Author Archives: Catherine Stanton

Dirty Tricks Lead To Reduced Benefits In Cuomo’s New Budget

Governor Cuomo signed a new budget this week. While many extolled his progressive agenda that included free college tuition for the middle class, renewing the millionaire’s tax, and giving a tax break on dues for union members, he also quietly and without much fanfare in the news media, struck a huge blow to injured workers. 

Unfortunately for those members of our society who no longer are able to work as a result of an injury, or sustained a life altering injury while on the job, their benefits became part of a horse-trade in Albany much to their detriment. Governor Cuomo, anxious to get his big publicity items in the budget in case he seeks higher office, seems to have used Workers’ Compensation as a bargaining chip. 

The Business Council circulated fake facts blaming injured workers’ benefits for the high cost of doing business in the state, when in reality employer costs nationwide for Workers’ Compensation are at their lowest levels in 35 years.  Locally, Workers’ Compensation costs in New York have declined dramatically as well; compensation is only a small portion of employer costs and is extremely profitable for insurers. The Business Council seems to have a number of members with strong ties to the insurance industry, which makes their position even further suspect.

In 2007, the Council was successful in lobbying to obtain caps on indemnity benefits and has now continued its assault so that the prior limit on weekly benefits will be further reduced. When caps were first put into place, they did not go into effect until judges determined that injured workers had reached maximum medical improvement and that their conditions could be classified as permanent. This new provision automatically starts the cap after 2½ years, regardless of a person’s abilities or condition, or whether or not he will ever be able to work again or find work that meets medical restrictions. It is up to the injured worker to show that he has not reached maximum medical treatment that the carrier can refute.  

The Business Council has continued its attack by alleging that permanent loss-of-use awards were unfair to the employer. They argue that the prior guidelines were outdated and did not take into consideration new advances in medicine. Again, fake facts! The guidelines are based on range of motion and loss of function after all modalities are exhausted, including new advances in medicine available. As a result, the new law directs the Board to “consult” with a group stacked with pro business and insurance interests, but no representatives of injured workers to “review” the current guidelines with the ultimate goal of reducing benefits. The fact that workers who have permanent life-altering injuries to their arms, legs, hands, feet, fingers, and toes have absolutely no say is extremely distressing.

When does this eroding away of Workers’ Compensation benefits end? Two years ago, ProPublica published a series of articles entitled “The Demolition of Workers’ Comp”.  They documented the cutbacks made in many states with disastrous consequences. Their report noted that since 2003, 33 states passed Workers’ Compensation laws that reduce benefits or make it more difficult to obtain benefits. New York is part of that list, having enacted laws not once, but twice, since then.

Many believe that reducing benefits to injured workers will force them back to work. Studies have shown that this is another myth perpetuated by the falsehood that injured workers are frauds. What happens in reality is that many injured workers are unable to work and are forced into poverty or have to collect alternate benefits. Social Security Disability benefits, which are paid by the American taxpayers, are generally offset by Workers’ Compensation benefits. Without Workers’ Compensation payable by the insurance carrier, the burden on the taxpayer is larger. Rather than the Workers’ Compensation insurance carrier paying for medical treatment, it is put through Medicare. This is known as cost shifting and it affects all of us, as we are the ones who end up paying – and paying dearly.

 

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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Proposed Legislation Threatens To Eliminate 100 Years Of Progress

More than a century ago, 146 garment workers, mostly women, died when a raging fire trapped them behind doors that were locked by their employer to prevent perceived theft. They died of smoke inhalation or falls while trying to flee the fire, or were burned alive because they were unable to get out.  In order to save money and increase profits, their employer had previously refused to install sprinkler systems and provide working fire equipment. Despite clear fault on their part, the employers were cleared of any wrongdoing in what is known as the Triangle Shirtwaist Factory Fire in 1911.

Protracted lawsuits filed against them by the families of the dead were eventually settled for $75 per life lost. While this tragedy temporarily outraged the public and forced public officials to improve worker safety, which was the impetus for Workers’ Compensation legislation, years later workers are still getting injured, maimed, and killed and are not at all compensated adequately for their injuries.

I recently read a story in the New York Post about an incident that took place 10 years after the Triangle Shirtwaist Factory Fire about young women who were hired to paint watch dial numerals and hands with radium.  At the time, these young ladies were unaware of the dangers of radium, which is highly radioactive with exposure that can result in cancer and other illnesses, as well as death. The women would dip their paint brushes in the radium and then paint the watches. Since the brushes needed to have a fine point, they would put the tip of the paint brush in their mouths. They were never informed of the dangerous nature of their work. 

It appears that at least some, if not all, of the managers and owners of the factory knew of the dangers, but almost nothing was done to discourage the practice as it would have slowed down the work and thus reduced profits. Within a number of years, many of these women became quite ill and died torturous deaths. There was very little investigation by the Department of Labor, which was pro- business and worker safety was low on their list of priorities. Once the dying women learned that they had been poisoned by the radium, a law suit was filed. Despite the fact that the women’s skin was perpetually glowing, the company fought against the claim for years hoping they would die before they could testify, but eventually agreeing to a meager monetary settlement. 

Both tragic stories are similar in that worker safety was very much ignored in favor of profits. The hope for monetary compensation was pretty much a David and Goliath battle with big business and insurance companies pitted against the sick and injured. Neither was a fair fight.

Here we are, 100 years later and still fighting a battle against greed. Once again, big business in the form of the Business Council is using its vast resources to try to get Albany to again reduce the benefits given to injured workers in this state. Those people who now are unable to obtain adequate wage replacement or medical treatment, whose lives are uprooted, or have lost their homes and their hope for a healthy future are engaged in a battle that they are financially, physically, and emotionally unable to fight alone. 

You can help by contacting your State Senator and Assemblymember to vote against any bill that would reduce benefits to injured workers. Injured workers include those who have built your towns and cities, who have watched your children, who have served you at restaurants, and who have taken care of your sick. They are your family, your friends, and your neighbors – and they need you to help them battle Goliath. 

 

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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Injured As A Result of 9/11? The World Trade Center Accidental Disability Deadline Is Approaching

I recently traveled to Virginia with most of my immediate family to celebrate my father’s 80th birthday. While he is not in the best physical shape, he was clearly touched that we all came to wish him well as he celebrated this milestone birthday. As an added bonus, we also got to visit with my grandmother, Mary Walsh, who will celebrate her 109th birthday in August. 

My dad was a New York City firefighter for many years. Unfortunately, quite a few of his current health issues were caused by his exposure to smoke while battling fires during the worst years – the 1970s and 1980s – the City of New York has seen in terms of firefighting calls. Along with the smoke inhalation, years of carrying heavy packs, rescuing people and sustaining burns, broken bones, and other injuries have wreaked havoc on his body. While he saw more than his share of death and destruction, it pales in comparison to the losses the City sustained on September 11, 2001, when 411 emergency responders, including 343 firefighters, lost their lives. Even more distressing is that according to statistics, more than 850 additional first responders have died as a result of 9/11 related illness since that day. Just two weeks ago in fact, retired firefighter Robert Newman from Patchogue, Long Island, died from cancer as a result of breathing in toxins at the World Trade Center.

Many of these first responders initially retired without realizing the extent of their illnesses, and that they were entitled to compensation for their injuries. While Workers’ Compensation benefits are not available to uniformed employees of the FDNY or NYPD who participated in the rescue, recovery, or cleanup operations, they are still eligible for certain benefits.

In 2005, the World Trade Center (WTC) Disability Law took effect in New York State. This law establishes a presumption that certain disabilities for those who participated in the rescue, recovery, and cleanup at the World Trade Center and other specified sites would entitle them to accidental disability retirement benefits subject to certain criteria including when, where, and for how long they worked at a WTC site. Subsequent amendments expanded the list of individuals eligible, extended the filing deadline, and added qualifying conditions.

The bill allows many police officers and firefighters who retired with non-WTC accidental disabilities to have their retirement reclassified as an accidental disability related to the WTC disaster. Death benefit legislation enacted in 2006 provides an accidental death benefit to certain city and state employees within this same eligibility group. If approved, World Trade Center accidental disability retirement will become effective as of the date of reclassification and not retroactive to the date of retirement.  

If you are disabled, you should file an Application for World Trade Center Accidental Disability

Presumption. If you have not already done so, you must file this Notice on or before September 11, 2018. In order to preserve your right to file at some time in the future if you are presently not disabled, you will also need to file an Application for World Trade Center Notice on or before September 11, 2018.  While you do not need an attorney to represent you, it may be in your best interest to seek the advice of a professional as there are certain restrictions, deadlines, various forms, and qualifying conditions that could make filing the application difficult. 

The after effects of 9/11 continue to take their toll even after all these years, with no immediate end in sight.  We are grateful that there is at least some small consolation for our first responders who should at least not have to be worried about financial issues for themselves and their families. 

 

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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Need Joint Replacement and on Medicare? Better Not Be Sick.

Having a lung ailment may make it more difficult to obtain coverage for joint replacement.

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

A new Medicare rule that took effect April 1, 2016 retools Medicare payments for hip and knee replacements.  Patients with serious medical conditions such as heart disease, obesity, diabetes, and lung ailments may not be able to find an orthopaedic surgeon willing to perform the joint replacement because hospitals face financial incentives to avoid patients with a high risk of complications. 

Hospitals will be given a “target price” for total joint replacements for the patient’s entire care from the hospital stay to outpatient rehabilitation through 90 days after discharge, according to a new rule from the Center for Medicare Services.  If the reimbursement is less than the target price, the hospital may receive an additional payment from Medicare as an incentive for good outcomes.  On the other hand, the hospital may be required to pay back part of their reimbursement that goes above the target.  The rule is intended to control costs on the $7 Billion Medicare spends for hospital care and for almost one-half million beneficiaries who receive a hip or knee replacement each year.  However, since Medicare will pay only one “bundled payment” for the patient’s entire care after total joint replacement surgery, the hospital will be accountable for the quality of care through the incentives and penalties.  The surgeon shares responsibility when a patient is re-admitted to the hospital and receives a “black mark” even when the re-admission has nothing to do with the joint replacement.  An unintended consequence of this payment model may be “cherry picking” of low risk patients.  Patients claiming a work-related connection to joint replacement surgery who have been denied by Medicare may face additional hurdles in obtaining their surgery. 

Stay tuned…

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Cutting Corners Costs Lives: Non-Union Work Sites Twice As Dangerous As Union Sites

This large inflatable rat is a common sight at protests of non-union worksites in New York City.

As an attorney who practices in the metropolitan area, I often find myself traveling into New York City. I am amazed at the amount of construction that I see; the cityscape is changing and evolving rapidly. This construction boom means more business, a steady paycheck for workers, and more money for the city and state. Unfortunately, with the rise in construction also comes a rise in safety violations, injuries, and fatalities.

The New York Committee for Occupational Safety and Health (NYCOSH) recently issued a report called Deadly Skyline regarding construction fatalities in New York State. A summary of their findings notes that from 2006 through the end of 2015, 464 construction workers died while on the job, with falls as the leading cause of death. When a fatality occurred, safety violations were inherent in more than 90 percent of the sites inspected by the Occupational Safety and Health Administration (OSHA). The report pointed out that non-union work sites had twice the safety violations of union sites, and in 2015, 74 percent of the fatalities occurred on non-union projects with the majority of the fatalities involving Latinos.       

It is painfully obvious that shortcuts and cost-saving measures result in injury and death. Many employers use misclassification as a means to save money. Misclassification occurs when an employee is labeled as an “independent contractor” so that a business owner doesn’t need to pay Workers’ Compensation insurance, Social Security, Medicare, or unemployment taxes. Some even resort to paying employees off the books as well in an effort to save money. This may not seem troublesome until you realize that this is a one-sided deal that really only benefits the employer. According to the NYCOSH report, misclassification of workers allows an employer to skirt the safe workplace requirement as OSHA does not cover independent contractors.

Employers must provide Workers’ Compensation insurance for their employees, and typically must notify their Workers’ Comp carrier as to the number of employees they have and the type of work they do. A risk analysis is performed and then employers are assigned a premium to pay in order to cover their workers in case of injuries. If injuries occur, premiums may be increased accordingly. Obviously employers in high-risk businesses must pay more for their premiums than those with employees involved in low-risk jobs. As injuries on misclassified workers do not add to an employer’s bottom line, there is less incentive to provide safety measures if it cuts into profits.

To make construction sites safe, NYCOSH recommends adequate education and training as well as legislation to punish those whose willful negligence causes a death. They also recommend passage of the NYS Elevator Safety bill that requires the licensing of persons engaged in the design, construction, operation, inspection, maintenance, alteration, and repair of elevators. It would also preserve Section 240 of the New York Labor Law, commonly referred to as the “scaffold law,” which governs the use of scaffolding and other devices for the use of employees. Weakening the Scaffold Law would shift safety responsibility from owners and general contractors who control the site, to workers who do not control the site and are in a subordinate position.

It is a true tragedy when someone is maimed or killed in an accident that could have been prevented. Not every employer engages in these tactics, and most workplaces are generally safe spaces for workers. However, even one death is too many. 

 

 

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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Medical Records Important for Workers’ Compensation Claim

Today’s post comes from guest author Todd Bennett, from Rehm, Bennett & Moore.

Medical records are necessary to substantiate an injured worker’s claim. At a minimum, injured workers and attorneys need the records from doctors and hospitals to show the diagnoses the workers have and the treatment that they have received. This includes records from physical therapy, MRI, pain management, orthopedic, etc.  

Every injured worker has a right to receive her or his medical records, and by law should be able to obtain those records promptly at a fair cost.

Federal law is clear: a patient has the “right to obtain from [their health care providers] a copy of [their medical records] in an electronic format,” 42 USC § 17935(e)(1), and that health care providers may bill “only the cost of … copying, including the cost of supplies for and labor of copying,” 45 CFR 164.524(c)(4)(i). This is all part of the Health Information Technology for Economic and Clinical Health Act (HITECH Act).

Rehm, Bennett & Moore employs the HITECH Act on behalf of injured clients to represent them in an efficient and cost-effective manner.

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With Beautiful Snow Comes Dangerous Conditions

The New York metropolitan area recently got its first significant snow of the season and while it is not unusual to see snow in January, it is significant as it was part of a system that impacted much of the country. Winter Storm Helena started out pounding the western portion of the United States before heading  south and barreling up the east coast. There were a number of fatalities and injuries as a result of this intense storm.

Locally, some areas of Queens and Long Island received up to a foot of snow. While the snow can be beautiful and peaceful when it is falling, it cannot stay on the streets and on the sidewalks once it stops.  Cities, towns, and other municipalities are responsible for snow removal in public areas and roadways, but it is up to home- and business-owners to make sure it is removed from the sidewalks in front of their properties. That means getting out the shovels or snow blowers.  

Unfortunately for many people, this activity can result in serious injury. In 2011, the American Journal of Emergency Medicine published the results of a study that found on average 11,000 people were hospitalized per year as a result of injuries caused by shoveling snow. The most common injuries are back injures caused by lifting the heavy snow, heart issues caused by overexertion, and slip-and-fall injuries. Shoveling snow can be very strenuous depending upon the amount and type of snow. Many people try to shovel as quickly as possible in order to get out of the cold. Unfortunately, this attempt at shortcutting can have serious consequences.

According to experts, you can alleviate some of the stress on your back by using a good shovel and picking up smaller loads of snow. Use your legs instead of your back when lifting, and avoid twisting at your waist to reduce the chance of an injury. Shovel straight ahead to minimize excessive movements, and don’t throw the snow over your shoulder unless you are training for a fitness magazine cover. Take frequent breaks to hydrate and to get warm. Slipping and falling on ice and snow can result in broken bones and other serious injuries. It goes without saying that slip-resistant footwear is a necessity.

Shoveling snow is an aerobic activity that raises your heart rate. Combined with the cold temperatures, it can lead to deadly heart problems. While only 7% of snow injuries were related to heart problems, the majority of the fatalities were heart-related. If you have a heart condition, heed your doctor’s advice regarding strenuous activity. Death can occur to those tasked with the responsibility of shoveling snow while on the job as well. Some employees are directed to remove snow not just on the sidewalks, but on roofs and other structures. In 2012, the Occupational Health and Safety Administration (OSHA) issued a hazard alert as a result of 16 preventable workplace fatalities that occurred in a span of 10 years. The majority of these deaths were as a result of falls from heights.   

Needless to say, precautions need to be taken for both home owners as well as workers. However, if you are on the job, there are steps you need to take if you are the unfortunate victim of an injury. First, seek immediate medical treatment. Make sure you notify your employer within 30 days and file a claim with the New York State Worker’s Compensation board within two years. Your employer has Workers’ Compensation insurance for wage replacement and medical treatment so you should not pay anything either out of pocket or through your own private insurance. The winter season can be fun but it can also be dangerous for you and your friends and co-workers. Help out your elderly neighbor, invest in a good shovel, wear appropriate clothing, and be careful out there. Snow is beautiful, but it can also be dangerous.

 

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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Finding A Way Forward: How I Am Greeting The New Year With Optimism

I recently saw a quote that said “we are all just a car crash, a diagnosis, an unexpected phone call, a newfound love, or a broken heart away from becoming a completely different person. How beautifully fragile are we that so many things can take but a moment to alter who we are for forever”.   

During this holiday season, many of us will get together with our families and friends to celebrate our blessings but never expect that in the blink of an eye our lives can change dramatically. A very good friend of mine was celebrating Thanksgiving with her family when a pot of boiling water fell onto her and she suffered severe burns. After spending nine days in the Burn Center and in weeks of excruciating pain, she is living proof that there are no guarantees in life.  

A recent report by Fox News USA shows that unintentional shootings spike during the holidays and are more likely to occur than at any other time of the year due to a number of factors, including increased use of alcohol, holiday gifts of firearms, and children and teens being home from school with more free time. Many of us now rely on online shopping for our holiday gifts, which increases the amount of delivery vehicles on the road. Car crashes spike, as the December holiday season is one of the busiest travel times of the years. Factor in weather that does not always cooperate, and impaired drivers on the road as a result of holiday gatherings, and it is a recipe for disaster. Those who drive for a living are at an increased risk of injury or even death. 

Those who work in the retail industry are not immune from increased risk of injury either. Many of us won’t forget the Black Friday stampede in 2008 when a worker was trampled to death in a Long Island Walmart. In response to that tragedy, the company was fined, they agreed to adopt new crowd management techniques, and  the Occupational Safety and Health Administration (OSHA) issued Crowd Management Safety Guidelines for retailers. The stress of the holidays can cause depression, less sleep, and financial woes that can translate into violence. OSHA notes that workplace violence has remained among the top four causes of occupational death. 

But the promise of tomorrow brings optimism. As we embark on a brand new year, many of us will feel a sense of relief as 2016 was a year filled with turmoil. The presidential election was polarizing for many Americans. Friends became enemies and family members would not speak to one other. Many of us will look to the new year with a sense of a new beginning – a chance to have a fresh start, a renewal of sorts. Many of us will make resolutions to lose weight, to end a bad habit, to become a better parent, spouse or friend. Many will donate to charities. Despite our differences and shortcomings, Americans are among the most charitable nation in the world. According to Giving USA’s annual report in 2015, Americans gave an estimated $358 billion to charity the prior year. There are so many things we can do to improve our lives and the lives of those in our community and our nation. The list of possibilities is endless. For those of us who represent injured workers, we resolve to make workplaces safer and ensure that medical and indemnity benefits are available in the future. Wishing you all Peace, Love, and Good Health in the upcoming year.

 

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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