Taking Action in New York on Climate Change

From the New York Bar Association

Report of the New York State Bar Association Task Force on Global Warming

The New York State Bar Association (NYSBA) Task Force on Global Warming (the Task Force) has been convened by NYSBA President Bernice Leber to summarize New York’s existing laws and programs regarding climate change and to make specific proposals that the State can implement in a timely and cost-effective fashion to reduce greenhouse gas (GHG) emissions and to prepare for the impacts of climate change. New York has taken many steps to
address climate change; however, there is much more that can be done. The Task Force has not attempted to comprehensively suggest every possible action, but rather has selected 22 specific
proposals that can be readily accomplished and that will yield real results. It is the hope of the Task Force that officials in the executive and legislative branches will seriously consider the recommendations made in this Report and seek to implement as many as possible. In making these recommendations, the Task Force was acutely aware of New York State’s current fiscal situation and has thus concentrated on action items that it expects will either save money because
of their energy cost savings or will have, at worst, a modest cost to State and local government.

Read the entire report: Climate

Late budget keeps parties arguing

SUNY to receive less state funding

by Joseph Spector and Jay Gallagher

ALBANY – The state Senate ground its way through debates on the state budget Thursday, with bitter arguments interrupting discussions on aid to local schools, easing of drug laws and other issues.

They were expected to complete action on the $131.8 billion spending plan, which includes billions in new taxes and fees and raises overall state spending by almost $10 billion, either late Thursday or today.

They were supposed to be finished before midnight Tuesday, the end of the old fiscal year, but close Republican questioning and the illness of a Democratic senator set the process back. Lawmakers this week passed an emergency-spending bill to keep state operations functioning.

“We as an institution failed,” said Sen. Steve Saland, R-Poughkeepsie, while criticizing both the health-care bill that cuts payments to some hospitals, as well as what minority Republicans view as a secretive process leading up to the budget. “What can we expect when we return to the dark ages when members are effectively frozen out of the process?”

All the bills passed were adopted on a strict party-line 32-30 vote, with Democrats narrowly carrying the day.

The crucial 32nd vote was delivered by Sen. Ruth Hassell-Thompson, D-Mount Vernon, Westchester County, who took ill Tuesday, came back to vote on one bill Tuesday night and then returned to the hospital Wednesday, ending most budget deliberations that day.

She returned to the Capitol briefly Thursday and was allowed by Republicans to vote on all the budget bills before they were debated. Then she left for home to recuperate from a case of pneumonia.

That was virtually the only time the two parties agreed on anything all day.

Democrats hailed restorations of cuts proposed by Gov. David Paterson to education and health-care spending, while Republicans said schools and health-care facilities are not being fairly treated.

“This was a difficult budget, but our priorities are correct and our commitment to education will be vital to turning our economy around,” said Senate Majority Leader Malcolm Smith, D-Queens.

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The Senate gave final approval to Paterson’s recommendation to reduce state funding to the State University of New York by 80 percent of what a $620 tuition hike (to $4,970 a year) brings in. SUNY officials increased tuition in hopes of using all the money to make up for cuts to the 64-campus system’s budget last year.

Republican senators railed against the budget’s use of new tuition. The state is “robbing” SUNY, said Sen. Vincent Leibell, R-Patterson, Putnam County.

Sen. Thomas Libous, R-Binghamton, said the move weakens public trust in the state. “People cannot trust the government anymore,” he said.

Lawmakers also clashed over a plan to give judges sole discretion over whether to divert nonviolent drug offenders to treatment programs rather than prison. The idea was added to the budget after Senate Democrats couldn’t come up with enough votes for it to pass on its own. The Democrats voted to leave it in.

Republicans proposed 17 amendments to increase spending for health, education and other purposes. Democrats were prepared to vote them all down.

The Senate gave final approval to Paterson’s recommendation to reduce state funding to the State University of New York by 80 percent of what a $620 tuition hike (to $4,970 a year) brings in. SUNY officials increased tuition in hopes of using all the money to make up for cuts to the 64-campus system’s budget last year.

Republican senators railed against the budget’s use of new tuition. The state is “robbing” SUNY, said Sen. Vincent Leibell, R-Patterson, Putnam County.

Sen. Thomas Libous, R-Binghamton, said the move weakens public trust in the state. “People cannot trust the government anymore,” he said.

Lawmakers also clashed over a plan to give judges sole discretion over whether to divert nonviolent drug offenders to treatment programs rather than prison. The idea was added to the budget after Senate Democrats couldn’t come up with enough votes for it to pass on its own. The Democrats voted to leave it in.

Republicans proposed 17 amendments to increase spending for health, education and other purposes. Democrats were prepared to vote them all down.

State Comptroller Thomas P. DiNapoli Statement on 2009-10 State Budget

New York faced an extraordinary challenge to adopt a 2009-10 State Budget in the context of a daunting recession. My preliminary review of the budget indicates it does not adequately respond to today’s economic realities.

The budget is not a long-term solution to New York’s propensity to spend more than the state can afford. While the budget proposes to close an unprecedented gap, it does so by an over reliance on non-recurring federal stimulus funds and new tax revenues projected to materialize at a time of declining tax receipts.

This is essentially a buy-time budget, based on a hope that the economy recovers quickly. It’s a very fragile basket to place all the taxpayers’ eggs in. Instead of using the Federal stimulus to restructure the financial plan and match projected revenues to long term growth in spending, the budget uses stimulus funds as a short-term fix.

The danger is that New York could end up right back where we started, with huge budget gaps and an unsustainable level of spending. I will provide a more detailed review of the enacted budget shortly.

Unexpected Opposition to Payroll Tax Throws M.T.A. Rescue Talks Into Turmoil

by William Neuman and Nicholas Confessore

Negotiations on a financial rescue plan for the Metropolitan Transportation Authority were thrown into turmoil on Tuesday afternoon in Albany when a small group of Democratic senators from suburban districts moved to oppose a regional tax on payrolls, according to two people close to the talks.

It was the second time that a revolt within the narrow Democratic Senate majority had derailed efforts to forge a bailout that would scale back a large increase in fares and halt deep service cuts by the authority.

The obstacle arose just as negotiators believed they were close to replacing the revenue from an earlier proposal, tolls on the East and Harlem River bridges, that had been rejected by another group of senators.

The payroll tax, a key component of the rescue plan, would be paid by employers in the 12 counties served by the authority, and was expected to raise as much as $1.5 billion a year.

The objections to the payroll tax came on a day full of activity, as hopes of a compromise on the rescue were raised in the morning and then abruptly dashed in the afternoon.

“It’s not dead but it’s definitely not in good shape,” said one of the people close to the talks, who spoke on condition of anonymity because the talks were continuing. “I think we’re nowhere.”

Assembly Speaker Sheldon Silver, who has pushed for a rescue, said he expected negotiations to resume.

“There’s still a will” to find a solution, he said Tuesday night. “The difficulty is in putting our hands around how we change it.” He added, “Maybe a little time out would be helpful.”

The Senate majority leader, Malcolm A. Smith, was upbeat Tuesday morning after emerging from a meeting with Gov. David A. Paterson and Mr. Silver.

“I’m optimistic we may have something done between now and tomorrow,” Mr. Smith said.

At the same time, Mr. Paterson and Mr. Silver conceded they were unable to overcome resistance in the Senate to the new bridge tolls and said that another source of revenue would have to be found to replace the toll money.

The new tolls were opposed by a group of half a dozen Democratic senators from Brooklyn, Queens and the Bronx, and Mr. Smith has made it clear for weeks that the Senate would not pass a plan that included the new tolls.

The rescue plan is intended to spread the burden of helping the authority among several groups. Transit riders would pay through a more modest fare increase than one that is set to go into effect later this spring; drivers would pay through tolls; and employers would contribute through the payroll tax.

To replace the toll revenue, officials said Tuesday that they were looking at a series of other charges on motor vehicles, including a surcharge on taxi rides in New York City, an increase in the vehicle registration fee and an increase in the tax on car rentals.

After the morning meeting, legislative staffers and aides to the governor and the authority began to evaluate what combination of vehicle-related charges would generate sufficient money to help the authority, which has a $1.2 billion deficit this year and larger deficits looming.

But at a meeting later in the afternoon with Mr. Paterson, a group of senators from suburban districts told him they would not support the payroll tax.

The senators were Craig M. Johnson of Nassau County, Brian X. Foley of Suffolk County, and Andrea Stewart-Cousins and Suzi Oppenheimer, both of Westchester County.

“I’m very uncomfortable with the proposed payroll tax,” Mr. Foley said later in an interview. “Suffolk County is in the outer ring of the service area. Our businesses would be paying into a system that they don’t get much out of.”

While acknowledging his opposition to the payroll tax, Mr. Foley declined to discuss his talks with other officials.

The sudden turnaround further exposes the precarious situation in the Senate, in which Democrats have a 32-to-30 edge over Republicans, which means that a single Democrat has the power to block virtually any initiative.

Tuesday’s payroll tax revolt could not be seen as totally unexpected, since several Democrats had voiced discomfort with the tax in the past. Yet Mr. Smith seemed to have been taken by surprise by the senators’ opposition.

“There has been no consensus reached on a plan to address the M.T.A.’s budget shortfall,” said Austin Shafran, a spokesman for Mr. Smith, when asked about objections to the tax. He added that everything was still on the table “except tolls.”

State Budget Includes Major Access Victories for Uninsured New Yorkers

“During a very difficult budget year, the Governor and Legislature still managed to do several very positive things to help New Yorkers obtain good health care coverage during the current economic recession, and we appreciate those efforts,” said Mark Hannay, Director of the Metro New York Health Care for All Campaign.

“These steps include streamlining public insurance programs to help uninsured people enroll in them, expanding the state’s Family Health Plus program to cover more uninsured, strengthening accountability standards for charity care funding of services for the uninsured, and keeping premiums affordable within the state’s Child Health Plus and Medicaid Buy-in programs. That said, we remain concerned about some budget provisions that will raise insurance premiums in the private market, and the state’s failure to fully fund its stop-loss fund for the individual market. More New Yorkers may not be able to afford to buy or keep private coverage as a result and will become uninsured. We will be working with the Governor’s office, State Insurance Dept., and Legislature on issues concerning the private insurance market as we move forward in this year’s legislative session. We also are concerned about impacts of the budget on the New York City Health and Hospitals Corporation, since HHC serves many uninsured New Yorkers.”

Exams of Injured Workers Fuel Mutual Mistrust

by N. R. Kleinfield

Dr. Hershel Samuels, an orthopedic surgeon, put his hand on the worker’s back. “Mild spasm bilaterally,” he said softly. He pressed his fingers gingerly against the side of the man’s neck. “The left cervical is tender,” he said, “even to light palpation.”

The worker, a driver for a plumbing company, told the doctor he had fallen, banging up his back, shoulder and ribs. He was seeking expanded workers’ compensation benefits because he no longer felt he could do his job.

Dr. Samuels, an independent medical examiner in the state workers’ compensation system, seemed to agree. As he moved about a scuffed Brooklyn office last April, he called out test results indicative of an injured man. His words were captured on videotape.

Yet the report Dr. Samuels later submitted to the New York State Workers’ Compensation Board cleared the driver for work and told a far different story: no back spasms, no tender neck. In fact, no recent injury at all.

“If you did a truly pure report,” he said later in an interview, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

Independent medical exams are among the most disputed components of New York’s troubled workers’ compensation system. Under that system, workers with bona fide injuries are entitled to medical care and replacement wages, usually paid for by their employer’s insurer.

The independent exams are designed to flush out workers who exaggerate injuries or get unnecessary care, and there is no question that some of that goes on. As a check on what a worker’s doctor determines, insurers are allowed to order an ostensibly neutral exam by a doctor they select and pay for. They do so regularly, with more than 100,000 exams conducted each year.

But a New York Times review of case files and medical records and interviews with participants indicate that the exam reports are routinely tilted to benefit insurers by minimizing or dismissing injuries.

“You go in and sit there for a few minutes — and out comes a six-page detailed exam that he never did,” said Dr. Stephen M. Levin, co-director of the occupational and environmental medicine unit at Mount Sinai Medical Center, who has been picked as the interim medical director at the compensation board. “There are some noble things you can do in medicine without treating. This ain’t one of them.”

New York uses independent medical examiners far more extensively than many states do, and critics say the practice adds to the mistrust in the system. The examiners’ opinions can empower an insurer to slash benefits, withhold medical treatment or stall a case. Workers say that psychologically, there is something particularly damaging about being dishonestly evaluated by a medical professional.

“I was in so much pain and felt so hopeless for so long,” said Carol Houlder, a substance abuse counselor who waited a year for surgery on her injured ankle to be approved. “Doctors see you’re in pain and say you’re not. How do they call themselves doctors?”

Many independent examiners are older, semiretired physicians who no longer treat patients, and claimants and lawyers have asserted that the memories and judgments of some of the doctors have at times been impaired by their age and frailties. The examiners do not need special training, only to have a state license and to be authorized in a specialty.

“Basically if you haven’t murdered anyone and you have a medical license, you get certified,” said Dr. Alan Zimmerman, 75, a Queens orthopedic surgeon who does the exams. “It’s clearly a nice way to semiretire.”

Some examiners see dozens of injured workers a day. Often the appointments are booked by brokers who help insurance companies find doctors. Some brokers are not registered with the state, as required, but there has been little enforcement of the rules.

Insurers, examiners and brokers, however, defend the exams as necessary and largely untarnished by bias. Dr. Brian L. Grant, chairman of Medical Consultants Network, a company based in Seattle that arranges independent exams across the country, said, “We never get pressure from an insurer.”

Many workers contest independent medical examiner opinions and often prevail. Judges can, and do, dismiss the exam findings. In fact, some lawyers and judges laugh when certain examiners’ names come up at hearings.

Dr. Kenneth E. Seslowe, an orthopedic surgeon who mainly does independent medical exams, is mocked at hearing offices by attorneys as Dr. Says-No, because they feel he consistently finds no disability. Asked about this, Dr. Seslowe said, “I really don’t have time for this.”

But even when the opinions are discounted, resolution can take months, years, even decades, and many workers, tired of the ordeal of five, six, seven exams, eventually give up.

Some examiners, of course, do furnish honest, well-reasoned opinions. And sorting out the yawning breach between what a worker’s doctors and an independent medical examiner conclude is complicated by the fact that some injuries and their impact on a person’s ability to work — especially soft-tissue injuries like those to the back and neck — are hard to document with indisputable tests.

Zachary S. Weiss, the chairman of the workers’ compensation board, said that he found the disparities in medical opinions shocking and that use of independent examiners was “off the charts.” But Mr. Weiss, who was appointed in late 2007, said he was unsure what would rectify the problems.

After nearly a dozen years without a medical director, the board has finally filled that job temporarily. It has introduced new, more detailed forms, which many doctors find maddening. It is also working on fresh guidelines that it hopes will better calibrate an injured worker’s care and work limits.

Dr. Robert E. Bonner, the medical director of the Hartford, an insurance company, said it was clear that the landscape had polarized. “Physicians regrettably have moved away from being neutral observers,” he said. “They’ve moved toward one camp or the other.”

Doctor vs. Doctor

When New York companies complain about the high cost of doing business in the state, they often cite fraudulent workers’ compensation claims as a key factor.

Though experts say talk of worker fraud is frequently overstated, it is widely acknowledged that some doctors collaborate with workers or their lawyers to magnify injuries or provide treatment for years without making someone better. Law firms representing workers often have cozy relationships with doctors to whom they refer patients, and vice versa.

A few years ago, Dr. Rafeak Muhammad, a Queens ophthalmologist, was barred from taking workers’ compensation patients after acknowledging that he had treated several long after it was necessary. He declared them unable to work when in fact they could.

David Donaldson, senior vice president at the domestic claims subsidiary of A.I.G., one of the state’s largest workers’ compensation insurers, said, “Our position on I.M.E.’s is we’re looking for someone who is going to give us a coldly objective view of the injury.”

Critics, however, contend that independent medical examiners who reliably dispute workers’ doctors are hired more often by insurers. Some workers cynically refer to them as “insurers’ medical examiners.”

Shu-Ying Xu, 66, a home health aide, said she met with an independent examiner in October 2006 so he could review the back, neck and leg injuries she suffered when she tried to prevent a patient from falling.

She said the exam took two minutes and was so quick that the doctor, Wayne Kerness, an orthopedic surgeon, did not ask her anything.

As a result, she said, when the doctor filed his report he said she spoke English. She does not.

He said she took no medications. She said she took nine.

He said her disability was mild and she could resume work.

She said that she was in debilitating pain and that the Social Security Administration had already concluded that by its standards, she was totally disabled.

“She can’t even hold a gallon of milk,” said Peter Chang, her son. He had come along to the exam to translate. Since no questions were asked, he said he had nothing to do.

After checking his notes, Dr. Kerness said it was an error to have said that Ms. Xu spoke English. Otherwise, he stood by the report. “What can I say?” he said. “People can say whatever they want.”

He added: “I have my share of people I’ve found totally disabled and even recommended treatment that has been overlooked. I think I’m pretty heterogeneous.”

A judge ultimately ruled that Ms. Xu’s benefits should continue.

For decades, independent medical examiners were essentially unregulated. Reports were sometimes altered by brokers and exams often were done at airports, hotels or in the garages of doctors’ homes. In 2000, a doctor examined five patients in a Long Island bar.

In 2001, the state introduced rules. Among them: doctors had to register with the board, work in a medical office and let workers record or videotape their exams. Claimants are permitted to bring along anyone they choose to witness or film the sessions.

While the law has helped, the process remains riddled with flaws. Lawyers and injured workers say many of the examiners still do brief, perfunctory, one-sided exams.

A small study conducted a few years ago at the Central New York Occupational Health Clinical Center in Syracuse found that the clinic’s doctors and independent medical examiners virtually never agreed on whether a worker was disabled. When it can be proven that medical examiners have acted inappropriately, the compensation board revokes their certification — which has happened more often in recent years. But investigations are time consuming and only a dozen or so result in revocations each year.

William Gurin, the board’s fraud inspector general, says his unit’s limited resources are best focused on more fertile areas of fraud, such as employers who underreport their work force to save on insurance premiums.

Similarly, the board struggles to regulate businesses, from storefront exam factories to multistate networks, that help produce independent exams. Decades ago, insurers hired doctors directly. Now the job is increasingly done by third-party brokers called entities.

Entities are paid by insurers — around $500 or $600, say, for an orthopedic exam — and they in turn pay the doctor. Often, doctors submit dictated notes or checklists to clerical staff at the firms, who then draft the reports. Other times the notes go to transcription companies. The people preparing the reports may have no medical training.

Since 2001, the state has required entities to be registered. About 170 have signed up. But a fair amount of independent exam work is performed by companies that have never registered.

It was an unregistered company, Wine Medical Management, that arranged an independent medical exam of Santos Padilla, an injured worker, in 2006. The exam was to be done by Dr. Kerness, but it was canceled, and Mr. Padilla was seen by another doctor.

But somehow the compensation board received a report signed by Dr. Kerness recounting an exam that had never happened.

Dr. Kerness blamed the bogus submission on a clerical error by Wine. He said the company, using a signature stamp, had affixed his name to a report he had not seen.

Wine went out of business last year. A former manager at Wine, Laura Urban, blamed the discrepancy on a transcription company that prepared the reports. Ms. Urban moved to Commander Management, another entity that was doing unregistered work until the board ordered it to cease.

The board is looking into the Padilla episode, and has pledged to crack down on unregistered I.M.E. entities. Only a handful have ever had their certifications revoked, usually not for creating shoddy reports but for failing to pay their doctors.

Robert Grey, a claimant lawyer, said the board should track the opinions of independent medical examiners and compare them to ultimate verdicts, and then exclude doctors who were constantly found not credible.

Currently, the best protection for a worker is to tape an exam. But few do. The board does virtually nothing to promote the practice, and some doctors do not like it. When a woman brought a camera to an appointment upstate, the doctor called the police to toss her out.

Ms. Houlder, 63, who hurt her ankle, videotaped her exam by Dr. M. Pierre Rafiy, a 77-year-old Long Island orthopedic surgeon.

In the videotape, Dr. Rafiy grasps Ms. Houlder’s right ankle and says it is swollen. In the written report, he stated that there was no swelling and no disability and that she could return to work.

When subsequently deposed, he backtracked, saying it had been a secretary’s mistake to say no disability. He did not correct anything else.

Asked about the exam in an interview, Dr. Rafiy said: “I have no way to know if she had real pain. You have to remember, a lot of people don’t want to work. They lie a lot.”

Dr. Samuels, 79, with a radiant smile and a burst of snowy hair, stopped doing surgery years ago. Until recently he commonly filled his days performing insurance exams on workers, sometimes as many as 50 in an afternoon, he said in his small office in Borough Park, Brooklyn.

“You obviously can’t spend a lot of time with that volume pushing up your back,” he said. “You have to assume there are going to be errors. Look, there are a lot of holes in this thing.”

At times, evidence shows, Dr. Samuels’s official reports were quite different from what he appeared to find during an exam.

Consider his 2007 examination of Johanne Aumoithe, a pastry chef who said she had hurt her arm and neck. On a videotape that Ms. Aumoithe recorded on her cellphone, Dr. Samuels comments that she had limited range of motion. His written report concluded the opposite.

Asked about the discrepancy in an interview, Dr. Samuels chuckled and said he could not even recall the people he saw yesterday. The way he worked, he said, was to submit a checklist to a Queens company called All Borough Medical, which transformed it into a narrative.

“I never write a sentence,” he said. “It’s really crazy, but that’s how it’s done.”

He often inserted numbers in the checklist — say, a measure of hand strength — after the person left, rather than as he performed the tests.

Was he sure they were correct? “I’m not sure of anything,” he said. “They’re just a guess in the first place.”

The law requires a doctor to attest to the accuracy of a finished report before signing it, but Dr. Samuels said he rarely read them. He doubted he had read the Aumoithe report. “I just sign them,” he said.

If he seldom read them, how did he know they were correct?

“I don’t,” he said. “That’s the problem. If I read them all, I’d have them coming out of my ears and I’d never have time to talk to my wife. They want speed and volume. That’s the name of the game.”

Dr. Samuels said he generally received about $100 for one of these exams.

The state does not regulate how much a doctor can make for an independent medical exam, though it does limit what a treating physician may charge an injured worker, and generally that is much lower for roughly equivalent work. Some examiners said insurers pay them by the session, say $1,500 to be available from 8 a.m. to 4 p.m. and handle whatever workers are sent to them.

An occupational medicine doctor deposed by Scott Clippinger, a claimant lawyer, said he charged $550 an hour for an independent medical exam. In 2006, Mr. Clippinger complained to the state board that the imbalance in fees “allows the carriers to purchase opinions.” He asked the state why it was not following a clause in state law that says that independent medical exams “shall be paid according to the fee schedule.”

The board’s response was that while the law “does provide that I.M.E. fees shall be paid according to the fee schedule, the fee schedule does not specify a particular fee for an I.M.E.”

Dr. Edward Toriello, a Queens orthopedic surgeon who cares mainly for his own patients, said he is paid nearly twice as much for an independent medical exam than he is for seeing a workers’ compensation patient he treats ($250 versus $140).

Like many who perform the exams, he views the compensation system as bloated with charlatans. Dr. Toriello, who does about 30 such exams a week, estimates that 80 to 85 percent of the time he finds no disability or need for medical treatment in workers whose doctors have found otherwise. He says the disparity is explained by the “comp mentality.”

“I think it’s human nature to help your patient,” he said. “I think a lot of doctors say: ‘I don’t need the aggravation. It doesn’t hurt to keep him out of work.’ ”

Dr. Zimmerman, of Queens, said he believed that 75 percent of people getting workers’ compensation did not deserve it, but also said he was not surprised to hear that insurance lawyers in Queens said his opinions were overwhelmingly disregarded by judges.

“Judges come up with wrong decisions a huge amount of time,” he said. “The lawyers work it so that anyone who scratches their toenail deserves equal treatment as someone who fell out of a 40-story building.”

Sometimes, a review of cases shows, there are stark discrepancies between the testimony independent medical examiners give at trial and their reports.

Twice in 2005, for example, Dr. Francis O’Malley, a Long Island orthopedic surgeon, testified that a disability was more serious than indicated by his reports.

In one case, Dr. O’Malley testified that a man who had hurt his back lifting packages had a “marked” partial disability. The report described the injury as a less severe “moderate” disability.

When confronted with the discrepancy, Dr. O’Malley testified, “I don’t know what’s going on.”

The reports were filed on Dr. O’Malley’s behalf by Hooper Holmes, a national medical services company that operated an I.M.E. entity. The company said that it always submitted exactly what doctors gave it and that it believed Dr. O’Malley, who is 78, was confused. Dr. O’Malley did not return calls for comment.

In the case of William Cassone, the plumbing company driver whose father taped his examination, the exam by Dr. Samuels was arranged by All Borough Medical, an unregistered I.M.E. entity, which got the assignment from another registered entity.

Mr. Cassone had been injured years earlier but was being examined because, as he says on the videotape, he had suffered a second, recent injury.

But Dr. Samuels’s report made no mention of the second injury and deemed Mr. Cassone able to work. When Mr. Cassone got the report, he said, “I was screaming so much I left the house and slept in the car.”

Dr. Samuels later swore in a deposition that the report was accurate. A few weeks later, though, the board received an addendum signed by Dr. Samuels saying he had viewed the videotape and, yes, he had been told of the second injury. Still, he found no evidence of disability.

All Borough declined to comment on the case and its business.

Dr. Samuels said in a recent interview that he had never seen the addendum or the videotape and doubted he had read the original report. He said All Borough must have prepared the addendum without his knowledge.

“This is the first I’ve heard of this,” he said. “Listen, there’s a lot of hanky-panky that goes on.”

Mr. Cassone’s lawyer, Michael Pyrros, told a judge at a hearing that he was concerned there might have been fraud involved in the conduct of Dr. Samuels, the I.M.E. entity and the insurer. When the Cassone case next came before a judge, late last summer, a deal was reached between lawyers to grant Mr. Cassone benefits. Fraud allegations were dropped against the insurer.

Dr. Samuels, who was told to appear at the hearing, did not show up. According to a letter from his lawyer, he was unwell. His behavior was never addressed. Soon after, he retired, his official record unblemished.

Deal to Cut Costs Is Close For Builders and Unions

by Charles V. Bagli

Reeling from the real estate downturn in the city, construction unions and builders are edging closer to an agreement that they say will reduce labor costs and enable at least some of their projects in Manhattan to proceed despite the weak economy.

The stakes are high for both sides. Developers, who paid record-breaking prices for land during the boom years, are now desperately seeking ways to cut their costs and keep projects alive.

The unions, in turn, are eager to keep their members employed and to retain their traditional dominance over large-scale projects in New York. Yet many are reluctant to give up hard-won wages and benefits.

Some construction managers and union officials involved in the negotiations say that the pending agreement on work rules, wages and benefits would cut labor costs by 15 to 20 percent, but not the 25 percent originally sought by builders. Many involved are loath to discuss it publicly for fear of blowing up the fragile talks with the union construction trades, all of which are covered by contracts. The carpenters and the electricians have been much more willing to bend, union officials and contractors say, than the steamfitters and the operating engineers, the highly paid operators of cranes, bulldozers and other heavy equipment.

Some developers, however, are skeptical that any agreement will translate into substantial savings. Some doubt whether even a 25 percent reduction would be enough to salvage a residential project when rents have dropped by a third or more.

“A lot of my developers are concerned that it doesn’t go far enough,” Steven Spinola, president of the Real Estate Board of New York, said of the proposed agreement. “But we’re grateful discussions are taking place.”

Among the developers pushing for a deal are Larry Silverstein, who is building at ground zero, Stephen M. Ross, who has a slow-moving project on 42nd Street at 10th Avenue, and the Milstein family, which has a project under way at Battery Park City.

The three people at the center of the negotiations — Raymond G. McGuire, president of the Contractors Association of New York, Louis J. Coletti, president of the Building Trades Employers Association, and Gary La Barbera, president of the Building and Construction Trades Council of Greater New York, an alliance of unions — did not return calls requesting comment.

“Industry leaders,” said James A. Parrott, chief economist at the union-supported Fiscal Policy Institute, “should be seeking help from Washington to retain construction jobs and maintain wages, benefits and safety standards.”

“Our national economic recovery depends on labor and management working together to expand and not weaken the middle class,” he said.

Construction employment in New York City climbed to roughly 130,000 during the boom years. But a report by the New York Building Congress predicts that that number could fall by 23 percent to 100,000 next year.

Nonunion projects are showing up in what has been a union bastion: Manhattan. The Atlantic Development Group is putting up an 89-unit apartment house at 10th Avenue and 23rd Street in Chelsea with nonunion contractors. And at a union job on the Upper West Side, the Chetrit Group and Stellar Management took the highly unusual step of asking contractors for new bids on three 15-story buildings already under construction on Columbus Avenue, between 97th and 100th Streets. Developers and union officials expect nonunion contractors to take over the project.

“Our main goal was to continue with the project and keep as many people working as possible,” said Jeff Gdanski, a vice president at the Chetrit Group.

Bruce Ratner, a developer who traditionally builds with union contractors, recently stopped at the 38th floor of his planned 76-story Beekman Tower in Lower Manhattan, threatening to cap the building at 40 stories if construction unions did not accept concessions on wages and work rules.

Mr. Ratner, who is not involved in the current negotiations, stopped work for three months early last year while he scrambled to obtain $680 million in construction financing. At that time, he decided to switch from condominiums to rentals. In another cost-cutting move, he modified the design by the architect Frank Gehry, using a standard curtain wall instead of one that would seem to be undulating, on one of the tower’s eight sides.

It was not so long ago that major Manhattan developers and their lenders worried little about these things, figuring that rents and sale prices would gallop well ahead of the surging cost of land, concrete and steel.

But the cityscape is now littered with half-finished towers that have run into financial problems. Construction managers say that developers are stuck with land costs of $400 a square foot or more, up from $200 five years ago.

In January, developers and construction managers who often use union contractors began talking about a citywide agreement on wages, work rules and benefits. Developers and managers say they prefer union contractors, despite their higher wages, because they provide highly skilled workers.

“This year is not too bad,” said one union official who insisted on anonymity because he was not supposed to discuss the talks. “But 2010 is looking like we’re going off the ledge.”

But many unions have balked at wage cuts, particularly those who have not suffered layoffs, like cement workers and operating engineers. Some contractors have also questioned the value of the concessions that some unions have agreed upon, even ones that have been verified by consultants. There was talk of a compromise for a select group of six projects, including those owned by Mr. Ross, Mr. Silverstein and the Milstein family.

Executives and labor officials who have been briefed on the latest discussions say the unions may agree to consider projects on a “case-by-case” basis for a special “project labor agreement” that would save developers whose projects are otherwise not viable up to 20 percent on the current labor contracts.