The Chase Sensale Group Logo

WCB Location Closings Protested

State Bar Protesting Plans to Close 8 Hearing Points:

By Michael Whiteley, Eastern Bureau Chief

A workers' compensation subcommittee of the New York State Bar Association is calling on the State Workers' Compensation Board to cancel its plans to close eight of the board's 33 hearing locations on Friday.

In a four-page letter sent to SWCB Executive Director Jeffrey Fenster, the Bar Association's Workers' Compensation Law Division Subcommittee said the cost-cutting move will deny parties in contested cases reasonable access to a hearing before the state's workers' compensation law judges.

"While we appreciate every state agency is trying to reduce costs, the closing of these eight hearing points will create a tremendous hardship for the injured/disabled workers and their employers by requiring they travel extensive distances to attend workers' compensation hearings, resulting in increased time and travel expenses and ultimately shifting any cost savings from these closures from the board to the injured workers and employers," the subcommittee said in the letter.

The group, which includes both claimants' and defense attorneys, sent copies of the letter to Gov. Andrew Cuomo, New York Court of Appeals Chief Judge Jonathan Lippman, the chairmen of key committees in the New York Assembly and Senate, state union leaders and the Business Council of the State of New York.

The attorneys said in the letter that the State Bar Association was never consulted about the closings, which SWCB included in budget negotiations with the New York Legislature last spring.

"It appears the decision to close these eight hearing points was a unilateral decision by the board without any input from the very people who will be most affected by these changes," the subcommittee said in the letter.

The State Workers' Compensation Board said early last month that it has been reviewing the demand on its hearing locations – known as customer service centers – since 2008. The board said it will close the hearing locations in Lockport, Riverhead, Canton, Geneva, Oneonta, Monticello, Glens Falls and Hornell, N.Y., on Friday.

The board said none of the employees at those locations will be laid off. Instead, board employees will be transferred to other locations. Judges now travel to the hearing points each week from the board's 10 district offices.

Rachel McEneny, the board's spokeswoman, said Tuesday that the closings will save $3 million over 10 years in operational costs and rent paid for hearings in privately-owned buildings. In one case, she said, the board pays rent to the New York State Office of General Services for space at a state office building in Hornell.

She said injured workers will be allowed to attend hearings by telephone when personal appearances are not required by the board's judges.

"The sites being consolidated are infrequently used locations," McEneny said.

She said the board had not received the letter by Tuesday. But she declined comment on whether the board is reconsidering plans to close the sites in response to protests from interest groups. State Senate Insurance Committee Chairman James Seward, R-Oneonta, has asked the board to reconsider its decision to close the hearing point in his hometown.

In a letter to State Workers' Compensation Board Chairman Robert Beloten on Sept. 19, Seward said closing the hearing point in Oneonta will force injured workers to drive between 80 and 100 miles to attend hearings.

"In my view, this planned closure amounts to nothing more than discrimination against our rural communities," Seward said in the letter.

Jeffrey Bishop, Seward's communications director, said Monday the Oneonta closure is still under discussion between Seward and the board.

The Bar Association subcommittee said the closings will adversely affect "a huge swath" of New York state's rural population.

The subcommittee argues that the closures conflict with a 2009 State Workers' Compensation Board ruling that it is unreasonable to require injured workers to travel more than 50 miles for independent medical examinations.

The group said closure of the Glens Falls hearing point will require injured workers and employers in Lake Georgia, N.Y., to travel more than 50 miles to attend hearings in Albany, N.Y.

The attorneys also say allowing workers to participate in hearings by telephone when all other parties are present will prevent workers' compensation law judges from observing workers and assessing their credibility.

The Bar Association said workers also need to be present to sign medical releases, enter into stipulations and negotiate with employers and their attorneys.

"In short, when all of the parties are present, issues get resolved," the Bar Association subcommittee said in the letter.

William Crossett IV, a Syracuse claimant's attorney and president of the New York Injured Workers' Bar Association, said in an interview Tuesday that the closings appear to be part of a broader agenda to reduce the number of hearings in the workers' compensation system and the number of witnesses at hearings.

In all, the board scheduled 248 hearing days across New York state last year and held 256,000 hearings. By comparison, the board held 266,046 hearings in 2011. In late 2010, Beloten announced plans to reduce the number of hearings by allowing judges to issue proposed decisions – known as desk orders – in lieu of hearings.

"The path the board has gone down to encourage depositions of medical witnesses and lay witnesses in contested cases is a very dangerous path," Crossett said. "Part of the judicial process requires judges to consider the demeanor of witnesses."

Peter Walsh, an Albany defense attorney and member of the subcommittee, said the State Workers' Compensation Board appears to be "shooting from the hip" as part of Cuomo's efforts to reduce New York's state budget by "re-stacking" government operations into state-owned office buildings.

"I will guarantee you our clients are not going to pay thousands and thousands and thousands of dollars in benefits to someone we never see," Walsh said of workers' participation by telephone.

Attorneys also argue that judges currently hold hearings five days a week at the Lockport hearing location. The board sometimes assigns two judges to the location.

McEneny said the board held 4,004 hearings in 158 days in Lockport last year – about 1.5% of the hearings held statewide. She said the board paid $29,159.28 last year to rent space in a private office building in Lockport.

She said half of the hearing locations slated for closing this week were closed more frequently than they were open in 2012.

She said workers' compensation regulators in California, Connecticut, Maryland, Oregon and Wisconsin allow hearings by telephone, and workers have been allowed to participate in New York hearings by telephone for the past five years.

"Claimants have not and will not be negatively impacted by these consolidations. For years, workers have been utilizing the more convenient telephonic appearances which have been used in over 18,000 hearings last year alone," McEneny said. "Most states handle the majority of disputes in this way rather than through in-person hearings."

She said reducing the costs of running the State Workers' Compensation Board will help reduce the financial burden on New York employers.

"Employers actually do pay costs via assessments, so spending less as an agency actually cuts employer costs," McEneny said.

The State Bar Association letter is here.

Back to news >>>