By MATT CHANDLER
Buffalo Law Journal

Proposed changes to the process for hearing workers' compensation cases in New York state were shelved - for now - in the wake of claims that the plan would violate the rights of injured workers.

The New York State Worker's Compensation Board had planned to implement changes last month that would, it said, reduce costs and streamline hearings.

The current format allows injured workers to appear before a judge and present testimony and evidence to support their claim. Under the proposed changes, hearings would be eliminated and replaced by "paper decisions," whereby both parties would submit everything in writing and a decision would be issued based on those filings.

That new process, the Managed Adjudication Path program (MAP), was scheduled to begin in February, but last week the state Senate's Labor Committee held hearings on the proposed procedural changes. Those hearings led to the board pulling back the start date and agreeing to hold open discussions before finalizing a new plan of action.

State Sen. George Onorato, D-Queens, chairman of the Labor Committee, said the hearings were held "because the law does not allow the board - on its own - to change procedures established by the Legislature."

Onorato opened the hearings by saying any such changes needed to be resolved through legislation. He said the Comp Board, chaired by Robert Beloten, failed to provide sufficient information as to why the new program is needed. While the proposal would add judges to the payroll at a significant cost, Onorato said, since 2001, the number of workers' compensation cases has been "steadily decreasing."

Mark Hamberger, a partner in the Buffalo law firm Hamberger & Weiss, has been an outspoken opponent of the proposed changes, calling the board's actions "arbitrary and capricious." He says that while the plan is an attempt to ease crowded hearing calendars, only two downstate districts are affected.

He pointed to the decrease in hearings statewide.

"In the mid 1990s, there were over 550,000 hearings each year heard by 58 law judges around the state," Hamberger said. "In the fiscal year 2007-08, according to a publication on the board's Web site, there were 273,200 hearings handled by somewhere between 72 and 80 law judges."

Hamberger & Weiss partner Susan Duffy believes the push by the board to eliminate hearings for many injured workers has nothing to do with calendars.

"I think they were pushing this because they think they have the authority to do it," Duffy said. "From our standpoint, you can't determine in advance that (a hearing) is never necessary. That's just not reasonable."

Beloten could not be reached for comment, but he issued a statement two days after the hearings defending the MAP program.

"I continue to believe strongly that the proposed changes will result in lower costs and maintain full protections for the parties' due-process rights," Beloten said. "Nonetheless, I think it is appropriate to delay the initiative so that there is time for more discussions and feedback."

Onorato applauded the delay in implementing MAP.

"I commend him (Beloten) for paying heed to the many witnesses who testified against the process and who agree that MAP would violate their due-process rights," Onorato said after the delay was announced.

Hamberger, meanwhile, is cautiously optimistic.

"I'm glad it isn't going into effect immediately," he said. "But they haven't ruled out bringing it up and trying to implement it down the road."