Tag Archives: Benefits

Governor Cuomo’s Proposal Benefits Big Businesses, Hurts Working People

As an attorney practicing in the field of Workers’ Compensation for more than 25 years, I have represented thousands of injured workers. My job as their advocate has been extremely rewarding.   Most of my clients are honest, hardworking people who got up one day, went to work, and suffered an unforeseen accident. Not every case was easy, but in the end, the injured worker would usually prevail in getting adequate wage replacement and prompt medical treatment because the system was reasonable and the fight was fair. 

Unfortunately, the last 10 years have not been kind to injured workers. I have seen a shift in attitude in some of my clients. Many feel the need to explain that they are truly hurt as if there was any doubt in my mind. I realized that this was happening as a result of the propaganda perpetrated against the injured – that somehow they were faking their accident, or didn’t really deserve the benefits they were receiving. It dawned on me that this attitude has been influenced by a large-budget marketing strategy aimed at making the general public believe that those who get hurt are perpetrating a fraud against the system or filing frivolous lawsuits in order to obtain benefits they don’t deserve.

Big business has made the injured worker the scapegoat for the failing economy and the cost of doing business not only in New York but across the country. In fact, Governor Cuomo even seems committed to the Pro-Business Agenda to reduce costs and increase profits. A couple of weeks ago I outlined the Governor’s budget proposals that were not a part of his public address, as well as the Business Council’s wish list that would ensure cost savings at the expense of the injured worker. Some of these proposals included a reduction in the amount of wage replacement injured workers receive, as well as a limit on their medical treatment and choice of treating doctor. It also would limit worker access to the Workers’ Compensation system by limiting – or even eliminating – hearings before a judge, or giving the Board the ability to handpick judges to listen to certain types of cases. These limitations are designed to “save money” at the expense of the injured worker. The Governor has said that one of his motivations for adding these “reforms” to the budget was based on increasing costs to employers. The Business Council has lobbied for changes saying that costs to employers have gone up, not down. However, this directly contradicts Governor Cuomo’s statement in 2014 announcing that the 2013 Business Relief Act had cut Workers’ Compensation employer costs by 30%.   

The line in the sand has been drawn. The average worker in this country works paycheck to paycheck and does not have the funds for a big budget marketing strategy to counter this position. However, as a result of the attacks on workers in this state, a number of groups have indicated their opposition to the Business Council’s proposals. The New York Workers Compensation Alliance points out that after the 2007 reforms, Workers’ Compensation has replaced less than 10% of the lost wages of permanently disabled workers, and the current proposals made by the Business Council would render Workers’ Compensation virtually meaningless as a source of wage replacement benefits.  

The New York Committee for Occupational Safety & Health (NYCOSH) slammed the Business Council for putting profits over safety. The NYS AFL-CIO is opposed to the changes noting that they would “alter the system to such an extent that many injured workers could never expect to maintain a decent standard of living”.  Let your voice be heard. Call your State Legislators. Let them know while no one goes to work expecting to be injured, it can happen to any of us at anytime and everyone deserves to be treated fairly.

 

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 a past president of the New York Workers’ Compensation Bar Association, 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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“Reform” Warning – Governor Cuomo’s Proposed Budget Reduces Workers’ Compensation Benefits

Recently Governor Cuomo delivered his State of the State address for 2016. I heard the live telecast and noticed that many of the proposals in the budget are positive and beneficial to working class people, including allocating an additional $2.1 billion in school funding; rebuilding the infrastructure to improve roads and mass transportation; increasing the minimum wage to $15 per hour; and bolstering public safety. In reviewing the actual budget proposal itself, however, there appears to be amendments to the Workers’ Compensation system that will not benefit injured workers and their families.

In order to understand the so-called “reforms” on workers, you need the historical perspective. Prior to the enacting of state Workers’ Compensation statutes, simply put, workers were allowed to sue their employers for negligence. In the early 20th century, spurred on by social reformers and the tragedy of the Triangle Shirtwaist Factory Fire that killed almost 150 women and girls, laws were enacted to protect workers. Known as the “great compromise,” workers gave up the right to sue their employers in exchange for timely payment of medical and indemnity benefits. For much of that century, Workers’ Compensation laws were expansive and assisted injured workers in getting treatment so they could eventually return to work or receive ongoing benefits in the event they could not.

Today most states have seen changes where the concept of medical treatment and wage replacement for injured workers is being substantially eroded. This agenda to reduce benefits to the injured worker has been part of a nationwide effort starting more than 20 years ago by the Business Council (aka the Insurance Industry). Their agenda was put into effect almost nine years ago here in New York when workers gave up many benefits under the guise of “reform.” These included a reduction in the amount of wage replacement injured workers receive and a limitation on medical treatment in exchange for increasing the weekly benefits more in line with the state average.

Now the Business Council is back to further chip away at injured worker benefits. It has put together a wish list in hopes of further reducing medical benefits and monetary benefits to injured workers who should be able to rely on their treating doctors to determine the best course of treatment. However, one of their proposals is that treatment would be determined by a “panel” for the first 90 days of treatment. This panel, of course, would not include a doctor of the injured workers’ choice, but would be determined by the insurance company for the employer.

Additionally, the Council is proposing a cap on benefits based upon a fixed timeframe as opposed to when injured workers finish their treatment and/or surgical procedures. These measures are being proposed strictly based upon the cost savings realized by the insurance industry and have nothing to do with compensating injured workers or ensuring them of the best treatment available for their particular injury. What this will do, in essence, is shift the cost of medical treatment and wage replacement to other sources such as federal programs and state programs that are paid for by the tax payer instead of the employer’s insurance company. This will ensure continued growth in profits for the insurance industry at the expense of injured workers and their families.

Governor Cuomo’s budget proposal contains some of the Business Council’s “wish list,” but thankfully not everything – at least not yet. Please contact the Governor, your State Senator or Assembly Person and tell them that our rights and benefits should never be negotiated away. Workers are the backbone of this country. They have built this nation and rebuilt New York. We must ensure they are taken care of when they get hurt.

 

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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Action Needed To Ensure Sick 9/11 First Responders Receive Benefits

Animal Control Officer Diane DiGiacomo

A couple weeks ago, the Workers’ Compensation community was stunned over the outcome of the case of Animal Control Officer Diane DiGiacomo who developed cancer from exposure to toxins in the air after 9/11. Diane’s job was to search for and rescue pets near Ground Zero when many of the buildings surrounding the area were either evacuated or abandoned for weeks after the terrorist attack. 

Diane had filed a Workers’ Compensation claim after being diagnosed with breast cancer that had metastasized to her brain. The judge ruled that she was not entitled to New York State Workers’ Compensation benefits because she had not filed a timely claim. At the time of the ruling, Diane was bedridden and weighed a mere 60 pounds. Tragically, four days after the decision, she died as a result of her cancer. While my firm did not represent her, Diane’s tragic story touched many of us in the industry, whether as advocates for the injured worker or as defense counsel. What makes this case particularly sad is that the judge noted it was clear from the medical evidence that the cancer developed at least in part due to her exposure to the toxins in the air. Unfortunately, Diane was not entitled to Workers’ Compensation benefits because the deadline to register had passed.   

In order to be able to obtain Workers’ Compensation benefits for exposure after the 9/11 attacks, those who participated in the rescue, recovery, and clean up operations had to file a TWC-12 registration form prior to the current deadline of September 11, 2014. You did not have to actually be sick to file this form, but it preserved your rights if you worked in the area to file a claim later if you were found to be sick. It should be noted that the deadline has been extended twice because many of the illnesses such as cancer are slow starting and do not manifest themselves until many years after final exposure to toxins. The New York State Legislature has not extended this deadline again, at least as of this date.  

Officer DiGiacomo did not file her claim until sometime after September 11, 2014, because she was not actually diagnosed with cancer until after this date. According to the New York State Workers’ Compensation Board website, as of September 11, 2011, there were close to 49,000 WTC- 12 forms filed; however, hundreds or even thousands more may have been at the site doing rescue, recovery, and clean up and have not registered precisely because they were not sick as of the deadline or they didn’t know they had 9/11-related medical conditions. Perhaps it was based on their lack of understanding of the law or the opinion of some that they did not want to register because they somehow felt they would be taking benefits away from those who were already ill. Whatever the reason, it is imperative that the deadline once again be extended so that those who are currently ill, or become ill, have the full protection of the law.  

A bill introduced in the New York State Assembly by Assemblyman Peter J. Abbate, Jr., and co-sponsored by Assemblyman Phillip Goldfeder to extend the deadline to September 11, 2017, is still sitting in Committee. While Officer DiGiacomo did not live long enough to see the deadline extended, it is not too late to compensate her son and the rest of her family. Let’s make sure that those who helped get our city back on its feet are not forgotten.

 

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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Yes, Monetary Benefits Are Available For Injured Volunteer Firefighters

I recently read the news about a benefit fundraiser being held for the widow of a Long Island volunteer firefighter who died in the line of duty when the floor he was on during a fire collapsed. The volunteer, only 43 year old, left behind a widow and a 19-year-old daughter.  He had served his community for 17 years as a volunteer and in addition, worked for the Nassau County Public Workers Department. This tragedy once again reminds us of the dangers of the firefighting profession.

Most New York City residents are protected by a paid force of brave men and women who are employed by the City. The Fire Department of New York is the largest municipal fire department in the United States, employing more than 10,000 uniformed firefighters. I am proud to say that my brother Danny serves as a Lieutenant in the FDNY, and my brother Bob and my dad are both retired from the force.   

There are still nine volunteer fire companies left in New York City that respond to calls in their neighborhoods; more than half of them are located in Queens – West Hamilton Beach, Broad Channel and the Rockaways. As these men and women are not compensated for their service to their communities, most of them have paying jobs elsewhere. However, they are still entitled to benefits if they are ever injured on the job. The New York State Workers’ Compensation Law provides benefits for those volunteers injured in the “line of duty” or engaged in activities pursuant to orders or authorization. These duties include, but are not limited to, participation in fire drills; travel to and from fire calls or authorized activities; firehouse duties; property inspections; attendance at fire instruction and training; and authorized drills, parades, funerals, reviews or tournaments. An “injury” includes any disablement of a volunteer firefighter that results from services performed in the line of duty and any disease that may arise from an injury.    

Monetary benefits include payments for loss of earning capacity up to $400 per week, death benefits to surviving spouse and/or minor children up to $800 per week, and schedule loss-of-use awards based upon loss of function to a limb, loss of vision, loss of hearing, and facial disfigurements. Additional monetary awards are given to cover funeral expenses. Furthermore, volunteer members are entitled to receive necessary medical care for treatment and recovery from their disabilities. Notice must be given to the proper party within 90 days of the incident, and claims must be filed within two years of the accident or death. 

In many instances the monetary awards are inadequate to properly compensate an injured volunteer or a surviving spouse or child of a hero. The fact that a fundraiser is even necessary for the family of the firefighter who was killed in Long Island is inconceivable. While it is clear that Volunteer Firefighter benefits will never truly compensate for those who are injured or killed on the job, the knowledge that there are benefits available will hopefully ease some of the financial strains for those in our community who serve. I saw a wonderful quote recently that said “volunteering is the ultimate exercise in democracy. You vote in elections once a year, but when you volunteer, you vote every day about the kind of community you want to live in.” So to those who serve, I am truly grateful, and to the family of fallen hero Joseph Sanford, Jr.  – his sacrifice will never be forgotten.

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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Facebook Postings Hurt Workers’ Compensation Claims

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

While Facebook is extremely popular and used by over a billion people every day, no Facebook posting has ever helped an injured worker in a workers’ compensation claim. On the contrary, use of a Facebook page poses real dangers for injured workers pursuing workers’ compensation benefits.

Since Facebook is a public site, anything posted can be used by respondent insurance companies in claims denial. Even the most benign postings (birthday parties, family gatherings, etc.) can pose problems. For example, a grandparent lifting a 30 pound grandchild when doctors have imposed a 10 pound lifting limit could damage a claim. Additionally, nothing prevents an Administrative Law Judge from looking at a Facebook page.  Even innocent posts may be subject to misinterpretation. A picture of the worker riding a motorcycle or fishing taken prior to the injury but posted afterward could place the seed of doubt in an ALJ’s mind that the worker is not as limited as he claims. The best advice is to be extremely careful about what is posted because “friends” are not the only one who can access your Facebook page.

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Can Social Media Participation Impact Your Benefits?

Many of us are enamored with social media. It is a wonderful way to communicate with those across the country, around the world or right around your block. It is a way to keep with touch with friends, acquaintances and even professional colleagues. However, in our world of ever increasing technology, there are ever increasing risks. We have seen time and time again on the nightly news reports stories of cyber crime, internet scams, child predators and the embarrassing things people post on the world-wide web. We often try to impart this knowledge to our children as their youthful indiscretions can come aback to haunt them as they start applying for jobs as employers regularly now google potential candidates. Websites such as MySpace, Instagram, Twitter and Facebook, while entertaining and useful, can also put injured workers at risk. It is easy to forget that a photo posted on social media can come up on many internet searches. It is easy to forget that the internet is not part of the private sphere but is the public square. It is also easy to forget that anyone can create a profile and seek to join anyone else’s network of “friends” on one of these sites.  That includes investigators who work for insurance companies and defendants attorneys.

By applying for benefits, you are stating that you are injured and are unable to work or only able to perform part-time or intermittent work. Information available on the internet that appears to contradict your application for benefits can result in your being denied benefits or even result in a fraud charge being leveled against you. This could be information about your professional or personal accomplishments, a home-based business, or even volunteer activities, which may be no longer current or may not accurately reflect your level of functioning since your injury. Those pictures of you on vacation in Jamaica doing the limbo might be entertaining but they could also put you at great risk if you are indicating a disability. These types of stories appear regularly in the news media. Furthermore, and even more importantly, recent court decisions around the nation and even in New York have ruled that plaintiffs may have to permit defendants access to their social networking sites and even their hard drives for analysis.

Therefore it is imperative that if you are applying for benefits based upon a disability be it workers’ compensation, social security disability or even for negligence to be cautious when posting anything about yourself on the internet.  This includes photographs, statements, travel plans, and commentary about your own social activities.  Furthermore, we cannot stress enough to take care when accepting new persons into your internet social networks.  Make sure you actually know who you are opening up yourself to, for they may not be the person you think they are, and could be in the employ of an insurance carrier.

Finally, it is extremely important that all persons using social networking websites such as Facebook and MySpace make sure that the privacy settings for their profiles are set to the maximum. On Facebook this should prevent a person’s profile from being found even if their name is searched. The bottom line is if you are disabled, you should never engage in any activity contrary to your injury as one funny moment in time on social media can impact you for your entire life. 

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Occupational Disease: New Cancer Study and Firefighters

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

Worker’s compensation has provided benefits or coverage for occupational diseases for generations.  In Wisconsin an occupational disease is one acquired as a result of working in an industry over an extended period of time. An occupational disease cannot result from a single incident, but rather it is the result of a disease process. Wisconsin has not excluded any occupational diseases from its worker’s compensation benefit provisions. One of those disease processes is cancer. 

Studies are done regularly to determine the cause of disease as medical science advances. A recent study concludes that smoke and chemical exposure by firefighters may cause higher rates of cancer among firefighters. Firefighters, while usually healthier than the general population, have a higher incidence of cancer. A presumption of employment connected cancer exists for firefighters in Wisconsin. The statute applies to any State, County, or municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive symptoms. For that firefighter whose disability or death is caused by cancer, the finding is presumptive evidence that the cancer was caused by employment. Note, however, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 1, 2001. Benefits for firefighters include Temporary Total Disability, Permanent Partial Disability, and if the disease (either heart or lung) precludes a return to work, duty disability payable at 75% of the firefighter’s salary, may also apply. 

As medicine and science evolve, there may be more recognized “occupational” diseases and more workers and their families compensated for harm caused by the workplace.

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Is Worker’s Comp Profitable Because Disabled Workers Don’t Get Benefits?

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

I recently wrote an article in the national magazine for the Worker’s Injury Law Advocacy Group (WILG), the Worker’s First Watch, Fall 2013 reviewing the worker’s compensation resources research report indicating that the worker’s compensation industry is extremely profitable.  I began representing injured workers in 1976.  It seems every year since then worker’s compensation insurance carriers have complained they are not making profits and the culprit responsible is increased benefits paid to workers.  In fact, over the last 20 years the insurance industry has been profitable in 16 of 19 years and broke even in one year.  Several factors account for this profitability, including worker’s compensation insurance carriers successfully pursuing deregulation and “reform” measures to restrict eligibility. 

The net result of increasingly restrictive rules for compensability in many State worker’s compensation systems as a result of “reform” resulted in many workers with disabilities caused by work who did not receive worker’s compensation benefits.

The general trend since the early 1990s has been to restrict coverage through State statutory and administrative “reform”.  Many workers face lengthy litigation and frustration.  More restrictive regulations may preclude claims where the worker lacks “objective” medical evidence for his injury, or is unable to medically document persistent pain, or has a disease resulting from multiple causation that cannot be distinguished from workplace disease, or has job stress related disorders.  One significant problem is that many injured workers fail to file for benefits.  (For those of us in the trenches daily, these pose obstacles to compensability.)  Among the many reasons for failure to file are:

  • Ignorance of worker’s compensation and eligibility.
  • Ignorance of the work-relatedness of the condition.  (Many workers know they suffer an impairment but do not know the health condition is caused by work.)
  • Reimbursement for medical care or Short Term Disability benefits available.  (Many workers use Short Term Disability or group medical insurance rather than worker’s comp.)
  • Belief that the injury is lacking in sufficient severity.
  • Many workers fear job loss or other forms of retaliation, who do not want to report a condition as work-related.
  • Workers do not want to be perceived as complainers or careless.
  • Deciding not to file based on the negative experience of co-workers.
  • Fear of the stigma associated with being a worker’s compensation claimant.  (Much of this stems from the intense focus on fraud perpetrated by the insurance industry, resulting in increased levels of stigmatization, decreasing the likelihood injured workers will file for benefits.)
  • Pressure from co-workers on safety incentive programs.  (These programs, sometimes called “Safety Bingo” create incentives not to report.)

Those of us who have hearings daily that involve the non-reporting of an injury, or significant time delay between the occurrence of an injury and the reporting of an injury, can refer to the above list for some ammunition on the “non-filing” or “late filing” issues.

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