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.

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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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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After Six Years, Airport Employee’s Widow Receives Workers’ Comp and Death Benefits

A New York State Appeals Court recently ruled that the widow of an airport employee who suffered a heart attack on the job is due workers’ compensation and death benefits. The decision concludes a six-year battle between the claimant and her late husband’s employer.

On December 14, 2010, Edward Kilcullen, who worked as a process operator at Albany International Airport’s glycol facility — which produces the liquid for deicing aircrafts — collapsed on the job after sustaining a myocardial infarction. He suffered brain damage as a result and never regained consciousness. He died seven days later.

Rita Kilcullen, Mr. Kilcullen’s wife, filed claims for workers’ compensation and death benefits, but was denied by both her late husband’s employer and the employer’s insurer. After a series of hearings, a Workers’ Compensation Law Judge ruled that Mr. Kilcullen’s work “contributed” to his heart attack and that his “death arose out of and in the course of his employment.” In March 2014, the Workers’ Compensation Board agreed with the judge; the employer appealed the decision.

On April 21, 2016, a three-judge panel of New York’s Appellate Division, Third Judicial Department, in Albany affirmed the board’s decision. The court cited in its decision a finding from a doctor who reviewed Mr. Kilcullen’s medical records and concluded that the employee’s work environment and his work-related activities were “significant contributing factors” to his heart attack and resulting death.

According to case law, “a heart injury precipitated by work-related physical strain is compensable, even if a pre-existing pathology may have been a contributing factor and the physical exertion was no more severe than that regularly encountered by the claimant.”

The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

Streamlined Prosecutions of Workplace Safety Violations Resulting from the Worker Endangerment Initiative

Recently, WorkCompCentral Workers’ Compensation and American Association of State Compensation Insurance Funds announced the federal government’s launch of the Worker Endangerment Initiative. This new program combines the prosecution of employer workplace safety and environmental violations. Often, employers who criminally violate the Occupational Safety and Health Act (OSHA), are also violating environmental laws at the same time. The initiative includes data sharing, joint investigations and streamlining the criminal referral program. The goal is to make it easier to prosecute environmental violations.

For one, the Environmental Crimes Section will be able to prosecute not only traditional environmental crimes, but also OSHA violations and other workers’ safety statutes. With this initiative, an employer can be charged with workplace safety violations, environmental law violations, and related offenses such as obstruction of justice and making false statements, in the same case. This will allow prosecutors to combine what would have been several cases into one, and make it more efficient to prosecute employers.

If you have been injured on the job, an attorney can help protect your rights. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

OSHA’s New Reporting Requirements Improve Worksite Safety

With the close of 2015, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has announced the results of the new reporting requirement which was implemented as of January 1, 2015. The new reporting guidelines require any severe work-related injury, including amputations, loss of an eye, or hospitalization, to be reported within 24 hours. The requirement of reporting a fatality within 8 hours remains unchanged.

Recently, WorkersCompensation.com reported on OSHA’s 2015 data on work-place-related injuries. Employers submitted a total of 10,388 cases of severe injuries in 2015. Out of the total, 7,636 were hospitalizations and 2,644 accounted for amputations.

Taking it further than just mere numbers, OSHA implemented the program in order to create safer workplaces. After a report comes in, OSHA works to identify what the hazard is, and what measures the employer can take to remedy it. Most of the cases reported in 2015 did not require a worksite inspection, which is conducted when OSHA deems it necessary.

If you are a worker who has suffered injury due to an employer’s failure to follow safety regulations, you may be entitled to Workers’ Compensation. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, represents individuals who have been injured on the job throughout the five boroughs of New York City including Manhattan, the Bronx, Brooklyn, and Queens, as well as both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

Frequency of Workers Compensation Claims Decline While the Severity Increases

According to Insurance Business America, over the past ten years the number of workers’ compensation claims is decreasing, but the severity of the injuries reported is increasing. Milliman and Keenan Healthcare analyzed workers’ compensation data and compiled a report showing frequency, severity, and medical and indemnity costs. They considered how reforms may affect the numbers as well. One of the main findings was that losses per $100 of payroll was stable between 2004 and 2014, but during roughly the same time period, the severity of claims increased by approximately 5.5 percent annually. There are ongoing efforts to not only reduce the number of claims, but also the severity.

Additionally, the report showed that from 2013 to 2014, estimated costs per indemnity claim decreased by about 10 percent. In fact, the study showed that younger workers tend to spend more in medical care as compared to other costs, while older workers have larger indemnity losses with about 20 to 25 percent of claims ending up in litigation. Employees between the ages of 36 to 55 approximated more than 50 percent of the indemnity claims paid. Data also showed that the severity of indemnity claims increases with age, and the likelihood of an incident resulting in an indemnity payment rises as well.

In order to remedy the frequency and severity of claims, there is an ongoing effort to improve workplace safety. For example, Workers Compensation reported that the Occupational Safety and Health Administration published a final rule on the requirements for personal protective equipment, which takes effect on April 25, 2016. The new rules dictate that more modern and improved eye and face protection should be used in the fields of longshoring, construction, marine and shipyard industries, and other general industries. Multiple outdated devices, as old as 1968 versions, were deleted and replaced with current acceptable standards.

If you or a loved one has been injured on the job, a skillful workers’ compensation attorney can better guide you on how best to file claims. An attorney can help protect your rights and help preserve your coverage. The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP handles workers’ compensation claims throughout the five boroughs of New York City, including Manhattan, Brooklyn, Queens, and the Bronx, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.