I recently attended a workers compensation hearing on behalf of an employer-client. In this case, the claimant is pro se, or unrepresented by counsel. He has chosen to proceed without an attorney, presumably because his claim has been accepted without any challenge. He is effectively acting as his own attorney, which means that under the Rules of Professional Responsibility there are no restrictions on my communications with him—beyond of course the expected duty to be honest and fair. Nevertheless, when I asked the Judge if he would like me to find the claimant in the waiting area and tell him we were ready to proceed, the Judge said “it doesn’t look right” for the “carrier attorney” to speak to the claimant. He also called the employer’s choice to use a new third-party administrator (“TPA”) after nearly 10 years a “shell game.” He was seemingly disinterested in knowing that the employer has changed its TPA to secure better administration of its employee’s claims, which actually assists the claimants or injured workers, too.
I have a lot of respect for this particular Judge. He is generally very fair and professional. However, this clear bias against all carrier attorneys and employers hints of larger underlying issues—something I have written about before and continue to seek resolution of.
First, Rule 300.9 of the WC Regulations requires Judges to conduct all hearings “in an orderly manner in order to ascertain the substantial rights of the parties.” The rule does not limit the conduct to rights of the claimant. It implies referees, or Judges, should be impartial, and it is not at all impartial (or logical) to suggest that amicable and professional relationships between adverse parties are prohibited. Perhaps this is why the system is so inefficient. If anything, it seems that Judges should encourage such relationships. When parties can separate their emotions from facts and relate as partners in resolution, they can reach agreement more quickly. This will allow other cases to be heard earlier, and it has potential to create a positive “domino effect.” Conversely, when we classify all parties in particular classes as evil, unethical or untrustworthy, we further falsehoods that impede resolution.
Second, there are provisions of the New York State (“NYS”) Workers’ Compensation Law (“WCL”), Rules and Regulations that contradict the fairness requirement. Specifically, Section 300.8 provides that only the claimant, his or her representative and the insurance carrier are entitled to Notices of Hearing. Unlike in any other forum, the named employer and the attorneys for the respondent employers are not placed on notice. Employers and their attorneys are not considered “parties of interest” presumably due to the manner in which many attorneys defending WC claims function. The Board considers all defense attorneys before it “carrier attorneys” and refuses to even send low-cost electronic notices to them. So, employers and their attorneys have to rely upon the insurance carriers to forward notices to the proper parties, even when the listed carrier is incorrect. The Board’s attitude is that the respondents have the burden of ensuring all claims are administered accurately, regardless of whether the respondents know about the claims. This attitude naturally trickles down to the Judges and makes it difficult for them to maintain their impartiality, even when they try.
Third, Rule 1.1 of the Rules of Professional Conduct requires attorneys (and most Judges, since they are usually attorneys who simply serve in a different capacity) to maintain competence in the matters they undertake. It seems that the Board could assist the Judges in this manner also. Rather than label every change in organizational structure a shell game, Judges and everyone in the WC system would benefit greatly from understanding how business formation, growth, mergers, acquisitions, and dissolutions work. Especially where claims can remain open for decades, Judges should expect some changes in business operations. Employers should not be punished for moving to new TPAs when they believe neither they nor their injured workers are receiving the attention they deserve. TPAs should not be disrespected because they merged or purchased the assets of competitors that would otherwise close and cause chaos in the transition. Instead, we should all get a little more information and act accordingly—much like we do when investigating and administering the claims of the injured workers. To do otherwise sends the message that shortcuts are preferred and thinking is discouraged, even if thorough investigation and analysis are the only ways to get anywhere close to justice.
In short, it seems that we need our administrative governmental agencies to do what they claim businesses should do: stop focusing solely on themselves, the numbers and their bottom lines. Fairness and justice take time and effort, but they produce results beyond the individual cases in which they are delivered. They facilitate trust in our systems and encourage cooperation, which protect us all in the ways they should. They also facilitate trust in the people within the systems—and in people generally—rather than promoting the false belief that no one can be trusted. Most of us want to do well and be well, but when the systems seem to work contrary to the purposes stated, we lose faith in everyone and perpetuate unnecessary fears.
What can you do today to facilitate trust in others?
a) Be trustworthy.
b) Resolve issues that cloud your judgment.
c) Look for commonalities, rather than differences.
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Nance L. Schick, Esq. is a New York City attorney and mediator who focuses on keeping people out of court and building their conflict resolution skills, especially in business and employment disputes. Her holistic, integrative approach to conflict resolution draws from her experience as a human resources supervisor and minor league sports agent. She is a 2001 graduate of the State University of New York Buffalo Law School trained in Alternative Dispute Resolution (ADR) by the Equal Employment Opportunity Commission (EEOC). She is also creator of the Third Ear Conflict Resolution process.