Denis Hughes, President	Ed Donnelly, Director
April 21, 2008	Issue Thirteen

President's MessageDECISION REVERSED

A disturbing trend was noted over the last dozen years. In agencies of state government, hearing officers’ findings of fact were reversed by politically appointed board members in agencies dealing with workers’ rights.  One board appointee was so notorious for such activity that he was promoted to head another board where the same activity soon manifested itself.

It was often rumored that the Workers’ Compensation Board was involved in such practices. Now the rumors are confirmed by an appellate court decision which states “Significantly, the Board adopted this finding and concluded that such factors combined with claimants’ medical limitations ‘render(ed) her unable to return to any type of employment.’ (emphasis added). Nevertheless, it concluded that claimant did not sustain a total industrial disability. Inasmuch as the Board’s conclusion is inconsistent with its own factual findings, as well as the uncontradicted opinion of the vocational rehabilitation expert, its decision is not supported by substantial evidence and cannot be upheld.” Decision reversed.
    
What the above decision indicates is that an insurance company contested a Workers’ Compensation determination that an injured worker had suffered a total industrial disability, based on evidence submitted by the treating physician, the uncontested opinion of the vocational rehabilitation expert, “the evidence relating to the claimant’s educational background training, skills, and age. This, coupled with the claimants lack of English language proficiency, advancing age, limited education, and training, impaired manual dexterity, reduced physical stamina and limited attention span caused her to be unemployable.”
    
This Federation had recommended training workers’ compensation judges with respect to determining total industrial disability.  Apparently, training of judges is not the issue. Further, no amount of training can curb incompetence (at best) or misfeasance (at worst) on the part of unqualified appointed board members following direction to throw cases that are likely to cost connected insurance carriers money.
    
Judge Malone, an outstanding jurist and former federal prosecutor sized this case up for what it is, and ordered the Board decision reversed and remitted “for further proceedings not inconsistent with” the appellate courts decision. Judges Cardona PJ., Mecure, Spain and Stein, JJ., concurred.
    
It is hoped that the special place enjoyed by the insurance carriers at the Workers’ Compensation table will be ended, and a new day brings justice and fair treatment to the industrially disabled at the Workers’ Compensation Board. The alternative is to eliminate the Workers’ Comp Board entirely and go directly to court.            

Call to Action
No Labor Lobbyists Meeting on
April 21, 2008 or April 28, 2008

Issue of the WeekThe New York State AFL-CIO opposes the following:
A. 2528 Morelle, et al/S. 4317 Volker
    
The object of the bill in question is to limit the absolute liability of contractors in scaffolding related workplace deaths and injuries. This bill curtails the injured claimant’s remedy by shifting responsibility away from the contractors, exactly  the opposite of the underlying statutes’ intent.
    
Experience has shown that the liability of unsafe contractors is generally found in injuries to non-union, unskilled workers, many of whom are minority or immigrant day laborers, inexperienced, unsupervised, without safety training.
    
The inability of contractors to obtain cheap insurance should not be remedied at the expense of the dead, their widows or orphans or the maimed and injured. Contractors general liability insurance is available. The safety record and claims experience is a pricing factor, not a reason to gut worker protection legislation.
    
Therefore, it is urged that this cruel, discriminatory bill be laid aside.

Keep An Eye OnThursday, April 24, 2008
Joint Assembly Public Hearing on The Effectiveness of Regulation of Construction and Development in NYC and the Enforcement of the Building Code and the Zoning Resolution: A Second Hearing, 250 Broadway, Assembly Hearing Room 1923, 19th Floor NYC, 10:00 a.m.  Contact Ali Vanderhoef 518-455-4363.

Friday, May 2, 2008
Assembly Public Hearing on Child Day Care Closings in New York City, Assembly Hearing Room, 250 Broadway Room 19th Floor, Room 1923, 10:00 a.m. Contact: Naomi Golden 518-455-4371. (This hearing was postponed from April 11, 2008)