The New York Times reported earlier today that,  Zachary S. Weiss, Chairman of the New York State Workers' Compensation Board, is resigning to take a federal judgeship with the United States Social Security Administration.  In addition, Governor David Paterson issued an official statement praising Chairman Weiss and his service to the citizens of New York. 

The sudden announcement comes on the heels of what is perhaps Chairman Weiss' greatest accomplishment  in the job -  his successful recruitment of the renowned occupational medicine specialist, Dr. Stephen M. Levin, from Mt. Sinai Medical Center, as Interim Medical Director of the Board.  Given the sweeping 2007workers' comp reforms in New York, Chairman Weiss astutely recognized that a Medical Director, a position that had been left surprisingly unfilled for many years in NY, was necessary to develop fair medical guidelines to protect injured workers.

In addition to his success recruiting a new Medical Director, Chairman Weiss will also be remembered for technological innovation and transparency at the Workers Compensation Board, in part by instituting live web casting of  Workers' Compensation Board meetings. Weiss, a University of Chicago educated former mob prosecutor with a flair for policy, will be also be remembered as the first Board executive to actually gain traction in implementing the massive administrative changes necessary to implement the 2007 reform law.  No easy task!

Certainly, the NY Workers' Compensation Board's loss is the Social Security Administration's gain.  The New York Workers' Compensation Alliance wishes Chairman Weiss much success in his new role as a Federal Administrative Law Judge protecting injured and disabled individuals. 

Posted By WCA In Breaking News , NY Workers' Compensation Reform , Workers Comp Claims , Workers' Comp Politics | 0 Comments Permalink

On March 8, 2009, John Sciortino and Troy Rosasco completed two full terms as New York Workers' Compensation Alliance Co-Chairs and turned leadership of the organization over to well known attorneys Brian Mittman and Victor Pasternack.  Both Sciortino and Rosasco will remain on the Board of Governors.  Also joining the Board of Governors are James Buckley, Robert Helbock and Robert Grey.

During their tenure, Sciortino and Rosasco helped build a fledgling Political Action Committee into a well regarded and widely admired voice for injured workers in New York State.  The WCA has gone on to take leading roles in defeating the imposition of AMA Guides to Permanent Impairment in New York and keeping New York a "wage loss" state, fought for the successful increase and indexing of the maximum weekly workers' comp benefit in our 2007 Legislative Proposals, established an on-line "grass roots" legislative action network for injured workers in NY and raised over $200,000.00 from attorneys and other stakeholders across the state for political candidates who share our convictions.

New Upstate Co-Chair Brian Mittmann is a cutting edge "thought leader" on workers' compensation issues and is the Managing Partner of the third generation workers' compensation law firm of Markhoff and Mittman with a main offices in White Plains.  New Downstate Co-Chair Victor Pasternack is the Managing Partner of Brecher Fishman Pasternack Walsh Tilker & Ziegler based in NYC and has been representing claimants before the New York State Workers' Compensation Board for over 30 years.  Their new roles will focus on pushing the 2009 WCA Legislative Agenda and continued expansion of our fund raising capabilities.  In addition, the WCA has signed a new two year contract with our Albany lobbyist, Richard Winsten of Meyer, Suozzi, English and Klein, PC.

With our new leadership in place, the Workers' Compensation Alliance remains committed to fighting for and expanding the rights of injured workers in New York. 

Posted By WCA In Workers Comp Claims , Workers' Comp Politics | 0 Comments Permalink

 It is now almost two years since former Governor Eliot Spitzer hastily pushed through his sweeping workers’ compensation reforms, including the capping of permanent partial disabilities, to the detriment of all New York workers. As part of the reform package, Spitzer gave the New York State Insurance Department (still under the leadership of Superintendent Eric Dinallo) until December 1, 2007 (over one year ago) to deliver guidelines in final draft form for consideration by the Workers’ Compensation Board.  So where are injured workers now regarding these guidelines? 

It has been estimated that to date, the State Insurance Department has spent close to $1,000,000 of taxpayer money on staff salaries,consultants and other costs attempting to develop the medical guidelines needed to evaluate permanent disabilities.   Originally, the NY State Insurance Department secretly tried bringing the discredited AMA Guidelines to the Evaluation of Permanent Impairment to New York, at a consultant's cost of $175,000. 

Thankfully, the NY Workers’ Compensation Alliance (with the help of the eminent workers’ compensation expert, Professor John Burton, who called the AMA Guides “hokum”) squashed any possibility of AMA Guides implementation in New York.  Since the AMA Guides "fiasco" and their rejection in New York, it seems that Superintendent Dinallo and the Insurance Department have lost their “mojo” to create new medical guidelines for permanent disabilities. 

The Medical Guidelines Task Force, headed by Bruce Topman, seems to be working at  “glacial speed”. There are even rumblings from different corners of the New York Workers’ Compensation Board about the lack of progress and its impact on the agency. Remember, until the medical permanency guidelines are in place, neither the caps on permanent partial disabilities nor the injured worker “safety net” can take effect.

As of March 13, 2009, it will have been two years since the Spitzer workers' compensation reform bill became law. All injured workers with permanent disabilities from accidents after March 13, 2007 would normally be classified at the two year mark, since it is generally assumed they would have reached maximum medical improvement at that point in time. Failure to have medical permanency guidelines in place by March 13, 2009 will seriously hurt injured workers, leaving them in compensation “limbo”.  Surely, the NY Workers' Compensation Board itself cannot now, at this late date, implement its own workable guidelines, given that it has not been allocated either the time or money to effectively accomplish such a huge undertaking.

The Medical Guidelines Task Force must now act with all deliberate speed to insure that fair medical guidelines, including the “safety net” and linking impairments to vocational factors for benefit determination, are in place no later than Presidents Day 2009.   In these dire economic times, the lack of the “safety net” contained in the reform law - impossible to implement without the guidelines - will cause workers throughout the state further impoverishment and seek the assistance of welfare relief. 

Enough dragging of bureaucratic feet to the detriment of injured workers!    Insurance Department Superintendent Eric Dinallo (or Governor Patterson) should order the Medical Guidelines Task Force to meet day and night to finish the job that should have been completed over one year ago.  Failure to do so would be a colossal waste of taxpayer money, while neglecting the needs of injured workers. 

The New York Workers' Compensation Alliance stands ready to assist in the creation and implementation of a just and appropriate set of medical guidelines - one that will effectively guide the medical community without further detracting from the needs and interests of injured workers.

Posted By WCA In Breaking News , Legislation , Lobbying , NY Workers' Compensation Reform , Workers' Compensation & AMA Guidelines | 0 Comments Permalink

The Lexis Nexis Workers’ Compensation Law Center Powered by Larson’s recently announced the 2008 honorees for the LexisNexis Top 25 Blogs for Workers’ Compensation.

 “These blogsites contain some of the best writing out there on workers’ compensation and workplace issues in general,” says the LexisNexis Workers’ Compensation Law Center. “They contain a wealth of information for the workers’ compensation community with timely news items, practical information, expert analysis, tips, frequent postings, and helpful links to other sites. These blogsites also show us how workplace issues interact with politics and culture. Moreover, they demonstrate how bloggers can impact the world of workers’ compensation and workplace issues.”

The NY Workers' Compensation Alliance (WCA) was formed in 2006 by concerned stakeholders in the New York Workers' Compensation system determined  to protect injured workers from the workers' compensation "deform" proposed by the Business Council of New York State. To date, it has raised over $200,000 to  to fight such anti-worker attacks.

In 2008, the WCA Blog was almost single-handedly responsible for defeating the proposed AMA Guidelines to Permanent Impairment that were being considered by the New York State Insurance Department.  With the support of renowned workers' compensation experts such as Dr. John Burton, the WCA was able to show that the AMA guidelines were scientifically flawed, and as Dr. Burton so eloquently said, pure "hokum"!  To date, the New York State Insurance Department has failed to produce any fair medical guidelines as envisioned by the 2007 reforms.  Thankfully, our own former WCA Board member, James McCarthy, Esq., continues  to monitor the ongoing developments for the WCA at the Medical Guidelines Task Force meetings. 

The WCA looks forward to forging new alliances in 2009 to better protect injured workers in New York State. The Workers' Compensation Alliance Law Blog, now nationally recognized by Lexis Nexis, will continue to be a key tool in our ongoing strategy.

Posted By WCA In Legislation , Lobbying , NY Workers' Compensation Reform , Workers Comp Claims , Workers' Comp Politics , Workers' Compensation & AMA Guidelines | 0 Comments Permalink

The new  "Rocket Docket" regulations proposed by the New York Workers' Compensation Board are being attacked by formal comments submitted by a diverse group of stakeholders across New York State.  Gov. Patterson's office has received a rash of phone calls and letters objecting to these well intentioned, but ill advised, regulations.  It will be interesting to see what, if anything, is left of these proposed regulations after the formal comment period ends on September 15th and the Governor's Office reviews all comments.  The final version may look much different than the original version proposed by the NY Workers' Compensation Board.

Below are just a few of the formal comments criticizing the Rocket Docket proposals.  First are the formal comments of the New York Workers' Compensation Alliance authored by Co-Chair John Sciortino of Rochester and supported by the New York Injured Workers' Bar Association (IWBA)President Barbara Levine of Long Island.  Second are objections from the  Medical Society of the State of New York authored by Philip Fontanetta, MD and Robert Goldberg, MD. Third are the objections of the Erie County Bar Association authored by Giles P. Manius, President of the Erie County Bar.  Fourth are objections from Louis M. Dauerer of Poughkeepsie, Past President of the NY Injured Workers' Bar Association.  Fifth are objections from Michael P. Daly, Esq., of Syracuse, the former partner of the Hon. Edward I. Pitts, author of the New York Workers' Compensation Handbook and past President of the NY Injured Workers' Bar Association (IWBA).  Finally are objections of Peter Hill, Esq. of Oneonta, a solo practitioner whose clients would be adversely impacted by these proposed regulations.

We are not aware of any stakeholders who appear at the Workers' Compensation Board, including employers and insurance carriers,  who support the current proposed regulations in their entirety.  Privately, workers' compensation law judges, who will be charged with implementing these regulations, admit that these regulations are counter-productive and will increase litigation and delay the timely resolution of claims.

We are hopeful that Governor Patterson and his staff will take a close look at all of these objections prior to implementing any of these regulations.   This is the WCA - Protecting the Rights of Injured Workers!

Posted By WCA In Breaking News , NY Workers' Compensation Reform , Rocket Docket Regulations , Workers Comp Claims , Workers' Comp Politics | 0 Comments Permalink

On the seventh anniversary of the World Trade Center tragedy, all the attorneys of the New York Workers' Compensation Alliance pay their respects to the victims and families impacted by 9/11.  We have all represented these victims before the New York State Workers' Compensation Board  these past seven years, and we pledge to continue to serve future claimants in the inevitable serious claims yet to come.  God bless you. 

Posted By WCA In 9/11 Workers' Comp Claims | 0 Comments Permalink

The "Ill-Conceived" Rocket Docket Regulations are now open for comment until September 15, 2008.  As you know, the New York Workers' Compensation Alliance is firmly opposed to these administrative regulations that fundamentlly change for the worse elements of the Workers' Compensation Law.  They are a direct violation of a claimant's medical privacy and and will in fact delay the adjudication of disputed workers' compensation claims.  Click here to send written comments in opposition to these scary rules.   Click here and here for our prior comments deriding these silly rules.   

Bottom Line - these regulations are really bad for injured workers.  Insurance carriers will now be given free license to dig through a claimant's prior medical history to try and dispute claims.  For example,  pregnancy is a known risk factor for carpul tunnel syndrome.  If a secretary alleges a work related carpul tunnel injury, does the insurance carrier now have a right to dig through her college medical records to see if she was ever pregnant?  Quite possibly. 

Such an invasion of medical privacy was never allowed previously under the Workers' Compensation Law.  Whether or not these regulations become effective will be a telling test to see if new Governor David Patterson is a friend of labor and injured or disabled workers.  We will be watching.  Please send your email comments in oppositon to regulations@wcb.state.ny.us  today!   Thanks.

Posted By WCA In Alliance News , Breaking News , NY Workers' Compensation Reform , Workers' Comp Politics | 0 Comments Permalink

    At the NY Workers' Compensation Board meeting last Tuesday, July 15th, Board Chairman Zachary Weiss proposed the adoption of the unworkable and ill-conceived so called "Rocket Docket " regulations.  Below is the NY Workers' Compensation Alliance's position paper on the version of the regulations that were initially shared with us.  Click here for a PDF version. We will be issuing a revised critique of the final version shortly. Click here for the final version of the Rocket Docket regulations.

            THE “ROCKET DOCKET” PROPOSALS ARE UNWORKABLE AND UNNECESSARY

Prepared By: JOHN SCIORTINO, ESQ.

June 24, 2008    

                                                  INTRODUCTION

            In his letter to the then-Chair of the Workers’ Compensation Board dated June 1, 2007, Superintendent Dinallo acknowledged that the Workers’ Compensation system was, as a matter of necessity, intended to expedite the provision of wage replacement and medical care to injured workers. It was recognized that delays in receiving indemnity payments cause economic hardship, and delays in providing medical benefits affects the workers’ long-term medical prospects and the ability to return to work. Because the Workers’ Compensation Board was failing to accomplish this mission, the “Rocket Docket” Task Force was formed to propose regulatory change designed to reduce C-7 litigation inefficiencies and delays, thereby speeding the resolution of claim establishment defenses (benefitting claimants), while reducing claim defense costs (benefitting employers). 

            Rather than reducing friction opportunity and thereby shortening the process of resolving claim establishment controversies, the proposed regulatory scheme, in fact, encourages needless practices which will slow the resolution process and trample the rights and interests of injured workers. This unintended result is accomplished by proposed regulations which are either: (1) illegal in that they conflict with the unambiguous requirements of standing statutes; (2) ill-conceived in that they will likely encourage/increase litigation; and/or (3) unfair and/or overly burdensome in their application. 

            One must also justifiably question the efficacy of enacting such controversial regulations when the Workers’ Compensation Board has itself recently admitted that a striking 88% of controverted claims had been resolved within the 90-day target window since January of this year, simply by virtue of a more stringent enforcement of existing laws and regulations.

            The following constitutes an analysis of some of the more glaring deficiencies.

I.

            Proposed Rule 300.37(b) allows for the indexing of a claim only upon the convergence of the following filings: (1) a “completed” enhanced C-2 or enhanced C-3 form; (2) a “completed” enhanced C-4 form; and, (3) a “completed” duly-executed “limited” authorization enabling the carrier to obtain “relevant” medical records.  

            Setting aside that this proposed rule is ill-conceived because:

1.                  It fails to exclude death or other unwitnessed or unexplained accident cases, where current caselaw--relying on the §21 presumption--excuses the need for the filing of prima facie medical evidence;

2.                  It fails to require indexing upon the filing of C-669;

3.                  It discourages the prompt filing of a C-669 while the carrier waits to see whether all of the new filing requirements imposed on claimant are accomplished;

4.                  It suggests that either an enhanced C-2 or C-3 form will be required, when in practice every claim to be indexed will require the filing of a C-3--not just a C-2--because the required medical record authorization has been made a part of new C-3 form;

5.                  It fails to define what “relevant” medical records constitute, thereby inviting a new line of claim-delaying practices while the parties argue the matter;

6.                  It does not provide that the limited medical authorization is the exclusive authorization obtainable by a carrier, thereby inviting carriers to directly request from claimants blanket, unlimited and abusive medical record authorizations, this new rule is in contradiction of statutory mandates rendering the rule unenforceable and subject to CPLR Article 78 attack.

            More specifically, newly amended WCL §25(2-a)(a) (applicable only claims occurring on or after 03/13/07) provides “(i)n any controverted case” upon receipt of the carrier’s C-7, a pre-hearing conference shall be scheduled as soon as practicable, but not to exceed 45 days after the receipt by the Board of the C-7 and “a medical report referencing an injury” (emphasis added).

            Simultaneously, WCL §25(2)(a) provides, in a claim where the employer decides to controvert claimant’s right to compensation, the employer shall: on or before the 18^th day after disability; or, within 10 days after it has knowledge of the alleged accident, whichever is greater, file a C-7 notice of controversy providing, among other things, “the reason why compensation is not being paid”. 

            The combined effect of newly amended 25(2-a)(a) and 25(2)(a) is to guarantee to the injured worker a pre-hearing conference within 45-days after the statutorily mandated filing of a C-7 and a “medical report referencing an injury”.  At no instance do these statutes require filing of a C-3 or medical release form in order for the pre-hearing conference to be scheduled. As such, because the scheduling of a pre-hearing conference necessitates that the claim first be indexed, any delay on the part of the Board to index while it awaits the filing of the new C-3 and medical record release forms as is required by the new board rule will infringe on the injured workers’ statutorily mandated right to a speedy pre-hearing conference.

            It is beyond cavil that the Workers’ Compensation Board has no authority to adopt a rule which is out of harmony with a statute. Zalenski vs. Crucible Steel 91 A.D.2d 807 (3^rd Dept. 1982); Mit vs. T.S. & M. Catering Corp., 285 A.D. 506 (3^rd Dept. 1955). 

            For example, the Workers’ Compensation Board was recently rebuked by the New York State Supreme Court for pursuing a policy that deemed appeals from a finding of prima facie medical evidence to be interlocutory in contravention of the statutory mandate of Workers’ Compensation Law §23 guaranteeing the right to appeal. See, New York State Insurance Fund vs. New York State Workers’ Compensation Board, Sup. Ct., Broome County, index number 2004-0131(8204) (copy attached). 

Such will be the fate of proposed Rule 300.37(b). Proposed Rule 300.38(a)(1), which contravenes the plain language of Workers’ Compensation Law §25(2)(a) by only requiring the filing of a C-7 within 25-days from notice of indexing, will be subject to similar attack. 

II.

            While Superintendent Dinallo’s letter of June 1, 2007 makes clear that “early enhanced disclosure” is fundamental to the accomplishment of the accelerated resolution of claims, it is equally fundamental that the early disclosure must be of relevant information only. Certainly, to clutter the early information exchange with unnecessary and irrelevant filings will only pave the way for the proliferation of litigation and the elongation of the claims resolution process. This concern is particularly applicable to the early exchange of medical information regarding pre-existing but non-disabling conditions. 

            For decades, the Appellate Division, Third Department and the Workers’ Compensation Board have rightfully guarded the principle that compensation will be found even where a particular claimant suffered from some pre-existing disease or condition, as long as it is shown that the employment acted upon that disease or condition in such a manner as to cause a disability which did not previously exist. See, for example, Perez vs. Pearl-Wick Corporation, 56 A.D.2d 239 (3d Dept. 1977). As such, the focus for determining the compensability of a claim is justifiably on the precipitation of a disability from work, not on the initiation or precipitation of the condition itself. And, as the Third Department recently reminded, the issue of apportionment does not apply to a claimant’s claim for temporary disability benefits, but may apply--depending upon the particular facts of the case--at the time permanency is determined. Bremner vs. New Venture Gear, 31 A.D.3d 848 (2006). 

Therefore, the requirement of proposed Rule 300.37(b)(1) that pre-existing medical information be exchanged at the outset and as a condition of the indexing of a claim represents a misguided derogation of the principles enunciated by the Third Department and consistently applied by the Board the past several years.

            Furthermore, rather than reducing the number of controverted claims, the heightened focus on prior medical history at the commencement of a claim will only encourage carriers to controvert claims, on the heretofore irrelevant notion that a claimant’s medical condition--not disability--was initiated prior to the alleged date of injury. Again, such theory represents a fundamental shift from the long-standing rule of Perez, where the focus for determining the compensability of a claim is rightfully centered on the initiation of the injured worker’s disability from work.   

            Moreover, the new-found emphasis on pre-existing medical conditions will likely beget requests for additional or otherwise irrelevant prior medical records which will further delay the resolution of the claim while: (1) the claimant defends against the provision of such unnecessary information; and/or, (2) the carrier undergoes the typically time-consuming process involved in searching for and acquiring such additional records. It is feared that these delays will be particularly profound in the absence of appropriate regulatory provisions specifying the manner in which such disputes shall be heard and resolved (proposed Rule 300.38(a)(2) is woefully inadequate--it fails to specify: the standard of proof required for a successful application; whether claimant has the opportunity to be heard in opposition; and, whether the Board’s response will be in the form of an applicable decision). Certainly, in view of the law of Perez, it should be incumbent on a carrier desirous of obtaining pre-existing medical records at the outset of the claim to apply to the Board specifying the reason through specific medical opinion evidence that such pre-existing medical records are relevant to the particular case. 

The Workers’ Compensation Board has acknowledged that an employer’s insistence on the production of irrelevant medical records can result in a protracted delay of the adjudication of claimant’s rights. See, for example, Eastman Kodak Company, WCB Case No. 7041 1438 (3-Member Panel, 06/12/06) Irrelevant or unnecessary medical record searches also chill a claimant’s willingness to pursue a claim, fearful that sensitive or embarrassing entries in medical records may be accessed by employers.  And, it is impractical to expect that unrepresented claimants (claimants are typically unrepresented in the early stages of the claim) will have the ability to knowingly supply appropriate and informed medical releases, thereby raising the prospect of a proliferation of 114-a fraud claims.

            Lastly, any discussion involving the requirement of medical record authorizations must be measured in accordance with the recognized purpose of the Workers’ Compensation Law, as was enunciated by the Court of Appeals in Johannesen vs. New York City Department of Housing Preservation and Development, 84 N.Y.2d 129 (1994), viz: “(t)he Workers’ Compensation Law was enacted for socioeconomic remediation purposes as a means of protecting workers and their dependents from want in case of injury on the job”. 

                                                                                   III.

           The proponents of the Rocket Docket argue carriers must be better positioned to make an informed decision whether to accept or deny claims if delays caused by defense inefficiencies are to be reduced. It is theorized that enhanced forms providing increased disclosure about the specifics of the claim will assist in reducing the number of claims that are disputed. So important to the Rocket Docket scheme is this theory of enhanced disclosure that a claim will not even be indexed until such time as the enhanced disclosure documentation has been provided. 

            The first and primary manner in which the carrier receives notice of a claim is by way of the employer’s C-2 report of injury/illness [WCL §110(2)]. As such, relevant modifications to the C-2 form currently in use would significantly contribute to the goal of enhancing early disclosure. However, the C-2 revisions currently proposed fail to accomplish this goal. 

            Indeed, the newly proposed C-2 form:

1.                  Does not require the employer to provide a copy of claimant’s written notice of injury;

2.                  Does not require the employer to provide a copy of the supervisor’s written incident report;

3.                  Does not require the employer to provide a copy of any medical notes provided by the employee concerning the injury, the need for medical treatment, or the need for lost time;

4.                  Does not require the employer to comment whether the claimant was working without restriction at the time of the subject injury; and,

5.                  Does not mandate that the employer provide a copy of any existing written job description.

While the Workers’ Compensation Board is rightfully concerned that any revisions to the current C-2 form be user friendly, all of the above-described information will be readily available to the appropriately motivated C-2 preparer, so that the inclusion of this high relevant information will not in any way prejudice the form filer’s ability to swiftly complete the document. Furthermore, given that all of this information directly addresses most of the defenses raised at the outset of a claim, the absence of this information from the newly proposed C-2 form represents an inexcusable loss of opportunity and calls into question the true motivation of the Rocket Docket initiatives. 

                                                                              IV.

Much as been said about the impractical length and cumbersome nature of the proposed C-4 forms. And, it is entirely premature to adopt new C-4 forms before the Medical Guidelines Task Force has completed its work. However, there is one particularly objectionable flaw existing in the newly proposed C-4 forms. 

            In their zeal to accomplish some measure of uniformity, the new C-4 forms ignore the fundamental premise that, to be credible, a medical opinion must be supported by a rational basis. See, VanPatten vs. Quandt’s Wholesale Distributors, 198 A.D.2d 539 (3d Dept. 1993). This premise is particularly important to determining the comparative credibility of medical opinions on such issues as causal relationship and permanency. The Third Department, for instance, has made absolutely clear that a medical expert’s conclusory opinion regarding causal relationship, offered without any medical hypothesis or rationale to substantiate said conclusion, should be rejected as speculative and without rational basis. Ayala vs. Dre Maintenance Corp., 238 A.D.2d 674 (1997). And, time and again the Workers’ Compensation Board has found that a medical opinion on permanency which neglects to offer a rationale which directly refers to the Workers’ Compensation Board Medical Guidelines lacks credibility. See, for example, Eastman Kodak Co., 2007 WL 4111626 (3-Member Panel, 11/07/07). 

The proposed C-4 and C-4.2 forms fail to inform and guide the examining physician to provide the specific basis for his/her opinion in connection with such issues as causal relationship and permanency, thereby exposing the opinions offered by such forms to be ruled lacking in credibility. 

                                               CONCLUSION

            For the specific and compelling reasons as are set forth hereinabove, combined with numerous other flaws not hereinabove identified, it is recommended that the proposed Rocket Docket scheme be tabled in order to enable the Board to continue to pursue the strikingly successful initiatives it is currently undertaking to accomplish a speedy resolution of C-7 disputes through a more stringent enforcement of existing laws and regulations. 

                                                                        Respectfully submitted,

                                                                         John Sciortino, Esq.

                                                                        SEGAR & SCIORTINO

                                                                        400 Meridian Centre, Suite 320

                                                                        Rochester, New York 14618

                                                                        Telephone: (585) 475-1100    

Posted By WCA In Breaking News , NY Workers' Compensation Reform , Workers' Comp Politics | 0 Comments Permalink

The WCA will be monitoring the Workers' Compensation Board Meeting scheduled for next Tuesday, July 15, 2008.  Click here to see a live webcast of the meeting. 

According to informed sources, the Board will be considering the adoption of the new "Rocket Docket" (also known as "streamlined docket") regulations.  As currently written, these important regulations would be disastrous for injured workers and turn current New York State Workers' Compensation Law on its head.  If there was ever a time for injured workers to contact Gov. Patterson's office to object to these Spitzer-era regulations, the time is now!  Perhaps the new Governor, along with his recent new nominations to the Workers' Compensation Board (Dr. Geraldine M. Chapey and Mark D. Higgins), should be given the chance to measure the impact of these Spitzer-driven (ie Business Council) regulations on injured workers before rushing to adopt them next Tuesday.

The admirable goal of the "rocket docket" regs was to speed the resolution of disputed workers' compensation claims.  However, the new regs would do just the opposite, and cause further delay in the in receipt of benefits by injured workers.

The devil is always in the details.  Under the new regulations, injured workers would have to sign a wide- ranging medical release allowing insurance companies to go digging through a claimant's personal medical history.  The practical effect of this requirement, not withstanding the clear violation of medical privacy, would be to allow insurance companies to claim that a person's on-the-job injury and "disability" was related to an old injury.  Just obtaining the old medical records would now result in claims processing slowing to glacial speed.  But even more sinister, it would allow insurance companies to "apportion" a disability rating partially to an old injury, thereby lowering the workers cash benefits.  As Gomer Pyle used to say, "Surprise, Surprise!"  It is all about the money and that's why the Business Council wants this new medical release in the regulations.

One long held concept of all workers' compensation laws is that you "you take the worker as he is at the time of the injury".  Some workers  might resemble Paul Bunyon, while others resemble Humpty Dumpty.  If both Paul and Humpty are working along side each other for years on the assembly line, and one day Humpty's back gives out  doing something that would not cause Paul a twitch, Humpty is still entitled to cash benefits despite his congenital "fragile egg syndrome".  To do anything else would be disability discrimination.

Under the new proposed regs, the insurance companies will argue that Humpty's "disability" was really caused by a genetic defect passed on by his mother and try to pay little, if anything, to Humpty and his family.    This is despite the fact that both Paul and Humpty were successfully performing the same job for years.

Now let's take a more real world example.  In 2006, Sgt. York comes back  home to Queens from two tours of duty in Iraq.  While in Iraq, his back was injured when his armored personnel carrier was blown up.  Despite his injuries, he was able to finish out his last tour. Upon his return, he gets a job as a "track-man" on the subways for the MTA.  On July 16, 2008, after two years on the job, he hurts his back lifting steel track and goes out of work.  If the new regs are adopted, guess what happens??? 

First, the MTA disputes the claim claiming his "disability" is related to his war time service.  They send out the newly created medical release to the Veterans' Administration to get all his war related medical records to prove their case. Of course, the VA promptly sends the requested records four months later.  Then, the MTA sends these voluminous records to their own doctor for review to determine how much of Sgt. York's "current disability" is related to his war time service.  This takes another month.

Lets say the MTA doctor says Sgt. York's current disability is 50% war related, and 50% related to his July 16th work related injury.  Now,  the MTA gets to pay Sgt. York  one half of the cash benefits he would receive under the current law which takes Sgt. York "as he is" at the time of the injury.  The fact that Sgt. York came home from Iraq with a body more like Humpty  than Bunyon makes no difference under the current fair law.  This is how the new regulations, conceived and born during the Spitzer administration, would handle such a claim and turn the current fair law on its head.  Such a change would be cruel to those who really need a hand up, rather than a kick for simply having worked despite prior injuries. The proposed regs are not befitting of the Empire State.

Thankfully, New York has a new and independent- minded Governor named David Patterson.  It is inconceivable that such regulations would be adopted by the Workers' Compensation Board prior to his new nominations taking office.  As we said, the WCA will be watching the webcast of the Workers' Compensation Board meeting next Tuesday.  See you there!

Posted By WCA In NY Workers' Compensation Reform , Workers Comp Claims , Workers' Comp Politics | 2 Comments Permalink