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 site.

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 video.

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 way. 

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 18^th.  I’m moving the deadline dates from the 3^rd Fridays to the 3^rd 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!!!

Rosemary Elacqua-Simmons

Albany County Bar Association

1 Lodge Street, 2nd Floor

Albany, NY 12207

518-445-7691 ext. 16

518-445-7511 (Fax) 

rsimmons@albanycountybar.com

acba@albanycountybar.com

Website:  www.albanycountybar.com