Construction Industry needs Scaffold Law

Changes to the Scaffold Law have been at the crux of recent discussions in the construction industry. In New York, 2016 and 2015 were statistically the deadliest years for construction workers-dozens of articles recording deaths due to improper equipment were published. In late 2017, two workers fell to their deaths during the same day on separate projects in the city.

Many businesses are citing unnecessary regulations on businesses, higher insurance costs for businesses, and higher taxes as reasons not to proceed with the updates to the Scaffold Law. However, an article recently published stated that this was one of a number of myths surrounding the Scaffold Law. One of the most damning points listed is that most people don’t actually know what construction insurance premiums look like. In the article linked above, Harry Bronson from the New York State Assembly simply puts:

“Third, the facts about insurance premiums. We don’t have them because insurers won’t disclose them. Insurance companies are in the business of risk analysis based on data. Policy decisions should be made based on data. It is disturbing that insurance carriers refuse to disclose the truth about construction liability insurance premiums. Indeed, if the Scaffold Safety Law were legitimately a financial burden, then one would think that insurers would be eager to validate their position and put the information forward.”

While some are squabbling about red tape, costs, and taxes, NYCOSH published a report called The Deadly Skyline. The report appropriately starts with an in Memoriam section for those who were killed due to falls at sites, listing names, ages and locations. The youngest on the list was 19. One would think even those opposing the bill can agree, worker safety is priceless. The precursor to this was when a number of NYCOSH reports related construction injuries and fatalities to union or non-union work sites. These NYCOSH reports showed a greater likelihood to get injured on a non-union project, and that Latino workers’ had a greater likelihood for wage theft and of dying on a work site.

NYCOSH puts forth a number of suggestions as additions to the Scaffold Law in the report:

“In response to the health and safety crisis facing New York’s construction workers, NYCOSH has a series of recommendations. NYCOSH continues its call to protect the Scaffold Safety Law, which grants injured construction workers who fall on the job the right to sue an employer who puts their life in danger. NYCOSH is also calling for new legislation to increase penalties for companies that willingly violate the law and cause a worker fatality, and to revoke the licenses of criminal contractors who were convicted of felonies in the case of a worker death. Finally, NYCOSH recommends increased training for workers, like apprenticeship programs on large construction projects, OSHA 10s on all construction sites, and licensing for elevator construction workers.”

There is no report that could be made that would invalidate the need to not only uphold the Scaffold Law, but to also add NYCOSH’s suggestions to the legislation. When the safety and lives of workers are at risk, businesses should do what they can to protect them. This includes longer training, safer work sites, and generally better employer practices amongst the construction industry.

Links

Letter: NY Scaffold Law protects construction workers

OUR VIEW: Scaffold Law hurts businesses in New York

Misinformation muddies discussion about Scaffold Safety Law

Deadly Skyline: An Annual Report on Construction Fatalities in New York State

City Council can protect NYC workers from construction accidents by mandating better training

NYC official urges city to classify construction site accidents as union or nonunion

EXCLUSIVE: NYC urged to release info on construction accidents to show whether union jobs are safer

November 2017 NYS WCB Proposal Summary

Back in September, thousands of injured workers, legislators, and other advocates stood with us in a far-reaching fight to stop the disastrous changes proposed by the NYS Worker’s Compensation Board. The public comment period ended in October and as a result of the uprising, the NYS WCB rescinded the initial proposal. November 22nd, the second proposal was released. A summary of it, written by our partner Richard Donohue, Esq., is below. The period for public comment for this ends 12/22/2017. You can email regulations@wcb.ny.gov before then to voice your opinions or concerns on the changes.


 

NOVEMBER 2017 PROPOSED SCHEDULE LOSS OF USE GUIDELINE CHANGES

 As indicated previously, the Board, under the direction of the New York State Legislature, has issued regulation changes and proposed amendments to the “Impairment Guidelines for Schedule Loss of Use”.  Their initial proposal dated 9/1/17 caused an extreme and fervent backlash from the labor community as well as from claimants and their attorneys during the public comment period which expired 10/23/17.  As a result, the Board issued a second set of proposed regulations and guidelines dated 11/22/17 regarding Schedule Loss of Use.

The November 2017 proposal rescinded the September proposal and also carried forward most of the existing schedule loss permanency guidelines, with several significant exceptions.  Although we are not in agreement with all the changes proposed in the November 2017 guidelines, we believe that this guideline proposal is a significant improvement over the initial September 2017 guideline proposal which would have devastated injured claimants and eliminated most awards for permanent loss of use to extremities.

Significantly, the November 2017 proposal eliminates the assignment of 10% to 15% schedule loss of use for rotator cuff tears, a proposal in which we are not in agreement and believe will result in lower awards for permanent shoulder injuries.  Additionally, the current existing guidelines arguably permit the addition of percentage losses for both forward flexion and abduction, whereas the November 2017 proposal states that only the greater of the two losses should be used in calculating the percentage loss of use.  We believe this will also result in lower awards for permanent shoulder injuries.

With regard to injuries to the elbow, some of the considerations given for mild to moderate loss of flexion are reduced insofar as the existing guidelines give a range from 7.5% to 10% whereas the new guidelines indicate only 7.5% for mild loss of flexion.  Whereas the range for moderate loss of flexion was 33.33% to 40%, the new guidelines indicate that only 33% loss of use would be given for moderate loss of flexion in the elbow joint.  We believe this will also result in lower monetary awards for permanent injuries to the elbow.  Similar reductions were incorporated into the guidelines for the hand.

Importantly, the new guidelines also delete a 7.5% schedule loss of use attributable for meniscus tears in the knee, whereas before they were approximately in the average range of 15% to 20% under the existing guidelines.

Changes were also made in the new guidelines proposal with regard to total joint replacements of both the knee and the hip which reflect advances in surgical techniques that have resulted in better outcomes for these type of surgeries.  Although we agree with the general proposal that the baseline for any schedule loss of use relative to total hip and knee injuries should begin at 35%, we believe the way the current proposal is written incorporates many range of motion finding deficits, thus making it unlikely that the final award will exceed the 35% figure, except in the event of a disastrous medical result.  Range of motion deficits should be added to the 35% baseline figure, not included in it.

Certainly, while the November 2017 proposal represents a significant advance over the prior September 2017 proposal which, again, was disastrous for injured workers, we believe that there remain areas in which benefits for injured workers can be improved by eliminating some or all of the aforementioned guideline changes.

An Urgent Message On Behalf Of Our Firm

HELP US STOP THE ATTACK ON WORKERS’ COMPENSATION! 

Below are several ways you can stand with us in opposition against these changes:

Sign these two petitions to make your voice known-Petition from AFL-CIO and Petition at MoveOn.org

Mail this postcard to the NYS Workers’ Compensation Board with a message to help you stand up for your rights.

Email your state senator stating your opposition to the changes. If you don’t know who your senator is, click here for the Senate’s website to find out.

THE PUBLIC COMMENT PERIOD ENDS OCTOBER 23RD.

Follow the above methods to protect your rights before the comment period is over.


This past April, the New York State Worker’s Compensation Board was given the green-light to draft changes to the way payments are calculated for permanent injuries to extremities (Schedule Loss of Use evaluations). These suggestions were completed September 1st, and they ultimately resulted in drastic cuts to claimant’s benefits and, in many cases, elimination of any payment at all beyond the payment for lost time, even in cases where a fracture is sustained or surgery is necessary.

Sustaining a permanent work injury is already a stressful and life changing situation.   The current benefit calculations very often don’t even compensate an injured worker adequately for what they have lost both physically and economically.  Now, the NYS Workers’ Compensation Board and the New York Business community have just taken the next step in making it that much more difficult for claimant’s to get back up on their feet.

These guidelines call for the removal of rights that are intrinsic to the purpose of Worker’s Compensation Law. On top of drastic cuts to benefits during recovery, the guidelines provide greater discretion to the employers and IMEs. This will essentially create an environment of exploitation by those who oversee the injured party. These guidelines were not made in the interest of injured workers, and go against the foundation of what this law is supposed to do.

These proposed regulation and guideline changes are not only an egregious attempt to sharply reduce and/ or eliminate compensation awards to our injured members, they would also strip tens of thousands of injured workers of very important protections and due process rights by affording the employer/carrier doctors the ability to question the worker on non-medical issues, with associated penalties for “failure to comply” with the doctors’ inquiries. This is completely contrary to the purposes and intent of the NYS Workers Compensation Law, a law which has been in existence for over 100 years and was designed to protect those very same injured workers.

It is important to remember that, with the passing of the NYS Workers Compensation Law, the right of injured workers to sue their employers in cases of permanent injury was eliminated in exchange for a system which provides fair compensation for lost time and especially for permanent loss of functioning in extremity injuries. Should these new regulations be approved, our injured members will be left with little or no recourse when they sustain permanent loss of functioning of extremities while performing their work activities.

If adopted, these proposed regulation and guideline changes will certainly adversely affect our members. As a result, I implore you to take any and all action to help stop these proposals from taking effect.

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.

Work site safety hazards results in lawsuit

A Long Island man has suffered two severed nerves and three severed veins after falling from part of a construction work site that lacked a secure and safe exit point. According to DNAinfo.com, Michael Hickey was injured while working in 2015 on the new water tunnel that will soon connect Staten Island and Brooklyn. “The suit claims the city failed to provide a “scaffold, ladder and/or other safety device” to help workers climb out of the tunnel during construction. Workers instead had to climb a patch of land that had “slick, slippery rocks hidden beneath muck and unlevel, hole-laden, raised depressed and obscured surface,” as quoted from DNAinfo.com. The suit was filed against the city for $2 million. Due to the severity of his injuries, Hickey was unable to continue his work at the construction site. The article notes that Hickey’s lawsuit was transferred on February 25th, 2017 to a Staten Island court after it was initially filed in Brooklyn.

Work site safety in the construction industry has been a topic of severity for the past few years. It recently came to a head in January when 21 new bills were introduced to bolster work site safety. To further reflect the importance of this, an article posted on NYDailynews.com states “Incidents involving either fatalities or injuries jumped from 128 in 2011 to 435 in 2015 in the state as a whole. Meanwhile, the number of safety inspections by the federal Occupational Safety and Health Administration and the state fell each year, from 2,722 in 2011 to 1,966 in 2015, the study found. That’s a drop of about 27%, and the study said that’s mostly because of a reduction in the number of OSHA inspectors in New York State — from 82 in 2012 to 66 in 2015.”

This is all came prior to a bill recently submitted by  Housing and Building Committee Chair Jumaane Williams and Councilmember Carlos Menchaca, along with the support of other City officials, to help mandate better safety training and skills for workers.

Please see the links below for more information.

City Forced Workers to Scale Muddy Bank to Exit Water Tunnel, Lawsuit Says

City Council can protect NYC workers from construction accidents by mandating better training

 

 

 

PBA contract ratified

On February 27th, the previously tentative agreement between the City and the PBA was ratified. This is the first time in 5 years that the PBA has been under a union contract. It gives the current NYPD officers a total 11.25% raise over the life of the contract, but also ultimately lowers the pay for future officers, according to an article posted on The Chief Leader. The raise that current cops get will cause future cops to take longer to get to the maximum salary.  The article notes that “The pact also features a significantly improved disability benefit for cops hired after 2009 and gives all officers the right to cash in all unused leave days once they exit the NYPD. It also implements the city’s body-camera program, which will expand to affect 5,000 patrol officers by July 2018 and require all those on patrol to wear and operate them by the end of the following year.” According to the New York Daily News, ¾ disability pensions will be made available to new PBA members with as low as 1% employee contribution. This is a success for Mayor de Blasio, who has recently had a rocky relationship with the NYPD. The agreement was reached February 27th with an overwhelming amount of union members participating in the vote and just 2% of members voting against the contract. The agreement also requires all officers to be fitted with body cameras by 2019.

PBA Pact Ratified By 98% of Members Due To Added Pay Hike

PBA Contract Ballots Mailed Out, Must Be Returned by Feb. 27

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

 

 

 

Transportation Workers Protection Act announced

New York, on both the state and city levels, has been hard at work reforming employee protections. Recently, City officials have been proposing legislation to protect construction workers. The effort has received wide support from other City officials and the Buildings and Construction Trade Council of Greater New York. The individuals supporting the bill also felt some push-back from the NYC Housing Authority.

Now the same effort has been introduced to the transportation sector. Recent measures have been made by Governor Cuomo to protect employees of airports. Similar to the bill mentioned above for construction workers, this piece of legislation also stresses preparedness and protocol for emergency response personnel so they can carry out their duties more efficiently. The proposed bill, to be titled the Transportation Workers Protection Act, will specifically include airport workers in the list of protected employees. An article, linked below, on WorkersCompensation.com, states, “Under current law, on-the-job assaults against transit employees – including bus operators, train operators, ticket inspectors, and conductors – are considered Class D felonies. However, current law does not specifically include airport workers in this category of transit employees. This new law will remove any ambiguity and explicitly include airport workers among those whom an assault against would result in increased penalties.”

The plan to draft the legislation was announced on January 25th by Governor Cuomo with the company of Hector Figueroa, President of Airport Workers’ Union 32JB.

NY Gov Announces Legislation to Protect Workers at NY Airports

Bill proposed to protect, better train New York City construction workers

In the past two years, thirty city construction workers have passed away as a result of work-related accidents. It goes without saying, even one life lost is one too much. Gary Labarbera, President of the Building & Construction Trades Council of Greater New York, wrote an article for Daily News New York that supported the bill proposed by three New York City leaders to protect construction workers. “Housing and Building Committee Chair Jumaane Williams and Councilmember Carlos Menchaca have submitted a bill, with the support of Manhattan Borough President Gale Brewer, that would promote worker safety by requiring that construction workers have such skills and training.”, said President Labarbera to Daily News New York. As the saying goes, knowledge is power and union construction workers are thoroughly trained through NYSDOL-approved programs. The bill, if passed, will call for a more thorough training of both union and non-union workers. Labarbera also stressed a NYCOSH study released in January determined that the quickly growing percentage of minority workers face a statistical likelihood of getting injured or killed on a worksite. He added that the study found that Latinos were the most at risk for work injury or fatality. Although painting a picture that correlated work injuries with non-union worksites, that minorities were more likely to get injured than their non-minority counterparts, and that statistics proved that the numbers of minority workers jumped 70% in a 10 year period, no mention was made about the type of worker that was on either type of worksite. This was most likely because, in the bigger picture of what the bill intends to do, the worker and work site isn’t in question. The bill advocates for worker and worksite protection, period. “As unionized construction workers supporting this Council bill, we are proud to stand as advocates on behalf of the sector’s entire workforce, regardless of race, ethnicity, gender and union or non-union status.”, Labarbera proclaimed in the article for Daily News New York.

Just a few days prior to Labarbera contributing his article to Daily News New York, a number of officials from the NYC Housing Authority released statements against the bill, reasoning that it would strip jobs from non-union construction firms, among other issues addressed.

Please see the articles below for more information.

City Council can protect NYC workers from construction accidents by mandating better training

NYC Buildings Department opposes bill requiring training program for construction workers

NYCHA tenants fear apprentice plan would create less diverse construction workforce

Independent contractors-similarities between celebrities and the average worker

The topic of workers’ compensation for athletes is an interesting one. When you consider that some athletes are technically independent contractors, workers’ compensation shifts from interesting to equal parts hazy and dangerous. With the 2016 football season well underway and the recent excitement over several anticipated UFC fights, one might question what happens if their favorite fighter or linebacker gets seriously injured after stepping into their respective battleground.

Take for example that football players in the NFL are employees but for certain teams, their cheerleaders are independent contractors. In this situation, the cheerleaders are not covered under the same workers’ compensation policies as the football players. Wrestlers for the entertainment company WWE and fighters for mixed martial arts promotional company UFC are both classified as independent contractors as well. If they get hurt, they are not subject to the benefits provided by workers’ compensation-medical care, compensation for recovery time, etc. This is done through their own medical insurance and they can not file a claim against their company for workers’ compensation or, in a worse case scenario, social security disability.

In respect to the fighting networks, this seems especially controversial. The fact that they are independent contractors takes a lot of responsibility and liability off the shoulders of the entity signing them.  In January of this year, WWE wrestler Nikki Bella underwent critical surgery on several vertebrae in her neck. The surgery was needed after a long history of repeating one specific move in the ring. She was in recovery for over 6 months, and it looked extremely likely that this would have been a career-ending injury. Swap out the celebrity and entertainment factors, and it’s what most normal independent contractors are concerned with when they go to work-house painters, Uber drivers, some electricians and plumbers, freelancers, and the like. Nikki Bella’s neck surgery could have been the average persons carpal tunnel, auditory issues, respiratory problems, or otherwise. However, actions are being taken to start protecting these kinds of workers. A bill was passed recently to protect freelancers living in New York City from wage theft.

The question of medical care for injuries is not the only thing that can be worrisome for this type of worker. They are under no obligation to be afforded the same rights as an employee would be, period. In an article on CNN Money, a group of fighters from UFC have attempted to sue the company for overreaching their authority over the individuals they contract, and treating them the way they would if the fighters were employees. In a lucky development for the fighters, UFC recently lost their appeal to have the anti-trust lawsuit thrown out. This same article states that UFC fighters and certain teams’ cheerleaders have a history of trying to unionize-albeit unsuccessfully. Again, if the celebrity fact

Please see the article below for more information.

UFC fighters get in the ring, but they’re not employees

Former NFL players sue the league demanding workers’ compensation for brain injuries