December 31, 2015

COMMENTARY: A few thoughts as the year ends and some suggesions for next year.

DECISIONS: There are no decisions from the Third Department this week but seven new cases have been added to the Third Department's January hearing calendar.



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Texts from prior Home-Page E-mail Alerts


. . . . December 29, 2011

Volume 158 Issue 1

. . .

HAPPY HOLIDAYS for you but not the Bd: It loses again!

DECISIONS: With the Appellate Court's last opinion (a reversal) of 2011 issued yesterday, the Board's record for the year would be a flunking grade in any decent college (and one would hope every law school). Considering that there are between 50 and 60 writers in the Administrative Review Division, it is obvious that some writers had an grade in excess of 70 and a few well below that.

Any heads going to roll?

Added to the failing grade for the Board this year is the fact, as previously noted in this web site, that the Board is doing half as many cases as it did two years ago and taking twice as long to get them done, and gettng the wrong in the process: it is incredibly astonishing that nearly a third of its decisions should be rejected by the Appellate Court and Court of Appeals.

And while I have posted tens of thousands of words to this website over the past three years, I can not find one to properly describe the above scenario. In the losing decision just issued, the Board has again this year misunderstood or misapplied Burns v Varriale.

. . . . December 22, 2011

Volume 157 Issue 1

. . .

HAPPY HOLIDAYS but a lump of coal for the WCB!

DECISIONS: The Board has just about reached the end of the year in a style all too consistent with its performance so far this year: two reversals, one favoring the claimant and the other the carrier. The Court rejected the Board's decision making process when the Board determined that the claimant voluntarily withdrew from the labor market and in the second decision that the Board improperly denied the carrier the right to cross examine witnesses.

. . . . December 15, 2011

Volume 156 Issue 1

. . .

Affirmances all around

DECISIONS: With three affirmances from the Third Department, it looks like the Board may squeak past this year with a passing grade of "D" for the year. There was also a case from the Court of Appeals on a claim against the employer on the issue of an uninsured motorist and one from the First Department determining by whom it was that a worker at a trade show was employed. As for one of the cases of the Third Department regarding the Board, the Board was affirmed but I shall leave it to you to determine, "Why?"

. . . . December 12, 2011

Volume 155 Issue 2

. . .

The State Taketh & The Board Taketh!

NEWSWIRE: The Albany Times Union reports that State budget officials are looking at the surplus in SIF to help balance the State's budget while several newspapers are reporting that the Board, a State agency, is looking to sue thousands of small business, and their owners personally, to collect the GSIT underpayments. even if it means closing down thousands of small employers all over the State. A lot of issues have been raised, including, again, the position of the Board on it what one would have thought was its fiduciary responsibility to oversee the trusts.

DECISIONS: Just a reminder for you to send in your list of the most important Court decisions so far this past year. And a note that the Board has its worst affirmance rate ever at the Court of Appeals and Appellate Court: 70.4% barely a passing grade at any good college.

. . . . December 8, 2011

Volume 155 Issue 1

. . .

The Zamora decision analyzed;
Board looses again on §25-a case.

COMMENTARY: You, the readers, had many comments on my COMMENTARY on Zamora v NY Neurologic but the longer ones, the ones I posted, were only from those who appeared to support a strong interpretation of VWLM. I know from speaking personally to those who do not take that position that they have strong and well-reasoned opinions and would welcome the opportunity to publish a few here.

DECISIONS: Aside from a 1st Department case, the Board split 1-1 at the Third Department this week, bringing its record for the year to date to a dismal 70.4% pass/affirm record. With three more weeks of decisions to go, will the Board get a 'failing grade' for the year. Or do you agree with me that anything under a 90% affirm record is a failure? And YES, a PRO-SE claimant handed the Board a reversal, even after an amended Board panel decision.

. . . . December 1, 2011

Volume 154 Issue 1

. . .

The Zamora decision analyzed;
Board looses again on §25-a case.

COMMENTARY: With a decision in Zamora v NY Neurologic on the immediate horizon, I weigh in with my opinion and prediction on the case, warranted if for no other reason than there are many in the community who look at me, incorrectly I may add, as the architect of the concept of voluntary withdrawal from the labor market. I was not THE architect, just one of the more vocal members of a board of 26 commissioners (over the 12 years I served) who argued and attempted, on rare occasion, to develop some coherence on this subject.

DECISIONS: Par the for course, the Board is again on the losing side of a decision on the definition of what is a true closing under §25-a.

. . . . November 24, 2011

Volume 153 Issue 1

. . .

Yes, Board knew of Fee for Guidelines:
Court Affirms Bd in 4 Cases

NEWSWIRE: Michael Whiteley has written an article which seems to indicate that the Board did acquiesce to the American College of Occupational and Environmental Medicine (ACOEM) charging a fee for anyone seeking access to the State mandated Medical Treatment Guidelines, although the Board seems to have no record in its own files or institutional memory on this issue. Finally, new medical tests on 911 workers could be used to indicate which prospective employees would have a higher risk for occupational disease in some occupations.

DECISIONS: This week, the Appellate Court affirmed the Board's rulings in three cases in which the Board determined which carriers would pay how much money and in a fourth denying a pro-se claimant's appeal. The fifth case posted this week deals with a §11 jurisdictional matter in which the Board is not a party of interest or even an interested party.

. . . . November 17, 2011

Volume 152 Issue 1

. . .

Court Affirms Bd in 3 Cases; MTG: Pay to Pay?

NEWSWIRE: A controversy has erupted over the possible requirement that carrier and medical providers pay a fee to the American College of Occupational and Environmental Medicine (ACOEM) to use the new Medical Treatment Guidelines.

DECISIONS: This week the Appellate Court affirmed the Board's rulings in three cases as well as a workers compensation related case won by the Office of the Comptroller. And just as happened last week, it appears, at least to me, that an employer in a death case had a different perspective than that of the carrier. As I noted in my summaries of these cases, the history of these cases shows that it can take the Board years to make a decision on just one issue.

. . . . November 16, 2011

Volume 151 Issue 2

. . .

Court of Appeals Affirms Board on ATF

DECISIONS: This week under the lead case Raynor v Chrysler Landmark, the Court of Appeals affirmed the Board's position requiring that private carriers make mandatory deposits into the ATF.

. . . . November 10, 2011

Volume 151 Issue 1

. . .

Court Affirms Bd & Clts on AWW

NEWSWIRE: Based on the second PEF vote, the layoffs at the Board, as well as all the other state agencies, have been cancelled it. But I see an issue with furloughs.

DECISIONS: This week the Appellate Court affirmed the Board's ruling i favor of the claimant's decedent's AWW. In fact, it seems the employer agreed as well; just the carrier was unhappy.

. . . . November 3, 2011

Volume 150 Issue 1

. . .

Court Affirms Bd 4-0; NEW Medical Guidelines

NEWSWIRE: The Board announces its 125-page 2012 New York State Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity.

DECISIONS: This week the Board had four affirmances issued by the Third Dept. The claimant prevailed in a VFBL death claim but lost on VWLM and a WTC claim. The last case was apportionment between two carriers.

. . . October 27, 2011

Volume 149 Issue 1

. . .

Bd loses again at 3rd; CLE Should be required for WCB

This week's postings seems to prove the point that the Board is not/does not/will not listen to anyone. And there is more to come.

COMMENTARY: My attendance at last week's NYS Bar Associations CLE on workers compensation law prompts to me to suggest, among other points, that attendance at same should be required for all Board attorneys, the commissioners, and top Board staff 

DECISIONS: Nothing new: The Board loses again, again to the Fund. And there was an interesting case about uninsured employers and death claims. 

. . . October 25, 2011 BULLETIN

Volume 148 Issue 2

. . .

Board layoffs: Legal or Political

NEWSWIRE: According to an article just published in Crain's today, there are some serious questions as to whether or not the 27 layoffs proposed by the Workers Compensation Board are not only required but legal. In fact one industry insider (not me) suggested this is being done to save one political appointee's own job. 

. . . October 20, 2011

Volume 148 Issue 1

. . .

Bd gets an "Oops"; So do I; CMS updates

DECISIONS: The Board gets smacked on the back of its hand from the 3rd A.D. for again contradicting itself on a legal issue while the 1st A.D. also issues two workers comp-related cases.

COMMENTARY:A review of some of your e-mails including one that correctly point out an error in a recent COMMENTARY.

NEWSWIRE: CMS continues to change/upgrade/mess up the Medicare Set-Aside program with a number of new rule changes. 

. . . . October 13, 2011

Volume 147 Issue 1

. . .

WCL has a death tax; WCB job layoffs a charade, and mor

DECISIONS:This week I explain why the Board layoffs are a charade. Also, Ron Balter, Louis Dauerer, and James McCarthy explain why WCL §15.3(v) is a 'death tax', reducing benefits to the spouses and families of injured workers who die as a result of their injuries. While this is an example of the 'law of unintended consequences', it is also an example of the Board's failure to bring this deficiency to the attention of the State Legislature.

DECISIONS: Although neither the Appellate Court, 3rd Dept nor the Court of Appeals issued any workers comp-related decisions, they both have heard a number of arguments in the last few weeks so that a number of decisions from both court scan be expected shortly.

NEWSWIRE: The Board announces its Medical Treatment Guidelines for Carpal Tunnel Syndrome. The Board is asking for comments no later than December 11, 2011. But based on their abject failure in the past year to respond to anything from the workers compensation community, let alone acknowledge that there is such a community, one could accurately presume that the proposed guidelines will become formalized in due course as is. 

. . . . October 6, 2011

Volume 146 Issue 1

. . .

Good Day at Park Street; CLE Courses and more

Now that the fall season is here, it looks like the workers compensation arena will be quite full of stories, issues, and perhaps some new appointments.

DECISIONS: The Board's results this week at the Appellate Court, Third Department, are a marked departure from last week: this week the Board was affirmed in all six opinions issued. In another ATF issue, the Court ruled that even though the deceased claimant will not collect any more money, the carrier must still put a sizeable deposit into the Fund. Claimants came out on top in two §114-a fraud cases and a third case on AWW. In two decisions, the Court accepted the Board's denial for a Full Board Review, although I have questioned the legality of same on the basis that §142(2) does not, by my reading, give the Vice-Chairman the authority to be the sole signatory on these decisions.

NEWSWIRE: A major workers compensation-related internet business, workcompcentral.com, has written an article about my recent COMMENTARY in which I offer the Board's own stats to show that the Board is not working, supporting my allegations with remarks from a wide range of members from the New York State workers compensation community. And, belatedly, I am listing the last two in the series of CLE courses offered by the New York State Bar Association on workers compensation law.

. . . . September 29, 2011

Volume 145 Issue 1

. . .

Bad Day at Park Street: WCB loses 4 of 5 at 3rd A.D.

DECISIONS: The September 29, 2001 opening session at the Appellate Court, Third Department does not present itself as a propitious start for the Board's decision making record: 1 win - 4 losses. So while the Board did get an affirmance on one aspect of its plan to speed up the adjudicative process (regarding notices per NYCRR 300.38), it got reversed for its failure to understand that speculative opinions do not a case make and reversed for deciding against a carrier for failing to supply testimony from witnesses the Board stated it did not need. In the third case, it was reversed for misinterpreting the calculation of average weekly wage for a seasonal worker. And, far too typical for the Board, the Court ruled against the Board's new interpretation on legal fees, contrary to an interpretation a Full Board Review took pains to define, an interpretation supported by an Appellate Court decision, and an interpretation cited in prior MoD's by the Board. As a result, under 'issue code', I did not use my issue codes for legal fees but one for 'Decision Inadequately/poorly written.' 

. . . . September 22, 2011

Volume 144 Issue 1

. . .

Bd Stats Show BD isn't Working; 3rd AD's Calendar

COMMENTARY: The Board stats show Board isn't working based on a review of appeals shows: in 2011 as compared to 2009, the Board is issuing half the decisions but taking more than twice the time to do that half, i.e it is 75% less effective in work that effects injured workers.

DECISIONS: Although there were no workers compensation-related opinions issued this week, the 3rd Department of the Appellate Court as heard 19 arguments on WC cases.

September 15, 2011

Volume 143 Issue 1


WCB's stats mislead; Court of Appeals says Held (ATF) OK

Unfortunately for me, there is no free lunch: no one took my bet "The Board will not respond or even acknowledge my posting of Jon Klee's letter asking about medical variances."The Board has not even acknowledged receipt of my e-mail or Jon's letter.

DECISIONS: Board Wins on Aggregate Trust Fund Case: In a major setback, in the one workers compensation related opinion issued this week, the Court of Appeals ruled that the retroactive imposition of required payments to the ATF is constitutional. Details in COURT DECISIONS. Seems that those few at the Board whose raison d'être was to represent the carriers/lobbyists on this use had better brush up their resumes. 

COMMENTARY: The Board Fudges Stats on Appeals: And equally important, since the Board likes to toss out statistics to show how great they are, I have included in the COMMENTARY some of the Bard's own statistics from a few years ago, asking the Board to again generate them but this time make them public. Unless, that is, the stats show John Klee's complaints have merit.

------ September 8, 2011

Volume 142 Issue 1


Carl Copps moves on;An Attorney Questions Bd on Medical Variances

While there are no workers compensation related decisions issued by any of the courts in New York, there is a story the NEWSWIRE and some letters in the COMMENTARY that evidence the continuing deterioration of the Board's ability to serve its constituency.

NEWSWIRE: Carl Copps, who was responsible for establishing the Board's Office of Appeals/ Administrative Review Bureau, has recently left the WCB and moved to the office of the NYS Bar Association. 

COMMENTARY:In response to last week's Daily News Story about the deleterious effects the new Board's medical guidelines are having on injured workers continuing medical treatment, John Klee, Esq., has written a letter to the Board questioning the Board's official position reported in the article.In support of Klee's letter, I have included a letter I have emailed to the Board's chief officers questioning their sincerity not only in their answers but their attitude towards this issue and the injured workers who they are supposed to be serving.

And equally important, since the Board likes to toss out statistics to show how great they are, I have included in the COMMENTARY some of the Bard's own statistics from a few years ago, asking the Board to again generate them but this time make them public. Unless, that is, the stats show John Klee's complaints have merit.

------ September 1, 2011

Volume 141 Issue 1


NYS Injured workers are 'High"
Daily News on new Med Guidelines "Bad"

Two of this week's news stories deal with the problems with the NYS Workers Compensation Board's new medical guidelines, as well as the approval of NYCIRB's WC insurance rate increase.

The recent investigations into new medicines now consider that a single solution to a disease may not work, that it may be necessary to tailor the chemistry of the new wonder drugs to take into account various differences in the individual patient's body and medical history.

The Board seems to be going in another direction with a 'one size fits all' approach. The New York Daily News has an article, promoted most likely by lobbying by a medical group, explaining why the new guidelines with time limits for medical care do not work.

And this is not a Republican v. Democratic issue as one of the leaders promoting changes in legislation regarding medical guidelines is Republican Sen. George Maziarz.

And a national study shows that another medical practice, apparently well within Board guidelines, may be turning New York's injured workers into drug addicts, thus making their return to the workplace, or their own lives, as productive citizens difficult.

And of course, an increase in insurance rates is approved under the maxim "if you need $10 ask for $20 and then graciously settle for the $10 you originally wanted."

Comments on this subject on our NEWSWIRE page or any other subject, as always, are welcome.

------ August 25, 2011

Volume 140 Issue 1


A Guest Writes About Medicare Set-Asides

COMMENTARY: This week I am pleased to have a commentary from David J Depaolo, president of President of WorkCompCentral which is a subscription based online publication of workers' compensation news, education and data services.

He explains how the Obama bureaucracy has joined the NYS WCB in giving the workers compensation community, claimant and carrier attorneys, and medical providers a common cause.

In this case, it is the federal governments inability to develop a coherent and consistent policy regarding Medicare set-asides that have added another layer of complexity and a meaningless impediment for the injured worker and carrier seeking a §32 settlement.

------ August 18, 2011

Volume 138 Issue 1


Former WCB Comm supports my last week's COMMENTARY

After my first year at the Board, I felt as if I was one of the Four Horsemen of the Apocalypse (Vice chairman Jeff Sweet, Commissioners Karl Henry, and Commissioner Carol McManus being th other three)who were there to bring back energy to the Board and help newly elected Governor George Padauk achieve his goals for the agency. Vice chairman Jeff Sweet, Commissioner Karl Henry, and Commissioner Carol McManus being the other three.

Unfortunately with only a few exception, most of the new appointees were examples of the complaints raised by Rick Karlin in the Albany Times Union, which, in turn, prompted my COMMENTARY last week after Governor Cuomo proposed cutting commissioner salaries.

Weighing in in today's COMMENTARY is Carol McManus, one of the Four Horsemen, whose letter speaks for itself.

I take this opportunity to thank Carol as well as all the others who wrote in agreeing with my posting.

------ August 11, 2011

Volume 137 Issue 1


Patronage, Commissioners, Salaries

The recent decision by Governor Andrew Cuomo to slash pay 90% for political plum state commission seats, as reported by Rick Carlin in the Times Union on August 5, resulted in a number of e-mails to me asking my opinion. And who am I to deny the public that request?

As with any organization, they are some who are overpaid while there are others who are underpaid. One could argue that all the commissioners are overpaid - look how many people seek the job. But, then again, many want the job so that they do not have to work with the result that some would take the job at the Workers Compensation Board currently paying $90,800.

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