Mayor to close GMDC at Rikers

NYC to Close One Jail on Rikers Island This Summer

First Rikers Island jail to close in summer as part of city’s 10-year plan to shut down the complex

Mayor de Blasio’s plan to close Rikers Island will break ground this summer at the George Motchan Detention Center. Officials working with Mayor said GMDC was chosen as the first due to structural reasons.

The Rikers Island jail population takes up the lion’s share of the citywide jail population-roughly 7,000 to the city’s almost 9,000. The Mayor had little to say about how a large spike in violence in 2017 ran concurrent to the downsizing. Closing the jail would create astronomical problems for inmates and CO’s alike, and already has.

In a statement from our partner, Sean Riordan, Esq., “In the Mayor’s continual attempt to close Rikers Island he has announced the pending closure of GMDC. This closure can only be viewed as creating a greater risk to the personal safety of Correction Officers throughout Rikers Island. As attacks on officers have risen drastically in 2017, further crowding of existing facilities will create untold dangers for officers in 2018 and beyond. The “re-thinking” of the city’s jail system should not be done at the expense of officer safety.”

“With vicious assaults on correction officers occurring nearly every week, along with a near 30% increase in inmate-on-inmate slashings and stabbings department-wide, we had hoped Mayor de Blasio would have announced a plan today to make the jails safer,” said Correction Officers’ Benevolent Association President Elias Husamudeen.”, quoted from NY Daily News.

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 more being done 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

Continued battle for 9/11 First Responders benefits

Recently, the civil service publication The Chief Leader published several articles discussing the state of 9/11-related disability claims being processed at NYCERS. Statistically, WTC Disability claims are on the chopping block. More are being denied than approved, and the ones that are usually denied take years to be evaluated. Other issues at hand are transparency during the process of filing and overall treatment of claims and claimants by the Medical Board.

Our partner, Sean Riordan, Esq. and several other WTC Disability advocates met with the leading members of NYCERS to address the sluggish turnover rate, the unfortunately high denial rate, and ways to fix the two. Though issues of the handling of claims and claimants is still present, the meeting was regarded as positive:

“On Dec. 7, Melanie Whinnery, the system’s Executive Director, and Ilyse Sisolak, its General Counsel, met with John Feal, founder of the FealGood Foundation, Sean Riordan, legal counsel for the FealGood Foundation, Ben Chevat, the executive director of 9/11 Health Watch, and attorneys Matthew McCauley and Michael Barasch, who specialize in WTC disability claims.

Also in attendance was Dr. Michael Crane, the medical director at the WTC Health Program Clinical Center of Excellence at Mount Sinai. The meeting lasted 90 minutes.

Both sides were upbeat about the value of the meeting and the prospects for finding common ground going forward. The 9/11-disability advocates presented NYCERS with a four-page memo obtained by this newspaper that highlights dozens of areas where the process could be more transparent and less adversarial, according to the advocates.”, as quoted from the article linked below.

NYCERS, WTC Disability Advocates Meet About Improving Responsiveness

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.

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.

NYPD’s ShotSpotter yields positive results

NYPD is reporting that the gunshot-locating technology ShotSpotter has helped lower shootings throughout Brooklyn and the Bronx. An article on nydailynews.com grants a number of accomplishments as a result of the technology: “The rise comes as both arrests by police and complaints against officers are down substantially while the department adheres to a new policing philosophy that stresses a closer relationship between cops and the neighborhoods they serve.” Another triumph is noted by the same article, stating that, “…34% of shootings detected by ShotSpotter also resulting in a 911 call, according to 2016 statistics.” The technology can detect acoustics and is able to differentiate between gunshots and other loud noises that typically come with living in The Big Apple.

The implementation of the technology was a move to help officers and community members. With a possible federal budget cut looming, this program cannot afford to be lost considering its results. The technology draws a picture of how many detected shots are called into 911 and how many aren’t. The data collected will tell cops how New Yorkers are responding to shootings. Not only has it statistically cut the number of non-reported gunshots almost in half, but it also draws a clearer picture of shootings. Nearly all ShotSpotter-detected shootings that were associated with a 911 call resulted in a weapon being obtained from the crime scene. More weapons are being collected and more calls are being made as a result of this technology. According to an article posted on NY1.com the year the technology first implemented, it covered three housing districts and 17 precincts. It has doubled in reach since then.

This technology has been in place for about two years, but the improvements in the data are new, as well as the plan to expand this technology to all five boroughs.

NYPD: New ‘ShotSpotter’ Sensors Automatically Detect Location of Gunfire

EXCLUSIVE: NYPD ShotSpotter gunfire sensors improve rates of 911 calls, arrests

 

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

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

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

Please see the articles below for sources and further information.

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

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

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

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

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

 

New WC bills put worker at risk

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

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

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

Assembly Bill A5977

Assembly Bill A6218

Assembly Bill A6602

Workers’ Compensation Petition