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


News reports, press releases, legislative updates, and background stories of concern to those who participate in the New York State Workers Compensation system: injured workers, carriers and employers, their attorneys, NYSWCB staff, and third party vendors. This page also posts 'insider' information about proposed changes in practice and procedures at the NYSWCB, information not available elsewhere. To be added to our weekly e-mail alert list or have any submissions or suggestions or would like to write an opinion piece, contact: TheInsider@InsideWorkersCompNY.com

The following headlines are links to the 2013 NEWSWIRE articles. Click here for 2014 and 2012

NYSIF Mourns Chief Executive Deputy Director Dennis


♦December 12, 2013 [5386]: NYSIF mourns the loss of Chief Executive Deputy Director Dennis J. Hayes, who died Friday, December 6, 2013, following a long illness.

Hayes led the New York State Insurance Fund as Chief Executive Deputy Director since July 1, 2011.  Prior to joining NYSIF, he was a senior executive at the New York Liquidation Bureau (NYLB) from 1996, where he became special deputy superintendent in September 2009. While in private practice from 1987 to 1996, he specialized in insurance, reinsurance and regulatory matters. From 2001 to 2003, he was executive vice president and general counsel to Recovery National Corporation in Tarrytown, NY, a company specializing in identifying and recovering unrealized reinsurance. As executive director for Receivership Operations for NYLB, Hayes had a key role in developing the final plan for the successful rehabilitation of Interboro Mutual Indemnity Insurance Company and its conversion to Interboro Insurance Company. He also managed the rehabilitation of Rochdale Insurance Company.

Email the Insider with your comments and questions.


NYSIF Pays Amherst NY $17.8M

♦December 23, 2013 [5384]: The Town Of Amherst has finally received the $17,790,000 it won from the NY State Insurance Fund.

This payment was the result of the town’s victory in the
Matter of Bissell vs Town of Amherst, decided by the New York State Court of Appeals on March 27, 2012.

In that decisions, the Court concluded that when, the future medical benefits that a compensation carrier has been relieved of paying due to a claimant's successful prosecution of a third-party action are "so speculative that it would be improper to estimate and assess litigation costs against [that] benefit to the carrier" the carrier need only pay its equitable share of attorneys' fees and costs incurred in the future by a claimant once the claimant incurs and pays each medical expense.  The Court then ruled that the lower court has option to design a program, (e.g., by court order or stipulation of the parties, to "fashion a means of apportioning litigation costs as they accrue”.

There was nothing in the reports to indicate if this payment was a single, one-time payment or a payment of expenses incurred to date.

Email the Insider with your comments and questions.


NYS to Issue $370M in Bonds for GSITs


December 20, 2013 [5383]: Governor Andrew M. Cuomo today announced 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. The the 2013 Business Relief Act authorizes the Workers’ Compensation Board to use the proceeds to purchase insurance to pay the claims of these injured workers; the employers will repay the cost of insurance under favorable terms.

The Board will use the bond proceeds to purchase insurance policies that will pay the claims of injured workers because those employers – members of insolvent group self-insured trusts – abandoned their claims. The businesses in these trusts will reimburse the Board for the cost of these “assumption of liability policies” over 10 years, at low interest rates. By Dec. 31, 2013, the Board will finalize the insurance policy purchase on behalf of the two largest defaulted group trusts, the Healthcare Industry Trust of New York and the Healthcare Providers Self Insurance Trust. Additional proceeds can purchase insurance policies for group trusts that refused to meet their claim obligations and whose claims the Board now administers.

Email the Insider with your comments and questions.


Will WC Cases Be Made Public?

December 5, 2013 [5382]: OSHA has announced a proposed new rule to improve tracking of workplace injuries and illnesses.

The first proposed new requirement is for establishments with more than 250 employees (and who are already required to keep records) to electronically submit the records on a quarterly basis to OSHA.

And, while Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels stated, “The proposal does not add any new requirement to keep records; it only modifies an employer's obligation to transmit these records to OSHA.", those who have seen government regulations grow in intrusiveness over time will realize that this may be the first step in making even more detail information available to the public.

OSHA’s initial goal is to make these records available on a database to the public. The question is how long will it be before those who are pursuing an injury cases, be it via workers compensation or the civil courts, will be able to demand from the employers of record information as prior workplace injures which in turn, could require the dissemination of name of individuals who had claims, including workers compensation claims. After all, no one thought that those who had to register their firearms with counties through the state, per state law, would discover the their names and addresses would be made public after law suits by various members of the public. Will injured workers be treated any better?

Email the Insider with your comments and questions.


NYS Budget better,
On the Back on WC Insureds

November 25, 2013 [5381]: New York State Comptroller Thomas DiNapoli released information on NYS tax collections for the period through October 31, 2013, indicating an increase of $2.7 Billion.

What is most interesting is that among the Miscellaneous Receipts collected as “taxes” is the sum of $250,000,000 referred to as ‘a transfer’ from the New York State Insurance Fund.

So those employers whose cost of workers compensation insurance could actually have been lower that what has been, have in effect, paid a ‘premium tax’ on their workers compensation insurance to help balance the state budget.

What is interesting to note is that just a few weeks ago, Governor Cuomo trumpeted The Business Relief Act, part of the enacted 2013/14 budget, which mandates that the Board create a single assessment methodology to fund the New York State workers' compensation system for all New York State employers, representing a savings of approximately $300 million to all New York State employers.

"What he giveth with one hand ($300,000,000)
he taketh away with the other ($250,000,000).”


WC Opiate Use In NY

Unaffected by New Laws

November 25, 2013 [5380]: A recent study from Progressive Medical has found no evidence of change in opiate usage in the workers compensation system of three states which recently changed their WC laws regarding the usage of opiates in their WC systems: Kentucky (July 20, 2012), New York (February 25, 2013 and December 1, 2010) and Tennessee (August 9, 2012).

While, for example, in New York State Progressive Medical expected to see a shorter days’ supply, their initial review did not reveal any regulatory effect. While, for example, in New York State Progressive Medical expected to see a shorter days’ supply, their initial review did not reveal any regulatory effect. On December 1, 2010 New York adopted treatment guidelines limiting opiods to a 14-day supply then prior authorization is required. On February 25, 2013, New York  changed schedule of drugs, all hydrocodone products moved from CS III to CS II, limiting days’ supply and no refills; it also moved Tramadol to CS IV.

But the report added, “As demonstrated by our inconclusive findings, the laws or regulations, in and of themselves, however, may actually have little direct impact on the issue they have been crafted to address. ... A proverbial ‘silver bullet’ does not exist and a multitude of environmental factors also must be considered.

The report then goes on to list the other factors which must be considered whenver any state plans new legislation including among others, (1) the claims professional's experience, (2) if and how nurse case manager and PBM resources are utilized, and (3) the influence (or lack thereof) of prescription drug monitoring programs.


Broome County Establishes

Own WC Fraud Unit

♦November 19, 2013 [5379]: As reported today by Insurance & Financial Advisor, upstate Broome County plans to established its own informal task force to oversee workers’ compensation claims in order to fight fraud. This task force will investigate new claims as well existing claims.

The task force will be made up of County Executive Debbie Preston, county District Attorney Gerald Mollen, personnel director Tom Behan, and Tom Dellapenna and Colleen Capwell from the county’s risk and insurance department.

It is interesting to note that the Vice-Chairman of the NYW Workers Compensation Board Frances Libous hails from Binghamton so one must assume that this new program must have been established with her blessing and will enjoy the full support of the Board’s Inspector General’s office.


NYSIF: A Giant among WC Carriers

♦November 18, 2013 [5378] According to a report just published in Insurance Networking News, the State Insurance Fund of New York is the fifth largest insurer of workers compensation in the United States with  4.7% of the American market.

The top five – Liberty Mutual at 9.3%, Travelers at 8.4%; The Hartford at 7.3%, AIG at 6.9% and NYSIF at 4.7%) – retain 36.6% of the market. NYSIF, with $1.94B in premiums written, collects more than the next two largest state systems: 9th is Texas Mutual Insurance ($927M; 2.3%) and in 10th place State Compensation Insurance Fund of CA ($888M; 2.2%).

As a final note, California’s total market ($9.00B) is twice as large as that of New York’s ($4.75B).

The full list of the top 25 workers’ comp insurers, based on net premiums written and market share and the top 10 state, based on  workers’ comp direct premiums written in 2012, can be found in this report found at


NYS Bar Assoc Against Closings

♦November 14, 2013 [5377]: Joining the chorus of those questioning the Cuomo administration’s plans to close eight workers compensation hearing sites is the New York State Bar Association as reported by Jimmy Vielkind in the website www.capitalnewyork.com.

They raise the oft-cited argument that closing these sites, mostly in rural areas upstate, would reduce access to an important legal process for sick and injured workers.

Board spokesman Rachel McEneny said this move will save the Board $30,000 a yea, adding that  “Claimants have not and will not be negatively impacted by these consolidations.”

But the attorneys disagreed writing that ”We question how such an arrangement constitutes a due process access to justice. We question a Workers' Compensation Law Judge's ability to 'ascertain the rights of the parties' or assess the credibility of a witness or the validity of a claim if the injured worker is on the telephone.

“This issue is not about lawyers getting rich as portrayed by some; it’s about the essential access and delivery of government services to rural, underserved areas, for people least able to have a voice in government,” said William Pulos, a Hornell attorney who handles workers comp cases.
“Workers compensation is not a handout out “freebie” State program; it’s specifically designed to protect workers hurt on the job as well as employers, by providing a specific set of rules for handling claims, instead of the alternative (and misunderstood) “tort” system that is criticized by special interests.


DSM-5 And WC Disability

October 17, 2013 [5376]:In a recent newsletter, Dr Bruce Leckart posits that the new DSM-5 (Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders) used to assess the level of an injured worker's disability due a variety of psychological problems is inaccurate and unreliable.

Specifically, he argues that the authors of DSM-5 have recommended a new test called WHODAS 2.0 (World Health Organization Disability Assessment Schedule 2.0). He writes that this “is a ‘test’ containing 36 items or questions that are used by patients to relate their complaints on a five-point scale. The questions are transparent and subjective and therefore useless in coming up with an objective measure of permanent psychiatric disability in a medical-legal case.” In effect, he posits, it is the injured worker who determines the level of disability thus making the DSM-5 recommendation useless in determining the level of disability.

Prior to the DSM-5 recommendation to use WHODAS, its authors recommended Global Assessment of Functioning (GAF) who itself had problems. But, as Dr Leckart notes, at least GFA distinguished between levels of disability of life functions as compared to occupational functioning.

“The bottom line here is that in personal injury cases there is no viable method in the DSM-5 for quantifying signs and symptoms or assessing disability in the areas of work, socialization or education. Additionally, in workers’ compensation cases if one tries to use the Schedule For Rating Permanent Disability for an applicant with discordant GAF scores one can not come up with a meaningful single GAF Scale score. This puts the psychological or psychiatric evaluator trying to assess an individual’s psychiatric disability in a predicament. If they use the DSM-IV-TR, they are conceivably using an out of date manual. If they use the DSM-5, they have no method for assessing permanent psychiatric disability.”

Another important issue not discussed by Dr Leckart is the fact that, the longer the injured worker is on workers compensation, the longer many of them get depressed by the system’s failure to cure them 100% (more often than not an unrealistic expectation) and the fact that their fate is in the hands of a seemly disinterested if not hostile bureaucracy.

As soft tissue injuries, occupational diseases, and psychological problems increase in the system, as compared to the ‘good’ old-fashioned broken bones for which the WC was first designed 100 years ago, the issues raised by Dr Leckart and the answers will have a major impact on the system and how injured workers are treated.


California limits WC for non-CAL athletes

October 9, 2013 [5375]: California Gov. Jerry Brown signed a new law (AB 1309) that limits the ability of out-of-state professional athletes to file for workers' compensation in California, the Sacramento Bee reports. Brown signed the legislation Tuesday after more than a year of heavy lobbying by professional sports leagues, which stand to reduce their financial liabilities for concussions and other brain injuries sustained by players, as reported in the Los Angeles Times.

According to Assemblyman Henry Perea, who sponsored this bill, this law will close what Perea considered to be a loophole which allowed athletes employed by out-of-state teams to file for and collect workers compensation even if they have little to no employment history in the state.

It has been argued that the majority of states do not allow such claims. California has been one of nine states that permit workers' compensation claims on cumulative trauma injuries like those claimed by professional athletes over time and has been paying out about $4,000,000 in claims annually.

The new law requires professional athletes to have played at least two complete seasons for a team in California to be eligible to file for workers' compensation, the Los Angeles Times reported Tuesday. But, if an athlete has played seven or more seasons for a team outside California, they are ineligible for benefits even if they meet the two-season requirement within the state.


§25-a Fund’s Closing Procedures

October 10, 2013 [5374]: Workers Compensation Chairman Robert Beloten has announced some basic principles, based on statute and case law, to guide carriers as to the filing of proper and complete applications for §25-a relief. These will be found under the Board’s Subject Number 046-630.

The closing of the Fund for Reopened Cases has been directed as part of the 2013 reform legislation (L. of 2013, Ch. 57, Part GG, §13) to close the Fun to new claims for WCL § 25-a relief on or after January 1, 2014. However, if the case is already opened and the issue of WCL § 25-a is raised prior to January 1, 2014, WCL §25-a can be litigated even if there is no current liability to be transferred.

This of course is based on the assumption that the recent litigation brought by Liberty Mutual is denied. The claim by Liberty Mutual noted on this page last week contends that the closing of the funds is unconstitutional. A copy of Liberty's original motion is now posted on this website.


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

October 7, 2013 [5373]: The rumor I heard a few weeks ago but was unable to substantiate has proven to be true, according to Jimmy Vielkind of Capital New York:

Workers Compensation Board plans to close “customer service centers” in Lockport, Riverhead, Canton, Geneva, Oneonta, Monticello, Queensbury and Hornell.

Their closure would force injured workers in those areas to travel longer distances or make phone appearances in support of their case.

William Pulos, a Hornell attorney who often represents workers at the center in that Steuben County city, said in an e-mail, “These closures of the hearing sites, using the pretext 'to save rent money' will disenfranchise the state’s population least able to defend themselves; the sick, injured and disabled from on-the-job accidents that the State has the statutory requirement to protect. This closing measure is a canard.

According to WCBspokeswoman Rachel McEneny. “There are no layoffs associated with the consolidations and the Board is allowing any affected claimant to appear telephonically where possible. The consolidation will result in $3,000,000 in savings to employers throughout the state over the next 10 years.

Perhaps they can use that $300,000 a year to help pay for meaningful announcements on their website rather than for their new communication program on Twitter which this week featured “A light moment while reimaging” the Board.

The one open question:

Where it is that these claimants and their attorneys will do their telephony?

In newly opened offices in Lockport, Riverhead, Canton, Geneva, Oneonta, Monticello, Queensbury and Hornell? 

The Insider: But will this feed be up later today??


Liberty Sues NYS for Closing Special Funds

October 3, 2013 [5372]: According to the Insurance & Financial Advisor website, Liberty Mutual Group Inc. and several of its subsidiaries have filed a lawsuit in New York Supreme Court to stop enforcement of the amendment to the workers compensation law that would close the state’s workers comp Fund for Reopened Cases to any newly reopened claims starting Jan. 1, 2014.

In the suit, Liberty alleges that closing the fund would cost insurers and self-insured employers up to $1.6 billion in unfunded liability.

The Insider A review of the Court’s docket does not yet list this case so if anyone has any information to the ongoing status of this case, or for that matter any observations on the issue, this website would be happy to publish it.


WC Acupuncture Bill Vetoed by Cuomo

October 3, 2013 [5371] :Last week among the hundreds of bills vetoed by Governor Cuomo was Veto #215.

The vetoed bill, S3131/A5940, authorized the care and treatment of injured employees by duly licensed or certified acupuncturists under the workers' compensation program. This bill, had it signed, would have been added to WCL §13-p and amended Education Law §8213.

The Insider It was rumored that, when the law was changed in 1996 to cover chiropractic services, one reason was that the then Governor, George Pataki, was using the services of same, hence his amenability to the amendment. Perhaps if someone was 'sticking it' to Cuomo, he would have signed this bill.


Desk Arbitration of Health Care Billing Dispute Has Started

October 3, 2013 [5370]: The Business Relief Act which provides for desk arbitration by a single arbitrator to resolve health care billing disputes involving $1,000 or less went into effect September 1, 2013, as reported in the Chairman’s Subject Number 046-600 Dated August 9, 2013.

Desk arbitration involves dispute resolution by a single arbitrator based on paper submission, rather than a hearing before an arbitration panel. While I principal this is a good concept, the ‘devil is in the details’ and the Board has yet to indicate who will be the arbitrators: law judges and conciliators who are lawyers but have no real medical training or examiners who are neither lawyers not have medical legal training. Or will these arbitrators be medical professionals who will not only understand what are the actual procedures but the relevance of them to the treatment program for which they have been requested by the claimants’ medical providers but denied by the carriers’ medical experts (or maybe just an experienced examiner). Will the Board ever announce who are these arbitrators or will it be some Star Chamber made up of some of the same people who managed the GSIT program and medical variance programs at their inception?.

Since the provider and carrier/self-insured employer each have 30 days from the Board's acknowledgment of the arbitration request to submit any documentation in support of its position, it will be interesting now that 30 days have gone by since the start of this program if Board will act responsibly and timely or give these the treatment they did with medical variances and take a year to ‘get to them’.


Headlines vs The Truth

September 24, 2013 [5369]: The National Insurance Crime Bureau has published statistics which indicate that while the number of WC claims have been decreasing the percentage deemed “questionable” has been rising.

According to the story in the Insurance Networking News, in 2011, 3,349,925 workers’ comp claims were found in the Insurance Services Office (ISO) ClaimSearch database. That number decreased to 3,244,679 in 2012 and is on track to decrease again in 2013 based on the 1,498,725 claims received in the first half of 2013.

The most interesting fact is they report that New York State had only 688 claims that insurance companies referred to NICB for closer review and investigation based on one or more indicators of possible fraud. Considering how much space fraud takes up in the newspapers in New York, supported by a lot of industry press releases, it is interesting that there are only 688 cases worthy of inspection.

In the overall scheme of things, it would seem that the only widespread acts of fraud are probably done by a handful of medical providers but not by injured workers or their employers.


Cuomo Vetoes Court Reporter Law

August 1, 2013 [5368] Governor Andrew Cuomo today vetoed legislation which required workers comp hearings and pre-hearing conferences to be stenographically recorded by a stenographer in the employ of the Wworkers’ Compensation Board. The Senate bill was S4471 introduced by Senator Savino and the Assmebly bill was A5235 by Assemblyman Wright.


WC Claim forces Town
To Face Bankruptcy

July 27, 2013 [5367]: It has been reported in a number of papers that the 1,107-person village in the town of Trenton is considering filing for bankruptcy as the result of a substantial workers compensation claim and a resulting hike in insurance fees.

As the result of an 2008 injury to a firefighter with the Prospect Volunteer Fire Co., an settlements aid to be in the amount of $101,4000 was made (for comp only; not future medical). But according to Elizabeth Cooper reporting in the July 27, 2013 edition of the Observer-Dispatch “it’s not the settlement that would bankrupt the town. It’s the increase in the village’s workers compensation insurance premiums.”

Before the accident, Prospect paid about $300 a year for the insurance, which comes through the Oneida County Self Insurance Plan. By 2012, the premiums had gone up to $9,371 a year because of the claim. If the village doesn’t accept the settlement, premiums would rise to $44,587 a year by 2015. If it does accept it, the premiums would reach $72,700 by 2015...”

The article discusses some of the options to help pay fr the claim, which include everything to substantially increase taxes for everyone to disbanding not only the fire department but the village itself.


Comments on Kigin V NYS WCB
(Medical Variances)

July 19, 2013 [5366]: The New York Law Journal’s take on the recent Appellate Curt’s decision supporting the NYS WCB’s denial of a request for a medical variance confirms my prediction that this will be the most important cases this year

In a key interpretation of reforms to the Workers' Compensation Law, a divided appellate panel has held that medical treatments not included in a lengthy list of presumptively necessary procedures are presumptively unnecessary.

The Matter of Kigin v. State of New York Workers' Compensation Board offers a thorough look at the 2007 legislative reforms in the context of a wholesale attack on the reform legislation. The Court rejected a claimant's argument that the board lacked authority to promulgate new rules and regulations in response to the legislation, as well as her assertion that a claim for acupuncture treatments was wrongly denied.

Jill Singer, appearing for the Special Fund, stated that the ruling is significant in that it resolves the first major challenge to the treatment guidelines. “The medical treatment guidelines were enacted to afford injured workers medically necessary and appropriate treatment, and ensures consistency and efficiency throughout the Workers' Compensation system by reducing individual treatment disputes.”

Robert Grey of Grey & Grey in Farmingdale arguing for Kigin said that before the reforms the law included a presumption in favor of the treating doctor's recommendation, with the burden of proof for denying treatment resting with the insurer. "The point of the 2007 reform was to make it easier for injured workers to get treatment and do away with some of the less justified insurer denials," Grey said. "To achieve that, the Legislature directed the board to promulgate a list of pre-approved procedures and instead what the board did was create this regulatory scheme that pre-approves some treatment and pre-denies more treatment." According to the Law Journal, Grey said he expects to appeal.

It will be interesting to see how many parties file amicus curiae briefs in this case.


9.5% Increase for WC Rates

July 21, 2013 [5365]:Aides to Gov. Andrew Cuomo approved a 9.5 percent increase in workers compensation rates last week despite the fact that the New York Compensation Insurance Rating Board (NYCIRB) sought a 16.9 percent "loss cost" hike.

The reduction to below 10% was based on hearings by Cuomo's Department of Financial Services which estimated that once the reforms adopted as part of the 2013-14 state budget are phased in, the increase should be in the range of 2.8%.

But NY still remains the fifth most expensive state in the U.S. for workers compensation costs for employers, based on a recent study issued last fall by the Oregon Department of Consumer and Business Services

After NYCRIB originally requested the 16.9%, the Cuomo administration sent the request back basically telling NYCRIB to resubmit a reviewed request, indicating that nothing higher than 9.5% would be approved. After NYCRIB submitted a revised petition for 9.5%, the second request was approved.

Business Council workers comp specialist Lev Ginsberg said, “The Department of Financial Services has recognized the increases in costs in the system and that’s reflected in a realistic loss cost. The Business Council remains committed to working with the administration and the Workers Comp Board to further reform the workers comp system and realize greater costs savings and hopefully lower workers comp insurance costs in the future."


A Few Notes of Interest

July 25, 2013 [5364]: The Board officially announced the appointment of its two newest Commissioners/Board Members with a June 24 “Tweet”: Congratulations to new Board members Linda Hull and Ken Munnelly. But what if you don’t ‘tweet’? You don’t find out?

The newly appointed commissioners Munnelly and Hull dd not take their office after their confirmation by the State Senate as is the usual custom but waited until this past Friday, July 19, 2013, to do so in order to give them the time to wrap up existing ‘business’. In Munnelly’s case this was his work as the Board’s General Counsel and Hull as the owner of a private sector business.

To date, no replacement has been named for Munnelly. It will be interesting to see who gets to pick: Governor Cuomo or Vice Chair (and wife of State Senate Deputy Majority Coalition Leader Tom Libous) Fran Libous.

In the last few months there has been a plethora of notices listing individuals whose work on behalf of injured workers has been suspect, below par, or simply not meeting the minimal standard necessary to protect the interest of injured workers and, thus, the employers. Unfortunately, to date, the notices have listed only medical providers but not some of the WCB staff, including a few commissioners, who, under any normal standard of work, would have long since seen the door.

Well, all other matters aside, there are two Pataki-era appointees still in place one of whom exemplifies all that is wrong with political appointees and one who exemplifies what is good about them ? in alphabetical order: Rick Bell and Candace Kellogg Finnegan. Click here for the link to their official and unofficial biographies as well as those of all the other commissioners.

Be that as it may, one question that has been asked of me by several member of the community is if I know the reason that more doctors have been sanctioned this year than in most of the prior years combined. The answer to that question is the same as to most Board announcement: “Who knows, including those who made the decisions.


2 Commissioner Affirmed but....

June 23, 2013 [5363]: Late Friday night, June 21, 2013, Governor Cuomo’s office confirmed not only that Kenneth Munnelly and Linda Hull have been confirmed as the New York State Workers Compensation Board’s two newest members, it also reported the names of the commissioners who were being replaced.

In a move typical of Governor Pataki administration, although two new commissioners were confirmed on Friday, June 21, only one sitting commissioner was replaced: Donna Ferrara who joined Mona Bargnesi whose term (and payroll line) was taken by Vice Chairman Frances Libous when Libous was reappointed early last week June 17, 2013.

Ken Munnelly was appointed to fill the balance of the term that had been held by Donna Ferrara: 2012 to 2018

Linda Hull was appointed to fill the six-month balance of the term (expiring December 31, 2013) that was vacated by Libous when Libous took Bargnesi's term. This must mean that Hull was guaranteed that next year she would be nominated for a full seven-year term (January 1, 2014- December 31, 2020).

What is interesting is that both the State Senate Finance Committee website (and confirmed by the Governor's office) that neither Munnelly nor Hull appeared in person, which I was told when I was a commissioner a requirement to be confirmed by the State Senate to a position that pays a salary.

What this means is that Commissioner Candace Finnegan continues to collect her $90,200 a year salary despite being the Board's least productive member. I have been told that she continues some of the practices she had when I was on the Board with her: not showing up for hearings or the monthly board meetings

Many was the occasion, when I would get a call from the then Vice Chairman Jeff Sweet late in the afternoon, asking me if I could go to the Peekskill district office (a few miles from Finnegan's home) to take the hearing assigned the next day to Finnegan as ‘something' had come up and she could not attend the hearing. As many of you in Brooklyn know, I was in the Brooklyn district office every day even when I did not have hearings. And many was the time that I would get a call in my office from the hearing part to tell me that Finnegan had not yet appeared for her assigned §32 hearing, no one had heard from her, and could I please come downstairs and conduct the hearings until she showed up. She not only never showed up, but she never called anyone before, during, or after the fact. On occasion, in Peekskill, for §32 hearings, after the time when some commissioners did not sign approved §32 agreement, another commissioner covered for her but left Candace's name as the commissioner of record.

Why do I raise this issue now, publicly? Governor Cuomo, who has stated that he wants to make government better, has just replaced two well-respected, hard working members of the Board with two new well-respected members. But he has left behind a well-connected individual who clearly characterizes the term ‘political flunkie'. Not that Finnegan is not bright - she is. She is just lazy and has over her many years as a commissioner shown a lack of disrespect for not only the employees at the Board and her colleagues, but also to the injured workers and their employers whose claims she has sworn to review in order to make an informed decision. But being the best friend of Libby Pataki (Governor George Pataki's wife) and the wife of Michael Finnegan (G. Pataki's former law partner) means never having to say you're sorry or that you mean it when you took the oath of office. [36235-5364]


Changes in the Commissioners

June 20, 2013 [5362]: With the New York State Legislature going into summer vacation tomorrow, there is the annual mad dash to confirm what is this year's 138 pending appointments from Governor Andrew Cuomo.

Frances Libous, currently Vice Chairman of the NSY WCB, whose current term expires on December 31, 2013. was reappointed to the 4½ year balance of the term (2011-2017) held by Mona Bargnesi, whose 13 years of service now comes to an end. Why Libous, whose husband, Senator Tom Libous (R-Binghamton) is the number two Deputy Majority Coalition Leader in the State Senate, did not wait until January to get a full seven-year term raises a lot of interesting hypotheses, once of which is that she plans to retire in 2017 when she hits 65.

Two new nominees, WCB General Counsel Kenneth Munnelly and workers compensation consultant Linda Hull, whose nominations have been confirmed in phone calls to the Senate Finance Committee, still await the formal hearings that will result in their becoming commissioners. It is reported that Munnelly and Hull will replace Commissioners Candace Finnegan (appointed in 1998) and Donna Ferrara (2005). This would leave one vacancy: the last year of Libous' former slot. In addition, Commissioner Rick Bell's term expired December 31, 2012 so this is a fourth spot Cuomo can fill.

If this whole process sounds confusing, it is. Not only is NY the only state where term shifting takes place, it is the only agency in New York State where this happens, beneficaires having been Finnegan (once), Paprocki (once) and Libous (now three times). Supposedly the appointments will be done by tomorrow (Friday) or possibly over the week end at the latest, at which time this page will be up-dated.

The Commissioners' Biography page has also been updated and will be updated again once the final confirmations are made. 


Gov. Cuomo Appoints
Two New Commissioners

June 13, 2013 [5361]: Governor Cuomo, in time for the end of the NYS Legislative session for 2012-2013, has nominated as new Commissioners/ Board Members of the New York State Workers Compensation Board. Hearings have been tentatively scheduled for next week before the New York State Senate Labor and Finance Committees. The following individuals are to replace two sitting members whose terms have expired:

  • Kenneth Munnelly: General Counsel at the Board since 2007
  • Linda Hull: Owner/President Upstate WorkComp Inc

They are replacing Mona Bargnesi and Donna Ferrara.

Linda Hull, well regarded in workers compensation circles, has been president and owner of Rochester-based Upstate WorkComp Inc. since 1994. She serves as a consultant for employers insured or self-insured, insurance agents, occupational health groups or vendors associated with workers compensation. Worked with fortune 500 companies, and regional employers. Self-insured employers, large retro, group self-insureds to individual employers insured with State Insurance Fund.

Ken Munnelly, General Counsel at the Workers Comp Board since 2007, has an excellent record of helping the Board in representing the workers compensation community.

Mona Bargnesi was appointed to the Board in 2001. Donna Ferrara, appointed in 2005, served as Acting Chair until 2007 when David Wehner was appointed Chairman.

Unfortunately for the Board's many constituents, two hard-working, dedicated commissioners are being replaced by two individuals who will continue in that tradition while some of those on the Board who do not rock the boat (assuming they even show up for the voyage) appear to be safe in their positions probably until the end of next year's legislative session.

As of the time that is being written, there is no information as to whom will be the Board's next General Counsel, nor even if it will be someone from the Board or perhaps some from the the Department of Insurance or from the NY State Insurance Fund.


SIF Mourns Loss of
Commissioner Robert Hurlbut

March 5, 2013 [5360]: New York State Insurance Fund Chief Executive Deputy Director Dennis J. Hayes today announced the passing of long-time NYSIF commissioner and former Chairman of the Board Robert H. Hurlbut.

Mr. Hurlbut died unexpectedly at his home in Honeoye Falls on Monday, March 4. He was 77 years old.

A highly-respected Rochester, New York, businessman and philanthropist, Mr. Hurlbut was the longest-serving NYSIF commissioner in continuous service to the workers’ compensation and disability benefits insurance fund.

Mr. Hurlbut was appointed to NYSIF’s Board of Commissioners in 1989 by then-Governor Mario M. Cuomo. For 24 years as a NYSIF commissioner, he rarely missed a board meeting, serving as vice chairman from 1995 to 2006, and as chairman from 2006 to 2012. True to form, he attended the Board’s most recent meeting in February 2013.

Born in Rochester, NY, Mr. Hurlbut earned a degree in hotel administration from Cornell University in Ithaca, NY. In 1964, Mr. Hurlbut became president of ROHM Services Corporation, which he founded in Rochester, providing management and consulting services for nursing homes in western New York exceeding 1,000 beds. Most recently, he founded and served as president of the Hurlbut Trust since 1994, offering financial and consulting services for healthcare facilities and rental properties.

In 1964, Mr. Hurlbut became president of ROHM Services Corporation, which he founded in Rochester, providing management and consulting services for nursing homes in western New York exceeding 1,000 beds. In 1992, he became chairman of the board of ROHM Services Corp. In 1968, Mr. Hurlbut founded and became president of Vari-Care, Inc., overseeing the operation of 24 long-term health care facilities with a capacity of over 2,600 residents and retirement complexes located in Alabama, Arizona, Florida and Texas. He served as a member of the board of directors of the Houston-based Living Centers of America, which purchased Vari-Care, Inc., in 1993 and operated over 20,000 beds in the United States.

A New York state-licensed home administrator and a fellow in the American College of Health Care Administrators, he served as chairman of the board of the University of Rochester Medical Center, a trustee of the University of Rochester, and vice chairman of the University of Rochester Eastman Dental School and Foundation Board. He was a life member of the Cornell University Council and served on the boards of trustees of St. Mary's Hospital and Foundation, the Roberts Weslyn College and St. John Fisher College, from which he received an honorary Doctorate of Law Degree. He also served on the board of directors of the Rochester Area Foundation, Blue Cross, the Monroe County Long Term Care Program, Lifespan, the Finger Lakes Health Systems Agency, and HSBC Bank, and as chairman of the Rochester Chamber of Commerce.


Cuomo's Detailed Plans for the WCB

February 7, 2013 [5359]: New York State Senate Majority Coalition has just published its 262+ page analysis of the 2013-14 Executive Budget. Below are some of the highlights as they pertain to workers compensation.

Of the most interest are reform of GSIT’s, the ATF, and the specifics of the ‘raid’ in the New York State Insurance Fund.

  • State Insurance Fund (SIF) The Executive Budget would change the method of calculating reserves from a liability basis to a pay-as-you-go basis. According to the Executive, this eliminates the need for the assessment based reserve, allowing it to justify the transfer $2 billion in reserves from the SIF.
  • Aggregate Trust Fund (ATF). The intent of the ATF was to protect a claimant in the event a carrier defaulted in its payments. The Executive proposes to eliminate mandatory deposits that are required of Workers’ Compensation insurance carriers, the self insured, and the SIF, and to shift the responsibility of the ATF to the Workers’ Compensation Guarantee Fund. Further details regarding expenditures from the fund are pending.
  • Close The Reopened Case Fund. The Reopened Case Fund will be closed effective January 1, 2014; however, a provision is included that allows the Board to make a finding after such date if an appeal for an existing case was filed in a timely manner.
  • Group Self Insured Trusts (GSITs). The Executive Budget contains a provision that would allow the remaining GSITs to maintain custody of reserves required to pay claims pursuant to WCL §50(3) by depositing them into a trust fund that allows them to invest and generate returns on the reserve balances. In addition, the Executive proposal would establish a program to authorize the issuance of bonds to finance loss portfolio transfers (LPTs) as a means of settling approximately $900 million in outstanding GSIT liabilities. The bonds would be issued by the New York State Dormitory Authority and backed by a new Workers’ Compensation assessment on solvent self pay claims for defaulted GSITs.
  • Audits: Expands the scope of the Board’s authority to conduct audits from being limited to self insurers, insurance carriers and the SIF to having audit authority over all employers. Also the scope of the audits is expanded from conducting audits of special disability fund financing agreements to having the authority to conduct audits of any matter falling under the Workers’ Compensation Law. [ED. NOTE: Like they were supposed to have done years ago to GSIT’s.
  • Minimum Compensation Benefit Increase: The minimum weekly payment to claimants from $100 per week to $150.

For more details, see the attached link.


CMS Changes help expedite §32's

February 6, 2013 [5358]: In January of this year, President Obama signed into law H.R. 1845, better known as the SMART Act: Strengthening Medicare and Repaying Taxpayers Act.

This new bill includes a number of provision sought after for many years by those who do workers compensation settlements,: carriers, medical providers, and attorneys for both sides.

SMART Act supporters say the bill will help the settlement of claims by requiring CMS to issue its final demand for reimbursement prior to a workers comp or liability settlement agreement. It also establishes a minimum threshold for settlements in which CMS can seek Medicare reimbursement, and includes a three-year statute of limitations for CMS to seek reimbursement from a settled claim.

In particular, the SMART ACT:

  • Allows appeals of CMS determinations to be made not, as now, just by the plaintiff but, in the future, also by primary payers as well as other parties to the agreement.
  • Eliminates the ‘required’ use of Social Security numbers and other federal health ID numbers. Some "responsible reporting entities" currently do not have access to that information, and, as some injured workers are not required to submit that information, the result in the past has been that theses "responsible reporting entities" have unable to access Medicare records to determine an individual's Medicare status, making them subject to penalties of $1,000 per day. This change in the law avoids the penalties for ‘good faith’ efforts to ascertain this information.
  • Establishes a statute of limitations by which CMS can seek a medicare reimbursement only within three years from the date that Medicare receives notice of a settlement, judgment, award, or other payment. under the Section 111 reporting process. It also requires that CMS issue a final demand for reimbursement prior to a workers comp or liability settlement agreement.
  • Requires CMS to annually publish a Medicare Secondary Payer compliance threshold amount so that any settlement, payment, etc, which is less than that threshold would exempt the claim from MSP obligations pertaining to Section 111 reporting, among other requirements that previously existed.

Among the many people commenting on the SMART Act is Jay Fahrer, Washington-based government relations director for the Self-Insurance Institute of American Inc., who stated that the SMART Act will help insurers and self-insureds to know how much money should be paid to CMS for reimbursement at the time of settlement, rather than waiting for CMS to send a bill before a claim is closed.