After Six Years, Airport Employee’s Widow Receives Workers’ Comp and Death Benefits

A New York State Appeals Court recently ruled that the widow of an airport employee who suffered a heart attack on the job is due workers’ compensation and death benefits. The decision concludes a six-year battle between the claimant and her late husband’s employer.

On December 14, 2010, Edward Kilcullen, who worked as a process operator at Albany International Airport’s glycol facility — which produces the liquid for deicing aircrafts — collapsed on the job after sustaining a myocardial infarction. He suffered brain damage as a result and never regained consciousness. He died seven days later.

Rita Kilcullen, Mr. Kilcullen’s wife, filed claims for workers’ compensation and death benefits, but was denied by both her late husband’s employer and the employer’s insurer. After a series of hearings, a Workers’ Compensation Law Judge ruled that Mr. Kilcullen’s work “contributed” to his heart attack and that his “death arose out of and in the course of his employment.” In March 2014, the Workers’ Compensation Board agreed with the judge; the employer appealed the decision.

On April 21, 2016, a three-judge panel of New York’s Appellate Division, Third Judicial Department, in Albany affirmed the board’s decision. The court cited in its decision a finding from a doctor who reviewed Mr. Kilcullen’s medical records and concluded that the employee’s work environment and his work-related activities were “significant contributing factors” to his heart attack and resulting death.

According to case law, “a heart injury precipitated by work-related physical strain is compensable, even if a pre-existing pathology may have been a contributing factor and the physical exertion was no more severe than that regularly encountered by the claimant.”

The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

Sean Riordan’s Successful Appeal on Behalf of Nassau County Correction Officer Reported by The Chief-Leader

Sean Riordan, a partner with McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP, was interviewed by The Chief-Leader on the successful appeal of a case in which his client, a retired Nassau County correction officer, was initially denied the ability to collect disability retirement benefits.

Ronald DeMaio sustained a lower back injury after trying to break up a fight between an inmate and a fellow correction officer who was searching him for contraband. Officer DeMaio attempted to escort the inmate down a stairwell, but the inmate pulled away from him.

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Streamlined Prosecutions of Workplace Safety Violations Resulting from the Worker Endangerment Initiative

Recently, WorkCompCentral Workers’ Compensation and American Association of State Compensation Insurance Funds announced the federal government’s launch of the Worker Endangerment Initiative. This new program combines the prosecution of employer workplace safety and environmental violations. Often, employers who criminally violate the Occupational Safety and Health Act (OSHA), are also violating environmental laws at the same time. The initiative includes data sharing, joint investigations and streamlining the criminal referral program. The goal is to make it easier to prosecute environmental violations.

For one, the Environmental Crimes Section will be able to prosecute not only traditional environmental crimes, but also OSHA violations and other workers’ safety statutes. With this initiative, an employer can be charged with workplace safety violations, environmental law violations, and related offenses such as obstruction of justice and making false statements, in the same case. This will allow prosecutors to combine what would have been several cases into one, and make it more efficient to prosecute employers.

If you have been injured on the job, an attorney can help protect your rights. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

OSHA’s New Reporting Requirements Improve Worksite Safety

With the close of 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has announced the results of the new reporting requirement which was implemented as of January 1, 2015. The new reporting guidelines require any severe work-related injury, including amputations, loss of an eye, or hospitalization, to be reported within 24 hours. The requirement of reporting a fatality within 8 hours remains unchanged.

Recently, WorkersCompensation.com reported on OSHA’s 2015 data on work-place-related injuries. Employers submitted a total of 10,388 cases of severe injuries in 2015. Out of the total, 7,636 were hospitalizations and 2,644 accounted for amputations.

Taking it further than just mere numbers, OSHA implemented the program in order to create safer workplaces. After a report comes in, OSHA works to identify what the hazard is, and what measures the employer can take to remedy it. Most of the cases reported in 2015 did not require a worksite inspection, which is conducted when OSHA deems it necessary.

If you are a worker who has suffered injury due to an employer’s failure to follow safety regulations, you may be entitled to Workers’ Compensation. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, represents individuals who have been injured on the job throughout the five boroughs of New York City including Manhattan, the Bronx, Brooklyn, and Queens, as well as both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP Successfully Appeals Case for Injured Correction Officer

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP (MDASR) has announced that the firm successfully won an appeal on behalf of a Nassau County correction officer who was initially denied disability retirement benefits, despite being injured on the job, which forced him to retire.

On March 14, 2011, Ronald DeMaio assisted in breaking up a fight between an inmate and a fellow correction officer who was searching the inmate for contraband. Officer DeMaio subsequently escorted the inmate down a stairwell by holding the inmate’s arm. The inmate pulled away from Officer DeMaio, causing him to injure his lower back.

When Officer DeMaio applied for disability, he was denied and requested a hearing and a redetermination. The Hearing Officer upheld the initial decision, stating that Officer DeMaio failed to meet his burden of proof because he had failed to show that the inmate intentionally caused his injury. Officer DeMaio then retained MDASR to represent him on an Article 78 appeal. The firm argued that the Hearing Officer’s determination misstated the applicable legal standard and that the firm’s client needed to prove the injuries came from “any act of an inmate,” but the hearing officer wrongfully found that Officer DeMaio needed to prove that the inmate deliberately caused him harm.

On March 31, 2016, the New York State Supreme Court, Appellate Division, Third Judicial Department, ruled that the hearing officer did not properly apply the legal standard for review during the hearing process and committed an error of law in her determination.

Sean Riordan, a Partner with the firm, represented Officer DeMaio during the appeal. “Despite what many of the Hearing Officers have recently ruled, the ‘act of an inmate’ that causes the correction officer’s injury does not need to be an intentional act. These rulings are no longer valid,” Mr. Riordan said.

The Appellate Division also found that the Hearing Officer failed to provide the proper standard of review, finding that a redetermination is a de novo review, not a substantial evidence review. Mr. Riordan said the Hearing Officer did not take into account all of the evidence before making the determination. “In pension hearings, the Hearing Officer must review the totality of the evidence before it and make a new decision, not merely adjudicate whether the prior application decision was supported by substantial evidence,” he said. “While this procedural ruling appears to be legal semantics, Hearing Officers frequently justify denials on the basis that the Comptroller’s initial determination is supported by substantial evidence without giving the CO a full and fair review of the evidence. This is now also invalid reasoning.”

For more information, call (631) 665-0609 or visit www.licomplaw.com.

* A copy of the decision is attached.

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Frequency of Workers Compensation Claims Decline While the Severity Increases

According to Insurance Business America, over the past ten years the number of workers’ compensation claims is decreasing, but the severity of the injuries reported is increasing. Milliman and Keenan Healthcare analyzed workers’ compensation data and compiled a report showing frequency, severity, and medical and indemnity costs. They considered how reforms may affect the numbers as well. One of the main findings was that losses per $100 of payroll was stable between 2004 and 2014, but during roughly the same time period, the severity of claims increased by approximately 5.5 percent annually. There are ongoing efforts to not only reduce the number of claims, but also the severity.

Additionally, the report showed that from 2013 to 2014, estimated costs per indemnity claim decreased by about 10 percent. In fact, the study showed that younger workers tend to spend more in medical care as compared to other costs, while older workers have larger indemnity losses with about 20 to 25 percent of claims ending up in litigation. Employees between the ages of 36 to 55 approximated more than 50 percent of the indemnity claims paid. Data also showed that the severity of indemnity claims increases with age, and the likelihood of an incident resulting in an indemnity payment rises as well.

In order to remedy the frequency and severity of claims, there is an ongoing effort to improve workplace safety. For example, Workers Compensation reported that the Occupational Safety and Health Administration published a final rule on the requirements for personal protective equipment, which takes effect on April 25, 2016. The new rules dictate that more modern and improved eye and face protection should be used in the fields of longshoring, construction, marine and shipyard industries, and other general industries. Multiple outdated devices, as old as 1968 versions, were deleted and replaced with current acceptable standards.

If you or a loved one has been injured on the job, a skillful workers’ compensation attorney can better guide you on how best to file claims. An attorney can help protect your rights and help preserve your coverage. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.