Board Splits at 3rd; WCB gets $370M

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 abeyance.

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.

Court Hits WCB 2x; WCB Hits Atty 3X
Deloitte Touche: How to Fix The Board - Part I

DECISIONS: Board is reversed twice when it rejected appeals, apparently either mis-reading or not reading the underlying appeals but wins §114-a(3)(ii) penalty in three virtually identical cases against an attorney, all the same issue. Most interesting, when an attorney obviously does ‘wrong’, the word 'fine' means $500 or so. When the Board obviously does ‘wrong’, the word 'fine' is how the Board staff feels.

COMMENTARY. In this week's COMMENTARY I list three first steps Deloitte Touche should take to get the New York State Workers Compensation Board back on track.

Actually there are four items but the first is short:
 

Some steps have been noted before on this website but some of the comments and suggestions are new, as will be those that will appear over the next few weeks.

Today's decisions, in my opinion, prove a point: The Board, and the Commissioners (it's their name on the decisions, after all - try and have some pride!) just does not pay attention but, if someone else does something wrong BANG - $500 or $1000, or in the case of the GSITs, under the Board's watchful eye, Millions.

I can think of 100 reasons why so many in charge at the Board act they way they do. Steven Pinker in "The Better Angels of our Nature" explains why street thugs resort to physical violence to get respect. Maybe that explains some at the Board, those who believe that "the pen is mightier than the sword" and thus, use their bureauratic power to demand respect.

Board loses $25a, again 2x; Public access to WC files?

DECISIONS: The Board continues to show its inability to comprehend the law and dozens of prior citations regarding the determination as to when a case is closed, therefore shifting liability for §25-a to the Special Fund; at the third Department this week the Board was reversed twice on this issue. However, the Board did win a case in which it assigned liability to the contractor rather than the out-of-state subcontractor

Another GSIT law suit; Claimant loses at the 3rd

DECISIONS: While the Board prevailed at the 3rd Department when its denial of an injured worker's claim was affirmed, the Board did not do as well at the Court's Commericial Division on another GSIT case against its trustees and managers. NEW page with cases lised by issue has been added: Case Issue Index

NEWSWIRE:
♦NYS Comptroller states new State budget will be balanced, in part thanks to raid on NYSIF
♦ New NYS/WC Opiate Laws not effective in New York, or most other states

November 21, 2013  ♦ Vol 257 Issue 1

Board Wins at Court of Appeals

DECISIONS: At the Court of Appeals (the only decsion issed this week), carrier has right to a credit in civil suit if award is noted as being covered by IRS §104.

NEWSWIRE: ♦Vice-Chair Libous' home county starts its own fraud unit.
♦ NYSIF: the 5th largest WC carrier in the U.S, bigger than TX and CA combined.
♦ NYS Bar Assoc decries Cuomo's and WCB's decisionto close hearing points

WEBSITE ♦A new MOTIONS CALENDAR page has been added. Details on the DECISIONS page.
♦The REFERENCES & LINKS page has been added as well.

November 7, 2013  Vol 255

October 31, 2013  Vol 254

October 24, 2013  Vol 253

October 17, 2013  Vol 252

WCB: Let Them Eat Cake .. And drive 200 miles

October 3, 2013     Vol 250

September 26, 2013  Vol 249

3rd: "Pro-Se doesn't pass the Bar"

DECISIONS After the Pro-Se claimant argued that his claim was valid even though it was filed more than two years after the accident, the Court affirmed the Board's ruling that the SEI's §28 denial of the claim was 'done by the book'. And no new cases posted yet for October's hearing schedule.

September 19, 2013  Vol 248

August 29 2013  Vol 245

August 1, 2014  Vol 241

Major Decision; The New Commissioners

DECISIONS This week features what may be the most important cases of the year: Kigin v NYS WCB. This heavily footnoted 18-page decision from the Appellate Court, Third Department, addresses several questions raised by the claimant’s attorney as to the Board’s authority to set and enforce Medical Treatment Guidelines. Additional cases from the prior week’s I was ‘treasure hunting’ including affirmances of the Board on §114-a, continuing disability, legal fees, and late payment penalties. And, once again the Court affirms that what may be ‘disability’ in one jurisdiction (in this case WC) may not be in another (NYS disability retirement benefits).

NEWSWIRE Update on the (finally) two new commissioners and doctor dismissals.

Board Splits at the 3rd

DECISIONS The Board is reversed, again, on its decision on a §15(8)(d) reimbursement request but is affirmed in a classic §120 discrimination case: "If injured in an accident, fired but, if just property damage, various sanction applied."

Stress & Collateral Estoppel

DECISIONS While there was only one decision today, although a split decision, on the issue of §2(7) stress, today's first posting is a case that had been affirmed in the Appellate Court but reversed by the Court of Appeals - it is now set for re-argument, with nine parties joining on the claimant's side.

Commissioners Confirmed, BUT....

More Changes in WCB Commissioners

NEWSWIRE With the annual mad dash to close down for the summer, the New York State Senate is overwhelmed with a backlog of over 100 appointments submitted by Governor Cuomo.

These include the still pending (Thursday 10:00pm) nominations of Ken Munnelly and Linda Hull, reported here last week, as well as the completed reappointment of Fran Libous as Vice Chairman and all the political machinations of who is staying and who is leaving and how many vacancies are there. Unfortunately, Commissioner Bargnesi, not only a good friend, but an excellent and highly respected commissioner had her slot gobbled up by Libous.

DECISIONS No workers comp-related opinions have been issued this week by any of New York many courts.

Two New Commissioners Nominated; WCB Wins 2 more

NEWSWIRE As reported in a Special Bulletin issued earlier today, Governor Cuomo has nominated two new WC Board Commissioners: Ken Munnelly (WCB General Counsel) and Linda Hull. They will replace Mona Bargnesi and Donna Ferrara.

DECISIONS In the Court’s two affirmances of Board’s decisions this week, one claimant was found guilty of §114-a fraud while a second claimant’s innocence or guilt could not be established because of a major procedural error by the carrier’s representative. And while the 1st Department rejected an attempt to sue a employer for injuries sustained while working, the 2ndDepartment found that there were grounds to continue the case to determine if there was an employer/employee relationship.

WCB +1; Clt loses malpractice; Board's Misfeasance

DECISIONS After a long string of affirmances, the Court reversed the Board, this time in a §25-a case. The Board was affirmed in the issue of voluntary withdrawal from the labor market and a dissatisfied claimant has again found that failing to find a pot of gold at the end of the WCB rainbow is not the attorney’s fault. As another example of the Board’s misfeasance, read my note in the Matter of Schroeder v US Foodservice (§25-a) neither the carrier nor the Board submitted a brief in its defense nor did they appear at the Appellate Department hearings. What an unmitigated, inexcusable waste of time and money and an insult to the already overburdened Court system when the Board could easily have issued a Full Board Review sending the case back for further review. But then again, for too many top executives at the Board, this would be work.

Quietly Winning

DECISIONS A quiet week at the Third Department with two affirmances for the Board and one dismissal requested by the claimant, And that’s all she wrote.

WCB Wins 3; What is 231??

DECISIONS A 15-decision winning streak continues for the Board with three more affirmances from the Third Department this week, with claimants, this week, winning on causal relationship and dependency benefits under the VFBL while a carrier wins one over the Special Fund on §15(8).

It is hard to believe, as one of my readers pointed out, that this email represents the 231st week I have been publishing this email and posting legal decisions and other related stores and commentary about the New York State Workers Compensation Board. In addition, I have published two books about the system. it is nice to know that my work has proven of continuing interest. If you have any suggestions or comments or would like to have something published, under your own name or anonymously, feel free to submit it.

Board - 5, Claimants - 0

DECISIONS The five affirmances of Board decisions this week by the Third Department covered a wide range of issues, with claimants on the losing side in all five: §114-a fraud, causally related death, denial of FBR, causal relationship, and no awards as loss of income was economically related.

The Third Dept. has added five cases to its May hearing calendar giving a total of 16 cases pending a decision. It is interesting to note that the oldest of these cases dates back to April 15, 2013, one month ago whereas some appeals at the Workers Comp Board date back to April 2012. But who's counting? Certainly not the Board.

GSITs lose again, this time at the 3rd!

DECISIONS In one of the two opinions issued by the Third Department this week, an appeal of a Board decision to rescind a law judge decision was dismissed. Issue was whether an injured work was an employee and/or covered by home owners insurance.

In a much more interesting case, and a second opinion on the subject in two weeks on the matter of a GSIT’s manager/administrator’s fiduciary responsibility, the Court found that the member of a trust has the right to sue the trust’s managers for the Trust’s default.

GSITs lose another one at the 2nd!

DECISIONS Although there were no workers comp-related opinions issued this week by the Third Department (nor any new hearings for May listed), the Second Department issued a ruling on a GSIT issue, once again putting the members of defunct trust deeper in the proverbial hole. And I have added at the bottom of the case some comments from a reader about the Board and GSITs and WCL §50.

WCB Wins 1; Advisors to GSITs lose 1

DECISIONS The one decision issued by the Third Dept this week affirmed the Board’s ruling that a thoracic back condition was not consequential to the original work-related injury.

But, more importantly the Second Department found that members of an insolvent GSIT had sufficient grounds to pursue an action against the trust manager, accountants, and actuaries from failing to properly inform them of the true financial condition of the trust and their real liability risks as members of the trust. Unfortunately, to date, no one has inquired as to whether the WCB had the authority and/or the responsibility with regards to auditing/reviewing these same trusts. Ahhh, how long will it be before the WCB is also noted as a party in these cases?!

WCB Wins all 3,+ 3 Cases from 1st & 2nd

DECISIONS The Board won all three appeals this week at the 3rd Department, with one claimant losing in his §114-a claim but two claimants winning cases in which Board discretion ruled the day: occupational disease and issue of 30-days notice (§18). In the 1st Dept, a claimant lost his right to challenge his WC attorney's fee. And at the 2nd Department, both injured workers were given the right to bring suit for injuries received while working, with the Court clarifying when WCL does not preclude such action.

No News is Good News

DECISIONS Although the Third Department issued no cases in which the Board was a party, the Third Department did add 15 cases to its April calendar bringing the total number to 22 of workers comp related cases awaiting a decision.

Rumor has it that the Cuomo administration is now interviewing people for the Workers Comp Board. So if you're looking for a change of pace, now is the time to send "IN" your resume. And if you're at the Board, now may be the time to send "OUT" your resume.

Best case this week is from Pennsylvania

DECISIONS Although the Board was affirmed when it denied an appeal as being too late, the most interesting case this week came from the Workers Compensation Board in Pennsylvania in which that State’s Supreme Court wrote a unanimous 28-page ruling finding that the claimant did not voluntarily withdraw from the workplace: an analysis both interesting and detailed. No new cases posted this week for upcoming hearings at either the Third Department or the Court of Appeals.

A Moot Appeal raises questions

DECISIONS Although the only decision issued this week by the Third Department was to find the appeal moot, the case raised an important question about the function and responsibility of the NYS Workers Comp Board, discussed in this week’s COMMENTARY. Also, last week, the Court of Appeals affirmed the Board’s change of heart on Alford pleas, a posting delayed as a key fact was missing of the Court’s decision. And an employer/defendant refuses to authorize NYSIF to pay the awards that have been made to the injured worker.

WCB Wins 5 but Loses 1

WCB Win 3, Loses 2

DECISIONS Although the Board was affirmed in three decision issued by the Third Department today, all ruling against the carrier, the Board was reversed in two cases, again for failure to follow precedent and/or legal procedure, making a total of six reversal this year (2013), not on legal issues but the Board’s faulty decision making process..

Robert H. Hurlbut, R.I.P.

NEWSWIRE I regret to announced the passing of long-time NYSIF commissioner and former Chairman of the Board Robert H. Hurlbut. Details in the NEWSWIRE.

There were no DECISIONS this week.

Board Wins 2 GSIT Cases

DECISIONS The Board wins in all three cases for which opinions were issued today, including two separate appeals on GSITs by William Held as Chair of Contractors Compensation Trust versus the Board’s methods and procedures for making assessments for the underfunded trusts. And SIF won a case against an employer for its failure to cover its ‘leased’ employees. And no new cases have been posted by the Third for arguments which are to start again March 18, 2013.

2012's Top Attorneys

Once again, I am pleased to announce the list of the top workers compensation attorneys in New York, as measured by their success in presenting prevailing arguments before the New York State Court of Appeals and the Appellate Court, Third Department.

Michael J. Reynolds, Esq.
Weiss, Wexler, & Wornow PC (NYC)

Reynolds is honored this year for his four prevailing arguments at the Third Department, involving occupational disease, employer/employee relationship, voluntary withdrawal, and SLU payments.

There are seven Honorable Mentions. And, as I have done in prior years, I have listed all those attorneys who prevailed at the Courts this year, as well as one pro-se claimant who prevailed by getting the Court to reverse the Board's decision.

Board's Loses Again at the 3rd: 50% for 2013

I am pleased to announce The Insider's Top Attorneys for 2012. For the list, click here.

DECISIONS Third Dept affirms Board on one case and reverses it on a second case, a case in which the Board approved a second claim by the claimant on the same issue. Not a good start for the year: 10 decisions with five affirmances and five reversals. For the sessions (September 1, 2012) to date, the Board has been reversed in 25% of the cases.

COMMENTARY This week's reversal by the Third Department is one of two opinions it has issued on a case with two separate appeals to the Appellate Court. In 2012, the Board found that §123 bar did not apply and the Court affirmed the Board. This week the Board found §123 did apply and that decision was reversed by the Court. Claimant had two cases with opposing decisions. Appears last week's COMMENTARY on 'dysfunctionality' may have been a preview.

Board's Valentine from 3rd is BLACK & a Pro-Se wins

DECISIONS Not a good Valentine's Day for the Board, at least not from the Third Department which has reversed the Board in its three opinions issued today. And one was an appeal from a claimant.

COMMENTARY As noted in this week's COMMENTARY, if the Board had any historical perspective, like looking at precedent (in two cases) and understanding what a date stamp means, the Board would have made three proper decisions, not been reversed, and saved a lot of people a lot of time and money, and one claimant a lot of unnecessary pain and discomfort. So what's new?

Fed and NYS Plans for the WCB & SIF

NEWSWIRE The SMART Act just signed into law by President Obama should expedite the processing of Section 32's and eliminate the Damocles sword of federal penalties that have been hanging over lawyers and carriers under the old laws. The New York State Senate has issued a lengthy report on the Governor's budget plans for 2013. The two pages that relate to WC issues and NYSIF raids are detailed in this week's NEWSWIRE.

DECISIONS No new decisions have been issued this week by the Third or Court of Appeals.

The Board Swings Both Ways

DECISIONS As evidence that the Board (apparently) decides cases on the facts, in two §114-a fraud cases affirmed by the 3rd Department today, one claimant won and one lost. And although another claimant lost a case on the issue of casually related death, carriers lost two additional cases: §15(8)(d) reimbursement and mandatory ATF deposits. Interestingly, three of these cases have been before the Appellate Court before and one before the Court of Appeals (the appeal was dismissed).

The Aging of Board Reviews/Appeals

COMMENTARY  While the Appellate Court issues decisions within weeks after hearing a WC-related appeal, the Board is taking 'forever'. Actually, nearly as long as it did before the Board computerized. An analysis and the Board's own statistics are in this week's COMMENTARY.

Some additional numbers regarding the raid on NYSIF in  PART II of "Like Father - Like Son".

LIKE FATHER - LIKE SON

Governor Andrew Cuomo, like his father before him, has decided to take 'surplus' funds from the New York State Insurance Fund in order to balance his budget, a detail ommitted in his 326-page State of the State speech.

Cuomo Discusses the WCB

DECISIONS Although this first posting for the new year is being done in the third week of January, neither the Appellate Court - Third Department nor the Court of Appeals have issued any workers-comp related decisions. But the Third has listed 13 cases which it has heard in the first two weeks of this month, whose decisions should be, unlike the WCB, forthcoming shortly. And there are, as always, motions answered by the Court of Appeals.

COMMENTARY  Governor Cuomo’s 236 page State of the Union devoted 8 pages to the Workers Compensation System but offers primarily broad strokes of the pen rather than any concrete proposals. A quick analysis is on the COMMENTARY page.

  2014__                   2012__                              2011__