Author Archives: Catherine Stanton

Benefits Alert – Workers’ Compensation Rates Increased on July 1, 2018

Senior Partner Jordan A. Ziegler

Last year’s solar eclipse brought about fun and excitement for Americans of all ages, but did you know it also brought about several Workers’ Compensation claims?

The rare total solar eclipse was the first time it occurred in the United States since 1979. The August 21 eclipse was the most watched and photographed eclipse in history. With all the excitement surrounding the day, many employers planned solar eclipse office viewing parties. What they might not have known, however, was that in the case of a mandatory employer-sponsored event, safety precautions must be taken. In this case, employers were responsible for providing safety glasses. Employees who were injured while eclipse-viewing on the job were able to file Workers’ Compensation claims if their boss did not provide adequate eye protection.

In fact, an article about workplace safety concerns related to the eclipse was the third most read Workers’ Compensation story on Business Insurance’s website in 2017. This substantiates the proof that Workers’ Comp is a complicated matter and one that workers should not play guessing games with.

Jordan Ziegler, Esq. Senior Partner in the law firm Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, said the New York State Workers’ Compensation system is a no-fault system that was created to aid injured workers with wage replacement and medical benefits. However, navigating through the Workers’ Comp maze requires much more than chasing a dangling carrot. You need to know and understand the rules in order to follow the rules. And that’s no easy task.

The effects of even a small injury can last a lifetime, so make the most of each step toward healing and the compensation to which you are entitled. Effective July 1, 2018, the new maximum weekly benefit for Workers’ Compensation claims increased to $904.74 from the previous year’s $870.61.

If you are injured on the job, or think you might have a work-related injury, here are some important steps to follow:

  • Let your employer know the circumstances that resulted in your injury. You only have 30 days to report the incident. Next, inform the Workers’ Compensation Board (WCB) so everyone is on the same page. It may be difficult to contact them but don’t worry, you’ve got two years to let them know.
  • Even if you don’t lose time from work, you should still file a claim. Someone has to pay the medical bills and it’s typically the WCB’s insurance company’s responsibility.
  • Remember to document any phone records and emails that follow. Written communication is the best way to later prove your side of the story. In fact, the law requires you to give written notice of your injury to your employer. Make sure you note the supervisors and staff you communicate with and the date your notification took place. Make copies of everything! And save all emails.
  • When seeking medical attention, either in the nearest emergency room or a doctor’s office, ask for detailed records of your injury and prescribed treatment.

Ziegler said the path to benefits is highly detailed. You may not even realize that beside medical benefits, you might also qualify for indemnity benefits — money you receive each week that you’re unable to work. With a permanent injury, you might be eligible for such benefits even if you return to your job.

Just as employers have attorneys to represent the interests of their companies, YOU must gather the right team to navigate the detailed — and often confusing — laws of Workers’ Compensation.

“Workers’ Comp goes a long way toward helping ease the financial burden that comes with not being able to fully return to work,” Ziegler said. “There are so many complicated ins and outs of filing, however, that all too often injured workers will give up rather than fight for what they are entitled do. That’s where we are able to step in and help but we can’t do that if we don’t know about the injury.”

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Congratulations to Edgar Romano, New President of Society of New York Workers’ Compensation Bar Association

Managing Partner Edgar Romano

On May 17th, Managing Partner Edgar Romano was installed as the new President of the Society of New York Workers’ Compensation Bar Association (NY WCBA). Prior to his installation as President, Edgar served as NY WCBA’s 1st Vice President.

The NY WCBA was established in 1945 as a bipartisan organization comprised of attorneys representing all parties to workers’ compensation claims: claimants, self-insured employers, third party administrators, insurance carriers, and others who are affiliated with the New York State Workers’ Compensation system. The purpose of the organization is to identify issues that affect the administration of the Workers’ Compensation Law and attempt to offer suggestions for the remediation of these issues in a fair and impartial manner. In addition, the Association is involved in educating persons unfamiliar with the complexities of the Workers’ Compensation Law.

The Association is also involved in fund raising for charity. This year represents the Association’s 17th annual golf and tennis fund raiser for pediatric cancer research on behalf of the Memorial Sloan Kettering Cancer Center. Through the generosity of its members and sponsors, the Association has raised over $500,000 since the inception of its annual outing.

Congratulations from all of us!

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Saving Our Benefits – How Public Outcry Saved Workers’ Compensation in New York

Some of you may recall that injured workers and their families were used as political scapegoats by big business and insurance interests who blamed them for the high cost of doing business in New York.  Workers’ Compensation benefits became an easy target as those who needed these benefits were hardly in a position to fight against the deep pockets and political clout of these lobbying groups.  

As a result of political pressure during New York State budget negotiations, there was a direction to update the existing impairment guidelines under the guise of reducing costs to employers while still protecting injured workers. The final budget contained a provision directing the Workers’ Compensation Board (WCB) to put together a task force with input from labor, the insurance industry, medical providers, and the NYS Business Council to revise impairment guidelines to reflect “advances in modern medicine that enhance hearings and result in better outcomes”.  These impairment guidelines determine the amount of compensation payable to an injured worker for a permanent injury.

Unfortunately for injured workers, the WCB unilaterally revamped and rewrote the guidelines and released them during a holiday weekend with a 45-day public comment period. These proposed guidelines bore very little resemblance to the recommendations made by labor groups and the Orthopedic Society, and were an outrageous abuse of power. As a result of a very public outcry, the New York State Assembly Labor Committee held a public hearing during which it became very clear to labor groups, injured workers’ advocates, and members of the State Legislature that the Board’s egregious actions would result in a slashing of benefits to injured workers at a time when they are most vulnerable.

Public outcry led to action. Workers’ advocates showed up at a number of WCB locations across the state, including Hauppauge, Brooklyn, and Buffalo, for Days of Action. More than 100,000 postcards objecting to the proposed changes were delivered. Members of the Retail Wholesale and Department Store Union (RWDSU), the AFL-CIO, NYCOSH, New York City District Council of Carpenters, DC37, and countless others all publicly railed against these changes. Members of the Legislature called out the WCB for overstepping its authority and for proposing changes that would vastly favor the Business Council over the injured worker. 

The Worker’s Comp Board subsequently issued amended revisions, and while there are still some reductions, it was a significant improvement over the initial version. The final version was released last year on December 29. It is clear that grassroots efforts sometimes do work. Governor Cuomo and the WCB Chair clearly listened, and for that we are grateful. We are also grateful to those State legislators, union groups, and medical providers who submitted their insight on the impact the original proposals would have on injured workers.

Lastly, it is clear that those who may have been past or current recipients of Workers’ Compensation benefits – those who have known injured workers or those who just saw an injustice and wanted to help right a wrong – took the time to make a phone call, send a letter, or sign a petition. The outpouring of support took many by surprise, including those interests that were financed by big business groups.   One of my favorite quotes is from Margaret Mead, an American cultural anthropologist, who said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” Truer words were never spoken.

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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Outrage Over Proposed Benefit Cuts Dominates Public Comment Period – How To Keep Pressure On Lawmakers

As you may recall, the issue of Workers’ Compensation benefits for injured workers was used as a bargaining chip in Albany during this year’s budget negotiations. A compromise was reached that would update the current medical treatment guidelines to reduce costs to employers while still protecting the rights of injured workers. October 23, 2017, was the final day interested parties could comment regarding the proposed changes. 

In order to reach this goal, the New York State Workers’ Compensation Board was directed to put together a task force with input from labor, the insurance industry, medical providers, and the Business Council to revise the impairment guidelines to reflect “advances in modern medicine that enhance healing and result in better outcomes.” On the Friday of a holiday weekend, in order to diminish media coverage of the results, the final draft was released. This was not a revision, but rather a full-scale re-write of the guidelines. Labor groups, injured workers’ advocates, and member s of the State Legislature were justifiably outraged.

One of the provisions would allow insurance company doctors to question injured workers without their lawyer present, which could negatively impact future legal proceedings. If an injured worker refused to answer a question, the insurance company doctor could deem the injured worker as “uncooperative,” which could result in a suspension of benefits. Even worse, the end results of these proposed guidelines would slash benefits in some cases up to 97%, and for others, there would be none. 

As a result of the controversy, the New York State Assembly Labor Committee held a public hearing at which representatives of the New York State Workers’ Compensation Board testified first about the procedure used to formulate their revisions. They testified that they had a number of meetings with the Orthopedic Society, as well as discussions with the AFL-CIO and the insurance industry.  A number of additional witnesses testified, including members of the task force, and it became abundantly clear that the New York State Workers’ Compensation Board started their own re-write to these guidelines more than two years prior to any direction to do so. It was also clear that the end result had little resemblance to the recommendations made by the AFL-CIO or the Orthopedic Society.

It is now more than 45 days since the proposed re-write was put out for public comment, and the list of those who are opposed is tremendous. On October 18, worker advocates showed up at a number of Workers’ Compensation Board locations across the state for Days of Action including at Hauppauge, Brooklyn, and Buffalo. More than 100,000 postcards objecting to the proposed changes were delivered.  Members of the Retail Wholesale and Department Store Union, the AFL-CIO, NYCOSH, New York City District Council of Carpenters, DC37, and countless more have all publicly railed against these changes.  Members of the Legislature have called out the Workers’ Compensation Board for overstepping their authority and for proposing changes that would vastly favor the Business Council over the injured worker. 

While the comment period is finished, you can still voice your outrage by contacting your State Senator and Assembly member and telling them that injured workers don’t deserve to lose any more benefits.  Sometimes after an injury, Workers’ Compensation is what prevents a worker from losing everything.

 

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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Broken Trust – Breaking The “Grand Bargain” Of Workers’ Compensation

More than 100 years ago, Workers’ Compensation was established as a “grand bargain” between workers and employers. The state legislature enacted laws where injured workers gave up their right to sue if they were hurt on the job as a result of their employers’ negligence in exchange for a no fault system of medical and wage loss benefits. 

Included in this bargain was the right of the injured worker to obtain financial compensation for a permanent injury to an extremity, such as arms, legs, hands, feet, fingers and toes. Unfortunately, this “grand bargain” – at least as it pertains to injured workers – has been under attack for the last 10 years in New York under the guise of rising costs to employers.

During the New York State budget negotiations, the Business Council created a false narrative that injured workers’ benefits for extremity injuries were archaic and didn’t account for modern medicine. They claimed that benefits paid were creating a crisis in New York and forcing businesses to flee the state. As a result of their lobbying, the New York State Legislature directed the Workers’ Compensation Board in April 2017 to create a task force consisting of labor, medical providers, and insurance groups to issue proposed revisions that account for advances in modern medicine that enhance healing and result in better outcomes. What we have subsequently found out is that the Workers’ Compensation Board, without direction or authority, has been secretly working for the last couple of years to not only revise the current guidelines, but to scrap them altogether. These provisions would essentially eliminate most schedule loss of use extremity benefits to injured workers. As an attempt to not fuel the fire, they released their proposed revisions at 11:00 p.m. on the Friday of Labor Day weekend.

The Workers’ Compensation Board has been heavily criticized for their Anti Injured Worker Proposals by a number of labor unions, NYCOSH, physician groups, Workers’ Compensation practitioners, and injured workers themselves. As a result of the outrage, the New York State Assembly’s Committee on Labor held hearings at which a number of people from the taskforce testified. When representatives from the Board were asked why there were secret meetings years before the Legislature directed them to review the issue, their weak response was that “they” couldn’t understand some of the large discrepancies between the findings of the treating doctors and the insurance doctors. However, that argument holds little weight because the scenario they cited was the exception rather than the norm. They also pointed out that they relied heavily on the New York State Orthopedic Group for input.  Yet, when the Chair of the task force, Dr. Jeffrey Lozman, an orthopedist, and Dr. John M. Olsewsky, President of the NYS Society of Orthopedic Surgeons, testified, it became clear that their recommendations were largely disregarded in a way that would negatively impact injured workers.

It is clear that the New York State Workers’ Compensation Board is pushing the Business Council’s agenda. What is unclear is why the Board seems to be taking sides when their mission statement is to “protect the rights of employees and employers by ensuring the proper delivery of benefits to those who are injured or ill, and by promoting compliance with the law.”

Injured workers don’t have the means to fight, and but there are still steps you can take to defeat these harmful proposals. There is a 45-day comment period set to expire on October 23, 2017. You can contact your state legislator and the New York State Workers’ Compensation Board to voice your opposition. For additional information please go to:  www.nyworkerscompensationalliance.org/protectinjuredworkers

Workers’ Compensation was set up to help you if you are ever injured on the job. These benefits are your right. They are your protection. Just because you might not need the benefits now, doesn’t mean you or a loved one won’t need them down the road. Only by working together can we fight to make sure that these benefits as we know them remain in place. While a single voice might not make a difference, a loud collective voice stands a better chance. Go to the link and voice your disapproval. Have your family and friends do the same.

 

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 York State Workers’ Compensation Board Proposes Broad Anti-Worker Changes

There is a phrase in politics known as Friday News Dump or Take out the Trash Day. In other words, the act of releasing certain news items at the end of the work week in an attempt to avoid media scrutiny. In the case of the New York State Workers’ Compensation Board, the public servants that they are, the News Dump occurred at 11:00 pm on the Friday of Labor Day Weekend. As you may recall in April as part of the horse trade known as the New York State Budget, injured workers’ benefits were used as  bargaining chips. The Business Counsel had argued that schedule loss of use awards which are given to workers’ for permanent injuries to the extremities were suddenly unfair to the employer. The original guidelines they argue were outdated and did not take into consideration new advances in medicine. One of the Budget provisions directed the Board to “consult” with a group stacked with pro-business and insurance interests to re evaluate the current guidelines. Well at 11:00 before the holiday weekend they issued their proposed changes and like the impact of Hurricane Harvey and Irma, no one could have foreseen the complete and utter destruction these proposals would have on injured workers benefits. Rather than addressing how advances in modern medicine enhances healing or create better outcomes, the Board totally disregarded the legislation’s directive and instead simply rewrote the entirety of the guidelines to create a new evaluation process which would destroy previously awarded benefits for permanent injuries.

These changes are arbitrary and capricious and an abuse of discretion. The legislature had previously established a fixed period of compensation based upon a specific injury but the board has taken it upon themselves to reduce or eliminate many of the benefits previously awarded for an injury. Additionally the Board has proposed provisions which are punitive in nature against the injured worker, bordering on being downright insulting, which only provide more opportunities for insurance companies to deny benefits.

One of the amendments submitted allows the insurance carrier to go on a fishing expedition to obtain information that is privileged, irrelevant or against the injured workers’ interest and penalizes them for failing to comply. These “questionnaires” if not completed to the satisfaction of the insurance carrier can be negatively inferred against the injured worker. The carrier can deny benefits simply by stating that the injured worker was uncooperative. This new amendment seems to be in direct violation of HIPPA privacy laws. 

There are many who will be affected. Anyone who has been injured or knows someone who has been injured on the job should be appalled that their family and friends, when they are at their most vulnerable, would be attacked by the same State Agency that was established to protect them. Shocking as it is, these guidelines are being proposed by the Workers’ Compensation Board. The name itself implies it is for the benefit and protection of the Worker. Perhaps the name should be changed to the Business Council and Insurance Defense Agency as it appears their agenda has changed. Unions, particularly those that have workers who engage in any type of physical or hazardous activity should be outraged that their members will again be attacked financially when they are injured. The New York Daily News recently spoke to Mario Cilento, the President of the NY AFL-CIO, who commented that “the plan is an insult to all working men and women. Benefit cuts for injured workers are wholly unjustifiable.” 

Legislators, in particular should be infuriated knowing that a governmental agency has usurped their authority in an attempt to dismantle a system that has been statutorily in place for over 100 years.     

When will these attacks end if ever?  Who is the driving force behind these attacks? One of the unfortunate consequences of a typical day is that some people go to work healthy one day and leave as a casualty of a work place injury the next. Some of us will be permanently injured or even killed. Regulating away benefits will not prevent injuries but will only result in someone else paying for benefits -usually tax payers.  The slashing and burning must end.  All of us must take a stand to protect those of our society who did nothing wrong except be one of the unfortunate victims of a workplace injury. How ironic that this bomb was dropped upon the working men and women of New York State on a holiday weekend dedicated to honoring the working people of this country.  

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Groundwater Contamination In Bethpage A Possible Source Of Disability Claims

N.Y. Assemblyman Anthony Saladino (left) and U.S. Sen. Charles Schumer (D-NY) display a map of the spread of a plume of toxic chemicals from Bethpage to Massapequa.

Last year news broke that New York was going to test water on Long Island for contamination from toxic groundwater near the old Grumman site in Bethpage, which previously housed the U.S. Navy. Decades ago it was determined that the site was toxic and the Navy and Grumman had spent millions of dollars to clean it up, but despite this, fears remained that there was some contamination that may have seeped from the site into the groundwater.

Governor Cuomo subsequently announced that the Department of Environmental Conservation (DEC) was going to seek financial compensation for damages to groundwater resources related to that contamination. As a transplanted Queens’s native who now lives in Bethpage, the news was troubling to say the least, but it is just one of many examples of a contaminated water supply. The City of Flint, Michigan, made headlines during the last couple of years after dangerous levels of lead were found in the water. The resulting cover-up resulted in a number of lawsuits and criminal indictments.

If these types of examples are startling, then this one will really get to you. We are in the midst of a heartbreaking contamination event involving our service men and women and their families at Camp Lejeune, North Carolina. From the 1950s through the 1980s, people living or working at the U.S. Marine Corps base there were potentially exposed to drinking water contaminated with industrial solvents, benzene, and other chemicals. It is estimated that almost one million people were exposed to contaminated water during this time.

The Veterans Administration (VA) has established a presumptive service connection for veterans, reservists, and National Guard members exposed to contaminants in the water supply at Camp Lejeune from August 1, 1953 through December 31, 1987, who later developed one of the following eight diseases:  adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, Non-Hodgkin’s lymphoma, or Parkinson’s disease. These conditions are the only ones for which there is sufficient scientific and medical evidence to support the creation of presumptions. However, the VA will continue to review relevant information as it becomes available.  The presumptive service connection means that all Lejeune veterans with one of the eight conditions listed above will not have to provide documentation proving their conditions were caused by the tainted water.

President Barack Obama approved a $2.2 billion compensation program to pay disability compensation benefits. Disability Compensation is a tax free monetary benefit paid to veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service. Compensation also may be paid for post-service disabilities that are considered related or secondary to disabilities occurring in service, and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. As many of these conditions develop over time, the veteran may no longer be on active duty. This will not disqualify a claim for compensation. If you or a family member were at Camp Lejeune, it is imperative that you know your rights. They are complicated and often misunderstood, thereby leading our veterans to miss out on benefits they are more than entitled to and definitely deserve. We are awed by our veterans’ commitment to this country and we thank them for their service.

 

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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The Road Ahead: Adjusting To Life After An Injury

As an attorney who has represented injured workers for more than 27 years, I see first hand what an injury can do to workers and their families. A number of years ago I represented an injured electrician, who as a result of an overextension injury sustained on the job, ended up having multiple surgeries. Almost immediately, this once athletic, high wage earner with a beautiful family and comfortable lifestyle saw an abrupt end to the life he knew.

My client faced a debilitating injury. He was no longer able to travel, his personal relationships suffered, and his once strong physique withered away. His financial situation was dire and he was unable to afford his home. Beside the extreme physical impairment, he ended up being treated for major depression. Both the insurance carrier’s medical providers, as well as the claimant’s treating doctors in this particular case, agreed that the claimant was totally disabled or incapable of performing any meaningful work activity – a standard not easy to meet.

Many of those injured on the job may not be able to return to their prior employment. Yet, according to the law, that does not mean they are totally disabled from any employment. If they are able to perform any work activity at all then they may be considered partially disabled. The amount of weekly payments an injured person receives and the length of time an injured worker receives these benefits is dependent upon a number of factors including degree of disability and loss of earning capacity. A partial disability can be considered mild, moderate, or marked.  These degrees are further broken down into when an injury is deemed permanent to a percentage loss of earning capacity. In some cases the difference of one percent loss of earning capacity can mean the difference of a full year of additional benefits. As you can imagine, much of my practice is consumed with litigation regarding the degree of disability and the loss of earning capacity.

The road for those who are partially disabled is not an easy one. Despite the Workers’ Compensation Board’s determination that an injured person has an ability to perform some work activity, it does not always translate into being able to obtain employment. In the case of serious injuries resulting in extensive lost time, the employer may have had to fill the position or the employer may not be able to accommodate the physical limitations. This puts injured workers in a position of having to look for alternate employment that they may not be trained for. The Board recommends a number of resources available to those seeking assistance, including one-stop career centers, as well as participating in vocational rehabilitation programs and continuing education such as SUNY Educational Opportunity centers adult career and continuing education. For more information go to www.wcb.ny.gov/labor-market-attachment

Many workers who are unable to obtain employment because of their injuries apply for Social Security Disability benefits. The standard for Social Security disability is different than Workers’ Compensation and relies more on the age and ability of the injured person to be retrained and to obtain relevant future employment. Social Security Disability benefits are payable for any illness or injury and do not have to be work related. All medical conditions are considered by the federal judge when making a determination as to eligibility, including physical or emotional impairments.

While an injury on the job can be life altering, there are resources available. You may never be able to return to your pre-injury status, but knowing your options allows you the ability to have some control over your future.

 

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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