New York Injured Workers' Alliance - Advocacy for injured workers

Having been previously diagnosed with “lameduckedness”, the New York Workers’ Compensation Board [WCB] appears to have incurred a new malady --- tunnel vision ! 

Among others, the promise and public policy underlying development and implementation of New York’s New Medical Treatment Guidelines  [MTG] were: 

• Medical Care and treatment required as a result of a work-related injury, should  be focused on restoring functional ability required to meet the patient’s daily and work activities and return to work, while striving to restore the patient’s health to its pre-injury status in so far as is feasible. 

Those same General Principles declare that, under the MTG's, workers’ compensation claimants are patients, acknowledging their rights as equal to those of all insurance subscribers in need of medical care and treatment. 

The Guidelines, which contain quality standards for medical care of injured workers, should encourage accelerated delivery of quality medical services to injured workers and reduce disputes and costs. [ See Transmittal letter from Superintendent of Insurance, 12/07/07]

• “Putting medical treatment guidelines in place will mean injured workers get faster and more effective medical care at a lower cost to employers,”Dinallo said. “These guidelines will standardize treatments so injured workers get quality and appropriate care for their condition. Without guidelines, disputes and inappropriate treatments can lead to higher cost but not better care.   [Department of Insurance, Press Release, 12/07/07]

However, just three years later, the promise and public policy did not anticipate the kind of “tunnel vision” that the WCB would apply upon writing regulations, interpreting, and implementing the Medical Treatment Guidelines under its Subject Numbers [a/k/a “fiats” ]. Check this out directly from the WCB web site:

• If a Workers' Compensation Law Judge had previously rendered a decision authorizing ongoing or symptomatic treatment, would the treatment have to follow the Medical Treatment Guidelines?
•       Yes. The Medical Treatment Guidelines will apply to cases with orders for ongoing or symptomatic treatment. If such treatment is not consistent with the Medical Treatment Guidelines, the Carrier may object. If treatment exceeds the amount recommended under the Guidelines, the treating medical provider must show that there is a need for continuing treatment through the variance process.

Ugh!! What may have been a clear interpretation by the WCB to apply the Medical Treatment Guideliness to all claims, regardless of injury date, has mushroomed into wholesale conflict and confusion.  Despite strong objections from the state AFL-CIO and Medical Society of the State of NY [MSSNY], the WCB’s implementation of the guidelines has resulted in almost a universal chorus of complaint.

Across the state, attorneys are reporting dozens of calls from claimants and medical providers on a daily basis seeking assistance in negotiating medical issues through the WCB’s torturous “variance” process.  Worse, due to retroactive application of the MTGs,  claimants and physicians are experiencing interruption of existing medical treatment plans previously authorized by a judge or carrier or pursuant to statute.  A recent communication from the an insurance carrier advised:

• This injury is now over two years old and [patient] continues to receive…treatment. Based on the NYS Medical Treatment Guidelines no further treatment is approved. We trust you understand our position. Thank you.

Thank you, indeed!  “Trust”??!  A workers’ compensation patient requiring medical care to continue working (and was previously promised such medical care by a Judge as part of the "deal" closing his case) must now be cleared through the “variance” process to maintain his/her capacity to work.  Trust??!

The objective and goal to reduce disputes and speed deliver of medical treatment is replaced by the continuing necessity to obtain approvals for treatment previously authorized. Bureaucratic absurdity in it's finest hour!

Many are urging legal action against the WCB to rectify its “tunnel vision.”  Such may be the antidote or “variance” required to cure the malady and restore the promise and public policy that was supposed to guide the MTG's. 

The existing statutory provision WCL §13 states:

• The employer shall be liable for the payment of the expenses of medical, dental, surgical, optometric or other attendance or treatment...necessitated by the injury of an employee for such period as the nature of the injury or the process of recovery may require..." 

The statute seems pretty clear to us. ( Also see Matter of Stajanov [AD3d, filed April 1, 2010] where the Court found the WCB could not trump it's interpretation of statutory construction with a subsequent regulation).  

We can perhaps understand applying the new guidelines prospectively to all injuries on or after 12/01/2010. But to apply them to injured workers who have made life decisions based upon the Board's own prior promises of medical care in cases that can be 20 years old or more and were part of a legally negotiated arms length bargain - well,  that's just cruel and unfair. 

Shame on the New York Workers' Compensation Board for this fiasco!

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?

New 2010 Schedule Loss of Use Proposed Decisions: Idea! - why don't we (the WCB) increase the amount of depositions in some of the most easily resolved cases at the New York State Workers" Compensation Board? That will be our legacy! 

So now the Workers' Compensation Board, without any input from either claimant or defense lawyers who are "in the trenches" each day making the system work despite the unnecessary hurdles invented by a "Park Street Albany" cabal, wants to throw another rock in the gears of justice.

The new Proposed SLU Decisions take away the ability of Workers' Compensation Compensation Law Judges (WCLJ's) to "knock heads" and broker  fair settlements between the parties, which is the standard in most judicial and administrative adjudicatory systems across the US. The new procedure essentially says: settle directly with the insurance company claims adjuster without court intervention, or you have no choice but to proceed to the time consuming and costly deposition process. 

The deposition process before the New York Workers' Compensation Board is widely accepted as an utter failure, hence the need for deposition regulations which are yet to be promulgated.  In addition, depositions in SLU cases often times produce wildly unfair decisions (both for claimants and insurance carriers) due to the vagaries of medical opinion and the testimonial competence of the doctor being deposed.

For example, under current Board practice, if a claimant produces an SLU report giving a 25% loss of use of an arm, and the insurance carrier produces a report indicating a 10% loss of use of an arm, the Workers' Compensation Law Judge must choose one finding or the other, even if the Judge believes that a percentage between the two numbers would be a more fair result.

Given the new maximum workers' compensation rate effective 7/1/2010 of $739.83 per week, the difference in cash benefits between these two easily bridged (before a WCLJ) extremes is approximately a  whopping $34,000!  Therefore, if the claimant's doctor cannot make himself available for a deposition due to medical emergency, the claimant will get almost $34,000 less! 

Not only is this assembly line appoach inefficient, it is unfair to all parties and capable of producing absurd results. But then again, we are currently under the reign of Albany bureaucrats who are desperate for a "legacy" of reform (or deform) prior to the November elections, when many will be washed out to sea.