1

. . .

1 Affirm; Cappellino Part II; Updated Comm Bios

DECISIONS In what is becoming a frequent observation by the Appellate Court of the Board's rulings, the Court, in reversing the Board on a §25-a case, noted that "It is well settled that a decision of an administrative agency which neither adheres to its own prior precedent nor indicates its reasons for reaching a different result on essentially the same facts is arbitrary and capricious." I remember many years ago at the unofficial pre-board meeting, the afternoon before the formal "dog and pony show" Full Board meeting, that the then General Counsel berated me for citing prior cases in my arguments on a Full Board Review case before the Commissioners, stating that "each case stands on its own and you can not use facts from another case to argue in this one." Seems like the message has gotten through: "The hell with precedent - let's decide what feels good." Of course, that does not make sense - but do you have a better explanation?

NEWSWIRE The Directors of the Triangle Shirtwaist Factory Fire Memorial announce this year's annual memorial dinner: March 22. A report indicates that assessments to cover the Workers Compensation Board's budget are the highest in the country while a second report shows that a lot of that money goes for high salaries: the $100K+ Club. And the Buffalo News essentially calls the New York State Insurance Fund a "bully".

. . . . March 1, 2012

Volume 167 Issue 1

. . .

1 Affirm; Cappellino Part II; Updated Comm Bios

DECISIONS In the one decision issued by the Appellate Court this week, the Workers Compensation Board was affirmed in the matter of a §29(4) lien and its effect on the §15(8)(d) reimbursement sought by the carrier. Bottom line was that some of the reimbursement was granted but a part was denied.

COMMENTARY I received another interesting comment in the Matter of Cappelline v Baumann & Sons Bus, and added to it an additional COMMENTARY on the issue of the Board's amorphous, capricious, and arbitrary 'interests of justice' to justify its decisions. In an earlier decision in today's Appellate Court case, Wheeler v Bloomingdales, the Board after acknowledged that the application for review was defective but to accept it anyway and then to rescind the Law Judge's carefully reasoned decision.

COMMISSIONER BIOS After being on the Board for nearly a year, Commissioner Lobban's official biography is now on line. And I have added to Commissioner Paprocki's bio that her brother Tom O'Mara is now a State Senator (R-C) possibly giving her the same 'juice' enjoyed by Vice Chair Libous whose husband is Senator Tom Libous (R-C-I).

. . . . February 23, 2012

Volume 166 Issue 1

. . .

1 Affirm: Cappellino Part II; Updated Comm Bios

DECISIONS In its first workers comp-related decision since February 9, the Appellate Court affirmed the Board's decision, a decision in which the Board was critical of the carrier's attorney's method of defense, while not commenting, in its reversal of the Law Judge's decision, on the Law Judge who accepted that defense.

COMMENTARY I received an interesting comment regarding the decision by the Court of Appeals in the Matter of Cappellino v Baumann Bus to the effect that the Court of Appeals was wrong. As I note in my COMMENTARY this week, the answer to that question depending on the purpose of workers comp: justice or speed.

. . . . February 16, 2012

Volume 165 Issue 1

. . .

Board is moving; Virtual offices, More on GSIT's

COMMENTARY Last week's COMMENTARY on Assessments on GSIT's resulted in some interesting comments as to why the amount of the projected reserve funds may well be overestimated.

NEWSWIRE The Board is not, oh yes it is, moving from Park Street in Albany; NJ is considering allowing virtual offices (great for commissioners who do 'virtual' work); Wrynn resigns, and the Board's two-year delay in issuing some revisions on rates are revised a week later. And you wonder why MOD's are taking so long!

DECISIONS None this week but the oral arguments on Zamora have been delayed.

. . . . February 9, 2012

Volume 164 Issue 1

. . .

2011 Review of Appellate Court Decisions

COMMENTARY Earlier this week I asked for the names of attorneys who could help GSIT trust members being sued by the WCB. The feedback I got back is perhaps the clearest answer why individual trust members can not get their cases resolved, although there is light at the end of the tunnel, hopefully Diogenes and not a train!

DECISIONS Although the Board has prevailed in two cases at the Appellate Division, Third Department, this week the Board as well as the Third Department have been reversed on a case that has seen the Board issue five related decisions while trying to get to the correct answer. As a result of this reversal, the claimant has another opportunity to prevail at the Board.

. . . . February 6, 2012

Volume 163 Issue 2

. . .

Help Needed on GSIT's

Recently I have received a number of phone calls and e-mails from representatives of firms who were at one time members of the troubled group trusts who now find themselves being sued by the Worker's Compensation Board for retroactive premiums sometimes almost equal to these companies annual revenues.

Some have attempted to contact the Board for the purposes of negotiating or at least discussing some of the problems but have met with either a lack of response or a demand for payment in full without any interest by the Board in discussing the possibility that there may have been an error in calculations. Also some are considering pursuing legal action against the Board for its alleged failure to audit or in any way supervise these trusts until after it was brought to the Board's attention by a third party that there was a substantial amount of fraud taking place.

Also, perhaps to protect itself, the Board has also removed from its website a number of documents prepared by the Board or its outside advisers regarding these self-insured trusts.

As a result I have in been asked if I could find any attorneys who have experience either in negotiating with the Board on its demands for retroactive premiums or taking legal action against the Board for its failure to perform its fiduciary responsibility. Some firms wish to take action individually and other would consider some sort of class action. But they all need counsel experienced with this issue.

Let me know if you are interested or know of any firms interested in being listed on a reference list I can send to those seeking legal assistance. This list will not be posted to the website but available only on request by qualified parties of interest.

Finally, if there is an interest. I would be happy to set up a website that could act as a clearinghouse for information for all the firms whose financial viability has been threatened by the Board's failure to meet its obligations as well as listing any and all documents and press releases relating to this debacle.

. . . . February 3, 2012

Volume 163 Issue 1

. . .

2011 Review of Appellate Court Decisions

The fact that 2011 saw the worst performance by the NYS Workers Compensation Board at the New York State Appellate Court, Third Department only summarizes the obvious. This week I have gone into detail in my COMMENTARY as to the types of issues heard by the Court and how the Board fared in the 45 issues, in four categories, covered this year. The initial review shows that both claimants and carriers fared equally on review by the Court, with both losing more than half their appeals. What makes this increasing poor performance by the Board a real tragedy is the impact it has on injured workers and their families as well as their employers who rightfully feel their problems are being treated with disdain by the Board and thus are distrustful and angry at the Board. Unfortunately, it is the the examiners and clerical staff and law judges who face these people regularly while the commissioners and the executive hide in their ivy towers.

There were no workers comp-related decisions issued by the Courts this week.

. . . . January 26, 2012

Volume 162 Issue 1

. . .

This week the Board wins one!

DECISIONS: For the 21st time since the fall of 2009, in the one decision issued by this week by the NYS Appellate Court, Third Department, the Court has affirmed the Board's denial of a request fro reconsideration or Full Board review, this time denying the review to a carrier.

. . . . January 19, 2012

Volume 161 Issue 1

. . .

Board reversed 3rd week in a row!
Anyone in charge?

Three weeks into the year and the Board's legal review process seems to be going in a rather predictable direction this year. With a number of reversals, not on the interpretation of the law but for the Board's continual failure to explain its reasoning or justify contradictory decisions, one has to question who was in charge of this process in late 2009 through late 2010 when these decisions were being issued? And this runs from the Chair to the commissioners to those in the Administrative Review Division.

And if you have yet looked, now is the time to read about THE TOP ATTORNEYS FOR 2011 - Sean Nicolette and Robert Golan.

DECISIONS: Another bad week for the Board, although it won two affirmances, the Board was again castigated by the Appellate Court, Third Department for its failure to either follow the relevant precedent established by its prior decision or provide an explanation for its failure to do so

. . . . January 12, 2012

Volume 160 Issue 1

. . .

2011's BEST ATTORNEYS
Board loses two including an ATF case

Well, like all of us who start off the year with great New Year's's resolutions and then break them, the Board has ended its 11 for 12, one-week winning streak. But more importantly, today I name THE TOP ATTORNEYS FOR 2011 - Sean Nicolette and Robert Golan - as well as listing all those attorneys who prevailed in arguments before the Appellate Court and Court of Appeals, along with their cases.

DECISIONS: This week the Board was handed two reversals. In one the Court decided for a claimant improperly accused of §114-a fraud. In the second case, the Board suffered it first reversal on an ATF case "because the Board did not provide any rationale for exercising its discretion."

COMMISSIONER BIOS: These have some updates including David Dudley and Loren Lobban. Lobban's bio on the Board's website is blank; my bio of him is not.

. . . . January 6, 2012

Volume 159 Issue 1

. . .

Board wins 11 of 12 cases at the 3rd - a Propitious start?

Well, it is nice to see the Board start off with a bang but there are some questions in its winning 11 of 12 decisions at the Third Department.

DECISIONS: This week's decisions for the Appellate Court covered a wide variety of topics, ranging from §25-a (The Board won one!) to 'spaghetti runs', volley ball injuries, and occupational disease. The only interesting case, from a purely procedural perspective, is Richman v NYS Unified Court. The Board was rather emphatic in denying an appeal, clearly justifying its decision. Then, a few months later, after a FBR, it reversed itself but this time gave no reasons to explain why its reasoned decision of denial as few months earlier was in error. And, it is interesting to note how fast this case went to a FBR and got a response. As to whether or not WCL §21 was properly applied (the Court gives the Board a great deal of leeway on this issue) is another matter.

COMMISSIONER BIOS: These have some updates including David Dudley and Loren Lobban. Lobban's bio on the Board's website is blank; mine is not.