New York comp claims, even the simplest ones, can take a shocking amount of time to work their way through the claims process. No one is more shocked, and too often financially ravaged, by the unexpected glacially slow flow than the injured workers and their families. But what accounts for this?
The law used to have an obscure section that required a decision to be formally made by the Board no later than 30 days after it received notice of a claim. If the Board backlog exceeded 30 days, the commissioners could be required to work extra hours, six days a week, until the backlog was eliminated. That section mysteriously disappeared sometime in the late 90’s.
Abuse of the System
One abuse, nearly universal with copying services, can serve to show how clear provisions of law can be ignored with resulting disasters to workers and the employers, and why such abuses result in inexplicable delays.
Comp claims exist on medical records. Without the records proceedings and decisions are meaningless. Therefore, the NY Board sees hundreds of thousands of requests for medical records each year. But before a custodian of records will comply it must receive the copy fee. The Public Health Law provides for a payment of 75 cents per page.
However, copying services, which are NOT legally the owners of such medical records and act only on behalf of the custodian, regularly charge three times that, also adding arbitrary miscellaneous charges. If the request for records is made by subpoena, these charges are entirely in violation of the law.
This abuse alone can add months to the life of a claim. But what is the redress? There are two: first, a motion in Supreme Court for contempt can be made, second, the Board has the power and the obligation to notify and refer to the Attorney General patterns of widespread abuses for widespread investigation and enforcement procedures. The Board, unfortunately, only suggests that the maker of the subpoena enforce one violation at a time in Supreme Court. The costs per contempt proceeding are far more than simply paying the extortionate charges. The elevated costs, eventually, become part of the employers’ premiums.
This is an isolated example of work comp abuse, which has been allowed to grow into a lucrative industry. But the abuse also adds to delay of benefits and increases the number of hearings per claim.
Abuses In The Court System
The point is that abuses of the system are many and that each type of abuse, each in its own way, adds to delay. Judges for decades have resorted to the expedient of making no decision, especially where wrongdoing might be involved, and simply granted “adjournments” hoping that the parties will just pay the charges and move on.
Other types of abuse have resulted in eyebrow raising consternation. A key stroke error by a Board typist placed the wrong carrier on notice. The error could have been corrected with a simple phone call by the judge or any party. Instead, two law firms “tried” the case, from start to finish, for NINE years. (If this seems unbelievable, see “Manticoff v American Building Maintenance”, 63 AD3d 1308 (2009))
Another abuse, which can serve as an example for tens of thousands of others, was a claim in which a worker was granted 11 “final” opportunities to appear. This went on for years. Neither the lawyer nor the judge knew where the claimant was, and what, if anything, he might be doing.
Stay Informed And Active On Your Claims To Avoid Problems
An employer would be wise to stay involved with its claims. An occasional attendance at a hearing, especially if delays are developing, can work wonders. Not to mention a polite letter and phone call.
Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers’ compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. [email protected]
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