Office Workers' Compensation

Avoiding Office Workers’ Compensation Claims

When employers think about workers’ compensation claims they often think of physically demanding jobs; construction workers lifting and operating heavy equipment or law enforcement hurt on the job. However, sedentary office jobs can also pose potential threats to safety and health. Office and administrative workers’ compensation claims can be avoided by being conscious of the risks and making the proper changes and adjustments to the work environment.

Simple tasks like making sure all officer furniture and technology is adaptable to each employee’s preferences, height and optimal comfort can make a positive impact. Companies would be smart to invest more money into computer screens with swivel capabilities, comfortable mouse pads, keyboards, desks and chairs with adjustability options than paying higher workers’ compensation fees for injured workers in the long term.

Encouraging workers to a break from looking at their computer screen all day may decrease productivity for 10 minutes a day. This is insignificant to the potential loss when a worker is out for visual injuries due to prolonged computer use and will cost more for employers in the end. Positioning computer screens approximately two feet from your employees’ eyes will also lessen potential complications.

According to Safety and Health Magazine trips and falls claim the title for the most common office workplace injury. The Bureau of Labor Statistics reports that 32% of office related injuries are due to employees tripping or falling on things that could have been avoided. Managers and supervisors can alleviate these risk by keeping workspaces clear and all potential obstacles removed. This includes stacks of papers, power cords, boxes, open drawers and anything else that could get in the way of a walking employee.

The most effective protocol is keeping an open line of communication with your employees and have proper reporting methods in place for them to state potential risks and any injuries they may come across. Managers that schedule walkthroughs of their company can be alerted of impending risks and hazards and make the proper modifications to reduce the chances of an accident and subsequently an office workers’ compensation claim.

If you have sustained an injury while working in an administrative position you may qualify for workers’ compensation benefits, contact our attorneys at (866) 557-7500 for a free claim evaluation.

NYC COBA Newsletter Features MDASR

MDASR featured in COBA NYC's April 2019 Newsletter

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP is happy to report our recent successful Workers' Compensation and Pension Disability cases representing New York City Correction Officers (NYC COBA) MDASR works closely with the NYC Correction Officers' Benevolent Association and its' Officers. We are proud to be featured in their April 2019 Newsletter. The attorneys at MDASR are committed to providing their expert experience to advocate for injured and disabled workers and receive the best possible outcome for our clients.

NYS Police Compensation Seminar Hosted by MDASR

McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP was honored to host members of the NYS Police for an evening of networking, great food & drinks and an important and fundamental discussion. Partners Ed McIntyre, Sean Riordan and James Seganti spoke about compensation rights as NYS Law Enforcement in the event of an accident or injury on the job and the potential effects on their pensions.

Ed McIntyre, discussed the requirements for NYS Law Enforcement to qualify for workers’ compensation and how essential it is to know what you are entitled to when injured. He also discussed the potential for substantial workers compensation awards that injured Troopers often fail to pursue.  Ed spoke about the firm’s workers’ compensation attorneys and their expertise in the procedure when filing for coverage.

James Seganti spoke about the crucial need for World Trade Center First Responders to submit the WTC-12 Sworn Statement to meet the requirements for coverage in the event they seek workers’ compensation in the future. The deadline for this form is September 11, 2022, and is necessary in the event that you develop a disease or illness related to your time in rescue, recovery or cleanup.

Sean Riordan covered the current legal climate for what now qualifies as an accident on the job and how recent court decisions have turned disability pension litigation upside down. Retaining talented and knowledgeable attorneys is crucial in the outcome of the of your case and the total of your pension.

If you have been injured on the job contact our attorneys for a free claim evaluation at (866) 557-7500. Multiple conditions, work related or not, may in combination be enough to establish a successful claim.

Workers’ Compensation and Natural Disasters

We have seen displays of heroism and community in the face of natural disasters and emergencies. Civilians, first responders, communities of every background band together to help one another. Our immediate reaction is to assist when disaster strikes. Some may get injured during such tasks, and one has to ask-what happens if that’s part of your job?

Many states have regulations in place addressing the needs of workers and laborers in regard to natural disasters or emergency situations. Many workers may sustain injuries due to rescue and recovery missions, whether or not they are a first responder or part of an emergency services team. Others may encounter hazardous working conditions while trying to rebuild. Some of these regulations involve the expedition of prescriptions, procedures, and benefits so claimants aren’t left without medicine or wages. Insurance companies are also developing methods to make care and benefits more accessible-according to an article on BusinessInsurance.com, Chubb Ltd. managed to reach out to 400 claimants prior to the wreckage sustained when Hurricane Florence hit the southern U.S. in 2018. OSHA also released a statement regarding employer and employee safety after Hurricane Michael, the strongest storm on record for the Florida Panhandle.

The best way for employers and employees alike to stay as safe as possible in an emergency situation is to not only communicate, but also adhere to the planned out EAP, or Emergency Action Plan. As an OSHA requirement, employers that have 10 or more employees are required to have an Emergency Action Plan. This is a formal list of steps and procedures to take during an emergency or natural disaster. These include things like assigned training and roles for employees during an emergency, a way to report and communicate the emergency, and other related requirements.

Florence and Work Comp

‘Plan Ahead’: OSHA Spotlights Resources for Emergency Preparedness, Response

What employers should know as Hurricane Florence approaches

Earth, Wind and Fire: Workers’ Compensation Considerations in the Face of Natural Disasters

Natural Disaster Recovery Efforts: What You Should Know About Workers Compensation Policies

Disaster Preparedness, Recovery and Employee Safety During Hurricane Season

Emergency Action Plan

The App-Based Battleground

California and Seattle are the latest battlegrounds for lawsuits involving ride-hailing apps Uber and Lyft. As the gig economy expands, the definitions of job and employee are growing with it. However, the business model of the gig economy can be particularly daunting for their independent contractors-those of who are usually not subject to certain benefits, like workers’ compensation, bargaining rights, unemployment insurance, and the like. The industrys’ near-complete deregulation makes it easy to find work and make money, but consequently makes it hard to be protected from poor business practices.

“Seattle’s law, passed in 2015, requires the city to select a union as the exclusive bargaining representative of the estimated 9,000 drivers in Seattle who work for Uber, Lyft and other services. The law was put on hold pending the outcome of the chamber’s lawsuit”, according to an article on Reuters.com, linked below. While Washington state allows their cities, such as Seattle, to regulate Uber and Lyft, the 9th circuit court took issue with which part of the ride fees were regulated. The courts are allowing the challenge by business groups.

However, in California, the Supreme Court has passed a decision that makes it harder for businesses to “classify workers as independent contractors rather than employees.”, according to the New York Times. The decision could “upend their business models”, mandating minimum wage, overtime, workers’ compensation, unemployment insurance, etc. laws to be followed by companies. The law creates a simpler definition of employee and independent contractor, by way of substituting the current “test” for another, more streamlined one. This test would be based on someone completing tasks relevant to the business of the company, rather than degree of supervision and other contingencies that currently determine employee status. As the New York Times describes this new test;

“By way of an example, the court said a plumber hired by a store to fix a bathroom leak would not reasonably be considered an employee of that store. But seamstresses sewing at home using materials provided by a clothing manufacturer would probably be considered employees.

In addition, a company must show that it does not control and direct the worker, and that the worker is truly an independent business operator, not just classified that way unilaterally.”

On display in either case is the standard mentality of “safety of workers is a hindrance to businesses.” This has been a hot-button labor topic for the past few years: for-hire drivers demanding protection and benefits. New York City’s’ Black Car Fund was established for this very reason. However, this was before the integration of app-based transportation. This is not the first time Uber and Lyft have been at the crux of these issues. A class-action lawsuit that came about in late 2017 stated that Lyft was docking twice the amount of the Black Car Fund fee (2.5%) from for-hire drivers-once for the fee paid by drivers, and once from the drivers’ actual paychecks. The company ultimately settled for $3 million earlier this year.

U.S. court revives challenge to Seattle’s Uber, Lyft union law

Gig Economy Business Model Dealt a Blow in California Ruling

Dynamex Operations West, Inc. v. Superior Court

The Black Car Fund; NPR Podcast

Lyft faces lawsuit over workers comp fees

 

 

Construction Industry needs Scaffold Law

Changes to the Scaffold Law have been at the crux of recent discussions in the construction industry. In New York, 2016 and 2015 were statistically the deadliest years for construction workers-dozens of articles recording deaths due to improper equipment were published. In late 2017, two workers fell to their deaths during the same day on separate projects in the city.

Many businesses are citing unnecessary regulations on businesses, higher insurance costs for businesses, and higher taxes as reasons not to proceed with the updates to the Scaffold Law. However, an article recently published stated that this was one of a number of myths surrounding the Scaffold Law. One of the most damning points listed is that most people don’t actually know what construction insurance premiums look like. In the article linked above, Harry Bronson from the New York State Assembly simply puts:

“Third, the facts about insurance premiums. We don’t have them because insurers won’t disclose them. Insurance companies are in the business of risk analysis based on data. Policy decisions should be made based on data. It is disturbing that insurance carriers refuse to disclose the truth about construction liability insurance premiums. Indeed, if the Scaffold Safety Law were legitimately a financial burden, then one would think that insurers would be eager to validate their position and put the information forward.”

While some are squabbling about red tape, costs, and taxes, NYCOSH published a report called The Deadly Skyline. The report appropriately starts with an in Memoriam section for those who were killed due to falls at sites, listing names, ages and locations. The youngest on the list was 19. One would think even those opposing the bill can agree, worker safety is priceless. The precursor to this was when a number of NYCOSH reports related construction injuries and fatalities to union or non-union work sites. These NYCOSH reports showed a greater likelihood to get injured on a non-union project, and that Latino workers’ had a greater likelihood for wage theft and of dying on a work site.

NYCOSH puts forth a number of suggestions as additions to the Scaffold Law in the report:

“In response to the health and safety crisis facing New York’s construction workers, NYCOSH has a series of recommendations. NYCOSH continues its call to protect the Scaffold Safety Law, which grants injured construction workers who fall on the job the right to sue an employer who puts their life in danger. NYCOSH is also calling for new legislation to increase penalties for companies that willingly violate the law and cause a worker fatality, and to revoke the licenses of criminal contractors who were convicted of felonies in the case of a worker death. Finally, NYCOSH recommends increased training for workers, like apprenticeship programs on large construction projects, OSHA 10s on all construction sites, and licensing for elevator construction workers.”

There is no report that could be made that would invalidate the need to not only uphold the Scaffold Law, but to also add NYCOSH’s suggestions to the legislation. When the safety and lives of workers are at risk, businesses should do what they can to protect them. This includes longer training, safer work sites, and generally better employer practices amongst the construction industry.

Links

Letter: NY Scaffold Law protects construction workers

OUR VIEW: Scaffold Law hurts businesses in New York

Misinformation muddies discussion about Scaffold Safety Law

Deadly Skyline: An Annual Report on Construction Fatalities in New York State

City Council can protect NYC workers from construction accidents by mandating better training

NYC official urges city to classify construction site accidents as union or nonunion

EXCLUSIVE: NYC urged to release info on construction accidents to show whether union jobs are safer

FDNY opposes plan to remodel WTC Health Program

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

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

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

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

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

FDNY Union Blasts Trump Budget for WTC Health Proposal

Predict Problems for First-Responders

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

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

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

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

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

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

NYCERS, WTC Disability Advocates Meet About Improving Responsiveness

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

City is denying 9/11 first responders disability pensions

WTC Health Program Doctor Concerned About Benefit Denials

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

November 2017 NYS WCB Proposal Summary

Back in September, thousands of injured workers, legislators, and other advocates stood with us in a far-reaching fight to stop the disastrous changes proposed by the NYS Workers 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 NYS workers compensation “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.

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.