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

Is there a connection between safety and union vs. non union jobs?

Is there a relation between the recent spike in construction accidents and whether or not these are union or non-union projects? New York City officials want to know. A working theory is that this is because of a difference in union vs. non-union safety regulations. Damning statistics show that not only that more projects in the city are coming from non-union companies, but also that work related accidents in the construction field have gone up in the past two years. This has been highlighted after the recent spike in housing construction in the city. This is coupled with a rise in things like work-stop orders and recorded injuries. Officials are asking that sites and accidents start being recorded as union or non-union to create a way of monitoring the theorized source of these accidents. “The number of construction site incidents increased over the past two years, with 433 accidents and 471 injuries on work sites last year, according to Department of Building figures cited by the New York Daily News. That’s around double what it was in 2014. The city also counted 12 construction site fatalities last year, up from eight in 2014.”, as quoted from an article on The Real Deal, a New York Real Estate website.

Please see the articles posted below for more information.

NYC official urges city to classify construction site accidents as union or nonunion
WSJ: NYC construction unions ‘losing their grip’ on private market
EXCLUSIVE: NYC urged to release info on construction accidents to show whether union jobs are safer
Council committee wants city to record data on accidents at union, nonunion sites

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

2016 Social Security Changes

2016 Social Security Changes Fact Sheet

At McIntyre, Donohue, Accardi, Salmonson, and Riordan, LLP., one of the legal services we provide to clients is helping them obtain Social Security Disability benefits. With changes in the law occurring yearly at best, its hard to monitor what you are qualified for and how much you are paying.

Linked above is a downloadable PDF of the most current Social Security Changes Fact Sheet, provided by the Social Security Administration’s website. It addresses Cost of Living, tax exemptions, disability thresholds, and retirement benefits. According to the fact sheet, the tax rate for employed and self-employed individuals has not changed; however, the disability threshold has gone up. This is particularly important to what we do and what our clients need. According to the SSA website, a worker as young as 20 has a 25% chance of becoming disabled before fulfilling the 40+ years of work they would have before retirement. What could happen as this individual’s experience grows in their line of work and they perform more complicated tasks? One would think that the more complicated the task, the risk for an accident becomes greater.

If any of this applies to you, this would be extremely helpful to read. Related content can also be found in our Delegate Handbook linked on our homepage.