Law Office of Nance L. Schick

When Legislation Doesn't Work as Planned...

I just read a Summary Report of proposed bill HR 12, the “Paycheck Fairness Act.” If enacted, it would revise the Equal Pay Act sections of the Fair Labor Standards Act. Did you get all of that?

Among other facts, Congress has found the following support the revision:

1)      Women have entered the workforce in record numbers over the past 50 years.

2)      Despite the enactment of the Equal Pay Act in 1963, many women continue to earn significantly lower pay than men for equal work.

3)      The existence of such pay disparities--

a.      depresses the wages of working families who rely on the wages of all members of the family to make ends meet;

b.      undermines women’s retirement security, which is often based on earnings while in the workforce;

c.      prevents the optimum utilization of available labor resources;

d.      has been spread and perpetuated, through commerce and the channels and instrumentalities of commerce, among the workers of the several States;

e.      burdens commerce and the free flow of goods in commerce;

f.       constitutes an unfair method of competition in commerce;

g.      leads to labor disputes burdening and obstructing commerce and the free flow of goods in commerce;

h.      interferes with the orderly and fair marketing of goods in commerce; and

i.        in many instances, may deprive workers of equal protection on the basis of sex in violation of the 5th and 14th Amendments.

Although I definitely appreciate the intent of the bill and believe the findings cited are true, it made me wonder why when legislation doesn't work it has to be renamed and overcomplicated. I suspect some of this is ego. Those who propose it want to be able to claim it, and it sounds sexier to say you proposed the named act than the reforms to it. This might make sense to some small degree, but the egos causing childish behavior and stalemates in the New York Senate have me wondering if we should tolerate these ego-driven acts in those we elect to be role models, leaders and, well, better people than we are. We elect people as civil servants, not American Idols of the District of Columbia of Albany--unless you consider the performance of congressional duties equivalent to a musical performance.

There have to be better ways to organize our laws so we can understand, follow and enforce them. It shouldn't matter what we call bills, acts or statutes. What matters is that they work. And when they don't, they should be amended as quickly as reasonably possible and without concern for whose name goes on it or who gets credit for it. If we need to brand it with a name for prestige, isn't it enough to use "The United States of America?"

How Much Do Lawyers Really Get Paid? Not As Much As You Think.

I have often warned students that Admissions Counselors at law schools and other higher education institutions are salespeople. They are selling their courses, the degrees, advanced degrees, and all of the activities you will pay for through your tuition. I value my education, and I have definitely learned to make things happen with what I have available. But this recent ABA Journal Article and the comments that follow it give a clearer picture of what really happens now that educational institutions are more focused on operating as "big businesses." Students are taking huge loans for the promise of a better future that might not come anywhere near the level we believed. Some of us hope to pay off our loans by the time we retire. Those of us who went to second-tier schools because it was more affordable are often paying more in the long run.

Fortunately, there is a new Federal Student loan program that might help some of us. Yet the situation still begs more careful consideration of a student's career options:

1. Do your own research on job opportunities and salaries. Even the best Admissions and Career Counselors are biased and need to sell you on their school's programs. They will often quote the high-end salaries as representative for your field of study, but you are more likely to be on the lower end or somewhere in the middle. You need to plan for that and ask yourself if you would still enjoy doing this work for less money. (For the record, I do!)

2. Do a cost-benefit analysis. If a college degree is going to cost you $50K and help you get a $30K per year job, is it worth it? Are you already earning near this amount? Are you likely to advance in your current position and eventually surpass your target salary?

3. Consider why you work. Is it to say you are a lawyer, doctor, MBA, business owner, etc.? Or is work merely a means to the end--the paycheck? If you are a lawyer without a fancy car, is it still rewarding? If you are a doctor in a third-world country or rural county, does it bring you what you want? Are you willing to postpone marriage, children, travel, or other personal pursuits if you have to? Or would you prefer to take a lower salary and live your life now (assuming that choice has to be made)?

I will admit that I thought I would be making more money when I enrolled in law school. I was surplrised to learn how little I would have earned at the FBI in NYC, if I had continued the application process. I couldn't have paid my student loan payment--unless I had lived on the street, given up food, or othrwise made even more happen with even less. I see so many new graduates struggling as I did, both after getting my undergraduate degree and after passing the bar exam. I wonder if it's worth it for all of us, when there are decent jobs available in skilled trades, for example. Many graduates end up taking these jobs even after attaining their degrees. I am concerned that we are pumping too many people through the universities with the promise of a future reserved for the few. Again, this is why I encourage you to do your research here, too.

Buffalo-Area Man Charged with Four Felonies in WC Fraud Case

The New York State Insurance Fund ("NYSIF")'s fraud investigators discovered that a North Tonawanda man who was collecting workers' compensation insurance benefits for 15 years was employed as a carpenter or construction worker during at least a portion of the time he was collecting benefits. The man "returned signed statements to NYSIF attesting that he had not returned to any form of work." Yet he was employed and working beyond the limits of his alleged disability. He was observed "observed using a circular saw and pneumatic nail gun to secure roofing shingles on the second story roof of a newly-built home."

The Workers' Compensation Board suspended his benefits, and criminal action followed. He has been charged with "offering a false instrument for filing, insurance fraud, grand larceny and workers' compensation fraud, all felonies."

 

For the complete story, go to www.workerscompensation.com.

 

Of course, this man is innocent until proven guilty, but employers, carriers and third-party administrators can learn from the NYSIF's process in securing evidence of the fraud.

 

1. The claims representative sent the claimant a work status questionairre and ensured it was returned with his signature. Naturally, claimant's attorneys are telling their clients not to complete these forms, but proof that they were sent and ignored can be used to request a hearing on the issue and demand cross-examination of the claimant.

 

2. The investigators presumably obtained videotape surveillance of the claimant actually working. We are not always so fortunate as to obtain the activity on film, especially not within an actual work environment. However, any videotape surveillance can be used to address any physical activity inconsistent with the alleged disability.

 

3. Once the appropriate evidence was secured, a hearing was requested to suspend benefits and the case was (presumably) referred to the Fraud Inspector General's office for pursuit of the pending criminal action.

 

In short, suspicion is insufficent, but evidence of fraud will lead to prosecution.

Some Clarity Regarding the Chaos in the NYS Senate

The League of Women Voters contacted me today to take action regarding the stalemate in the State Senate. I'll be honest, I haven't been entirely clear on what has been causing all of the chaos. It looks like a bunch of egos fighting for power and putting themselves first rather than the group of adult leaders and professionals we elected them to be. So, I wrote to Senator Liz Krueger and said what Governor Paterson said: "Get Back to Work." I don't get paid when I'm not working, and neither should the Senators. No excuses.

Within an hour, I got an email message from Sen. Krueger's office. I've extracted the pertinent parts and deleted some of the comments about party lines because I think they have no place here. We elected the officials to do their jobs, and that is what we expect them to do. I honestly don't care who is being the bigger baby. They all need to stop being babies and do their jobs. If this happened in private industry, there would probably be a massive overhaul of personnel. Perhaps that is what we will require here. In the meantime, here's the power-sharing proposal Sen. Krueger is backing:

A rotating Presiding Officer of the Senate, alternating daily, one each to be designated by the Democratic Conference and the Republican Conference, respectively.

Establishing a six-member Senate Conference Committee, comprised of three members designated by the Democratic Conference and three members designated by the Republican Conference, to determine which bills and resolutions will reach the floor, and

Rotating Floor Leaders, alternating daily, one each to be designated by the Democratic Conference and the Republican Conference, respectively.

This seems like a very fair and reasonable proposal, and I urge you to take a moment to tell your State Senator what you think. As I've said before, we've been complacent and silent for too long. While we were sleeping, the privileged and the detached have been making decisions for us on issues they don't understand. We have to start asserting ourselves and taking full advantage of our democracy.

 

It was very easy for me to send a message. Here's the link that was embedded in the email from the LWV:

http://capwiz.com/lwv/ny/issues/alert/?alertid=13625116&type=ST

Ethics Watch: What Do You Do When the Law Misrepresents Your Client Relationship?

Those who deal in personal injury and workers' compensation law often refer to a "tripartite relationship" that is supposedly the accurate representation of the relationships among the attorney, the client and the client's insurance company. The New York Code of Professional Responsibility, or "ethics rules," fail to recognize a tripartite relationship in any legal matter. The attorney's ethical obligations are to the client, regardless of who pays the attorney's fees. In direct conflict with the ethical rules, the New York State Workers Compensation Board refers to attorneys not representing claimants as "carrier attorneys."

Is this an accurate representation, or should the Board refer to them as employer attorneys to remind the attorneys who they are obligated to?

Does this Board facilitate malpractice by knowingly misrepresenting the relationships among the parties?

Does it matter?

The Board fails to send hearing notices to the employer, once a case has been established and the insurance carrier has been identified. Yet the case is filed against the employer, so the employer is a party to the action. The claimant and his attorney both get all notices. The Board refuses to place "carrier," or employer, attorneys on notice, as a general rule.

Is this truly an impartial process?

Are We Seeing an End to Ethics & Civility in Professions (Part Three)

In the seven years I have been trying cases before the NYS Workers' Compensation Board and in the NYS civil or Supreme Courts, I have never experienced as unprofessional behavior by a Judge and opposing counsel as I experienced during a recent trial. (* - I will use "it" to describe the Judge only in an attempt to maintain the confidentiality of the Judge's identity. This is not intended to be derogatory in any way and is truly to maintain confidentiality of everyone's identities.)

First, the Judge initiated an ex parte conversation with me. The Judge told me it* had reviewed the documentary evidence and did not think it was sufficient. The Judge completely ignored the fact that its* superiors had remanded the case for further development because, in Board proceedings, the evidence often occurs at the hearings. Testimony was required to clarify the documentary evidence, and my clients were granted the right to take that testimony. (Such development of the record also has potential to protect the claimant because he or she has an opportunity to explain away anything that looks like fraud or abuse. This is how the system is supposed to work.)

Second, the Judge encouraged me to withdraw the issue its* superiors had remanded. I explained that my ethical obligation was to my clients and that, after a lengthy discussion, my clients wanted to proceed with the testimony consistent with the Board Panel Decision that was granted after an appeal. The Judge tried glaring, rolling its* eyes and yelling its* direction. I further explained that I could not withdraw from the trial without an ethical violation.

Third, when my opposing counsel and the claimant re-entered the hearing room, the Judge corrected our error in having an ex parte discussion. The Judge announced it* was trying to get me to withdraw the issue. I again explained that my clients, as well as a Board Panel, directed further development of the record. Thus, I asked to proceed.

Fourth, all parties agreed that since the issue was very limited, I would start with cross-examination and the claimant's attorney would have an opportunity to re-direct the testimony. (Many of the rules of evidence and courtroom procedure are discretionary in Board proceedings, so we can agree to alterations such as these if it will expedite the process.) I was under the mistaken assumption that the "re-direct" would still conform to the customary rules of civility. I did not expect the Judge and my opposing counsel to interrupt my cross-examination with argument that I had to request permission to respond to. Although I have not yet seen the transcript, I expect it to be nearly unintelligible from the many instances of interruption and people talking over each other. All of the yelling gave me a headache and made my right eye twitch.

I admit that I erred in not asking the Judge to recuse herself when it was clear she had determined the outcome of the issue before the first question was asked. Fortunately, in this case, my clients were not prejudiced because the claimant finally introduced the evidence we had been requesting for nearly one year. This evidence clarified the issue and, had it been introduced before the trial, the testimony might have been unnecessary.

I also erred in not stopping the trial when I was being yelled at by the Judge, my opposing counsel and the claimant. It was clear my client was not getting a fair trial. Luckily, the end result was close to the correct one.

Nevertheless, the hearing room behavior was appalling and in violation of the Civility Rules. See NY Ct. Rules, Pt. 1200. I see similar behavior occurring more frequently, although never quite to this level. In another recent trial, my opposing counsel interrupted his own client's testimony, complaining to the Judge that the answer was too long! The same attorney checked his Blackberry messages during the trial and made disrespectful statements about and to the Judge.

This behavior has to stop. The legal profession has a poor enough image in the public eye. Immature, disrespectful and unprofessional behavior by attorneys and judges only decreases everyone's faith in the effectiveness of the judicial process.

Attorneys, here are some reminders of the contents of the Civility Rules:

• Lawyers should be courteous and civil in all professional dealings with other persons.
• Effective representation does not require antagonistic or acrimonious behavior.
• The timing and manner of service of papers [including evidence] should not be designed to cause disadvantage to the party receiving the papers.
• In proceedings, lawyers should conduct themselves with dignity and refrain from engaging in acts of rudeness or disrespect.
• Lawyers should advise their clients and witnesses of the proper conduct expected of them in court and at conferences [or hearings].
• Lawyers should, to the best of their ability, prevent clients and witnesses from causing disorder or disruption.
• A lawyer should not obstruct questioning during a proceeding unless necessary. (This is typically done through objections, not the lawyer's testimony.)
• Lawyers should refrain from making self-serving statements in a proceeding.
• A lawyer should adhere to all express agreements with other counsel.

Lawyers should be mindful of the need to protect the standing of the legal profession in the eyes of the public.

Judges, this is a reminder that the Rules apply to you, too:

• A judge should be patient, courteous and civil to lawyers, parties and witnesses.

• A judge should maintain control over the proceedings and insure they are conducted in a civil manner.

• Judges should not employ hostile, demeaning or humiliating words in opinions or in written or oral communications with lawyers, parties or witnesses.

ExecuSummit to Offer Program on WC Subrogation

I wish I could tell you more about costs, agendas, etc., but ExecuSummit requires me to effectively join its mailing list to obtain any information. I know this is a current trent so companies can make easy money by selling our contact information, drive traffic to websites and earn advertising revenue, but I'm quite frankly tired of being required to do this every time I show interest in something. I figure that if a product is really good, I don't have to be tricked or locked into using it. With that caveat, subrogation and mitigation continue to be the hot topics in workers compensation. This program might be worthwhile. If nothing else, it will be a good opportunity to check out Mohegan Sun, which was built to pay some homage to the area's Indian reservation. For more information, go to the ExecuSummit website and submit the required email.

Security Alert: Who's Using Your Employees' ID Badges?

Do you really know who is accessing your facilities, stores or offices? While walking across the subway platform to transfer from the 2 Express to the 7 train at approximately 1:20 PM on 05/01/09, my path was blocked by two people. The 20-something man tried to non-challantly direct his female companion to look at the metal pole in front of us. Once she acknowledged the identification badge held to the pole with a magnet, she grabbed it and allowed me to pass before I realized what I just saw. It might have been a completely legitimate way for someone who left her work ID at home to retrieve it from a roommate, for example. But it got me thinking about how easily a similar operation could lead to theft or worse.

If you do not have written policies regarding the use of I'd badges, now is the time to write them, communicate them and strictly enforce them. Technology has made us more efficient, but it also sometimes makes us more vulnerable. It's tempting to defer to technology to take care of some of our responsibilities, but we must continue to use it in conjunction with human capital and common sense--not in place of it.

Have a safe day!

Nance :)

Are We Seeing the End to Ethics & Civility in Professions? (Part Two)

Yes, there's still more from the infamous first article in the New York Times. Another colleague who I highly respect was quoted telling his client “Forget about personal. They don’t think of you as a person. They think of you as a file with a dollar sign on it. They don’t care if you can’t put food on the table or put braces on your daughter. You’re thinking of this logically. I stopped thinking that way a long time ago. This is comp.”

I sense his frustration and that of his client, but this unprofessional mis-characterization of the phantom "them" only perpetuates the loss of faith in the system. It also fails to hold all of us accountable for our own lives. Moreover, it represents only this one person's beliefs, not everyone's.

First, many of us DO care about the personal lives of the people in this process. We take the time to learn about the individuals, their motivations, their needs, and other factors that might influence their versions of "the truth." None of us really know what the truth is. We're just trying to understand and make the best decisions we can under the circumstances.

Second, many of us DO think of the claimants as persons. We know they have a variety of struggles, just like we do. That's also why we scrutinize. We know they are as human and fallible as we are, and when backed into a corner or given an unexpected opportunity they might misrepresent facts, omit them or otherwise cheat "a little."

Third, I know of few people in this system who think of people as files with dollar signs on them. If any one group tends to think of claimants in this way, it might actually be the attorneys who represent them. After all, it's their fees that are determined by the dollar signs on the files.

I often know more about the claimants than their attorneys or doctors do. If given an opportunity to have real discussions about the true issues in the cases, I could be very creative in reaching resolution beyond just the injury-related problems. I know that sometimes workers don't want to go back after an injury because their supervisors are not nice to them and they find it less stressful to be at home. I know that some of them make so little that they see little difference between their WC checks and their income when they're working. I know some have kids they miss and would rather stay home with.

Fourth, many of us do care that claimants are struggling financially. We don't enjoy seeing people starve or suffer. Yet we aren't actually offering "corporate welfare" as one of my former associates describes it. We don't expect you to pay our rent if we fail to save any of our earnings or otherwise have contingency plans to support our lives. We don't demonize you for making choices about how to live your life or spend your money, and we expect the same courtesy. We will pay you what we owe you, but you don't get a bonus because you have a child who needs braces. It was your responsibility to plan for that, not ours. We're sorry that everything's hitting you at once. Many of us have struggled in similar ways. But your employer is only responsible for what it caused, and that is what we try to determine...as best we can...with the information provided. (If you want to speed up your case, try actually submitting the documents needed to make decisions. That helps everyone. :))

Finally, the system is designed somewhat logically. A worker is injured. He and his employer are required to file forms. Then, the doctor files the required forms--with all of the necessary information. The claims examiner makes a decision as to whether the claim falls within the workers compensation law. If she doesn't have enough information, she has to deny the claim until the rest of the information comes in. If the evidence is produced but not clear enough for a decision, the parties look to a judge for help. The judge hopefully takes the time to review the case carefully, see the big picture and make a fair decision. All of this can occur rather quickly, when everyone does his or her part and remembers that EACH of us in the process is a person of value who deserves the chance to be heard and treated fairly (or in the case of most employers, an entity comprised of persons).

Perhaps the fairness begins with a prohibition on hate speech, negativity and broad generalizations. What works for advertising agencies, professional wrestling and the media has no place in the professions or the tribunals.

More on Mirespresentations by the New York Times

Also in the first of the three articles on the broken workers' compensation system, the journalist quotes an attending physician who complained he had 41 outstanding bills for a single case, presumably to make a case for big bad entities beating down the little guy. (Is the Times not a big bad entity itself?!)

Of course, we do not know what that case entailed, but 41 bills seems like a lot for most cases. This is part of the problem in the system, too. Much has been written regarding worker, employer and IME fraud or abuse, but what about attending physicians who:
(a) order a series of expensive tests (and even surgery!) on the date of the first examination in nearly every case, regardless of severity--and who conveniently can perform all of the tests and procedures in their offices?
(b) prescribe narcotic pain medication for years without any concern for the addictive quality or potential side effects?
(c) continue conservative care, such as chiropractic adjustments or physical therapy, for years without reporting even the slightest change in condition on any day--ever?
(d) can't give any specific details about or identify patients they supposedly see three times per week for months?
(e) refuse to provide the information required by the Board and necessary to determine whether the medical expenses should be paid under a workers' compensation insurance policy?
(f) conspire with attorneys to increase the value of a claimant's case and share fees with the attorneys?

I realize that most doctors didn't go to medical school to learn how to report insurance claims. But that's no excuse for shirking their duties to their patients and the system. When physicians request authorization to treat or examine injured workers and practice before the Board, they also agree to abide by the rules. When they don't, they hurt the patient, the parties and the system. For this reason, they need to be removed from the list of providers.

As we improve our processes and the Board continues to implement the 2007 reforms, I am hopeful that we will "weed out" those who whine about not getting paid yet refuse to fulfill their obligations. We must apply the rules consistently or they will have as little value and effect as those before them. But be aware that even when the rules are applied consistently, the results will almost never be black-and-white. The solutions are nearly always somewhere along the vast spectrum between black and white--in the gray. Thus, we must be willing to use our gray matter to find them.