New York Workers Compensation Alliance

The Workers’ Compensation Alliance is concerned by news that the Workers’ Compensation Board continues to study elements of the “MAP” program (now known as the Streamlined Conciliation Process) for possible implementation.  The WCA stands for the right of injured workers to a hearing before a Workers’ Compensation Law Judge.  This program has been the subject of discussion between the Board and the New York State Bar Association, which properly opposes administrative procedures that may threaten due process for participants in the workers’ compensation system.

Hearings are Critical.  Holding an early hearing in a claim is critical to ensuring that workers receive the proper benefits.  For decades, the Board held regular hearings at which WCL Judges met injured workers in person, reviewed their cases, and provided direct and personal advice to the worker about his or her claim.

In the past decade, the Board has increasingly denied hearings before WCL Judges to injured workers, instead issuing “Administrative” and “Proposed” Decisions which decide important legal issues.  These decisions are produced not by Judges, but instead by non-judicial WCB staff.  They are written in language that the average worker cannot understand, do not adequately inform workers about their rights, and often contain errors.  In short, these paper decisions are inferior in every way to the hearing process.

Access to Benefits.  Instead of recognizing that the Administrative and Proposed Decision process that began under the anti-worker Pataki Administration is designed to limit access to benefits and due process for injured workers, its use has regrettably accelerated under the Spitzer and Paterson administrations.  Rather than eliminating these non-hearing decisions and restoring the right of injured workers to hearings before WCL Judges, the Board is reportedly considering expanding the authority of its non-judge employees to decide claims and to issue those decisions without hearings.  The WCA opposes the Administrative and Proposed Decision process, and is opposed to any further expansion of the program.

Injured workers have a right to have their claims heard, in person, by a WCL Judge.  Judges are obviously better trained and more versed in the law than non-judicial Board staff.  A Judge who is able to see and speak to an injured worker is obviously in the best position to identify issues in the case, to explain the issues to the worker in terms the worker can understand, and to make sure that the worker receives all of the benefits that are due.

The WCA Position.  The WCA calls on the Board not only to abandon the ill-advised MAP/Streamlined Conciliation program, but to sharply reduce its use of non-hearing decisions to decide legal issues in workers’ compensation claims.  The WCA calls on the Board to hold an initial hearing in every claim to ensure that workers are properly advised of their rights and receive the proper benefits.  This is not a radical proposal, but would simply represent a return to a method that was proven effective for over eight decades.  We recognize that the Board has limited resources and that some issues in some established cases may be suitable for non-hearing decisions, and the WCA will work with the Board to identify and address these issues.  It is essential, however, that an initial hearing be held in each case in order to preserve benefits and due process for injured workers.

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       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 100^th 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.

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