DECISIONS: There have been no decisions issued this week although one motion to the Court of Appeals to appeal a 3rd Dept. decision has been denied. And I update the 3rd Dept's list of cases heard this month.

COMMENTARY: This week's COMMENTARY is on a common theme in this website: legal representation for claimants who are unable to get an attorney to represent them because (1) it is a medical only case and thus no legal fees are paid or (2) the issue and/or the claimant’s personality make it difficult to find and/or retain an attorney. This week, I proffer a solution.
DECISIONS: There have been no decisions issued this week although one motion to the Court of Appeals to appeal a 3rd Dept. decision has been denied. And I update the 3rd Dept's list of cases heard this month.

COMMENTARY The law of unexpected consequences (or is it?) of government legislation is detailed in a report which forecasts that the passage of the federal Patient Protection and Affordable Care Act (ACA) will result in a shift of personal health care expenses to individual state’s workers compensation systems.

DECISIONS: Another week and no decisions.

COMMENTARY: As part of my continuing review of the Board’s Road show this summer, I offer a revision to the Board’s proposal to cut down on appeals, a revision which will have far greater impact than that offered by the Board.

DECISIONS: No workers-comp decision issued by the Third Department or Court of Appeals this week.

COMMISSIONER BIOS have been updated to reflect Vice Chair Frances Libous' retirement under a cloud of suspicion as to her motives for same.

COMMENTARY: At the Board's Summer Road Show, a new and very interesting plan to reduce the number of hearings and appeals was discussed, a plan which makes a lot of sense but can use a few of the tweaks I propose.

DECISIONS: There were no new cases posted this week but apparently the schedule of cases to be heard at the 3rd will be updated next week with 8-10 new cases added.

Some Q&A on RX Lawsuits 

COMMENTARY This week I answer some of the questions I have received regarding thew pending law suits by the compounding pharmacies.
DECISIONS: Once again,no decisions and no new hearings.

The Board's Legal Record

COMMENTARY I do plan to write about the Road Show and the proposed changes to the system of adjudication but in preparing my analysis and commentary discovered some misleading data in my own records. Which supports even more my arguments that the Board’s records are replete with statistical errors. Today’s COMMENTARY addresses this subject.

DECISIONS: Just as last week, this week there is no news nor any workers comp-related Court cases, although there are four new decisions pending, given to the Court today.

A Goodwill Gesture to Injured Workers? 

COMMENTARY This week’s posting was delayed as I was awaiting a response from someone regarding the Matter of Liberius v NYS Health & Hospitals. And there were no workers comp-related cases this past week (nor for the prior week either). Not having had a response from all of the parties, I am posting my COMMENTARY on Liberius now as I will have more  to say on related subjects this Friday.

In the meantime, enjoy you summer weekends and weekdays and remember, “The hot weather you decry today is what you will beg for come winter.”

Losing 1½ Toes not 'Grave'; More Immorality?

WCB Loses 2; Back from Diggin'

DECISIONS: In the two Board related decisions issued in the past three weeks, the Board was reversed twice. First, it failed to consider all the issued raised in the appeal it rejected. Second, it determined that an employee who felt stress from guilt when he was forced by his superiors to join others in committing misrepresentations to their employer, did not suffer from ‘abnormal’ stress. This latter case presents an interesting look into where some Board member draws the line as to unethical behavior, or unethical behavior that is acceptable, i.e., if everyone does, it is  ‘normal’. Two other courts made determinations on §11 jurisdiction, dismissing two personal injury claims as being covered by workers compensation.

BACK FROM DIGGIN' from ‘treasure hunting’ in the rain forests of Belize. The most significant discovery was what we did not find: burials. While several unique artifacts were discovered that are associated with burials, not a single body was uncovered. For me it was that there are crocodiles in the river in which we occasionally swim. For those of you interested, more details in WHY I DIG.

Great Week for the WCB & I'm Goin' Diggin'

I Give the WCB an A+; Also wins 2 at the 3rd

COMMENTARY: The Board's Road Show and discussion of new policies and procedures to improve service rates an A+: very impressive!

DECISIONS:The Board was confirmed twice this week, one when it determined that an injured worker did not commit §114-a fraud and in a second case in which it denied (using proper procedures this time) a request by an employer and carrier for reconsideration and/or full Board review.

NEWSWIRE:Florida's Court of Appeals just overuled a lower court's 2014 which declared that Florida's WC system was ""constitutionally infirm & invalid".

To Board & Courts: What's Up, Doc?

DECISIONS: A claimant's attorney wins his fee from a municipality and apportionment is denied for a non-work related injury. A law firm's motion to deny a malpractice claim is, in this website's opinion, absurdly denied.

COMMENTARY: This week's COMMENTARY deals with the malpractice motion referenced above.

NEWSWIRE: Board's announcement is two month's late; Con Ed fined fr firing injured worker, and NYC has new WC claims processing system.

Court Reverses Board Twice This Week

DECISIONS: In the one opinion issued this week, the Court reversed the Board for using the incorrect (and too small) a penalty. Interestingly, the Board, while not amending its decision in this case, nonetheless exercised its authority to suspend the application of the smaller penalty.

Board Reversed for Applying Too Small A Penalty

DECISIONS: In the one opinion issued this week, the Court reversed the Board for using the incorrect (and too small) a penalty. Interestingly, the Board, while not amending its decision in this case, nonetheless exercised its authority to suspend the application of the smaller penalty.

DECISIONS: A busy week for the 3rd Department which issued 9 workers comp opinions, including two reversals and eight affirmances of the Board’s decisions. And the 1st Department dismissed a libel claim by one workers comp doctor against another due to a critical review of the litigating doctor medical treatment. In twoWeekuntary Withdrawal cases, the Board supported the claimants in both but was reversed on one. Other issues were PPD versus SLU (claimant prevailed), denial of FBR (claimant lost), causal relationship (carrier prevailed), medical apportionment (WCB prevailed), Lump Sum reopening (WCB prevailed), §15-8 (Special Funds in a reversal), and §25-a closing (Special Fund).

NEWSWIRE: Governor Cuomo has just announced a new Inspector General of the NYS Workers Compensation Board: Catherine Leahy Scott

DECISIONS: No new decisions this week.

NEWSWIRE: Cuomo appoints new Executive Director for the Workers Comp Board along with a ..

COMMENTARY: Open Letter to Mark Wade in which I welcome him to the Board and make some initial suggestions as to how he should start with his new responsibilities.

DECISIONS: This week, the Board prevailed in 9 of 10 decision issued by the Third Department. The one reversal favored the claimant as did five of the other decisions, ranging from causal relationship to continued use of oxycontin. Claimants lost one and won one on the issue of occupational disease and on the issue of earning capacity, lost two on procedural issues, and won on SLU, apportionment, mental injuries and degree of disability.

DECISIONS: A §15(8) request for reimbursement is time barred, a claimant loses on Fraud but another wins on a slip-&-fall, the Fund loses on “true closing’ and that same claimant law firm loses AGAIN on a venue case, §114-a(3)(ii).

DECISIONS: Santa affirmed the Board in four of five decisions issued this week by the 3rd Dept. Once again Rella & Assoc loses an appeal on a change of venue application, a voluntary withdrawal is rejected based on employer threats against an employee if he showed up for work, The Fund wins again on §15(8)(d), and lying about the number of employers for premium purposes does not automatically cancel the policy. The Board loses, in split decision, when it denied a request by the employer to rehear or reopen a claim.

Claimants Lose All 3 Decisions At The 3rd

DECISIONS:The Board prevails in the three decisions issued December 18 with claimants on the losing side in all three, including the first one I have seen at the Appellate Court 3rd Department dealing with alternative dispute resolution.

And for the fifth time this year, the 3rd affirms Board a penalty against the Law Offices of Joseph Romano. 

Board and Claimant Win at the 3rd

DECISIONS: The Board is affirmed twice this week but does lose on a penalty issue in the claimant wins in a death claim.

COMMENTARY  I have been quoted in the press as calling the Board's handling of the GSIT's a "Ponzi Scheme" as explained this week's COMMENTARY.

COMMENTARY  Now that Frances Libous has filed for retirement as of December 31, 2014 leaving the post of Vice Chairman of the NYS Workers Compensation Board vacant, the question is who will be appointed by Governor Cuomo to fill her shoes.

COMMENTARY  I found an interesting quote in a court case which quite clearly states that the Board's slow decision making process rightfully breeds disrespect.

COMMENTARY:  Attorney Daniel A. Bronk explains his argument before the 3rd Department in Dobney v Eastman Kodak on an issue for which I signed in excess of 2,000 MoDs. And it seem Chairman Beloten may have effectively abandoned his positions as Chairman to spend his time doing the work historically the province of the Commissioners.

NEWSWIRE: Another small business finds itself the target of the WCB's mismanagment of the GSIT's

DECISIONS: Today, the Third Department issued only one option, on a parole issue, and none of the other courts in the state issued any workers comp-related questions.

COMPUTER HELP: For years my internet browser (Firefox) sucked up memory like crazy, particularl when I had 10-15 tabs open. and I had to restart Firefox to clear that memory. I just found a program that solves that. For those of you who know what I am referencing, see CleanMem By PcWinTech.com. The rest of you just find a geek.

DECISIONS: No decisions this week. 

NEWSWIRE: I would like to report that Governor Andrew Cuomo has announced that he is submitting to the New York State Senate Labor Committee  his nominations for a new chairman and a new vice-chairman at the Workers Compensation Board.

DECISIONS: An injured worker's attempt to find his employer, the carrier, and medical provides guilty of federal racketeering is thrown out of Federal Court.

DECISIONS: Court, again, affirms $750 penalty against the same law firm for, basically, seeking a change of venue without cause. Special Funds wins right to question if $4,750 paid is really compensations, not M&T designed to allow §25-a liability transfer. One claimant loses on consequential while one wins on causal relationship. And claimant will continue to get awards despite §114-a finding.

NEWSWIRE: Medical Marijuana's use at and before work raises serious legal issues as drug testing programs cut workplace injury rates. California issues contradictory WC case for NFL player whose two games in a seven year career made him eligible for CA workers compensation.

DECISIONS: The 3rd Dept not only issued no decsions today, it did not even, unlike last week,state that it had nothing to say. I assume that election law cases are taking the Court's full time and attention.

BUT, a case at the Second Department affirmed that a finding of 'special employee' protected a firm from civil suit when the worker took comp via the 'general' employer. And the Court of Appeals has set two major cases for their fall calendar: medical guidelines and collateral estoppel.

NEWSWIRE: Congress is now reviewing new legislation regarding Medicare Secondary Payer rules and regulations.

WCB to Close Menands
3rd Dept. Opines on 5 cases 

NEWSWIRE: Rumor has it that the WCB Board has decided to close the Menands office (Albany's hearing point and statewide computer center) and move to Schenectady.

DECISIONS: Board prevails in all six decisions issued by the 3rd Department on issues pertaining to §114-a fraud, the ATF, two on causal relationship, and again, two on §114-a(3)(ii) (specious appeal, change of venue) again with the Law Offices of Joseph Romano on the losing sides twice more this week.

TIME TO STUDY §32's: N No workers comp-related decisions have been issued this week by any of New York's courts which give us time to take a good, hard look at how claimants who took §32 settlements have fared. It is time to do a study to see if the claimants' expectations and, more importantly their needs have been met, as detailed in this week's COMMENTARY.

DECISIONS: In the two cases involving Board decisions, the Court upheld two §114-a(3) penalties for unreasonable appeals, one against a carrier and a second against a claimant attorney (now 0-3 on this issue). The NYS Dept of Labor in two cases determined ‘consultants’ and ‘independent contractors’, not withstanding contracts, are ‘employees.”

NEWSWIRE: GOOD NEWS:no new indictments. BAD NEWS: Same old executive staff.

COMMENTARY As to the question pertaining to some recent NYS Senate indictments "How could he do that?", I pontificate on that pointless question by asking, "Based on whose moral compass?"

DECISIONS: In today's one Board case, the Third Dept dismissed a claimant's appeal regarding the Board's disposition of a third-party settlement on the grounds that the Board's decision was interlocutory. The First Dept, in dismissing a claim for §11 indemnification and contribution, defined a "grave injury", as enumerated in WCL § 11, and "permanent and severe facial disfigurement".

NEWSWIRE: WCB's Vice Chair Libous’ husband & son under federal indictment.

DECISIONS: While there were no decisions issued this week, on the COMMENTARY page I answer questions from a well-known attorney as to how valid are my stats on the Board’s winning and losing percentage at the Appellate Court, Third Department.

COMMENTARY: A well-known attorney questions how valid are y stats for measuring the Board's win-loss percentage at the 3rd.

  Claimants were involved in only one case, getting the Court of reverse the Board, allowing a claimant to file their claim as an article  8 WTC Fund case.

OFF TO THE JUNGLE, AGAIN

Well, it’s off to the Jungle again, this time for only two weeks, searching for those discoveries which could help us understand the movement of humans into the Western Hemisphere and how it is that the great Mayan civilization, once numbered in the tens of millions, collapsed, after being in existence three times as long as Europeans have been in the USA: the site I worked in has evidence of continuous habitation dated back to 1200 BCE, to be abandoned 2,100 years later, in 900 CE.

The recent passing of a good friend, Karl “The Cowboy” Henry, should remind us all of that refrain from  the final stanza from Guy Lombardo’s song “Enjoy Yourself (It’s Later Than You Think)”, the entirety of which is listed under “Why I Dig”.

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

I will attempt to post the next two Thursdays from wherever it is that I will be working in South Western Belize but if there is a choice between a rum and coke and another story about the Board, for the next two weeks, the rum and coke wins.

DECISIONS:The Board wins all seven decisions issued by the Third Dept this week. Three were §114-a(3)(ii) penalties against, apparently the same attorney, for improper appeals of law judge decisions, apparently not the first time for this attorney.

The Board also found one claimant guilty of §114-a fraud, another of voluntary withdrawal from the labor market, and two cases in which the Special Fund was held not responsible for the claim.

DECISIONS:The Board has a bad week, with one case reversed a second time, one affirmance but with their hand slapped for inappropriate use of penalties, and two affirmances. Claimants win two and lose two.

NEWSWIRE: This week’s belated two news stories deal with the issues of medical marijuana and alternatives to opioids for pain relief. In NJ, an injured worker was suspended for taking a legal drug; in NY, that same person could be fired or arrested.

DECISIONS:
The 3rd Dept affirmed the Board’s determination that “wage earning capacity” does not to temporary disabilities.

But the 4th Dept basically found that the Board was overreaching in its attempt to levy deficit assessments against members of a defunct GSIT.

DECISIONS:In the one decision issued today by the 3rd Dept, that Court affirmed the Board’s selecting medical information to find causally related death.
COMMENTARY: Do less cases going to the 3rd Department mean the WCB is doing its job? No - quite the opposite.

DECISIONS:In today’s one decision, the Appellate Court agreed with the Board that the claimant’s injury aggravated her scoliosis, thus necessitating back surgery.

DECISIONS: Board wins in the three opinions issued this week, dealing with an SLU for a deceased claimant, awards for a jailed sexual abuser, and setting a lower hourly rate than requested for home care by claimant’s sister.

DECISIONS:Board wins a case allowing it to proceed with suits against a bankrupt GSIT’s group administrator’s accountant and actuary. And an employer’s appeal is dismissed as interlocutory..
NEWSWIRE: I regret to note the passing on April 1, 2014 of Karl D. Henry, good friend, colleague, and former Commissioner at the NYS Workers Compensation Board from 1995 to 2009.

The Insider's Top Attorneys for 2013 announced today.

NEWSWIRE Jeffrey Fenster, the WC Board's executive Director, resigning.

February 28, 2014  ♦ Week 271 Issue 1

DECISIONS: The Board and injured workers win in two cases before the Third Department and a lawyer who took advantage of his injured worker’s $500,000 workers comp settlement accepts disbarment. As of today, no cases have been set for hearings before the 3rd Dept.
NEWSWIRE NYSIF elects Kenneth R. Theobalds as Chairman.

NEWSWIRE Another critic reviews WCB Exec Dir Fenster’s opinion piece in the Buffalo News. The WCB actually takes a GSIT manager to Court, to recover $12,000,000.
DECISIONS: Hal Friedman, the prevailing attorney in Bissel v Amherst, writes about the case and the $17M settlement. The Board prevails in the one case decided by the Third Department this week with its affirmation of the Board’s decision to transfer liability per WCL §25-a to the Special Fund. In addition to the transcript of The Matter of NY Hosp Med of Queens v Microtech posted last week, the CASE SUMMERY is now posted under PENDING CASES.

COMMENTARY:  I review WCB Exec.Dir. Fenster’s self-serving editorial about the Board’s past and future.
NEWSWIRE The New York State Insurance Fund Board of Commissioners has formally announced the election of Eric Madoff as NYSIF Executive Director. And NYSIF mourns the loss of Chief Executive Deputy Director Dennis J. Hayes, who died December 6, 2013 after a long illness.
DECISIONS: The one case issued today, in which the Board was not a party-of-interest, found that the decision of the Board to accept the late filing of a claim is not binding on other jurisdictions, in this case costing the claimant performance of duty disability retirement benefits.

DECISIONS: The Board starts off the year with a REVERSAL, again on the issue of  reimbursement issue, only this time it is NYSIF that wins and not Special Funds. And The Matter of NY Hosp Med of Queens v Microtech (decided by the 2nd A.D. September 26, 2012) was argued this week before the Court of Appeals, a case dealing with protections regarding undocumented workers and the Federal IRCA.

DECISIONS: For Christmas, the 3rd Department affirmed one case and abeyed another decision. It affirmed the Board's ruling that claimant had a dust related disease even without the claimant’s need to identify the specific allergen or contaminant responsible. In a case involving the Board’s denial of a medical variance on the grounds that there was a lack of supporting medical evidence, during the appeal process, the Board changed its mind and denied the variance on the grounds other grounds. Due to the new denial, the Court decided to hold the appeal in 

NEWSWIRE New York State issued $370 million in bonds to assist businesses in failed group self-insured trusts to fulfill their obligations to their injured workers.