Op-ed by James McCarthy, Esq.

While it is essential to sustain a dialogue and cooperative relationship with the New York State Workers' Compensation Board, it is unfortunate that the current administration, as well as its predecessors, have been largely “deaf and blind” to the rights of injured workers.  Now, a lame duck administration appears poised to implement “legacy” policies and procedures.  Might these actions be about protecting political job at the Board?   

Since the 1996 Omnibus Reform Act, the bureaucracy that has settled and propagated itself at the WCB headquarters in Albany (20 Park Street) has created a hegemony over the state’s workers’ compensation system.  An entrenched junta of anti-claimant civil servants has continued to impose its vision of a legal system that defies legislative purpose and compromises the rights of injured workers. 

Within the last month, Park Street issued its list of items for its Streamlined Conciliation Process after its leadership met with a NYS Bar Committee of claimant and defense attorneys. This list was never discussed with the committee members. At the same time, a proposed draft of regulations surfaced concerning cross-examination procedures, an issue that certainly should have been discussed with the State Bar committee. 

This behavior has also been evident recently in the Park Street revision of the procedure for decisions concerning schedule loss of use claims.  Without consultation, the WCB gang has determined – by administrative fiat – how to implement permanency benefits without a hearing and in ways that violate existing law. 

These documents are in the context of previous intransigent conduct.  Despite strong objections from state legislators and their committees, the Park Street gang has spent nearly $1 million for a digital recording system to replace live stenographers; defied the legislature’s interpretation of the right to a hearing; failed to create a process for WAMO settlements; failed to seek advice and counsel from claimant and defense attorneys; diminished the independence of its judiciary; and radically altered the system’s jurisprudence, among others. 

Now, with only a few months remaining in the present state leadership, the Park Street gang is preparing a series of “legacy” proposals to encumber the system into the future.  These proposals appear as lame as the ducks who author them.  It’s axiomatic that bureaucratic cleansings are most thorough upon the succession of the same party to leadership.   

This may be the major motivation that surrounds the secrecy that the Park Street gang’s behavior.  On one day, it meets with a NYS Bar group to discuss an issue and, on the next, it releases a different set of agenda items.  At the same time, the gang is developing regulations for cross-examination without seeking consideration of the attorneys who are to be bound by them.  There is no reason to believe the gang does not understand what it is doing.  This behavior has typified Park Street’s modus operandi since the mid-1990’s. 

Those in the Park Street bureau who may survive in the post-November era will be a signal as to the direction of the new administration.  Who guards the guardians?