Breaking The Mold Of The Assembly Line Workers’ Compensation Firm By Building Client-Based Defense Partnerships

Back to the Future: The Return of WCL 25(2-b): Fact-Finding without Judges and Legal Reasoning without Lawyers

by | Jan 18, 2017 | NYS Workers Compensation |

The Board’s now-longstanding process re-engineering has hit on some very good ideas (Desk 32s for example) and some duds (Binding Arbitration). That being said, at their own admission, the Board has been seeking out cases where hearings are unnecessary and trying, with as much success as failure in this author’s experience, to resolve cases using Proposed Decisions and administrative “orders” as much as possible. The number of EC-81.7s — so-called “scheduling orders” — for litigation on permanency (usually SLUs) has noticeably increased; as has the Board’s use of PD-NSLs to resolve medical objections, even sometimes in cases where the issue is more complex than simply MTG compliance.
When used properly, these tools can cut back on unnecessary hearings and reduce the cost of workers’ compensation claims for both parties and the WCB.
The increased activity in PD-NSLs has also resurrected an old problem: when a medical provider tries to intervene in the legal proceedings before the Board.
Because the Board has selected medical issues as one topic for increased use of Proposed Decisions, and because medical providers are copied on those decisions, the provider, having a copy of the decision in hand, and sometimes reading it through, thinks he or she can lodge an objection. Any why shouldn’t they? The language of the decision seems clear:

In fact, the last page of these decisions contain a handy blank where the objecting party can write in their objection and return it to the Board:

However, this text is not meant for the medical provider, it is meant for the claimant or the carrier/SIE, and it seems clear that the provider, no matter how much actual interest he or she has in the decision, has no standing to object to it.

WCL Section 25(2-b)(f) permits “any party” to object to a conciliation (proposed) decision provided the format and timeliness criteria are met. However, the Board has clearly stated, on more than one occasion, that a medical provider is neither a party, nor a “party in interest” (a WC term of art for these purposes). Indeed, the Board calls the case law “well settled” that a medical provider is not a party pursuant to WCL Sec. 23 and thus cannot appeal, or rebut an appeal, from a WCLJ’s decision. Matter of Bausch & Lomb, 2000 NY Wrk Comp 79613525. The Board has held that a medical provider is not a “party” for the purpose of WCL Sec. 114-a(3) and thus cannot be penalized for presenting a frivolous argument to the Board through a variance or authorization request. , 2016 NY Wrk. Comp. 1500020. In fact, the Board has gone so far as to say that a medical provider, even when his or her own treatment is at issue, need not be served a copy of an appeal relating to that treatment. Metropolitan Hospital, 2014 NY Wrk. Comp. 0428844. If you are not subject to the jurisdiction of the Board for the purpose of a penalty for a frivolous objection, and if for all other enumerated purposes you are not a “party” or a “party in interest,” then you cannot lodge an objection to a Proposed Decision.