Open Letter to new WCB Executive Director Mark Wade

Tuesday, April 21, 2015 | 0

Welcome to the New York State Workers' Compensation Board. I assume that you like a good challenge because that is what you face as you take over the reins of the agency.

There are many problems at the Board which has in the past few years failed in its primary responsibility to insure prompt medical care and wage replacement for injured workers, while maintaining a reasonable cost for the employers who ultimately pay for the medical treatment and lost wages. Below I list some of the problems and then list some recommendations.

The most meaningful step you can take is to meet directly with the workers' compensation community: the attorneys for the claimants as well as for the carriers, licensed reps, the carriers themselves and medical providers.

Equally important is that you must speak directly to a number of injured workers who feel that the system has betrayed, ignored, mistreated, humiliated and basically made their lives miserable by failing, as noted above, to remember that their needs and the needs of their families must come before those of the staff at the Board. Yes, some of these claimants may not be justified regarding the outcome of their claims, but waiting a year or more to lose a case is not acceptable. And far too often there is no one at the Board to give them answers and the attorneys are, these days, in a financial squeeze as the Board does its best to eliminate them from the process while the Board at the same time increases the complexity of pursuing a claim. The Office of the Advocate for Injured Workers can give you the names of some of these workers whose frustration and outrage at their treatment exemplifies what has gone wrong with the Board in the past few years. (I get enough calls I referred to the advocate, so I know they have a good list for you.)

And while the Board has a great number of superb employees dedicated to serving the Board’s constituency, it suffers for what is called the "mushy middle" syndrome: 20% are excellent workers; 20% will not produce no matter what and are inherently destructive. It is the mushy middle of 60% who will look to you for leadership. If the bottom 20% along with some of the political hacks continue to "rule the roost," that mushy middle will do what they have been doing for years while the top 20% continue to be badgered for making the bottom 20% look bad.

In the seven years since I have left the Board, I have written dozens of commentaries on how to fix the Board, just as I did in my book, "Behind The Closed Doors - An Insider’s Look at How Things Really Work at the Workers' Compensation Board and How to Fix Them."

During the next few weeks, I will again list areas in which the Board needs real redirection.

But I start at the top. Chairman Beloten should be the Board’s leader and should not, for whatever reason, be involved in reviewing Memorandums of Decision. That is what the other 12 commissioners are supposed to be doing, although a careful examination of the record will show that several probably have not read an MoD in years. Yes, these insouciants may sign the MoDs (by computer) but, by not reading them, they have allowed the bureaucratic staff to make policy decisions and they infect the entire Board with the sense that you can do nothing and still get paid.

The commissioners need to be put back to work, hearing Section 32 settlements so that the law judges have more time to handle appeals. And the Board can start setting up more oral arguments. The commissioners who set policy by determining how the laws are interpreted must hear from the opposing attorneys face to face and not, for the few who actually read the MoDs, rely on what the writers feel are relevant points or legal arguments. The writers are supposed to suggest decisions for the commissioners, not make them.

Also by doing Section 32 settlements and conducting oral arguments, the commissioners can see for themselves the injured workers whose lives are impacted by the decisions of the commissioners as well as the timeliness of those decisions.

The Board also has to stop issuing new forms and let the practitioners, both legal and medical, get used to what is in place now. Too much change is being done to justify the employment of those bureaucrats who can otherwise not justify their existence.

And, as a last note for this first open letter, the Board must start publishing meaningful statistics, such as the age of appeals. The Board is supposed to be, like all government agencies, a servant of the people, not its master.

If Governor Cuomo’s appointment of you as the new executive director is a sign of his commitment to fix the Board, you will have the opportunity to make substantive and positive changes as was done in the early years of the Pataki administration under the aegis of Chairman Robert Snashall and Vice Chairman Jeffrey Sweet. The injured workers of New York and their families deserve this.

Good luck.

Michael Berns is a former New York State Workers' Compensation Board member. This column was reprinted with his permission from his Inside Workers' Comp NY blog.