WCA Applauds The Workers' Compensation Board's Stand on Erie County
Earlier this year the
The Workers’ Compensation Law requires employers and carriers to pay benefits “periodically and promptly in like manner as wages.” Payments are required to be made at set intervals, and there are penalties for late payment. The Board, employers, and carriers have always understood that the law required compensation checks to be mailed – until
In a unanimous decision, the Board has told
“Finally, the policy violates the spirit and intent of the WCL. It places an additional burden upon an injured worker at a time when the claimant is not medically able to return to the workplace. To assert post-injury control over the employee by requiring an injured worker to pick up the compensation check at the place of employment overly burdens an injured worker by adding unnecessary traveling costs and potentially places an injured worker at risk of further injury. The compensation law was enacted to assist claimants at a time of hardship, not add to their burdens unnecessarily.”
The WCA applauds the Board’s stand on this issue, which is a welcome return to the role of the Board as the defender of the injured and disabled worker.
Shockingly, the Erie County Executive still doesn’t seem to understand that the County cannot make up its own rules, and has been quoted saying that “It doesn't matter to us what the Workers Compensation Board says. Quite frankly, they don't matter." See the video.
Posted By WCA In Breaking News
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WCA Calls on NYS Workers' Compensation Board to Publicize September 11th Registration Deadline
The September 11th attacks killed thousands of
The WCA, labor unions, and other organizations that protect the rights of injured workers have made extensive efforts to publicize the registration provision and to register injured workers. Information about registering for benefits in connection with September 11th rescue, recovery, and cleanup operations is available at:
http://www.wcb.state.ny.us/content/main/SubjectNos/sn046_159.jsp
http://nycosh.org/environment_wtc/WTC/911WCrev818.pdf
http://www.nyc.gov/html/doh/wtc/html/home/home.shtml
Posted By WCA In Breaking News
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State Worker Furloughs
As part of the state budget mess the Workers' Compensation Board is going to be cancelling hearings statewide on Fridays effective May 21, 2010. Already hearings are not scheduled for that date and for May 28, 2010.
The Workers' Compensation Board is scheduling hearings now for the week of May 31, 2010. This means that it is likely that the Workers' Compensation Board will not be scheduling any hearings for June 4, 2010 as well.
I have been told that the Workers' Compensation Board argued that they should be exempt from the furlough plan because it is fully funded by assessments against insurance carriers. The Workers' Compensation Board was unsuccessful with this argument with the Governor’s Office.
Please call 877-255-9417to contact the Governor, your State Senator and Assemblyperson to urge them to keep the Workers' Compensation Board running full tilt.
Posted By WCA In State Workers Furloughs
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The WCA Opposes M.A.P.
American Jurisprudence is based upon involved parties having their ‘day in court’. While the New York Workers Compensation Law is administrative in nature, basic principles of due process, fairness and the right to be heard are part of the fundamental foundation of a system that is almost 100 years old.
“The Worker”s Compensation Alliance firmly opposes the implementation of the so called “Managed Adjudication Path” ( MAP) recently touted by administrators at the Worker’s Compensation Board.
Such a program envisions the Board issuing “ desk orders” in non-disputed cases after senior staff attorneys or administrative law judges review documents in the electronic case file and make a decision on the merits of the case without interviewing any of the parties, without taking any testimony, and without listening to any of the arguments of counsel .
Aside from the obvious technical difficulties with such a procedure (ie: missing issues not readily apparent from the documents in the ECF,failing to grasp the nature and scope of claims or defenses and their legal import, and disenfranchising the parties to the proceedings by failing to provide an adequate mechanism for them to be heard in an open forum) the proposed MAP program is clearly contrary to the spirit and intent of the Workers Compensation Law.
There is no provision in the Workers Compensation Law which allows for the cursory review of claims as envisioned by the MAP program in the absence of a hearing and in the absence of the parties.. In fact,the provisions of the Workers Compensation Law REQUIRE that a mandatory hearing be held “upon application of either party” to the proceedings.Furthermore, a fair reading of the statute would preclude decision making in the absence of a live hearing before an administrative law judge since the statute envisions that there may be multiple live hearings until “a final determination awarding or denying compensation” is made.
The right to a fair hearing to resolve claims and to hear disputed issues is a cornerstone of the workers compensation system in New York since the law was enacted in 1914.As we approach the 100th anniversary of the statute’s enactment basic concepts of fair play and due process of law have changed little over time..
The organized attempt to abrogate the hearing process and to minimize its importance is both troubling and perplexing.
No adequate reason or justification has been given for the curtailment of the fair hearing process in the workers compensation system which would result from the MAP program. In Fact, this MAP is nothing more than dressed up Conciliation, a process that has been discredited over the past ten years as unworkable.
On the contrary an impressive and unprecedented gathering of concerned parties (defense attorneys, law judges, claimant’s attorneys, union representatives, business representatives) has spoken out in one strong voice .During recent hearings before the Senate Labor Committee representatives of these oft times strong adversaries, came together to voice their learned and experienced opposition to the MAP program – a system that will seriously impair the due process rights of all of the parties involved.
Faced with overwhelming and unanimous opposition,the Workers Compensation Board has temporarily suspended implementation of the MAP plan pending a public forum to discuss the Board’s attempt to “streamline its conciliation process”.
The WCA is fully in favor the hearing process as it presently exists.We see no need to delay the cancellation of the ill conceived MAP program as it is a bad idea and is bad public policy.Postponing the ultimate decision will not change the fact that MAP violates the due process rights of the parties. Having a forum to discuss the plan will not alter the fact that the changes envisioned by the MAP program can not be done administratively but can only be achieved through legislative action .
We believe that the state agency entrusted to oversee the claims of injured and disabled workers of this state and who also have the responsibility to protect the interests and vitality of business in this state should not be promoting practices and procedures which violate the rights of the parties.The Board should now enhance and fascilitate the fair hearing process as the Board historically has always done in the past, in a manner mandated by the law.
Experience dictates that a full and fair hearing is the best way to resolve claims while providing substantial justice to all parties concerned.
Posted By WCA In MAP
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Come Support Sheldon Silver
In this time of uncertainty at the Workers' Compensation Board, we urge all of you to attend The Long Island Democratic Assembly Delegation and The Democratic Assembly Campaign Committee on Thursday, October 29th 2009, 8AM - 9:30AM at the Glenn Oaks Club, 175 Post Road, Old Westbury NY.
The Honorary Chair Is Sheldon Silver who is an advocate for injured workers.
Tickets are $500. The check can be made payable to The Democratic Assembly Campaign Committee .
We would like to have as many people as possible attend to show our support. If you cannot attend but would like to make a donation please contact me at (917) 881-8175 to arrange for delivery of the check. We would like to deliver all the checks at the function in one bundle to show the support of the WCA.
Thank You,
Matt Funk
Brecher Fishman Pasternack Walsh Tilker & Ziegler.
Posted By WCA In Alliance Friends
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NY Workers' Compensation Alliance Remembers 9/11 Victims on Eighth Anniversary
On the eighth 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 eight years, often in a pro bono capacity, and we pledge to continue to serve future claimants in the inevitable serious claims yet to come.
In addition, it is appropriate to recognize and applaud all the employees of the New York State Workers' Compensation Board, whose swift and compassionate actions to process claims following the tragedy helped thousands of families cope with their loss. No workers' compensation system in the United states, before or after 9/11, had a more challenging crisis.
With the willing cooperation of all stakeholders in the system, the employees of the WCB rose to the occasion to meet the needs of their fellow citizens. In many respects, this was the NY Workers' Compensation Board's shining moment and the Board continues today to resolve 9/11 claims in a quick and compassionate manner.
Please join the WCA today in taking a moment to remember all those impacted by 9/11 .
Posted By WCA In 9/11 Workers' Comp Claims
, NY Workers' Compensation Reform
, Workers Comp Claims
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NY Workers' Compensation Alliance Files Extensive FOIL Requests on "Secret" 2015 Project Committee
Given the lack of information and transparency coming from the NY Workers' Compensation Board (with the exception of new Chairman Robert Beloten) regarding the forthcoming proposals of the "2015 Project" Committee(s), the WCA has filed two extensive Freedom of Information Law requests to the Records Access Officer at the WCB. Below is a copy of our last request made on September 4, 2009:
September 4, 2009
Records Access Officer
NYS Workers’ Compensation Board
20 Park St, Rm. 401
Albany, NY 12207
Dear Records Access Officer:
This is a second and separate FOIL request from the New York Workers’ Compensation Alliance, in addition to but wholly separate from our prior FOIL request of September 1, 2009. I am requesting disclosure of the below referenced “records”, as defined by FOIL and regulations. Please abide by the below timelines as explained by The Committee on Open Government and as required by law:
The Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:
"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied..."
It is noted that new language was added to that provision on May 3 (Chapter 22, Laws of 2005) stating that:
"If circumstances prevent disclosure to the person requesting the record or records within twenty business days from the date of the acknowledgment of the receipt of the request, the agency shall state, in writing, both the reason for the inability to grant the request within twenty business days and a date certain within a reasonable period, depending on the circumstances, when the request will be granted in whole or in part."
Based on the foregoing, an agency must grant access to records, deny access in writing, or acknowledge the receipt of a request within five business days of receipt of a request. When an acknowledgment is given, it must include an approximate date within twenty business days indicating when it can be anticipated that a request will be granted or denied. However, if it is known that circumstances prevent the agency from granting access within twenty business days, or if the agency cannot grant access by the approximate date given and needs more than twenty business days to grant access, it must provide a written explanation of its inability to do so and a specific date by which it will grant access. That date must be reasonable in consideration of the circumstances of the request.
The amendments clearly are intended to prohibit agencies from unnecessarily delaying disclosure. They are not intended to permit agencies to wait until the fifth business day following the receipt of a request and then twenty additional business days to determine rights of access, unless it is reasonable to do so based upon "the circumstances of the request." From my perspective, every law must be implemented in a manner that gives reasonable effect to its intent, and I point out that in its statement of legislative intent, §84 of the Freedom of Information Law states that "it is incumbent upon the state and its localities to extend public accountability wherever and whenever feasible." Therefore, when records are clearly available to the public under the Freedom of Information Law, or if they are readily retrievable, there may be no basis for a delay in disclosure. As the Court of Appeals, the state’s highest court, has asserted:
"...the successful implementation of the policies motivating the enactment of the Freedom of Information Law centers on goals as broad as the achievement of a more informed electorate and a more responsible and responsive officialdom. By their very nature such objectives cannot hope to be attained unless the measures taken to bring them about permeate the body politic to a point where they become the rule rather than the exception. The phrase 'public accountability wherever and whenever feasible' therefore merely punctuates with explicitness what in any event is implicit" [Westchester News v. Kimball, 50 NY 2d 575, 579 (1980)].
In a judicial decision concerning the reasonableness of a delay in disclosure that cited and confirmed the advice rendered by this office concerning reasonable grounds for delaying disclosure, it was held that:
"The determination of whether a period is reasonable must be made on a case by case basis taking into account the volume of documents requested, the time involved in locating the material, and the complexity of the issues involved in determining whether the materials fall within one of the exceptions to disclosure. Such a standard is consistent with some of the language in the opinions, submitted by petitioners in this case, of the Committee on Open Government, the agency charged with issuing advisory opinions on FOIL"(Linz v. The Police Department of the City of New York, Supreme Court, New York County, NYLJ, December 17, 2001).
If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:
"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."
Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.
(1) Please email the following records to injuredworkersny@gmail.com :
a) Any and all “records”, as defined by FOIL and relevant regulations, containing the “words” either ”2015 Project”, “Project 2015”, “core values”, “vision statement”, “claim resolution”, “SWOT analysis”, or “steering committee”, including but not limited to mission statements, committee memberships, sub-committee memberships, committee and sub-committee meeting minutes and reports, committee meeting agendas and data provided to such committees for their analysis.
(2) If such “records” cannot be sent in electronic format through email, please advise me of the appropriate time and place during normal business hours for inspecting the above referenced records prior to obtaining copies;
(3) If such records cannot be sent in electronic format, please inform me of the number of pages (or medium, i.e. tape, CD, DVD, etc.) of such “records” and the total cost of providing paper copies or transcripts of the above referenced records;
(4) If all the requested records cannot be emailed to me, please inform me by email of the portions that can be emailed and advise me of the cost for reproducing the remainder of the records requested ($0.25 per page or actual cost of reproduction);
(5) If the requested records cannot be emailed to me due to the volume of records identified in response to my request, please advise me of the actual cost of copying all records onto a CD, DVD, portable hard drive or other electronic storage mediums;
(6) If my request is too broad or does not reasonably describe the records, please contact me via email so that I may clarify my request, and when appropriate inform me of the manner in which records are filed, retrieved or generated.
If it is necessary to modify my request, and an email response is not preferred, please contact me at the following telephone number: XXX- XXX-XXXX . If for any reason any portion of my request is denied, please inform me of the reasons for the denial in writing and provide the name, address and email address of the person or body to whom an appeal should be directed.
Thank you for your prompt attention to this request within the allowable time periods permitted by law.
The New York Workers Compensation Alliance
The WCA will keep you posted...
Posted By WCA In NY Workers' Compensation Reform
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