Category Archives: Workers’ Compensation

Don’t Go It Alone

An injured worker walked through my door the other day frustrated beyond belief. He had been representing himself on his compensation claim for his back injury. He thought he did not need a lawyer and could handle it himself.

The insurance company accepted the claim and paid this worker only a fraction of what he was actually entitled to, though that was not the issue the client wanted to discuss. He did not even realize that he had been short changed.

What he wanted to discuss was getting back surgery. His doctor requested a laminectomy, but the insurance company told the doctor and the injured worker that they were not going to authorize it or pay for it. This man had been suffering terrible back pain for nearly six months and his surgery was never scheduled.

The injured worker was shocked when I told him that the insurance company did not have to give authorization — this surgery was already authorized under the Board’s Medical Treatment Guidelines. The insurance company knew this of course, but seemingly played ignorant to avoid paying for the needed surgery.

When I then told him that he could not only have his surgery, but also had been paid less than half of the indemnity payments to which he was entitled, the gentleman shook his head in frustration and said, “I shouldn’t have done this alone.”

How right he was. The New York Workers Compensation system is extremely complicated. Insurance companies know the system well and often do not tell unrepresented injured workers details that matter, often while telling the injured worker that they are acting in their best interest.

Do not go it alone.  At Pasternack, Tilker, Ziegler, Walsh, Stanton, and Romano, with more than eight decades of experience in defending the rights of New Yorkers, we help clients get the justice they deserve.

Prior results do not guarantee outcomes.
Attorney Advertising.

Injured Volunteer Firefighters And Ambulance Workers May Be Eligible For Benefits

New York workers are generally covered by the Workers’ Compensation Law, but there are special laws which cover volunteer first responders – firefighters and ambulance workers.

Closely aligned with the Workers’ Compensation Law are the Volunteer Firefighter Benefits Law (VFBL) and the Volunteer Ambulance Workers Benefit Law (VAWBL). As their titles suggest, these two laws protect people who volunteer in the potentially hazardous duties of fighting fires, responding to motor vehicle accidents and tending to those injured in a variety of circumstances. While not all firefighters and ambulance workers are unpaid, many areas outside the five boroughs of New York City and other smaller cities maintain volunteer forces to provide these indispensable services. Given the inherent danger involved, volunteers often suffer injury when “on duty”.

In the event of an injury, both laws provide wage replacement benefits and medical coverage. Also, there is a “built in” presumption of an earning capacity for volunteers; therefore, even if a volunteer is not otherwise employed, she or he may be entitled to benefits. In addition to physical injury, the laws cover such events as exposure to noxious fumes, smoke or chemicals and post-traumatic stress disorder.

The list of what entails an “injury in the line of firematic or ambulance worker duty” is extensive. These events include maintaining vehicles and participation in certain department-sanctioned events. We take pride in representing those who volunteer their efforts in the service of others, especially when those efforts can be fraught with danger.

In order to best insure that your rights are protected, be sure to contact our office for a no-cost consultation. And thank you for volunteering!

Prior results do not guarantee outcomes.
Attorney Advertising.

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.

Prior results do not guarantee outcomes.
Attorney Advertising.

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.

Prior results do not guarantee outcomes.
Attorney Advertising.

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.  

Prior results do not guarantee outcomes.
Attorney Advertising.

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.

Prior results do not guarantee outcomes.
Attorney Advertising.

Protecting Yourself At Work: What To Do If There Is An Active Shooter

As an attorney who has been practicing before the New York State Workers’ Compensation Board representing injured workers for more than 27 years, I am drawn to organizations that assist workers. That’s why I am a member of the New York Committee for Occupational Safety & Health (NYCOSH), whose mission notes that every worker has the human right to a safe and healthy workplace and that workplaces injuries are often preventable. As a member, I receive many emails with various announcements regarding workplace safety, as well as statistics of injuries and deaths that occur on the job, many of which are preventable.

It is a sign of the times that on May 23, 2017, I received an email about educating workers on how to best respond in case of an active shooter. NYCOSH, along with the New York City Central Labor Council (NYCCLC), was sponsoring the event that was meant to educate participants on what actions to take to prevent and prepare for potential incidents, including what to do when an active shooter enters the workplace. Many of the cases that make front page news are mass shootings or those in the name of terrorism. Few of us can forget the Islamic extremist, who along with his wife fatally shot 14 of his co-workers at a Christmas party. Many of us go about our workday never anticipating a disgruntled employee, a client harboring a grudge, a terrorist, or a coworker intent on robbery, who may come to our workplaces with murder on their minds. When NYCOSH set out to sponsor their recent event trying to deal with a growing problem in this country, there was no way of knowing that workplace shootings would be in the national headlines three times in just two weeks. 

Last week we were shocked and appalled by the images of Republican Senators and their colleagues being shot at by a deranged person not happy with current politics. While many of our elected officials have heavy security when they are at work in the Capital’s office buildings, these members were on a ballfield early in the morning practicing for a charity baseball game taking place the next day. Despite the close proximity of the Capitol Police there to protect Steve Scalise, the current United States House of Representatives Majority Whip, five people were shot. Thankfully the sole fatality was the shooter himself.

In Orlando in early June, a disgruntled ex-employee systematically shot and killed five coworkers and then himself. A week later, a UPS employee in San Francisco walked into a UPS facility and killed three coworkers before killing himself.

According to the Bureau of Labor and Statistics, in 2015 there were 354 homicides by shooting at the workplace. There were 307 in 2014, 322 in 2013, 381 in 2012, and 365 in 2011. Based on these statistics, it is clear that this is not an issue going away anytime soon. These are scary times and we all need to prepare for this new normal. 

While I was not able to attend the NYCOSH event, I did go to the website for the U.S. Department of Homeland Security, which offered these suggestions for responding when an active shooter is in your area.

  • Evacuate if you can.
  • Run as fast as you can and leave everything behind.
  • Just get out if possible.
  • If there is no accessible escape route, then hide somewhere and lock and blockade the door and silence any noise such as a radio or cell phone.
  • Lastly, if your life is in imminent danger, take action and try to incapacitate the shooter.
  • Throw things.
  • Use anything as a weapon.
  • Don’t go down without a fight.

It’s unfortunate that we even have to talk about protecting ourselves from active shooters. But in today’s day and age, we can never be too careful. As a mother, I worry for the safety of my children when they walk out the door as I’m sure many of you do as well. As a lawyer, I worry about the safety of workers every day on the job who are continually dealing with workplace injuries that could have been prevented.

 

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.

Prior results do not guarantee outcomes.
Attorney Advertising.

Lobby Albany For Fair Treatment Of Injured Workers And Their Families

Last week I went to Albany to participate in Lobby Day on behalf of the New York State Trial Lawyers Association (NYSTLA). Our organization went to the capital to meet with members of the State Assembly and Senate to discuss a number of bills, outlining our support or opposition to proposed changes in various laws. 

There are two bills in particular that were borne out of heartbreak and therefore, impossible to understand why they have not been enacted into law. The first is the bill on Date of Discovery — commonly referred to as Lavern’s Law. You may be familiar with the background behind Lavern’s law as the Daily News published an article in 2015 about Lavern. She was a single mother who had visited a City hospital after feeling ill. The hospital sent her home even after an x-ray showed a suspicious mass in her lung. If she had been advised by the doctor about this, she would probably still be alive as the mass was a curable form of lung cancer. Tragically, she was not told about the results until it was too late and her condition was terminal. Lavern died in 2013, leaving behind a developmentally disabled daughter who was barred from bringing a lawsuit against the hospital and doctor because the time to bring a lawsuit had passed. The statute of limitations begins to run at the time of the malpractice, not when the malpractice was discovered. 

Sadly, this travesty has affected others who were never advised that their test results were abnormal.   We assume that once we have tests performed, doctors would notify us in a timely manner of any problems. But what if they don’t? There are a number of cases where CT scan results, mammograms, x-rays, and Pap smears all were misread or never reviewed, resulting in life-threatening consequences or death. For Lavern and others, this lifesaving information was never provided – and that failure proved fatal.  New York’s statute of limitations on malpractice is old and antiquated and needs to be updated.  We are one of only six states with a time limit that starts once an injury is caused and not when it is discovered. Lavern’s Law would provide a 2½-year statute of limitations from the time the person knew or should have known that a negligent act caused an injury. Governor Andrew Cuomo, understanding the impact, agreed to sign the bill into law if it passed the Senate and Assembly. 

The second bill proposed is known as the Grieving Families Law and would change the current New York Law on Wrongful Death, which only allows families to recover the lost income from a family member who died.  Many of my colleagues told stories of having to advise a grief-stricken family that their homemaker spouse, or child, or elderly parent’s life was worthless under the law, as the law only values the lives of high wage earners. This archaic law was enacted in 1847, and has never been amended.  While many other states have acknowledged that the loss of a loved one is monumental, and that the wrongdoers should be held accountable, New York is not one of them. This proposed law would allow families to be compensated for the profound emotional loss and grief caused by a wrongdoer. 

What these laws also will accomplish is to promote a safer society by holding wrongdoers accountable for their actions. It may be too late for Lavern and others in her situation, but by passing these laws, we may be able to prevent future tragedies and show that Lavern did not die in vain.     

 

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.

Prior results do not guarantee outcomes.
Attorney Advertising.