I used to play in a golf league.
We were the Mashers and we were not very good. Every year we got worse and
worse, soon became terrible, and then terribler and terribler until we were
terriblest. But we had a great time despite our complete lack of ability. When
we had reached our lowest point we met to discuss our future as a team. Beer may
have been involved. We talked about the possibility of actually trying to
improve our game during the off-season; practicing, putting, stretching, walking
and generally getting into shape. Taking the game more seriously, drinking less
beer. Then a team member suggested that we could just add an "S" to our name,
become the "Smashers" instead of the "Mashers" and continue on with the hope
that no one noticed we were the same terrible team. We chose option B.
The workers compensation board is
doing exactly the same thing. For some time now they have been attempting to
implement their illogical, misguided MAP program which is essentially designed
to drastically reduce the number of hearings. It has been opposed by virtually
everyone, every entity, every group, every political agency and the state
legislature yet they continue to press onward. Recently, apparently urged on by
our Smasher example, they changed the name with the mistaken belief that
no one will notice. We do.
The entire concept is flawed. It
is wrong, ill thought out, harmful. It clearly violates section 20 of the
workers compensation law which does not limit hearings to controverted cases.
Lest anyone fail to note, your author and many other capital District attorneys
are "comp lawyers". Of course we want our clients to have hearings. But the
reality is that represented claimants in the capital District are well
represented and the attorneys who represent them will eventually get hearings
for their clients when needed. The problem is with the non-represented claimants
who have no idea what they should be receiving and how their case should
progress. A claimant who injures three fingers and has lost four weeks of work
may indeed receive notification a year later that inasmuch as he has lost 12
1/2% use of each finger that he is entitled to $4106. "If you object please note
and we will schedule a hearing". No one would object. This is found money. But
how does the claimant know that indeed he is receiving the proper amount.
Perhaps there was a loss of use of the hand instead of just the fingers which
would result in a greater entitlement to benefits. A claimant doesn't know. A
claimant can't know.
I have a proposal. It too may be
flawed but its "flawness" pales in comparison with the Board's plan. It goes
something like this:
1. The workers compensation board, together with other
interested parties, develops brief, professionally prepared videos describing
workers compensation hearings, procedures, and the law. Separate videos can be
prepared for claims involving the spine, appendages, mental health issues,
occupational diseases, etc.
2. These videos are made available on a Board web
3. EVERY new Claimant is sent a notification to visit
the web site where they enter their WCB case number and the last four digits of
their social security number. They are then directed to review the appropriate
4. Following the video review, each Claimant is
presented with an option to waive a hearing. Those who do not wish to waive the
hearing, or those that never "check in" to the site in the first instance are
sent a hearing notice to appear within 45 days.
5. The Board makes available three or four computer
screens at the hearing point with continually running videos for those who have
not had an opportunity to review the videos online.
6. Essentially, EVERY new Claimant gets a hearing
unless they intentionally elect not to appear. This is true in all cases, not
just controverted cases.
Is it possible that certain hearings will turn out
to have been unnecessary. Of course. But so what. New York State made a deal
with its citizenry. It's injured workers gave up the right to sue their
employers or fellow employees and in return were given a system that guaranteed
certain benefits, including a hearing. No doubt the attempted implementation of
the current program, by whatever name, will be met with legal and
constitutional challenges. Lines are drawn. Wagons are being circled. We urge
the powers that be to reconsider the interests of the injured workers before it
is too late. A compensable injury can be a life changing event for a Claimant,
even when it is a non controverted injury. It should be treated that
On Aug 9, 2010, at 11:31 AM, Rosemary Elacqua-Simmons wrote:
Hi everyone – hope you are
enjoying your summer and I apologize for interrupting it with the news that
the deadline for the September Newsletter will be August
18th. I’m moving the deadline dates from the 3rd
Fridays to the 3rd Wednesdays from now on because the printer needs
a longer turn around time.
Mr. Kelly, I already have your
article – thank you.
Enjoy the rest of your
summer!!!! Talk to you soon!!!
Albany County Bar