The Commissioners Work
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FEES ON MEDICAL EXPENSES
September 28, 2009 : My reading of a case in Michigan (Matter of Petersen v. Magna Corporation, SC Docket Nos. 136542 and 136543) in which their top court found, in a 4-3 decision, that claimant attorneys should receive fees on received medical expenses brings to mind two different types of cases I have seen on this issue:
- §32’s: Assuming we all agree that a 15% or 10% fee is appropriate, should that fee also be on the amount allocated to the Medicare set-aside?
- Fights over medical treatment only, on which fees are not historically awarded.
WCL and precedent are that legal fees are to be based only on compensation awarded. But I have had, during my 12 years on the Board, a number of instances in which medical expenses and fees became relevant.
FEES FOR ONGOING CASES
On occasion, when a claimant has been awarded ongoing comp or it has stopped, there are no controversies regarding the compensation. But the need for a particular type of treatment or the frequency therein become the cause of controversy between the claimant and the carrier, the claimant’s attorney is called into the controversy to fight for the claimant’s rights. Be it in the form of letters, phone calls, formal hearings, or appeals, the claimant’s attorney incurs expenses and expended time on behalf of the claimant but, historically, is awarded no fee, except the occasional $75 appearance fee.
I remember a case in which a claimant’s spouse, an RN, provided that claimant, who had been classified for a permanent total disability (100% bedridden), with his medical care and then billed the carrier for her services at the rate for which an 3rd party RN would have charged for that 24/7 treatment. Without going into the details, this case involved an staggering amount of work, in part because the wife did not file her claim for the medical charges from several years so not only was the sum of money at dispute quite large, so were all the pages of backup. But since the claimant had already been classified PTD at the maximum rate, none of the work the attorney was doing would have an economic benefit for the claimant but only to the medical provider to insure proper treatment for the claimant. When the file came to me as a member of the panel hearing the appeal, the file must have been a foot thick. I am sure that the claimant attorney spend at least 50 hours or more working on this case. Yet, if he won, there would have been no fee
On the other hand, the carrier attorney does get paid of defending against that same claim
This fee structure obviously puts the claimant at a serious disadvantage.
§32 FEES ON MEDICAL SET-ASIDES
Several years ago, I had a §32 settlement for about $800,000 of which $650,000 ( I am guesstimating at the numbers) was specifically noted in the agreement as a Medicare set-aside to be deposited into an escrow account. The claimant’s attorney sought a fee on the $800,000 but I calculated it on the $150,000 of comp. For to do otherwise, would have netted the claimant, after the $65,000 10% fee on the set-aside, $585,000 to pay for what was expected to be $650,000 in future medical expenses.
On the other hand, many §32’s for permanent partial disability (PPD) are settled for 5½ years as compared to the 5 years of similar settlement under §15-5b Lump Sums; The extra ½ for the §32 is assumed to be for any possible future medical expenses. But since many of these PPD claimants taking §32’s are similar to those taking the §15-5b settlement in that they have not had medical treatment in years and, unless that ½ year is put to an escrow account, the claimant has effectively received extra cash to use for ‘income’.
But since only about 35% or so of the §32 cases I saw were PPD’s, one could not so easily determine how much of the settlement was in lieu of future comp and how much in lieu of future medical. The carrier certainly was not going to give such a breakdown and the claimant’s attorney was interested in maximum dollars regardless of whatever ‘ghost’ allocation was done between medical and compensation.
Thus in most of these §32’s, without the formal escrowed set-aside, it made sense to most of the commissioners to accept a fee based on the gross amount of the settlement. In fact, if the set-aside was not more than 5%-10% or the gross settlement, most of us approved the fee as requested.
It was only on those occasions when he Medicare Set-aside was 20% or more that the fee was based on the ‘net’ compensation moving to the claimant.
Be that as it may, the Medicare Set-aside is subject to negotiations and the claimant attorney does work to get the amount he and the claimant feel is most appropriate. So perhaps some sort of remuneration is appropriate.
I propose the following:
§32s: The fee be set on the net, if there is a formal set-aside into an escrow account. Thus the claimant, if he really feels that the extra money is for medical expenses and should not be subject to a fee, should be wiling to deposit it into the escrow account. But if the claimant feels it is really just extra compensation, let them pay a fee on it.
Open cases: There should be a sliding fee schedule, the higher the medical expenses being disputed, the higher the fee to be paid the claimant’s attorney should they win, a fee to be paid by the carrier over and above the medical expenses and not to be deducted from the claimant’s compensation. This would not be for those cases in which the issue of controversy is solely the degree of disability which may incur additional medical treatment.
The following fee structure, based on total medical expenses being controverted, is made up out of ‘thin air’ and is included here solely for the purpose of starting a discussion.
- under $1,000______No fee
- $1,000 - $4,999____5%
- $5,000 - $9,999____4%
- $10,000 - $24,999__3%
- $25,000 - $49,999__2%
- $50,000 and up ____1%
Paying compensation to the injured worker is only part of the process necessary to allow the injured worker to return to the workplace as a productive member of society. Insuring prompt and appropriate medical care is just as important, as $400 a week in tax-free compensation but waiting eight months for surgery can well result in a PTD rather than temporary partial disability or a small SLU.
Judicial Economy vs Judicial Integrity
May 26, 2009 : In both my book and in my January 2009 posting on the ASK THE INSIDER, I questioned whether WCL §142 was being followed under the Board’s procedure in which Vice Chairman Frances Libous appears to have assumed the sole authority to deny Full Board Reviews (FBRs).
WCL §142 General powers and duties of the workmen’s compensation board reads ….
2. Any review, hearing, rehearing, inquiry or investigation required or authorized to be conducted or made by the workers’ compensation board may be conducted or made by any panel of the board consisting of not less than three members thereof,. . . Notwithstanding any provision in this section to the contrary, a member of the board may be designated by the chair to act individually in the hearing and determination of any claim under this chapter, or conduct any investigation, hearing or inquiry hereunder, or review and rescind any order, decision or determination upon any claim and restore such claim for further trial hearing and evidence or consideration except that such member may not conduct any appellate rehearing of any case or otherwise review any order, decision or determination upon any claim and reverse, modify or affirm such order, decision or determination which by the provisions of this section shall be reheard or reviewed by the board or a panel thereof.
Prior to 2000, all FBRs were signed by three commissioners, usually the same three who signed the original MoD. But in 2000, in order to save time, the then Vice-Chairman Jeffrey Sweet decided that he alone would sign the denials, since these amounted to about 90% to 95% of all the requests. And because there were a few commissioners who regularly did not sign the MoDs or FBRs for weeks at a time, Sweet felt it would be more expeditious if just he signed all the denials.
A few years ago, when Sweet became unofficial acting Chairman after the resignation of Robert Snashall, Sweet continued to do this full schedule of MoDs, FBRs, and hearings while also performing some of the duties of the chairman. I phoned him and offered to help him by having me and a few other commissioners sign the FBRs. He told me that this could not be done as the person signing them had to be an attorney. And he later asked Commissioner Edel Groski, an attorney, to sign them for a while. I got the hint: Sweet was not an attorney but he did not want me or those of my colleagues who wanted to sign them because he was afraid that we would read them and suggest that some should not have been denied but reconsidered. He just wanted these signed in the interest of ‘judicial economy’.
The current Vice-Chairman, Frances Libous, has taken this one step further. And it is this step which adds to the inequitableness of this process.
But first some statistics:
- About 7%-9% of all the Appellate Court decisions are either reversals or rescinds which means that the staff in the Office of General Counsel (OGC) are wrong in about 7-9% of the FBRs that they review. There are some appeals that the OGC does not review for which a motion has been filed at the Appellate Division. But the OGC does have the right to review those motions and do a FBR on its own.
- Occasionally a FBR after discussion by the full board is ultimately denied despite the OGC having recommended a change in the underlying decision. This occurs when commissioners not on the original panel and thus not usually those who approve the request or the FBR do not feel that the OGC’s recommendation, accepted by the original panel, is sufficient to change the original decision.
There are a few occasions in which the FBR itself is denied by all three of the panel members to whom the FBR was submitted.
Essentially what all this means is that the recommendations of the OGC are wrong in a number of cases that see the light of day after a review by a panel of three commissioners and the full board, or the Appellate Division.
So by having just one person sign all the denials, a person who does not always have the time or resources to give these her full attention, there exists the possibility the some of the appeals for FBR warrant not only a review but a change to the underlying decision. Not only that but this process is subject to abuse when the Vice Chairman and the OGC want a panel’s MoD to be reconsidered/changed and the panel does not. These examples illustrate this problem:
- In one case the panel denied the FBR, thus taking the position that the recommendation to change the original MoD was in error. In the case at hand we were not dealing with a black and white legal issue but one with shades of gray. After the three of us denied the FBR, overriding the OGC, we got e-mails arguing with us. We held our position. We then got a phone call from Libous asking, then telling us to accept the FBR. We refused and ultimately told that one of us would be taken off the panel unless we agreed to a FBR.
- In one case the panel did not accept the recommendation of the OGC although we did agree to a FRB. But our concern was that the FBR was not properly written and we rejected it. We were told to not waste time and just sign what we were given. We refused. The FBR was given to another panel. But since this issue had case had come up at a prior monthly meeting, the second panel refused to take the case. Ultimately, my panel’s rewrite had to be accepted. The dispute was over the fact that my panel wanted more than to write “We have changed our mind” but to explain why, so that all who read the revised MoD would understand our thinking and, in the long run, cut down on the number of appeals on this issue.
At the same time, according to the interpretation of the rules and law by this same OGC, a panel does not have the right to ask for a FBR. As I note in the two cases below, it is the civil servants and the allegedly exclusive power of the Vice Chairman who decide if a request for a FBR gets considered. That three appointed commissioners have decided that decision they had just signed needs to be reconsidered appears to be of no value. Two examples:
- As noted in my book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.As noted in my Book, Behind The Closed Doors, after several years of denying claims that colon cancer was consequential to asbestos exposure, my panel got a case that provided new medical research supporting that contention. We asked that all the prior cases in which we had denied the relationship be reopened under § 123. We were told commissioners had no ‘right’ to do so.
- One of my panels (as well as one other) had a new issue come before us, one that was quite interesting and had the potential to set precedent. My panel had mixed feelings and felt that the issue was too important for just three of us to decide. So one of us volunteered to write a dissent so that the losing side (the carrier in this case) could ask for a FBR. (When there is a dissent in a decision and the losing party requests a FBR, it must be done.) But in this case the carrier did not. So we asked to put it down for FBR. We were told commissioners do not have that right.
So what we have is a situation in which the civil servants make the decision as to which cases/issues get FRB and which do not. And they have the full support and power of the Vice Chairman to effectuate their decision , in essence not only overriding what common sense would say is the right of the commissioners to make such decision but appears to contradict the wording in § 142.
It is time that the Court is being asked to consider this issue. That this appeal is made on the issue of § 142 and not as an Article 78 does not preclude other parties concerned about the Rule of Law from participating as amicus curie.
How should the NYS Comp System
deal with undocumented workers?
February 27, 2009 : In the NEWSWIRE page, I reference some talk coming from South Carolina that state legislators there have come up with a truly bad idea. They are proposing to reduce the Workers Compensation benefits for illegal aliens. While the bill would still have the WC system pay for medical costs for injured illegals, it would deny them disability payments.
This certainly flies the face of the intent of workers compensation which is to give not just medical but compensation to those injured on the job.
In New York State WCL§17 and years of Board decisions as well as those from the Appellate Court (see The Matter of Amaoh v Mallah Mgt, 3rd A.D. decided 10/30/18 #504220.) have affirmed the right of undocumented workers to collect both workers compensation and medical benefits if the facts in the case would have warranted those same awards and/or medical care to an American citizen or an alien with a green card.
The very basic concept behind the initial legislation of the workers compensation law back in 1912 was to insure injured workers replacement wages and appropriate medical care without the delay that would be occasioned by a civil suit. It is meant to insure that workers will get proper care. And the requirement that all employers have insurance is a warning that they, too, are participants in the system and be sure and insure that if they have a worker get injured that there will be money to pay that worker.
To in any way allow an employer to segregate against a class of employees by virtue of any specific indicia would allow, if not encourage, them to only hire those workers whose indicia test would mean no coverage. No coverage would mean no losses to calculate into their insurance premiums. Instead, they probably assume that the State and taxpayers would pick up all the costs resulting from the injury, or maybe a call to the INS would result in that injured worker’s native country being stuck with the bills.
What is interesting is that, as for those who feel that the decision in which I participated, Ramroop V Flexocraft Printing, discriminated against an undocumented worker, they are wrong. For the panel determined that the injured worker’s lack of interest in getting a green card was a voluntary withdrawal from the labor market; had he sought a green card the decision would have been different. Just for the record, I have always supported compensation for undocumented workers, if they meet all the other legal criteria. In December 2006 WCB#4000-9028, we found that someone who gave false ID’s to get a job and was injured did not commit fraud under WCL §114a and the injured worker was awarded compensation.
Some said that he should or could have been disqualified because he used someone else’s ID to get his job, this violating §114-a, fraud. But that is not valid either as §114-a requires that the fraudulent misrepresentation be for the purposes of collecting money on a claim. The use of a false ID does not disqualify someone from getting compensation or medical. Contrary to the carrier’s assertion of §114-a fraud, the Board Panel found none but did send it back to get an identity for the claimant so that our records for the claimant would be accurate
The fact that there may have been a misrepresentation in getting the job or opening a bank account are not issues within the jurisdiction of the WCB and thus not grounds for denying a claim.
The concern has been raised that undocumented workers are taking jobs away from Americans and that they, the undocumented workers, are being taken advantage of by unscrupulous employers.
In Chapter 21 ‘Other Recommendation’ in my book, Behind The Closed Doors, I have a recommendation that proposes a penalty but not on the injured work. After all many of them do not speak English and certainly would not know that there exists a law that specifically discriminate against them. But my suggestion one that goes to the heart of the matter: cost advantages to employers who hire (and underpay) illegal workers.
For example, in order to emphasize that the hiring of workers under certain ages are prohibited, WCL §14-a mandates that whatever award of compensation is made, it should be doubled, with the employer and not the carrier responsible for the additional payments to the injured worker.
I recommend we modify WCL §17 ALIENS to include a provision that if an injured worker is found to be an undocumented worker that the employer shall pay a penalty equal to the compensation awarded by the Board. But in this case, the monies should go into either the Board’s general fund, perhaps offsetting the outlays under WCL §151 or into the State’s health budget.
Fees: What’s Fair & What To Do
February 19, 2009 : During each of the presentations I have made over the last few weeks, I have made the following point:
When you are a small child, you grow up dreaming of being a fireman or a policeman or a doctor or a ballerina. No one grows up dreaming to be a lawyer, let alone a lawyer specializing in workers compensation cases.
And while you may be in that business now because of an interest in helping people in need, you are also doing it for the money, the fees you get for providing your services. After all, if you are fighting to help injured workers get paid when they can not work, it only makes sense you should get paid when you work
In the 12 years I was at the WCB, there were occasions when the issue of fees was discussed, not just in terms of a specific case, but in general. At one point shortly after we starting doing §32’s, an influential commissioner expressed a concern that the attorneys were getting too much money in fees and that the board should set a fee schedule. I told him I would look into it. I did some reach in Larsen and found that every state did it differently.
But I told him that it was just not an issue of setting a fee for the settlement as these did not occur in a vacuum. These settlements were the final stage in what could have been a long complex process, a process in which the attorney put in a lot of work, earning little in fees. And for every attorney who did nothing other rather take a call from a carrier months after a classification, accepted a carrier-drafted §32 agreement, and still got 10%, there were at least two who had been fighting for additional medical treatment since the classification and/or fought attempt to reclassify the claimant at a lower rate or maybe fought against voluntary withdrawal of the labor market and earned no additional fees.
What is the History of Fees?
As to why there seemed to be a consensus of a 10% fee on classified cases and 12% to 15% on most of the rest, these numbers seemed to have evolved from the 10% given in Lump Sum Settlements. And there was no one around at the Board who had any idea from where the 10% for Lump Sums was derived.
Poet and philosopher George Santayana wrote “Those who cannot remember the past are condemned to repeat it.” I would like to add, “Those who don’t care to learn from the past will invariably [mess] it up!”
This influential person at the Board to whom I spoke in the late 1990’s as well as others who have in the recent past who raised this issue rarely worked in the private sector. The few who were, were attorneys and were not the managing partner and thus had no idea of what it meant to meet a payroll or understand that in order to pay an attorney, let us say, the $90,800 a year a commissioner gets, you need to bill at probably $250,000 a year ($100 an hour for a 50 hour week) to cover salary PLUS benefits, plus rent, phone and utilities support staff, and much more. And remember, the carrier attorneys also have to make money.
Does the staff at the board thinks that if they get $90,000 a year, the claimants or carrier attorneys should get any less? And don’t forget the overhead!! See the story Why you’re Fired in Opinions and Reports. No better proof of this exists than the list of expenses a sole proprietor is allowed by the WCB to use when calculating his net income for AWW purposes. The Board considers as non-expenses some items without which no business could survive, one of which is advertising. Is it no wonder they do not ‘respect’ your need to collect the fees you request to keep your business going?
Can the Board Set Fees?
As I have noted in some of the court decision ffrom other states which I have cited, attempts to legislative fees doesn’t work. One example I quote in my COURT DECISIONS page is the October 23, 2008 Florida Supreme Court decision in the matter of Murray v. Mariner Health; they ruled that workers’ compensation attorneys are entitled to recover “reasonable fees” for services rather than being limited by the statutory formula to a percentage of benefits. “Reasonable fees” in this context could include payment of hourly charges at a prevailing market rate.
WCL §24 and the supporting NY Codes Rules and Regulation do not allow claimant attorneys to charge by the hour but must base the fee on the results. Yet some law judges, particularly in one downstate district, seem to have taken the position that the fee should be based on results or time spent, which ever is the least, maybe with an addition discount for probably having higher annual income than the judge.
So one would think that the Board is against attorneys making a living. Yet, and this is but one example, under the new Rocket Docket ‘Sock-it-To-Your-Pocket’ program, in order for a carrier to file a C-7, it must be signed off first by the carrier’s attorney. So at least the carriers’ attorneys are guaranteed some sort of income for the foreseeable future.
And carrier had best not assume that they are safe. I can see the WCB sitting down with the Rating Board and the Superintended of Issuance and determining that the cost schedules that the carriers submit to get their insurance rates have too much set aside for overhead and legal fees and will then reduce the rates in order to reduce the amount spent by the carriers to hire legal staff .
How to Protect Yourself
When you present your fee request, in particular with the §32, you need to add into a narrative some information some of us at the Board had requested from the Administrative Review Division when we were asked to review appeals on §32 fees:
- Since you firm has handled the case (particularly if you are not the first attorney), what is the total amount of compensation that has moved to the claimant though the date of the last fee you got.
- How much was that fee?
- Including the §32, what is the total amount of money moving to the claimant, and what is your total fee?
- If you have any sense of the amount of medical that has been paid and it is a lot, toss in how many office visits, physical therapies, or surgeries there have been.
- Since you don’t get fees for appeals and rebuttals, if you have had some since your last fee (and by fees, I do not mean a $75 appearance fee), put that in, too.
Now some claimant firms do have computerized time sheets. If you have a sense of time or can submit it, PUT THIS IN TOO. Do not let the judges or your clients think the only time you work on the case is when you are at a board hearing. Consider the amount of time the judges should be working on their cases when they are not actually presiding over a trial; they should understand the amount of your ‘back office’ time, too.
There was a judge in the metropolitan NY area, recently retired, who routinely cut fees 60-70%. Write your fee request as if you are appealing to a panel of commissioners that judge’s decisions all of which were reversed.
And if you are in effect ‘losing’ money on a case and you should have some that take a lot of time but generate little in terms of awards on which you can base your fee, make it clear that you put in a lot of time but understand that you cannot charge a bigger fee because the money is not there, implying that you can do this because you will get a bigger than normal fee on some other case.
The judges and commissioners are like the population in general: 20% are against you no matter what you say or do, 20% will agree with you no matter what you say or do, and the other 60% is the ‘mushy middle’ for whom a proper presentation can help educate and then persuade them to accept your fee request.
And if you unfortunate enough to get some judge who considers you the ‘bane of their existence’, then appeal it to the Board. I estimate it would take no more than 20, 30, or 40 minutes at most to do the appeal; after all it’s the same information you should have give the law judge. And if you are taking about a $500 fee reduction that comes out to be about $1,000 or more per hour.
Also be sure to explain it to your client. If you can get them to approve it in writing DO SO. If your claimant knows what is the normal fee structure and feels it is fair, virtually every commissioner I knew would approve the fee. And let the claimant know about all the work you do for them when you are not in court or holding their hand, you are doing research, preparing paper work and arguments, following up doctors, etc.
And while these recommendations may be directed mostly to claimant attorneys, for those who are a carrier attorney, two points of order. One day, some of you may switch sides. And, be prepared in the event the Board starts publicly asking if you are worth the carrier’s pay.
Legal Reasoning vs Intuition
January 22, 2009 : Real intuition is nothing more than the instantaneous but unconscious analysis of facts.
I become fully aware of this while serving as a commissioner when I had my ‘eureka’ moment during an oral argument on an employee/independent contractor issue for the driver of a taxi.
It was then that I realized that what we call legal reasoning is nothing more than our ability to unconsciously but instantaneously review a set of indicia relative to the problem at hand, an unconscious indicia table developed from our own experience, in order to make a decision.
As I noted in Chapters 16 and 17 of my book, Behind the Closed Doors, I realized that when an issue such as the taxi driver’s status came before me, I would run through a list of facts before me but also, without realizing it, unconsciously add more facts, in order to make a decision. Unconsciously each of us were already doing this.
But I decided to make up a list of those unconscious facts I considered and make up a formal written list, attaching numeric values to each of these indicia. The result was a list of 20 indicia which had a total number value of 17, for which there were two columns: employee and independent contractor.
Aside from the fact that each of the commissioners, law judges, and staff writers may have assigned a different value to each indicium than did I, as often as not some of the indicia would be omitted in our legal reasoning. Our conscious reasoning never did develop a formal list of indicia such that we never used the same set of indicia, consciously or unconsciously, each time we made a decision.
Let me give another example from my book: How you get dressed every morning.
When you get up in the morning and get dressed for the day, you do not really have an endless choice of combinations of clothes. Unconsciously, you know whether it is a work day or not, and, if it is a work day, if it is winter, summer, spring, or fall, hot, sunny, or raining. You know if you have an important meeting that requires your best business suit or just another day at the office requiring your usual business attire. More than likely, you take off your list of possibilities the outfit you wore the day before. As you can see, you have ‘unconsciously’ reduced the possible set of 5,000 combinations down to 10 or 20.
For every issue with which there is a controversy, there is a set of facts to be considered. An experienced claimant’s attorney has about 80% of them in their unconsciousness but as likely as not, when the time comes to interview a claimant or prepare an argument, they will forget some of them. The carrier’s attorney does the same. But if it was me sitting at the oral argument or reviewing a recommended decision, I would have a printout of what would otherwise have been my own “unconscious” indicia list and therefore not miss any. And invariably during the arguments I would ask about one of them and/or find one of them in the files that the attorneys in front of me and my fellow panels members missed, thus coming up with an unexpected decision.
I must add that I do this not because I am smarter than anyone else (not everyone, just most) but because I do computer programming and programming requires these specifics to work.
It is essential that these indicia list be formally done. Some of the forms used in the Rocket Docket attempt to elicit more details about a case before it comes to a hearing. But these do not deal with specific legal issues per se.
I have already developed such lists for
- ingress/egressspecial errands
- voluntary withdrawal from the labor market.
For reasons never made clear to me, I was told that as a commissioner I could not share these with anyone. It seemed to me that the development of such lists by anyone would result in both sides of a controversy being better prepared and, even more likely, a decision by one side that the other side has more ‘point’s, thus obviating the need to controvert a case.
Chapter 16 “ ‘Consistency versus Speed” – The Solution” gives a very specific set of recommendations. These will go a lot further in cutting down controverted cases and speed up the resolution of cases faster than some of the new forms being developed for the Rocket Docket.
The real question is “Why doesn’t the WCB do this?”