New York’s Newest Budget Shortchanges Injured Workers

A couple of weeks ago Governor Cuomo signed the New York State Budget that contained some potentially detrimental provisions for injured workers. Big business interests are taking their victory laps as they continue with their campaign to dismantle the Workers’ Compensation system by further reducing benefits to injured workers.  See this for what it is- a relentless attack on the working men and women of this state.

If you believe that the majority of those on Workers’ Compensation are frauds, faking an injury, or taking advantage of taxpayers, then you are probably content with the changes in the law. That also probably means you were swayed by the alternative facts that the Business Council was promulgating, including the proposition that Workers’ Compensation benefits are to blame for the high cost of doing business in New York and that many injured workers are not deserving of the benefits they receive.   

My colleague Len Jernigan from North Carolina issues an annual report of the top 10 Workers’ Compensation fraud cases. In 2016, those top 10 fraud claims were against employers – not workers – and totaled more than $400 million! Much of the fraud involved misclassification of employees in order to circumvent payroll taxes and Workers’ Compensation insurance. In fact, very few workers would voluntarily subject themselves to a system that has become so bloated by bureaucracy and is more concerned about precluding medical treatment because a form is not filled out correctly or penalizing counsel for being too overzealous by submitting numerous requests for their client’s day in court. 

Injured workers do not have much political clout. They do not get rich off of Workers’ Compensation benefits. Their weekly benefits can be reduced if they are considered partially disabled without regard to their socio economic status, their educational level or whether or not they are still being treated for their injuries.   Many of them who were union workers now are no longer able to pay union dues; some cannot pay for medical insurance for themselves or their families as Workers’ Compensation insurance only covers the injured worker for the injuries sustained on the job.

Workers’ Memorial Day takes place annually on April 28.  It is a day to remember those who have suffered and died on the job. Each year there are symposiums, panel discussions, acknowledgements, and speeches paying tribute to the men and women who have lost their lives at work. Many of our politicians will issue statements or attend rallies to stand in solidarity with workers’ groups. We will hear how their deaths should not be in vain and how we must make our workplaces safer. We will be saddened to hear the list of names of those who went off to work never to return.

Many of the politicians giving these speeches are the same politicians who voted to reduce benefits to injured workers in order to appease big business interests. It is difficult to comprehend the hypocrisy involved, but we are told this is politics as usual. While it may be too late regarding the further limitation for lost wages, there is still an opportunity to let the Governor know that any further reduction for permanent injuries to limbs is just not acceptable. While honoring those who died on the job is laudable, properly compensating those who have suffered permanent injuries is equally important and ensures that we value both the dead and the living.

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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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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Nail Salon Workers: Know Your Rights

The nail salon industry in New York State provides thousands of jobs. However, many nail salon employees endure unsafe working conditions. They are exposed to many chemicals; sometimes without proper ventilation. Because of this, New York State has enacted a series of nail salon reforms to protect workers’ from injuries or illnesses.

These new reforms include safety requirements that dictate that the owner of a salon must give employees protective equipment at no cost. Specifically, workers have the right to use a respirator when buffing or filing nails and using chemicals. Furthermore, workers’ have the right to use protective gloves and eye equipment. Employers must also comply with certain ventilation requirements. These changes will ensure that nail salon employees are protected. For more information regarding nail salon requirements you can visit: https://www.ny.gov/programs/nail-salon-safety-what-you-need-know.

If you get sick (in lawyer-speak “develop occupational illness”), because you are exposed to chemicals at work, you may be entitled wage replacement benefits and medical coverage through the New York State workers’ compensation system.

There is a time limit for filing your claims. The limit is the later of:

  1. two (2) years from the date of your disability and
  2. two (2) years from when you knew or should have known the disease was due to your exposure at work.

You do not need to have lost time from work to have a valid claim for workers’ compensation benefits.

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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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Winter Storm Stella: NYC Issues Hazardous Travel Advisory for Tuesday, March 14

The Weather Channel is predicting Stella will result in 12-18

The Weather Channel is predicting Stella will result in 12-18″ of snow in the NYC metropolitan area.

The New York Metropolitan area is preparing for 12″ or more of snow and high winds on Tuesday, March 14th. New York City has issued a hazardous travel advisory in connection with this storm. We advise all of our clients to follow the precautionary measures listed below.

If you have a meeting scheduled for tomorrow, please call to confirm our offices are open before coming to see us.

NYC EMERGENCY MANAGEMENT ISSUES HAZARDOUS TRAVEL ADVISORY FOR TUESDAY MARCH 14 

Blizzard Watch in effect from late Monday night through late Tuesday night

Heavy snow and strong winds will create dangerous travel conditions; Alternate Side Parking Regulations suspended Tuesday and Wednesday

March 12, 2017 – The New York City Emergency Management Department today issued a hazardous travel advisory for Tuesday, March, 14, 2017. The National Weather Service has issued a Blizzard Watch in effect from late Monday night through late Tuesday night. A nor’easter is forecast to bring heavy snow along with strong and potentially damaging winds that will create hazardous travel conditions on Tuesday.

 

“We’re preparing for a significant storm on Tuesday, and New Yorkers should also prepare for snow and dangerous road conditions,” said Mayor Bill de Blasio. “Besides the snow, it will be cold. We urge you to avoid unnecessary travel and help keep roads clear for Sanitation crews and first responders.”

“Heavy snow will make travel difficult on Tuesday. New Yorkers should avoid driving and use mass transit when possible,” said NYC Emergency Management Commissioner Joseph Esposito. “We are working closely with our agency partners to coordinate the City’s preparations for the storm.”

A low pressure system develops off of the Carolina coastline Monday before making its way up the East Coast late Monday night. According to the latest forecast, light snow is expected to begin late Monday night, and will intensify overnight into early Tuesday morning. The heaviest snowfall is expected Tuesday morning through the afternoon, with rates as much as 2 to 4 inches per hour possible. Strong winds are expected to accompany the heavy snowfall, with wind speeds 20 – 30 mph, and gusts 35 – 50 mph, creating hazardous travel conditions.  The snowfall is expected to taper off Tuesday evening. A total accumulation of 12 to 18 inches is anticipated, but locally higher amounts are possible. New Yorkers should avoid driving and use mass transit where possible on Tuesday.

New York City Emergency Management also urged New Yorkers of the potential for widespread minor to locally moderate coastal flooding during the Tuesday morning high tide cycle. The National Weather Service has issued a Coastal Flood Watch from 8 a.m. to 12 p.m. Tuesday for areas near the coastline in Brooklyn and Staten Island, and areas along the southern shores of Queens. Minor to moderate flooding of the most vulnerable shore roads and/or properties is possible. Coastal residents should be alert for updates and take action to protect property.

NYC Emergency Management also reminded New Yorkers to prepare for extremely cold temperatures Tuesday and Wednesday. Temperatures Tuesday are expected to be in the upper twenties, with lows Tuesday night in the low twenties. Temperatures are forecast to be at or around freezing on Wednesday.

Snow Preparations

DSNY

  • The New York City Department of Sanitation (DSNY) is pre-deploying 689 salt spreaders across the five boroughs. PlowNYC will be activated and more than 1600 plows will be dispatched when more than two inches of snow accumulates.
  • DSNY will assign 2,400 workers per shift. Workers will be assigned to 12 hour shifts beginning at 7 a.m. Monday.
  • DSNY has 283,000 tons of rock salt available.
  • Garbage/recycling collections will be suspended once snow operations begin.

DOT

  • Alternate Side Parking is suspended Tuesday, March 14, and Wednesday, March 15, to facilitate snow removal operations. Parking meters are in effect.
  • DOT will deploy crews to pre-treat pedestrian overpasses and step streets, and ensure that ferry terminals and municipal parking garages are pre-salted in advance of any snow.
  • During snow operations, DOT typically deploys more than 400 personnel and more than 100 pieces of equipment, including nearly 80 trucks for plowing over several shifts.
  • The Staten Island Ferry is expected to run on a normal schedule, but all passengers should allow extra time should weather conditions impact the schedule.
  • Citi Bike service is expected to remain in service until further notice.

NYC Emergency Management

  • NYC Emergency Management is working closely with the National Weather Service to monitor the storm’s track to determine the impacts to New York City.
  • NYC Emergency Management has begun hosting daily interagency conference calls with City and state agencies and public and private partners to coordinate the City’s preparations for the storm.
  • NYC Emergency Management’s Emergency Operations Center will be activated Monday evening to coordinate the City’s response to the storm’s impacts.
  • NYC Emergency Management has begun extensive outreach to elected officials with the latest information regarding the storm’s track and potential impact to the City.

Homeless Services

A Code Blue Weather Emergency notice is issued when the temperature drops to 32 degrees Fahrenheit or less between 4 p.m. and 8 a.m., including National Weather Service calculations for wind chill values.  No one who is homeless and seeking shelter in New York City during a Code Blue will be denied. Should you see a homeless individual out in the cold, please call 311 and an outreach team will be dispatched to offer assistance. Code Blue Weather Emergencies include the following options for the homeless:

  • Shelters: During a Code Blue, shelter is available system-wide to accommodate anyone who is reasonably believed to be homeless and is brought to a shelter by outreach teams. Accommodations are also available for walk-ins.
  • Drop-in centers: All drop-in centers are open 24-hours per day when Code Blue procedures are in effect and will assist as many people as possible for the duration of the emergency. Drop-in staff can also make arrangements for homeless individuals at other citywide facilities.
  • Safe havens and stabilization beds: Chronically homeless individuals may be transported directly to these low-threshold housing options.
  • Street homeless outreach: Teams will contact vulnerable individuals on their Code Blue Priority Lists a minimum of once every four (4) hours beginning at 8 p.m. during Code Blue Alerts and once every two (2) hours beginning at 8 p.m. for Enhanced Code Blue Alerts to encourage them to accept transport to a safe place. DHS coordinates borough-level Code Blue efforts directly with agencies such as NYPD, DSNY, and the Parks Department.

Travel Safety Tips

For Motorists

  • Use mass transportation whenever possible. If you must drive a vehicle, monitor weather and traffic reports for the latest road conditions.
  • Drive slowly. Posted speed limits are for ideal weather conditions. Vehicles take longer to stop on snow and ice than on dry pavement.
  • Use major streets or highways for travel whenever possible.
  • Four-wheel drive vehicles may make it easier to drive on snow-covered roads, but they do not stop quicker than other vehicles.
  • Keep the name and phone number of at least one local towing service in your vehicle in case you break down or become stuck in snow.
  • If you get stuck on the road, stay with your vehicle and contact a towing company.

For Pedestrians

  • Exercise caution and avoid slippery surfaces; some ice may not be visible.
  • Wear layers including a hat, gloves/mittens, and a scarf to stay protected from the cold.
  • Keep clothes and shoes dry, if a layer becomes wet, remove it.
  • Keep fingertips, earlobes, and noses covered if you go outside.
  • Have heightened awareness of cars, particularly when approaching or crossing intersections.
  • Wear sturdy boots that provide traction to reduce slipping. Use handrails when using stairs.
  • Seniors should take extra care outdoors to avoid slips and falls from icy conditions.

Coastal Flooding Preparations

 

NYC residents living in coastal areas expected to experience minor or moderate coastal flooding should take the following preparedness steps:

  • Learn the safest route from your home or workplace to safe, high ground in case you have to evacuate. This should be part of your household emergency plan.
  • Prepare a Go Bag that you can grab in case you need to leave your home in a hurry.
  • If you live in a flood-susceptible area, keep materials, such as sandbags, plywood, plastic sheeting, and lumber, on hand to help protect your home.
  • Stay informed. Before and during an emergency, the City will send emergency alerts and updates to New Yorkers through various channels.
  • If you have to walk in water, walk where the water is not moving or use a stick to check the firmness of the ground in front of you.
  • Stay out of any building if it is surrounded by floodwaters.
  • When outside, avoid walking and driving through flooded areas. As few as six inches of moving water can knock a person over. Six inches of water will reach the bottom of most passenger cars, causing loss of control and possible stalling. One or two feet of water can carry away a vehicle.

Safe Home Heating Tips

Improper use of portable heating equipment can lead to fire or dangerous levels of carbon monoxide. Take precautions to ensure you are heating your home safely.

Fire safety tips:

  • Make sure you have a working smoke alarm in every room. Test them at least once a month and change the batteries twice a year.
  • Use only portable heating equipment that is approved for indoor use. Space heaters are temporary heating devices and should only be used for a limited time each day.
  • Keep combustible materials, including furniture, drapes, and carpeting at least three feet away from the heat source. Never drape clothes over a space heater to dry them.
  • Never leave running space heaters unattended, especially around children. Always keep an eye on heating equipment. Turn it off when you are unable to closely monitor it.
  • Plug space heaters directly into a wall outlet. Never use an extension cord or power strip. Do not plug anything else into the same outlet when the space heater is in use. Do not use space heaters with frayed or damaged cords.
  • If you are going to use an electric blanket, only use one that is less than 10 years old from the date of purchase. Also avoid tucking the electric blanket in at the sides of the bed. Only purchase blankets with an automatic safety shut-off.

Prevent carbon monoxide poisoning:

  • Carbon monoxide comes from the burning of fuel. Therefore, make sure all fuel-burning devices such as furnaces, boilers, hot water heaters, and clothes dryers are properly vented to the outdoors and operating properly. If you are not sure, contact a professional to inspect and make necessary repairs.
  • Make sure you have a working carbon monoxide detector. Most homes and residential buildings in New York City are required by law to have carbon monoxide detectors installed near all sleeping areas. Owners are responsible for installing approved carbon monoxide detectors. Occupants are responsible for keeping and maintaining the carbon monoxide detectors in good repair.
  • If you have a working fireplace, keep chimneys clean and clear of debris.
  • Never heat your home with a gas stove or oven, charcoal barbecue grill, kerosene, propane, or oil-burning heaters. Kerosene heaters and propane space heaters are illegal in New York City.
  • The symptoms of carbon monoxide poisoning are non-specific and include headache, nausea, vomiting, dizziness, sleepiness, trouble breathing, and loss of consciousness. Severe poisonings may result in permanent injury or death.

If a carbon monoxide detector goes off in your home get outside immediately and call 911. If you suspect carbon monoxide poisoning, get outside immediately and call 911.

For more winter weather safety tips, visit NYC.gov/EmergencyManagement. New Yorkers are also encouraged to sign up for Notify NYC, the City’s free, official emergency notification system. Through Notify NYC, New Yorkers can receive phone calls, text messages, and/or email alerts about winter weather conditions and other emergencies. To sign up for Notify NYC, call 311, visit NYC.gov/notifynyc, or follow @NotifyNYC on Twitter.

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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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