Tag Archives: NYCOSH

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.

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.

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.

Prior results do not guarantee outcomes.
Attorney Advertising.

“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.

Prior results do not guarantee outcomes.
Attorney Advertising.

Matt Funk to speak at “Nuts and Bolts of Navigating NY State’s Workers Compensation System,” a NYCOSH Conference

On Sat. 11/12, Matt Funk, a partner at Pasternack Tilker Ziegler Walsh Stanton & Romano, will be presenting at “Nuts and Bolts of Navigating NY State’s Workers Compensation System,” a conference hosted by the New York Committee for Occupational Safety and Health (NYCOSH).

Matt will be speaking at 9:15 AM on the ABC’s of Workers’ Compensation.

The conference will provide the information injured workers need to ensure that they receive full and just compensation. It is designed for rank and file workers, union representatives, safety and health professionals, health care providers and anyone who has an interest in workers’ compensation.

There is no fee to attend the conference. However, registration is required.

To register call 212-227-6440 ext.10, or visit the conference website for more information. The conference will be held at: District Council 37, AFSCME, 125 Barclay Street in Manhattan. Continue reading →

Prior results do not guarantee outcomes.
Attorney Advertising.