What Shall We Do with the Pro Se Claimant?
Tuesday, March 4, 2014 | 0
One recent Appellate division case in New York highlights the interesting implications of some claimants' decisions not to be represented by legal counsel.
The facts documented by New York's second highest court are fairly simple. The claimant had a workers' compensation claim that was proceeding towards settlement. A judge awarded the claimant continuing benefits at a tentative rate pending settlement negotiations.
In New York, it is common for a judge to award tentative rates if a case is likely to settle or if extensive litigation is planned. There are a few important facts about these tentative rates that insiders understand and that claimants without legal counsel may not recognize:
As a practical matter, these rates tend to provide a floor under the claimant's benefits. These rates are usually roughly equivalent to what the carrier concedes it owes.
Tentative rates are typically a minimum payment; sometimes they go higher in the eventual settlement or legislation, but they seldom go lower.
These temporary rates provide the claimant with an ongoing award that cannot arbitrarily be reduced or suspended by the carrier, but are usually set to avoid an overpayment if the carrier's position is ultimately upheld.
The administrative law judge is free to revise these rates upon settlement or after the record is fully developed.
In this particular case, negotiations evidently did not go well, and the claimant filed an appeal of the judge's decision acting on their own behalf. The appeal was properly rejected as untimely by the New York Workers' Compensation Board (NYSWCB), and the claimant filed a second appeal to the Appellate Division, which is New York's second highest court. The court affirmed NYSWCB's decision and sent the case back to NYSWCB. Assuming that the claim does not settle amicably, a record will be developed by the Workers' Compensation Board's administrative law judge, and the judge will make a final decision revising the tentative rate.
This is an unfortunate consumption of time and resources that has left the claimant in a position that is unchanged in two years. The claimant's decision to self-represent not only yielded no obvious benefits, but also significantly delayed the resolution of this claim. NYSWCB filed its initial rejection in August of 2011. The administrative director ruled on this case in November 2013. Assuming that the case has not settled in the interim, the law judge will now be charged with making a final ruling on the tentative rates and the appeal process could very well start over. All this occurred because some of the subtleties of a complex system probably eluded the claimant.
From a legal and procedural point of view, this case has been handled appropriately. The law judge's initial decision to set tentative rates while settlement negotiations proceeded was perfectly appropriate. The Board panel's refusal to allow an untimely appeal was procedurally correct. The Appellate Division recognized this in affirming the Board's decision.
I am not suggesting any weakening of claimants' right to represent themselves or appeal unfavorable decisions. I suspect that this claimant hoped to increase her benefit level but did not understand how best to proceed. As a result, two years after her initial objection, her case is precisely where it was before her appeals. The judge still needs to set permanent rates or approve a settlement, testimony presumably still need to occur and there is a potential for new appeals once a final decision is rendered.
No wonder so many New York claimants find the system frustrating.
Claimants seldom proceed without representation in claims this complex. One wishes there were a way the system could offer impartial guidance to all claimants on the fundamentals of how things work.
Paul Jahn is executive director of the New York Workers' Compensation Policy Institute. This column was reprinted with his permission from the institute's Compensation Chronicles blog.
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