Tag Archives: Reform

A Win For Workers – Albany’s Proposed Benefit Reduction Is Dropped

Last week Governor Andrew Cuomo announced he reached an agreement with legislative leaders on his 2016-2017 budget, touting the final version as a victory for working and middle class families. Some of the beneficial provisions for working class families include an increase in the minimum wage to $15 per hour, a new family medical leave act granting workers up to 12 weeks to care for family members, an increase in state aid to schools, an allocation of funds to improve infrastructure of our roads and rail systems that will create thousands of additional union jobs, and the reduction in the personal income tax that will save working people billions of dollars in the next 10 years. All of these initiatives will create opportunities for working and middle class families, and many in the labor movement are thrilled.

As many of you know, I have been highlighting during the last couple of months the controversial proposals regarding Workers’ Compensation benefits in the original budget. The Business Council was looking for a reduction in the overall cost of business and was proposing changes to the current system that would negatively impact injured workers, as they are an easy target. Many injured workers don’t have the financial ability or the time to fight back, particularly when they are concerned with recovery and paying bills. 

As the Governor has been courting business interests for most of his tenure, it seemed almost inevitable that the attacks on injured workers would continue and the negative proposals would be enacted. During the last couple of months, members of labor, the medical community, and representatives of injured workers united in their opposition to these proposals. There were online petitions, requests to contact elected officials, and meetings with members of the State Senate and Assembly by dozens of advocates with the goal to educate and explain the negative ramifications of those specific sections on the Workers’ Compensation law. This coalition, along with members of the public, made their voices heard and we are relieved to report that those sections of the budget that would have hurt injured workers were removed from the final version. We truly thank our elected officials for seeing the proposals for what they were and for understanding that the final agenda for big business was at too high of a cost for working and middle class people.

This is a major victory for injured workers and their families, and one that we do not take lightly.  The battle was rough and the stakes were high, but we cannot let down our guard yet. The Business Council’s mission to attack the limited benefits available to those injured on the job will continue.  The Business Council and the insurance industry together have been very successful in making sure the focus of Workers’ Compensation reform stays on the costs of the system rather than on what will be provided to the injured worker. They will continue their rallying cry that the current Workers’ Comp system is what leads to the high cost of doing business in New York.   

The system is not perfect. It is in need of reform but the reform should be to benefit injured workers. They are the ones who have lost the most. Their medical benefits have been reduced, their doctors’ opinions have been undermined, the amount of time they can receive indemnity benefits has been slashed, and they are forced to navigate through a system that is bloated with bureaucracy, convoluted, and almost impossible for the average person to understand. That is the area that really needs reform. Workers’ Compensation is for assisting the injured worker and that’s where the focus should stay.

 

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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On The Ground In Albany: Lobbying To Preserve Your Benefits

The New York State Capitol

For the last five years, lawyers practicing in the field of Workers’ Compensation have used their voices to educate our State Senators and Assembly members on issues impacting injured workers. In keeping with this strategy, last week I attended Lobby Day in Albany with 70 other colleagues, including 11 members from my law firm, and we met with more than 50 of our state leaders. There was an added sense of urgency this time as Governor Cuomo has proposed a number of changes in the budget that would adversely affect those who get injured on the job.

In past few weeks, I have written about these budget proposals as part of the continuing attacks on injured workers and the less-than-adequate benefits they currently receive. The proposed budget amendment would grossly and negatively impact the ability of an injured worker to get a full and fair settlement. The law currently directs the insurance carrier to deposit the present value of a settlement into a fund to ensure that this money is available in the future or in the alternative, to settle the claim with the injured worker. Many insurance carriers opt to pay the money to the injured worker instead of depositing it into a fund. Without the worry of this deposit, there is less of an incentive for the insurance company to settle a claim that could lead to lengthy and time-consuming litigation with the injured worker receiving minimal or no benefits until the law judge makes a decision.

One of the proposed measures would give the Workers’ Compensation Board the power to qualify doctors and to bar them from the system. This is unacceptable. Doctors should be regulated by other doctors instead of by bureaucrats.

Even more egregious are the attacks and restrictions on due process. Injured workers should be entitled to a fair and impartial hearing. The budget proposals would remove the right of injured workers to have their cases heard by the same judge. The ability to direct policy and decisions would open the door to potential abuse. Additionally, if injured workers wish to appeal a detrimental decision, the appeal would be decided by one individual as opposed to the current three-panel of commissioners. Current law provides for the appointment of commissioners by the governor with approval by the legislature, which provides for some checks and balances. The Workers’ Compensation Board would instead be given unchecked power to control the outcome of every decision.

The Business Counsel was in favor of many of these changes as it felt they would help decrease costs and increase profit margin. However, an analysis by the New York Compensation Insurance Rating Board (NYCIRB) of the expected financial impacts of the governor’s proposed reforms found no solid evidence that these changes would result in any meaningful cost savings. At this juncture, one has to wonder why these proposed changes are still being pursued by the governor. Anyone who has been injured on the job, or knows someone who has been injured, knows that it has become more and more difficult to navigate the process to obtain benefits. We do need reform, but it should be done to improve the lives of those injured at work. These proposals are certainly not in workers’ best interest. If you agree and want to know what you can do, please click here to sign the petition to stop the further erosion of workers’ compensation. We need to insure that those vulnerable members of our families, community, and state are not abandoned by their government for wrongly perceived cost- cutting measures.

 

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 York – Open For Business But What About The Workers?

As an attorney who has been practicing in the field of Workers’ Compensation for more than 25 years, I have seen many changes in this area of law. When I first started as a young attorney, my mentor explained to me that the Workers’ Compensation law was designed to compensate injured workers for their lost wages and provide them with prompt medical treatment.

Injured workers may not be compensated commensurate to their salary, but the law provided a safety net for them while they were unable to work, and a lifetime benefit if their injuries prevented them from obtaining gainful employment. I knew that insurance carriers understood their role was to provide indemnity and medical benefits while mitigating costs to their assured. The Workers’ Compensation Board employed judges and commissioners to make sure that injured workers received fair and impartial oversight of their claims. Unfortunately, the Workers’ Compensation system in New York has now become a bargaining chip in Albany politics. Governor Cuomo has long been courting businesses to New York. Many of the state’s ad campaigns are geared toward showing how favorable the climate can be for doing business here. In 2011, Cuomo announced that he launched “New York Open for Business,” which was designed to demonstrate to business leaders all across the world the benefits of doing business in New York. He pitched the idea of redesigning the way state government works in order to drive economic growth and create jobs so that not only will businesses come to New York, they will stay in New York.

This seemed like a great idea, especially when you saw the slick advertising campaign costing more than $140 million. What could be wrong with New York being more attractive to business and industry as this would translate into more jobs and more money to the state? Unfortunately, the Business Counsel has complained to Governor Cuomo that the cost of Workers’ Compensation is too high despite major reforms in 2007 and is now lobbying to make additional reforms more favorable to business interests. A study performed by the Workers’ Compensation Alliance, as well as New York Committee for Occupational Safety (NYCOSH), concluded that the 2007 reforms offered no benefit to low-wage workers and even those who did benefit short-term on the increase continued to suffer high rates of wage loss. It is clear the reforms benefited business interests over labor concerns. Even the administration that was designed to oversee the system, the New York State Workers’ Compensation Board, has now created many roadblocks for the injured worker to navigate.    

Earlier this year, the Board issued a policy advising that it no longer will be issuing administrative decisions for claims having no lost time and no disputes. The Board notes that approximately 25% of the decisions issued by them are for no lost-time claims. Workers who sustain a permanent injury but don’t lose any time from work are entitled by law to receive a monetary award for their injury.

Those represented by experienced counsel are guaranteed that their case will handled properly and maximum benefits are obtained. For those unrepresented injured workers, their fate remains cloudy. In the past, the Board used to schedule hearings before a law judge who would give them adequate information about their claim, their rights, and their benefits. Many take the position that  the Workers’ Compensation Board  has been directed to make the system more user friendly to business interests by reducing the number of hearings and decisions that are issued, which might result in a reduction in the number of claims paid. Unfortunately, this is all at the expense of the injured worker at a time when they are most vulnerable.  If you think this is wrong, let your voice be heard by contacting the Governor and your state representatives.

 

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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Governor Cuomo’s Proposal Benefits Big Businesses, Hurts Working People

As an attorney practicing in the field of Workers’ Compensation for more than 25 years, I have represented thousands of injured workers. My job as their advocate has been extremely rewarding.   Most of my clients are honest, hardworking people who got up one day, went to work, and suffered an unforeseen accident. Not every case was easy, but in the end, the injured worker would usually prevail in getting adequate wage replacement and prompt medical treatment because the system was reasonable and the fight was fair. 

Unfortunately, the last 10 years have not been kind to injured workers. I have seen a shift in attitude in some of my clients. Many feel the need to explain that they are truly hurt as if there was any doubt in my mind. I realized that this was happening as a result of the propaganda perpetrated against the injured – that somehow they were faking their accident, or didn’t really deserve the benefits they were receiving. It dawned on me that this attitude has been influenced by a large-budget marketing strategy aimed at making the general public believe that those who get hurt are perpetrating a fraud against the system or filing frivolous lawsuits in order to obtain benefits they don’t deserve.

Big business has made the injured worker the scapegoat for the failing economy and the cost of doing business not only in New York but across the country. In fact, Governor Cuomo even seems committed to the Pro-Business Agenda to reduce costs and increase profits. A couple of weeks ago I outlined the Governor’s budget proposals that were not a part of his public address, as well as the Business Council’s wish list that would ensure cost savings at the expense of the injured worker. Some of these proposals included a reduction in the amount of wage replacement injured workers receive, as well as a limit on their medical treatment and choice of treating doctor. It also would limit worker access to the Workers’ Compensation system by limiting – or even eliminating – hearings before a judge, or giving the Board the ability to handpick judges to listen to certain types of cases. These limitations are designed to “save money” at the expense of the injured worker. The Governor has said that one of his motivations for adding these “reforms” to the budget was based on increasing costs to employers. The Business Council has lobbied for changes saying that costs to employers have gone up, not down. However, this directly contradicts Governor Cuomo’s statement in 2014 announcing that the 2013 Business Relief Act had cut Workers’ Compensation employer costs by 30%.   

The line in the sand has been drawn. The average worker in this country works paycheck to paycheck and does not have the funds for a big budget marketing strategy to counter this position. However, as a result of the attacks on workers in this state, a number of groups have indicated their opposition to the Business Council’s proposals. The New York Workers Compensation Alliance points out that after the 2007 reforms, Workers’ Compensation has replaced less than 10% of the lost wages of permanently disabled workers, and the current proposals made by the Business Council would render Workers’ Compensation virtually meaningless as a source of wage replacement benefits.  

The New York Committee for Occupational Safety & Health (NYCOSH) slammed the Business Council for putting profits over safety. The NYS AFL-CIO is opposed to the changes noting that they would “alter the system to such an extent that many injured workers could never expect to maintain a decent standard of living”.  Let your voice be heard. Call your State Legislators. Let them know while no one goes to work expecting to be injured, it can happen to any of us at anytime and everyone deserves to be treated fairly.

 

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 a past president of the New York Workers’ Compensation Bar Association, 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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Call “Reform” What It Is: Death By A Thousand Cuts For Workers’ Rights

This week I attended the 20th anniversary of the Workers’ Injury Law and Advocacy Group (WILG) in Chicago. I am a proud past president of this group – the only national Workers’ Compensation bar association dedicated to representing injured workers.  

As an attorney who has represented injured workers for more than 25 years, I have seen their rights and benefits shrink under the guise of “reform”. After the tragic Triangle Shirtwaist Factory fire in 1911, which killed almost 150 women and girls, workplace safety and Workers’ Compensation laws were enacted. For the next half century or so, many protections and safeguards were implemented. However, many of these reforms were not sufficient, and in 1972, the National Commission on State Workmen’s Compensation Laws, appointed by then-President Nixon, issued a report noting that state Workers’ Compensation laws were neither adequate nor equitable. This led to a decade when most states significantly improved their laws. 

Unfortunately, there has once more been a steady decline in benefits to injured workers, again under the guise of reform. One major argument is that many workers are faking their injuries or they just want to take time off from work. There was even a recent ad campaign in which a young girl was crying because her father was going to jail for faking an injury. Workers’ Compensation fraud does exist, but the high cost of insurance fraud is not as a result of workers committing fraud.

A colleague of mine compiled a list of the top 10 Workers’ Compensation fraud cases in 2014 in which he noted that the top 10 claims of fraud cost taxpayers well more than $75 million dollars with $450,000 of the total amount resulting from a worker committing insurance fraud. That leaves $74.8 million as a result of non-employee fraud, including overbilling and misclassification of workers. We are told that insurance costs are too high; yet, according to the National Council on Compensation Insurance (NCCI) in 2014, estimates show that private Workers’ Compensation carriers will have pulled in $39.3 billion in written premiums, the highest since they began keeping data in 1990. More premiums result in higher net profits. Despite this, many states have implemented changes in their Workers’ Compensation systems aimed at reducing costs to the employer. The end results, however, is that fewer benefits are given to the injured worker and more profits go to the insurance companies.

In New York, one of the reform measures increased the amount of money per week to injured workers but limited the amount of weeks they can receive these benefits with the idea that they will return to work once their benefits run out. Additionally, limitations have been placed on the amount and types of treatment that injured workers may receive. Again, this is with the notion that once treatment ends, injured workers miraculously are healed and will not need additional treatment. In reality, those injured who can’t return to work receive benefits from other sources from state and federal governments at the taxpayer’s expense.  This is what is known as cost shifting, as those really responsible to pay for benefits – the insurance companies who collect the premiums from the employers – have no further liability. The reformers of 100 years ago would be appalled at what is happening to injured workers and their families today. It is time that those who are generating profits at the expense of injured workers do what is fair and just – provide prompt medical care and wage replacement to injured workers for as long as they are unable to work.

To stay on top of important Workers’ Compensation happenings, please visit the Facebook page of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP and “Like Us.” That way you will receive the latest news on your daily feed.

 

 

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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Measuring Our Progress Since The Triangle Shirtwaist Factory Fire

As an attorney who practices in the field of Workers’ Compensation, there are some events that are seminal in the history of workplace safety. One of those events was the Triangle Shirtwaist Factory fire, which occurred on March 25, 2011. The Triangle Shirtwaist Factory was one of the largest factories in New York and employed 500 mostly Italian and Jewish immigrant women between the ages of 13 and 23.

These women worked long hours for low wages in this cramped sweatshop at sewing machines to produce women’s blouses, known in those days as shirtwaists. In order to protect themselves from their claim of thefts by the workers, the factory owners would lock the doors to one of the stairways leading to the street. While the union movement in New York was very strong and some of the workers had joined the International Ladies’ Garment Workers’ Union, the factory itself was a non-union shop; many believed the owners would lock their doors to keep organizers out. Whatever the reason, locking those doors had devastating effects. 

On that fateful day in March, a fire broke out that was fueled by thousands of pounds of fabric. Many were able to escape to the roof and then to adjoining buildings. Unfortunately for those on the ninth floor, there was very little means of escape. The elevator proved inadequate as it was only able to accommodate 12 people at a time, and the operator was only able to make four trips before it broke down totally. Bodies of many of the workers were found at the bottom of locked stairwells or in the elevator shaft when they tried to escape. The fire escape was flimsy and when it became overloaded with panicked women, it broke and sent dozens to their death. Those trapped in the factory by the fire were left with the agonizing choice of jumping to their deaths or being burned alive. Many chose to jump. Bystanders recounted stories of seeing victims kiss each other or hold hands as they jumped two and three at a time; they described the horrific thud as bodies landed on the stone streets below. When the final tally was taken, 146 people had perished. The catastrophe sent shockwaves throughout New York City and the immigrant communities of Manhattan’s Lower East Side, where families struggled to recognize the charred remains of their loved ones in makeshift morgues. 

On March 24, 1911, the New York Court of Appeals declared the state’s compulsory Workers’ Compensation law unconstitutional. The next day, 146 people were dead from that Triangle Shirtwaist fire. With no Workers’ Compensation system in place, family members and dependents had to turn to the courts in an attempt to force Triangle to compensate the injured and the families of the deceased. A civil suit brought by 23 victims’ families against the owners netted a whopping $75 in damages per victim! New Yorkers were appalled and angry at the greed and negligence of the owners and managers. 

The Triangle Shirtwaist Factory Fire was a preventable tragedy caused by unsafe work conditions and was a catalyst for change. New York finally adopted a Workers’ Compensation law in 1913. This law was intended to protect workers from unsafe working conditions and afford them with wage replacement benefits and medical treatment in exchange for giving up their right to sue. Unfortunately, we see an erosion of many of these benefits under the guise of reform, while insurance companies have made record profits. This month, while we acknowledge this grim anniversary, we need to make sure that these women’s deaths were not in vain. Let us never forget the reason Workers’ Compensation laws were enacted, and let’s be sure the system is not watered down to the point that injured workers and their families go back to getting $75 for a preventable death.

  

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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Is Worker’s Comp Profitable Because Disabled Workers Don’t Get Benefits?

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

I recently wrote an article in the national magazine for the Worker’s Injury Law Advocacy Group (WILG), the Worker’s First Watch, Fall 2013 reviewing the worker’s compensation resources research report indicating that the worker’s compensation industry is extremely profitable.  I began representing injured workers in 1976.  It seems every year since then worker’s compensation insurance carriers have complained they are not making profits and the culprit responsible is increased benefits paid to workers.  In fact, over the last 20 years the insurance industry has been profitable in 16 of 19 years and broke even in one year.  Several factors account for this profitability, including worker’s compensation insurance carriers successfully pursuing deregulation and “reform” measures to restrict eligibility. 

The net result of increasingly restrictive rules for compensability in many State worker’s compensation systems as a result of “reform” resulted in many workers with disabilities caused by work who did not receive worker’s compensation benefits.

The general trend since the early 1990s has been to restrict coverage through State statutory and administrative “reform”.  Many workers face lengthy litigation and frustration.  More restrictive regulations may preclude claims where the worker lacks “objective” medical evidence for his injury, or is unable to medically document persistent pain, or has a disease resulting from multiple causation that cannot be distinguished from workplace disease, or has job stress related disorders.  One significant problem is that many injured workers fail to file for benefits.  (For those of us in the trenches daily, these pose obstacles to compensability.)  Among the many reasons for failure to file are:

  • Ignorance of worker’s compensation and eligibility.
  • Ignorance of the work-relatedness of the condition.  (Many workers know they suffer an impairment but do not know the health condition is caused by work.)
  • Reimbursement for medical care or Short Term Disability benefits available.  (Many workers use Short Term Disability or group medical insurance rather than worker’s comp.)
  • Belief that the injury is lacking in sufficient severity.
  • Many workers fear job loss or other forms of retaliation, who do not want to report a condition as work-related.
  • Workers do not want to be perceived as complainers or careless.
  • Deciding not to file based on the negative experience of co-workers.
  • Fear of the stigma associated with being a worker’s compensation claimant.  (Much of this stems from the intense focus on fraud perpetrated by the insurance industry, resulting in increased levels of stigmatization, decreasing the likelihood injured workers will file for benefits.)
  • Pressure from co-workers on safety incentive programs.  (These programs, sometimes called “Safety Bingo” create incentives not to report.)

Those of us who have hearings daily that involve the non-reporting of an injury, or significant time delay between the occurrence of an injury and the reporting of an injury, can refer to the above list for some ammunition on the “non-filing” or “late filing” issues.

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Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers

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

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law. 

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading

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