Substantial Fairness or why you need a Lawyer for dispute resolution
When difficult situations occur because employers or their insurance companies refuse or fail to provide benefits to injured workers the courts in this case the Workers’ Compensation Law (WCL) and the Workers’ Compensation Board (WCB) is the law and the place where and how these conflicts are resolved. The Compensation Board was devised as place and the WC Law was the procedure to assist in resolution of disputes., aka as a remedy in legalese. What has recently occurred is the blanket use of penalties created and now applied in a manner to effectively prevent injured workers aka claimants and their attorneys from use of the court house, ( the WCB) without an undue burden placed upon the claimants’ counsel to literally resolve all issues or prove that you have exhausted all attempts with documentation or attempts made before you can gain access to the WCB. The WCB has begun by regulation and practice the institution of penalties masquerading under the alleged authority of section 114 a 3 to permit judges to arbitrarily and uniformly penalize attorneys who request hearings when neither the WCB nor the carriers have properly performed their required responses. In olden days the remedy to correct this short coming was called a mandamus proceeding.
Now attorneys file a form called a rfa-1 which is a form requesting action by the WCB. This forms implementation, now carriers penalties, if the form is used without extensive documentation to substantiate the needed request. Penalties much like official contempt proceedings, now exist by Administrative fiat or interpretation.
The WCL was created to provide a quick and easy method to relieve and resolve access to conflict resolution prevalent in the early 1900’s and highlighted by the “Triangle Shirt Factory Fire.”
With the WCB’s present interpretation of WCL section 114 a 3 it misconstrues the only court case that has interpreted the section. (See In the matter of Evelyn Toledo 112 AD3rd 1209, Dec. 19, 2013 NYS, Appellate Div. 3rd. dept.) That case, involved over reaching by an attorney who either was self-interested in his fee or was trying to forum shop (searching for a different venue). As a result, the WCB is itself misapplying the precedent to close the court house doors to all claimants and their attorneys under the threat of personal penalties for requesting hearings on claimant issues. The WCB’s actions belie either a fundamental failure of the WCB to carry out its mission or worse, presumes claimants and their attorneys have some other nefarious intent.
We are now left with a child hood game “Mother may I” and the response “No.”