Author Archives: Catherine Stanton

“Cost-Shifting” Exposed: How Injured Worker Medical Care Decisions Are Made (And Who Pays)

Medical coverage is a topic on everyone’s mind. Obamacare, while controversial, has started a real dialogue in this country regarding health care. Regardless of whether you are in favor of the current law, most Americans want affordable health care for themselves and their families.

Many employers pay for a substantial amount of their workers’ premiums as a benefit to them, and take this into consideration when making salary decisions due to the high cost, thereby leaving workers to pay for all or some of their medical coverage. Sometimes insurers pay for benefits that are not their responsibility because the proper entity refuses to pay. This is known as cost shifting. As a practitioner in the field of Workers’ Compensation, this idea of cost shifting has become an all too common occurrence. 

By way of background, as a result of social reform, most states enacted some form of Workers’ Compensation legislation in the early 20th Century. In exchange for timely payment of medical and indemnity benefits, workers gave up the right to sue their employers. In 2007 in New York, there was a series of further reforms that led to compromise between labor groups, the insurance industry and the Business Counsel. There was an increase in the amount of weekly benefits to injured workers to conform with the State average weekly wage (now a maximum of approximately $800 per week) in exchange for a limit on the amount of weeks an injured worker is entitled to receive these benefits.  Additionally, medical treatment guidelines have been introduced with the premise that they would streamline costs and get injured workers faster and more effective medical care. These guidelines are based upon the principles of Evidence Based Medicine (EBM), which is the use of clinical trials and data to determine whether a specific treatment should be recommended for a specific diagnosis.  It is sometimes referred to as “cookbook” treatment. 

In New York, the Court of Appeals recently ruled by a 4-3 margin that any treatment not specifically included and pre-authorized is presumptively unnecessary. In other words, if a treatment requested is not within the medical treatment guidelines, it is denied. This takes the decision making out of the hands of the treating physician who is really in the best position to determine what treatment would be most beneficial for patients. In order to overcome this presumption, the doctor now must engage in what has been seen in most cases as an exercise in futility to request a variance to overcome this presumption.

The New York Committee for Occupational Safety and Health (NYCOSH) reported that the New York State Workers’ Compensation Board received 202,643 variance requests in the first 10 months the guidelines were implemented. A quarter of the requests were rejected by the Board immediately. The rest can lead to protracted litigation. As a result, in many instances injured workers will now shift the cost to another party, such as their own private insurance, Medicare or even worse, pay for the treatment out of pocket. It is the path of least resistance. We all pay an additional price for medical costs borne by group health insurance carriers, Medicaid, and Medicare that should in fact be paid by Worker’s Compensation insurers. This cost shifting may increase Workers’ Compensation insurance profits, but it hurts both the employers’ and the employees’ bottom line. Injured workers don’t stop needing treatment just because their medical claim is denied. Someone has to pay for the cost of lost time and medical treatment. It is time that the proper party step up and take responsibility.

 

 

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 Law Protects People From Deadly Carbon Monoxide

As an attorney who has practiced in the field of Workers’ Compensation for more than 25 years, I have represented thousands of injured workers, spouses, and families of workers killed on the job. Sadly, many of these deaths and injuries were preventable.

I recently read a blog published by an attorney friend of mine from North Carolina involving carbon monoxide poisoning. I thought it was extremely timely as on December 30, 2014, New York State Governor Cuomo signed into law new legislation that requires every restaurant and commercial building in the state to install carbon monoxide detectors by June 2015. This law, known as Steven Nelson’s Law, was named in honor of Mr. Nelson, a Long Island restaurant manager killed on the job as a result of carbon monoxide poisoning from a malfunctioning water heater flue pipe in the basement of the restaurant. Just this week, two men were found dead in Long Island at a Holbrook auto detailing shop from apparent carbon monoxide poisoning. Every household should have a carbon monoxide detector, just as every house should have a smoke detector. Under the existing New York State law, every one- or two-family home, condominium and cooperative, and each unit of a multiple dwelling constructed or sold after July 30, 2002, must have a working carbon monoxide detector. This law regarding residential dwellings was passed in 2010 and called Amanda’s Law after a young girl who died after sleeping at a friend’s house where there was a clogged boiler vent. Restaurants and other commercial buildings were excluded prior to Steven Nelson’s Law. But not only is it important to have a CO detector, it’s equally as important to be sure it is working properly. Test it on a regular basis, along with your smoke detector, and be sure to replace the batteries once a year.

The Centers for Disease Control and Prevention (CDC) estimate that at least 430 people die each year from unintentional carbon monoxide poisoning (www.cdc.gov/features/copoisoning/). Winter is the most dangerous time of the year for carbon monoxide poisoning because of improperly used generators and heavy snow drifts that can clog heating vents.

Carbon monoxide (CO) is a colorless, odorless, and tasteless gas that can severely damage the human body, and as noted above, in some cases can lead to death. Symptoms include headaches, dizziness, vomiting, confusion, weakness, blurred vision and nausea. Extreme symptoms include severely impaired mental state, coordination loss, loss of breath, increased heart rate, chest pain, and loss of consciousness. Anyone experiencing CO poisoning symptoms should be removed from the enclosed environment and taken to a medical professional. Call your local authorities to make a report.

Be aware of CO sources in your home. Any gas-burning appliance such as a furnace, boiler, gas stove, water heater, fireplace or gas-powered tool can be a CO source. Make sure these types of appliances are serviced regularly to lower the risk of CO poisoning. Don’t put a gas generator in the house, garage, or outside your house near a window. Generators have the capability of producing CO levels several hundred times those found in normal automobile exhaust. The CDC recommends that generators should be used at least 20 feet away from your house in a properly ventilated area.

It is unfortunate, but typical, that many laws are enacted as a result of a tragedy. Death or injury by carbon monoxide poisoning is completely preventable. A simple device can save your life.

 

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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Public Employees, Claim Your World Trade Center Disability Law Benefits

January 2015 is a milestone for me as it marks my 25th anniversary as an attorney.

It is always imperative to keep up with changes in the laws, particularly those impacting injured workers as I focus on Workers’ Compensation claims. I am the daughter of a retired NYC Firefighter and the sister of two firefighters, one of whom retired on a disability pension as a result of his lung condition caused by the toxins in the air after 9/11. Besides needing to know the law as a professional, I want to know about updates, as they can affect my family.

For those public employees who were at the World Trade Center site after September 11, 2001, in rescue or recovery, or were public civilian employees injured as a result, it is imperative that you notify your retirement system that you were present. Under the State World Trade Center Disability Law, those sickened by their recovery work are eligible to receive lifelong enhanced disability payments upon retirement and your families can receive benefits if you pass away. In 2013, New York State Senator Martin Golden and State Assemblyman Peter Abbate co-sponsored a bill that extended the deadline to file the Notice of Participation until September 11, 2014. This deadline was subsequently extended again until September 11, 2015 for members of those “covered” employees.

Some employees had previously been denied coverage because their diseases were not initially covered. The law protects the following individuals who responded to the collapse of the WTC: Uniformed members of the NYPD, FDNY, DSNY, and DOC, and other civilian employees including EMS workers, 911 dispatchers and supervisors, emergency vehicle radio repair mechanics, vested members of a public pension system who stopped working before filing a claim, and workers who became disabled more than two years after the WTC disaster but before the Workers’ Compensation Law was extended.

Civilian employees who did not have a pre-employment physical can apply for a disability pension by providing medical records that show no pre-existing condition before 9/11. Death benefit legislation, enacted in 2006, provides an accidental death benefit to City employees within this same eligibility group.

The bill allows police officers, firefighters, and other civilian employees hired before July 26, 1976, who retired for non-WTC accidental disability to have their retirement reclassified as accidental. Verification of service at a WTC site during the period indicated varies according to the pension system. Independent medical boards (each pension system has its own medical board) review the applications initially and report to the Boards of Trustees. If a disability is found, the pension system’s Board of Trustees makes a final decision on the application.

Only 911 operators and supervisors who worked within the first 24 hours after the first plane hit the Towers are eligible for WTC-related benefits. In addition, 911 operators and supervisors may only apply for benefits based on the qualifying psychological conditions.

While this extension is not anticipated to open up a floodgate of additional claims, for those people who qualify, the benefits can be substantial. The size of the payments depends on the worker’s job title, when they were hired, and their retirement tier. While there can be no real compensation when your health is affected, this is a small step to assist our First Responders who deserve to have their retirement less worrisome when it comes to financial issues.

 

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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Tips to Prevent Carbon Monoxide Poisoning

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

The Centers for Disease Control and Prevention (CDC) estimate that at least 430 people die each year from unintentional carbon monoxide poisoning (www.cdc.gov/features/copoisoning/). Several years ago we represented a young lady who was exposed to carbon monoxide (CO) poisoning at a convenience store where she worked. Some repairs were being made to concrete and the workers were using gas-powered tools to cut into the concrete and there was improper ventilation. She collapsed and was taken to the hospital with possible brain damage.

 

Carbon monoxide is a colorless, odorless and tasteless gas that can severely damage the human body and in some cases it can lead to death. The following tips can protect your family from CO poisoning:

 

  • Know the symptoms of CO poisoning. These include headaches, dizziness, vomiting, confusion, weakness, blurred vision and nausea. Extreme symptoms include severely impaired mental state, coordination loss, loss of breath, increased heart rate, chest pain and loss of consciousness. Persons experiencing CO poisoning symptoms should be removed from the enclosed environment and taken to a medical professional. Call your local authorities to make a report.
  • Be aware of CO sources in your home. Any gas burning appliance such as a furnace, boiler, gas stove, water heater, fireplace and gas-powered tools can be a CO source. Make sure these types of appliances are serviced regularly to lower the risk of CO poisoning.
  • Don’t put a gas generator in the house, garage or outside your house near a window. Generators have the capability of producing CO levels several hundred times those found in normal automobile exhausts. The CDC recommends that generators should be used at least 20 feet away from your house in a properly ventilated area.
  • Install a CO detector to alert of a possible CO leak.

 

For more information please visit www.serpefirm.com/personal-injury-blog/.

 

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The High Road: Investing in Your Workers

Today’s post comes from the United States Department of Labor.

Congress still hasn’t answered President Obama’s call to raise the national minimum wage. But states and localities are acting on their own, through legislative action and ballot measure. And across the country, forward-thinking businesses are leading by example. In community after community, I’ve visited with employers who know that paying workers a fair wage isn’t just the right thing to do; it’s also good for business.

boston beer collage
boston beer collage

Nobody would argue that Boston Beer Company founder and chairman Jim Koch doesn’t know what he’s doing. He produces America’s most successful craft beer, Sam Adams, served in bars, restaurants, stores and entertainment venues nationwide. His brewery has won more awards in international beer-tasting competitions that any other. I had the pleasure of meeting with Jim earlier this week, touring the Boston brewery, and learning about how he treats his 1,200 employees. “You can’t have engaged employees if you don’t invest in them,” he says. That’s why Jim offers his employees paid sick leave and starts everyone, including part-time workers, well above the minimum wage.

letter logic
letter logic

Later in Nashville, I met with a handful of small business owners who similarly value their employees, recognizing that the high road is the smart road. Among
them is Sherry Stewart Deutschmann who founded and runs LetterLogic, a company that processes statements, letters and checks for…

[Click here to see the rest of this post]

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A Special Warning About Over-the-Counter Pain Medications

Today’s post comes from guest author Jay Causey, from Causey Law Firm.

The dangers of prescription pain meds get a fair amount of regular attention in the media.  A recent Consumer Reports (CR) article described a 300% rise in prescriptions of opiods – particularly those with hydrocodone –over the past decade, and provided a scary statistic:  17,000 people – 46 per day – die from overdose of these drugs.

What is less well known, and gets relatively scant attention, is that over-the-counter (OTC) painkillers containing acetaminophen (e.g. Tylenol) take 80,000 people yearly to the emergency room from overdose.  Acetaminophen, widely regarded as a “safe” drug is now the most common cause of liver failure.

The CR article points out the primary problem:  the directions for usage of these OTC drugs are ridiculously confusing and misleading.  Many of these only provide the caveat “take only as directed.”  What exactly does that mean?  Wildly different things according the cautions provided by differing drug manufacturers.  Some labels advise taking no more than 1000 milligrams of acetaminophen daily while others set the limits four times that high.  In some bizarre bureaucratic misstep, the FDA has lowered the maximum per-pill dose of the drug in prescription medications but has not done the same thing for OTCs. 

CR warns that overdosing on acetaminophen is easy as it is the most common drug in the U.S., found in more than 600 OTC and prescription medications.  There is little margin for error in exceeding the maximum recommended dose as only as small excess amount of the drug can be toxic to the liver.  A scary little graphic in the article shows how easy it is to do this.  A person might take six 500 milligram Extra Strength Tylenol (states maximum daily dose of 3000 milligrams) starting in the morning and through the day; then be on NyQuil for a cold and take eight 325 milligram pills (states maximum daily dose 2600 milligrams); and then do Walgreens Pain Reliever PM as a sleep aid (two 500 milligram pills at bedtime for a daily dose of 1000 milligrams).  At the end of a 24-hour period, that person would have ingested 6,600 milligrams of acetaminophen!!  Repeated doses of more than 4000 milligrams of the drug have been linked to liver, brain and kidney damage.  Chronically large doses have been correlated with the need for a liver transplant, or death, more than from one large overdose.

In 2011, the FDA limited the amount of acetaminophen in prescription pills to 325 milligrams per pill, but there has been no similar limitation imposed for OTCs, even though that market accounts for 80% of that drug taken yearly in the U.S.  For those regular users of acetaminophen, signs of potential liver damage to watch for are:  dark urine, pale stool, upper right abdominal pain, and a yellowish tint to the whites of the eyes.

 

Photo credit: Be.Futureproof / Foter / Creative Commons Attribution 2.0 Generic (CC BY 2.0)

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Attorney Frank Francis Joins the Board of Directors of LeGal

Frank Francis

Congratulations to Pasternack Tilker Ziegler Walsh Stanton & Romano Associate Frank Francis on being installed to the Board of Directors of LeGal.   

LeGaL was one of the nation’s first bar associations of the LGBT legal community and remains one of the largest and most active organizations of its kind in the country.  Serving the New York metropolitan area, LeGaL is dedicated to improving the administration of the law, ensuring full equality for members of the LGBT community and promoting the expertise and advancement of LGBT legal professionals. Through the LeGaL Foundation, the organization publishes Lesbian/Gay Law Notes, the most comprehensive monthly publication summarizing legal and legislative developments affecting the LGBT community here and abroad, conducts a weekly walk-in pro bono clinic at Manhattan’s LGBT Community Center serving hundreds of individuals each year, a monthly clinic on Long Island, a twice monthly clinic in Brooklyn, a collaborative Life Planning Clinic with NYLAG’s LGBT Law Project, sponsors the Dr. M.L. Hank Henry, Jr. Fund for Judicial Fellowships and, among its many other activities, runs the area’s only career fair dedicated to first-year LGBT law students.

M. Francis graduated from Georgetown University, received his Master’s from Johns Hopkins University while participating in Teach For America, and graduated from Brooklyn Law School in 2009. He worked as a student Assistant District Attorney at the Kings County DA, Bronx Legal Aid Juvenile Division, and as a clerk for an Equal Employment Opportunity Commission Judge while in law school. He also worked for the New York City Transit Authority’s Law Department and the New York City Department of Education, from which he brings municipal experience to his advocacy for injured workers. In addition to his involvement with LeGal, he is a member of the Hispanic National Bar Association, the Brooklyn Bar Association Young Lawyers Committee, the New York County Lawyers Assoation Employment and Labor Relations Committee, the New York State Trial Lawyers Association, and the New York State Bar Association. 

 

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Examining Workers’ Compensation’s ‘Grand Bargain’ and the Upcoming Election

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

Here’s why people should support candidates who will protect workers’ rights. Understand that the ongoing workers’ compensation issues faced by state legislatures are not going away, so state legislatures are the front lines when it comes to making sure workers’ compensation systems are not diluted even more for injured workers and their loved ones.

Here’s some background. Over 100 years ago, workers’ compensation law was developed across the United States. Nebraska was actually one of the pioneering states, back when we were more progressive.  Workers’ compensation was viewed as the “Grand Bargain,” with several presumptions on how the system should work. A January 2014 LexisNexis Legal News Room Workers Compensation Law blog post addresses these presumptions. The blog itself is a respected neutral source on workers’ compensation issues.

While employers and insurance companies are chipping away at the protection workers’ compensation systems offer to injured workers and their loved ones through stalling tactics such as disputing if an injury happened at work or just straight out refusing coverage, those same interests are bending the ears of each state’s politicians to further erode the “Grand Bargain.”

Year in and year out, business and insurance groups cause a large number of bills to be filed that take away benefits from workers or make it more difficult for workers to obtain benefits or take control of their treatment for work injuries.

A recent study’s results, written in the same blog by the same author, reinforces what many injured workers, their loved ones, and their attorneys already know: essentially that workers in New Mexico (and I would argue that this is easily applicable to injured workers in many states) are no longer benefitting from the “Grand Bargain.”

The Grand Bargain Is Out of Equilibrium

“An important part of the ‘grand bargain’ between employers and employees within the workers’ compensation arena is the idea that just as the wear and tear on an employer’s machinery ought to be reflected in the price of the employer’s goods or services, so also should the wear and tear on the employer’s work force. A product’s price should reflect the total cost of production, including the costs associated with work-related injuries and illnesses. The Seabury study adds weight to the argument that the grand bargain is out of equilibrium, that workers’ compensation benefits do not adequately replace what a worker loses through his or her injury, that the physical and economic costs associated with work-related injuries and illnesses are not being fully addressed, and that the injured worker is at least partially subsidizing the overall cost of America’s goods and services with his or her lost income.”

The bottom line from this respected author is that workers’ compensation benefits should not be reduced, made more difficult to obtain, etc., when workers who get injured already make less money over a 10-year period of time than workers who aren’t injured.

So let’s elect legislators who will both restore and support the “Grand Bargain” for injured workers and their loved ones.

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