Earlier this year the County of Erie adopted a new and novel way to harass injured workers – requiring them to pick up their workers’ compensation checks in person.  The County issued the following statement to its injured employees:  “Please be advised that as of July 8, 2010, you will no longer receive your bi-weekly indemnity payment by mail. After such date, you will be required to personally pick up your bi-weekly payments” during limited hours on Thursdays or Fridays.”  The County told workers that its new policy was that “all employees … who receive bi-weekly indemnity payments … will no longer receive such payments via US Mail. Claimants must personally pick up their bi-weekly payments pursuant to County Department guidelines.”

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 Erie County decided that it could make its own rules.

In a unanimous decision, the Board has told Erie County that it is wrong.  After outlining the legal reasons why the County’s policy is illegal, the Board wrote:

“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.

If the County defies the Board’s order, then we look forward to swift and decisive action by the office of Attorney General and gubernatorial candidate Andrew Cuomo. 

News

Dear Colleagues:

As previously scheduled, the Workers’ Compensation Alliance (WCA) Board of Directors held a meeting on the Friday, July 16, 2010.  By vote of the Board at that meeting, I was elected to the position of Chair of the WCA, succeeding co-Chairs Victor Pasternack and Brian Mittman.  I write to you today to explain why I am honored to lead the WCA, how we see the current political landscape, why your help is needed, and to offer a preview of what we intend to do.

Our Board is comprised of actively practicing attorneys who are members of some of the foremost firms in our field.  Each of us is dedicated to representing injured workers both on an individual level and on the broader social and political stage, and all of us have committed our time, energy, and resources to advancing our cause.

The WCA is Uniquely Positioned to Protect the Rights of Injured Workers.

The WCA is uniquely positioned to protect injured workers and their right to representation, just compensation and due process before the Board.

By appearing at the Workers’ Compensation Board on a regular basis, our members gain valuable real-time insight into the challenges that face practicing attorneys and their clients.  In fact, many of our Board members and their firms serve on task forces, committees and commissions throughout the State; thus providing access to important organizations and political figures that influence policy and practice

Every bit of our practical knowledge, policy influence, and political credibility will be needed in the coming months. (In fact, the WCA has long been represented by the pre-eminent labor lobbyist in Albany building credibility as an established political force.)

The Current Political Landscape and the WCA.

The November elections are less than four months away.  There will be a new Governor, a change of leadership in the Senate and Assembly Labor Committees, and it is entirely possible that political control of the State Senate may change hands. 

The workers’ compensation system was a high priority for Governor Spitzer during his short tenure, and the process he set in motion has continued through the tenure of Governor Paterson.  We anticipate that there will be a sense of urgency in various quarters to complete the “Spitzer reforms” by the end of the year, and as a result we will need to remain vigilant in the defense of our clients and our role as attorneys in the system. 

Remaining vigilant requires a unified effort to oppose anti-claimant and anti-attorney changes.  In doing so we must keep in mind our core principles and the broader legal and political picture, and resist the urge to take actions that merely provide temporary satisfaction of our own immediate concerns about the trend of injustice we have faced when dealing with the Board and Albany.  The simple fact is that issues left unresolved by the present administration may become agenda items for the next administration, and it is unclear whether the environment will improve for injured workers in January.  We must therefore make judgments on a case-by-case basis whether we are likely to achieve a better result with an administration we know now, or with one we have yet to meet.  As a result, we will have to keep all of our options open, including opposition, negotiation, compromise, and (if indicated) support for any given initiative. 

In addition to the upcoming elections, some of the administrative issues that require our attention include

·        the MAP program (which the WCB continues to pursue in various incarnations)

·        the Medical Treatment Guidelines,

·         the absence of Medical Impairment / Loss of Wage Earning Capacity Guidelines,

·        the nominations of Ed Vargas and Charo Ezdrin as WCB Commissioners. 

What the WCA Will Do For YOU. 

The WCA Board will be meeting on a regular basis to discuss these and other developments and to take public positions in defense of our clients and our practices.  We promise to provide regular updates to the IWBA membership about issues that come to our attention, what steps we have taken, and why.  Look for our emails and for new posts on the WCA web site.

How Can You Help the WCA?

Our ability to advance our mutual cause depends largely on the strength and unity of our membership.  In the political arena, our strength will be judged by the size of our treasury and the volume of our voice.  If we are to have an influence between now and the November elections, we must raise funds and we must do so quickly.

Renew Your WCA Membership – Or Join the WCA.

 I am attaching an application for WCA membership to this email.  I hope that you will join (or in many cases re-join) the WCA.  In the coming weeks, we will be revamping our web site to include current information and to list our Directors, Sponsors and Supporters.  We hope that as many of you as possible will choose to become Directors and to participate in crafting and executing the WCA’s message and strategy as part of our Board.

Whether you join us as a Director or just a Member, we welcome your ideas, comments, and active participation.  We believe that the WCA, while carrying out the function of a political action committee, should reflect the will of its members, who also comprise the membership of the IWBA. 

Please take a few moments to complete the attached membership application and to return it with your donation or pledge.

Very truly yours,

Robert E. Grey

www.nyworkerscompensationalliance.org/WCA%20Memb%20App%202.pdf

The September 11^th attacks killed thousands of New York workers and injured tens of thousands of workers who heroically participated in rescue, recovery and clean-up activities.  In August, 2006 the Legislature added Article 8-A to the Workers’ Compensation Law.  Article 8-A permits those who participated in rescue, recovery and clean-up operations to file a WTC-12 registration form.  The current deadline to file a WTC-12 form is September 11, 2010.

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 11^th 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

http://www.wtcexams.org/

 The WCA Position.  The WCA calls on the Board to publicize the September 11^th registration deadline on its web site and at hearing points, and to make WTC-12 forms readily available so that participants in rescue, recovery and clean-up operations can register and preserve their right to claim workers’ compensation benefits.

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.

      “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.

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.

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 .   

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...

Despite the petty and ill advised jab at attorneys by Brian Keegan, the NY WCB spokesman, as reported by James Odato in today's Albany Times Union,  his boss,  WCB Chairman Robert Beloten re-affirmed last Friday his strong support for the continuance of due process hearings at the New York Workers' Compensation Board - regardless of whatever recommendations come from some secret "2015 Project"  Committee(s).  

According to the report of Injured Workers' Bar Association President Barbara Levine of a conversation she had with the Chair last Friday:

"The Chair states that he firmly believes in due process and the rights of both sides to be represented by counsel and to be afforded hearings to present evidence and witnesses when necessary. The Chair has indicated that he recognizes the 14th amendment rights of both injured workers and carriers to have their issues adjudicated before a trier of fact and law."

So much for "the end of due process"! Injured workers still live in America!

Happy Labor Day 2009 to all workers across New York State - men and women, unionized and non-unionized, documented and undocumented,  adults and children, exploited and non-exploited, and of course the injured and disabled who must fight the workers' compensation bureaucracy and insurance company lawyers each day.

Thankfully, the claimants' attorneys and representatives who make up the New York Workers' Compensation Alliance will help and protect you through this treacherous maze, where one wrong turn can cost you lifetime medical and cash benefits.

May your Labor Day 2009 be peaceful, and the rest of your year be without any work-related injury or illness. 

In an excellent in-depth story which broke today, Mike Whiteley,  the Eastern Bureau Chief of WorkComp Central, exposes the "secret 2015 Project Committee" headed by WCB Executive Director Joe Pennisi, which among other things, seeks to hurt injured workers by stopping due process hearings and driving both claimant and insurance carrier attorneys out of the system altogether.

Shockingly, the "2015 Project " Committee and various sub-committees have been meeting without any input from the primary stakeholders at the Workers' Compensation Board - injured workers and their representatives!  This "shadow government" has eerie "Dick Cheney" overtones. 

You can be sure that the New York Workers' Compensation Alliance, which exists to protect the due process rights of injured workers, will seek further information on the conduct of this rogue (operating outside normal or desirable controls) group within the Workers' Compensation Board.

On September 1, 2009, the WCA filed an extensive Freedom of Information Law (FOIL) Request seeking all documents regarding "the "2015 Project" at the Workers Compensation Board and will share these documents shortly on this web site.  Other interested parties can do the same by email by clicking here. 

In the meantime, perhaps the "2015 Project" committee members should click here and learn something about Open Government and Government in the Sunshine in New York State. Stay tuned.

This was the first time that WCA officers were able to talk directly to members of the Governor's "inner circle" on this important bill, and demonstrates the growing influence of the New York Workers' Compensation Alliance as a voice for injured workers throughout the State.

Many thanks to Governor Paterson's office for their open door policy and allowing us to speak for all workers' compensation claimants. Hopefully, our discussions with the Governor's staff will result in this Bill becoming law shortly.

Please read the letter of support from Syracuse workers' compensation claimant attorney, Omar Obeid, here. In addition, please read the letter of long time practitioner Eliot Levine of Hauppauge here.  Thanks to Omar and Eliot for sharing their letters of support! 

Please check this site daily for further updates on Governor Paterson's stance on this important legislation. Thank you for your continued support of injured workers throughout New York State.