the 12 years that I served at the Workers Compensation Board, the Board
has undergone major changes, but many more need to be done.
Behind The Closed Doors has been written first to substantiate the need
for and second to explain how to make those changes.
The most obvious change, initiated in 1996 by Chairman Robert Snashall,
was the conversion of the Board’s administrative and judicial
procedures from a paper-based system to a computer-based system.
But, as with all technology, changes bring with it the Good, and the
Bad, and the Ugly. The impact of these changes on the deliberative
nature of the Board has been as profound as it has been on the
increased speed with which cases and decisions were processed. The
responsibilities of the commissioners did change. But the result was
that those who wished to be ‘engaged’ could impact
considerably on decisions and in some cases on the process itself while
some commissioners, better identified as
could better avoid any work at all, letting the
commissioners or the civil servants make all their decisions while they
spend only a few hours a month fulfilling their responsibilities,
including reading their decisions and appearing at public meetings.
Behind the Closed Doors offers the Insider’s look at the
Board’s policies, the reality of what happens, and offers an
extensive number of recommendations that will insure that the Board,
and not just the commissioners, follows two directives:
Delayed is Justice Denied” as well as “Justice
Justice Unequal". This book explains why they are so many obviously
contradictory and confusing decisions and what can be done to resolve
these problems, as well as listing the contributions of over 40 current
and past employees of the Board.
Answering many of the questions that the claimants, employers,
carriers, and the lawyers who practice at the Board have always wanted
to ask, this 250-page book explains how practitioners can get better
results when appearing before the Board in person or on paper. Some of
the chapters are:
- Who Are The Commissioners
- How Commissioners are Selected
- Responsibilities of a Commissioner
- Administrative Review Division (Office
- The ‘Drfating off
- How MoDs Are Done - The Work Queue
- The Good, the Bad and the Ugly
- §32 Settlements
“Behind The Closed Doors” can be
purchased here or from E-Stores, a
division of Amazon.com. Quantity discounts for 5 or more are available
Chapter 19: Make More Commissioner's/s Work
I mean both. Make more work for the commissioners and make the commissioners work more.
It is obvious that some commissioners fulfill their duties, even if those duties are not written in the legislation or anywhere else. And that some commissioners do as little as possible.
There are several recommendations here which reflect work that is supposed to be done by the commissioners and is, in fact, done by some. It is the responsibility of the Vice Chairman [at this time Fran Libous] to insure that everyone completes their assigned duties and that means everyone, not selectively.
[T]here were two other commissioners who not only did not do their work anywhere near timely but on occasion just failed to show up at hearing points and with no notice to anyone. . . . It is the responsibility of the vice chairman to make sure that the commissioners show up for their public events, not just hearings but also the Full Board one Tuesday each month.
Visiting Their District Offices
Each commissioner is assigned to a district office, although there are only a few who ever visit them and only two of us who work in them rather than our homes. . . . But one can easily get the impression that some of these commissioners have the sense that they are far too important to have to take time from their personal schedules to visit an office to pick up confidential files, often so confidential that they are not in CIS. And one has complained that the cost of gasoline (and this is when it was $2.50 a gallon) is too high for them to have to drive to their district office once or twice a month.
Doing §32 Hearings
In the prior chapter, I recommended that the §32 hearing be returned to the commissioners, if not all of the §32's then at least 60% to 70% of them.
Reviewing PMoDs on a Timely Basis
With the current CIS/ECF system and all the data collection available, it is relatively easy to see from the computer who is actually reading cases and who is not.
First of all, there has to be some limit as to how many weeks of the year a commissioner can be 'taken off work queue', that is assigned no cases. WCL §146 defines the commissioners' jobs as full time; in practice this has meant that we get paid for a seven-day week and have neither vacations or sick days. We are supposed to do our work and whatever time is left over can be used for vacation or taking CLE's or whatever. ... Others do not even bother to be taken off. They just don't do their work. This, too, can be measured. All commissioners should be required, unless they have a written explanation as to why they can not do their work, to be in their work queue at least two days a week. ...Any law judge whose 'no closure rate' or examiner who does not process 'x' number of papers a day is called before their supervisor to learn what is the problem. Commissioners should not be exempt from this review process..
Reviewing PMoDs by Reading Them.
Enough has been written as to why it is to the claimants' benefit and the system's benefit that all PMoDs be read. It is also one of the job responsibilities of the commissioners and that alone is sufficient reason for it to be done. And whether or not the due diligence or the fiduciary responsibilities of the commissioners requires them to read these decisions rather than just rubber stamp them. ... And the computer has any number of ways of reporting who is reading and who is not. It is easy to tell who is reading the MoDs.
What Do These Numbers Mean?
The purpose of discussing this data and explaining how it can easily be derived is not to embarrass a commissioner, although that may well be and most likely should be the case. ... To do otherwise allows a few commissioners to become no more than human rubber stamps and is to betray the fiduciary responsibilities given to them when they were appointed. But more importantly this would betray the workers and employers who rely on the commissioners as the last stop to insure fair as well as expeditious rulings.
The commissioners may be appointed and these appointments are done on the basis of patronage but occasionally on quality as well. But when I talk with others about commissioners at other agencies I always use the term 'real' commissioners: at other state agencies, the commissioner is the title of the person usually in charge of the agency. [T]hese 12 individuals have responsibilities and must be held accountable. It is not fair that some do a lot of work and others do as little as possible and, on occasion, demean those who do work.
If it is the goal of the Governor or whomever it is handing out patronage to give someone a job, appoint them district administrator. While some of these [DA's] work hard. But for those who do nothing, their offices are run by very capable district managers (civil service) so that their failure to perform or even be seen is not relevant. But commissioners are seen, or should be. And their decisions and opinions can have life long impact on injured workers and employers, be they large or small.
They must be held accountable, they should be held accountable, and as I have demonstrated and recommended, they can be held accountable.
And while no member of the WCB has ever been removed from office (although I know of one 'kicked' upstairs to a civil court judgeship), WCL §147 does offer an alternative to those for whom the Vice Chairman's badgering or their own self-respect do not create a work ethic or at least the appearance of one: removal with cause.