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!

 

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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

Delegate Handbook-Your Source For Workers’ Compensation Information

Linked below is our recently updated Delegate Handbook-a resource for all employees, and those who help give those employees a voice. This is also on our home page for quick and easy downloading.

This downloadable handbook breaks down general information and topics of Workers’ Compensation, Social Security Disability, and NYCERS pensions. This will be updated on a regular basis, as the legislation and environment around workers’ compensation and SSD changes. The most recent update to the handbook has been information surrounding the recent extension for filing WTC12 claims. The section contains information about the extension, an updated WTC 12 form as well as registration of participation form, and helpful tips on how to file WTC 12 related claims. This is also supplemented by several other forms a claimant will need to when filing forms such as the C-3 Employee Claim form and the C-3.3 Limited Release of Health Information form, located in the first section of the PDF. This handbook also contains a section for PBA members, with Bureau of Justice Assistance Factsheet and bulleted information about PSOB death claims and disability claims. This was made available to website visitors just this month! Previously only available as a hard copy, it is now available to the public.

This was made with you in mind.

Delegate Handbook-September Edition

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Progresso To Close Plant In Vineland, NJ-Measures Made To Protect Workers

General Mills announced recently that its Vineland, New jersey location will be closing by the summer of next year. The General Mills/Progresso Plant closure is going to greatly effect the Vineland area-close to 400 jobs will be lost in an already stricken by high unemployment. The United Food and Commercial Workers Local 152, a union that represents the plant, has made sure workers effected by this will be protected. Severance packages have been agreed upon between General Mills executives and union members. “The severance packages include improved pension accruals and a stipulation that General Mills/Progresso will continue to contribute to the workers’ health care trust fund after the plant closes at the end of summer 2017. 
Local 152 represents 270 of the 370 workers at the plant.”, states an article from Laborpress.org. Several sources assure workers that this was not a result of labor costs, but instead was a result of relocating the plant. “We never believed this was a decision made on labor costs,” String said. “And based on numbers we’ve seen, again, I believe that now.”, String says in another article posted in TheDailyJournal.com. The Local 152 is also taking further measures to help its workers, such as setting up job fairs and looking for potential businesses to by the plant.

Please see the links below for sources and more information.

UFCW Negotiates Progresso Plant Closure
Progresso Facility Officially Leaving Vineland, Taking 370 Jobs With It
It’s Official: Vineland Progresso Plant to Close Next Summer

Struggles & formalities for 9/11 Responders

“Far too many people are being denied when they’re truly sick or injured,” said Sean Riordan, an attorney specializing in New York State and New York City disability law. “The biggest problem is most of these municipal employees have already been found disabled by their employers … Most of these people are going to end up being out with no income other than workers’ compensation.”

A conviction on behalf of all workers said by one of our very own-Mr. Sean Riordan, in an article written on NBCNews.com. The article is the story of Sal Turturici, a man who has been diagnosed with terminal liver cancer as a result of working at the Ground Zero site after 9/11. The former EMT wants to speak out for those who don’t get the proper coverage they need. Even though there is legislation in place that is supposed to help those who got sick in the line of duty during or after 9/11, some are still not being given the proper care.The article below concerns some of the details in the WTC Disability Law-particularly the dates of an individuals time working during the aftermath of the attacks.

Another similar story is that of Thomas McHale. He is a former member of the FBI, CIA, and Detective for the NYPD who has been waiting almost a year and a half for his disability pension. 9/11 would not be his first brush with death, or even his first encounter with a terror attack. Upon submission of his medical documents, it was found that McHale needed to provide further medical information for his illnesses. Although submitting his paperwork close to a year ago, his case is still pending.

Both of the stories mentioned are linked below. On top of the well over 2,000 lives that were lost that day, countless survivors are still suffering from illnesses resulting form their bravery at Ground Zero. The complexities of the various laws that were put in place to help survivors and their families make it even harder for them to get the care and coverage they need.

Endless Attack: Sick 9/11 Responders Still Struggle to Get By

“Slap in the face:’ 9/11 hero who fought terror overseas is now ill, but state won’t grant disability pension

Problems for Correction Officers

jail prison cell and bars

New Appellate Case Raises Problems for NYC Correction Officers’ Disability Pensions

By: Sean Patrick Riordan, Esq.

Partner, McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP.

Correction Officers have a tremendously dangerous job, each day confronted with the most hardened criminals in our justice system. Based on this danger New York’s governing bodies have put in place protections for Officers who become permanently disabled due to their job duties. Correction Officers in New York City, New York State and those in the County jails have ¾’s disability pensions available to them if they become permanently disabled from full duty resulting from an “act of an inmate.” A frequent question that arises in Correction Officer ¾’s cases is: What legally constitutes the “act of an inmate?” Over the course of the last year New York State and County Correction Officers have been able to procure good legal decisions solidifying their ¾’s rights. However, a recent decision in the New York State Supreme Court Appellate Division, Second Department has greatly challenged the rights of NYC Correction Officers ¾’s benefits.

It’s important to understand that two different appeals courts cover the two different pension systems, the New York City Employees’ Retirement System (“NYCERS”) and the New York State & Local Retirement System. When a City Correction Officer is forced to appeal a ¾’s denial such denial will be appealed to the Appellate Division, Second Department (“2nd Department”). When a NYS/County Correction Officer appeals a ¾’s denial their appeal goes before the Appellate Division, Third Department (“3rd Department”). The two courts now have vastly different stances on what the “act of an inmate” is for ¾’s purposes.

The 3rd Department has considered the “act of an inmate” clause several times over the last decade. Initial decisions narrowed the clause to include only “direct interactions” between the inmate and the Officer. The Court further limited the act of an inmate to exclude “benign inmate chores” such as mopping etc. In doing so the court recognized the legislature’s intent behind the ¾’s bill was to protect Officers from the unique dangers presented in the prison/jail setting, not simple accidents that arise from some inmate responsibilities. As Officers and their attorneys began to worry that the “act of an inmate” clause would be so narrowly interpreted as to be almost meaningless, the 3rd Department issued its decision in Naughton v. DiNapoli finding that injuries that flow directly from the “unruly and combative” actions of an inmate are covered for ¾’s purposes. In DeMaio v. DiNapoli the 3rd Department importantly stated that “act of an inmate” does not have to be intentional, but instead that there is some affirmative act of an inmate that lead to an Officer’s injuries. The importance of this decision cannot be overstated as having to prove the inmates’ intent to hurt the officer would be extremely difficult in many cases. Further, such a reading of the statute would provide incentive for inmates to hide their intentions. This is now the problem faced by New York City Correction Officers.

The 2nd Department recently upheld the Brooklyn Supreme Court decision in Jones v. NYCERS. In Jones an Officer “suffered an injury to her shoulder and elbow when an inmate pulled a cell door which she was opening with the cell key.” On initial appeal the Brooklyn Supreme Court found that NYCERS did not act “arbitrarily or capriciously” in finding that the incident did not meet the standards of the “act of an inmate” clause. The ruling relied on the legislative intent behind the ¾’s bill without specifying why the inmate’s actions towards the Officer did not meet such intent. On appeal to the 2nd Department, the Court found NYCERS determination was not “arbitrary and capricious” and was based on “some credible evidence”, two legal standards that attorney’s face when bringing these appeal actions.

Under the 3rd Department’s standard it can clearly be argued that the incident in which Jones was injured constitutes an “act of an inmate.” There was a direct interaction between the inmate and Jones, and the inmate’s actions can be established as “unruly”, if not “combative”, as well. The 2nd Department’s decision now leaves us with the unenviable position of potentially having to prove an inmate’s intention to harm the officer with their actions, not a good position for New York City’s Boldest.

There is one potential savior, the 2nd Department did not address whether NYCERS interpretation of “act of an inmate” clause constitutes an “error of law.” In DeMaio, the court specifically found that the Retirement System committed error of law in its interpretation of the “act of an inmate” provision, unjustly placing an additional burden on the applicant of having to prove the intent of the inmate. If NYCERS now follows the Jones decision, we will be forced to challenge their interpretation of the “act of an inmate” clause as an error of law necessary of overturn. We will fight diligently to protect NYC’s Correction Officers ¾’s benefits.

To best combat this decision on a day-to-day basis, officers should be cognizant of specifically noting their direct interaction with the inmate that caused their injury. “Unruly” and “combative” behavior by the inmate should be specifically noted in the Injured Employee Report. For instance, in Jones, the NYCERS Board of Trustees noted that there may have been a different outcome if the “contemporaneous documentation” had noted that the inmate “intentionally” pulled the gate, rather than “accidentally” which was actually noted in the initial reports. Statements that help the reader capture the volitional, combative and/or violent nature of the interaction potentially help us on the ¾’s if needed later on. The general rule of thumb is do not assume the inmate’s intent, either good or bad, in your report, merely the factual circumstance that led to an injury.

If you have any questions regarding your ¾’s case, or an injury in general, don’t hesitate to contact me anytime at 212-612-3198.

 

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