Category Archives: Legislation

Despite Majority Support, Albany Legislators Fail To Consider Lavern’s Law

Lavern Wilkinson’s family was barred from seeking justice because of an archaic law.

There was a recent lawsuit filed by a woman against a major coffee chain for injuries sustained when the lid came off of a coffee cup as it was being handed to her by the barista. According to the lawsuit, the woman sustained serious burns as a result and missed more than a month of work. The lawsuit was filed two years after the accident occurred and the injured woman maintained the only reason she pursued legal recourse was that the coffeehouse failed to respond to her repeated requests for payment of medical bills. The woman indicated she was very hesitant to file a law suit as she was opening herself up to ridicule. I was extremely saddened by her reaction, but understand her reluctance.

This case brings up a similar story from a number of years ago when another woman filed suit after she was injured by scalding hot coffee in a McDonalds drive thru when it spilled on her. This was the topic of conversation for many talking heads, citing it as the poster child for frivolous lawsuits that clog the court system and cost hard-working taxpayers billions of dollars every year. The lawsuit became fodder for countless comedians and an alarm for tort reform around the country. 

What was left out in the entire media blitz is the fact that the injured woman – Stella Liebeck – then 79 years old, asked McDonalds to pay for the medical bills totaling approximately $20,000, but they refused. It was only then that she filed the lawsuit, as she sustained third degree burns over 16 percent of her body, necessitating hospitalization for eight days, skin grafts, and horrific scarring. McDonalds admitted they knew the coffee could not be consumed immediately as it was at a scalding temperature and had to cool down. The company also admitted it was aware that more than 700 people had sustained serious injuries in the 10 years prior to the Liebeck lawsuit. It appears their coffee was kept at such a high temperature in an effort to last longer. In this case, McDonalds made a conscious decision to put savings before consumers. 

The tort reform movement has been fabricating or exaggerating facts for years to push its agenda, with the legal profession being portrayed negatively on many occasions. As an attorney, I laugh along with others at the humorous lawyer jokes I hear. But putting aside that humor, I am proud to be an advocate for the injured. I have seen first hand what can happen as a result of the negligence of others.

Last week the New York State Legislature had an opportunity to rectify an unjust, archaic law by passing a bill known as Lavern’s Law, named after a woman who died of cancer three years after she had gone to the emergency room with a cough. The hospital performed an x-ray and sent her home, but never advised her that the x-ray showed a curable cancer growth. By the time she discovered the cancer was terminal, she could not seek justice because the time to file the suit had passed.

Lavern’s Law proposed to start the statute of limitations from the time a patient discovers the malpractice, rather than from the time the medical malpractice occurred. Unfortunately for many victims of malpractice, the bill never reached the floor for a vote despite overwhelming support by a majority of both the Assembly and Senate. Those who opposed this bill felt it would cause malpractice insurance to skyrocket and put many in the medical profession out of business.

The opposition misses the point. A tort in law is a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who committed the act. It holds accountable the person who caused the injury. The current law for malpractice claims weakens incentives for hospitals and doctors to improve patient safety measures so these harmful incidents never happen in the first place. Lavern’s Law and other laws allowing citizens the right to jury trials actually result in a safer and healthier society.

Hopefully Lavern’s Law will be a continued topic of conversation when legislators return to Albany in January. Malpractice isn’t always discovered within what the current law considers a timely fashion. However, that doesn’t mean that injured people won’t suffer for the rest of their lives, or die, due to the negligence of others.

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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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Please Join the Fight to Pass Lavern’s Law

Lavern Wilkinson was a single mom with a severely handicapped daughter who died in March 2013 from a curable form of lung cancer.  She had gone to the Emergency room at Kings County Hospital in 2010 with a terrible cough.  The staff there performed an x-ray which showed a suspicious mass but she was never notified of this and was sent home.  When she returned back to the hospital 2 years later it was discovered that the cancer had spread and her condition was terminal.   When she tried to sue the hospital to ensure financial security for her disabled child she was advised that the current statute of limitations barred her from seeking damages against the hospital.  Tragically Lavern died in March 2013. 

Unfortunately Lavern is not alone. Lissy McMahon has stage 4 uterine cancer. In 2012, she was told that a uterine fibroid was benign.  In 2014, after the statute of limitations expired, she found out her initial doctors were negligent and she, in fact, had stage 4 uterine cancer.  Watch her explain in her own words what this means for her and her son Jack.

 
Please post on social media and/or Tweet this link out using #lavernslaw. Share this video, so that more people can hear Lissy’s story in her own words.  
 
Join the Fight to Pass Lavern’s Law on Facebook
 
Lissy’s story has been featured in Newsday, the New York Daily News and on Fox 5 News.  Our elected officials are also hearing the voices of people like Lavern Wilkinson, Jennifer Estrella and June Dreifuss in the press.
 
Lavern’s Law – A.285A (Weinstein)/S.6596 (DeFrancisco) – would allow these families to seek justice.  
 
The Assembly passed the bill last year and there are 38 co-sponsors in the 63 member State Senate.  We are hopeful that since the majority of the Senate supports the bill  – which the Governor supports as well – it will be brought to a vote.
 
Please reach out to your Senator and Assemblymember and urge them to support bringing the bill to a vote.

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Give Injured People In New York The Time Necessary To File Medical Malpractice Claims

Lavern Wilkinson’s family was barred from seeking justice for her death due to the statue of limitations. (DEBBIE EGAN-CHIN/NEW YORK DAILY NEWS)

Almost two years ago, many of us were shocked and saddened when we heard Comedian Joan Rivers was critically injured during a medical procedure and was subsequently removed from life support. I had been lucky enough to see her perform live; she was so full of energy and had such an incredible presence. Although Ms. Rivers was 81 years old, she was actively performing at the time of her death and had a number of appearances scheduled. 

I just read that her family reached a settlement in their malpractice claim against the clinic that performed the procedure, ultimately leading to her death. It appears the clinic engaged in procedures not authorized by the comedian, and they were performed by physicians not licensed to perform them in the clinic setting. Most disturbing was that the medical personnel failed to properly identify her deteriorating condition during the procedure, which caused damage to her brain and heart when her oxygen levels decreased. The settlement is rumored to be in the tens of millions.

While Joan Rivers’ death was tragic, her family was able to secure their financial future as the current law in New York allows for a two-and-a-half-year statute of limitations from the date the medical malpractice occurred to file suit against private, nonprofit hospitals or doctors. That window, however, is just 15 months when suing a municipal hospital. In Joan Rivers’ case, it seemed obvious from the very beginning that her death occurred as a result of medical error and a lawsuit was commenced.

There are many others who have been prevented from seeking justice and monetary benefits as a result of medical malpractice because it was not discovered until after statute of limitations passed. One example of this was Lavern Wilkinson, a single mom with a severely handicapped daughter, who died in March 2013 from a curable form of lung cancer. Wilkinson had gone to the emergency room at Kings County Hospital in 2010 with a terrible cough. The staff performed an x-ray showing a suspicious mass, but the single mom was never notified of this and was sent home. When she returned to the hospital two years later, it was discovered that the cancer had spread and her condition was terminal. When she tried to sue the hospital to ensure financial security for her disabled child, she was advised that the current statute of limitations barred her from seeking damages against the hospital. Tragically, Lavern died in March 2013. Unfortunately, Lavern is not alone in this miscarriage of justice. There are so many more horrible examples of people who did not find out about the errors committed by medical personnel within the two-and-a-half-year years they have to file. New York is one of only six states that adhere to this archaic rule; 44 others allow for some sort of statute based upon the date of discovery of the malpractice.

There is currently a law pending in the New York State Legislature that would address this travesty. This bill would provide that the two-and-a-half-year statute of limitations begins when the patient knows or should have known an alleged negligent act caused injury. This bill was introduced more than a year ago and is still pending. It is known as Lavern’s Law – named after Lavern Wilkinson. Lavern’s death should not be in vain. Ask your State Legislator to support this law and give victims of medical malpractice the justice they deserve.

 

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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On The Ground In Albany: Lobbying To Preserve Your Benefits

The New York State Capitol

For the last five years, lawyers practicing in the field of Workers’ Compensation have used their voices to educate our State Senators and Assembly members on issues impacting injured workers. In keeping with this strategy, last week I attended Lobby Day in Albany with 70 other colleagues, including 11 members from my law firm, and we met with more than 50 of our state leaders. There was an added sense of urgency this time as Governor Cuomo has proposed a number of changes in the budget that would adversely affect those who get injured on the job.

In past few weeks, I have written about these budget proposals as part of the continuing attacks on injured workers and the less-than-adequate benefits they currently receive. The proposed budget amendment would grossly and negatively impact the ability of an injured worker to get a full and fair settlement. The law currently directs the insurance carrier to deposit the present value of a settlement into a fund to ensure that this money is available in the future or in the alternative, to settle the claim with the injured worker. Many insurance carriers opt to pay the money to the injured worker instead of depositing it into a fund. Without the worry of this deposit, there is less of an incentive for the insurance company to settle a claim that could lead to lengthy and time-consuming litigation with the injured worker receiving minimal or no benefits until the law judge makes a decision.

One of the proposed measures would give the Workers’ Compensation Board the power to qualify doctors and to bar them from the system. This is unacceptable. Doctors should be regulated by other doctors instead of by bureaucrats.

Even more egregious are the attacks and restrictions on due process. Injured workers should be entitled to a fair and impartial hearing. The budget proposals would remove the right of injured workers to have their cases heard by the same judge. The ability to direct policy and decisions would open the door to potential abuse. Additionally, if injured workers wish to appeal a detrimental decision, the appeal would be decided by one individual as opposed to the current three-panel of commissioners. Current law provides for the appointment of commissioners by the governor with approval by the legislature, which provides for some checks and balances. The Workers’ Compensation Board would instead be given unchecked power to control the outcome of every decision.

The Business Counsel was in favor of many of these changes as it felt they would help decrease costs and increase profit margin. However, an analysis by the New York Compensation Insurance Rating Board (NYCIRB) of the expected financial impacts of the governor’s proposed reforms found no solid evidence that these changes would result in any meaningful cost savings. At this juncture, one has to wonder why these proposed changes are still being pursued by the governor. Anyone who has been injured on the job, or knows someone who has been injured, knows that it has become more and more difficult to navigate the process to obtain benefits. We do need reform, but it should be done to improve the lives of those injured at work. These proposals are certainly not in workers’ best interest. If you agree and want to know what you can do, please click here to sign the petition to stop the further erosion of workers’ compensation. We need to insure that those vulnerable members of our families, community, and state are not abandoned by their government for wrongly perceived cost- cutting measures.

 

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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Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.

 

 

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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OSHA Reports that Cost of Work-related Injuries are Shifting to Employees

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

Many decades ago, OSHA created workplace safety standards to help employees avoid injuries from dangerous working conditions. Despite these standards, each year more than 3 million workers are seriously injured or killed while on the job. Because Workers’ Compensation fails to cover all the costs of injury, some low-wage workers (who have a disproportionate rate of injury and have more hazardous occupations than other workers) are slipping below the poverty line ($24,250 for a family of four), and the financial burden of work-related injuries is shifting from those who created the unsafe work environment to the families and workers who are injured. In 2012 alone work-related injuries and deaths cost $198 billion, according to the National Safety Council.

According to a recent report by OSHA, Workers’ Compensation only covers about 21% of lost wages and medical costs, so injured workers and their private insurance policies are then forced to cover on average 63% of the injured worker’s medical bills. Taxpayers are picking up the final 16% of work-related injury costs.

The solution to this inequality is for companies to create a workplace that prevents injuries and illnesses from occurring in the first place. OSHA believes that the reason for the majority of work-related injuries and fatalities is due to a combination of the misclassification of employees as independent contractors, the rising usage of temporary workers, and workers from different companies that are forced to work together at the same jobsite despite differences in training.  About 4,500 workers are killed on the job every year according to the Bureau of Labor Statistics. Three million serious occupational injuries and illnesses are reported annually and OSHA suspects that this figure is only a fraction of the unreported number of injuries and fatalities on the job.

Read more about the cost of failing to protect workers here: http://1.usa.gov/1zJOFCC

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Alternatives to Workers’ Comp: Paranoia or Possibility

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

I joined a national organization of lawyers representing injured workers (the Work Injury Law and Advocacy Group) twenty years ago when it was first formed. Then, I heard horror stories about legislators messing with an otherwise stable workers’ compensation system after every election cycle. My colleagues in other states were constantly fighting battles over workers’ compensation “deform.” 

I thought we were insulated in Wisconsin because we had a workers’ compensation advisory council composed of labor and management who every two years fought out a compromise bill and submitted it to the legislature, which automatically rubber-stamped the proposed bill without changes. That changed in Wisconsin in 2014. For the first time in nearly 50 years, the Republican legislature rejected the “agreed upon” bill proposed by the workers’ compensation advisory council, despite the approval of the bill by management members.

Governor Scott Walker’s most recent budget contains a provision to dismantle the workers’ compensation system as we know it. Those of us representing injured workers (and those rational members on the management side) are busy lobbying to remove the workers’ compensation dismantling provisions from the budget.

It is no secret that many major corporations dislike workers’ compensation, despite statistics indicating premiums are at their lowest for employers, and profits at their highest for insurers. However, nearly two dozen major corporations including Wal-Mart, Nordstrom’s and Safeway are behind a multi-state lobbying effort to make it harder for workers hurt on the job to collect workers’ compensation benefits. The companies have financed a lobbying group the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) that has already helped write legislation designed to have employers “opt out” of a State workers’ compensation system. ARAWC has already helped write legislation in Tennessee. That group’s executive director Richard Evans told an insurance journal in November that the corporations ultimately want to change workers’ compensation laws in all fifty states. Lowe’s, Macy’s, Kohl’s, SYSCO Food Services, and several insurance companies are also part of the effort. The mission of ARAWC is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers who opt out would still be compelled to purchase workers’ compensation plans, but would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can receive medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of State-mandated workers’ comp. In that state, for example, Wal-Mart has written a plan that allows the company to select the physician and the arbitration company that hears disputes. A 2012 survey of Texas companies with private plans found that less half the companies offered benefits to seriously injured employees or the families of workers who died in workplace accidents. 

Oklahoma passed an opt out measure in January 2014 and the oil and gas industry along with major retailers such as Hobby Lobby pushed hard for the change. ARAWC wants to take that Texas and Oklahoma model nationwide. Seeing the workers’ compensation provision in Wisconsin’s budget bill as part of this overall “scheme” may seem paranoid, but the history of recent “deform” legislation suggest the connection is at least a possibility. 

See the complete article at http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation.

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Sick Leave Should Be Accessible to All

Today’s post comes from guest author Emily Wray Stander, from Rehm, Bennett & Moore.

Amid the debate about flu and immunizations and preventable diseases lurks a societal problem that’s getting more attention lately and directly affects the spread of those medical crises: paid sick leave for employees.

Although discussing the consequences of Ebola may be interesting, many people in the United States, including Nebraska and Iowa, are living with the consequences of pertussis (whooping cough), a rampant flu season, and measles outbreaks.

This blog has featured this subject in the past, almost exactly two years ago, when there was a flu epidemic. It was argued then, in one of the firm’s more popular blog posts, that sick people should not be forced to work and spread their germs to their co-workers and customers, in addition that working while sick tends to make people even more ill. Not having sick leave available to take becomes a public health and societal risk. In addition, not being able to provide care for sick children or loved ones results in family struggles and workers worrying, rightfully so, while they should be focused on work at work.

The issue is also affecting children, especially those who are low-income, according to the 2014 Kids Count Report in Nebraska.

A recent Marketplace Morning Report article highlighted the need for policy change through the Healthy Families Act “that would guarantee workers could earn up to seven days of paid sick leave per year.” For example, the Bureau of Labor Statistics is quoted in the story that “24 percent” of those in the restaurant industry and “47 percent of retail workers get paid sick leave.” It also shares the economic burden of the results of people who don’t get paid sick leave coming to work sick. “Underperforming at work, or even damaging equipment or products because of diminished capacity or the effects of medication is known as ‘presenteeism.’” Sickness and presenteeism costs more than $375 billion a year, according to the article.

Esther Cepeda also recently addressed both paid sick leave and presenteeism in a column: “Working while sick even when you can have the time off is a thing. Many workers take great pride in coming to work ill, and there are a fair number of their colleagues who wish they’d stop.”

Although it may be a pretty big challenge in some industries to provide paid sick time, Ms. Cepeda argues that those are the most important industries to have it, as was also argued in the firm’s flu blog post from 2013.

“Food service aside, there are any number of jobs – most of them low-wage, part-time service jobs – where you don’t want the worker to be miserably sick or mentally checked out, worried about their sick loved one, because they can’t afford to call off work and lose the pay or possibly the job.”

Also important to note, being “checked out” can lead to safety incidents and workers’ compensation claims, and having employees mired in presenteeism just isn’t good for anyone.

So as the article in this link mentions, I think it’s very important for both workers and employers to consider the importance of quality of life considerations: keeping healthy people from being exposed to sickness and supporting sick people (or people with sick loved ones) by giving them the chance to stay home and still get paid so they can focus on becoming healthy people again.

Because as Ms. Cepeda argues, it benefits all for people to be as healthy as possible.

“Those of us who have the choice or flexibility to take an available sick day must speak up for those who are penalized for life’s inevitable speed bumps. It’s ultimately in our own best interest.”

Issue is also affecting children:  Report: Nebraskans working hard, but falling behind — and kids are paying the price

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