At the NY Workers' Compensation Board meeting last Tuesday, July 15th, Board Chairman Zachary Weiss proposed the adoption of the unworkable and ill-conceived so called "Rocket Docket " regulations.  Below is the NY Workers' Compensation Alliance's position paper on the version of the regulations that were initially shared with us.  Click here for a PDF version. We will be issuing a revised critique of the final version shortly. Click here for the final version of the Rocket Docket regulations.

            THE “ROCKET DOCKET” PROPOSALS ARE UNWORKABLE AND UNNECESSARY

Prepared By: JOHN SCIORTINO, ESQ.

June 24, 2008    

                                                  INTRODUCTION

            In his letter to the then-Chair of the Workers’ Compensation Board dated June 1, 2007, Superintendent Dinallo acknowledged that the Workers’ Compensation system was, as a matter of necessity, intended to expedite the provision of wage replacement and medical care to injured workers. It was recognized that delays in receiving indemnity payments cause economic hardship, and delays in providing medical benefits affects the workers’ long-term medical prospects and the ability to return to work. Because the Workers’ Compensation Board was failing to accomplish this mission, the “Rocket Docket” Task Force was formed to propose regulatory change designed to reduce C-7 litigation inefficiencies and delays, thereby speeding the resolution of claim establishment defenses (benefitting claimants), while reducing claim defense costs (benefitting employers). 

            Rather than reducing friction opportunity and thereby shortening the process of resolving claim establishment controversies, the proposed regulatory scheme, in fact, encourages needless practices which will slow the resolution process and trample the rights and interests of injured workers. This unintended result is accomplished by proposed regulations which are either: (1) illegal in that they conflict with the unambiguous requirements of standing statutes; (2) ill-conceived in that they will likely encourage/increase litigation; and/or (3) unfair and/or overly burdensome in their application. 

            One must also justifiably question the efficacy of enacting such controversial regulations when the Workers’ Compensation Board has itself recently admitted that a striking 88% of controverted claims had been resolved within the 90-day target window since January of this year, simply by virtue of a more stringent enforcement of existing laws and regulations.

            The following constitutes an analysis of some of the more glaring deficiencies.

I.

            Proposed Rule 300.37(b) allows for the indexing of a claim only upon the convergence of the following filings: (1) a “completed” enhanced C-2 or enhanced C-3 form; (2) a “completed” enhanced C-4 form; and, (3) a “completed” duly-executed “limited” authorization enabling the carrier to obtain “relevant” medical records.  

            Setting aside that this proposed rule is ill-conceived because:

1.                  It fails to exclude death or other unwitnessed or unexplained accident cases, where current caselaw--relying on the §21 presumption--excuses the need for the filing of prima facie medical evidence;

2.                  It fails to require indexing upon the filing of C-669;

3.                  It discourages the prompt filing of a C-669 while the carrier waits to see whether all of the new filing requirements imposed on claimant are accomplished;

4.                  It suggests that either an enhanced C-2 or C-3 form will be required, when in practice every claim to be indexed will require the filing of a C-3--not just a C-2--because the required medical record authorization has been made a part of new C-3 form;

5.                  It fails to define what “relevant” medical records constitute, thereby inviting a new line of claim-delaying practices while the parties argue the matter;

6.                  It does not provide that the limited medical authorization is the exclusive authorization obtainable by a carrier, thereby inviting carriers to directly request from claimants blanket, unlimited and abusive medical record authorizations, this new rule is in contradiction of statutory mandates rendering the rule unenforceable and subject to CPLR Article 78 attack.

            More specifically, newly amended WCL §25(2-a)(a) (applicable only claims occurring on or after 03/13/07) provides “(i)n any controverted case” upon receipt of the carrier’s C-7, a pre-hearing conference shall be scheduled as soon as practicable, but not to exceed 45 days after the receipt by the Board of the C-7 and “a medical report referencing an injury” (emphasis added).

            Simultaneously, WCL §25(2)(a) provides, in a claim where the employer decides to controvert claimant’s right to compensation, the employer shall: on or before the 18th day after disability; or, within 10 days after it has knowledge of the alleged accident, whichever is greater, file a C-7 notice of controversy providing, among other things, “the reason why compensation is not being paid”. 

            The combined effect of newly amended 25(2-a)(a) and 25(2)(a) is to guarantee to the injured worker a pre-hearing conference within 45-days after the statutorily mandated filing of a C-7 and a “medical report referencing an injury”.  At no instance do these statutes require filing of a C-3 or medical release form in order for the pre-hearing conference to be scheduled. As such, because the scheduling of a pre-hearing conference necessitates that the claim first be indexed, any delay on the part of the Board to index while it awaits the filing of the new C-3 and medical record release forms as is required by the new board rule will infringe on the injured workers’ statutorily mandated right to a speedy pre-hearing conference.

            It is beyond cavil that the Workers’ Compensation Board has no authority to adopt a rule which is out of harmony with a statute. Zalenski vs. Crucible Steel 91 A.D.2d 807 (3rd Dept. 1982); Mit vs. T.S. & M. Catering Corp., 285 A.D. 506 (3rd Dept. 1955). 

            For example, the Workers’ Compensation Board was recently rebuked by the New York State Supreme Court for pursuing a policy that deemed appeals from a finding of prima