NYCERS denies NYC EMT disability, MDASR steps up.

MDASR, LLP wins another important ¾’s Article 78 case!

An FDNY EMT suffered severe illnesses and injuries related to her heroic actions during the 9/11 clean-up operations. After being initially denied ¾’s Disability Retirement benefits from the New York City Employees Retirement System (“NYCERS”), a Supreme Court judge found that the NYCERS Medical Board acted “arbitrarily and capriciously” in finding her not disabled. This represents a legal finding that NYCERS acted without “any credible evidence” to support its decision. The judge went on to note that the NYCERS Medical Board did not counter the EMT’s own treating physicians, nor those of the FDNY’s own physicians who had all found her incapable of performing the full duties required of an EMT. More importantly, the judge also found that the NYCERS Medical Board had failed to discuss the specific job duties and responsibilities required of an EMT, nor how our client could do the job despite her well documented physical limitations.

MDASR continues to help level the playing field for injured workers seeking disability benefits. If you were injured as a result of your job, call us today at (631) 665-0609.

 

Attorney Advertising. Prior results do not guarantee a similar outcome.

NYPD gears up after London attack in wake of proposed budget cut

Last week, the Trump administration released their plan for a 10% spike in military spending. Roughly $700 million in federal grants from the Department of Homeland Security would be cut, according to an article posted on Newsday.com. These are the same grants that provide funding for counterterrorism efforts for local law enforcement agencies across the country, affecting everything from equipment to manpower. An estimated $110 million in DHS grants would be cut from their budget. Considering the NYPD is the largest municipal police force in the country, this kind of cut to their nearly $5 Billion budget is worrisome, to say the least. Senator Chuck Schumer and NYPD Commissioner James O’Neill appeared in Washington DC to show how important this funding is. Commissioner O’Neill stated in a New York Daily News article, “This is critical for our operation… that $110 million represents about 600 cops. I don’t think there’s clearer terms than that.” The $110 Million cut is just one estimated slash. An article on NYMag.com says that the cut could be as high has $190 million. Schumer told New York Daily News that in 2016 the NYPD received $180 million in DHS grants for the same kind of programs and operations that would be defunded under the currently proposed budget plan, which means that all or most of what the NYPD has to support their counterterrorism programs would be taken away.

This came shortly before a terror attack in London this week. New York City and the NYPD responded by ramping up security at its British locations, according to Newsday. The British Consulate General and the U.K. Mission to the U.N. are just two locations that have been given extra security. Most of the security for these locations came from the NYPD’s Critical Response Command, a team that would greatly feel the weight of the budget cuts, along with other crucial counterterrorism programs. Schumer has been successful in stopping these kinds of budget cuts to the city in the past, and we can only hope he and Commissioner O’Neill are successful in stopping this now.

Please see the articles below for sources and further information.

London attack: NYPD steps up security at British locations in NYC

EXCLUSIVE: NYPD top cop James O’Neill visits Washington to battle Trump’s security funding cuts

NYPD top cop James O’Neill says Trump’s budget would severely impede the city’s fight against terrorism

Schumer: Trump would cut $200M from NYPD anti-terrorism, other funds

NYPD Commissioner Says Trump’s Budget Would ‘Hobble’ Counterterrorism Efforts

 

New WC bills put worker at risk

Three new bills have been supported by the Business Council of New York as reforms to workers’ compensation insurance. In no subtle manner, the Business Council specifically favors the employer and insurance carrier in each of these bills, citing that some awards give too much back to the injured worker for too long a period of time. The most recent of the three was introduced at the beginning of this month.

All three proposed Bills currently hold an “In Committee” status according to the New York Senate website. Bill A5977 addresses impairment guidelines for Schedule Loss of Use awards, or SLU awards. Bill A6218 aims to limit workers’ compensation benefits for partial permanent disability (PPD) benefits. Lastly, Bill A6602 focuses on the schedule of the Permanent Partial Disability benefits, which the previous stated Bill already aims to limit. The benefits would be given for a determined amount of time after the date of accident, and any other PPD benefits that exceeded the rate would be paid to the insurance carrier. Bills A5977 and A6218 were both introduced at the end of February but A6602 was introduced this month, on March 9th. Another aim of the Bills is to extend the opt-out period for employers from 30 days to 120 days.

In an overwhelming public response against these proposed bills, a petition on MoveOn.Org received more than 600 signatures overnight. On March 16th the bill had 339 with a goal of 400, which was ultimately far surpassed. On the 17th, the petition had 1,012 and a new goal set to 2,000. Although the website does not currently state when the petition started, the first signature was submitted on March 9th, the same day that most recent Bill was introduced. The links to the Bills as well as the petition are all linked below. MDASR, LLP. stands opposed to these proposed bills and urges all those concerned with the protection of workers’ rights to sign this petition.

Assembly Bill A5977

Assembly Bill A6218

Assembly Bill A6602

Workers’ Compensation Petition

75 new detectives to protect the Bronx

New York City and the NYPD has stated a victory in finding that the number of homicides has gone down, but in the case of what has become New York’s most violent borough-the Bronx-the NYPD has gone to new lengths to bring it up to par with Manhattan and the rest of the five boroughs.

According to the New York Times, the NYPD announced last week that they would be sending close to 80 new investigators to the Bronx. A study published by New York Times analyzed deployment data showing that officers in the Bronx dealt with the highest felony caseloads in the five boroughs. The New York Times study published just a few weeks prior to this announcement determined that “Precinct Detectives in the Bronx last year carried out more than twice as many violent felony cases on average as detectives in Manhattan or Staten Island, and over 50 percent more than those in Brooklyn or Queens.”, noted in the article linked below. The study also showed that budgetary resources are being invested elsewhere, such as counter-terrorism instead of the deployment of officers. This ultimately resulted in the Bronx not feeling the same relief of lower crime rates that were felt in Manhattan and the rest of New York City. The decision to deploy the 75 white-shield investigators, who are on track to become gold shield detectives, has been met with support from NYPD officials and the Bronx District Attorney as well as criticism from other New York City public officials. Letitia James, the City’s public advocate, expressed that this problem in the Bronx had been ignored for too long. The NYPD Chief of Detectives, Robert Boyce, has told New York Times that the deployment should be underway by the end of the month.

Within the last year, there has been a growing trend of readjusting the staff of jails and prisons to keep the facilities safer for both Correction’s Officers and inmates, and a trend of public employee reform in general. This year began with legislative measures being announced to protect transportation workers and construction workers, and it looks like this trend has now transferred over to the Police Departments. This also comes in the wake of the new contract agreement between Mayor de Blasio and the PBA, the first in 5 years.

Police to Strengthen Force in New Yorks’ Most violent Borough

Nassau County COBA fighting poor jail searches

An internal investigation into a former Nassau County jail nurse has reportedly been mishandled and Nassau County COBA President is fighting for answers.  After a long series of letters, articles, press conferences, and investigations, former Nassau County Jail nurse Chantiel Cox was charged and arrested February 3rd, 2017 for smuggling contraband to inmates.

Nassau County COBA President Brian Sullivan received a series of letters from the Nassau County DA’s office painting a disturbing picture of an obstructed internal investigation of the former nurse. She and two other accomplices were allegedly smuggling razorblades, cellphones, synthetic drugs and other items to inmates. She initially was fired, without charges, from the jail following an internal investigation of the smuggling ring. Prosecutors weren’t formally made aware of the internal investigation. According to a video from Ucomm.com of a press conference that took place last month, the Nassau County DA found out through outside sources and then demanded a briefing from jail administration.  Following the briefing, the DA’s office conducted its own investigation and then later arrested and charged Cox.  An article on Ucomm.com paints a history of negligent facility searches and a general trend of searches being carried out poorly when violent situations arise. The same article states that for nearly a year after having knowledge that the nurse in question was bringing contraband into the correctional facility, there was no facility-wide search ordered for weapons, drugs, cell phones or other items.

A series of letters from the Nassau DA’s office sent to the Nassau County COBA President dating back to December of 2015, as referenced by Newsday, is what set the Union’s appeal for another investigation into motion. Prosecutors learned of the smuggling ring in December 2015 after the DA’s office was alerted by outside sources about the scheme. Chief Assistant DA, Albert Teichman, followed up by saying that not only was the investigation immediately conducted but that even though the sheriff’s initial investigation was mishandled, “the failures were non-criminal”. Ultimately, he later stated that he also asked County Attorney Carnell Foskey that all county agencies be reminded the police or prosecutors ” must be notified of any potential criminal investigation”, as quoted from the Newsday article about this case published in January. There was no question during this correspondence that the DA’s office or police should have been formally and properly consulted about the initial internal investigation.

The mishandled investigation into this matter only facilitates the unsafe landscapes of jails for inmates and correctional staff alike. If individuals who work inside these correctional facilities are overworked and understaffed, it creates a dangerous environment. Someone taking advantage of their access to secured and controlled spaces to further distribute materials, some that inmates can make in the jail without outside help, perpetuates the already vicious cycle of violence in jails. For more information about this case, please see the links below.

 

Correction officers union calls for probe of Nassau sheriff’s office

DA: Jail contraband probe involving nurse ‘mishandled’ internally

When the Sheriff Obstructs Justice

Nassau COBA holds Press Conference at the Nassau Legislature

 

 

 

Part two; Protecting our Correction Officers

Some time ago, I wrote a post titled From Illinois to New York, Solutions for Understaffed Jails. The articles referenced in the post outlined the grave environment that jails have transformed into for inmates and correction officers. An unsafe work environment for Corrections Officers ultimately leads to poor conditions for inmates. Inmates have quick and easy access to all kinds of contraband, putting the lives of CO’s in danger. The story on such work environments has developed.

As of last year, according to COBA statistics, just about half of the stabbings & slashings at Rikers Island Department of Correction involved 18 to 21 year olds-64 out of a total of 125 for the year. This is also the same age group that has seen an end to Solitary Confinement on Rikers Island. The COBA Union and the President of COBA have been imploring the Department and the City to see what is happening to their Corrections Officers, calling the end to solitary confinement “open season on CO’s”. “We have since filed an improper practice petition against the City and the Department of Correction for violating our collective bargaining agreement when the Department unilaterally eliminated punitive segregation for 18-21 year old inmates.”, a quote in a newsletter this month from the COBA President, Elias Husamudeen. Another statistic-since January of this year, which isn’t even over, 620 NYC Correction Officers have been assaulted by inmates under 21. Husamudeen has urged for the removal of violent inmates with a repetitive history of assaulting COs to mental health facilities or another jurisdiction, one where solitary confinement is in place. The COBA President has also noted that, on the upside, a number of these repeat offenders have been rearrested. This process of rearresting repeat assailants is accompanied by other highly preventative measures, all in the name of protecting New York’s Boldest. He states that Corrections Officers need policy makers to act as quickly with CO’s as they do with police officers when it comes to punishing assailants. Their safety and protection against assaults is hindered by mandated triple-shifts, due to programs that require a staff size that is unavailable at Rikers.

The road to reform for our Correction Officers is long and winding, but must be traveled. All who protect us deserve the same from the system at hand.

NPR, ProPublica call for federal oversight of Workers’ Compensation

Last fall, NPR and ProPublica did a series of articles and podcasts on the changes in Workers’ Compensation legislation in 33 states. All of them resulted in the same thesis- federal oversight of the Workers’ Compensation system is imperative after their studies had shown a pattern of harmful changes to the system in certain states. This also suggested taking another look at an idea proposed by the Nixon administration commission in 1972- establishing a set of federal minimum benefits and standards, with Congress being given the power to step in if states didn’t adhere to the rules.

This series resulted in 10 lawmakers sending a letter to the Department of Labor, which then prompted a 44 page report on Workers’ Compensation in various states. The report found that 33 states have managed to either give employers greater discretion over things involving medical coverage, made workers’ compensation qualifications just short of unobtainable, or have cut workers’ compensation benefits altogether. Some states have allowed their employers to create their own workers’ compensation policies. This means employers have control over the benefits employees receive, how long they receive them, and what injuries they can even begin to get benefits and treatment for. This means a highly unregulated system that’s basically in the benefit of the employer, not the employee. This results in injured workers in certain states having to find compensation for proper treatment elsewhere, like Medicare and Social Security Disability. There is also a strong argument that this broken system puts injured workers on a “path to poverty”, as the articles describe it. When these fall short of what workers compensation would cover, taxes essentially end up covering the difference. A study from 2007 referenced by NPR states that government programs spend roughly $30 billion yearly on work injuries not covered by workers’ compensation. In an article published by ProPublica last year, Oklahoma’s’ top court determined that companies cannot set up their own regulations for injured workers. This was after a bill for employer-regulated workers’ comp was struck down. This currently leaves Texas as the only state to not only allow employees to actually opt out of workers’ comp insurance, but also allow their employers to not purchase it for their employees altogether. As per a law established in 1913 called The Texas Option, the state “allows” their workers to find “alternative” means of coverage. The series published by ProPublica and NPR states that these same companies are covered by Employee Retirement Income Security Act, or ERISA for short. However, this bill explicitly does not cover workers’ compensation benefits.

The report prompted by NPR and ProPublica contained a large section framing this in historical context. Detailed examples of both republican and democratic administrations supporting the idea of having national benefit standards had been dated back to 1939.

For more information and links to the articles referenced, see the article below.

Lawmakers Seek Federal ‘Oversight’ Of Workers’ Comp As States Limit Benefits

From New York to Illinois, Solutions For Understaffed Jails

Teamsters Local 700 in Lake County, Illinois have stepped up for the areas overworked correctional officers. Too often are jails understaffed leaving their correctional officers working a recently mandated and regulated over time, putting themselves at more of a risk then they all ready do. Correctional officers also bear the weight of gender-specific duties. In a quote from the article from PRnewswire.com, “The female correctional officers are excessively impacted by the overtime regulation because of their specific assignments that only female officers can attend to.” This also applies in the case for male correctional officers. As much as this is a risk for the CO’s, its also a risk for the inmates-less officers on duty means a higher probability of something bad happening to either party, and both need to be protected.

This problem is also evident here in New York. At the beginning of this year, Mayor Bill de Blasio made a plan to spend more than $100 Million to improve the conditions of the Rikers Island NYC Department of Correction. This would be effective July of 2017. The push for funding was a response to a federal lawsuit that addressed violence in jails-which in turn means violence in working conditions for correctional officers, and violence in living conditions for inmates. Close to $60 million of the budget is being put to staffing the facility. It’s also not as if understaffing versus overcrowding isn’t an issue either. The two are not necessarily mutually exclusive, and statistics do show that prisons and jails are overcrowded as well as they are understaffed.

Read the articles linked below for more information.

Union: State Prisons Dangerously Understaffed

Teamsters Local 700 Continues to Fight for Lake County Correctional Officers

Rikers Island Will Have More Officers Than Inmates Under Proposed Budget

LIU Brooklyn faculty lockout ends successfully for professors

In the aftermath of a faculty lockout that took place the Brooklyn campus of Long Island University, the faculty and the university’s administration have come to an agreement regarding a union contract renewal. The lockout ended Wednesday, September 14th, although classes were supposed to start the first week of this month. With thanks to professors, students, and the American Federation of Teachers, classes have begun and their rights as a union have been exercised and protected.

On August 31st the faculties union contract expired, and they did not agree with terms of the proposed renewal. A vote to accept or decline the contract took place, and the faculty rejected the new contract 226 to 10. Another outcome of the disagreement ended with professors not being able to get into their offices or emails. During the 12 day lockout the American Federation of Teachers, a labor union that represents education and teachers, was there in support of the faculty. The Long Island Faculty Federation is also represented by the AFT. Randi Weingarten, the AFTs current president, was there to speak on behalf of the faculty and students. This ultimately ended with a contract the administration and the faculty both agreed upon. The successful end to this is due to the efforts from the American Federation of Teachers and the hard working professors who knew the rights they had as a union.

L.I.U.-Brooklyn Locks Out Professors Amid Contract Dispute

Faculty Lockout at L.I.U.-Brooklyn Ends With Contract Agreement

Information for Tier 4 NYC Workers

Most employees of the City of New York are members of the New York City Employees’ Retirement System, or “NYCERS”. Most workers think of NYCERS in terms of their “Service Retirement”, when they have enough years of credited service and are the necessary age to retire from their positions. However, there is a special retirement benefit available to those that can no longer perform their full duty position as a result of an injury or illness. This “Disability Pension” is an economic life saver for many injured workers, allowing them to meet their financial obligations while facing the debilitating nature of their injury/illness. Read below for information concerning information on Tier 4 eligibility for New York City workers.

When is a Disability Retirement Available?
Disability Retirement is available to workers that that can no longer perform the full duties required of their specific title. This legal standard means that you must no longer be able to perform your job, it does not require that you be disabled from all jobs in the United States like Social Security Disability. If you, and your treating doctors, believe that your injury/illness will not allow you to return to your previous work an application for Disability Retirement should be filed.

When Should I file a Disability Retirement Application?
The Retirement & Social Security Law has various filing deadlines for disability retirement depending on the pension “Tier” the member has been assigned. Tiers are determined based on one’s original membership date with NYCERS. Although the law sets guidelines on the latest date a member can apply for a disability pension, the basic rule of thumb is that an injured worker should apply for a disability pension as soon as they and their physician determine that they are no longer able to return to their prior work, but not later than 6 months after an injured worker has been absent from work on an approved medical leave.
The need for early application in disability cases emanates from the New York State Civil Service Law (“CSL”). Section 71 of the CSL allows a municipality to “medically separate” (a nice phrase for “terminate”) an employee who has been out of work for 1 year due to a workers’ compensation injury/illness. Section 73 of the CSL allows for the medical separation of an employee when they have been out of work for that same 1 year period. This means, as soon as you miss one day of work due to an injury or illness the one year clock for return or termination begins to run. The NYCERS disability process generally takes approximately 6 months to fully adjudicate a disability application and render a decision. Therefore, in order to avoid medical separation and possible interruption of medical insurance coverage and other benefits, it is in a workers’ best interest to file as early as possible.

Statute of Limitations for filing Disability Pension Applications Tier 4 Members:
Within 3 Mons of the date a member was last paid on payroll; OR
Within 12 Mons of when the member received notification that their employment has been terminated as long as the member was on an employer approved medical leave of absence immediately prior to termination.

Do I need a Specific amount of Credited Service Time with NYCERS in order to apply for a Disability Retirement?
No, any member can apply for a disability retirement benefit if they are permanently incapacitated from the full duties of their employment. However, if a member has less than 10 years of Credited Service with NYCERS the member must establish that their injury directly results from a “legal accident.” A legal accident varies greatly from what we would generally call an “accident” in ordinary conversation and adds greater burden in establishing entitlement to this benefit.

How Does NYCERS determine if I am Disabled?
NYCERS has established a “Medical Board” to hear each application for disability retirement. This three doctor panel is charged with reviewing all the evidence a member submits in support of their claim for benefits and is also required to psychically examine the injured/ill worker. Once examined, the Medical Board will “recommend” to the NYCERS governing body, the Board of Trustees, whether to approve or deny your claim. By law the Board of Trustees cannot overturn the Medical Boards determination regarding a members fitness for duty, but must make its own determination on issues regarding the “accidental” nature of your injury and “causal relationship”, that is, whether your injury was caused by the specific accident alleged in the application.

If I am Approved, What Benefit Will I Receive from NYCERS?
Your benefit amount depends on your Tier and the benefit a member applies for.
The benefits amounts are:
Tier 4 Members Applying for Article 15, Section 605 Benefits:
1/3 of a Members Final Average Salary; OR
1/60th of a Members Final Average Salary multiplied by the Members Credited Service Time

NOTE – Tier 4 members DO NOT HAVE ¾’s Disability Pensions. Only NYC uniformed personnel have such a benefit.

If I am Approved, Will I Receive Medical Benefits from NYCERS?
Technically, the answer is No because NYCERS does not administer medical benefit coverage. Instead, medical benefit coverage is a contractual issue. Rest assured, almost all contracts today treat disability retirees the same way as “service retirees” and provide the same medical coverage in both situations.

Can I Work in Another Job as a Disability Retirement Recipient?
Yes, however you will be subject to income limitations which change annually. Whenever you decide to take new employment you should contact NYCERS to find out the current income limitation.

Can I Receive a Disability Pension, Social Security Disability and NYS Workers Compensation together, without offset?
Yes, Tier 4 Disability Pension benefits are not offset by the receipt of either SSD or NYS Workers’ Compensation and a member can receive all 3 benefits payments under the law.