Avoid the Pitfalls of Auto-Pay Agreements

Today’s post comes from guest author Kit Case, from Causey Law Firm.

Many of my clients tell me, with fear in their voice, that they have one or more bills set to automatically pull from their bank accounts, but they have no money in the bank to cover the payment and will face overdraft charges if the payment pulls from their account.  Typically, these are car payments, as many auto loan lenders offer lower rates if the purchaser agrees to set up automatic payments.  Some businesses, like your local gym, may require auto-pay agreements. It seems like a good idea, when one is working.

Add an injury or disability into the mix, though, and it can become your worst nightmare.  Even under the best circumstances, an injured worker that is receiving their time loss compensation benefits – often 60 – 65% of pre-injury wages, or a much smaller percentage if they were a high wage earner and have hit the ceiling of compensation rates – will most certainly not be getting paid on the same schedule as their payroll department was using.  Juggling bills is hard enough with decreased income levels, but the forfeiture of control over the ebb and flow of funds in your bank account can put you in financial peril after an injury.

If you find yourself in the scenario I have described, try contacting your lender or service provider to inquire about making changes to the agreement you signed – or terminating the agreement, if needed – to at least make the drafts from your account occur on a better schedule but, preferably, to take back control of the payments.  You should maintain the ability to make payments to creditors on your own schedule when funds are available.  The auto-draft agreements are a contractual agreement, though, and you may need legal assistance to alter them.  In my experience, though, lenders are usually able to work with their clients to maintain the integrity of their loans.  In the long run, repayment is their goal and facilitating your ability to manage your payments is in their best interest, too.

Photo credit: 401(K) 2013 / Foter / CC BY-SA

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The workers’ compensation system is broken — and it’s driving people into poverty

Today’s post comes to us from the Washington Post via our colleague Jon Gelman.

There’s a good news/bad news situation for occupational injuries in the United States: Fewer people are getting hurt on the job. But those who do are getting less help.

That’s according to a couple of important new reports out Wednesday on how the system for cleaning up workplace accidents is broken — both because of the changing circumstances of the people who are getting injured, and the disintegration of programs that are supposed to pay for them.

The first comes from the Department of Labor, which aims to tie the 3 million workplace injuries reported per year — the number is actually much higher, because many workers fear raising the issue with their employers — into the ongoing national conversation about inequality. In an overview of research on the topic, the agency finds that low-wage workers (especially Latinos) have disproportionately high injury rates, and that injuries can slice 15 percent off a person’s earnings over 10 years after the accident.

“Income inequality is a very active conversation led by the White House,” David Michaels, director of the Occupational Health and Safety Administration, said in an interview. “Injuries are knocking many families out of the middle class, and block many low-wage workers from getting out of poverty. So we think it’s an important component of this conversation.”

There are two main components to the financial implications of a workplace injury. The first is the legal…

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Measuring Our Progress Since The Triangle Shirtwaist Factory Fire

As an attorney who practices in the field of Workers’ Compensation, there are some events that are seminal in the history of workplace safety. One of those events was the Triangle Shirtwaist Factory fire, which occurred on March 25, 2011. The Triangle Shirtwaist Factory was one of the largest factories in New York and employed 500 mostly Italian and Jewish immigrant women between the ages of 13 and 23.

These women worked long hours for low wages in this cramped sweatshop at sewing machines to produce women’s blouses, known in those days as shirtwaists. In order to protect themselves from their claim of thefts by the workers, the factory owners would lock the doors to one of the stairways leading to the street. While the union movement in New York was very strong and some of the workers had joined the International Ladies’ Garment Workers’ Union, the factory itself was a non-union shop; many believed the owners would lock their doors to keep organizers out. Whatever the reason, locking those doors had devastating effects. 

On that fateful day in March, a fire broke out that was fueled by thousands of pounds of fabric. Many were able to escape to the roof and then to adjoining buildings. Unfortunately for those on the ninth floor, there was very little means of escape. The elevator proved inadequate as it was only able to accommodate 12 people at a time, and the operator was only able to make four trips before it broke down totally. Bodies of many of the workers were found at the bottom of locked stairwells or in the elevator shaft when they tried to escape. The fire escape was flimsy and when it became overloaded with panicked women, it broke and sent dozens to their death. Those trapped in the factory by the fire were left with the agonizing choice of jumping to their deaths or being burned alive. Many chose to jump. Bystanders recounted stories of seeing victims kiss each other or hold hands as they jumped two and three at a time; they described the horrific thud as bodies landed on the stone streets below. When the final tally was taken, 146 people had perished. The catastrophe sent shockwaves throughout New York City and the immigrant communities of Manhattan’s Lower East Side, where families struggled to recognize the charred remains of their loved ones in makeshift morgues. 

On March 24, 1911, the New York Court of Appeals declared the state’s compulsory Workers’ Compensation law unconstitutional. The next day, 146 people were dead from that Triangle Shirtwaist fire. With no Workers’ Compensation system in place, family members and dependents had to turn to the courts in an attempt to force Triangle to compensate the injured and the families of the deceased. A civil suit brought by 23 victims’ families against the owners netted a whopping $75 in damages per victim! New Yorkers were appalled and angry at the greed and negligence of the owners and managers. 

The Triangle Shirtwaist Factory Fire was a preventable tragedy caused by unsafe work conditions and was a catalyst for change. New York finally adopted a Workers’ Compensation law in 1913. This law was intended to protect workers from unsafe working conditions and afford them with wage replacement benefits and medical treatment in exchange for giving up their right to sue. Unfortunately, we see an erosion of many of these benefits under the guise of reform, while insurance companies have made record profits. This month, while we acknowledge this grim anniversary, we need to make sure that these women’s deaths were not in vain. Let us never forget the reason Workers’ Compensation laws were enacted, and let’s be sure the system is not watered down to the point that injured workers and their families go back to getting $75 for a preventable death.

  

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717. 

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“Cost-Shifting” Exposed: How Injured Worker Medical Care Decisions Are Made (And Who Pays)

Medical coverage is a topic on everyone’s mind. Obamacare, while controversial, has started a real dialogue in this country regarding health care. Regardless of whether you are in favor of the current law, most Americans want affordable health care for themselves and their families.

Many employers pay for a substantial amount of their workers’ premiums as a benefit to them, and take this into consideration when making salary decisions due to the high cost, thereby leaving workers to pay for all or some of their medical coverage. Sometimes insurers pay for benefits that are not their responsibility because the proper entity refuses to pay. This is known as cost shifting. As a practitioner in the field of Workers’ Compensation, this idea of cost shifting has become an all too common occurrence. 

By way of background, as a result of social reform, most states enacted some form of Workers’ Compensation legislation in the early 20th Century. In exchange for timely payment of medical and indemnity benefits, workers gave up the right to sue their employers. In 2007 in New York, there was a series of further reforms that led to compromise between labor groups, the insurance industry and the Business Counsel. There was an increase in the amount of weekly benefits to injured workers to conform with the State average weekly wage (now a maximum of approximately $800 per week) in exchange for a limit on the amount of weeks an injured worker is entitled to receive these benefits.  Additionally, medical treatment guidelines have been introduced with the premise that they would streamline costs and get injured workers faster and more effective medical care. These guidelines are based upon the principles of Evidence Based Medicine (EBM), which is the use of clinical trials and data to determine whether a specific treatment should be recommended for a specific diagnosis.  It is sometimes referred to as “cookbook” treatment. 

In New York, the Court of Appeals recently ruled by a 4-3 margin that any treatment not specifically included and pre-authorized is presumptively unnecessary. In other words, if a treatment requested is not within the medical treatment guidelines, it is denied. This takes the decision making out of the hands of the treating physician who is really in the best position to determine what treatment would be most beneficial for patients. In order to overcome this presumption, the doctor now must engage in what has been seen in most cases as an exercise in futility to request a variance to overcome this presumption.

The New York Committee for Occupational Safety and Health (NYCOSH) reported that the New York State Workers’ Compensation Board received 202,643 variance requests in the first 10 months the guidelines were implemented. A quarter of the requests were rejected by the Board immediately. The rest can lead to protracted litigation. As a result, in many instances injured workers will now shift the cost to another party, such as their own private insurance, Medicare or even worse, pay for the treatment out of pocket. It is the path of least resistance. We all pay an additional price for medical costs borne by group health insurance carriers, Medicaid, and Medicare that should in fact be paid by Worker’s Compensation insurers. This cost shifting may increase Workers’ Compensation insurance profits, but it hurts both the employers’ and the employees’ bottom line. Injured workers don’t stop needing treatment just because their medical claim is denied. Someone has to pay for the cost of lost time and medical treatment. It is time that the proper party step up and take responsibility.

 

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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New Law Protects People From Deadly Carbon Monoxide

As an attorney who has practiced in the field of Workers’ Compensation for more than 25 years, I have represented thousands of injured workers, spouses, and families of workers killed on the job. Sadly, many of these deaths and injuries were preventable.

I recently read a blog published by an attorney friend of mine from North Carolina involving carbon monoxide poisoning. I thought it was extremely timely as on December 30, 2014, New York State Governor Cuomo signed into law new legislation that requires every restaurant and commercial building in the state to install carbon monoxide detectors by June 2015. This law, known as Steven Nelson’s Law, was named in honor of Mr. Nelson, a Long Island restaurant manager killed on the job as a result of carbon monoxide poisoning from a malfunctioning water heater flue pipe in the basement of the restaurant. Just this week, two men were found dead in Long Island at a Holbrook auto detailing shop from apparent carbon monoxide poisoning. Every household should have a carbon monoxide detector, just as every house should have a smoke detector. Under the existing New York State law, every one- or two-family home, condominium and cooperative, and each unit of a multiple dwelling constructed or sold after July 30, 2002, must have a working carbon monoxide detector. This law regarding residential dwellings was passed in 2010 and called Amanda’s Law after a young girl who died after sleeping at a friend’s house where there was a clogged boiler vent. Restaurants and other commercial buildings were excluded prior to Steven Nelson’s Law. But not only is it important to have a CO detector, it’s equally as important to be sure it is working properly. Test it on a regular basis, along with your smoke detector, and be sure to replace the batteries once a year.

The Centers for Disease Control and Prevention (CDC) estimate that at least 430 people die each year from unintentional carbon monoxide poisoning (www.cdc.gov/features/copoisoning/). Winter is the most dangerous time of the year for carbon monoxide poisoning because of improperly used generators and heavy snow drifts that can clog heating vents.

Carbon monoxide (CO) is a colorless, odorless, and tasteless gas that can severely damage the human body, and as noted above, in some cases can lead to death. Symptoms include headaches, dizziness, vomiting, confusion, weakness, blurred vision and nausea. Extreme symptoms include severely impaired mental state, coordination loss, loss of breath, increased heart rate, chest pain, and loss of consciousness. Anyone experiencing CO poisoning symptoms should be removed from the enclosed environment and taken to a medical professional. Call your local authorities to make a report.

Be aware of CO sources in your home. Any gas-burning appliance such as a furnace, boiler, gas stove, water heater, fireplace or gas-powered tool can be a CO source. Make sure these types of appliances are serviced regularly to lower the risk of CO poisoning. Don’t put a gas generator in the house, garage, or outside your house near a window. Generators have the capability of producing CO levels several hundred times those found in normal automobile exhaust. The CDC recommends that generators should be used at least 20 feet away from your house in a properly ventilated area.

It is unfortunate, but typical, that many laws are enacted as a result of a tragedy. Death or injury by carbon monoxide poisoning is completely preventable. A simple device can save your life.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

 

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Public Employees, Claim Your World Trade Center Disability Law Benefits

January 2015 is a milestone for me as it marks my 25th anniversary as an attorney.

It is always imperative to keep up with changes in the laws, particularly those impacting injured workers as I focus on Workers’ Compensation claims. I am the daughter of a retired NYC Firefighter and the sister of two firefighters, one of whom retired on a disability pension as a result of his lung condition caused by the toxins in the air after 9/11. Besides needing to know the law as a professional, I want to know about updates, as they can affect my family.

For those public employees who were at the World Trade Center site after September 11, 2001, in rescue or recovery, or were public civilian employees injured as a result, it is imperative that you notify your retirement system that you were present. Under the State World Trade Center Disability Law, those sickened by their recovery work are eligible to receive lifelong enhanced disability payments upon retirement and your families can receive benefits if you pass away. In 2013, New York State Senator Martin Golden and State Assemblyman Peter Abbate co-sponsored a bill that extended the deadline to file the Notice of Participation until September 11, 2014. This deadline was subsequently extended again until September 11, 2015 for members of those “covered” employees.

Some employees had previously been denied coverage because their diseases were not initially covered. The law protects the following individuals who responded to the collapse of the WTC: Uniformed members of the NYPD, FDNY, DSNY, and DOC, and other civilian employees including EMS workers, 911 dispatchers and supervisors, emergency vehicle radio repair mechanics, vested members of a public pension system who stopped working before filing a claim, and workers who became disabled more than two years after the WTC disaster but before the Workers’ Compensation Law was extended.

Civilian employees who did not have a pre-employment physical can apply for a disability pension by providing medical records that show no pre-existing condition before 9/11. Death benefit legislation, enacted in 2006, provides an accidental death benefit to City employees within this same eligibility group.

The bill allows police officers, firefighters, and other civilian employees hired before July 26, 1976, who retired for non-WTC accidental disability to have their retirement reclassified as accidental. Verification of service at a WTC site during the period indicated varies according to the pension system. Independent medical boards (each pension system has its own medical board) review the applications initially and report to the Boards of Trustees. If a disability is found, the pension system’s Board of Trustees makes a final decision on the application.

Only 911 operators and supervisors who worked within the first 24 hours after the first plane hit the Towers are eligible for WTC-related benefits. In addition, 911 operators and supervisors may only apply for benefits based on the qualifying psychological conditions.

While this extension is not anticipated to open up a floodgate of additional claims, for those people who qualify, the benefits can be substantial. The size of the payments depends on the worker’s job title, when they were hired, and their retirement tier. While there can be no real compensation when your health is affected, this is a small step to assist our First Responders who deserve to have their retirement less worrisome when it comes to financial issues.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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James Brown and Attorney/Client Relations

Artist James Brown

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

If you haven’t seen the recent movie or HBO documentary on James Brown, you should check it out. He made me think about these top ten client relation tips:

  1.  Treat all clients with respect and dignity.
  2.  Try to understand the stress that our clients are under, especially when they are upset.
  3.  At the same time, do not tolerate verbal abuse from clients. Respect works both ways.
  4.  Keep boundaries. Clients need you to have an objective view, not become their best friend.
  5.  Clients don’t care how much you know, until they know how much you care.
  6.  Be honest in all things, at all times. Keeps you out of trouble.
  7.  Building good relationships are the foundation blocks of success.
  8.  Keep the client informed about what you are doing.
  9.  Be prepared and be thinking about going to trial from the first day. Cases settle more often and you get better results when you are prepared.
  10. Think about James Brown. He was the “hardest working man in show business” for a reason. He gave it everything he had, and it showed.

 

 

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Injured Worker Stakeouts: Do Private Investigators Commit Fraud?

Today’s post comes from guest author Leonard Jernigan, from The Jernigan Law Firm.

Have you noticed a suspicious vehicle lurking in your neighborhood lately, or is there a stranger that seems to be everywhere you go? If you have an active workers’ compensation claim, then you may not be imaging things. More and more, we are seeing insurance companies willing to spend thousands of dollars to hire private investigators to conduct clandestine surveillance of an injured worker’s daily activities and documenting these activities with video cameras. This type of surveillance often comes as a shock to our clients.

When these situations arise, the question we hear most often is, “Can they do that? Is this legal?” The answer is yes. Private investigators may photograph or video people in their private residences so long as they are clearly visible to the general public and there is no expectation of privacy. They can also conduct a full background investigation and obtain information about any other claims you made for personal injuries or if you have ever been charged with a crime.

While there are honest private investigators in the field, there are also those who will cheat. One investigator deflated an injured worker’s tire and then videotaped the person “working” to fix the flat tire. Another investigator reported talking on the phone to someone who told him that an injured worker was working while also receiving workers’ compensation benefits. A follow up done by our firm proved that the person with whom the investigator claimed to have talked has a serious hearing impairment and could not use the telephone.  

Injured workers need to be aware that surveillance can happen in any case. It has become part of the workers’ compensation system. By the way, if you do notice a suspicious car parked near your home, call the police.

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