Stats, Lies and the Truth

Monday, May 19, 2014 | 0

As I have written on more than one occasion, a hospital can brag about how the mortality rate in their hospital has dropped to almost zero: they have a special squad that takes patients who are about to die and moves them into the parking lot next door to die.

The same holds true for the New York State Workers Compensations Board.

It is interesting to note that the number of cases going to the Appellate Court (in terms of having decisions issued) has dropped dramatically in the last two years: 112 in 2012 versus 82 in 2013. And for the first four months of each year: 44 in 2012, 36 in 2013, and 25 so far this year.

If I were Board Chairman, I would proudly announce that this proves that the attorneys representing both sides have recognized that the Board's rulings are correct and do not warrant an appeal.

But that is basically false. The Board's affirmance rate is still well below 75%.

I can offer one explanation for the drop in appeals: claimants cannot wait two or three years for a decision by the Appellate Court and are willing to settle just to get out of a system that is holding their future, and their lives, hostage.

The backlog in the Administrative Review Division now averages about 8-9 months and cases lingering for over a year are not uncommon. And it is only then that a case can be appealed to the Appellate Court. The Board has very high numbers for closing cases; they just do not publish numbers stating how many of those cases are reopened shortly thereafter, I mean attempt to get reopened shortly thereafter: the process to reopen a case takes months, adding further to the delays being encountered by claimants.

There are more and more cases in which the main controversy involves medical variances. But since these do not affect compensation directly, fees are minimal for the attorneys. And, for those cases in which the claimant is not getting compensation, a "medical only" case pays no fees at all. Claimant practitioners cannot afford to stay in business and provide injured workers with the assistance they need in dealing with this humongous monstrosity into which the Board has metamorphosized in the last few years, a kind of Mothra when the Patterson administration and Cuomo, by his inaction, appeared to have promised a pretty butterfly.

More than half the calls and emails I get from claimants deal with the questions, "How long should I expect to wait for an answer to my appeal?" or "My appeal is almost a year old. What can I do to get a decision?"

I have also gotten calls asking about Section 32s, but ultimately I am told that the decision to take the settlement is just to get out of the system because they cannot wait forever for a decision.

So perhaps Deloitte will make sure that Mothra goes back into molting but this time comes out as a pretty butterfly.

But, in reality, as I wrote in my June 9, 2011, commentary " 'O pesce fete d' 'a capa!" And until the governor addresses that problem, Deloitte Touche will be doing no more than putting another coat of lipstick on the pig.

Until the Administrative Review Board is overhauled, the commissioners are put to work, and the board stops counting sheets of paper as its sign of success, we may well see even less appeals in the future: justice served by a white flag of surrender.

Michael T. Berns is a former New York State Workers' Compensation Board commissioner. This column is reprinted with his permission from his InsideWorkersCompNY blog.