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 SWCB to Revise Review Policy in the Wake of Court Ruling:


The New York State Workers' Compensation Board will require three-member panels of the board to consider all requests filed by parties for case reviews by the full 13-member board, after a state appeals court decided last week the board violated state law by letting its chairman deny a full-board review without consulting other board members.

The 3rd Judicial Department of the Appellate Division of the New York Supreme Court ruled on Thursday that the board violated Sections 23 and 142 of the New York State Workers' Compensation Law by allowing one commissioner – Chairman Robert Beloten – to deny full-board review of a ruling awarding benefits to Andrew Scalo, a construction worker who suffered a back injury in July 2010.

The New York State Insurance Fund and C.D. Perry & Sons, Scalo's employer, contended Scalo's injury was not the result of a work-related accident and asked a workers' compensation law judge to apportion the award. A workers' compensation judge denied the request, and a three-member panel of the board upheld that ruling.

On Sept. 17, 2012, Beloten denied a request by the construction company and the state-run insurer to have the case reviewed by all 13 members of the state Workers' Compensation Board. He ruled there was no dispute about the facts in the case.

Both the State Insurance Fund and C.D. Perry & Sons, based in Troy, N.Y., argued in an appeal filed with the 3rd Appellate Division that all requests for full-board reviews be submitted to a second, three-judge panel and that Beloten should not have acted alone.

"The record before us provides no indication that the application for reconsideration and/or full board review was considered by a three-member panel," Judge John Lahtinen said in the appeals court ruling.

The court remanded the case to the State Workers' Compensation Board for further action.

Claimants' and defense attorneys said Friday the board has traditionally allowed a single board member to decide whether to submit cases for full-board review unless there was a dissenting vote on the three-member panel that initially reviewed judges' decisions. In those cases, review by the full board is mandatory.

But the attorneys said they don't expect last week's ruling to trigger appeals of past rulings by the board.

Peter Walsh, an Albany defense attorney and member of a workers' compensation committee of the New York State Bar Association, said attorneys routinely file notices of appeal with the 3rd Appellate Division at the same time they request reviews by the full board.

The notices of appeal to the state court give attorneys nine months to perfect their appeals and challenge any denials of full-board reviews.

Walsh and Robert Grey, chairman of the New York Workers' Compensation Alliance, a claimants' attorneys group, said they expect to see three signatures from board members on denials for fullboard reviews going forward.

"I think this serves notice on the board they have to follow correct procedure in the future," Walsh said.

Grey said only about 1% of decisions at the board are submitted for full-board review. He said those requests are always accompanied by notices of appeals to the state court, which issues about 150 decisions a year.

"It's unlikely that this is going have any practical impact on past cases whatsoever," Grey said. "What it does mean is you're going to see the board make a format change."

Michael Joseph, Scalo's attorney, said he expects Scalo's award to be upheld if it is reviewed by the full State Workers' Compensation Board. He said Scalo has been placed on permanent partial disability and is negotiating a settlement with the New York State Insurance Fund that will be "somewhere in the six figures."

"I think this is going to have very limited impact on the benefits paid to Mr. Scalo," Joseph said. "I think all the board has to do to satisfy the court is to have its decision on full-board reviews signed off on by three board members."

Board Spokeswoman Rachel McEneny said in a statement emailed to WorkCompCentral on Friday that applications for full-board reviews are routinely screened by the board's Office of General Counsel and submitted to Beloten for a final decision.

"We respect the Appellate decision that addresses technicalities of the full board review process," McEneny said in the statement. "Moving forward, we will adopt this administrative change and comply with the court's directive."

Former Workers' Compensation Commissioner Michael Berns, author of the blog "Inside Workers Comp NY," wrote Friday the case underscores a practice of board Vice Chairwoman Fran Libous of making unilateral decisions on requests for full-board reviews without consulting other members of the board and then submitting them to Beloten for his signature.

He said former board Vice Chairman Jeff Sweet had also decided whether cases would be submitted

for full-board review without consulting other board members.

Libous is the wife of New York Senate Deputy Majority Coalition Leader Tom Libous, R-Binghamton.

Berns says board members routinely work from their homes and sign off on decisions without formal discussions or hearings.

"In effect, until this ruling, Libous has essentially had the sole discretion as to whether a full-board review should go forward or not," Berns said in an interview Friday. "Hopefully this will encourage more people to challenge the way the board operates."

McEneny said Libous was out of the office last week and unavailable for comment.

The 3rd Judicial Department ruling is here.

Berns' blog is here.

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