Mark Wade’s New Position Leaves Vacancy at the WCB

WCRI Webinar:
Geographic Variation in Surgery Rates

Hundreds of WC Cases Head to Bronx Courts

August 23, 2015 [5432]: According to long-awaited article in the New York Daily News, several pharmacy and medical equipment providers have filed hundreds of suits in the Bronx Supreme Court, alleging that insurance companies have failed to pay them.

According to the people with whom I have been in contact over the last few months, the real issues appears to be that many of these pharmacies specialize in the compounding of drugs, drugs for which usethe New York State Workers Compensation Board has denied for treating injured workers.

As a result, these firms are now going to civil court asking that the civil court require the workers comp carriers pay for medical treatment denied by the Board.

One of the lead defendants in the case is Travelers Insurance, represented by Vecchione, Vecchione & Connors, LLP, Of Garden City, New York.       

The various plaintiffs are presented by Lewin & Baglio, a law firm located in Westbury, New York. Although clicking on the website www.lewinbaglio.com has come up with a blank page the few times I have tried it over the past few weeks, another link under www.pinnaclemedicalbilling.com/partners.htm appears to show that Lev Lewin and Michael Baglio are the two partners in Pinnacle which described itself as “a provider of medical billing, collections, and litigation services to hospitals and physicians.”

While the Daily News article references these cases being in the Bronx County Courts, a number of firms – University Chemists, Elite Medical Supply, Accelerated DME Recovery, Summit Pharmacy, and Century Pharmacy – have their cases listed in the Suffolk County Court System, with Lewin & Baglio as plaintiffs’ counsel and Vecchione, Vecchione & Connors for the defendant, Travelers Insurance.

It was nearly 20 year ago that the chiropractic medical community resolved this problem of not getting paid by getting legislation passed which made their services a covered treatment under the Board’s medical guidelines, thus requiring the carrier to pay when the Board approved the specific treatment. Here, the initial impression is that these providers are asking the courts to require WC carriers to pay for treatment not approved under the Board’s medical guidelines.

According to staff at the Workers Comp Board in Albany, the Board is reviewing this issue and will propose a recommendation in the coming days.

The New York Daily News article can be found at THIS LINK

Florida Courts Save State’s WC System

June 24, 2015 [5431]: On August 13, 2014, the 11th Judicial Circuit Court of Florida in Miami ruled that state's WC system "constitutionally infirm and invalid". Specifically:

Florida Workers' Compensation Act, as amended effective October I, 2003, does not provide a reasonable alternative remedy to the tort remedy it supplanted. It therefore cannot be the exclusive remedy. §440.l1 (the affirmative defense of workers' compensation immunity) is constitutionally infirm and invalid.

This week, Florida’s Third District Court of Appeal tossed out the ruling in the Matter of The State of Florida v Florida Workers’ Advocates, et al, finding that plaintiffs did not have legal standing and the case was moot.

But most importantly, the Court of Appeals did not weigh in on whether the workers-compensation system was constitutional.

As explained in The Tampa Bay Times June 24, 2015 article:

The constitutional question dealt with a longstanding concept in Florida that cases involving injured workers should be handled through the workers-compensation system instead of through civil lawsuits. But Miami-Dade Circuit Judge Jorge Cueto ruled last year that the law preventing cases from going to civil trial was unconstitutional, at least in part because of legislative changes in 2003 that reduced benefits.

On reading the 2014 decision, however, it seems that Florida has set itself up for this type of decision by recent changes in its workers compensation legislation, in effect, eliminating most awards except for those for permanent total disability. The bottom line is that the State of Florida, by slowly eroding the benefits and legal protections of its workers compensation program, left a substantial number of its workers without access to medical benefits or payment of compensation for time lost from work as a result of their injuries.

Although some writers, in looking at this case, are warning that all workers comp systems are at risk, it is only those that reduce benefits without any concomitant increase in some other rights.

On the other hand, could it be argued that the recent changes in the New York State Workers Compensation Law, the one which limited payment for permanent partial disability to a period related to the degree of disability, did not offer a sufficiently valuable consideration: the new medical guidelines or an annual increase in maximum average weekly wage used to calculate benefits?

Fortunately, the Court of Appeals by dismissing the case may have made it impossible for this issue to get a hearing within the judicial system, in Florida, anyway.

Board's Announcements Late Again

NYC selects new WC Claims Processing System

Con Ed Fined After Firing Injured Worker

May 29, 2015 [5428]: The New York State Division of Human Rights found that Con Ed did not reasonably accomodate an injured worker’s request to return to work.

Kevin Benjamin suffered an arm injury (epicondylitis, or “tennis elbow”) with subsequent work restrictions. The Law Judge determined that Con Ed “notified him that there was no job less physically demanding that he could do before eventually firing him in December 2011. At the same time, a new job was found for another injured worker in Benjamin’s unit.” The Judge also found that Con Ed failed to allow the work to submit medical reports supporting his request to return to work.

The Law Judge ordered Con Ed to repay Benjamin lost wages totaling $283,002 and give him his job back. She also ordered the utility to pay $75,000 for Benjamin’s mental anguish and a civil fine and penalty of $25,000 to the state.

New Exec Dir Wade Still at Prior Post

Commissioners Required to Show Up
Every Day?!

APRIL 16, 2015 [5426]: Rumor has it the Cuomo (or some of his staff) have finally reached the point of dismay/disgust over the actions (really lack thereof) of the insouciant commissioners such that new rules are being put into effect for them.

The commissioners must now clock in and out of their district offices. Although it appears that the Governor’s office is finally paying attention to some of those commissioners who not only do not work but slow down the entire system, this new procedure is meaningless.

Why?

I worked with one political appointee who came in to the office every single day. Half an hour later, he went out for a smoke (and several drinks) returning at 4:30 in order to get a lift home from one of his assistants. A second appointee (his successor) left the office for three hours everyday, apparently to go to school to get his degree, and, when he was in his office, he had the door locked. And a third spent the day shopping. But their time cards would show them getting to work every day by 9:30 to 10:00 and leaving no earlier than 4:30 or 5:00.

Of course, this new change will require that one of the globe-trotting commissioners will now have to curtail their travel, and one or two others may throw in the towel as well, being faced with the prospect of showing up at their district offices a few days a week.

The Issue Is Not Just Being in the Office

As I detailed in Chapter 12 of my book, Behind The Closed Doors - An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them. “How the MoDs Are Done - The Work Queue”, the issue is not just being in the office.

The real issue is making sure that the commissioners read the memorandum of decisions (MoDs) which is their primary duty - and these days, their only duty. The work queue shows two key indicators:

1. How much time they spend on each MoD. I have copies of some work queues from two commissioners (one still there) who could approve 30 cases in 30 minutes, actually one every minute. That is as about fast as the computers could operate. That meant they spent no time reading, just signing ‘en masse.’ Obviously this same data shows how many they sign a day. These two commissioners would do an entire week’s work in one morning, giving them the rest of the week free. One would sometimes only do them every other week.
   
2. There is actually a second way to determine if someone is actually reading the MoD’s. With 400-500 MoD’s a month, about 5000 a year, what are the odds that any particular commissioner would affirm every decision. The insouciants do. The only exception is if, in ‘minute-signing’ their way through their queue ,they see that one of the engaged commissioners on their panel actually rejected an MoD, one insouciant would write “I agree”. If you look at his 5,000 MoD’s for the year, he would have notes on about 100, all “I Agree”, “Good Point”, etc You know, like asking your spouse a question and getting an “Huh?! O.K.”

It is unfortunate that the four or five insouciants on the Board reflect so badly on the engaged commissioners who do their work. One engaged commissioner would religiously do their work queues from home, glad to be able to avoid a very long drive to their district office. Unfortunately, the insouciants on the Board make life not only more difficult for the engaged commissioners and make them look bad, but also these insouciants insult every injured worker who was led to believe that a concerned political appointee would make sure that their case was being attentively reviewed.

Governor Cuomo, I can assure you that for the $90,800 a year a commissioner earns, there are a lot of qualified people out there who would love to have the job and would actually do the work.

Cuts in WCB Fees Passed in Budget

April 14, 2015 [5425]: The appeal of 13 Workers Compensation Board fees has finally been passed into law.

Originally announced on January 26, 2015, the elimination of these 13 nuisance fees will save those involved inthe workers compensation system $95,000 a year.

The State may discover that eliminating a $10 fee may well save $100 due to the cost of maintaining a billing system and keeping track of the “sales/applications” resulting from the fees:

1. Chiropractic Arbitration Request Fee. This is a $5 fee paid by a service provider related to any chiropractic dispute or arbitration of a bill handled by the Board.

1. Claimant's Representative License Fee. This is a $100 fee paid from individuals who are licensed with the WCB and represent claimants before the Board.

1. Hospital Arbitration Request Fee. This is a $5 fee paid by a service provider related to any hospital dispute or arbitration of a bill handled by the Board.

1. Medical Arbitration Request Fee. This is a $5 fee paid by a service provider for any medical dispute or arbitration of a bill handled by the Board.

1. Medical Center Authorization License Fee. This is a $200 license fee for compensation medical bureaus operated by qualified physicians for the diagnosis and treatment of industrial injuries or illnesses.

1. Medical / X-Ray Bureau Authorization License Fee. This is a $200 license fee paid by compensation medical bureaus operated by qualified physicians for the diagnosis and treatment of industrial injuries or illnesses.

1. Podiatry Arbitration Request Fee. This is a $5 fee paid by a service provider related to any podiatry dispute or arbitration of a bill handled by the Board.

1. Psychology Arbitration Request Fee. This is a $5 fee paid by a service provider related to any psychology dispute or arbitration of a bill handled by the Board.

1. Publication Fee. This is a $5 regulatory fee for purchasing Board publications.

1. Self Insurer's Representative License Fee. This is a $100 license fee paid by a third party administrator and/or self-insured employer. These entities represent employers at Board hearings.

1. Subpoena Fee. This is a $15 regulatory fee for subpoenas to obtain Board documents.

1. X-Ray Laboratory Authorization License Fee. This is a $5 license fee paid for a separate laboratory to engage in X-ray diagnosis or treatment of an injured worker.

WCB Has New Inspector General

April 7, 2015 [5424] Governor Cuomo has formally announced two appointments to the New York State Workers Compensation Board.

Confirming my posting last week, Cuomo formally named Mark Wade as the Board’s Executive Director.

In addition, the Governor named Catherine Leahy Scott as the Workers’ Compensation Fraud Inspector General, a position she will hold in addition to her role as Acting Welfare Inspector General and New York State Inspector General, to which she was recently reappointed. She previously served as First Deputy Inspector General, overseeing the office’s operations, supervised and managed the agency’s caseload, and represented the office before the State Commission on Forensic Science. Prior to this role, she served as Assistant Attorney General for New York State and spent five years in the general practice of law as a sole practitioner in Columbia County. She served for more than thirteen years at the Columbia County District Attorney’s Office, eight of which as Chief Assistant District Attorney. Prior to this, she was Columbia County Assistant Public Defender. Ms. Leahy Scott has a B.A. from Hofstra University and a J.D. from Hofstra University School of Law.

WCB’s New Executive Director

March 26, 2015 [5423]: According to several sources at the New York State Workers Compensation Board, Governor Cuomo has appointed a new Executive Director for the Board: Mark Gerard Wade,

In June 2014, Wade was appointed as Deputy Superintendent New York State Department of Financial Services

Prior to that he spent 12 years at the Arch Insurance Group Inc, ultimately serving as Chief Claims Officer and Senior Executive Vice President. Prior to that he spent seven years at Zurich North America.

He received his law degree in 1985 at the University of Pittsburgh School of Law, which he attended after receiving his BA at Georgetown University.

As noted in this week's DECISIONS page, the Board was affirmed in 9 out of 10 cases this week. Let us accept this as a gift to the new Executive Director and hope that his future endeavors will be as successful as has been the Board at the Third Department this week.

In this week's COMMENTARY, I have posted an open letter to Wade welcoming him to the Board and making some initial suggestions as to how he should start with his new responsibilities.

Cuomo Proposes to Repeal 12 WCB Nuisance Fees

January 26, 2015 [5422]: Governor Cuomo’s 2015-2016 budget includes the repeal of 59 nuisance fees charged by seven different State agencies. Of note is the fact that 12 of these fees, 22% of the total, are charged by the New York State Workers Compensation Board, the elimination of which will save WCB clients - carriers, attorneys, medical providers - $95,000 annually beginning in 2015-16..

Actually the savings are far greater. When I first started to run my family business (60 employees, all sales were outside the U.S.) I discovered that we were paying about 30 fees/licences a year to NYC and NYS for a total of about $500. I contacted a local legislator: I was willing to pay $1000, but in one check and one form, to consolidate these fees and save the need to file 30 different forms and write 30 different checks.

The 12 fees are:

1. Chiropractic Arbitration Request Fee. This is a $5 fee paid by a service provider related to any chiropractic dispute or arbitration of a bill handled by the Board.
2. Claimant's Representative License Fee. This is a $100 fee paid from individuals who are licensed with the WCB and represent claimants before the Board.
3. Hospital Arbitration Request Fee. This is a $5 fee paid by a service provider related to any hospital dispute or arbitration of a bill handled by the Board.
4. Medical Arbitration Request Fee. This is a $5 fee paid by a service provider for any medical dispute or arbitration of a bill handled by the Board.
5. Medical Center Authorization License Fee. This is a $200 license fee for compensation medical bureaus operated by qualified physicians for the diagnosis and treatment of industrial injuries or illnesses.
6. Medical / X-Ray Bureau Authorization License Fee. This is a $200 license fee paid by compensation medical bureaus operated by qualified physicians for the diagnosis and treatment of industrial injuries or illnesses.
7. Podiatry Arbitration Request Fee. This is a $5 fee paid by a service provider related to any podiatry dispute or arbitration of a bill handled by the Board.
8. Psychology Arbitration Request Fee. This is a $5 fee paid by a service provider related to any psychology dispute or arbitration of a bill handled by the Board.
9. Publication Fee. This is a $5 regulatory fee for purchasing Board publications.
10. Self Insurer's Representative License Fee. This is a $100 license fee paid by a third party administrator and/or self-insured employer. These entities represent employers at Board hearings.
11. Subpoena Fee. This is a $15 regulatory fee for subpoenas to obtain Board documents.
12. X-Ray Laboratory Authorization License Fee. This is a $5 license fee paid for a separate laboratory to engage in X-ray diagnosis or treatment of an injured worker.

The Insider: Personally I would rather he use the $92,500 to buy a big broom and sweep some of the ....... out of the Board offices.

WCB Still a Sinking Ship

January 22, 2015 [5421]: No matter how often you move around the crew in a boat or add more oars, it isn’t going to get any better if most (but not all) of them were no good to begin with and you keep the same coxswain.

I have been told that Commissioner Ken Munnelly, former General  Counsel at the Board, has been or will soon be formally named as Vice Chairman, to replace Frances Libous who has just retired. (As prpposed by me in my October 30, 2014 COMMENTARY Who Fills Libous’ Shoes) In addition, there is a rumor that Governor Cuomo's office has decided upon a new Executive Director, with the possibility that is a former state senator in need of a job.

The following announcement has just been emailed by Acting Executive Director Mary Beth Wood to all Board staff:

To all WCB employees:
 
The Chair and I would like to express our gratitude to all of you for the amazing work that was accomplished in 2014.  It is evident to us that the mission established 100 years ago to protect the rights of injured workers and employers is still just as vibrant today due to your dedication and professionalism.
 
We are very excited about the challenges facing us in 2015 as we embark on a new century of Workers’ Compensation and are confident that our agency has the talent and experience to meet those challenges.  In order to properly align us for 2015, the Chair and I would like to announce a few organizational and staffing changes.
 
Office of General Counsel:
We are establishing an Office of Issue Resolution within the OGC to include: the Adjudication Division, Administrative Review Division, and the Full Board Review team. David Wertheim will be the new Director of OIR. As background, David has been Deputy G.C. since 2011, and before that was Deputy Chief of ARD, and Senior Law Judge in the Albany district. He is extremely talented and will be working closely with the executive staff and his management team: Madeline Pantzer, Chief of Adjudication; Cheryl Wood, Director of ARD, Doug Mills, Deputy Director, ARD, and Keith Longden, Supervising Attorney in OGC/Legal Affairs.
 
The mission of OIR is to manage the spectrum of issues and disputes which require resolution by the Board, both formal and informal, throughout the life of a claim, and handle them in a timely, effective manner.  This is an important period at the Board where we are re-examining, through the BPR, the best way to utilize our resources, new technology, and new approaches to problem-solving, to improve the timely delivery of benefits.  Issue resolution is where these ideas have their greatest impact because decisions affect employer and carrier actions, and define the scope of benefits.  People look to issue resolution processes to be efficient, helpful, and consistent.  Realigning these issues under the same organizational structure will enable that efficiency.
 
We are also very pleased to announce that Michael Papa has been promoted to the position of Deputy Counsel.  Michael has served as Special Counsel in the OGC and has been a critical member of the team for the past several years.  He has been instrumental in protecting and representing the Board on highly complex legal matters relating to the Group Self-Insured Trusts.  In his new capacity he will continue its efforts with the Litigation Group and also assume additional responsibilities in the areas of compliance and regulatory affairs.
 
Division of Operations, Compliance & Regulatory Affairs
The Business Process Reengineering (BPR) will continue to be a major focus in 2015.  One large initiative coming out of the BPR is the newly established Compliance and Monitoring Unit.  This new unit will focus its efforts on identifying stakeholders that are not acting in compliance with the Board’s benchmarks, rather than on a case by case basis.  This more global approach will allow us to correct behavior and educate stakeholders to ensure better outcomes in the overall claims process.  This effort to reduce the frictional issues that cause delays in the process dovetails with the overall mission of claims and operations.  Therefore, to ensure a comprehensive approach to the workflow, we are merging Operations with the Bureau of Compliance and Regulatory Affairs.  We are pleased to announce that Elizabeth Lott will oversee this new organization. Elizabeth is a very vital member of the executive management team and we are excited to have her assume this new role. 
 
Division of Administration
As most of you know, Gus Thompson recently retired from his post as the Deputy Executive Director of Administration.  The Chair and I have agreed that most of these functions will report directly to me.  However, we are creating a new Bureau within this division: the Office of Risk Management and Employee Relations.  We are happy to announce that Dan West will manage this new Bureau.  Dan has been an invaluable part of the BPR project and brings with him a wealth of experience.  Dan will continue his role in the BPR and will assume responsibility for overseeing all aspects of Internal Control and Internal Audit Units to ensure the Board is in compliance with the State’s standards.  Additionally, Dan will oversee the Office of Quality Control, the Regional Administrators and other employee services.
 
We are also happy to announce that Dave Donohue will be assuming Dan West’s former duties and Luis Torres has accepted the position of District Manager in Albany.
 
Please join us in welcoming these individuals to their new roles and best wishes to all of you for a happy, healthy New Year.
 
Best,
Mary Beth

And, yes, sometimes someone who is left-handed will do a really much better job on the left side of the boat than on the right side but it takes someone with managerial skill and experience to know where their rowers talents lie and to know which, no matter where you place them, are just no good.

Town of Amherst WCB Case Continues

Medicare Coverage Denied to

Texas Worker comp recipients

GSIT Settlements: What is Fair??

Senator Savino: Join the Club!

Ms. Savino called "tackling" workers compensation reform her major focus this year, calling it a "disaster."
   
"In 2007 after almost 13 years of efforts to reform the workers comp system, the state adopted a workers comp reform package."
   
That should have driven down the cost of premium for employers, increase access to treatment for injured workers and expedite cases and get people back to work.
   
"It has done none of the above."

I am not stating that my www.InsideWorkersCompNY.com website is known all over the State or that it is the ‘go to’ site for information on workers compensation in New York State, but I have met the Senator on a number of occasions (not the usual ‘meet & greet” - my wife has hosted a number of non-political events with her). And have offered her my assistance, as a former Commissioner, on this issue.

If she is really interested in resolving some of the issues that plague the workers comp system in New York, perhaps a call by someone from her office to me would give her some unprejudiced suggestions.

Why We Don’t Trust Politicians

WCB’s Mismanagement Threatens
Small Business’ Future

October 8, 2014 [5415]: Mike Antonacci, who owns Eliminator Automotive in Auburn NY finds himself under threats of financial disaster based on the New York State Workers Compensation Board’s assessments against him.

As a member one of 431 members of the defunct  Automotive Service and Repair Self Insurance Trust, Antonacci has been assessed the sun of $21,184 to cover what the Board states is his share of liability for workers compensation awards that were not properly collected by the Trust.

In an email response to inquiries from Jim Kenyon, the article’s author,

the Workers' Compensation Board says the small businesses "are not being unfairly targeted. Rather the Workers' Compensation Board is ensuring that those members resolve their liabilities and do not shift them to other employers..." The Comp Board also points out that the state has set up a payment plan so Antonacci can pay off his debt over 10 years.

As I have reported on many occasions, although the under funding of the Trust was the result of unrealistically low insurance premiums set by the Trust’s managers, the under funding condition continued for many years during which time the Board failed to audit the Trust, one of the conditions est by the New York State Legislature in passing laws allowing the establishment of these self-insured trusts.

WC Doctor Guilty of Fraud

October 1, 2014 [5414]: According to a story in the Queens Chronicle, Dr Rajpaul Singh of South Richmond Hill was ordered to pay more than $65,000 in restitution last week after pleading guilty in June to defrauding insurance companies and the New York State Workers’ Compensation Board by fraudulently billing for medical tests.

Operating out of Liberty Avenue Medical, Singh would bill insurance companies and the Workers Compensation Board for certain neurological tests and therapies allegedly performed on the many car accident patients he saw, test and therapies never performed. Instead, Singh substituted old patient reports to support his fraudulent billing.

He was sentenced to a 3-year conditional discharge providing he meets a number of conditions including the payment of $65,849.25.

More cases of Medical Marihuana
vs Employer Rights

October 1, 2014 [5413]: On several occasions in the past year I have raised the issue of how the legal use of marihuana can effect employer’s options and now another case has surfaced.

The Colorado Supreme Court is hearing the case as to whether an employer’s termination of an employee for off-duty medical marijuana use legal.

Brandon Coats, a quadriplegic medical marijuana patient, was fired by the Dish Network after failing a drug test in 2010, even though the company did not allege that he was impaired on the job.

Several issues are raised here that, ultimately, will have to be decided in New York State, either by the state legislature or the courts and involves not just marijuana but all illegal drugs as well as alcohol and many legal narcotic drugs.

• Does a company have the right to demand a blood test as a condition of hiring and/or continued employment?
• Does a company have the right to terminate a current employee who fails a blood test or must they suspend them until they pass the test? And if so, after how many ‘failures’ would that employer have the right to terminate that employee? And is that ‘with cause’, thus no unemployment insurance, or would it be considered unjustified for unemployment insurance purposes?
• Do remember that one person can have 10 drinks and a blood alcohol level of .16 and be sober and unimpaired while someone who has one drink and a blood alcohol level of .01 and be ‘stinking drunk.’ So would impairment be based on a some chemical level in the blood, like for alcohol or would it be based on some ‘performance’ level? If the law states that failing the test does not count if the employee is not impaired, who sets the standards for ‘impairment’? And would the level of ‘impairment’ or the test therein be different for a truck driver as compared to the person who loads the truck? And if so, would that be considered “equal treatment’ under the law?
• If any employer is required to hire keep on the job someone who has just failed a blood test because some third party thinks that person is unimpaired and that person has an accident, does that injured worker still quality for workers comp? And if a third party is injured, is the employer liable for having kept that employee on the job?

According to the AP report,

Tuesday's arguments highlighted the clash between state laws that are increasingly accepting of marijuana use and employers' drug-free policies that won't tolerate it. "This case need not be an endorsement or an indictment of medical marijuana" but a chance to set standards for employee conduct, Dish attorney Meghan Martinez told the justices. "It's a zero-tolerance policy. It doesn't matter if he was impaired or not."

The AP report then list a number of states with conflicting policies and attempt to reconcile state and federal statues as to the legal/illegal use of marijuana.

Unfortunately, I do not see any relational discussion or agreement that deal with these subjects which means that there will be a lot of poorly written laws that will result in a lot of workers, including those legally allowed medical marijuana, who will be out of work while spending a great deal of money (which since they are not work they will not have) to make a legal case while employers spend money to fight to insure that they have a safe workplace for their employees and customers.

Changes at the Top of the Board

Anyone notice WC Law Changes?

September 14, 2014 [5411]: It not only appears that the Workers Comp Board’s move from Menands to Schenectady was legal, but WCL §146 Office of the Board was changed last year as part of the annual budget bill.

The old law read:

§ 146 Offices of the board. The principal office of the Board shall be in the city of Albany ….

The new law reads:

§ 146. Offices of the board. There shall be an office of the board in the city of New York and at such other place or places in the state as may be required properly and conveniently to transact the business of the board.

How did this happen?

Simple. A bill of several hundred or even a few thousand pages is being prepared to be printed, distributed to the members of the legislature and voted on. This is the moment that lobbyists live for: they simply have someone stick a page or two into the document just before it is sent for final printing. Since most members (99%) of the legislators do not read the entirety of the bills presented for a vote, if they read any of it at all, almost anything can be stuck into the bill. And when there are those who see it, such a ‘minor’ item has no meaning and it just gets ignored. The bill gets distributed, voted upon by the Assembly and Senate and then goes to the Governor for signature and, most likely, his office does not read every single page in the bill.

As House Minority Leader Nancy Pelosi (D-CA) said about ObamaCare<

    “But we have to pass the bill so that you can find out what is in it, ...”

Well, if this policy of "pass it and then read it" is good enough for our nation’s representatives and senators, can we expect any less from our state's senators and assemblyman?

So who knows what else that favors for Board's administration that has been stuck in a bill by some lobbyist for the Board or a real estate mogul, something that makes life better for the Board’s executive staff and at best, doesn’t do any more of a disservice to injured workers as is the case now.

Lower Rates Recommended Nationally

September 14, 2014 [5410]. The  National Council on Compensation Insurance Inc. (NCCI) has recommended the states reduce their workers comp rates for 2015, according to Sheena Harrison, writing for www.businessinsurance.com.

The NCCI sates that  better policy underwriting, increasing comp premiums, and a national decline in claim frequency warrants a decrease in rates. Boca Raton, Florida-based NCCI, a nationwide workers comp ratings and research organization, is the comp rating agency for 35 states and the District of Columbia. It also provides actuarial data for rate making agencies in Indiana and North Carolina.

In May, the New York Compensation Insurance Rating Board proposed a 6.8% increase in state workers comp advisory rates, effective Oct. 1. However, the New York Department of Financial Services rejected the proposal in July, keeping rates unchanged from last year.

Ziv Kimmel, the New York rating board's vice president and chief actuary, told Business Insurance that the board requested a rate hike because increasing medical and indemnity costs have outpaced decreases in claim frequency. The state approved a 9.5% increase in workers comp rates last year.

Drug Testing, Safety, and Marijuana
in the NYS Workplace

September 1, 2014 [5409]: In an article titled “Drug Testing & Safety: What’s the Connection?”, Joe Reilly notes that companies, who have implemented drug testing programs, have reported that their incident rate of workplace injuries has a dropped from 14 percent to 6 percent.

But at the same time, confusion over medical marijuana in the workplace continues as illustrated by WCBS’s September 2, 2014 story about Don DeZarn, a Princeton University employee, who has been prescribed medical marijuana for inflammatory bowel disease and post-traumatic stress disorder. He has been told by his employer to choose between medical marijuana and his job and, in New Jersey, employers do not have to accommodate medical marijuana use in the workplace. The issue is whether  he can take his RX in the parking lot and then go into work, perhaps, as some may argue, similar to the historic two-martini lunch.

While the above referenced survey, conducted by The Drug & Alcohol Testing Industry Association (DATIA) and the Society for Human Resource Management (SHRM) in March 2011, touches on drug use in the workplace, the second issue is the use of sch drugs (marijuana or alcohol) just before entering the workplace while that drug is still in the worker’s system..This is based on a survey conducted by The Drug & Alcohol Testing Industry Association (DATIA) and the Society for Human Resource Management (SHRM) in March 2011.

• The 2012 National Survey on Drug Use and Health (NSDUH), an annual survey sponsored by the Substance Abuse and Mental Health Services Administration (SAMHSA), reported that around 8.9 percent of those employed full time reported use of illicit drugs in the workplaces.
• The U.S. Department of Labor has reported that drug and alcohol abuse in the workplace causes 65 percent of on-the-job accidents and that 38 percent to 50 percent of all workers' compensation claims are related to the abuse of alcohol or drugs in workplace.
  

While one may not agree with these statistics (one always questions the ....... of reports with which one does not agree), the fact that New York State has now joined several other states by allowing medicinal use of medical marijuana raises some interesting questions:

• Must the employer be advised that the worker, back at the job, is using what is considered to be a ‘mind- altering’ drug?
• Who has the responsibility of informing the employer: the worker, the medical provider, the carrier?
• Can the employer suspend the worker, lest the use of this drug increase the possibility of a workplace injury to that worker or other at the workplace? Of course, if the use is due to a workers comp claim, the injured worker would still get WC benefits.

Reilly goes into great detail on the substantial difference between drug testing and drug testing programs. He also details various methods of improving workplace safety on this issue.

It will be interesting to see what impact medical marijuana has on workplace injuries in NYS and in workers compensation claims.

Out-Of-State NFL Linebacker wins California WC claim

Congress Reviewing
New Medicare Set-Aside Laws

Names of NYS WC Board’s Exec Staff

August 20, 2014 [5406]: In view of the uncertainty in the workers compensation community as to the names of key executive staff at the NYS Workers Compensation Board. I have take the liberty of contacting the Board for an updated list of some key positions, including those whose position carries with it the title of ‘acting’. In response to my email, the Bard sent the following list:

• Chairman – Robert E Beloten
• Vice Chairman - Frances Libous
• Executive Director (Acting) - Mary Beth Woods
• General Counsel (Acting) – David Wertheim
• Chief Administrative Review Division (Acting) – Cheryl Wood
• Chief of Adjudication (the Law Judges)– Madeline Pantzer
• Secretary to the Board – Kim McCarroll
• Public Affairs - Rachel McEneny
• Medical Director - Elaine Sobelberger
• Director, Regulatory Affairs (Also Project Director of the BPR) - Brian Collins
• Deputy Director - Elizabeth Lott
• Assistant Director of Operations - Dan West

Hopefully, in the near future, despite this being an election year, Governor Cuomo will take steps necessary to strengthen the Board’s leadership and make the positions permanent those who are qualified to remain at the Board.

Email the Insider with your comments and questions.

NYS WCB Vice Chair Libous's Home
Raided by FBI

August 14, 2014 [5405]: As noted in an E-mail ALERT/BULLETIN from this website on Tuesday and reportedly widely throughout the New York state press and news outlets, the F.B.I. has raided the home office(s?) of NYS Workers Compensation Vice Chairman Frances Libous.

State and federal investigators last week seized papers, a laptop, and cell phones from the Binghamton home of Frances Libous, 62, as part of a joint task force of the Federal Bureau of Investigation and the state Attorney General's Office. The force is investigating charged filed against her husband, Deputy Senate Republican Leader Tom Libous, and her son, Matthew Libous. Matthew is accused of income tax evasion and her husband of lying to an F.B. I. Agent during a 2009 interview abut his son’s being hired by a law firm, allegedly, in return for ‘future’ benefits from the firm’s relationship with the Senator.

Although one of the articles mentions that the home searched was an apartment kept by the Senator inside Binghamton, there was no mention if the search included:

• the water front estate owned by the Libous’. In the late 1990's she invited the Board Members, all of whom were in Binghamton for a Board meeting, to her newly-builtdream house in order to show off all its accouterments.
• their condo in Florida from where, as reported by James Odato of the Times Union, Frances Libous is “known to work” and “often participates in board meetings from afar, according to people familiar with how the board operates.”

It will be interesting to see if Vice Chairman Libous’ rather large presence at the Board will continue to have the impact it did before the initial indictment of her husband and son six weeks ago.

The Insider: If anyone would like to provide additional information on matters that may pertain to this investigation, feel free to send them to me at TheInsider@InsideWorkersCompNY.com. All incoming emails on such matter will be deleted once they are read by me and any information will be posted as coming from anonymous sources, subject to my confirming the validity of same. Or send them to James Odatao (518-454-5083 or by e-mail at jodato@timesunion.com) or Rick Karlin (518-454-5758 or by e-mail at rkarlin@timesunion.com)

WCB Menands Office Closing??

August 7, 2014 [5404}: Rumor has it that the NYS Workers Compensation Board is planning to close the Menands office and move that facility and staff to the Schenectady office.

Apparently the NYS WCB, or its bosses in Governor Cuomo's office, has decided it is cheaper to move the entire 100,000 square foot facility and nearly 400 employees from Menands to join the rest of the staff in a state office building in Schenectady to save money. Although sources close to the negotiations have stated that no one had given any indication of the savings expected to be achieved by this move, nor for that matter the costs associated with it.

However, one person involved in the planning questions the decision in view of the fact that  the current lease has an automatic extension for another 10 years at the same below-market rent as is currently being paid, $10 a square foot. In addition the current facility in Menands has more than sufficient parking for the staff and all the visitors that come to Menands, be it attorneys or injured workers or witnesses participating in hearings or those conducting other business at the Board. Also, this is the site of the Board's main computer system.

Nor has the Board addressed the concerns of the dozens of major law firms who have their offices in Albany who, like hundreds of the Board's staff, would now have to make the 30 minute drive to Schenectady.

One claimant attorney in Albany stated, "While it is nice to see 400 jobs moved to an economically disadvantaged upstate city like Schenectady, the answer to that problem is not taking 400 jobs away from an economically disadvantaged upstate city like Albany." This same attorney then noted, "As to the inconvenience this move may cause, the Board seems to show no concern for the convenience and comfort of injured workers, their families or their attorneys when one considers the Board's refusal to accept free space in Hornell where the Board decided to close a small satellite office."

Another attorney noted that he expects that the local political leaders will put up a fight lest they lose dozens of low-level patronage jobs to the leadership in another county.

It is interesting to note that in the 1970's, under Governor Mario Cuomo, the current Governor's father, the Board offices were moved to Brooklyn in New York City while the only office near the state capital was not in Albany but in Menands, a clear violation of WCL §146 which states that "The principal office of the board will be in the City of Albany." One can suppose that Governor M. Cuomo considered Menands as his 'beard'. Now that his son, Governor Andrew Cuomo, is planning on moving Menands to Schenectady, Andrew's 'beard' in Albany is what most consider to be no more than a mail drop at 20 Park Street, the Board's only physical presence in Albany.

Calls to the Board's office have been unanswered.

The one major question I have is:

Since Deloitte Touche is still studying ways to improve the Board's performance and service to its constituents, wouldn't it make more sense to await their recommendation before moving and redesigning the Board's main office and computer system?

Email the Insider with your comments and questions.

NYCIRB’s Rate Increase Denied

July 17, 2014 [5403]: The New York Compensation Insurance Rating Board (NYCIRB) announced in a bulletin yesterday that the New York Department of Financial Services (DFS) issued an opinion and decision letter disapproving the +6.8 percent workers’ compensation loss cost level change filed with the DFS on May 15, 2014 for an effective date of October 1, 2014.

Consequently, the NYCIRB noted, the current loss costs and rating values will remain in effect. Carriers, however, have the option to file revised loss cost multipliers with the DFS.

Among reasons given, the DFS said it disagreed with the NYCIRB’s permanent partial disability duration cap loss assumptions and the Reopened Case Fund closure assumptions. The DFS also stated that the state’s Workers’ Compensation Board (WCB) [medical] guideline reforms would allow carriers to realize “meaningful savings.”

However, other than using data from other states which have similar guidelines, the NYS DFS had no data from the New York State Workers Compensation Board or anyone else to support its contentions.

Email the Insider with your comments and questions.

WCB's Vice Chair Libous’
Husband & Son Indicted

July 3, 2014 [5402]: I present this headline because it is news which may impact on Libous’ ability to devote her time and attention to her responsibilities as Vice-Chairman of the NYS Workers Compensation Board.

Details on th indictments of her husband, Senator Tom Libous, the deputy leader of the NYS Senate’s Republican conference, and her son, Matthew Libous, have been posted in the Times-Union, New York Times, Daily News, and dozens of other newspapers and websites throughout the state. Accordingly, no details of the federal indictment will be listed herein. 

Email the Insider with your comments and questions.

NYSIF Has 4 New Bd Members

June 30, 2014 [5401]: The New York State Insurance Fund today announced the appointment of four individuals to the agency’s Board of Commissioners. The four new Commissioners, Joseph A. Guistino, Charles B. MacLeod, Sheila A. Stamps and Alexis E. Thomas, were first nominated by Governor Andrew M. Cuomo and confirmed by the New York State Senate on June 20, 2014, for terms of three years each.

Board Chairman Kenneth R. Theobalds was also confirmed by the Senate and reappointed to another term.

Commissioner Joseph Guistino has been a Certified Public Accountant, with almost 30 years total experience specialized in the field of forensic accounting with PricewaterhouseCoopers LLP in the New York Metro office for nearly 20 years, the last 10 of which as a partner. He is a member of both the American Institute and New York State Society of Certified Public Accountants, and is an associate member of the American Bar Association - Litigation Section.

For nearly 30 years, Commissioner Charles MacLeod has been the principal and owner of SMM Advertising, a full-service advertising and marketing firm that serves a wide variety of manufacturing, institutional and non-profit clients.

Commissioner Sheila Stamps most recently served as Executive Vice President of Corporate Strategy and Investor Relations at Dreambuilder Investments, LLC, a private mortgage investment company. Prior to Dreambuilder Investments, she served as Director of Pension Investments and Cash Management at the New York State Common Retirement Fund. Stamps received her MBA from the University of Chicago and her BS in Management Sciences from Duke University.

Commissioner Alexis Thomas serves as Principal and Manager of the Municipal Underwriting and Syndicate Desk at The Williams Capital Group, L.P., where she directs all aspects of senior and co-managed deals for tax-exempt transactions. Thomas holds an MBA in Finance from Columbia University, a Master of City Planning from the University Of Pennsylvania and a Bachelor of Science degree from Morgan State University.

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NJ: Medical Marijuana = Job Suspension

May 20, 2014: The problems of legalizing medical marijuana vis a vis workers compensation which I noted in my February 27, 2014 posting on this page has become a real issue in New Jersey where medical marijuana is legal.

In April, the AP reported that a NJ Transit (NJT) clerk, Charlie Davis, who is a registered medical marijuana patient, is suing after the agency suspended him for failing a drug test. Davis was sent for a drug test in December and told the medical director that he’s a medical marijuana patient. It is NJT’s position that, even though the drug is legal for certain patients in the state, it’s prohibited under Federal Railroad Administration and Federal Transit Administration guidelines.

While it can be argued that “he’s protected by a state law which protects workers from being punished if following the law,” driving while DWI and DUI is illegal in most states. DWI is ‘driving while intoxicated’ and usually relates to alcohol. But DUI is ‘driving under the influence’ and relates to driving while on various pharmaceuticals, legal and illegal.

So if Davis comes to work ‘high’ after taking his medicine, should he be allowed to work? Would you want someone high on a legal drug, be it oxycodone, ambien, or marijuana performing as the driver of your child’s school bus? And how would your other employees feel if that person was operating a hi-lo in a crowded warehouse?

In New York State, truck drivers on certain narcotic-type drugs can continue to get comp and not return to work as a driver because of the danger they present behind the wheel. Should marijuana be treated any differently?

And how does one measure ‘high’? Yes, for alcohol, 0.07999 is legal and 0.08 is not. But I have friends who can perform the most intricate physical and mental activities with a 0.16 while I have some who will pass out with a teaspoon of alcohol, i.e. 0.005. How will we measure marijuana?

Also, if you can be fired for drinking on the job or coming in to work after two beers at lunch, why should an exception be made for marijuana?

As the New York State Senate, under the sponsorship of Senator Savino, pushes to legalize medical marijuana in New York, someone had better take a close look at how this will impact, not only on the workers compensation system and unemployment cases, but also drivers, school teachers, and dozens of other professions.

As reported in the AP article, Seton Hall law professor Charles Sullivan, who specializes in employment law, is quoted as saying, “There have been five or six cases in different states, have gone against the plaintiffs. The employers have always won.”

One would like to think that the NYS Legislature, with all this advance warning, would write legislation that would minimize the need for law suits to help settle these issues. This is far too serious an issue to be subjected to some ‘feel good’ legislation.   [45282-5400]

Email the Insider with your comments and questions.

An Alternative to Opioids

May 20, 2014: This website as well as every website dealing with injured workers and medical treatment deals with the issue of the over application of opioids. It almost seems that the media is in a race to publish stories about which state has the highest usage/abuse of opioids as well as the concern that many of the prescription drugs find their way into the black market.

But the May 10, 2014 "A Soldier's War on Pain" article, published by the New York Times, clearly illustrates that there is another solution besides opioids to solve the issue of chronic pain.

One key point in the treatment of pain appears to be the distinction between, chronic pain and acute pain. Dr. Karen Seal, who specializes in pain treatment at the Veterans Affairs Medical Center in San Francisco, stated that "I think that the more appropriate use of opioids is in the acute pain setting and the surgical setting. I am not convinced that opioids are any better than non-opioids" for chronic pain.

Evidence of this is given by Sgt Shane Savage who, on September 3, 2010, was in an  armored truck in  Afghanistanwhich was blown apart by a roadside bomb, resulting in severe concussion, post-traumatic stress, and chronic pain as well as 24 crushed bones in his left foot. Savage, who is the focal point of this story, became so addicted to opioids that at one point he tried to kill himself. He ultimately went to a VA Hospital in Tampa, Florida that ran a multidisciplinary pain treatment program ultimately giving up drugs for a physical therapy program.

When Savage did have extensive and painful surgery on his foot, he did take opioids but only for a few days, for what Dr Seal would have referred to as a period of ‘acute pain".

The Times reported that according to Dr Christopher Spevak, a pain specialist, "[f]ive years ago, approximately 80 percent of the injured soldiers treated at Walter Reed Army Medical Center in Washington were prescribed opioids. That figure has since plummeted to 10 percent, and many patients are benefitting from the change."

Unfortunately it is far easier, faster, more efficient, and thus more profitable for treating physicians, for any one, two, or all of these reasons, to write out a prescription for opioids rather than recommending therapy.

But as noted in the preceding article about medical marijuana and return to the workplace, not only are the out-of-pocket costs for long term use of drugs higher than that of the kind of therapy Sgt Savage found in Tampa, but the use of opioids keeps many workers unable to return to the work force.

Unfortunately, this is not an issue to be resolved by legislation. It takes the coordinated efforts of the insurers and medical profession to have the willingness to take on complex and expensive (in the short-term) therapy in lieu of creating an army of drug-addicted injured workers.      [45282-5399]

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Karl D. Henry, R.I.P.

♦April 4, 2013: 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.

I used to refer to Karl as one of the Four Horsemen of the Apocalypse who, along with Vice-Chair Jeffrey Sweet, Carol McManus, and me, under the guidance of Chairman Robert Snashall, helped bring the board into the computer ago add set a standard for efficiency that has not been seen in the past few years. Karl's attentiveness in hearings was matched by his humor which, one hoped, would lessen the impact on those who did not prevail at the hearing.

Prior to joining the Board, Henry was a Veteran of the U.S. Army who served in Korea from 1960-1962, a member of the American Legion Troop I, Post 665, a Village of Hamburg Trustee, former Mayor of the Village of Hamburg, and a member of the Erie County Legislator.

Karl was the beloved husband of Donna M. (nee Lorenzo) Henry; dearest father of Karoline Henry; stepfather of Kelly McCartney and Michael (Jeanette) McCartney; grandfather of Alexxis and Liberty Henry, Connor McCartney-Hurley, Delaney and Rowan McCartney; dear brother of Karole Jenson; dearest uncle of Sara (Donald) Benson.

The family will be present Saturday and Sunday from 4-8 PM at the (Delaware Chapel) AMIGONE FUNERAL HOME, INC., 1132 Delaware Ave., (near West Ferry St.), where prayers will be offered on Monday at 9 AM, followed by a Mass of Christian Burial at 10 AM from St. Joseph University Church. Share condolences at www.AMIGONE.com.   [44276-5398]

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Jeffrey Fenster, WCB Ex. Dir, Resigns

March 19, 2014: Jeffrey Fenster is finally stepping down as executive director of the NYS Workers Compensation Board, as reported by Jim Odato in the Times Union.

Fenster, who at age 29 arrived in the post after appointment by Gov. David Paterson, has been tied to former Assemblyman Vito Lopez. The disgraced Brooklyn Democrat allegedly helped Fenster get his job, according to references in a report concerning Lopez by the Joint Commission on Public Ethics. According to the report, Fenster, who was making $151,000 a year will be taking a position in the private sector.

The Insider: Whether he is being pushed out as part of the work being done by Deloitte Touche to modernize the Boar and make it more efficient and responsive to its raison d’etre or if there be some other issue, it is about time. His hiring and departure remind me of my former dentist. He used a technique which he told me most others did not use because it took years to master it. He said, “I learned it as a naval dentist because, working for the government, how long I took to do something and how many mistakes I made while learning made no difference.” So, assuming Fenster is leaving of his own accord, it is nice to know that he has finished practicing and will enter the private sector where there is no room for a learning curve. And hopefully the Governor will pick as his replacements amain who with real-world management experience and some idea of what it is to be an injured worker dependent on a state agency for help and attention. [43274-5397]

Email the Insider with your comments and questions.

NY ‘scaffold law’ endangers workers,

drives up costs

    ♦by Joe Schwartz      Feb. 28, 2014
[Press Release from Cornell University]
ITHACA, N.Y. — New York state’s unique “scaffold law,” or Labor Law 240, designed to keep construction sites safe, is actually doing just the opposite: It is causing hundreds of injuries while costing the public millions of dollars.

The scaffold law places liability for construction site injuries solely on the builder, and according to a study by the University at Albany and Cornell University, the State of New York incurs an additional 677 workplace accidents per year because of the law.

In addition to making worksites more dangerous, researchers discovered that the scaffold law annually diverts at least $785 million of public money away from schools and local governments toward lawsuits, legal costs and insurance.

The study also analyzed the effect of the scaffold law on the private sector, which is estimated at $1.487 billion per year. The study took into account associated legal costs, workers’ compensation payments, medical costs and other expenses.

For more than 30 years the law has been a frequent target of debate in Albany. Proponents of reform, including contractors, businesses and local governments, charge that the absolute liability standard of the scaffold law is outdated and unnecessarily drives up costs for construction in New York. Those opposing reform counter that placing absolute liability onto contractors and property is essential for workplace safety.

The study also found:

• New York is the only state in the country to have such a law, and there is no evidence that any other country has a similar standard of absolute liability
• Additional injuries associated with the scaffold law cost New York State between $34 million and $84.7 million in worker’s compensation costs, and between $26 million and $65.1 million in direct, indirect and quality-of-life costs, annually
• Redirecting the money spent on lawsuits and insurance to the construction industry would add an additional $480 million in labor income
• Shifting dollars from lawyers and insurers to contractors would be a net gain of 12,000 jobs
• Study estimates an additional $110 million spent annually on legal costs associated with the Scaffold Law

The study was funded by the New York Civil Justice Institute, a non-partisan nonprofit research organization committed to providing objective analysis and solutions to issues affecting New York’s civil justice system. [43273-5396]

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OK’s State Fund

Now A Mutual Company

♦March 11, 2014: In a unanimous decision, Oklahoma’s highest Court upheld a law to convert the state workers' compensation insurance agency into a mutual company.

The lawsuit alleged that converting CompSource from a department of the state to an independent, licensed mutual insurance company without providing that the state retain ownership of CompSource's assets, allegedly valued at $265 million, violates the Oklahoma Constitution's prohibition against gifts of public money and the prohibition against money being paid out of the state treasury except by legislative appropriation.

In response the Court wrote that “We conclude that CompSource’s money and other assets are held in trust for the benefit of the employers and employees protected by the insurance issued by CompSource. . . .  The Oklahoma Constitution does not prohibit the Legislature from placing CompSource’s money and other assets in trust with a domestic mutual insurer.”  The new company, CompSource Mutual, will be a continuation of CompSource but independent of the state, the ruling said.

Supporters of the legislation said mutualizing CompSource would remove many of the competitive advantages it enjoyed. The agency writes about one-third of Oklahoma's workers' compensation policies. Among other things, the legislation requires that CompSource be regulated by the state Department of Insurance like private workers' compensation insurers and be required to pay insurance premium taxes. Opponents expressed concern that the changes will hamper CompSource's role as the state's insurer of last resort.

Additional information on this story can be found at newsok.com and the Associated Press. [43273-5395]

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Disbarred WC Atty’s Readmission
Denied Again

♦February 6, 2014: The NYS Appellate Division, Second Department rejected the second attempt of disbarred attorney Leonard Krouner to be readmitted to the bar, after he was disbarred in 2003. His 2011 application was also denied.

According to the Times Union, Krouner pled guilty in 2003 to three felonies in Albany County: insurance fraud, grand larceny, and fraudulent Workers' Compensation Law practice. “Between October 2000 to November 2001, Krouner had reeled in more than $150,000 from his law practice — and worked as an administrative law judge — after claiming a back injury he suffered from falling off a chair made him unable to work.”

The Court wrote, “Upon review of the submissions and consideration of all the circumstances, we conclude that respondent has not shown by clear and convincing evidence that he possesses the character and general fitness to resume the practice of law. Accordingly, we deny his current application for reinstatement.” [42270-5394]

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WCB offered Free Site
to Keep Hearing Point Open

February 6, 2014: In order to keep open the Hornell workers' compensation hearing site,  Hornell Mayor Shawn Hogan has offered free space to the Board while William J. Pulos, of the Hornell law firm Pulos and Rosell, LLP, is asking Gov. Andrew Cuomo for a personal meeting to press for a reversal of that closure, one of eight the Board is closing, noted here on October 10, 2013.

The State's explanation for closing the "remote" eight sites was "cost savings," Pulos said. The Board had noted that it would save about $300,00 a year for the eight sites. Hornell was one of four sites where hearings were held in a state office building, "at no cost to New York State," Pulos contends. So Mayor Hogan has offered free office space to the Board, with hearings conducted in front of the administrative law judges by video conference.

Hogan said he told a New York State Workers' Compensation Board official, Dan West, the Board's Director of Operations, of the city's offer. Hogan said West was receptive to the proposal, "after the smoke has cleared" on the closings.

The Insider: One does not need to be that familiar with politics to know what ‘smoke’ West is talking about. [42268-5393]

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Ohio New Opiate Plan Cuts Abuse

♦January 27, 2014:  Like most states, Ohio has had major problems in its workers compensation system with the ever-growing abuse of opiates by injured workers.

According to a press release from the Ohio Bureau of Workers’ Compensation (BWC) board of directors, opiate doses have dropped by 10.9 million since 2010, before the introduction of BWC’s first-ever outpatient medication formulary in 2011. The changes also resulted in a 27.8-percent drop in opioid prescriptions and a 72.9-percent decrease in skeletal muscle relaxant prescriptions in 2013 compared to 2010.  In fact, during the past five years, the agency has paid for more than 188.5 million doses of narcotics prescribed to injured workers. Last year, it spent $38.2 million for 357,970 prescriptions for opiates to 39,028 claimants.

Among the key changes, the formulary is updated regularly and includes guidelines for coverage of various drugs. For example, a 2012 update restricted most skeletal muscle relaxants to coverage for 90 days from the first prescription, plus one additional 30-day prescription per 12-month period. Some restrictions put into place for opioid and anti-ulcer agents require prior authorization or a related condition approved in the claim.

Also, starting this month, the state-run insurance program for injured workers said it no longer covers prescriptions for controlled substances unless the provider enrolls in an automated reporting system designed to identify possible misuse of opiates, according to the Dayton Daily News.

The announcement comes on the heels of a new rule requiring medical providers caring for chronically injured workers to use the Ohio Automated Rx (prescription) Reporting System (OARRS).  BWC’s newest pharmacy rule, similar to recently adopted statewide Opioid Prescribing Guidelines, became effective Jan 1. Ohio providers who write controlled substance prescriptions for chronic care must now enroll in OARRS in order for BWC to cover these prescriptions. Chronic care is when providers write three or more prescriptions for controlled substances for the same injured worker during a 12-week period. [42268-5392]

Did you know...

January 29, 2014:  Under the current Colorado workers comp laws, an injured employee can lose 50 percent of benefits if he or she ignored safety rules on the job. Currently, there is legislation being sponsored by Representative Angela Williams of Denver under which benefits would jump 50 percent if the employer did not follow important safety rules.

The Insider: Can you image how many more controverted cases there would be in New York if fault entered into the amount of the award?  With a no-fault system, most injuries are uncontroverted by employers and employees. But if each side stood to gain by proving the other side’s fault, would this mean controverted cases would not get resolved for another year or two?

Emotionally appealing but logically creating a more complex system than we already have in NY. Not noted is: If the employee’s negligence caused the accident, must the employer still pay 100% of the medical bills? [42268-5391]

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NYSIF Elects new Chairman:
Kenneth R. Theobalds

January 22, 2014: The New York State Insurance Fund Board of Commissioners unanimously elected Kenneth R. Theobalds as NYSIF Chairman at the board’s regular monthly meeting on January 22, 2014.

Chairman Theobalds, vice president of Government & Regulatory Affairs for Entergy, has been a member of the NYSIF Board of Commissioners since 2008. He has served as NYSIF presiding chairman since May 2013, and is a former deputy executive director of the State Insurance Fund.

Mr. Theobalds has over 20 years’ experience in New York public affairs and has direct responsibility for Entergy’s regulatory, state and local government relations in New York, Massachusetts, Vermont and Michigan. A former congressional staffer and assistant secretary to former New York Governor Mario M. Cuomo, Mr. Theobalds serves on the board of directors of the Business Council of New York State, and the executive committee of the Business Council of Westchester and the Westchester County Association. He is past chairman of the African American Chamber of Commerce of Westchester and Rockland, Inc.

He also served as a former congressional staffer and assistant secretary to former New York Governor Mario M. Cuomo. More on his background can be found in the official NYSIF press release.  [41267-5390]

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More Critiques of
Fenster’s Opinion Piece

January 20, 2014: Robert Wilson,  President & CEO of WorkersCompensation.com, added his criticisms to my COMMENTARY last week regarding WCB Executive Director Jeffrey Fenster’s opinion piece in the Buffalo News last week.

Wilson key point is that, “a balanced reform may not be at hand.” He then quotes Fenster and follows with a very specific critique:

Fenster: “Our most concerted outreach is to the injured workers, who are the heart of our system. Our dedicated injured worker focus group, labor groups around the state, injured worker days in our offices and an ongoing injured worker survey with 6,000 responses to date all contribute to this initiative.”

Wilson: “While injured worker input is critical to the process, I would point out to Mr. Fenster that workers' compensation was not created just for them. Specifically, employers were equal partners in the "Great Compromise", and their interests and input should be heard on an equal basis. They are also the "heart of the system", indeed; one of the only two categories workers' compensation was established to serve.

Where are New York's employer focus groups? Employer days in the board offices? An ongoing survey of employer needs and observations? Where is the concerted outreach to this critical constituency within workers' comp?

The full text of Wilson’s commentary can be found at www.workerscompensation.com/compnewsnetwork/from-bobs-cluttered-desk/18162-will-new-york-workers-comp-reform-reflect-just-one-side-of-the-village.html.      [41266-5389]

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WCB Sues GSIT manager for $12M

January 17, 2014: The Courthouse News Service reports that the NYS WCB has finally taken action against the manager of one of New York’s many insolvent Group Self-Insured Trusts.

Philip LaRocque is being sued to recover the full $12,000,000 that represents the deficit and panelties due on behalf of The Builders' Self-Insurance Trust.   

Michael Papa, the WCB'S legal representative claims in Albany County Supreme Court that "Trustee LaRocque fraudulently represented to Builders [Trust] that he was a trustee working in their best interest, when in reality he was intentionally benefitting NYSBA, a separate entity of which he was an officer."

Among the complaints are:

• “Defendant LaRocque obtained benefits from, and protected the interests of, NYSBA instead of administering his duties as Builders' trustee in a non-biased manner.”
• "... including but not limited to failing to provide for the proper capitalization of Builders [Trust], setting improper contribution rates, and failing to comply with Builders' membership requirements in relation to the admission and removal of members, and failure to prevent inherent conflicts of interest."
• "... material misrepresentation of fact, with the intent to deceive the trust and Builders' members and to induce the trust and its members to act on these misrepresentations."

LaRocque is currently principal of LaRocque Business Management Services in the Albany suburb of Guilderland, offering building- and labor-consulting services. In a 2009 interview in the Troy Record, he stated, “I am the CEO of a leading trade association that advocates at the state government level on behalf of 3,000 member companies who develop, build or renovate $5 billion annually in residential construction throughout New York state. I also serve as treasurer of the Builders Management Services, LLC and its licensed insurance agency.” 

The Insider: That they should be as agressive, unbending, and forceful against this individual as they are against a local candy store that forgets for a month to renew its WC insurance. [41266-5358]

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NYSIF Welcomes
New Executive Director

January 6, 2014: The New York State Insurance Fund Board of Commissioners has formally announced the election of Eric Madoff as NYSIF Executive Director.

Madoff  began as NYSIF's chief executive on January 6, 2014. He joins the Fund from the New York State Department of Financial Services (DFS), where he served as chief of staff from 2011 to 2013. At DFS, he had operational responsibility for an agency of 1,400 employees, overseeing administration, finance, technology and other support areas, while implementing numerous initiatives to improve efficiency and customer service. From 2009 to 2010, Madoff was chief investment and strategy officer for the New York Liquidation Bureau. He was responsible for $2 billion in investment assets for the bureau, which manages insurance companies placed into receivership by DFS. After serving as a captain in the U.S. Army from 1987 to 1992, he worked in financial services in the private sector.   [41264-5387]

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WCB Transfers Claims Handling to Firm
Excoriated by Nassau County in 2012

January 2, 2014: The NYS Workers Compensation Board has selected the Triad Group, LLC of Troy, New York, to manage established Uninsured Employers' Fund (UEF) claims. This follows up the Board’s June 7, 2013 announcement that Triad was selected to manage the World Trade Center (WTC) Volunteer Fund claims starting June 24, 2013.

Not noted in these announcements is that Triad, which was handing the workers compensation claims for Nassau County, was excoriated by Nassau County Comptroller George Maragos in a scathing report issued September 13, 2012, citing cost overruns to the county and the recommendation that Triad be replaced.

Among the findings in the report were:

• The county contract with triad has resulted in 50% higher processing costs than projected - from 2004 to 2011, the average processing cost per claim increased from $518 to $977.
• The lack of effective workers' compensation management may have resulted in up to $13 million higher costs to the county in the last three years.

A key problem noted on page 6, the report was the fact that the Comptroller’s office had difficulties in getting from Triad the various reports and statistics that were required under the contract, information needed for the Comptroller to insure proper handling of the claims.            

In a July 25, 2013 article posted to m.theislandnow.com written by Dan Glum about campaign contributions to Howard Weitzman, 2013 Democratic challenger to Magaros, Triad’s CEO Victoria Manes blasted Maragos’ analysis as containing “gross inaccuracies”, according to Newsday. Manes explained that her reason for donating to Weitzman was that “Weitzman was the comptroller of Nassau County before Mr. Maragos and had a very professional office and was very effective . . .” during his tenure from 2001-2009. Coincidentally, it was during this time that Triad was hired and then had its contract extended. [41263-5385]

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