The Ill-Conceived "Rocket Docket" Regulations Proposed by the NY Workers' Compensation Board
.jpg)
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 18th 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 (3rd Dept. 1982); Mit vs. T.S. & M. Catering Corp., 285 A.D. 506 (3rd 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
