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

FDNY opposes plan to remodel WTC Health Program

The FDNY has come out in opposition to a new plan that would remodel the WTC Health Program, a detail hidden in the upcoming Federal Budget for 2019. As it stands, the WTC Health Program is a part of the National Institute of Occupational Safety and Health, which is a part of the Center for Disease Control.

“The budget carves NIOSH out of the CDC and places it within the National Institutes of Health, but leaves the WTC Health Program within the CDC. But NIOSH and the WTC Health Program share many employees — and those workers would move with NIOSH, critics of the plan say.”, notes an article written on Firehouse.com, linked below.

It would remove a health program made for those who worked during a national emergency from an institution that specializes in occupational health. The statistic for denied disability claims is staggering, and the need for the stability of these kind of benefits goes without saying. According to the CDC, the age bracket effected with the highest rate of enrollment in this program were first responders between 45 and 64-or, to put it more clearly, those closest to retirement who are already in need of benefits. There has already been a greatly documented history of first responders having difficulty obtaining disability benefits from the City Retirement System. Restructuring this program would only exacerbate the problems that already exist.

According to an article posted about this same change on The Chief Leader, not only would this budget change be “inconsistent with the legislation mandated by the Zadroga 9/11 Health and Compensation Act of 2015”, but it is also regarded as a “blueprint for radically squeezing domestic spending on safety-net programs and things like occupational health.”

The shifting of leadership and resources would drastically change the way that those protected under this health program receive medical benefits, and what medical care they would receive as well.

FDNY Union Blasts Trump Budget for WTC Health Proposal

Predict Problems for First-Responders

Jon Stewart, lawmakers slam Mulvaney proposal on 9/11 health program

NYCERS: Why are more WTC Claims being denied than approved?

A number of news publications in New York have released articles begging the same question: Why isn’t NYCERS doing more for workers who were involved in 9/11 rescue, recovery, and clean-up operations?

The links below aren’t the first of the articles. It goes without saying that one article written about this is one too many. They all come to the same conclusion, stating that NYCERS isn’t doing enough to look at, or even consider, 9/11 Disability cases. Statistically, more of these claims are being denied than approved-that is if claims are looked at in any reasonable amount of time. Workers affected in the Battery Park neighborhood were given the right in November to sue the Battery Park City Authority for not working faster with their claims. No one should have to sue their city to be able to receive benefits for working under such tragic conditions. One FDNY EMT’s claim was denied twice, written about in an article linked below. An article written by The Chief Leader described a “lack of coordination” between NYCERS and the Victims Compensation Fund.

These are six articles from 3 different publications, all ending with the same answer: There is no rhyme or reason why more isn’t being done for those who have sustained 9/11-related illnesses.

Labor Department denies ex-OSHA inspector workers’ compensation as other agencies accept his 9/11 illness

NYCERS, WTC Disability Advocates Meet About Improving Responsiveness

Stop stalling on WTC sick: U.S. Labor Department and NYCERS are failing 9/11 victims

City is denying 9/11 first responders disability pensions

WTC Health Program Doctor Concerned About Benefit Denials

9/11 Cleanup Workers Can Sue Over Health Claims, Court Rules

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.

Another Reminder That Initial Injury Reports Matter, Do Them Properly!

ANOTHER REMINDER THAT INITIAL INJURY REPORTS MATTER, DO THEM PROPERLY!

By: Sean Riordan, Esq.

Each and every time that I speak to union members throughout New York I harp on the importance of properly filling out the initial injury reports following an on-the-job occurrence. Recently a member said to me that they had “heard me give this speech a hundred times” to which I replied, “it’s as true today as it was the first time you heard it.” Helping me prove my point, just last month the Appellate Division again affirmed the tantamount importance of a Correction Officer’s initial injury report in the case of Hernandez v. New York City Employees’ Retirement System (“NYCERS”). While the lesson may be old and repetitive, it bears repeating.

In Hernandez v. NYCERS a NYC Correction Officer claimed to have been injured when an “inmate pushed her.” Ordinarily, this “act of an inmate” is sufficient to qualify a Correction Officer for a three-quarters (3/4’s) disability pension. However, as we have seen many times, NYCERS denied the Officer’s ¾’s application because the “contemporaneous documentation”, i.e. the initial injury reports, did not mention that the officer had been pushed by the inmate. The Court specifically wrote:

“Contrary to the [officer’s] contention, [NYCERS] was not required, as a matter of law, to credit her testimony that her injury occurred when she was pushed by an inmate. Indeed, her testimony conflicted with the account of the accident that was given in written reports that were prepared in connection with the incident. Inconsistencies between a petitioner’s sworn testimony and written documents present a credibility issue for the factfinder to resolve.”

Put plainly, this means that NYCERS does not have to accept as truthful a later, not previously documented description of how an injury occurred. It also means that the Court gives NYCERS extreme deference in determining which version of events they choose to believe, the initial injury report descriptions or a subsequent description of the occurrence. It is no secret which of these two choices NYCERS will choose. In fact, the NYCERS Summary Plan description for NYC Correction Officers explicitly states:

The NYCERS Medical Board and Board of Trustees are likely to believe that disability reports filed as soon as possible after an accident or other event have greater credibility than reports filed after a delay.”

Importantly, the credibility that NYCERS gives these reports is not contained to the inmate’s actions, but also to injury sites. NYCERS will look to these initial injury reports to determine what was injured during the inmate occurrence. If the initial reports do not contain the injury site that now disables you, NYCERS will not consider the injury related to the occurrence. Far too often officers feel extreme pain in one area of their body following an occurrence and only “minor” pain in others. Although the officer fully documents the area that is causing them a lot of immediate pain, they fail to include these other “minor” areas in their reports. Unfortunately, these other “minor injuries” frequently become more severe over time but NYCERS will not consider them related to the occurrence because they were not documented at the time of the injury.

Hernandez also makes clear that the “action” of an inmate is important when determining if an officer qualifies for ¾’s. The Court stated that “the mere fact that the [officer] was injured while she was in the presence of an inmate, or while she was engaged in providing a service for the benefit of an inmate, is insufficient” to qualify for ¾’s coverage. The courts have held that an inmate must perform an “affirmative act” that leads to an officer’s injury in order for coverage to apply.

Two simple rules emerge from the Hernandez case and other cases like it:

1) If an inmate was involved in your injury, fully document what action the inmate took that led to your injury. Fully describe what the inmate did that caused you harm;

2) Take a physical inventory or your body following an occurrence and document each and every body part that hurts in the initial paperwork, don’t overlook an injury site simply because you believe it is “minor.” If it hurts, put it down.

Lastly, if you fail to fully describe how the inmate caused your injury, or failed to put an injury site down on the initial injury report, you can and should use your filings with the NYS Workers’ Compensation Board to correct the record. Understandably, immediately after an injury officers are consumed by the pain they are feeling and/or are anxious about the events that just transpired. This can lead to mistakes/omissions in the initial injury report filled out for the Department. This is why filing your NYS Workers’ Compensation Forms as soon as possible after an occurrence is so important. If filed immediately after an injury, these reports can also be viewed as “contemporaneous documentation” of an event or injury. Use these forms to also fully explain the events that led to your injury and any additional sites of injury which you may have neglected to put down on the initial reports.

As always, if you have any problems, issues, concerns or questions I am always here to discuss the case with you. You can reach me any time at (212) 612-3198 or Sean@nycomplaw.com

Stay Safe!

 

Attorney Advertising.

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

Workers’ Compensation & Sole Proprietors

A sole proprietorship is defined as a business owned and operated by one person. As per the New York Workers’ Compensation Board, the following points apply to people who are sole proprietors of a business:

  • If a sole proprietor doesn’t have employees, they can apply for workers’ compensation coverage but are not legally required to have it.
  • If they do have employees, they are initially excluded from this coverage. However, they can have themselves “elected” to be covered. In order for this to happen, the sole proprietor would have to file a C-105.32 with the insurance carrier.
  • A sole proprietor would be considered an employer.  If they choose to hire individuals to work for their business, need to have themselves elected out of the coverage they are currently under (if they are insured). This is different than a person hiring an independent contractor for a service. The individual seeking the service is not considered to be the employer of the person providing the service.

Etsy, an online marketplace, allows individuals to buy and sell various handmade and vintage goods. It started 12 years ago and had a reported 10-1 ratio of buyers to sellers at the end of 2014. This service is massively popular and is a great way for an individual to start their own business. Since sellers on the website are not “employed” by Etsy, who should they turn to if they get hurt while creating goods for their shop? This is a rather important topic if one considers the massive uprising of entrepreneurial businesses in general, not just online marketplaces. If someone has such success with their sole proprietorship or entrepreneurship that it becomes their main source of income, they should absolutely apply for workers’ compensation insurance. Mainly due to the fact that personal health insurance is not obligated to cover accidents that happen as a result of work, or in a workplace. Hospitals also typically ask how the injury happened. If a carpenter who owns their own business is building something for a paying customer and sustains a nasty injury, they wouldn’t need to pay out of pocket for their medical care. They would also get compensated for time lost from working on the goods they build or services they provide. If a persons’ entrepreneurial venture stands for the lion’s share of their income, this would be particularly important. According to an article on the Forbes website, linked below, the number of single-person businesses jumped nearly 4% between 2013 and 2014.

The standards for sole proprietorship and workers’ compensation are determined at the state level, so this could differ from one state to another. If you are a sole proprietor and are seeking workers’ compensation, make sure to check with your state’s workers’ compensation system!

How Visionary Entrepreneurs Are Creating Million-Dollar, One-Person Businesses

 

 

 

 

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

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