Can You Be Denied Worker’s Compensation for Not Taking Medication?

Many people who receive Worker’s Compensation for injuries that occurred at the workplace are prescribed painkillers to take for the pain resulting from the injury. It is not unusual for someone receiving Worker’s Compensation benefits to be tested for drugs. In fact, a worker’s privileges to compensation may be denied in some circumstances if they have evidenced that they have been using certain drugs. However, in one worker’s case, the company he worked for attempted to deny his wage replacement benefits because there was no evidence of drugs in his system. In this case, the drug test revealed that the worker was not taking the prescribed opiod, Kadian which he was prescribed for back pain due to a workplace accident that occurred over ten years ago.

The worker was required to take urine tests regularly to prove that he was taking the medication. The company argued that the employee was violating the Worker’s Compensation provision against making fraudulent representations for the purposes of receiving the benefits. However, the lower court found that it was unnecessary to penalize the worker because although his testimony was discredited, there was no evidence that he was selling or distributing the unused medication. The company appealed.

The New York Supreme Court Appellate Division recently heard the argument and affirmed the lower court’s decision, holding that the worker could continue receiving his compensation benefits and should not be penalized for failure to take the prescribed medication.

To read the decision, click here.

If you have been in an accident at your job that prevents you from working, you may qualify for Worker’s Compensation. The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County. For a consultation, call (866)557-7500.

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OSHA Renews Alliance with the Coordinating Committee for Automotive Repair

Working in a car repair shop can be a hazardous job. Each day, mechanics and other employees inhale fumes, work with toxic chemicals, and handle heavy and dangerous equipment. OSHA has recently renewed its relationship with the Coordinating Committee for Automotive Repair to ensure that those who work in car repair shops receive proper training and information regarding health and safety in the workplace.

Those who work in automotive repair shops should be supplied with and wear proper safety gear, including protective eye wear, gloves, and foot wear. In addition, because workers are required to handle heavy equipment, they should be trained in proper lifting techniques to avoid back or other injury. Additionally, certain positions may require specialized training and certification.

The objectives of the OSHA and Coordinating Committee for Automotive Repair include implementing training and safety measures with additional focuses on lift safety, Absorbed Glass Matt batteries, and contaminated refrigerant. The alliance intends to use data from Worker’s Compensation, injuries and non-injury data, and existing information regarding health hazards in the industry to improve safety efforts.

If you are an auto mechanic, it is important that your employer provide you with proper safety gear and a well ventilated and well-lit area in which to work, as well as adhere to OSHA safety standards. Although some minor injuries in the auto repair shop may be unavoidable such as small cuts and bruises, exposure to certain chemicals can cause lasting damage. Many products that workers use contain asbestos and lead which can cause respiratory illnesses, kidney disease, neurological illnesses, and permanent disabling or debilitating injuries.

If you have been employed in an auto repair shop and have been injured while working, you may qualify for Worker’s Compensation. Contact an experienced attorney who can help guide you through the process. Call the attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP who have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County. For a consultation, call (866)557-7500.

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Clothing Store Receives OSHA Citations for Locking Emergency Exits

New York clothing retailer Conway has been cited with OSHA violations at least three times at two of its Bronx locations for locking and blocking emergency exits, thus creating the hazardous conditions for its employees and customers and the potential for preventable tragedies. Despite OSHA inspections, the company willfully violated the safety warnings and continued the practice of locking the exits.

The Conway violations are reminiscent of the conditions that led to the most fatal industrial accident in U.S. history which occurred in 1911 in New York City. The 146 deaths and 71 injuries resulting from the Triangle Shirtwaist Factory fire would have been entirely preventable had workers been able to escape the flames. However, the building’s exits and stairwells were kept locked by the owners, causing senseless death and injury.

As a result of this tragedy, many labor reforms were spurred and laws were developed to help protect workers. However, despite modern safety regulations, many violations still occur over 100 years later.
In addition to citations for locking emergency exits, Southern Island Stores, LLC (the parent company of Conway), was also cited for ineffective extermination of rodents due to the serious health risks workers face who are exposed to vermin.

In the event of a fire or serious emergency, having to locate keys and take the time to unlock emergency exits places workers in situations that could mean the difference between life or death.

OSHA workplace safety standards for exit routes include:

• A workplace must generally have at least 2 exit routes for evacuation that lead to outside
• Exit route doors must not be obstructed, or restricted by locks or alarms that would restrict their use
• Ceilings of exit routes must be 7 feet 6 inches at minimum
• Exit doorways must be at least 28 inches wide

In addition, employers are required to have an emergency exit plan that must be written and available to employees in a company of ten or more. A company with fewer than ten employees may orally communicate the exit plan. The emergency exit plan should include a list of procedures for reporting emergencies, evacuating, medical rescue, and information regarding the alarm alert system.

If you have been seriously injured at work due to your employer’s negligence and safety violations, you may be eligible for Worker’s Compensation. The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County. For a consultation, call (866)557-7500.

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Heightened Risk of Danger for Construction Workers on Scaffolds

The New York Committee of Occupational Safety and Health recently issued an alarming report regarding their findings of the hazardous conditions construction workers face in New York. While construction workers make up 4% of New York’s workforce, the occupation also accounts for 20% of New York’s worker fatalities. The Committee found that workers who work at elevated heights are at increased risk for accident and most OSHA violations occur in this category. 65% of construction workers are working at elevated heights on scaffolds, therefore, most construction workers are adversely affected by the risks associated with working at elevated heights. The Committee reported that two-thirds of construction sites visited were issued citations for serious violations. Additionally, most of the scaffold violations were found to occur at non-union sites, which are responsible for 79% of fatal construction accidents, according to OSHA.

Many tragic deaths could have been prevented by implementing basic safety protocol. In one case, a worker fell from a ladder simply because no one was available to hold it. The employer was only charged a $4,000 fine. In another case, a worker in his early twenties fell to his death because his harness was not attached to an independent anchorage. The New York City Department of Building inspectors have also cited instances of preventable tragedies due to unsecured planks, lack of protection systems on balconies, failure to install guardrails, failure to erect a scaffold properly, and cross braces missing. Due to the low number of OSHA inspectors, many violations go unnoticed.

The report also found a disproportionate number of Latino/immigrant deaths resulting from falls. OSHA has launched a bilingual campaign to educate workers who many not speak English about fall hazards and safety measures.

Construction company owners are rarely criminally prosecuted for these violations. Over the course of 35 years, only 84 cases have been prosecuted. A landmark case occurred recently in Staten Island when a construction company owner was charged with criminally negligent homicide as a result of the death of one of his workers. For a conviction of criminally negligent homicide, a class E felony, an offender can receive up to 1 ½ -4 years jail time in New York. OSHA violations resulting in loss of human life may be prosecuted, resulting in up to a 6 month prison sentence or fine of $250,000-$500,000. However, more commonly issued for the violations are basic monetary penalties which are not paid 30% of the time.

If you have been injured in a work accident, you may qualify for Worker’s Compensation. Additionally, if you were injured due to an elevation related accident, you may be able to sue your employer and third parties under New York’s strict liability “Scaffold Law.” Contact an attorney who is experienced with construction accidents who will fight for your rights. Call the attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP at (866)557-7500.

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New York Times Investigation Reveals Nail Salon Workers Subjected to Health Risks

According to a recent investigation by the New York Times, nail salon workers are some of the most overworked, mistreated, and underpaid workers in New York. In addition, many of them face serious health risks due to the fumes and chemicals to which they are subjected on a daily basis.

Most of the nail salon workers interviewed during the Times investigation were immigrants from Korea or China, and occasionally Latin America, Nepal or Tibet. The Times found that some of these workers were earning a wage as little as $10 per day. $35 is considered to be very good pay by those working in the nail salon industry. In many cases, their employers even keep their tips, and offer no overtime pay. In addition to the deplorable employment working conditions employees face, many of the workers are forced to go home to over crowded and unsanitary living arrangements.

Due to the salons not being properly ventilated, many of these workers face medical ailments such as respiratory and skin issues, nose bleeds, head aches, and sore throats, in addition to the physical pain that comes from being hunched over all day, and sore hands resulting from massaging other people’s hands and scrubbing calluses from feet for hours on end. In many cases, women are not given gloves to protect their hands or proper masks to protect from inhalation. Chemicals in products used for manicures include dibutyl phthalate, toluene and formaldehyde. Nail products are not regulated by the FDA and therefore, the long term health effects have not been studied by exposure to these products. Tragically, in the nail salon industry, miscarriages and birth defects are all too common among women of child bearing years as a result of being over-exposed to these toxins.

As a result of the New York Times expose, Governor Cuomo issued an emergency order to protect nail salon workers until more permanent measures can be in place. Such measures include increasing safety measures requiring protective gloves; ordering back pay for lost wages; and an educational campaign that would distribute materials in six languages about the rights, health, and safety of nail salon workers.

If you are a manicurist, or work in the cosmetics industry and have developed an illness as a result of your employment, you may be able to assert a Worker’s Compensation claim. The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County. For a consultation, call (866)557-7500.

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Performance Artists Face High Risk of Workplace Injury

When one goes to see a show such as Cirque du Soleil, spectators see a performance that allows them to retreat into their imaginations for a while. What they don’t necessarily see, however, are the injuries that can affect so many of the performers. According to OSHA, Cirque du Soleil’s Las Vegas show has been ranked 79th most dangerous workplace out of 52,000 nationwide. The injury rate for these performers is four times greater than professional sports teams. Additionally, in many cases, performers do not receive just compensation and will never be able to perform again.

While many of the injured performers receive Worker’s Compensation, the system is not geared toward the specific nature of performance, and companies such as Cirque du Soleil do not have provisions in the performers’ contracts like those of professional athletes. This means that many of these performers will be left without adequate compensation for their injuries and an inability to earn a living. In one case, a performer’s pay dropped 85% after her injury due to the cap placed on Worker’s Compensation payouts. The price tag placed on her permanent ankle damage was $170,000, after she disputed the initial $45,000 she was offered. Due to her injury, the former Olympian will never be able to perform again.

In another tragic case, a performer was killed when her harness did not work properly. Despite the performer’s concern about the equipment, the company did not take proper safety precautions. After an OSHA investigation, the company and the casino in which it was housed were fined for safety violations. The company also settled a lawsuit with the performer’s children.

Being a performance artist can be a dangerous occupation and result in serious injury. If you are a performer who has been involved in a work related accident, contact an attorney who has experience dealing with these matters and will ensure you receive the compensation you deserve. Call the attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP for a consultation at (866) 557-7500

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Recent Survey Indicates Large Percentage of Fibromyalgia Patients Not Receiving Disability Benefits

Anyone with fibromyalgia knows how debilitating the condition is, and how difficult it is to perform job functions that you may have been able to previously. While the condition affects 5 million adults, only 25 percent are receiving disability benefits. A recent survey conducted by ProHealth.com has found that out of the 316 participants, 60% had fibromyalgia. 68% of the participants were not receiving disability benefits at all. The two most popular responses as to why the survey participants were not receiving disability were that they either felt guilty asking for it, or could not afford to be out of work for two years while awaiting approval. For those who did make claims, 75% had not involved a lawyer.

Even for those who apply for social security disability for fibromyalgia, the outcome is uncertain. The Social Security Administration issued new standards in 2012 to determine disability eligibility based on fibromyalgia symptoms. Previous to the new guidelines, a fibromyalgia claim was not necessarily viable. In determining the eligibility for a claim, the Social Security Administration will look at whether:

• There is at least a 3 month history of widespread pain
• At least 11 of the 18 tender points are found on examination
• Evidence from other disorders were excluded

The SSA also requires medical documentation for a period of 12 months prior to the application date. Documents should include medical evaluations from a physician, and possibly a psychologist. The SSA will also take into consideration evidence of a person’s day to day functioning as reflected by the statements provided by friends, neighbors, clergy, past employers, counselors, or teachers. The SSA will also have their personnel evaluate you in a multiple step process considering:

• Work history
• Severity of symptoms
• Whether the impairments meet medical criteria
• Whether you are capable of performing past work
If you are capable of doing past work, then you do not qualif
y for disability. If you are denied your claim, you may appeal. Many people have found more success with the appeals process.

Navigating through the Social Security Disability system is often frustrating and confusing. If you are experiencing the debilitating pain of fibromyalgia and can no longer work, it is best to contact an attorney who is experienced in handling such claims. Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866)557-7500.

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