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Joe Sensale Comments on WCB Proposed Rule Change

Joe Sensale Comments on WCB Proposed Rule Change

A proposal by the New York Workers' Compensation Board to let law students and legal interns represent injured workers has met with the full fury of claimants' attorneys, who believe it is an unfair and unrealistic proposal.

"It creates an unlevel playing field. You're talking about having a fresh intern versus an insurance attorney with years of experience," said Joe Sensale, a Garden City claimants' attorney and treasurer of the New York Workers' Compensation Alliance, a coalition of about 150 law firms.

"Instead of expanding or encouraging representation by capable and qualified practitioners, the board has instead chosen to discourage such representation," the alliance wrote in a 10-page objection to the proposal.

The crux of the issue seems to be that board rules do not allow attorney fees in medical-only claims cases, in which no indemnity benefits are due the worker. Although some claimants' attorneys work in medical-only cases, the board has said more than 240 claimants each year go without a lawyer.

"The board believes that such amendments are necessary to decrease the total number of unrepresented claimants appearing in board proceedings, particularly where no indemnity benefits are sought and the only issue is entitlement to medical treatment," explains a regulatory analysis that accompanies the proposed changes to 12 NYCRR 302.1.6.

The alliance took issue with those numbers and said that data from the board, produced after a recent open-records request, shows that the number of unrepresented, medical-only claimants statewide is actually more than 200,000, and increased by 26% from 2014 to 2016. 

Instead of hiring law students, who would not be paid under the proposed rule, the board should consider something that the state Return to Work Advisory Council pitched a decade ago, the claimants' alliance said: Set up a fee schedule and have the attorney fees paid by the insurance carrier, the self-insured employer or the State Insurance Fund.

Other states have adopted similar approaches, Sensale said.

Members of the Workers' Compensation Board did not return phone calls and emails Thursday, and a spokeswoman declined to comment while public comments on the rule are still being accepted. But the rule and its regulatory impact statement explain that the board already allows third-year law students and legal interns who are designated by a legal aid society to be able to represent a party in compensation claims.

The proposed rule would greatly expand that pool of aspiring lawyers, and would allow the hiring of law students and interns who have no association with a legal aid group. It also would allow lawyers from out of state to represent parties before the board.

The out-of-state attorneys would have to be from a state that allows reciprocal privileges for New York attorneys. The law students would have to be approved by the appellate division of the state Supreme Court, as well as the board, and the claimant must give written permission.

That's not enough to ensure that injured workers are adequately represented, said Sensale and Robert Grey, a Long Island claimants' attorney and chairman of the alliance.

"Attorneys must become familiar with the statute, over a century of case law, the board’s regulations, reports of board panel decisions, the board’s subject numbers, numerous forms and medical texts — not to mention developing trial and negotiation skills," the alliance's comments said.

A fiscal impact statement accompanying the rules suggests that law students tapped for the roles would gain valuable legal experience. But it also notes that claimants' attorneys could be hurt.

"One potential adverse impact would be on legal representatives or attorneys who would normally have represented the party if not for the legal intern," the statement reads.

The alliance also argued that hiring law students, even for no fee, is not authorized by statute and creates a conflict of interest for the board. The students may feel beholding to the board, when they should be representing the sole interests of the injured worker.

"That's a problem," Sensale said. "Whose agenda do they follow?"

The idea also raises liability and legal malpractice questions, the alliance said.

The Workers' Compensation Alliance has butted heads with the board on many issues and proposed rules in recent years, including attorney fees. On this issue, the problem is not that workers are unable to pay attorneys, as the rule amendment suggest, the alliance said.

Workers are often unable to find lawyers in medical-only cases "not because of their inability to pay an attorney, but instead because the board will not permit an attorney to be paid," the alliance's comments read. "In short, the impediment to representation is not indigence, it is the board’s administrative action or inaction."

Medical-only claims make up about 62% of total claims but represent less than 3% of total losses, according to the New York Compensation Insurance Rating Board's 2017 State of the System Report.

"Unlike most states, indemnity losses in New York state represent a larger share of total losses than medical losses," the report states.

The report does not say why that is. Claimants' attorneys have argued that without adequate legal representation in medical-only cases, total indemnity benefit costs in the system could be higher. Without a good lawyer, a medical-only claimant may not realize that he or she may be entitled to indemnity benefits, the alliance wrote.

The public comment period on the proposed rule is open until July 23, and comments and questions can be emailed to regulations@wcb.ny.gov.

 

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