Higher Pay for Commissioners
Or 'per diem'?

August 21, 2012: Several months ago, Governor Cuomo proposed that commissioners on various government boards throughout the State of New York be switched from an annual salary to a per diem wage basis. At the same time, there have been discussions about increasing the salaries of the state legislators at which time the salaries for commissioners and agency heads throughout New York State government are also increased.

I categorically reject both a pay increase for the commissioners at the New York State Workers Compensation Board and a switch to a per diem basis

'Per diem'

How would this work for a commissioner who is allowed to work from home, be it in New York or Florida? Those commissioners with the SF syndrome (‘sign fast’) would simply go on the computer for 10 minutes and, as is their practice, click their approval of one or two proposed memorandums of decision without reading them and then sign off for the day. Do these 10 minutes of 'work' qualify for a per diem payment?

Also, it would not work to pay them on an hourly basis for two reasons. First, one commissioner would sign on to a memorandum of decision and then go on the phone for 15 to 20 minutes, take care of some business on the Internet, and then go back and click his approval of the memorandum of decision without reading it. The computer would show that the folder was open for 40 minutes, implying 40 minutes spent reviewing the decision. Second, their time spent in the office would not be a reliable indicator of work done as some commissioners, like a number of executive level appointees, come into the office at ten o'clock and then disappear for three or four hours of cocktails or shopping, returning to make personal phone calls and then sign out at four o’clock. Those commissioners and executive staff members are/were well-known to their colleagues in the management but, being appointees themselves, were unable to do anything about it.

My own experience in reviewing proposed decisions, comparing notes with a few commissioners who actually worked, disclosed that some decisions could be read and approved in about 4-5 minutes. However, a number, in which there were questions necessitating a review of both the decision and underlying documents, could take 35 to 40 minutes, and some were put aside for further review and discussion with fellow commissioners and the writers. A per diem payment system would not be fair for the 'engaged' commissioners who would need many hours to sign off on 20 decisions while an 'insouciant' commissioner, suffering from the SF Syndrome could do 40-50 in an hour but leave their computer on for the full day.

(A more compete review of the differences between the ‘engaged’ commissioners and the ‘insouciants’ can be found in Chapter 4 “How Commissioners are Selected” in my book Behind The Closed Doors.)

Unlike some other commissioners and board members at other agencies for whom substantial reading requirements are not the main focus and responsibility of their job, for commissioners at the Workers Compensation Board, reading those decisions should be a major and nearly full-time responsibility.

Hence, a per diem pay basis is not appropriate for the commissioners/board members at the New York State Workers Compensation Board.

Pay Raise

While there are a few 'engaged' commissioners who actually work, it now appears that the 'insouciants' rule the Board. It would be a disgrace and certainly a slap in the face of injured workers to pay the commissioners more money than they currently get: $90,800 a year. After all, the injured workers rely on the good faith review of the cases to insure that they get proper wage replacement when they are unable to work. Certainly those making such a decision should be ‘conscientious/conscious’ when making that decision, particularly if they are being paid to do so.

When I first joined the Board approximately 3 months after informing the governor’s office I would like to fill the one vacancy on the Board, I did not realize that there was a long waiting list of people seeking to be commissioners. Many of their patronage bosses were upset not only by my being moved to the top of the list but my being approved so readily. Apparently the job had a reputation of essentially being a ‘minimal work’ position if that is how the appointee wished to treat it. Several years later, I was told of an appointee who met with the board chairman before being offered the position. According to what the chairman told me, that individual indicated that now that he was retired, as a Commissioner, he had no intention of traveling to Albany for the monthly board meetings nor did he have any intention to learn how to use a computer even though all the decisions he was to review were on the computer and all communications were done by e-mail. Fortunately that Chairman was dedicated to the Board’s goals and informed the Governor’s office that that particular proposed appointee was totally unacceptable.

Now, however, it seems that such an attitude is not only acceptable but perhaps even appreciated by the Oligarchic Cabal that runs the Board. “God forbid that a commissioner should delay a case being closed based on their disagreement with a proposed decision written by the civil service attorneys who populate the administrative review division.” The fact that a commissioner could read the proposed decision that was loaded into the computer and write a coherent and legally sustainable objection that same afternoon was considered to be an egregious act of disloyalty slowing down the system whereas taking four weeks to affirm 200 decisions that had piled up in a ‘insouciant’s’ work queue was acceptable for the reason it did not generate any work for the writers or require fellow commissioners to have to ‘review’ a case a second time. Apparently those who suffer from the SF syndrome have a monthly limit as to how often their symptoms can occur. I do remember a complaint made at our monthly pre-board meeting that I was rejecting too many decisions thus making extra work for one of the commissioners who was on my panel

There is also a second reason a raise is not warranted: there are dozens of people throughout the State of New York who want a job as a commissioner at the Board and there are plenty of political deal makers who would love to settle up a favor by placing one of their own on the Board.

Not only is a higher salary not necessary to attract people to this position but I sincerely doubt there is a single person on the Board who would resign if they did not get a salary increase. In fact, even if the salary were cut by $5000, who would resign? And the list of those who want that job would certainly not diminish.

One could easily compare an appointment to the WCB to tenure for a teacher but for a fixed term, not life (unless related to a legislator): a guaranteed $90,800 a year salary plus a great medical plan (±$40 a month) and a non-contributory pension fund (no more 1% contribution required after 10 years) and no possibility of being fired. But unlike teachers, no rubber room either. Some gig!

Summary

Until such time as there is leadership at the Board which is able to get a full day’s work or even four hours a day work out of all the commissioners, an increase in salary for the commissioners (including the Chair and Vice Chair) is inexcusable.[28193-4071]

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Workers Compensation Legal Fees

August 16, 2012: On a subject as complex as, this it is hard to know where to start but a few thoughts come to mind.

The state legislators, the Board staff, and those individuals who do studies expect to get paid for their efforts and I am sure they will argue that higher pay insures better quality staff and better results. Why it is then that these same people question the legal fees earned by workers compensation attorneys remains somewhat of a mystery. And while I tend to look at the work of the Board and other entities as an archaeologist studying tribal civilizations, it seems that what is needed to understand those who challenge workers compensation legal fees is a good psychoanalyst.

The current fee structure in place in the New York State workers compensation system did not pop up suddenly one day. It, like the system itself, has evolved since workers compensation law came into existence nearly 100 years ago. The concept of a no-fault claim was substantially different from the pre-existing legal framework of sue-sue-sue and then take a big piece of the action for winning.

For my first four years at the Board, I asked Board staff and attorneys for both sides how it came into being that claimant attorneys in New York City got an extra $100 when doing a lump sum settlement on top of the normal 10%, whereas in the rest of the state it was only 10%. Someone said that it was because the attorneys had to arrange a doctor visit for the claimant just prior to the hearing but that made no sense for two reasons. First, the doctors were Board employees working in the Board’s offices usually a floor away. Second, claimants upstate also had to see a doctor and their attorneys did not get the $100.

I use this story to make a point. There is probably no one around who can explain how the legal fee process developed in New York State, be it the rate for appearances, getting classifications, the prior lump sum settlements, or the §32 settlements.

But, no one is getting rich as a workers compensation attorney, at least not like attorneys in the corporate or financial world or those handing personal injury cases and other civil litigation. Yes, workers compensation attorneys do reasonably well and that is why there are qualified people in the field, serving both sides.

The fee structure that has been in place for years has enabled quality lawyers to do a reasonably good job representing injured workers and their families and, on occasions, a small employee who finds himself at the mercy of the Board.

After §32's first came into practice, there was some discussion at the Board about setting up a formal fee structure. I did the research and found that there was no set standard anywhere in the U.S., that some states had fee schedules and others did not. But there was one question I could not get answered from these other states without doing a major research project. And when I raised the question at the Board, the answer was, “I am sure we will think of something.” And study of legal fees was dropped. What was my question?

Take two cases. One has been ongoing for about three years and despite the extensive medical treatment and lost time, and lots of litigation and medical depositions and testimony, minimal compensation has been paid and thus virtually no fees were paid to the claimant’s attorney. After three years, a §32 was brought to the table to resolve all open issues and a settlement of $50,000 was offered with a fee of $7,500. The second claim was immediately accepted by the carrier and within about four months the claimant classified as a PPD at $200 a week and appropriate fees were paid. Then, in this second case, a §32 was brought to the table and accepted for $50,000, with a fee of $5,000.¹

I asked: If you use a formula as they do in some states, how would that formula distinguish between the two settlements? Or do you have a formula with 30 or 40 factors built into it? And who decides which factors are to be used and their relative values in the formula?

In a manner of speaking, it is too late to put the genie back into the bottle. Besides, the informal fee structure at the Board developed over 98 years has, until just recently, resulted in a system which has served the injured workers quite well.

The current attempts by the Board to cut fees and reduce the number of hearings, again cutting fees, does no more than put the claimants’ attorneys at a financial disadvantage, limiting their ability to attract, let alone keep, qualified legal staff and to meet the constantly every increasing demand by the Board for increased computerization.

I do know from comments made by some Board Members including some who are still there, and perhaps coincidentally never practiced law or for that matter managed a business, that the lawyers were making too much money and that resolving claims could be much easier if the attorneys were just eliminated.

Perhaps that is the real reason there is such an interest in cutting legal fees in New York.

But it has been my opinion for years, noted on more than one occasion in this website (see links below), that it is the Board’s own failures that lead to the increased litigation and complexity of the cases that the Board claims it wants to reduce.

If it were not for claimants’ attorneys, how would the injured workers be able to seek medical variances, which even now are piling up by the thousands at the Board’s offices? If it were not for the claimants’ attorneys, how would the injured workers know how to navigate the ever increasing steeplechase of forms and paperwork demanded by the Board to ‘speed up’ the process? If it were not for the claimants’ attorneys, who would be there to explain to the injured workers what the Board’s decisions (often contradictory and unclear, so says the Appellate Court) really mean and how best to respond to them?

In my first book, Behind the Closed Doors, in Chapter 8 “Administrative Review Division”, I referenced an issue on which the Board took both sides at one time or another on the issue of a §23(1)(e) penalty of $300. In Horton v Akzo Nobel Salt, et al, 34 A.D.3d 1052,825 N.Y.S.2d 301, 3d Dept. 2006, the Court said, in simple English, “We do not care which way the Board wants to interpret the law, be it six checks is six instances or the one decision is the one instance. We just want the Board to pick an interpretation and use that from now on.”

Prior to the Board’s resolution of the Court’s request, would the Board expect that the attorney for a claimant who was awarded only $300 or that the attorney for a carrier who was penalized $1,800 would not appeal, thus filing more papers (appeals and rebuttals), generating more paperwork for the Board (hearing dates, decisions to be issued, lots of data entry), and generating more hearings?

Let me ask a question of the Commissioners (actually about six of them). You enjoy getting paid without working? Do you think the lawyers would enjoy working without getting paid? Maybe if the Board insisted on consistency and coherence in its decisions, as so often demanded by the Appellate Court, there would be fewer controverted cases and hence less of a need to pay for legal services.

And comparisons to legal fees in other states is inappropriate. Many of them did not have workers compensation systems until many years after the New York State system was in place, thus giving them a basis on which to develop their own laws and procedures. Other states had their own laws in existence prior to their adopting some sort of workers compensation system, in terms of civil litigation for workplace injuries, and these differed from state to state. Even now, some states allow civil suits that in New York are barred by the exclusivity provisions of the Workers Compensation Law. Some states have their equivalent of the New York State Insurance Fund, some allow only private carriers, and some prohibit private carriers. Some states, for example, do not have a Board to review administrative law decisions; those appeals go directly into the state’s civil Court system.

As a result, the entire process of resolving controverted cases varies from state to state. So, how can you compare legal fee structures?

To quote from Michael Whitely’s article, posted below as part of last week's COMMENTARY, “Industry observers say New York’s workers compensation system, launched in 1914, is decaying under layers of statutory and regulatory reforms and needs an overhaul.”

I agree. And it is through these layers of statutes and regulations which necessitate the help of an attorney for the claimant to navigate.

The Board must start, not by attempting to reduce the roll of those who represent the best interests of both injured workers and their employers, but by addressing itself to its own internal disarray, confusing and contradictory decisions, and poorly conceived rules, regulations, and forms.[28191-4070]

¹ §32 fees were usually 15% except in those cases in which the claimant had previously been classified and a ‘classification’ fee paid. These settlements received 10%

Prior COMMENTARIES on legal fee issues were:
11-18-10 Legal Fee Committee: Why? & Why Not!

09-28-09 Fees on Medical Expenses/Poll set

02-19-09 Legal Fees: What's fair, history, can The Board set fees, etc?

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Some Critiques of my Comments
about Beloten

August 16, 2012: After my August 2nd posting in the NEWSWIRE of the story titled “Beloten, Not Legislature, rewrites WCL”, I was asked in several emails what I have against Robert Beloten and some stated that his subject number did not create new law. Two of those emails are reprinted below.

Email #1: Please excuse my ignorance—to what change in the “CL Law” were you referring?

Email #2: I have read and reread your comment on the New Maximum AWW and am unable to discern the point that you are trying to make. You state that Chairman Beloten and not the legislature has rewritten the WCL but I don’t see, by any stretch of the imagination, how you came to that conclusion. As far as I can tell he simply stated or restated what has been a fact in establishing an individual’s AWW for the entire time that I have been part of the WC system (31 years).

And, as to it taking Chairman Beloten 24 years to update this interpretation of the law, come on, he has not been in a position to do so for 24 years. Why didn’t you say it has taken the WCB that long?

From the tenor of your comments about Chairman Beloten I wish to know why you have against him?

As to the question as to why I am attacking Beloten, I did not in that posting nor have I in the past nor do I expect in the future to criticize Robert Beloten … as an individual. But as a Chairman of the New York State Workers Compensation Board, his management is open for review and, where appropriate (and far too often) criticism.

As I wrote in my COMMENTARY "Big, Busy, and Battled" (which foloows this COMMENTARY), there is a lack of true leadership at the Board. Decisions are being issued far too long after the case has been heard or an appeal reviewed. Too many contradictory or poorly written decisions are being issued. And the Board has failed not only to listen to those who have a vested interest in the system, the Board, or more accurately the Oligarchic Cabal that runs it, seems to disregard them with the arrogance of those who feel they are untouchable and beyond reproach.

As to the legal issue, I would like to know what is the point of issuing this subject number, basically reissuing one from 24 years ago. If, as many e-mails wrote, this interpretation has been around for years and it is part of the law, why reissue it? Is it to enable the Board to report that the Board is issuing guidelines to avoid confusion as to how it decides on certain legal issues? If so, the subject has been covered. The Board’s pronouncement from on high is as meaningful as one from a scientist who in 2012 proclaims that he can prove that the world is round.

If it is a different interpretation, then it is a reinterpretation of the law and thus ‘new’ law.

If Chairman Beloten wishes to issue subject numbers as to how the Board determines its position on legal issues, I can think of two issues on which the Board’s own confusion is well documented by the Appellate Court’s rejection in 2012, 2011, and 2010 of the Board’s decision in 19 of 46 cases appealed on §15(8) and §25 issues.

Therefore, I make no apologies for the positions I took in that posting.[28191-4069]

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"Big, Busy, and Battled"

A Reporter's review of the Board

August 6, 2012: In a well searched article¹ about the New York State Worker's Compensation Board, Michael Whiteley, Eastern Bureau Chief for WorkCompCentral.com, summarized his findings by calling the system and the Board "big, busy, and battled". His articles goes into great detail in comparing New York's system with that of other states and is a must read for those interested in understanding New York's failures.

While I agree with 99% of his findings, I feel that the comparisons with California and Florida, while meaningful, did not sufficiently highlight some differences in the system. However, the biggest problem of the Board is a factor referenced throughout his article and is an issue I have raised at least once a month in my website, if not more often:

 Litigiousness 

As Whiteley notes, New York has far more hearings than any other state. However, this in part is due to the appeals process and the history of development of the New York State system. When workers compensation was first passed into law 98 years ago, primary injuries were amputations, broken bones, and death. Another key difference is that, even though there was no retirement system in place 98 years ago, few people lived past their early or mid-60s. Now, the vast majority of injuries are either soft tissue injuries or occupational disease and the overwhelming number of injured workers are not only able to retire in their 50s but also live into their 70s or 80s. Equally important is that there are far more medical procedures available to help injured workers either return to the labor market or, if they cannot, still live a long and meaningful life. This then increased medical expenses to the level where payments for medical expenses almost equal to payments for compensation. Unfortunately the legislation and interpretations of that legislation have not kept pace with changes in the makeup of the population of injured workers. As to whether not the recent reforms answer some of those questions is subject to an ongoing debate and will not be further mentioned in this commentary.

What is important is that the Board issues so many contradictory and confusing decisions with the result that lawyers on both sides have a responsibility to their respective clients to challenge decisions in the hope that they get that monkey or barrel of monkeys who will be issuing a decision.

While it can be argued that issues of further causally related disability and degree of disability are areas with many shades of gray, the Board has, according to many of the reversals issued by the New York State Appellate Court, Third Department, failed to explain the basis for its decisions or has disregarded, overlooked, or ignored facts which either do or possibly could suggest an alternative outcome in the decision.

The increasing number of reversals over the last six years include a number of what could be considered to be simple “black-and-white” legal issues. For example, §25-a lists two primary conditions, both of which are based on the passage of time. Yet the record shows that the Board has been reversed several times by the Appellate Court for its failure to adhere to or, perhaps, understand those time lines.

This failure can be attributed to several parties at the Board:

Chairman Robert Beloten: As chief executive of the state agency, he must adhere to the sign posted by Pres. Harry Truman on his desk, “The buck stops here.” The personnel that follow are under his authority as captain of this ship and it is his responsibility to fix the problem or, “get the hell off the boat!”

Vice Chairman Fran Libous: Libous’ predecessor as vice chairman, Jeffrey Sweet, made sure that the commissioners did their work on a timely basis and that there was some level of consistency in the decision-making process, making allowances for philosophical differences but not for factual or legal indicia. When the rare (back then) reversal from the Appellate Court was discussed, there was dismay not only on the part of the commissioners on the panel but by the Board as a whole: the Board had pride in its work and was upset when its decision was not affirmed. With the exception of perhaps four or five commissioners currently serving at the Board, it appears that the word “pride” is no longer a concern.

Although the Board has always had one or two commissioners who suffered from the SF syndrome (“Sign Fast” without reading syndrome), in the last six or so years, since Sweet retired, the SF syndrome seem to have gotten quite contagious and now effects five or six commissioners.

As vice-chairman, Libous has the responsibility to make sure that decisions are signed on a timely basis and that the commissioners actually read what they sign. It is bad enough that many commissioners did not read what they sign, but it is worse that it takes them weeks to do so. Looking the other way so that no one rocks the boat is not only unfair to both claimants and employers who suffer under current process but this dismissal of responsibility does not avoid the fact that the “waters” are getting rougher and sooner or later the boat is going to flip over. Perhaps Libous and a few of her colleagues are hoping to get off the boat with their goodies (fat pensions) intact before the boat flips over.

Administrative Review Division (ARD): This division, which has undergone many name changes over the years, is equally responsible for the debacle of litigiousness. When I was at the Board in the late 1990's, there was the occasional writer who took a philosophical position contrary to law and the wishes of the commissioners. Concerned commissioners would raise this problem. Then either the writer would be instructed to change their attitude or Board would discuss possible changes in the interpretation of the law. But this is only possible when all the commissioners read decisions. Those suffering from the SF Syndrome give a free pass to the writers to interpret the law and take whatever side they wish in a particular case.

The constant change in leadership of the ARD results in the writers having a free hand, particularly when they know it is likely that their proposed decision will be reviewed by a panel suffering from the SF syndrome.

Law Judges: Some of the law judges suffer from the same attitude as some of the writers in the ARD. When I was at the Board, I read the minutes of a hearing in which a law judge ruled against the claimant but stated, on the record, he thought the law was wrong and that the commissioners’ interpretation of the law was wrong but, if he did not go along with that interpretation, a Board panel would reverse him. Now knowing it is possible to get a Board panel with the SF syndrome, some judges make decisions as they see fit.

The Insider I do want to make it perfectly clear that there are commissioners, writers, and law judges who take pride in their work, are conscientious, and do their best to serve the system’s constituency. Unfortunately, the past few years have seen a number of them (plus a few of the bad ones) flee for the greener pastures (financial as well as respect) of the federal Social Security Administration.

 Closed Cases 

Another factor deals with the statistics for “closed” cases. For those not familiar with the definition of “closed” as used by the Board, in the New York State workers compensation system, the word “closed” simply means that the law judge has decided there are no more open issues. That is one of the reasons that New York State opens more cases than any other state. While statistically it may look good to have a high number of closed cases, closing a case because the claimant is going into surgery after which everyone knows the case will be reopened on the matter of degree of disability is a statistical fiction. Not only does everyone know that the case will be reopened, but, because the case was formally closed, additional paperwork must be filed to warrant a reopening.

Another point in Whiteley’s article deals with data on claims cost assessments:

Total average costs per lost-time claim in New York had reached $73,055 by policy year 2008 and are projected to exceed $100,000 this year, according to the actuarial firm Oliver Wyman, which adjusts claims each year to reflect costs for future years. The New York Compensation Insurance Rating Board (NYCIRB), which only projects costs for nine years, put lost-time claims costs in New York at $68,796 for 2010.

When I came to the Board in 1996 there were approximately 12,000 cases in the inventory of what is now the ARD, with an average age of eight months. Due to the combined efforts of Vice Chairman Sweet and ARD’s director Carl Copps, and the cooperation of the commissioners and writers, the inventory was reduced to 4,000 cases with an average age of three months. Apparently, inventory at the ARD is back up to the 1997 levels, so let’s take a look at some numbers:

8,000 cases x the extra four months x 4.33 weeks/month = 138,666 weeks x $200/week average awards = $27,731,200 in awards paid while waiting for a decision.

Now some of this money may well have been paid anyway so lets deduct 2/3's. That leave $9,000,000.00 in costs due solely to the Board’s failure to process claims on timely basis and another $3 million for would turn out to be unnecessary medical expenses.

Yes this is a relatively minor figure in the overall scheme of things but $12 million here and $12 million there and the next thing you know we have some real money to be saved.

But more important is the psychological and emotional impact that this semi-paralysis and SF syndrome have on injured workers, their families, and their employers. They do not trust the Board nor do they have faith in its decisions thus prompting a level of hostility the first day their claim is placed, hostility which every participant in the legal system knows increases litigiousness and costs. Next, you have the attorneys who are placed between a rock and a hard place when they try and dissuade the claimant or carrier/employer from challenging the claim, creating additional litigiousness. Finally you have the conscientious law judges, writers, commissioners, and support staff who look at a system which at best ignores them but on occasion denigrates them for attempting to do the proper thing.

Perhaps the best example of the Boards failures is the fact that all the spokesman for injured workers, such as Robert Grey, Troy Rosasco, Peter Walsh, and Cathy Stanton, and insurers and business groups all agree that the Board’s services have deteriorated almost as rapidly as has grown the Boards arrogance and dismissal of their concerns.

The Board, i.e., its leadership, should be forced by Governor Andrew Cuomo and the State Assembly to make a decision: either change their attitude and begin to serve their constituency or get out.

Next week I will cover the issue of legal fees and pay raises for the commissioners followed by a commentary on the court reporters and comparisons to other state systems.

As a final note, as a “disgruntled” former employee, to quote the Board's spokesman, I often suspect that my website and commentaries do not raise enough hackles. Perhaps Michael Whiteley’s story, through his much wider (but pay-for-access) online publication WorkCompCentral.com will begin to get the attention of the Governor and key members of the New York State Assembly. The Senate has too many family members on the Board to apparently be concerned.

¹And a thank you to David DePaolo, publisher of WorkCompCentral, for allowing me to reprint the article in its entirety, linked here.[28190-4068]

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An Attorney Comments on Schmidt & LaCroix

May 9, 2012: Salvet Soper, Esq., a "well-known" attorney in the New York State Workers’ Compensation field has submitted the following for your consideration:¹

"I have just reviewed the Court of Appeals decisions in LaCroix and Schmidt and I have nothing to add to the discourse. The LaCroix decision was completely in accord with my opinion when this decision was first issued by the Court as to why the Board's decision in that case was wrong. I had wished the Court there would have gone beyond stating 'Assuming that Miller is correct' and would have overruled it, but it finally did so in Schmidt. The Court in Schmidt even took the surprising step of making the forbidden observation that a 'temporary' designation for a disability does not mean disability will end².

"Nevertheless, Judge Ciparick, in her dissenting opinion, correctly points out all bets are off with the passing of the so-called LaCroix bill. The Workers' Compensation Law was a deal with employers that immunized them from lawsuits that exposed them to more than just lost wage claims (notwithstanding Dole v. Dow) in exchange for allowing claims against them for lost wages even when they were not negligent. Schedule awards conflict with the philosophy of replacing lost wages and are more like pain and suffering awards which were not supposed to part of Workers' Compensation legislation. This is probably why there has been so much litigation concerning how they are to be paid. It was never clearly set forth in the statute, and it has been left to the Courts to determine the method of payment based upon other parts of the Workers' Compensation Law. The Court's decisions were governed by the intent of the workers' compensation law to replace lost wages only, and by the desired social benefit to New York State of having injured workers paid by their employers rather than the taxpayers for their lost time.

"As stated by Judge Ciparick, the business community agreed to the 2009 amendment as part of a greater negotiation. Thus, it cannot be said that it conflicts with the deal struck between government and business when Workers' Compensation legislation was first passed. The drafting of the 2009 amendment leaves a lot to be desired. It lets stand the provisions that direct consecutive rather than concurrent payment of schedule awards, that allow continuing payments after the payment period for certain schedule awards has ended, and that provide for no further payments where a claimant has died without the necessary heirs. It also has not addressed whether schedules can be paid when a claimant is already receiving awards on another claim. Schmidt may continue to hold despite the legislation. Finally, the legislature has not considered the impact on taxpayers when a claimant who receives his schedule award in a lump sum immediately spends it and comes to the welfare department for lack of resources.

"It should be very interesting to see how the drama unfolds when post - 2009 schedule awards start to be litigated. At this point, I don't have very much to say about the LaCroix and Schmidt decisions other than I believe they completely comport with prior decisions on the issues addressed. However, the original deal struck to create the Workers' Compensation Law guided the Courts and it has changed with the LaCroix bill. What matters going forward. [2517-4067]

¹ The Insider: On May 17, I added quotes around the word "well-known" as apparently there are some people who tried to contact Salvet Soper and, not finding a listing, questioned me if that person was real. The person is real - just the name isn't.

² The Insider - July 1, 2012: The last three words of this sentence were originally incorrectly written as "will not end". This has been corrected to "will end"

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The Court of Appeals Zamora Decision:

Solves Nothing

May 1, 2012: Now that the Court of Appeals has issued its long-awaited decision on voluntary withdrawal from the labor market in the Matter of Zamora v New York Neurological, let the debate and interpretations fly forth.

Earlier today, the Court of Appeals, in a split 4-3 decision, reversed the Appellate Court’s decision in which the Appellate Court reversed a Board panel. The bottom line is that the Court of Appeals and the Board determined that a voluntary withdrawal from current employment due to a work-related injury does not mean a claimant with a permanent partial disability does not have the responsibility to seek employment, if necessary, in a position different from that in which they were injured.

From a legal perspective, I find the decision quite interesting but from the perspective of achieving the economic and humanitarian principles of the workers compensation system, so clearly highlighted in Chief Justice Lippman’s dissent, this decision leaves a lot to be desired.

The Decision

The Court Of Appeals made its decision by determining that:

 ‘a claimant's work-related permanent partial disability allows an inference that a subsequent loss of wages is attributable to physical limitations’. Recently, however, the Third Department has treated the inference as required, or presumed, rather than merely permitted. For example, the court has written that ‘once claimant's work-related permanent partial disability has been established, an inference will arise that the subsequent loss of wages was attributable to these physical limitations’. . . .The correct principle [is] that the Board may, but need not, infer that the claimant cannot find a suitable job because of her disability. ... There is no precedent in our decisions for this theory, which would illogically constrain the ability of the Board to find facts, and would shift the burden of proof from claimant to employer.”

This then leaves the decision to the Board as the Court wrote, as it does in so many ‘discretionary’ cases, “We may not weigh the evidence or reject the Board's choice simply because a contrary determination would have been reasonable.”

 

The Reality

Rather than resolving this issue once and for all, this decision will create far more controversy than ever. Now that the Court of Appeals has stated that there are conditions under which a claimant with a permanent partial disability must seek employment, we can look forward to hundreds if not thousands of challenges by carriers seeking to stop compensation payments to injured workers.

Unfortunately, with 60 administrative law judges, 40 to 50 writers in the Administrative Review Division drafting opinions, and probably no more than half of the12 commissioners reading proposed decisions, the future will see hundreds of identical case histories with decisions all over the place, from the strictest interpretations on behalf of injured workers sought by the injured worker’s bar to the strictest interpretations sought by carriers. As noted in Chapter 14 “Both Sides of the Coin” of my first book, Behind The Closed Doors, some commissioners sign decisions taking exactly opposite in case with identical fact patterns.

A Proposal

After 12 years of service at the Board and four years of contact with injured workers through my website, I am more convinced than ever that voluntary withdrawal is not an issue to be decided by splitting hairs on word usage.

The real questions are what are the responsibilities (1) of the injured worker to seek alternate employment and (2) the employer and/or carrier to assist the injured worker in that endeavor.

It is true that the answers to these questions will vary not only on the type of injury, level of disability, and skill set of the injured worker, but also the economic conditions that exist in both the injured workers immediate community and throughout the State of New York.

The concept of Industrial Disability does apply to some extent in that there are some older workers whose skill set and relearning abilities are so limited that alternate employment is hard to find. But then there are others who have been in the workforce for 30 or more years and for whom retirement seems preferable to seeking out a new type of employment and starting at the bottom of the payroll “totem” pole: on which side of the line are they?

MY SUGGESTIONS

I suggest a number of formal conferences in which the participants will include attorneys for claimants and carriers (only one of each) as well as representatives of those third-party firms who do job-training and seek work for injured workers as well as medical practitioners specializing in rehabilitation services. The agenda would be to establish a timeline or series of steps to be taken by both the claimant and carrier to help the claimant reenter the job market. And I offer my services as the moderator: contrary to the opinions of some, I believe that this is not a black and white issue but one which needs to help all parties draw a line, fuzzy as it may be, in the sand.

There must be regular communication between employer and the injured worker regarding changes in the claimant’s medical condition and their current ever-changing level of restrictions with regards to their prior job activities and possible changes in those activities to allow them to return to work despite their disability. Too often in the past this has become a sort of “gocha” game where legal one-upmanship interferes with the humanitarian aspects of workers compensation. This is not to minimize the contribution of both the law and legal arguments to the system but, if the pre-board and oral arguments I attended were any example, far too often the legal jousting lost sight of the injured workers and employers whose fates were determined by these debates.

Some system has to be devised so that shortly after their accident, depending on the injury and degree of disability, the claimant starts to prepare for the probability that they cannot return to their prior job. They must understand that in exchange for their receiving their compensation they have the responsibility in terms of both physical and educational training to prepare themselves to reenter the labor market in a different capacity than the one they previously had, including the possibility that their new income may be lower than it was at the time of their injury. And it is essential that they understand that workers compensation does award “reduced earnings” for those who are earning less a new job because of the injuries they sustained at their old job.

While the vast majority of injured workers do ultimately return to their prior employment, sufficient numbers are unable to do so. Thus, it only makes sense that a program be put in place so that as soon after the injury as is appropriate, steps can be taken to prepare the injured worker for reemployment. This is a far better use of resources than preparing to do battle in the field of law before law judges, board panels, and the courts of the State of New York, battles which delay a just resolution of the injured workers economic needs and ultimately give all parties the impression that the Board’s interest is its own aggrandizement rather than humanitarian principles so clearly reiterated by Chief Justice Lippman in his rebuttal._{^[25176-4066]}

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Carriers’ ATF Silent Friend

April 26, 2012: In an unusual turn of events for the Board, a carrier appeal is supersonically moved through the system and the decision on the carrier’s appeal is issued by the Board within five weeks. And although Chartis Claims was instructed in a Board panel decision of March 3, 2009, to make the mandatory deposit into the Aggregate Trust Fund, it has yet to deposit any percentage of the amount even though the three (3) year anniversary has come and gone.

Christopher Richmond, Esq., attorney for the claimant, confirms that Chartis Claims, the carrier in WCB #60405635 for Plainville Turkey Farm Inc., has challenged every calculation of the Aggregate Trust Fund as to the amount of money it must deposit into the ATF under the well-established doctrines set by Court of Appeals in the Matter of Raynor V Landmark Chrysler on November 15, 2011 (18 NY3d 48 (2011), 2011 NYWCLR (LRP) LEXIS 255; 111 NYWCLR (LRP) 228).

Unfortunately this case seems to characterize so much of what the Board has been doing, or not doing, in the past few years.

(1) There is a triage system, or used to be, and issues such as surgery disputes, death claims were at the top of the list followed by decisions which stopped claimant awards. At the bottom of the list were disputes between carriers. In this case, the bottom has magically risen to the top.

(2) Case law versus law of the case. While there are occasions when a particular case seems to be contrary to established case law, it is not challenged as not being worth the cost and time and effort. But here we have an issue that has been a major issue of the Board for years, ever since the 2007 Amendments were passed. For years, Commissioner Paprocki, who rather lucidly first raised the argument at a pre-board meeting that mandatory deposits were contrary to law, proceeded for the next few years to be the dissent on over 60 ATF cases. In fact, in the earlier Board panel decision in this case, she also dissented - March 3, 2009.

And here again, she is on the panel, perhaps the lead, for again not demanding even so much as a 10% payment of the undisputed amount into the ATF.

(3) For as long as I can remember, the Board refused to hear appeals when the appellant offered no alterative to the decision being appealed. The Board has always required a definitive objection in order to consider an appeal, lest it get an appeal of every Law Judge decision on the legal grounds “I don’t like the decision - do it again until do.” For example, in the Matter of Capalbo v Stone & Webster (2012 NYWCLR (LRP) LEXIS 18; 111 NYWCLR (LRP) 285 of January 26, 2012) the NYS Appellate Division, Third Department, in affirming the Board’s denial of a full Board review wrote, "the record establishes that [the Board] addressed all relevant issues and the carrier did not present any evidence that was previously unavailable.”

Yet in this the most recent Board panel decision, the Board writes

The Board form C-40 filed on February 14, 2012 provides ample explanation of the calculation of the ATF deposit. Although the carrier has questioned the calculation, it has failed to make an offer of proof providing an alternate calculation and should be afforded an opportunity to do so.

Therefore, the Board Panel finds, upon review of the record and based upon a preponderance of the evidence that development of the record is warranted to allow the carrier to produce an alternate calculation of the ATF deposit.

Summary

Charits (F/K/A AIG) has had three (3) years not to make their own calculations on the record and three(3) years not to make payment to the ATF. This Panel feels this Carrier is entitled to additional time to produce an “alternate”.

Whether it be a hidden agenda of the Board to favor a few carriers or the Board has become so mismanaged that one or two commissioners can thwart legal precedent, a triage system designed for the benefits of injured workers and not carriers, or just administer law in their own “mini-state’ is a question that others will have to answer. The Notice of Appeal to the Appellate Division has already been filed.

But to paraphrase Marcellus in Hamlet in act I, scene IV:

“Something's rotten in the state of the WCB.”

Perhaps this commentary will let in a little light and fresh air and help remove some of the ‘stink’ that appears to have permeated so much of the decision making by the upper level of the Board’s management._{^[24175-4065]}

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Cappellino v Baumann Part II
& The Invisible Target

March 1, 2012: I received a number of comments on the the Matter of Cappellino v Baumann & Sons Bus in terms of what is the Board’s current interpretation of the rules regarding the timing of the presentation of evidence. I must admit that the first sentence in the second paragraph below includes me and probably all the commissioners. the comment is from one reader is:

There has obviously been a lot of confusion and controversy about which issues are barred against the carrier when they violate WCL Sec. 25(2)b (when they file the C7 more than 25 days after the EC-84 Notice of Indexing). Whether causal relationship is barred or not is the main bone of contention. Apparently, in the Cappellino decision, the Ct. of Appeals is saying that it IS barred. They ruled that the employer/carrier cannot introduce any medical evidence and the case must be decided on the claimant's medical evidence alone.

I'm not sure I understand your comments about how long the carrier has to introduce medical evidence in a C7 case. It seems that what the Ct. of Appeals has now decided is that if Sec. 25(2)b is violated, then that's it - the carrier cannot introduce any medical evidence at all on causal relationship. If they file their C7 within the 25 days, then they can submit their IME on causal relationship or anything else whenever they want to. No one is saying that the carrier must submit medical evidence within 25 days of the opening of the case. They just have to file the C7 within 25 days and they've "ante'd up" and can fight the case. Likewise, in a non-C7 case, the carrier can get an IME pretty much whenever they want to. So there's no "rush to insist that all evidence be available immediately." I think that the intent of the legislature in passing Sec. 25(2)b was, like [Chairman] Zach Weiss seemed to want, that the carrier should investigate all new claims promptly and either accept or controvert them w/in 25 days.

While some may argue to the contrary, it is my sense that the Board (the Commissioners and Administrative Review Department) are making up their interpretation of the rules as they go along and/or are seeking to find justification for picking winners first and then looking at the evidence. As I noted in my summary of today’s Appellate Court opinion in Wheeler v Bloomingdales, the Board seems to have taken the position again of doing what it wants when it favors one of the parties, by wrapping itself in the robe of ‘interests of justice’ or using its Appellate Court supported ‘discretion’ to make decisions. Several of us fought for years to enforce the 30-day time limit for filing appeals and to allow rare exceptions, not in the amorphous, capricious, and arbitrary ‘interests of justice’, but with a verbal justification that sets that exception apart for all the other denials. But reverting back to a lose ‘interpretation’ of the rules and laws, the Board is further supporting complaints from claimants and employers that the Workers Compensation Board is unfair.

The Board seems to have misunderstood the intent of Chairman Weiss’ changes by assuming that his attempt to speed up the process of finalizing the decision did not mean driving hell-bent as fast as possible running over everyone and justice in an attempt to close a case. I expect that in the future, the Board’s interpretation of evidence will continue to be one in which they throw their dart (the winner’s name) against the wall and then paint the target (evidence) around it or just tell everyone that the dart would be in the bullseye if there was one, i.e. the ‘invisible’ ‘interests of justice.’[22167-4064]

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Cappellino v Baumann & Sons Bus

Does this follow the law?

February 23, 2012: “The Court of Appeals quoted the statute but the statute on late C-7 only bars the issues of employer-employee relationship, accident and accident arising out of/course of employment. I've never understood the bar to extend to the medical issue of causal relationship. . . . I'm sure there will be some discussion on this case which I think the Board and 3rd Dept got right.”

So wrote one of my readers in response to my summary of the Court of Appeals decision issued February 9, 2012 in the Matter of Cappellino v Baumann & Sons Bus.

First I must point out that this is one of those decisions in which I could take either side depending on which side I was representing. But as a commissioner who had this case, I would have to consider some other factors originally brought to my attention by former Chairman Zack Weiss.

When Zach Weiss first came to the Board, before he became its chairman, I joined him when he went to a number of law judge hearings. He felt that the decisions were taking far too long, much longer than he experienced as a litigator in civil court and determined that something had to be done to speed up resolution of controverted cases. The results were changes in the law and the rules and regulations that govern the opening phases of the claim. One of these changes he proposed was to require that the carrier, if they were going to controvert a case, present all their arguments at the beginning of the claim, that the failure to do so would prohibit the carrier from raising that issue sometime later during subsequent hearings. As to whether or not the intent of the changes he sought meant that medical evidence in defense of the carrier’s position had to be presented in a timely basis was never clearly stated.

Therefore, one can argue that the failure to present such medical evidence at the beginning of the case meant that evidence could not be used and one can equally argue that since there was no specific deadline listed for the presentation of such determination, there was no time limit.

Apparently the Board and the Appellate Court felt that there was no deadline after the opening of the case for the carrier to present contrary medical evidence whereas the Court of Appeals felt there was. By the way, I would have signed the original Board panel decision.

Not being a lawyer and never having been sued in court, I had no experience whatsoever with civil cases and how they proceeded to in civil court. Since my departure from the Board, I have been personally involved in a civil case in which 1½ years after the incident in question there have been seven adjournments and, to the best of my knowledge, there have been no depositions of the major parties to this action. I’ve also been following the class-action case in The Matter of Munter v CRM Holdings, LTD at the United States District Court Southern District of New York and this case, more than two years old, is not yet set for a hearing.

So maybe the rush to insist that all evidence be available immediately is not the best way to handle workers compensation claims. In addition, how fair is it worthy Board to insist that the carrier have all of its evidence ready in 30 or 60 days while the Board, more specifically the commissioners, are now taking almost a year to issue decisions on appeal of a Law Judge’s decision?[22166-4063]

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Challenging the WCB’s GSIT Assessments

Part II

February 16, 2012: In response to my commentary last week regarding the calculation of future assessments on members of the failed Group Self-Insured Trusts (GSITs), a number of firms who what it medical bills and workers compensation claims reported to me that many of the claims they are receiving apparently had never been challenged in any way whatsoever by the now bankrupt trust administrators and even some of their replacements.

In one case, I was told that one claimant had a broken finger and for more than one year has been receiving full benefits as a temporary total disability. My contacts based remarked that it was astonishing to see how many claims there were of this nature in which the former trust administrators accepted every claim for any sites of injury Pat any average weekly wage for any degree disability without questioning any aspect of the client.

As a result, if one were to extrapolate future expenses for this claim, the amount needed probably would be the maximum for someone who had not yet been declared as having a permit total disability, well into the six figures. Yet, this injured worker should have gone back to work within weeks if not days of the date of injury.

If, as I have suggested, a thorough audit were made of all aspects of the claims accepted by these bankrupt trust administrators, including some which the Board would consider as “closed” as there are no outstanding issues, it is possible that thousands of claims with six figure reserves would be found to have no future liability or reserves of $10,000 or $20,000.

In fact it has been alleged that one of the contract trust administrators recently hired by the Board to take over the management of some of these failed trusts is basically doing the same thing: they are processing the paperwork, approving the documentation, but not actually examining and reviewing the validity of the claims and/or the need for I’m going medical treatment for which expenses are being submitted.

It may well be that a proper analysis may reduce the future liabilities of the trusts to the extent that the Board may be more successful in effecting the transfer of liabilities to a commercial insurer by way of an assumption of liability policy.

Unfortunately, if in fact there are excessive amounts of compensation and medical expenses being paid out because of the failure to properly audit and examine these claims, there is no way to seek recoupment of these funds from either the claimants or the medical providers. So the longer some of these state contracted group administrators are allowed to simply process claims and not examine or audit them, the greater will be the retroactive payment claims against the group members and the higher the extrapolated reserves.

And, as I have noted on more than one occasion and stressed last week with my citation of two Appellate Court decisions, while the trust members appear to be legally responsible for retroactive payments, the Board does have an ongoing responsibility, particularly now, to make certain that these current trust members are not being taken advantage of in what could be considered a kind of Ponzi scheme._{^[22165-4062]}

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Challenging the WCB’s GSIT Assessments

February 9, 2012: A big THANK YOU to those who responded to my request for names of law firms who have experience in dealing with the attempts by the New York State Workers Compensation Board to bring legal action against members of the 24 underfunded group self-insured trusts.

One attorney responded “I, too, have been contacted by companies similarly situated and have not been able to give them any positive advise as to how to proceed as the Board's attitude is simply pay me or have a judgment entered against you which probably could not be discharged in bankruptcy.”

Unfortunately there is a great deal of validity in this statement and it is for this reason I’ve decided not to publish a list of attorneys. I have spoken to and received many emails on this subject but the bottom line is quite simple.

When each employer joined a self-insured trust, they signed a contract which among other aspects gave them joint and several liability. As “joint and several liability” is defined, relevant to this case, the Board may pursue an obligation against any one member of the trust as if they were jointly liable and it becomes the responsibility of all the members of the trust to sort out their respective proportions of liability and payment. This means that if the Board pursues one member of the trust and receives payment, that member must then pursue the other obligors/members for a contribution to their share of the liability.

This concept was quite clearly affirmed by the New York State Appellate Division, Third Departments, in two decisions:

January 27, 2011 NYS WCB v 26-28 Maple Ave.: Defendants, members of the Manufacturing Self-Insurance Trust (hereinafter MSIT) were informed by the Board that the group self-insured trust was operating with a significant deficit, did not meet financial standards, and could not be restored to financial stability. After the Board then resumed control of the trust, it commenced this action to recover a multimillion dollar fund reserve deficit from numerous former MSIT members . . . The potential for joint and several liability inherent in membership in a workers’ compensation group self-insured trust is mandated by statute (see WCL §50[3-a]; Matter of Aides At Home, Inc. v State of N.Y. Workers’ Compensation Bd., 76 AD3d 727 , 728 [2010]) Thus, [the plaintiff] could reasonably have obtained this information from another source. Moreover, upon joining MSIT, [the plaintiff’s] officers executed participation agreements acknowledging, among other things, that [the plaintiff] would be jointly and severally liable for all participants’ workers’ compensation obligations during its membership and that it might be required to pay additional amounts to meet these obligations.

August 5, 2010 Aides At Home v State of New York Workers' Compensation Bd.: Although petitioner was not a member of the Trust when the assessment was levied, petitioner nevertheless remained jointly and severally liable for the liabilities of the Trust that were incurred during petitioner's membership until such time that those liabilities were satisfied (see WCL §50 [3-a] [former (2), (3)]) [Court Note: WCL §50(3-a)(3) was amended in 2008 to clarify that a member of a group self-insured trust remains jointly and severally liable for unpaid claims that accrued during the period of membership even after the member leaves the trust (see L 2008, ch 139, § 1)]. A key fact supporting the Board’s appropriate interpretation of the statute was that the petitioner, upon joining the Trust, accepted this statutory mandate which was explicitly articulated in the trust and indemnity agreements along with a provision that petitioner was liable for its share of a deficiency assessment "for any Trust year or part thereof that [it] participated in the Trust," . . .

As a result, the Board is not just unwilling but unable to settle with any one member of the trust because that firm would only give a check to the Board if it received a release from the Board, which the Board is not going to do lest other members of that trust are unable to meet the totality of their retroactive assessments. The only way that an individual member of the trust would be able to settle a claim against them is if a settlement is reached with all the members of that trust.

In fact, there have been instances in which some employers have submitted six and seven figure checks to the Board to cover their retroactive payments and to get a release from further litigation, checks which were rejected due to the joint and several liability.

Therefore, based on conversations I’ve had with many parties to this issue, it would be of minimal practical value of an individual member of the trust to hire an attorney to argue that they are not liable for retroactive payments. Therefore, I’m not listing any attorneys.

As to the amount due, that is another matter.

There are other issues which may well be subject to litigation one of which I was informed by a contact in California, a state which is also a major participant in settlement talks with some of the trust managers, in particular CRM. It seems that there is litigation in New York being taken to the federal court in order to have the assessments or other aspects of the Board’s position rejected. The fact that all of these trusts were established and managed under various laws of the State of New York raises the question of what the federal issue is being used to pursue this matter. But that is an issue to be argued by the parties to this particular litigation.

In my opinion, there are two issues that would be opened to litigation. The first deals with the level of responsibility the Board had in reviewing these funds which could result in a decrease in the value of the retroactive claims. The second deals with the validity of the claims accepted by the various trust managers: was their acceptance rate of claims, sites of injury, and average weekly wage higher than those of regular self-insureds, private carriers, and the State Insurance Fund? If it was, then the projected exposures would be in excess of what would be considered the norm and thus have resulted in a higher demand for retroactive payment.

As I delve further into this subject with what I would like to think is an unprejudiced perspective, I sense that many of those from involved in this battle have drawn their lines in the sand, while those seeking to find a solution are met with disdain by both sides. And although it may well be appropriate to point the finger of blame at the Board, as I have done here and in many of my prior postings on this subject, the fact remains that the members of trust, when they joined, did agree to accept retroactive assessments. The issue that must be resolved is what is the proper amount. Fortunately, there are a number of individuals seeking as fair a resolution of this incredible mess as they can within the legal obligations contracted to by all parties.

As get more information, I will keep everyone up-to-date.[22164-4061]

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2011 Review of Appellate Court Decisions

February 3, 2012: In its review of a Board’s administrative review decision, the Court wrote, “Regrettably, [the Board] has almost wholly failed to submit such evidence, and has often failed even to respond to [plaintiff’s] arguments. Whether this failure reflects a tactical error, laziness, an implicit concession that the Code cannot withstand constitutional scrutiny, an erroneous assumption that [the Board] is entitled to special treatment, or a mere oversight, the Court cannot say.”

Looking back on the Workers Compensation Board’s record for last year, this quote seems quite accurate. However, when it was published on December 19, 2011, U.S. District Judge Sam Sparks of Austin, Texas was referencing the Texas Alcoholic Beverage Code interpretation of its own codes.

As I noted last month, the Board’s decisions were rejected by the New York State Appellate Court, Third Department, more than 30% of the time in the 138 issues covered in 114 decisions, a failing grade in any college or law school.

Over the last few years, the Board’s record at the Appellate Court has been getting increasingly worse while the number of cases being heard on appeal by the commissioners is being reduced. When one considers that the number of commissioners has not changed and that it is now taking twice as long for them to complete a review of an appeal, one could only expect that the commissioners would be paying more attention to the details of each decision. Evidence proves otherwise as the following numbers show that the affirmance rate has been consistently dropping.

	2011	2010	2009	2008	2007	2006
Affirmed	69%	83%	77%	n/a	92%	96%

Based on the issue codes I assign to the cases (and some cases have more than one issue being reviewed), there were 49 issues reviewed last year; the Board’s decision was successfully challenged on 27 of these issues. The attached chart lists the issue codes and the results of the decisions for each issue code.

Some facts:

• 67 of the 114 cases involved claimant versus carrier, with carriers winning 35 and claimant 32.

• The Board prevailed in 25 of 39 cases, claimants in 36 of 76, and carriers in 44 of 97.

• In the four categories of issues, the Board was affirmed more often in those two categories in which the Court tends to give the Board discretion. The high rejection rate in the other two categories, “Who Pays” and “Legal Procedures Followed”, which require both a knowledge of the law and an understanding of the concept ‘precedent’, really demonstrate the Board’s failure to properly adjudicate.

Just as last year, this year’s initial analysis shows that the Board is inconsistent on a very wide variety of issues but it appears to have the most problems with the issues pertaining to the Special Funds (§15(8) and §25-a) and the interpretation of §23.

Equally important is the number of times that the Court addressed the Board’s failure to be consistent from case to case on the same issue and/or its failure to explain its reasoning in its decision-making process.

Having been at the Board during years when the affirmance rate was consistently well above 90%, it is my impression that the fault lies with three parties. The first party is those commissioners,the insouciants, who do not read the decisions and are therefore unaware of the fact that a decision they are signing Monday morning at 10:00am written by staff writer #1 contradicts a second decision they are signing at 10:01am on the identical issue written by staff writer #2. When these insouciants are on the same panel, there is apparently no one making sure that the decisions are legal, consistent, and coherent. The second party is the head of the Administrative Review Bureau, who more often than not has moved on elsewhere before these decisions, drafted under their oversight, have been formally reviewed by the Court. (The current head of the department who has only recently taken over certainly has his hands full.)

And the third party responsible for this real travesty is the Chairman who is responsible for making sure that the Board meets its responsibilities. As a former highly respected law judge, one would have assumed, apparently incorrectly, that the Chairman’s attention to judicial accuracy would be a top priority.

Unfortunately the statistics issued by the Board regarding the ‘affirm, reverse, modify’ results of the Board panel reviews of administrative law decisions gives totally inaccurate and unreliable information. For example, if a law judge’s decision regarding determination of five facts (date of injury, sites of injury, average weekly wage, employer’s name, and that the accident occurred of and in the course of employment) is appealed on the last and only major legal issue and the Board panel reverses it, the Board statistics show that the decision was ‘modified. ‘ Thus, this decision is categorized the same as the correction of a typo in a law judge’s decision. My personal records of approximately 15,000 cases shows a 10% to 20% discrepancy in the number of ‘affirm, reverse, modify’ decisions. it is likely that even the Board panels' reviews the administrative law judges decisions, which are not appealed, also reflect a high "poorly done" rate.

Add to this the abuse of §114-a (3 ) penalties on many appeals, attorneys are placed in a difficult position of either having to face an angry client by not proceeding with an appeal or being hit by a penalty by the Board which apparently has neither the time or patience to consider that it is its own inconsistencies and incoherence that results in the dissatisfaction with both administrative decisions and Board panel decisions.

While it seems easy to attack the Board, the real emphasis has to be on both claimants and employers who really have no assurance that the Board has issued a fair decision in their case, let alone even reviewed it. This inconsistency and occasional incoherence leads not just to anxiety on the part of injured workers, but also gives them a justifiable distrust of the fairness of the system and the sense that nobody cares. It also places many attorneys in the unfortunate position of having to explain, usually without success, to their clients why the clients are correct even though the Board has ruled against them. This inconsistency by the Board forces many attorneys to appeal decisions because the Board’s record demonstrates that far too often it is luck of the draw (the writer and the panel) and not legality what justice which determines who gets a favorable decision.

Next week, I will review in detail some of the more contentious issues of the 2011 and analyze the Board’s direction for 2012._[22163-4060]

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