December 31, 2015

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.



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

About The Insider

For those of you who do not already know me, I am Michael T. Berns.

I served as a Commissioner/Board Member of the New York State Workers’ Compensation Board from 1996 to June 2008.

From my first day serving the Board to my last, I frequently researched and wrote my own decisions—usually with the assistance of the Agency’s legal staff but, on occasion, with objections from that very same staff.  Along the way, I also took every opportunity to improve the policies and procedures that guide the way the Board handles cases and makes decisions. Many of these are detailed in my book: Behind The Closed Doors - An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them.

Some of the decisions I authored have been affirmed by both the Appellate Court's 3rd Department and Court of Appeals, and some have redefined case law and revised interpretations of Workers’ Compensation Law.

I designed computer programs for my own use to help me gain a wider perspective of the legal, medical, and other seemingly miscellaneous details of the nearly 40,000 decisions and 5,000 settlements in which I have participated. Some of the programs I designed for my own use were also incorporated into the redesign of the Agency’s data management systems from a voluminous and inefficient paper-file system into what many consider one of the finest paperless systems in any agency in any state government.

Although there were many positive changes in my early years at the Board under the leadership of the Board’s former Chairman Robert Snashall and Vice-Chairman Jeffrey Sweet, since I left the Board in 2008, there has been a change in direction as, once again, decisions languish endlessly and contradictory and poorly written decisions make it impossible for the injured workers and attorney to know how the Board will decide on a controverted issue. As a result there are tens of thousands of unnecessary controversies and contradictory decisions every year which result in delays for injured workers getting their replacement wages and medical care and higher than ever insurance premiums for the companies who are required by law to have workers’ compensation insurance. Since the year I left the Board, New York State Courts have rejected the Board's decisions almost 30% of the time; when I left in 2008 the Court's affirmed the Board 96% of the time.

Over the years I also kept a 'journal' that became a 555-page ‘CaseNotes Handbook’ which contains hundreds of pages of case law, precedents, and recommended legal arguments and indicia tables, among other information. The combination of these ongoing projects created a powerful set of tools to allow me to evaluate the types of cases being presented, the strategies used by both sides, and the role of the Board in achieving the Agency’s mission, which has inspired me to continue my service to New York’s Workers’ Compensation system from outside the Agency.

I can be reached at my e-mail address (TheInsider@InsideWorkersCompNY.com) and am available by phone for consultation (phone contact will be given by email). All communications are strictly confidential.