The owner of a contracting company in Happauge faces up to four years in prison for cheating his workers’ compensation insurer. The owner of “Colt Contracting” allegedly concealed the payroll of eight of his employees in order to perpetrate the fraud. The fraud was discovered on September 9th by the New York Insurance Bureau, the New York Insurance Fund, and the office of the Inspector General of the Workers’ Compensation Fund.
A second contractor in Long Island (Stephen Schiavoni) was arrested by local police for allegedly hiding 900,000 in contracting sales to defraud his workers’ comp insurer of $44,000 in premiums in a one year period (Story from Sept 18, 2009).
A New York police officer lost his claim for compensation benefits and was indicted on one count of offering a false report for filing (a felony) when it was determined that he stabbed himself to collected WC benefits. Johnson City police officer Matthew Romano claimed to have been stabbed by “two men while investigating a suspicious car” on December 30, 2006. After investigation it was learned that the stab wounds were self-inflicted. The officer has been suspended without pay (Sept 11, 2009). He now faces charges of using the mail system to perpetrate a fraud against the employer city.
Finally, a story as old as time: Monica Martinez of Freeport is accused of working a full-time at dental offices while collecting $39,000 in total disability benefits for neck and back injuries which allegedly prevented her from working. (Story Sept 16, 2009). She is charged with violating the WCL and could face four years in prison if convicted.
In September the New York WCB released data on the 45,000 workers who filed 9/11-related claims and special affidavits. The ‘special affidavits’ are not claims but rather “placeholders” for future claims, allowing the affiants to bring workers’ comp cases at a later date, preserving their rights to benefits.
Nearly 14,000 claims are currently pending before the Board. Of these active claims, about 50% are for victims of the attacks and about 40% are rescue and clean-up workers.
Carriers have challenged about 40% of the WTC cases, which is approximately double the rate of other claims. 90% of the claims for rescue and clean-up workers are for respiratory-related conditions.
Until September, injured workers in New York State collected incremental payments for “loss-of-use” injuries (permanent partial disabilities). This practice followed a 2007 appeals court decision finding that a ‘periodic system of payments’ could not be paid as a lump-sum without a change to the law. Governor Paterson just signed legislation allowing loss-of-use injuries to be paid in one lump sum.
On August 28, 2009 the WCB released a revised set of C-4 forms. We recommend you utilize the new C-4, which now includes an item in the ‘Doctors Information’ section to include “billing group” and “practice name.” This is expected to reduce payment problems. Form C-4 AMR may now be used in place of a ‘regular’ C-4 report where a physician is only giving clearance for a surgery. For medical care providers, the new forms should be helpful as all the updated forms now include the “centralized” statewide fax number for the WCB: 877-533-0337. To encourage transition to the new forms, the Board will not enforce provider’s claims for payment using the old forms.
The Appellate Division issued a new opinion regarding the Workers’ Compensation Board’s discretionary power in reviewing cases. We are reporting on this case (D’Errico v. New York City Board of Corrections, 883 N.Y.S.2d 828 (Aug. 20, 2009) because the issue of WCB review is important to the practice of Workers’ Compensation Law in New York.
In D’Errico, a city corrections officer alleged that his employment experiences caused him to suffer permanent “major depressive disorder with psychotic features, post-traumatic stress disorder, and panic disorder.” The WCB ultimately denied his claims – finding that the claimant was no exposed to a ‘greater’ amount of work stress than any other ‘normally-stuated’ correctional officer. The claimant applied for a full Board review.
Appeal of from a Workers’ Compensation Judge’s decision is not to the appellate court. The first opportunity for review is to a WCB panel.
Either side may seek administrative review of the decision within 30 days of the filing of the Judge’s decision. There is no specific form for this – but it must be done in writing. A panel of three Board Members will review the case.
The employer’s attorney does not have to make a record (by taking exceptions, etc) below in order to ‘preserve’ issues for appeal. The WCB panel does a ‘fresh look’ at all of the evidence from the hearing below in reaching their decision. It is the written findings of fact and law of the panel that becomes the record for appeal to the Supreme Court.
This three-judge panel may affirm, modify or rescind the Judge’s decision, or restore the case to the calendar for further development of the record. In the event the panel is not unanimous, any interested party may make application in writing for mandatory review of the full Board. The full Board must review and either affirm, modify or rescind such decision. In addition, following a unanimous decision of the Board panel, a party may file an application for discretionary full Board review. The application for discretionary full Board review will either be denied by the Board or, when warranted, the Board panel decision may be rescinded by resolution of the full Board. When the original Board panel decision is rescinded a new panel decision will be issued.
In D’Errico, the claimant asked for a full-Board review – and his request was denied.
The Appellate Court upheld the denial of ‘full Board review’ – finding that the claimant could not (1) show that newly discovered evidence existed; (2) that he had a ‘material change in condition’; or (3) or that the Board improperly failed to consider issues raised in the application for review in making its initial determination. The Appellate Court also noted that in ‘rare instances’ the WCB was found to have abused its discretion in not granted a review of a prior board decision – but those ‘rare instances’ were confined to cases where the Bard failed to consider new evidence or disregarded a material change in the claimant’s condition. The Appellate panel found that the WCB had properly exercised its discretion and ruled that the claimant was not due a second review of his case by the WCB.
Two of the three Judges on the appeals panel agreed that the claimant was out of luck – that the Board did not have to review its decision. The third judge issued a ‘dissenting’ opinion – laying the foundation for the claimant to seek appeal to New York State’s highest court, the Court of Appeals. The dissenting opinion argued that the WCB had failed to ‘fully consider’ the issues in the first hearing the WCB granted the claimant. Specifically, the third judge questioned “whom” the ‘average correctional worker’ was that comprised the ‘normally-situated correctional officer’ baseline used by the WCB to determine that the claimant was not exposed to ‘extraordinary’ occupational stressors.
We will continue to monitor the progress of this case (decided August 20, 2009) and report on any future developments in this area of the law.