Sean Riordan’s Successful Appeal on Behalf of Nassau County Correction Officer Reported by The Chief-Leader

Sean Riordan, a partner with McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP, was interviewed by The Chief-Leader on the successful appeal of a case in which his client, a retired Nassau County correction officer, was initially denied the ability to collect disability retirement benefits.

Ronald DeMaio sustained a lower back injury after trying to break up a fight between an inmate and a fellow correction officer who was searching him for contraband. Officer DeMaio attempted to escort the inmate down a stairwell, but the inmate pulled away from him.

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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.

When Volunteer Firefighters and Ambulance Workers Get Injured

Many municipalities in New York State have volunteer firefighters and/or ambulance workers. The communities appreciate the dedication and passion the volunteers show, and the legislature has acknowledged those that are injured in the line of duty by passing laws to protect their rights. The Volunteer Firefighters’ Law was enacted in 1957, and the Volunteer Ambulance Workers’ Law came much later in 1989. These laws allow for medical care and cash benefits to be awarded to the volunteers injured on the job, unless the injury was caused by intoxication or if the claimant was intentionally hurting oneself or another.

Receiving benefits can be challenging because of the deadlines, hearings, and appeals process. Seeking the advice of an experienced workers’ compensation attorney could make the difference in whether an injured volunteer is properly compensated or not.

One of the challenges is determining whether the injury occurred “in the line of duty.” Some situations are easily identified—such as responding to a 911 call or during training. Other injuries, such as an illness caused by smoke or chemicals exposed to when volunteering, can require a more skilled analysis to determine whether it falls within the statutory guidelines.

Another fact-intensive analysis involved is in calculating the claimant’s earning capacity. Each claimant is analyzed on an individual basis because there is no standard salary associated with the volunteer firefighter and ambulance services. Age, education, training, and experience are all factors to be considered, even if the volunteer is unemployed at the time of injury.

The New York State Compensation Board may hold hearings to weigh evidence and whether the claim is compensable. A workers’ compensation law judge presides over the hearing. After the judge’s decision, both parties have 30 days to appeal the judge’s finding, and if granted, the claim will go before a panel of three board members. If the panel does not come to a unanimous decision, a party may request a full board review as a last resort.

Retaining an experienced workers’ compensation attorney can help guide you through the workers’ compensation claims process. 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.

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Workers’ Compensation Claim Complexities

Maneuvering through the workers’ compensation claim process can be confusing. Seeking an experienced workers’ compensation attorney can assure you that recent laws and policies regarding claims are not overlooked.

In workers’ compensation cases, it must first be determined whether workers’ compensation law actually applies. The injured worker must fall into specific categories and meet the criteria needed to be considered an employee or an agent of the employer. As with many areas of the law, there are exceptions, such as clergy who are performing religious duties, volunteers at nonprofit organizations, certain foreign workers, employees who fall into an independent workers’ compensation system for their trade, and so on.

Additionally, there are several factors that must be taken into account in determining employee status, including the right to hire and fire the individual, whether there is a right to control (as in an employer-employee relationship), the character of the task performed, and the manner of employee compensation.

After it is determined that the worker is an employee of the company or business entity, multiple steps must be taken in a timely manner. The employee must notify his or her employer in writing about the injury, file a C-3 claim form and mail it to the Board District Office. There are also forms that the employer must submit to the insurance company and the Board within a certain timeframe.

Bennett v. Roman Catholic Diocese of Rockville Centre is an example of the complexities a workers’ compensation case may present. On January 25, 2010, an employee of the Roman Catholic Diocese of Rockville Centre fell from a ladder and suffered serious injuries. The employee was a maintenance worker and not performing religious tasks, so he qualified as an employee. The employee sought medical treatment soon after the injury, filing a claim for his left leg and back. Two years later the claimant started to have new pain in his neck and lower back and had an MRI of his cervical spine. After the MRI, it was recommended that claimant undergo surgery on his cervical spine. The Workers’ Compensation Law Judge found that surgery was barred because the claim arose after the two-year time limit and was only “casually-related” to the claims which were filed earlier on his left leg and back.

Workers’ Compensation Law § 28, requires that a claimant file within a two-year time period from the date of the accident. The MRI and recommendation for surgery occurred in March of 2012, past the two-year time limit. Additionally, the court reviewed the facts and the claimant’s testimony regarding the timely filings and the new pain, and found that they were only slightly related. The New York Supreme Court, Appellate Division for the Third Judicial Department, affirmed the lower decisions and found for the employer based on the procedural timeliness rule.

Bennett v. Roman Catholic Diocese of Rockville Center highlights the importance of following procedures to meet strict statutory deadlines. Employees may not know how future injuries will be categorized by Judges. Skillful workers’ compensation attorneys can better guide employees on which claims to file and how to link future related injuries to original claims. An attorney can help protect your rights and help preserve your coverage should further injury stemming from an accident become known later. 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, the Bronx, and Staten Island, in addition to both Nassau and Suffolk Counties on Long Island. Call (866) 557-7500 for a consultation.

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Can an Employee Receive Workers’ Compensation for Company Holiday Party Injuries?

Many employers choose to host holiday parties for their employees as a way to reward their efforts throughout the year.  The kinds of celebrations an employer chooses to host can vary.  Sometimes the parties are held at an off-site location.  They may also be held at the place of employment.  The party may be held either during company hours, or afterward.  Depending on the circumstances surrounding the party, employers may incur liability in a number of ways.

Some employers are concerned with the liabilities associated with hosting a company party at which alcohol is served.  For example, an employer may ultimately be responsible for any injuries that occur to an employee that could result in Workers’ Compensation claims.  A common scenario from which holiday party injuries can arise are slip and falls due to spills or intoxication.

An employee may be able to receive Workers’ Compensation for injuries incurred during the scope of their employment.  Therefore, if holiday party attendance is required of employees, and any business is being conducted during the party (such as speeches about matters pertaining to the company’s business, or awards being distributed), an employee may be able to successfully argue that the party was part of their work responsibilities.  Additionally, if the party was held at the location of the company, an employee may reasonably believe that the party was in conjunction with work.

You may not be able to receive Workers’ Compensation benefits for an injury if your employer specifically states that participation in the festivities is optional, and the event is hosted off-site outside of the company’s business hours.  Additionally, if you are not expected to perform any tasks at the party that benefit your employer, the party likely falls outside the scope of your employment.

If you have been injured at a holiday party hosted by your employer and think you may be entitled to Workers’ Compensation, contact an attorney who is experienced in that field.  The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County.  For a consultation, call (866)557-7500.

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New York Times Expose Reveals Construction Site Safety Violations Linked to Completely Avoidable Deaths and Injuries in New York City

A recent New York Times expose has shed light on the rise of injuries and fatalities in New York City’s construction industry over the last two years.  The investigation found that although construction is increasing throughout the City, the rate of accidents is disproportionate to the new construction.  While the rate of new construction projects increased by 11% in the last fiscal year, the rate of accidents increased by 52%.

Additionally, the investigation uncovered that the same safety violations kept arising on many of the same sites despite safety reports and lawsuits.  After investigating construction accidents for two years, the New York Times concurred with the findings of a federal investigation and determined that many of these fatalities and injuries were “completely avoidable.”

Most of the deaths and injuries that occurred on construction sites affected undocumented immigrants who may be fearful to speak out against safety violations on construction sites due to their legal status. The Times cited one recent tragedy in which an immigrant had fallen 140 feet to his death because he was not wearing a safety harness.  Additionally, guardrails had not been installed at the site, and the elevated platform did not meet the wall as required.  Investigators found that the worker had fake certification for safety training.  The safety administration fined the construction company $42,000 for these and additional violations.

While the accidents that occurred in midtown were widely publicized, they accounted for only a quarter of the accidents throughout the city.  Most of the accidents that occurred took place on smaller sites that used non-union and poorly trained workers.

Other incidents that had occurred in the last two years that the Times referred in the expose included:

  • An immigrant worker falling 14 feet to his death due to lack of guard rails and supervision
  • An Ecuadorian immigrant who fell from a ladder because the construction company demanded jobs be done quickly and without safety training
  • A worker who fell through a floor opening due to slippery conditions that went ignored
  • A worker who was not wearing a safety harness fell two stories on a site that did not provide extension ladders and repair unsafe scaffolding

According to a report issued by the New York Committee for Occupational Safety and Health, many construction companies that repeatedly violate safety regulations disregard OSHA citations due to the low number of both OSHA inspectors and monetary penalties.  However, various agencies have begun cracking down on penalizing companies that disregard safety regulations.  For example, although criminality in construction accident cases has often been difficult to prove, the Manhattan DA’s Office filed manslaughter and other charges against two construction companies and managers last August.  The charges were filed after a worker was crushed to death as a result of willfully ignored safety regulations.  Additionally, the de Blasio administration is planning on implementing 100 additional building inspectors as well as new data tools and a code of conduct for the construction industry.  New York City’s investigation department also continues to conduct random inspections that it began in 2012 in an effort to deter the corruption that is so prevalent in the industry.

If you are a construction worker who has been injured on the job, you may be entitled to Workers’ Compensation.  Additionally, if you were injured due to an elevation related accident, you may be able to sue your employer and third parties under New York’s strict liability “Scaffold Law.”  Contact an experienced Workers’ Compensation attorney to discuss your claim. 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, the Bronx, and Staten Island in addition to both Nassau and Suffolk counties on Long Island.  Call (866)557-7500 for a consultation.

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OSHA Issues Violations to Cemetery After Grave Digger is Nearly Buried Alive

Recently, a cemetery worker in Long Island was seriously injured after he was nearly buried alive.  The worker had been digging a grave when excavated dirt had fallen back into the grave opening, burying him up to his waist.  The incident led to an OSHA investigation into the safety practices of the cemetery.

OSHA proposed a total of $123,200 in penalties for two willful and three serious violations.  The investigation uncovered that the cemetery had not implemented the OSHA required support system for trenching or excavation.  According to OSHA regulations, restraining devices must be implemented within two feet of the edge of a trench in order to keep the excavated dirt from falling back into the grave.  The worker’s injuries were a result of failure to implement such support systems.  Additionally, the investigation’s findings included discovering that equipment used for protective systems was damaged or defective; ladders used did not meet the height regulation; and grave slopes not meeting the proper ratio requirements.

Workers in the cemetery industry can face any number of injuries ranging from falls, injuries related to operating machinery or carrying headstones, as well as hazards related to trenching and excavation.  Essentially, digging at a grave site is an excavation like those performed in the construction industry.  In addition to the hazards workers face by the potentiality of a wall collapse without proper trench support, they can also be exposed to hazardous chemicals.  Workers should have their own personal protective gear such as hard hats to prevent head injury from falling rocks or dirt.  In addition, workers should wear respiratory protection to limit the inhalation of elements such as carbon dioxide, carbon monoxide, and methane that can appear in the soil.

An individual can suffocate as a result of being only partially buried in soil.  Therefore, it is extremely important to exercise all precautions and follow safety procedures when conducting any kind of excavation to prevent a cave-in.  To learn more about OSHA’s trenching and excavation regulations, click here.

If you are a worker who has suffered injury due to an employer’s failure to follow excavation or trenching 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, Queens and Staten Island, as well as both Nassau and Suffolk Counties on Long Island.  Call (866)557-7500 for a consultation.

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OSHA Cites Brooklyn Construction Company for Safety Violations Leading to the Death of Worker

Recently, a Brooklyn construction company has been cited for safety violations that led to the fatal fall of a 51 year old worker last April. The citations included one willful violation due to lack of fall protection and five serious violations connected to the accident. OSHA’s director of the Brooklyn area, Kay Gee, remarked that the tragedy could have been prevented with the lifesaving equipment the company knew was required.

The worker had fallen from the sixth floor of a building while raking concrete that had been freshly poured at an edge that was left unprotected.

Upon inspection, OSHA found that workers were not provided with the required fall protection gear, including harnesses and lifelines. Additionally, OSHA found that the construction company did not provide the necessary instruction to workers concerning minimizing fall hazards. The inspectors also found other hazardous conditions such as missing stairway guardrails, defects in the extension ladder, floor holes that were left unprotected, and debris from construction left in stairways and work areas.

The company faces $84,600 in proposed fines if it does not comply with OSHA’s requirements within fifteen days of being issued the citations.

Falls have happened too often on construction sites throughout New York City in the last year. They are the leading cause of death in the construction industry, and are entirely preventable with proper training, equipment, and planning. OSHA has launched a Fall Prevention Campaign to raise awareness of the safety issues when working at elevated heights.

If you have been injured in a workplace related accident, you may be entitled to Workers’ Compensation. Contact an attorney who is experienced in dealing with Workers’ Compensation claims. The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County.  For a consultation, call (866)557-7500.

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OSHA’S Susan Harwood Training Grants Help Provide Safety Training for High-Risk Workers

Safety training programs are integral to help protect workers in certain industries from the inherent hazards they face as part of their employment.  For the fiscal year 2015, the US Department of Labor’s Occupational Safety and Health Administration awarded $10.5 million in grants to 80 non-profit organizations nationwide to help educate workers who face high risks of injury.  The program is aimed at helping those workers who are employed by small businesses and vulnerable workers who face high-risk hazards on the job.  The grant program has provided training for over two million workers since 1978.

The purpose of the programs is to help workers gain the knowledge and tools to understand and recognize hazards in the workplace, learn how they can prevent injuries from occurring, and understand their rights.  The organizations that will be funded to provide the instruction include colleges, community groups, churches, labor unions, and employer associations.

Depending on the needs of the worker population, each nonprofit may provide either general safety courses, or educate on a selected topic that is relevant to the targeted audience.  For example, some of the programs provided by the grant include fall prevention in construction; workplace violence education; ergonomic hazards; construction in road zones safety; heat illness prevention; and agricultural safety.

An additional $2.3 million in grants will also be provided to fifteen organizations to develop and provide safety and health training on an on-going basis to workers and employers in the at-risk population.

If you have suffered injury due to a workplace accident, contact an attorney who is experienced in Workers’ Compensation claims.  Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866)557-7500.

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Proposed Rule Clarifies Employer’s Duty to Report Work Injuries

A rule proposed by The Occupation Safety and Health Administration (OSHA) would clarify an employer’s obligation in maintaining accurate records of recordable injuries and illnesses. Although the rule will not change which types of injuries and illnesses are recordable, it will clarify an employer’s ongoing duty to report.

The injuries and illnesses that mandate reporting and are considered “recordable” include death; injuries requiring more than basic medical treatment; loss of consciousness; injuries resulting in job activity restriction; and a diagnosis of a significant injury by a health care professional. OSHA provides specific forms to log the incidents which employers are expected to review annually to check for accuracy. The purpose of keeping such records is to ensure that employers are maintaining a safe working environment. Failure to maintain such records is a violation. The proposed rule clarifies that even if an employer did not initially report the injury, they are still required to report in accordance with their ongoing duty.

The proposed rule stems from the majority opinion in a recent D.C. Circuit case. The court held that “a citation issued later than… six months of the first day on which the regulations require the recording…is barred by the OSH Act’s statute of limitations.” Because the court considered the language in the OSH Act to be vague, it determined that there was no continuing obligation of an employer to report. The proposed rule clarifies that reporting an injury, illness or death is an ongoing obligation for a period of five years. OSHA may cite for a failure to report for up to six months after the period ends.

The proposed rule will be available for viewing and public comment from July 29, 2015- September 27, 2015. Click here to read the proposed rule.

If you have been injured in an employment related accident, or due to an OSHA violation, you may be entitled to receive Workers’ Compensation.

Contact an experienced Workers’ Compensation attorney who can best advise you of your legal rights and remedies. The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP have experience representing clients before Workers’ Compensation boards throughout New York City and Long Island, including Manhattan, the Bronx, Queens, Brooklyn, Staten Island, Nassau County, and Suffolk County.  For a consultation, call (866)557-7500.

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