The Torts Insurance and Compensation Law Journal is accepting submissions for the next Journal. We are targeting a publication date of January of 2011. If you are interested in having an article published, please submit it by October 15, 2010 in a Word format to David Glazer at dglazer@shaferglazer.com
It may be in the Third Department, judging by its recent 3-2 decision in McGrath v. Shenendehowa Central School District. Justice Peters, writing for the majority, reversed a Saratoga County Supreme Court decision that had awarded summary judgment to the District in an action arising out of a fall during a women’s lacrosse game.
Plaintiff, a high school member of the varsity lacrosse team, was injured during a game when she felt her foot slide into the ground and “catch,” causing her body to pivot and severely damaging her knee. She brought an action against the district, alleging that they negligently failed to properly maintain the field, and additionally created a dangerous condition by using a sandy or soft material to fill ruts. Supreme Court found that the condition was open and obvious, and that plaintiff had assumed the risk of being injured as a matter of law.
On appeal, the majority, citing caselaw for the proposition that participants in sport will not be deemed to have assumed concealed or unreasonably increased risks, determined that questions of fact existed regarding whether the assumption of risk doctrine applied. In support of this position the court noted that several months prior to the injury the field had been damaged when a student had done “donuts” with a motor vehicle, and that the district had taken measures to repair the damage. Despite the plaintiff’s admission that she had observed some ruts and bare patches, she did not allege that her injury was caused by those conditions; rather that her foot became caught in a deep rut that had been concealed by sandy soil. As a result, the court found, a question of fact existed as to whether the defendants’ actions, in filling the ruts with a loose material, created a condition that was not as safe as it appeared to be, which would bear upon the applicability of the assumption of risk doctrine.
The two Justice dissent would have affirmed, based upon the plaintiff’s prior sworn testimony that during the warm-up she observed areas without grass, tire marks and ruts, and recalled believing that the field was “really bad,” and that someone would be hurt. In the opinion of the dissent, a reversal in the face of this knowledge by the plaintiff essentially nullifies the assumption of risk doctrine, by permitting a suit when the plaintiff admits to being aware of an open and obvious condition, but is unable to foresee the exact manner of the injury.
Stay tuned…
Scott M. Peterson is a personal injury and civil litigation partner with the Albany-based law firm Tully Rinckey PLLC, where he handles cases involving these issues. He can be reached at 518-218-7100 or speterson@tullylegal.com.
TICL is co-sponsoring the Essex County Summer Outing next Friday August 20, 2010.
To All 3rd and 4th District TICL Members,We are pleased to announce the Section's co-sponsorship of the ECBA Summer Outing in Lake Placid on Friday, August 20. This has been a popular gathering over the past 10 plus years, and is well attended by many Judges and attorneys from throughout the North Country. If you’re available, this is an event you should add to your calendar, and get a productive head start on the weekend.
Your participation can be for all or part of the day. As explained on the information, the day starts with an interesting CLE program on Digital Evidence in the morning at the Lake Placid Resort. There is then lunch at the Resort, and golf on the Mountain Course at the Lake Placid Club. Capping the day will be a cocktail reception after golf on the deck at Lisa G’s, overlooking Mill Pond and the fountain, just down the hill from the Lake Placid Club. This is the third year that TICL has hosted the reception. Please click on this link for more information www.nysba.org/2010Program/Golf.
We hope you will consider attending and look forward to seeing you there.
Claudia Ryan
Edward Flink
Fourth District Representatives
The TICL Section will hold its Fall Meeting from October 7-10, 2010 at the Yacht and Beach Club Resort at Disney World in Lake Buena Vista, Florida. Up to 6.5 hours of CLE Credits will be available.
The program details are here.
Registration Form is here.
Accommodations Form is here.
In addition to the CLE events are planned for the entire family. We hope to see you in Florida for the annual TICL Fall Meeting.
The long awaited response to questions submitted to the Workers' Compensation Board in connection with the webinar that it ran on May 7, 2010 has finally been posted on the Workers' Compensation Board’s website.
In posting the answers to the questions the Workers' Compensation Board has continued to proceed with its MAP Program although they now say that MAP is just an internal business process improvement initiative. Although the Workers' Compensation Board is not publically calling its changes the MAP Program, all of the initiatives that the Workers' Compensation Board will shortly implement are part and parcel of its earlier pronouncements on the issue.
The Workers' Compensation Board had previously put the MAP Program on hold to seek further input from those parties that appear before it on a regular basis. The Workers' Compensation Board has taken the input from the parties but apparently they are going ahead with their changes to the system despite the concerns expressed by the parties that appear before the agency and the criticism of the MAP Program from the Senate Labor Committee.
The Workers' Compensation Board’s Question and Answers on the MAP Program are available here.
One of the keys provisions in the 2007 workers' compensation reform bill was the requirement that the private carriers make a deposit into the Aggregate Trust Fund in all cases where a claimant was classified as having a permanent partial disability, if the classification took place on or after July 1, 2007. The only exceptions were in those cases in which the private workers' compensation carrier had filed for relief under §15(8) of the Workers' Compensation Law for reimbursement from the Special Funds Conservation Committee or had a pending third party action. The provision in Workers' Compensation Law §27(2) had no limitation as to the applicable dates of accident.
Clearly this was not an amendment that the private workers' compensation carriers in New York State liked. The provisions were challenged a lawsuit against the Workers' Compensation Board in federal court directly and within the Workers' Compensation Board and New York State court system. The federal claim was denied based upon Burford Abstention Doctrine in Liberty Mutual v. Hurlbut. In the spring of 2009 the Workers' Compensation Board issued Full Board Review decisions in nearly 100 cases in which they upheld the provisions of the 2007 reform bill requiring the Aggregate Trust Fund deposits.
On the third anniversary of the requirement to make the Aggregate Trust Fund deposits in two separate decisions involving six cases the Appellate Division – Third Department unanimously affirmed the Workers' Compensation Board and found no basis to strike down the Aggregate Trust Fund deposit provision of the Workers' Compensation Law.
The more important of the two decisions is the Collins v. Dukes Plumbing and Sewer Service, Inc., 2010 NY Slip Op 05832 (July 1, 2010). This is because in Collins the court reached the constitutional issues that were not raised by the parties in the Parkhurst v. United Rentals Aerial Equipment, Inc., 2010 NY Slip Op 05833 (July 1, 2010). Obviously both cases dealt with statutory interpretation as well. In fact the analysis of statute was basically the exact same decision in both cases right down to the typographical error as to the effective date of the capping of permanent partial disability cases. (Both decisions transposed the date from March 13, 2007 to March 31 2007 in error.)
The workers' compensation carriers raised the following issues before the court to attack the statute on its face:
1. Improperly applying the deposit requirement retroactively to cases that occurred prior to the amendment’s effective date (in other words objecting to Aggregate Trust Fund deposits on non-capped permanent partial disability cases)
2. The Aggregate Trust Fund deposits were to only apply to cases in which the permanent partial disability benefits were capped
3. It was unfair to require the private workers' compensation carriers to pay the present value of the current benefits into the Aggregate Trust Fund as the rate could vary in the future
4. The computation of the present value was arbitrary and capricious because the actuarial tables could not accurately predict the length of an uncapped award
The court dealt with the issues in such a manner as to not create any wiggle room for the workers' compensation carriers to attempt additional arguments around the Aggregate Trust Fund deposits in other cases. The court said that the first argument made by the workers' compensation carriers did not involve retroactive application of the law. The amendment to §27(2) applied to what the Workers' Compensation Board was required to do in the future. It did not in any way affect what had happened in the past.
As for the interpretation urged that the deposits only applied to capped cases the court indicated that this was not true because the express language of the section did not include any such limitation. The express language of the section did not support the workers' compensation carriers’ argument.
The plain reading of the text of Workers' Compensation Law §27(2) as amended says that it applies to “any such award” under Workers' Compensation Law §15(3)(w) made after July 1, 2007. Citing cases from both the United State Supreme Court and the New York State Court of Appeals the court stated that “any” is meant to be interpreted in a broad fashion. Section 15(3)(w) was part of the Workers' Compensation Law prior to the 2007 reform bill becoming law. The use of the word “any” was meant to include all cases in which an award was made under §15(3)(w) and not just the capped cases.
Furthermore, in enacting the amendments to §15(3)(w) and §27(2) of the Workers' Compensation Law the legislature indicated that the controlling date was to be the date of the award and not the date of accident. This was further proof to show that the deposit requirement was looking forward and not a retroactive amendment of the law.
Because the legislature was very clear in its intention to have the deposit to apply to all cases any argument that the requirement to make an Aggregate Trust Fund deposit was unfair was an argument to be made to the legislature and not the courts.
The workers' compensation carriers also tried to use the rationale of Burns v. Varriale, 9 N.Y. 3d 207 (2007) (the multiple variables that can limit, suspend, increase or decrease the rate of workers' compensation benefits) against having to make the deposit. The court said based upon the language of §27(2) that those arguments were irrelevant in this situation. The legislature has mandated that the Workers' Compensation Board make the calculations and for the workers' compensation carriers to make the deposit. Because the Workers' Compensation Board complied with the law’s requirement for a deposit the calculations are not arbitrary and capricious.
That was the end of the analysis in the Parkhurst case. As stated above in Collins the workers' compensation carriers also raised constitutional challenges to the Aggregate Trust Fund deposits. The constitutional issues raised were:
1. A taking of property in violation of the Taking Clause of the Fifth Amendment to the United States Constitution
2. A violation of the Contract Clause of the Unite States Constitution
3. Violated the equal protection rights of the workers' compensation carriers
The “Taking” argument was rejected by the court because although the monies are payable to the State of New York there was no taking of the property of the workers' compensation carriers for a public use. They reached this conclusion by weighing the cost to the workers' compensation carriers against its interference with their investment backed expectations and the character of the governmental action involved. The court believed that the workers' compensation carriers conceded that there was no increase in their liability to the injured workers. (This is disputed by the workers' compensation carriers.) The goal of the amendment to the Workers' Compensation Law was to secure “the payment of long-term benefits and creating an incentive for offering timely and reasonable settlements…” Therefore, there was no taking in violation of the Fifth Amendment.
As for the Contract Clause violation it was rejected because the workers' compensation carriers were liable for a potential discretionary Aggregate Trust Fund deposit before the amendments to the law three years ago.
The workers' compensation carriers claimed that the amendment to the Workers' Compensation Law violated their equal protection rights under the Constitution as well. In their arguments the workers' compensation carriers conceded that there need only be a rational basis for a private workers' compensation carrier to be required to make an Aggregate Trust Fund deposit while the State Insurance Fund and a self-insured employer were exempt from the requirement. The court found that the legislation was rational because its intent to protect injured workers to assure that the benefits would be paid was rational since the State Insurance Fund was backed by the State of New York and there are other mechanisms in place to protect those injured while working for a self-insured employer. Any claim for a denial of substantive due process was also rejected because the Aggregate Trust Fund could settle a case with an injured worker for less than the Aggregate Trust Fund deposit. The court indicated that in order to avoid this scenario all the workers' compensation carrier had to do was settle the case under §32 of the Workers' Compensation Law for a reasonable offer as they are required to do.
Since the decision of the Appellate Division was unanimous it is unlikely than any Justice would grant leave to appeal nor is it likely that the Court of Appeals would give leave to appeal either. However, the workers' compensation carriers will in all likelihood take the necessary steps to continue their appeals. Among other reason is that as long as they appeal they may not be liable to actually make the deposits. The difference between the Collins and Parkhurst become significant after all motions are made in the New York State Courts. The workers' compensation carriers involved in Collins can seek to continue their fight to the United States Supreme Court because they have raised federal constitutional issues. The workers' compensation carriers in Parkhurst will come to the end of the line at the Court of Appeals because as unlikely as it is that the Supreme Court could muster four votes to hear Collins, in the absence of a federal question raised in Parkhurst, they will not get even one vote.
On May 27, 2010 the New York State Bar Association issued a press release in which it indicated its ongoing opposition to the Workers' Compensation Board’s Managed Adjudication Path (MAP) Program. The Bar Association continues its opposition to the MAP Program because as President Michael Getnick of the New York State Bar Association stated “it would erode the due process rights of injured workers and employers. The rights of both injured workers and employers will be protected, and the timely resolution of disputed issues accomplished, only by affording both parties a prompt hearing before a Law Judge. The State Bar Association continues to urge the Board to remove this proposal and work toward what should be the common goal of achieving efficiency with justice.”
The press release can be read here. For more information on the efforts of the New York State Bar Association to prevent the implementation of the due process denying MAP program read here.
The State of New York is about to impose a 20% reduction in the workload of the Workers' Compensation Board. As part of Governor Patterson’s attempt to save the taxpayers money by furloughing employees including all the Law Judges and court stenographers across New York State.
This will be accomplished by canceling hearings on Fridays for the foreseeable future. Hearings to be held on May 21, 2010 and May 28, 2010 are to be canceled. Hearings for Friday June 4, 2010 and future Fridays will not be scheduled at all until further notice.
Now at first look it appears that these actions will save 20% of the cost to taxpayers of running the Workers' Compensation Board. However, this will not save the taxpayers any money at all. The Workers' Compensation Board is fully funded by assessments against insurance companies that write workers' compensation insurance in New York State and the self insured employers in New York. Therefore, there will be no savings to the taxpayers in New York State.
To its credit the Workers' Compensation Board argued to the State that it should be exempted from the furloughs being imposed throughout the Executive Branch of government. However, this argument was rejected by the State.
As a result of this action the resolution of cases and making awards of benefits to claimants and authorizing medical treatment when disputed by a workers' compensation carrier will be delayed. This can mean the difference between a good result from surgery as opposed to a poor result because of the delay in authorizing the needed to procedure. It will also put added financial pressure on injured workers because is now a 25% reduction in hearings scheduled every week, which delays the time until they are able to appear before the Workers' Compensation Board to make their claim.
Unknown is whether the workers' compensation carriers and self insured employers who fund the Workers' Compensation Board will seek a rebate on their assessments because of the 20% drop in the work being performed by the Workers' Compensation Board.
In September of 2009 it was learned that the New York State Workers' Compensation Board was starting a Business Process Improvement (BPI) initiative. From internal emails that were obtained it appeared that the Workers' Compensation Board was seeking to drastically limit the hearing process. The Workers' Compensation Board was seeking to make decisions in an informal manner without direct input from the litigants before it rather than hold hearings.
Upon learning of this situation and the negative impact it could have on clients in the workers' compensation system attorneys who represent injured workers, workers' compensation carriers and self-insured employers met through the New York State Bar Association’s (NYSBA) Tort Insurance and Compensation Law Section’s (TICL) Workers’ Compensation Division. As a result of this meeting a subcommittee set up after a 2001 review of the Workers' Compensation Board conducted by NYSBA was reconstituted and a series of meeting to discuss changes that the Workers' Compensation Board wanted to place in the system took place.
In these meetings all of which included the Chair of the Workers' Compensation Board, Robert Beloten, and various members of his staff the subcommittee was told of how the Workers' Compensation Board was looking to proceed in the future. The Workers' Compensation Board was advised that the subcommittee believed that there were serious due process issues that the Workers' Compensation Board was overlooking as it sought a make overhaul of its decision making process. The Workers' Compensation Board said it understood the concerns that were being expressed and that they would take them under advisement.
On January 14, 2010 a meeting was held in New York City with the Chair and other staff members from the Workers' Compensation Board. Also attending this meeting was the president of NYSBA Michael Getnick. At this meeting the Chair indicated that no final decision on the program had been made. Two weeks later the Chair met the members of the TICL Workers Compensation Division at the Annual Meeting of NYSBA. President Getnick attended this meeting as well. At that meeting the Chair indicated that the program was going to start as a Pilot Program in the Hauppauge District Office of the Workers' Compensation Board. Everyone was advised that the pilot program would be evaluated for any success before being expanded statewide.
After hearing this everyone in the subcommittee was shocked when the Workers' Compensation Board announced in its in-house newsletter, Across the Board, that the plan, now renamed Managed Adjudication Path (MAP) would be Workers' Compensation Board policy across the state on February 26, 2010. The subcommittee had another meeting scheduled with the Chair and his staff for February 24, 2010, just two days before MAP was to be implemented statewide.
Contact was made with the Labor Committee of the New York State Senate chaired by Sen. George Onorato. The Senator scheduled a public hearing for early on that same day. The subcommittee contacted people from around New York State to testify about their concerns about the MAP program.
The first to testify was the Chair Beloten who was assisted by the General Counsel of the Workers' Compensation Board and the Director of Operations. After their testimony about 15 people testified on their opinion on the MAP program. The people who testified from around the state were people with hundreds of years of combined experience in workers' compensation in New York State. The people who testified included three sitting Law Judges from the Workers' Compensation Board as well as two of their retired colleagues. Four members of the subcommittee testified as well. They were committee chair Chris Lemire, Mark Hamberger, John Sciortino and William Crossett. These attorneys who represent both sides of the table and were unanimous in their opinions that the MAP program was bad for injured workers, workers' compensation carriers and employers in New York State.
Opposition to MAP was also expressed by organized labor and business interests in New York State. The biggest support for the hearing process came from a person with unique knowledge of both sides of the table. The head of workers' compensation for a major employer in New York State expressed his support for the hearing process. As an injured worker he liked it because he got his day in court. As an employer he was able to see what was happening to the people injured when they were working for his employer.
At the outset of the hearing Senator Onorato expressed his concerns about the Workers' Compensation Board’s intended use of the MAP program. After all of the testimony the Senator again expressed his concerns over MAP and asked that the Workers' Compensation Board reconsider what it was planning to do.
After the Senate hearing the subcommittee went to the Workers' Compensation Board’s offices in Albany to meet with the Chair and his staff. Because of the length of time of the Senate hearing the Chair was no longer available to meet with the subcommittee. However, the meeting took place with members of the Chair’s senior staff. Part of the discussion was about what the Workers' Compensation Board planned to do about MAP which was scheduled to be implemented in less than 36 hours by the time of the meeting. The staff at the meeting could not give an answer at that time because the Senate hearing had just ended and the Workers' Compensation Board would have to discuss the testimony and the admonitions from Senator Onorato. At the end of the meeting the subcommittee was told that it would be notified on February 25, 2010 what the Workers' Compensation Board planned to do.
On February 25, 2010 Senator Onorato issued a statement that urged the Chair and the Workers' Compensation Board to reconsider it plans and to meet with the Senate Committee and the stakeholders in the system if the Workers' Compensation Board believes that changes must be implemented to improve the system. The Senators full statement is available here. Later that day Chris Lemire received a communication from the Workers' Compensation Board’s General Counsel Kenneth Munnelly on behalf of Chairman Beloten. The statement said:
Dear Chris:As promised during yesterday's meeting, here is a statement by the Chair concerning his decision to delay MAP until we can brief stakeholders on the details of our process changes. We will contact you shortly concerning the date of the briefing. If you have any questions, please feel free to contact me. Thanks.
At a hearing before the State Senate yesterday, numerous stakeholders in the workers' compensation system expressed concerns about the Board's plan to reform and streamline its concilliation [sic] process. I continue to believe strongly that the proposed changes will result in lower costs, and maintain full protections for the parties' due process rights. Nonetheless, given the scope of concern expressed by many stakeholders and by the Legislature, I think it is appropriate to delay the initiative so that there is time for more discussion and feedback. In the next several weeks, the Board will set up a forum in which the details of the Board's process changes can be set forth before interested parties in full detail, and where there can be a full and frank discussion about the concilliation [sic] process. After the briefing, I will consider all suggestions and proposals by stakeholders before a reform program is implemented.
As of now the MAP program implementation has been put on hold. The subcommittee will continue to meet with the Chair and his staff to make sure that the New York State workers' compensation system is fair to all parties involved and that their due process rights are not violated. The subcommittee and Workers' Compensation Board both want a system that allows for a fair and just outcome for all parties with an opportunity to be heard by the decision makers at the Workers' Compensation Board.
A video of the Senate hearing will be posted shortly by the Senate here.
the other members of the subcommittee are Ronald Balter, Paul Siminerio, Peter Walsh, John Snyder and Alex Dell.
This is just a reminder that the Annual Dinner of the TICL and Trial lawyer Sections of the New York State Bar Association will take place on January 27, 2010 at Cipriani Wall Street 55 Wall Street. Cocktails are at 6:00 and the Dinner begins at 7:00. Transportation will leave the Hilton on 54th Street at 5:30.
Register for the Annual Meeting and the dinner here.