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.



Contact The Insider at:    TheInsider@InsideWorkersCompNY.com                                                                         212-734-9450

E-MAIL ALERTS - 2015 & 2014

Texts from prior Home-Page E-mail Alerts

These are the contents of the free e-mail ALERTS I send out every Friday after the opinions of the New York State Appellate Division, Third Department are issued on workers comp related issues and on other occasions when their is breaking news.

To receive these e-mail alerts which are sent to the New York State workers' compensation community as well as staff at the New York State Workers Compensation Board, send your full name and email address to TheInsider@InsideWorkersCompNY.Com. Access to this website is free-of-charge and there is no advertising other than for the two books I have written which help offset the cost of running this website:

Workers Compensation Section 32 Settlements: A Treasure or A Trap?
Behind The Closed Doors - An insider’s look at how things really work at the NYS Workers Compensation Board and how to fix them.

October 29, 2015  ♦ Week 358 Issue 1

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

October 22 2015  ♦ Week 357 Issue 1

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

October 15, 2015  ♦ Week 356 Issue 1
No news is good news . . . . except that there are two vacancies at the New York State Workers Compensation Board, under the assumption that the two new people will actually review Memorandums of Decisions generated by appeals from claimants and carriers, appeals which now take over a year. Besides, it is hard to imagine Governor Cuomo passing up the opportunity to spend, every year, $180,400 of public, i.e. employer insurance premium, money to buy political favors by picking two people for the $90,800 a year job as a commissioner.
October 8, 2015  ♦ Week 355 Issue 1
DECISIONS: This week, the Board’s seven decisions reviewed by the Appellate Court were affirmed with claimants winning two (labor market attachment, wage earning capacity) while losing one (causal relationship). The Special Funds won its three cases against carriers, with the Board on the winning side in all three, while the seventh case saw two carriers at odds on apportionment.
October 1, 2015  ♦ Week 354 Issue 1

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

DECISIONS: Another week and no decisions.

September 24, 2015  ♦ Week 353 Issue 1
DECISIONS: Although four motions for hearings at the Court of Appeals have been denied, including one by an active pro-se claimant, no workers-comp decision have been issued by the Third Department or Court of Appeals this week.
September 17 2015  ♦ Week 352 Issue 1

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

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

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

September 10, 2015  ♦ Week 351 Issue 1

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

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

September 3, 2015  ♦ Week 350 Issue 1
DECISIONS: Board’s fall season begins with five affirmances, with four of those decisions against claimants, two of whom were pro-se. Three decisions denied full board review, one affirmed §114-a finding, and one a §29(4) lien.

AUGUST  2015
August 27, 2015  ♦ Week 349 Issue 1

Some Q&A on RX Lawsuits 

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

August 23, 2015  ♦ BULLETIN
A law firm/collection agency representing compounding pharmacies bypasses the Board and goes to The Bronx Civil Court to get paid, a story only partially covered  by the New York Daily News.
  August 21, 2015  ♦ WeeK 348 Issue 1

The Board's Legal Record

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

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

August 16, 2015  ♦ Week 347 Issue 2

A Goodwill Gesture to Injured Workers? 

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

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

SEEKING EXPERT WITNESS: A law firm is seeking to hire a recently (3-4 years) retired law judge who will write an opinion letter on a workers compensation-related matter. Please send me your contact details including years and districts served and I will pass this on.  As usual, all communication with me will be kept confidential.
August 13, 2015  ♦ Week 347 Issue 1
No news or decisions this week.
August 6, 2015  ♦ Week 346 Issue 1
No news or decisions this week.

JULY 2015
July 30, 2015  ♦ Week 345 Issue 1

Losing 1½ Toes not 'Grave'; More Immorality?

DECISIONS: While there were no WCB-related cases this week, there was one case at the Bronx Supreme Court in which that Court ruled that the amputation of 1½ toes is not "Grave Injury" per WCL §11. And an employer, apparently arguing both sides in a case loses both motions.

COMMENTARY: It appears that another state legislator -not even in office a year - is skirting the boundaries of what's legal/ethical in his dealing with the WCB. Kind of like the game "whack-a-mole": lock one up and up pops another.

Equally important, there is another 'voice in the wilderness' decrying the poor entry of data relating to medical information, this time on death certificates, not an unheard of problem in some WC-related death cases.
July 23, 2015  ♦ Week 344 Issue 1

WCB Loses 2; Back from Diggin'

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

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

July 16, 2015  ♦ Week 343 Issue 1
Still Digging In The Jungle
July 9, 2015  ♦ Week 342 Issue 1
Gone Digging In The Jungle
July 2, 2015  ♦ Week 341 Issue 1

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

COMMENTARY As I promised last week, I detail the Board's Road Show's very promising changes to the Medical Variance Request system, specifically for submitting MG-1, MG-2 and C-4AUTH forms, as well as, of course, including my suggestions to enhance its value of the new program.

DECISIONS: The Board prevailed in all five decisions handed down by the 3rd Department this week. Claimants won three (claim was timely per §28, accident was "out of the course of employment", medical condition was an occupational disease) but lost two on issues relating to impact of a second SLU in one case and a PPD classification in another on prior SLU award.

GOIN' DIGGIN' for two weeks. Events this past year prove the validity of Guy Lombardo's song "Enjoy Yourself (It's Later Than You Think)" at the bottom of "Why I Dig."


JUNE 2015
June 25, 2015  ♦ Week 340 Issue 1

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

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

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

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

June 18, 2015  ♦ Week 339 Issue 1

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

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

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

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

June 11, 2015  ♦ Week 338 Issue 1

Court Reverses Board Twice This Week

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

June 4, 2015  ♦ Week 337 Issue 1

Board Reversed for Applying Too Small A Penalty

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

MAY 2015
May 28, 2015  ♦ Week 336 Issue 1

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

ISSUE INDEX: A new page has been added to the site: a list of the cases indexed by issue, which can be found listed under the COURT DECISIONS page. Cases dating back to 2013 are broken down into four basic groupds, totalling over 100 issue codes.
May 21, 2015  ♦ Week 335 Issue 1
ISSUE INDEX: A new page has been added to the site: a list of the cases indexed by issue, which can be found listed under the COURT DECISIONS page. Cases dating back to 2013 are broken down into four basic groupds, totalling over 100 issue codes.
DECISIONS: No workers comp-related decsions were issued this week.
May 14, 2015  ♦ Week 334 Issue 1
DECISIONS: While the Third Department issued no decisions this week, two cases in the Supreme Court (Queens and the Bronx) further clarify the Court’s position on defining “serious injury” and determining how much of the injured worker’s life-long medical records are subject to carrier discovery, the latter case exemplifying “Be careful what you sue for!”
May 7, 2015  ♦ Week 333 Issue 1
No new cases this week but I have added two pages under FOR INJURED WORKERS & EMPLOYERS, one page for each. The suggestions contained therein are in response to all the phone calls and e-mails I have gotten over the last few years but any suggestions, corrections, modifications, etc you have will be more than welcome.
APRIL 2015
April 30, 2015  ♦ Week 332 Issue 1
DECISIONS: Board prevails in three at the 3rd: claimant wins on Fraud but loses on VWLM. An SLU adjustment tolls the calendar on §25-a closure. A Claimant “attempt[ed] to deceive” the 1st Department and the 2nd opines that a claimant injured on the way to the hospital after a work-related accident can sue in civil court.
April 23, 2015  ♦ Week 331 Issue 1
DECISIONS: This week’s one decision, from the Third Department, reverses the Board's ruling due to its failure to “engage in its fact-finding role.”
April 16, 2015  ♦ Week 330 Issue 1
NEWSWIRE: Some nuisance fees at the Board eliminated and Wade still hasn’t started. Rumor has it Cuomo is finally cracking down on the Commissioners.
DECISIONS: The only decision issued today by the Third Department involved Sharon K. Bland, a pro-se claimant,for the third time since November 2012 has been successful in getting the Court to hear her appeals (three this time) from the NYS Workers’ Compensation Board’s decisions.
April 9, 2015  ♦ Week 329 Issue 1

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

DECISIONS: The only workers comp related case heard in the Courts this week was dismissed as interlocutory but two motions to appeal decisions from the 3rd Dept were denied by the Court of Appeals.
April 2, 2015  ♦ Week 328 Issue 1
COMMENTARY: As I promised last week in my open letter to the Board's new Executive Director Mark Wade, the following are some of my suggestions for Wade to help him fix the Board. Items are listed randomly, even though I always seem to start with the Commissioners.

DECISIONS: No new decisions this week.

MARCH 2015
March 26, 2015  ♦ Week 327 Issue 1

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

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

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

March 23, 2015  ♦ Week 326 Issue 2
DECISIONS:No decisions have been listed by the Third Department or the Court of appeals this week, although two cases have been added to the calendar at the Third Department.
March 19, 2015  ♦ Week 325 Issue 2
I regret to report the sudden passing of Commissioner David R Dudley who died Friday, March 13, 2015, at St. Peter's Hospital in Albany, after a brief illness.
March 16, 2015  ♦ Week 325 Issue 1
DECISIONS:This week the Court supported the Board’s two decisions which ruled against claimants in controverted cases involving causal relationship and voluntary withdrawal.
March 5, 2015  ♦ Week 324 Issue 1
DECISIONS:This week, the Appellate Court agreed with the Supreme Court that the NYS Workers Compensation Board overreached in its attempts to hold the trustees and administrators financially liable for all the losses that occurred in one of the many GSIT’s taken over by the Board. A claimant is told that a federal grant to pay his salary does not exempt him from NYS WC laws in a §29 civil suit and an employer’s delays results in the loss of §25(4)(a) reimbursement.
February 26, 2015  ♦ Week 323 Issue 1
DECISIONS:Although there were no decisions issued this week regarding Board Memorandum of Decisions, the Board did, again, prevail at the 3rd Dept against the various parties who managed and/or made money from three self-insured trusts. And the 3rd also made it clear that for purposes of interpreting the words ‘grave injury’, it does not have the discretion to re-interpret that definition as it appears in WCL §11.
February 19, 2015  ♦ Week 322 Issue 1
DECISIONS:No workers comp- related decisions were issued this week at the Third Department but I am making a correction to the footnote I had added to the Matter of Estwick v Risk Mgt (3rd A.D., issued and posted January 29, 2015). While it was Rella & Assoc that had lost this case, it was the Law Office of Joseph Romano who, since December 2013, has lost seven cases on this one issue: §114-a(3)(ii) penalty for improper request for change of venue.
February 12, 2015  ♦ Week 321 Issue 1
DECISIONS:The Court affirmed 7 of the nine Board decisions this week. One reversal, on removal for the labor market, was based on the claimant filing for retirement before his last work-related injury and a second, a fraud case, had to do with, in my opinion, the failure of the Board to look at the carrier’s evidence. Board decisions were supported in a second fraud case, three §25-a cases, and three cases dealing with whether injuries were work related.
February 4, 2015  ♦ Week 320 Issue 1
DECISIONS: This week's cases are from the Second Department, dealing with §29 liens in which the carrier prevails on one but not the other. But a lot more cases are set for hearings before the Third Department this month.
January 29, 2015  ♦ Week 319 Issue 1

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

NEWSWIRE: Governor Cuomo’s 2015-2016 budget includes the repeal of 59 nuisance fees charged by seven different State agencies, 12 at the WCB.
January 22, 2015 ♦ Week 318 Issue 1
NEWSWIRE: The Board has announced a change in the seating order of its executive staff in its ever sinking rowboat. And the Town of Amherst wins an additional $3.1 million in Bissell v Amherst.
January 15, 2015  ♦ Week 317 Issue 1
Anyone who writes or publishes a newsletter, a blog,a newspaper, or reports on Radio or TV, be it my website or the New Wall Street Journal, no matter how far afield from Charlie Hebdo, must post this image as a sign that any attack on free speech is an attack on all of us. That the New York Times and other major publications have refrained from publishing this image lest they offend a certain religious group is no more than an act of cowardice: one only need look at their recent articles and photos of hatemongers of every other stripe, given access to their periodicals because of these individuals right of freedom of speech. The willingness to publish should be limited only by what is true and not what may result in physical harm. Otherwise, we will have drawn a line in the sand and those who today threaten us for publishing images will next week threaten us for publishing ideas.
January 8, 2015 ♦ Week 316 Issue 1
DECISIONS: While no opinions have been issued this week, several more cases have been added to the January hearing calendar at the 3rd Department, including two involving GSITs, for which I have links to my earlier analysis of Court decisions which prompted these two appeals.
COMMENTARY This week's Commentary, Part I of two, details changes which need to be made within the NYS Workers Comp Board to help it change its direction and, one again, serve injured workers and their families. Part II will deal with legislative changes.
January 2, 2015  ♦ Week 315 Issue 1
Board wins 4 of 5; claimants 2 of 4
DECISIONS: The Board ends the year prevailing in 4 of 5 decisions while claimants won two and lost two. Also, it appears the Board has changed a years-old practice to conform with the WCL, as noted in one case and my COMMENTARY this week.
December 26, 2014  ♦ Week 314 Issue 1
Board wins 4 of 5 & A Law Firm Loses, Again

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

December 18, 2014  ♦ Week 313 Issue 1

Claimants Lose All 3 Decisions At The 3rd

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

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

December 11, 2014  ♦ Week 312 Issue 1
No postings this week.
December 4, 2014  ♦ Week 311 Issue 1

Board and Claimant Win at the 3rd

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

November 27, 2014  ♦ Week 310 Issue 1
DECISIONS:In the only case decided this week by the Third Department, the Board=s denial of a doctor's application to treat injured workers was deemed to be arbitrary and capricious, without any explanation for same.
November 20, 2014  ♦ Week 309 Issue 1
DECISIONS:The Board wins all three cases this week. The Court of Appeal decision, probably the most important in years, defined the goals of the WC system in terms of medical treatment. In another important case, the Third Dept affirmed the Board's methods of collecting assessment from members of defunct GSITs's. And, finally, the Third affirmed the Board's interpretation of reimbursements relating to employer benefit plans.
November 13, 2014  ♦ Week 308 Issue 1
NEWSWIRE: Medicare in Texas has found a way to save money, by denying all claimants who have workers comp cases, even if for unrelated conditions. And how can the NYS Workers Comp Board say it is settling a GSIT claim for 23¢ on the $1 but then add, “We always have the right to ask for the additional 77¢, (or more?).”


DECISIONS: Once again the Third Department affirmed the Board four decision reviewed this week, including policy cancellation (for carrier), causal relationship (for carrier), §18 notice and employer/employee relationship (claimant), and on a stipulation (claimant). And in a non-workers comp case, The Court clarified which political employees do not qualify for unemployment benefits when they loose their patronage post.
November 7, 2014  ♦ Week 307 Issue 1

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

DECISIONS: Claimants, supported by Board decisions, prevailed ain the two decisions issued by the 3rd Department this week: calculating reduced earnings and in an injury while being transported by employer.
October 30, 2014  ♦ Week 306 Issue 1

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

DECISIONS: No decsions this week.
October 23, 2014  ♦ Week 305 Issue 1

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

NEWSWIRE: Senator Savino finally publically decries the failing/flailing WCB and a State Commissioner exemplifies why the public distrusts public officials: "I am not guilty and accept whatever sentence you give me for my illegal actions."
October 16, 2014  ♦ Week 304 Issue 1

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

DECISIONS: Today, the Third Department again issues no decisions, although there are a number of cases which have been argued before the Court.
October 9, 2014  ♦ Week 303 Issue 1

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

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

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

October 2, 2014  ♦ Week 302 Issue 1
DECISIONS: In the Board’s two affirmances this week, claimants win one and lose one, both based on the preponderance of medical evidence and the Third Department schedules 8 cases for argument this month.
September 25, 2014  ♦ Week 301 Issue 1

DECISIONS: No decisions this week

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

September 18, 2014  ♦ Week 300 Issue 1

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

NEWSWIRE: A quiet change in the WC Law allows the Board to move completely out of Albany, forever, and a national council recommends that states reduce their workers comp rates.
September 11, 2014  ♦ Week 299 Issue 1
September 4, 2014  ♦ Week 298 Issue 1

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

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

August 28, 2014  ♦ Week 297 Issue 1

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

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

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

August 21, 2014  ♦ Week 296 Issue 1
WCB Staff Names Posted
Florida's WC Law Ruled Unconstitutional
NEWSWIRE:  Although there have been many departures from the NYS WCB this year (and more to come), no formal announcements has been made as to who is filling which position. That is, until today: I list the key exec's names.

ARCHIVES for the NEWSWIRE page have been done, with indexes for 2013 and most of 2012 can be found using the NEWSWIRE LINKs on the left of each page.

DECISIONS: No cases again this week from the 3rd Department but, in Florida, the Supreme Court there ruled Florida's workers compensation law unconstitutional. The case is listed on the DECISIONS page but a lengthy COMMENTARY on the actual findings and why the State of  Florida is wrong will be under COMMENTARIES.
August 14, 2014  ♦ Week 295 Issue 1
FBI Investigates WCB Vice Chair Frances Libous
4th A.D. on §29 3rd Party suits
NEWSWIRE: As noted in an E-Mail ALERT/ BULLETIN issued here Tuesday, the home of WCB Vice Chairman Frances Libous, 62, was raided by the FBI and NYS Attorney General';s office for her files and computers, her husband's having been seized a few weeks ago. Details and comments in the NEWSWIRE.

DECISIONS: Earlier today, the 3rd Department announced that it was not issuing any decisions today. But an interesting decision on a 3rd party case was issued by the 4th Department which said, if two co-employees crash into each other while at work, neither is entitled to SUM benefits.

    August 12, 2014  ♦ Week 294 Issue 2
WCB Vice Chair Fran Libous' Laptop etc Seized by FBID


The following is the introduction to a story published late yesterday by Jimmy Vielkind of  www.capitalnewyork.com

ALBANY-State and federal investigators last week seized papers, a laptop and cell phones belonging to Frances Libous, a vice chair of the Workers Compensation Board and the wife of a top Republican senator, two people familiar with the raid said.

Agents from the F.B.I. and office of state Attorney General Eric Schneiderman executed a search warrant at the Libous' Binghamton home as part of a joint investigation, the people said. The nature of the probe was not immediately clear.
August 7, 2014  ♦ Week 294 Issue 1

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

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

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

  July 31, 2014  ♦ Week 293 Issue 1

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

  July 24, 2014  ♦ Week 292 Issue 1

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

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

July 17, 2014  ♦ Week 291 Issue 1
DECISIONS: No workers compensation related decisions have been issued by any of New York's courts this week.

NEWSWIREThe NYS Dept of Finance has denied NYCRIB's request for a rate increase.
July 10, 2014  ♦ Week 290 Issue 1

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

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

July 3, 2014  ♦ Week 289 Issue 1
DECISIONS: Claimants prevail in all four cases this week, including a reversal, the last citing the Board’s as usual inconsistency. Two Courts continue to review the Board suits in GSIT cases.

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

June 26, 2014  ♦ Week 288 Issue 1

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

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

VACATION TIME: I report on my two weeks hunting for treasure in the Central American rain forest and how it relates to politics.
 June 19, 2014  ♦ Week 287 Issue 1
DECISIONS: The last three week’s have not be kind to the Board which found itself reversed on 2 of 3 decisions issued in the past three weeks, including its nemesis issue: §25-a in which it received one affirmance and one reversal.

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

At the 2nd Dept, a carrier may loose its case on §11 jurisdiction because it failed to show that the claimant’s §32 was actually approved by the Board., Board wins where it has ‘discretion’ but loses when it is a B&W legal issue: par for the course.
May 29, 2014  ♦ Week 284 Issue 1


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

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

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

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

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

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

Again, Board wins where it has ‘discretion’ but loses when it is a B&W legal issue: par for the course.
May 22, 2014  ♦ Week 283 Issue 1

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

Again, Board wins where it has ‘discretion’ but loses when it is a B&W legal issue: par for the course
May 20, 2014  ♦ Week 282 Issue 1&2

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

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

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

May 8, 2014  ♦ Week 281 Issue 1

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

May 1, 2014  ♦ Week 280 Issue 1
DECISIONS:  In the one decision issued today, the Appellate Court affirmed the Board’s reversal of a Law Judge decision, finding that a ‘slip & fall’ on any icy sidewalk outside the place of employment is not compensable.
COMMENTARY: With the departures of Fenster (Friday), Munnelly and Humowiecki (last summer), who if anyone is in charge of the Board?
April 17 2014  ♦ Week 278 Issue 1

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

April 10 2014  ♦ Week 277 Issue 1

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

April 4 2014  ♦ Week 276 Issue 1

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

March 27, 2014  ♦ Week 274 Issue 1
DECISIONS:Board wins 5 of 6, on cases ranging from §114-a fraud, §15(8), causally-related death, stress, lower income with the reversal, as usual, being issued on §25a issues. In two cases, the Board panels successfully reversed the Law Judge. In the §25-a reversal, the Law Judge's original decision was correct.
COMMENTARY:A reader questions how I rate the TOP ATTORNEYS.
March 20, 2014  ♦ Week 273 Issue 1

The Insider's Top Attorneys for 2013 announced today.

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

DECISIONS:No cases have been listed this week but there is an up-dated list of cases pending at the 3rd A.D.
March 13, 2014  ♦ Week 273 Issue 1

DECISIONS: Board loses twice to the same pro-se claimant but wins on two others cases, including a major Voluntary Withdrawal case, warranting several COMMENTARIES this week.
COMMENTARY Two of this week's cases prove why the Workers Comp Policy Institute support of my prior commentary as to why injured workers need attorneys.
NEWSWIRE University studies show that the NYS Scaffold law increases both injuries and costs. Oklahoma State's highest court approves the change of its 'State Fund' from a state agency to a mutual fund.

March 6, 2014  ♦ Week 272 Issue 1
DECISIONS: The 3rd A.D. affirmed the WCB, with a $500 fine, on an issue that it had seen twice in December and in a case it ad seen last year on medical variances. And at the 2nd, the WCB is not responsible when a security guard injures a claimant.

February 28, 2014  ♦ Week 271 Issue 1

DECISIONS: While no decisions relating to Board decisions have been issued, the Appellate Court has ruled that an injured workers suit against the employer can not be summarily rejected due to the exclusive remedy of WCL if the claim has yet to be filed, denied, or approved by the Workers Comp Board.
COMMENTARY Writer Peter Rousmaniere explains the real problems with the NYS WCB and the impact that medical marijuana will have the the NYS workers comp system.

February 20, 2014 ♦ Week 270 Issue 1

DECISIONS: The Board prevails in the one case decided by the Courts this week, which found that not only did the employer file its C-7 protest too late, but it also offered no medical evidence to defeat §21(1) presumptions in an unwitnessed death claim.

Contrary to a California WC study, injured workers need attorneys to successfully navigate the maze of WC laws and regs.
NEWSWIRE: Disbarred WC attorney's 2nd attempt to get reinstated denied by 2nd A.D.

February 13, 2014  ♦ Week 269 Issue 1

DECISIONS: In a lengthy decision, the Court of Appeals affirms Board in Queens Hospital v Microtech on illegal immigrants. And the Third Department the Board in six cases and one dismissal. Claimants win in two and lose in two, with the others being carriers against each other or against the Board.
COMMENTARY An interesting commentary on the increasing abuse of medical retirement/disability benefits.

February 6, 2014♦ Week 268 Issue 1

NEWSWIRE Hornell Offers free hearing point; Ohio WCB cuts opiate abuse;Colorado WCB penalizes workers who ignore safety rules.

DECISIONS: Court considers whether the failure to maintain workers comp insurance is grounds to cancel tenant’s lease, even if secured years after the lapse.

January 30, 2014  ♦ Week 267 Issue 1

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

January 23, 2014  ♦ Week 266 Issue 1

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

January 16, 2014  ♦ Week 265 Issue 1

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

January 9, 2014  ♦ Week 264 Issue 1

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

NEWSWIRE  The New York State Insurance Fund Board of Commissioners has formally announced the election of Eric Madoff as NYSIF Executive Director. And NYSIF mourns the loss of Chief Executive Deputy Director Dennis J. Hayes, who died December 6, 2013 after a long illness.
January 2, 2014  ♦ Week 263 Issue 1

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


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

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