A Dismantling of the Grand Bargain That Created Workers’ Compensation

This week marks the official start of the holiday season. It is a time for family and loved ones, and a time to reflect on the blessings that we have received in our lives. This week marks the countdown to a number of holidays including Christmas, Hanukah and Kwanzaa. Unfortunately for some people, however, the holiday season is fraught with anxiety, depression, illness and injury. Many people who sustain work-related injuries find that without their weekly salary, the holidays are a stark reminder of how their lives have changed dramatically. The inability to provide for even the basic necessities, let alone splurge on holiday presents, is a prescription for depression.

The Grand Bargain Premise of Workers’ Compensation laws in this country is that the employer, through their insurance carrier, is responsible to pay for injured workers’ medical treatment, lost wages, and permanent disability in exchange for injured workers giving up their rights to sue their employers for negligence. During the last couple of decades, Workers’ Compensation benefits have been under the continuous scrutiny of the Business Council, which has been alleging that the cost of benefits to injured workers is at the root of their increase in costs and reduction in profits.

However, a report from the National Academy of Social Insurance (NASI) indicates otherwise. Benefits as a percent of payroll declined in 46 states between 2010 and 2014, continuing a national trend in lower benefits relative to payroll that began in the 1990s. Costs to employers, on the other hand, continue to climb. Between 2010 and 2014, employer costs associated with Workers’ Compensation – such as insurance premiums, reimbursement payments, and administrative costs – grew at a rate nearly five times faster than benefits. Instead of using employers’ money to provide benefits for injured workers, insurance companies pay a host of businesses, including insurance medical examiners, nurse case managers, vocational rehabilitation companies and defense counsel, all of which profit from the system at the expense of workers and reap record profits for themselves. Meanwhile, the insurance industry and the Business Council falsely blame the claims of disabled workers so they can continue to increase profits by slashing benefits and shifting costs to taxpayer-funded programs instead of employer-paid insurance.

Benefits in New York have decreased under the current Workers’ Compensation system. The changes in the law in 2007 allowed higher wage earners to benefit in the short term as the amount of their weekly benefits has increased. However, these benefits are only available for a fixed period of time. If injured workers are able to return to work after a short period of lost time and a limited period of medical treatment, then some may say the system is a success. Unfortunately for many severely-injured high and low wage earners, the Grand Bargain wasn’t so grand. Medical providers’ hands are tied by Medical Treatment guidelines that limit the amount of treatment authorized based upon “best practices” or cookie cutter treatment, as opposed to what is recommended by the treating doctor. Now there is the prospect of limiting prescription medications as well, all in the name of cost reduction.

The reduction of medical treatment based on the treatment guidelines to injured workers should not imply they are fully recovered. Also, they don’t all return to work once they reach their indemnity cap. The cost of providing monetary benefits and medical treatment are shifted to the taxpayers to pick up the tab. Injured workers don’t expect that the very act of working will forever alter their lives in a negative way. Workers’ Compensation benefits are not a charitable donation, but an entitlement based upon a compromise between workers and their employers. Unfortunately, it is clear that these benefits have been gradually eroded. We should not allow any legislation that further erodes these benefits. While the holidays will continue to bring depression and despair for some injured workers, it should not be as a result of our treatment of them afterward.

 

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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Labor Report Urges Study Of A Federal Role In State Workers’ Comp Laws

Howard Berkes and Michael Grabell have been investigating the decline of workers compensation for Pro Publica and NPR.

Howard Berkes and Michael Grabell have been shining a light on the deterioration of state workers’ compensation benefits over the last decade. A new U.S. Department of Labor report bolsters their investigative journalism, noting that those hurt on the job are at “great risk of falling into poverty” because state workers’ compensation systems are failing to provide them with adequate benefits.

The Workers Injury Litigation Group (WILG) has been fighting against this decline for 20 years, and we will continue to advocate for fair benefits for injured workers. The following is a summary of Mr. Berkes and Grabell’s recent article:

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

“The current situation warrants a significant change in approach in order to address the inadequacies of the system,” the report says.

That’s where federal intervention comes in. The Labor Department calls for “exploration” of “the establishment of standards that would trigger increased federal oversight if workers’ compensation programs fail to meet those standards.”

The agency also suggests a fresh look at reestablishing a 1972 Nixon administration commission that recommended minimum benefits and urged Congress to act if states failed to comply.

“In this critical area of the social safety net, the federal government has basically abdicated any responsibility,” says Labor Secretary Thomas Perez.

Without minimum federal standards for workers’ comp benefits, Perez adds, the current system “is really putting workers who are hurt on the job on a pathway to poverty.”

Prior to the report’s release, employers, insurance companies and others involved in workers’ comp programs expressed alarm at the possibility of federal intervention.

“There has never been federal ‘oversight of state workers’ compensation programs’,” says a statement posted on the website of a group called Strategic Services on Unemployment and Workers’ Compensation, which says it represents the workers’ comp interests of the business community.

“Federal requirements imposed on a national basis would be inconsistent with the state workers’ compensation system, which has been in place for more than 100 years without federal oversight,” the group wrote.

Federal minimum benefits could ensure that injured workers across the country would not receive lesser benefits for often shorter periods of time simply because they lived in a state where lawmakers dramatically cut workers’ comp costs for employers.

“This is a system with no federal minimum standards and absolutely no federal oversight,” says Deborah Berkowitz, a senior fellow at the National Employment Law Project. “Clearly, more federal oversight is necessary to assure that that this system works for those most in need of assistance.”

No direct administrative or legislative action is proposed in the report, but Sen. Sherrod Brown, D-Ohio, says he’s “drafting legislation to address many of the troubling findings laid out in this report and will be working with my colleagues to advance it in the next Congress.” 

Brown echoes Perez, saying injuries on the job shouldn’t force workers into poverty.

“But without a basic standard for workers compensation programs, that’s exactly what’s happening in too many states across the country,” Brown adds. 

Another incentive for federal involvement, the report notes, is a shift of billions of dollars in workplace injury costs to taxpayers when state workers’ comp benefits fall short and workers are forced to turn to Medicare and Social Security for treatment and lost wages.

The report lays the groundwork for federal intervention by providing an extensive section detailing the government’s role in promoting national benefits standards in both Republican and Democratic administrations dating back to 1939.

But many in the workers’ comp world consider workplace injury policy and regulation a states’ right and any prospect of a controlling federal role will likely face stiff resistance.

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We Protect Workers’ Rights: Partner Mike Gruber Is Installed at WILG President & Helping Injured First Responders

I just returned from the Workers’ Injury Law and Advocacy Group’s (WILG) Annual Convention. I am extremely proud to announce that one of my law firm’s partners, Mike Gruber, was installed as the president of this esteemed group of men and women whose common bond is representing the interests of injured workers and their families. Mike is the fourth partner from my firm to hold this office, which includes former partner Lew Heller, Senior Partner Edgar Romano, and me. My firm is proud to continue the tradition of national leadership in an organization that fights to protect injured workers.

This year we were updated on a number of interesting topics including one near and dear to my heart – benefits for first responders. My friend and colleague JR Boyd, a past president of WILG and a leader in his home state of Missouri, lectured about the dangers inherent in firematic duties.  As the daughter and sister of retired firefighters and sister of a current FDNY Lieutenant, I am always trying to keep updated on the latest issues affecting those I love. I have grown up knowing that at any moment tragedy may strike. 

Ironically, on the day of the lecture news broke of the death of New York City Firefighter Chief Michael Fahy. He was on the scene of a reported gas leak and while in the midst of an investigation, an explosion occurred and part of the structure fell on him. Chief Fahy graduated from law school but decided to pursue his dream as a firefighter. He was following in the footsteps of his father Thomas Fahy, himself a retired FDNY Chief.

Chief Fahy is but one of the many men and women who have sacrificed their lives for their City, their state, or their country. Tragedy can strike without warning in the form of a building collapse, an explosion, a flashover, or when a floor or roof is compromised. First Responders may end up burned, electrocuted, or receive blunt force trauma. These are just a few of the ways firefighting can turn deadly. Unfortunately, our firefighters do not just face immediate dangers on the job, but also must contend with lung issues, cancer, and heart conditions. Three hundred forty-three firefighters lost their lives during the attacks of 9/11, but so many more have died from the after effects of being exposed to toxins in the air.

While there are still nine volunteer fire companies in New York City that respond to calls in their neighborhoods and are covered under the New York State Workers’ Compensation System, the vast majority of 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.

When firefighters get injured, they are paid a salary until they are able to return to work. Some firefighters who get injured on the job as a result of the wrong doing of another may be able to file suit against the negligent party. Some firefighters may receive a three-quarter disability pension if they suffer an injury and are unable to work but benefits may differ depending upon the type of injury sustained and years of service. As a result of the heart, stroke and lung bills, there is a presumption that disabling heart, stroke, and lung conditions are the result of employment as a firefighter. I have seen the damage the job has done to the people I care about and the untimely deaths of many whose health has been severely compromised as a result of the rigors of the job. While benefits do exist, one can never truly repay these brave men and women who put their lives on the line every day to protect us.

 

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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In Complicated Times, Police Who Risk Their Lives Still Need Support

Last week was a very bad one for police officers across the country, starting with the separate police shooting of two unarmed men. These shootings – days apart in different parts of the country – sparked widespread outrage and protests throughout the country. 

While the investigation continues into the circumstances surrounding these civilian shootings, video evidence suggests the outrage over these shootings appears to be justified. The week ended with the assassination of five police officers in Dallas who were providing protection to citizens engaged in a peaceful protest over the shootings of the unarmed men. The gunman indicated he had killed the police officers in retaliation for the shooting deaths. This was the worst loss of life for the police department since September 11, 2001.  Additionally, seven police officers were injured in the attack.

These horrific events highlight the difficult job that police face every day. While not all police officers are perfect (in fact, who amongst us is?), most don’t begin their shifts with the mindset that they are going to kill a civilian. Most see their role as keeping the peace and protecting citizens. They do, however, wonder many times whether they will make it through their shift safely and return home to their loved ones.    Unfortunately, they are not always immune to death and injury.   

As an attorney who has represented many law enforcement officers injured on the job, I know the majority of them receive medical treatment and may have a period of convalescence, but then are able to return to work. However, some sustain serious and career-ending injuries. Most police officers in New York City and Long Island are likely a member of a Civil Service Retirement System. If so, and they become permanently disabled from performing their specific job duties, they may be eligible for a life-long disability pension.

There are many pension systems in the state, all with different applications, rules, procedures, and guidelines. Each disability pension has its own statute of limitations and guidelines for eligibility. There are different pensions available, ranging from one-third to three-quarters. Just because you were injured on the job does not mean you are automatically entitled to the three-quarter pension, which would enable you to receive 75% of your previous year’s earnings. 

Although not always relevant, how police officers are injured on the job can impact whether they are entitled to a three-quarter disability pension. Additionally, just because they were injured while working does not automatically mean they are entitled to a three-quarter disability pension. Factors that get taken into account are issue of causation, medical evidence from the officer’s own doctor, and the retirement system’s medical board. It is not always an easy process for our law enforcement personnel to receive reasonable retirement benefits, but it should be. Day in and day out, they protect the citizens of our cities and our states, putting their own lives at risk simply because they are dressed in blue. 

There is a huge spotlight this week on police, and rightfully so, as there is so much mistrust and anger regarding the recent events. There needs to be an honest, open dialogue where those aggrieved are given the opportunity to be heard without fear of reprisal, just as the police department needs to be given the opportunity to have investigations completed before a rush to judgment. While the majority of police officers are honest and hardworking, those who fail to uphold their oath should be punished.

Police officers are sworn to protect and serve; they run toward trouble when we run away from it. They patrol neighborhoods that are dangerous, riddled with crime, where we are taught to avoid them. They put their lives on the line every day, knowing they might never return to their families. Yes, this has been a very tough week. Let’s hope that future discussions help bridge the gap between our police and the citizens they are sworn to protect.

 

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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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.

— 

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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Senior Partner Jordan Ziegler Discusses Repetitive Strain Injury On Podcast

Jordan A. Ziegler, Senior Partner

Senior Partner Jordan Ziegler recently appeared on RSI Help, a podcast which shares news and information about repetitive strain injury. We have discussed this topic on this blog several times. In addition to listening to the podcast, you can also find out more information by reading these posts:

We also have a section on our firm’s website dedicated to providing you with information about Carpal Tunnel Syndrome, a common repetitive strain injury. In addition, Deborah Quilter maintains a site with helpful information at RSIHelp.com.

You can listen to the podcast here:

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Congratulations to Partner Matthew Funk, New President Elect of NYSTLA

On June 14, Partner Matthew Funk was formally installed as President Elect of the New York Association of Plaintiff’s Trial Lawyers (NYSTLA). Mr. Funk handles workers compensation cases for Pasternack Tilker Ziegler Walsh Stanton & Romano.

In addition to his new role with NYSTLA, he is also Co-Chair of the NYSTLA Workers’ Compensation Committee and a member of the Legislative Committee, No-Fault Committee and Labor Law Committee. Since 1999, he has written for the NYSTLA Decisions program.

Matthew serves on the Executive Board of the Injured Workers Bar Association, participating in online round table discussions regarding the rights of injured workers. He is a Workers Compensation Committee member of the New York Coalition for Occupational Safety and Health (NYCOSH). Matthew regularly lectures on workers’ compensation law to various labor organizations. Currently, he is actively engaged in extensive workers compensation litigation.

The mission of the New York State Trial Lawyers Association, founded in 1953, is “To promote a safer and healthier society, to assure access to the civil justice system by those who are wrongfully injured and to advance representation of the public by ethical, well-trained lawyers.”

Please join us in congratulating Mr. Funk on his new role.

 

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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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