Substantial Fairness or Why you need a lawyer

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 these conflicts are resolved.

The Compensation Board was devised as the place and the WC Law was the procedure to assist in the 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 courthouse 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 Workers’ Compensation Board. The Workers Compensation Board has begun to regulate 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 Workers’ Compensation Board nor the carriers have properly performed their required responses.

In the olden days, the remedy to correct this shortcoming 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 procedure now carries 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 Workers’ Compensation Law 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 Workers’ Compensation Board’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 overreaching 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 Workers’ Compensation Board is itself misapplying the precedent to close courthouse 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 childhood game “Mother may I” and the response “No.”

Work with an experienced workers’ compensation attorney at Eliot Levine & Associates today. Contact us today.

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