DISCLAIMER: This post is intended only as general information about New York State Workers Compensation Law. It is not legal advice, and reading it does not make us your attorneys. If you need specific legal advice, please contact a NYS WC attorney to discuss your unique circumstances.
For much of my career as a legal professional, I have litigated workers compensation claims. Naively, I trusted the judges and others in the system to operate fairly and ethically. Twenty-two years later, I better understand the challenges we face over time and how vicarious trauma can take its toll. This influenced my decision to stop accepting new litigation matters on December 31, 2024 and focus fully on keeping parties out of court. However, that does not mean I will stop calling for professionals in the New York Workers Compensation system need to:
- Be fair and impartial
- Learn more about business dynamics
- Foster trust in the system
Case Study: The International Widget Maker
Representing both injured workers and employers, most of my work was for employers in high-risk industries and that had workers compensation policies with such high deductibles that their insurance carriers rarely got involved in their cases. When I was first retained to represent these employers, the claims representatives at the insurance companies weren’t sending attorneys to any of the hearings on cases against the clients because they didn’t want to pay for legal counsel until the damages were likely to exceed the self-insured part of the claims. This meant my clients often faced:
- Penalties for failure to appear (at hearings they weren’t notified about)
- Unfavorable decisions that could no longer be appealed
- Excessive awards and penalties on them for late payment (again because no one notified them)
Over the years, we developed efficient systems to ensure the clients received notices with little input from the insurance carriers. This improved the experience for my clients, their employees, counsel for their employees, and even the Workers Compensation Board (WCB). That didn’t stop the WCB from continuing to view all employers as entities that exploit workers, which is strange, since one of the largest employers in New York State (NYS) is the State. The WCB is a State agency. Thus, if all employers exploit workers, that would include NYS.
I am not suggesting this is true. I know several people who appreciate their jobs with the WCB and other agencies within NYS. Yet this illogical bias against employers and their representatives continues to color judges’ perceptions and deteriorates trust in the judicial system. We can and must do better than this.
An Unrepresented Party
In one workers’ compensation (WC) hearing that still frustrates me, I was representing an employer-client in a claim by an injured worker who chose to proceed without an attorney. There had been no challenges to his claim, and he had a good relationship with his employer. So, he decided to keep the attorneys’ fees for himself.
As a party acting pro se, or on his own behalf, I had no restrictions on communicating with him, other than the expected duty to be honest and fair. However, when I volunteered to go to the waiting room and notify the claimant that we were ready to proceed, the judge expressed discomfort with the idea of a “carrier attorney” directly engaging with the claimant. I’m still not sure what kind of deviousness he thought I could accomplish between the waiting room and the hearing room approximately 30 feet away, but that is an attitude I grew accustomed to at the WCB.
During the hearing, the judge’s bias showed again when he criticized my client’s decision to switch to a new third-party administrator (TPA) after the prior TPA’s services declined. The judge labeled this business decision a “shell game,” uninterested in my client’s goal to improve claims administration for their employees. His bias against all carrier attorneys and employers hinted at deeper systemic issues that remain today.
Lack of Impartiality
Rule 300.9 of the WC Regulations mandates that judges conduct hearings in an orderly manner to ascertain the substantial rights of all parties—not just the claimants. Yet that is not usually the way proceedings are conducted. Frequently, judges intervene as though they are claimants’ counsel, even when counsel is present, and they protect claimant representatives from penalties and malpractice in ways they do not protect carrier attorneys.
Impartiality should extend to all parties, allowing amicable and professional relationships between adverse parties. Encouraging such relationships could expedite resolution and teach all of us how to navigate conflict more effectively going forward.
Notices of Hearing and Fairness
The WC rules contain provisions that arguably contradict the fairness requirement. For example, Section 300.8 provides that only the claimants, their representatives, and the insurance carriers are entitled to Notices of Hearing. Employers and their attorneys are not included, making Section 300.8 biased and unfair on its face.
In nearly every known forum, notice to the respondents is mandatory. The NYS WCB is one exception. When defending a WC claim, employers must rely on insurance carriers to forward claims-related notices, even when those carriers won’t be required to pay any benefits to the claimant. I mentioned above how poorly that worked for my clients with high-deductible insurance policies. Hearings were missed, adverse decisions were entered, and deadlines for appeal passed before they knew there were claims against them. Those proceedings were anything but fair.
Competence and Understanding
Rule 1.1 of the Rules of Professional Conduct emphasizes that attorneys and most judges (who are typically attorneys serving in a different capacity) must maintain competence in the matters they undertake. The Board could assist judges by fostering understanding of business dynamics. Rather than labeling every organizational change a “shell game,” judges would benefit from comprehending:
- Business formation
- Entity structures
- Collaboration structures
- Growth
- Mergers
- Acquisitions
- Dissolutions
Considering that claims can remain open for decades, judges should expect changes in business operations. Employers should not be penalized for switching TPAs when they believe neither they nor their injured workers receive adequate attention. Likewise, they should be free to merge, sell, or take other reasonable actions to keep their employees working–without prejudicial assumptions.
Conclusion
Fairness and justice require effort and time, but they yield results beyond individual cases. They foster trust in our systems and encourage cooperation, benefiting everyone involved. Trust in people within the systems is essential, rather than perpetuating the false belief that no one can be trusted. Most of us want to do and be well, but when our systems seem contrary to their stated purposes, our faith in everyone wavers, perpetuating unnecessary fears.
Let us strive for a more equitable system where judges:
- Maintain true impartiality
- Encourage collaboration and
- Facilitate trust in others