By: John Fulmer//May 27, 2010
By: John Fulmer//May 27, 2010//
A proposed workers’ compensation program touted by the state as a means to streamline some claims processes is drawing the ire of the New York State Bar Association.
The association this week announced its opposition to the Managed Adjudication Path program, arguing the initiative will limit due process rights for workers, employers and insurance companies in workers’ compensation claims. Rochester attorney John Sciortino, with Segar & Sciortino, who specializes in workers’ compensation law and is the president of the New York State Injured Workers’ Bar Association, said, “frankly, we think it’s illegal.”
Brian Keegan, a state Workers’ Compensation Board spokesman defended MAP, which he said “will provide standards that will ensure that cases are properly routed to conciliation for a proposed decision.”
The Workers’ Compensation Law Division of the NYSBA’s Torts, Insurance and Compensation Law Section, led by Chairman Christopher Lemire of Lemire Johnson LLC in Malta, has followed the reform effort closely.
According to a release from the section, “[m]embers … expressed their concerns and opposition to representatives of the Workers’ Compensation Board at a recent section division meeting in Albany.”
The section’s release goes on to state that a board-hosted webinar on MAP, held earlier this month, erroneously suggested the section and the NYSBA are in favor of the MAP reforms the state is proposing.
Members fear MAP will divert some cases with disputed issues away from law judge hearings, relegating them to an “informal process that allows decisions to be issued without notice to or appearance by the involved parties, without the benefit of legal counsel, and without any development of the record,” the release states.
NYSBA President Michael E. Getnick said MAP “represents a major departure from the board’s longstanding practice of resolving disputed issues through adjudicatory hearings. Simply put, it would erode the due process rights of injured workers and employers.”
MAP “is a program which, if adopted, will essentially interfere with a litigant’s right to access the adjudication process of the board,” Sciortino said.
To request a hearing, a claimant must file a form, present documentary evidence that justifies a hearing and then appears before a judge. Sciortino said the Rochester Workers’ Compensation board is notoriously speedy and efficient and almost always schedules hearings less than a month after a claim is filed.
From what he’s seen so far, Sciortino said all factions of the workers’ compensation legal community are opposed to MAP. The state board, he said, has tried to justify the reform by claiming it will free workers from attending unnecessary hearings that may disrupt their lives. But Sciortino also said a claimant wouldn’t ask for a hearing if he or she thought it was unnecessary or disruptive.
Keegan said the claimants who would be affected almost always have noncontentious cases.
“These are usually already accepted claims,” Keegan told The Daily Record on Thursday, adding that such claimants typically have returned to work and are making money, not suffering from any kind of debilitating pain.
In an e-mail, Keegan elaborated on the state’s position, stating claims can now be directed to a hearing before the record is fully developed.
“It is not uncommon for a hearing to be adjourned for a month or longer so that the carrier can get an IME (independent medical evaluation) opinion,” he wrote. “MAP eliminates the need for these adjourned hearings by directing the parties to obtain their evidence before the meeting or hearing is held.”
Keegan said that would save the time and expense associated with waiting for a hearing to be scheduled, or in instances when hearings are adjourned for evidence gathering.
“The standards for routing cases to conciliation varied from district to district,” Keegan wrote. “MAP is an effort to use the best practices of the districts, along with stakeholder feedback, to route cases along the best resolution path.”
The NYSBA is not convinced. Getnick further argues that the “rights of both injured workers and employers will be protected, and the timely resolution of disputed issues accomplished, only by affording both parties a prompt hearing before a law judge” and the NYSBA will continue to push for removal of the proposal.