Uniformed Personnel and the Coronavirus

Uniformed Personnel and the Coronavirus (COVID-19)

What Steps to Take in the Event of an Exposure

By Sean Riordan, Esq.

I have received several phone calls over the past few days regarding the coronavirus (COVID-19) and what to do if a uniformed officer is, or is possibly, exposed to the coronavirus while working. The answer to this question is quite simple, and somewhat basic:

Fill out and File an Exposure Form.

That said, while that statement is the brass tacks answer, it is a bit of an over-simplification of the complex issue presented by the coronavirus. As is often the case with work-related exposure cases, whether an individual is successful in establishing that their illness is related to their work will come down the specific information that an officer provides regarding the exposure. As a result, officers should follow these instructions when filling out the exposure form:

  • Be as specific as possible about where and from whom you became exposed;
  • Give as much detail as possible (without naming) regarding why you believe that the person to whom you were exposed actually had the coronavirus;
  • Provide as much detail as possible regarding the nature of your contact with the individual you believe caused your exposure.

At this relatively early stage of the spread of the virus, where a small percentage of the population has contracted the virus, identification of the person from whom you received the exposure can be relatively straightforward. Identifying the particulars of the exposure will allow us to affirmatively argue that you were exposed in the course of your duties. However, as the virus continues to spread and larger percentages of the population have the virus, establishing that an officer contracted the virus specifically at work will become more and more difficult. As time goes on employers and their insurance carriers are more likely to deny coronavirus claims with the argument that an individual officer is unable to meet their legal burden-of-proof; a burden which requires an officer to establish that they contracted the virus while working (as opposed to while they were at home or otherwise on their own personal time). So, by following Rule 1 above when filling out the exposure form we are better able to meet this burden.

Rule 2 is a more tricky in practice, but just as important as Rule 1. The difficulty arises from an officer’s often sheer lack of knowledge regarding whether an individual with whom they have come into contact actually had the coronavirus. Due to HIPPA laws officers are often specifically barred from asking an individual for their protected health information and the individual is under no legal obligation to voluntarily reveal such information. This leaves officers in a position of speculating whether they were actually exposed to the coronavirus. It also creates a legal issue regarding that same burden-of-proof discussed above. Obviously, where an individual self-identifies as suffering from the coronavirus, provide such information on the exposure form. However, where specific knowledge of the exact exposure is lacking we must use circumstantial evidence to help us reach our legal mandate. On the exposure form, identify the circumstances that led you to believe that the individual you came into contact with had the virus. For example, if the person was complaining of fever/chills, difficulty breathing, coughing etc., put this information down on your exposure form.

Lastly, providing detail about your level of contact with the individual you believe caused your exposure will also aide us in establishing that you contracted the coronavirus while working. If you touch the individual, the individual coughed/sneezed or otherwise breathed on you during your interaction, place such information on the exposure form as well. Transmissibility of the virus clearly depends on the level of contact an individual has with a coronavirus patient. Providing detail as to the level of contact you had with a potential coronavirus patient will equally aide is establishing your work related illness.

The exposure form will fulfill your obligation of notifying your employer of your potential illness; it does not actually start a New York State Workers’ Compensation claim however. That is, an exposure is simply that, an exposure. In order to file for Workers’ Compensation benefits you must have an illness (or injury) and identify such injury or illness on your original filing document (C3 Report). Therefore, unless you are actually diagnosed with coronavirus you do not need to file a Workers’ Compensation claim immediately. Instead, following an exposure follow your doctor’s advice regarding testing and treatment. If tests indicate that you have indeed contracted the virus, we should immediately file a claim for Workers’ Compensation.

As always, if you have any questions or concerns please do not hesitate to contact me directly at (646) 831-6229 or (212) 612-3198.

Be well and be safe.

Protect Workers Coronavirus

New York Looks to Protect Workers and Contain Coronavirus

In an effort to control and measure the Coronavirus in New York, Governor Cuomo has ordered new regulations on insurers and employers. By placing the responsibility on insurers and employers, workers are more likely to get take the proper time and testing needed if they are currently sick and there is reason to suspect it may be the Coronavirus. The main goal of these new regulations is to contain, diagnose and treat the virus, while minimizing contact with potential patients.

State Insurers are required to cover coinsurance, copays and deductibles associated with testing and treating the virus. In addition, emergency room, urgent care and office visits will be covered and insurers will not be allowed to require prior authorizations for emergent care including ambulance services. Hospital services will also be processed at in-network rates. New York has also asked insurers to increase their network of telehealth programs in an effort to decrease contamination within hospitals and doctors’ offices. Insurers have also been warned in the event that a vaccine is developed to cover the costs for administering immediately and cover non-preferred brands in the case of shortages.

New Yorkers enrolled in self-funded employer-based health insurance plans that are not regulated by New York State due to the Employee Retirement Income Security Act of 1974 (ERISA) should contact their employer to fully understand the scope of coverage.

Cuomo also plans to add job protection for employees under quarantine, which would forbid employers from firing workers staying home under mandatory sick leave. The Governor hopes to give people the access and feeling of job security if they need to seek testing, treatment and potentially isolation if the virus is suspected. Cuomo would look to include this in the 2020-21 state budget.

There are 173 confirmed cases (at of 3/10/20) in New York and the number is suspected to grow as more people have proper access to testing. Cuomo urges people to not panic and take proper health precautions such as washing your hands, coughing and sneezing into the crook of your elbow, limiting physical contact with others and staying home if you are sick.

Correction Officers' 3/4's Disability

2019 Correction Officers’ 3/4’s Disability Pensions: Year-in-Review

By: Sean Patrick Riordan, Esq.

Although there were only three cases involving Correction Officers’ ¾’s disability rights decided by the state’s highest courts in 2019, it was an important and impactful year. The Court of Appeals (the highest court in New York State) decision in Walsh v. DiNapoli expanded the Comptroller’s interpretation of “act of an inmate” and, therefore, expanded the disability coverage provided to Correction Officers when they are injured in the course of their duties. Contra-positively, The Appellate Division 3rd Department's decisions in Echevarria v. DiNapoli and Elrodt v. DiNapoli affirm some of the more difficult procedural hurdles faced by Correction Officer’s attempting to prove their cases for Correction Officers' 3/4's Disability benefits.

Walsh v. DiNapoli:

Certainly the most important case of the year, the Court of Appeals decision in Walsh v. DiNapoli has clearly expanded the disability rights of Correction Officers. Admittedly, I was very concerned about this case and its potential outcome, but am ecstatic about the Court’s final, and proper, decision.

To understand the Court’s decision one must understand the language of the ¾’s statute itself. The Performance of Duty Disability (“POD”) statutes call for payment of a ¾’s disability benefit to a correction officer who becomes “permanently incapacitated by, or as the natural and proximate result of any act of any inmate or any person confined in an institution under the jurisdiction of the” Department of Corrections. Prior to 2016 the Comptroller interpreted the term “act” to require that an inmate intend to harm a Correction Officer with their “act.” In Traxler v. DiNapoli the 3rd Department found that the Comptroller’s interpretation was unreasonable and that as long as the inmates act itself was “volitional”, the resulting harm to the Correction Officer did not need to be intended. In other words, as long as the inmate intended to perform “an act” they did not need to intend to hurt the Officer. The question that was raised in Walsh v. DiNapoli was: What if the inmate’s “act” itself was not intended? Can an Officer obtain disability benefits if they are injured by an inmate’s non-intentional actions?

In Walsh an inmate was removed from a courthouse by a Correction Officer transport team due to the inmate’s unruly, and likely substance induced, behavior. Officer’s observed the inmate to be unsteady on her feet when they walked her out of the courthouse and loaded her into the transport van. Upon arriving at the correctional facility Officers instructed the inmate to exit the van. Following “one or two” steps the inmate tripped and fell out of the bus, landing on Officer Walsh and causing substantial injury to her back, neck and shoulder. Upon filing for disability benefits from the Retirement System, the Comptroller denied her claim with a finding that the occurrence described was not the “act of an inmate” because the inmate’s actions were “non-volitional.” Said another way, because the inmate did not mean to fall no inmate “act” was performed.

On appeal the Appellate Division upheld the determination denying benefits, finding that the legislative intent of the Correction Officer’s ¾’s bills was to provide disability benefits to Officer’s due to their daily interactions with violent and anti-social inmates. Therefore, if an inmate does not “intend” to perform their “act” they are acting neither violently nor anti-socially and benefits don’t apply. This is the thought process that the Court of Appeals overturned.

The Court found that the “plain meaning” of the word “act” encompasses both voluntary and involuntary actions. Where unambiguous words are used by the legislature, the courts will, and must, apply their plain meaning. Therefore, the plain meaning of the statute calls for coverage even when the inmate did not mean to perform the act. In Walsh, the inmate did not intend to fall, but her “act” of falling still affords disability coverage to Officer Walsh.

Further, and probably even more important for future appeals, the Court took issue with the Appellate Division’s interpretation regarding legislative intent. The Court notes that the legislature used broad terms such as “any act” when it wrote the ¾’s statutes. Further, the legislature was intentionally expanding disability coverage for Correction Officers when they wrote the statutes; a reading of the statute in a manner that limits that intent would undermine what the legislature was purposely doing.

While the vast majority of Correction Officers’ injuries are incurred by volitional inmate actions and not un-intended inmate actions, the Walsh decision is an excellent decision for Officers state wide. In addition to the expansion of coverage for “involuntary actions” I plan on using the language of the decision to attack other Comptroller interpretations of the Correction Officers' 3/4's Disability statutes. Stay tuned.

Elldrodt v. DiNapoli:

A short and to the point decision regarding the Correction Officer’s “Heart Bill”, the case is a good reminder of a basic premise of the law that applies to all disability bills. In 2013 Officer Elldrodt applied for ¾’s Heart Bill alleging disability due to a heart impairment. Later in 2013 the Retirement System sent the Officer for an examination with its Independent Medical Examiner (“IME”). The IME found that the Officer did not have a permanently disabling heart condition and could return to work as a CO. On appeal, the Officer (and his attorney) relied on his treating cardiologist’s opinion that he is disabled from Correction Officer work. However, such cardiologist did not start treating the Officer until 2016 and admitted in his testimony that he could not state that the Officer was disabled at the time he filed his application in 2013.

The Court points to this basic fact in its decision and re-affirms the legal point that an applicant for disability must prove that they are disabled at, and from, the date that they submit their application for disability benefits. In other words, at the moment an Officer submits their claim for disability benefits they are asserting that they are disabled and have the burden of proof to establish this point. If you can’t prove that you are disabled from your full duties from the date you submit your application, you are not entitled to disability benefits pursuant to regulation.

This often arises with officers that come in for initial consultation and are frustrated by my opinion that their case is not yet ready to file, despite the officer’s “feeling” that they will never again be able to perform their full duties. While the officers’ feelings may well be warranted and prove to be true, it is extremely important that we be able to prove that the disability is “permanent” and that the officer has undergone all remedial measures at the moment of filing. The timing of a filing is extremely important and should never be underestimated.

Echevarria v. DiNapoli:

The Echevarria decision is one that I hesitate to discuss simply because its finding is as confusing and poorly explained as any I have seen in recent memory. In short, Echevarria claimed to be permanently incapacitated due to a knee injury incurred during inmate relate occurrences in 2001, 2006, 2007 and 2010. Prior to becoming a CO the Officer had reconstructive surgery to the same knee in 1995. The Officer’s treating orthopedist testified that the inmate related occurrences were the cause of Echevarria’s disabling knee condition and that each occurrence had aggravated or exacerbated an underlying, pre-existing knee condition.

Although the System’s IME stated that Echevarria is disabled, he placed the cause of such disability on the 1995, pre-employment, surgery. He opined that the 1995 surgery caused osteoarthritic development in the knee and such osteoarthritis is the cause of the Officer’s current disability.

The reason that I question this decision is that the Court points out that the IME testified on cross-examination that the subsequent inmate related injuries “aggravated or exacerbated” the underlying condition, and in fact stated that each of the inmate related events were a “contributing factor” in Echevarria’s disability. This testimony mirrored the testimony of Echevarria’s treating doctor.

This goes to the heart of a long-standing legal rule that when “an injury permanently aggravates or exacerbates an underlying pre-existing, asymptomatic, condition, the injury is the legal cause of the permanent disability.” Essentially, if you have a pre-existing condition but such condition is not causing any symptoms, and then an injury occurs which causes permanent symptoms to exist, the injury is the cause of the disability.

The Hearing Officer disregarded the findings of both doctors that the inmate related events aggravated or exacerbated the underlying osteoarthritis and found that the disabling knee condition was entirely due to the 1995 surgery. The Appellate Division upheld such decision as rational. The Court grounds such rationality in the Hearing Officer’s finding that Echevarria was able to keep working for another 9 years after his first inmate related occurrence and that osteoarthritis is a progressive condition.

Because the Hearing Officer found that there was no aggravation or exacerbation caused by the subsequent inmate related injuries, the case can’t be read as directly attacking the previously explained legal rule of “permanent aggravation or exacerbation” but it certainly raises some serious concerns. First, how is the Hearing Officer’s decision grounded in “substantial evidence” if both doctors agree that the inmate related occurrences “aggravated or exacerbated” the underlying osteoarthritis? Is the Court saying that a Hearing Officer can simply disregard the opinions of medical experts and insert his own, un-trained, medical opinion into the decision? Further, what legal difference does it make that Echevarria kept working for another 9 years post the first inmate related occurrence if he sustained other inmate related occurrences, especially one in the last year he worked?

While the decision of Echevarria v. DiNapoli clearly raises some genuine concern, I am choosing to read this decision (perhaps optimistically) as simply a poor recitation of the testimonial evidence. Although I have never seen the hearing transcripts in this case, and the Court never says this, I have a sneaking suspicion that the IME actually testified that the inmate related events only “temporarily” aggravated the underlying knee condition, not causing permanent damage. If the aggravation or exacerbation is not “permanent” then the legal rule does not apply. I certainly hope that this proves to be an accurate hunch, otherwise the Echevarria decision may be as important to Correction Officers' 3/4's Disability cases as the Walsh decision.

Conclusion:

As always, if you have any questions about your disability rights don’t hesitate to call me at (212)612-3198 or email me at Sean@nycomplaw.com.

Have a healthy and safe 2020!

 

Federal Loan Forgiveness

Federal Loan Forgiveness for Total and Permanent Disabilities

Did you know the U.S. Department of Education may discharge certain federal student loans for individuals with a total and permanent disability? It is important to note the Department of Education has a strict definition for total and permanent disability which differs from the definition used in other areas of the law. Additionally, this program only applies to William D. Ford Federal Direct Loans (“Direct Loans”), Federal Family Education Loans, and Federal Perkins Loans. However, individuals who meet the particular requirements of this program could have a five or even six figure loan balance completely discharged.

What is a Total and Permanent Disability?

The Department of Education provides three ways for applicants to show total and permanent disability. First, veterans can show total and permanent disability with evidence from the VA indicating a service-related 100% disability or an individual unemployability rating. Second, current Social Security Disability (“SSD”) recipients can show total and permanent disability with evidence that their next disability review is scheduled between five and seven years after their most recent Social Security disability determination. Third, any individual can allege total and permanent disability with a doctor’s certification that the individual is unable to engage in any substantial gainful activity due to physical or mental impairments that either (a) continuously lasted for sixty months; (b) is expected to continuously last for sixty months; or (c) is expected to result in death.[1]

How Can I Apply?

If you are a veteran or SSD recipient who meets the total and permanent disability definition provided above, you may be automatically contacted by the Department of Education regarding this program. If you believe you meet these requirements and have not been contacted or you believe you may qualify via doctor certification, you can apply online at www.disabilitydischarge.com/registration. If you have additional questions about the application process, you can find more information here.

If you have any additional questions regarding Social Security Disability, Disability Pensions, or Workers’ Compensation, please contact our office at (866) 557-7500 or visit our website to schedule a free consultation.

Ryan J. McIntyre, Esq.
Associate Attorney
rmcintyre@licomplaw.com

[1] https://disabilitydischarge.com/TPD-101

Police Disability Pension

2019 Police Disability Pensions Year-in-Review

By: Sean Patrick Riordan, Esq.

2019 was a relatively slow year for Police Disability pensions, especially when compared to 2018 which brought the groundbreaking Kelly v. DiNapoli decision. The Appellate Division decisions didn’t break new precedential ground, but they did continue to illuminate what is, and will be, considered an “accident” for ¾’s purposes. They also continued to highlight two important areas of every disability application: 1) Contemporaneous Documentation of an injury is vitally important and 2) Officers are not “in service” for disability pension purposes until they start their shift or otherwise are performing their police duties.

Even more importantly, and in keeping with my theory that Kelly v. DiNapoli opened up “slip & fall” to greater ¾’s consideration, the Court found that unseen and unknown hazards that cause a slip and fall injury can be ¾’s eligible.

Accidental Nature of Injuries Cases:

The Appellate Division 3rd Department’s first case of 2019, Buckshaw v. DiNapoli, dealt with multiple accidental issues. The Police Officer testified that while he was restraining an EDP the carpet suddenly shifted under his feet due to poor installation. As a result, he fell and severely injured his leg. However, the officer’s contemporaneous documentation, and that of his fellow officer, told a different story. The incident and injury report noted that the Officer’s legs became entangled with the EDP’s, causing him to fall and become injured. The fellow officer’s report also stated these facts as the cause of his injury. Although the Court interestingly noted that the Officer’s testimony would have constituted an accident, his contemporaneous documentation did not. Instead, the restraint of an unruly individual is an “inherent risk” of a Police Officer’s duties and therefore not an “accident” for ¾’s purposes.

In Selke v. NYS Comptroller a Trooper was found not to have sustained an “accident” when he injured his back while securing a spare tire in the truck of his police vehicle. The Court found, and the Trooper had testified to, that the securing of a tire was a “routine duty” and injury incurred during such duties cannot be considered an “accident.”

In one of the more important cases of the year, Angelino v. NYS Comptroller, the Court found that although the Police Officer did not sustain an “accident” for ¾’s purposes the Retirement System must remand the case because their doctor failed to review all relevant medical testing. This is yet another case where the Officer’s testimony differed from his initial injury reports and the Court found that the Retirement System is free to give more weight to the contemporaneous documentation than the later testimony.

More importantly the Court found that the Retirement System’s Independent Medical Examiner (IME) failed to review an EMG that the Officer had undergone. The Officer’s treating doctor relied on this EMG as a basis for his finding that the Officer is permanently incapacitated. Because the Retirement System can only rely upon the opinion of its IME when such IME performs a physical examination and “reviews all relevant documentation”, the Court found that the IME’s opinion was lacking because he failed to review the single EMG report. This case represents a real procedural victory for Police Officers and will be relied on heavily by attorneys.

In the “slip and fall” case referenced above, Lewis v. NYS Comptroller, an officer reported to a motor vehicle accident after 5 inches of snow had fallen and had yet to be plowed. After his arrival on the scene 2 additional car accidents transpired. While walking over to the site of the 3rd accident applicant stepped into a snow covered pothole, calling and severely injuring himself. The Court found that the pothole represented an unseen and unknown hazard and was therefore an “unexpected and unanticipated” accident.

The State’s attorney also raised the issue of contemporaneous documentation in the Lewis case, noting that the initial injury report did not include any statement of a “pothole.” Importantly, the Court found that additional details regarding an accident are not, in and of themselves, contradictory of initial reports. Only where the additional facts contradict earlier statements does an issue of credibility arise. Further, the Court pointed out that the Officer may not have initially known that he stepped into a pothole since it was covered by snow. In this regard, the Court’s finding is extremely important; an Officer can add additional relevant facts to their disability applications as long as such additional facts do not undermine what was originally written.

“In Service” Cases:

The issue of whether an Officer is “in service” for disability pension cases arises several times a year (believe it or not). Although the rule associated with “in service” is long standing, 2 Appellate Division cases reiterated the point this year, Verille v. Gardner and Rosario v. NYS Comptroller.

In Verille, the Officer testified that he left his office before the end of his shift because he was headed to speak to a Confidential Informant. Further, the Officer alleged that the CI was related to an internal affairs investigation and, as a result, he did not inform anyone where he was going, nor did he complete any reports or write any notes about where he was heading. While heading to this alleged meeting the Officer was involved in an MVA and seriously injured. The Retirement System denied his application stating that the Officer was simply heading home and was no longer “in service” at the time of his injury. The Court upheld the determination, finding that the Officer bears the burden of proof in a disability retirement case and was unable to offer any proof that he was going to meet the CI. The moral of this story is, always let at least one person know where you are going!

In Rosario the Officer alleged that he was injured in the course of his duties while walking on Police Department property. During his testimony the Officer stated that he slipped and fell while walking into the precinct before the start of his shift. The Court upheld the System’s denial on the ground that an officer is not “in service” until they start their tour of duty or are otherwise engaged in police duties. Moral of this case is, if you are inured prior, or after, your tour of duty, make sure you specifically note how and why you should be considered to be engaging in police activity in your initial injury report.

Permanent Incapacity Cases:

Although I do not usually address permanent incapacity cases in these updates because they typically boil down to which doctor the judge believed, the Appellate Division decision in McGowan v. DiNapoli is significant for several reasons.

McGowan was a Deputy Chief of a department who applied for disability retirement and simultaneously took his service retirement. Upon retirement McGowan took a job as a government contractor, conducting back ground checks. The Retirement System’s IME stated that McGowan should be considered disabled from his Deputy Chief position only if such position required hands on police work such as arrests and field work. However, the IME stated that if the Deputy Chief position was largely sedentary, like his government contractor work, then he should not be considered disabled. The Retirement System denied the application, finding that McGowan’s Deputy Chief position was sedentary in nature.

The Court upheld the determination denying disability benefits, agreeing that McGowan’s position could be considered sedentary because he had not engaged in “regular performance of police duties, including arrests, within the year prior to his retirement.”

This case is a bit disturbing as there is no statutory or regulatory basis regarding the “1 year before retirement” that the Court references. It appears that this new standard was created out of thin air.

Just as importantly, and something that I discuss with Officers all the time, what an officer does for employment can affect their disability retirement. Here, the IME clearly found that the post-retirement work being performed by McGowan was to similar (in terms of physical demand) to his prior work. Officers should always consider this if they are planning on starting new employment while their disability pensions are pending.

Conclusion:

As always, if you have any questions or concerns regarding your Police Disability Pension, or are injured in the course of your duties, do not hesitate to contact me at (212) 612-3198 or email me at Sean@nycomplaw.com.

Be well and be safe!

2019 Workers' Compensation Trends

2019 Workers’ Compensation in Review

2019 Trends in Workers' Compensation

As 2019 comes to end it is important to look back and understand the popular trends in the Workers’ Compensation industry and look forward to what 2020 could hold. As a constantly evolving industry, it is important to stay up to date on the current atmosphere of workers’ compensation in order for our attorneys to do their job best for our clients.

One major and essential practice was monitoring programs for prescription drugs. Almost all 50 states have implemented new data bases and regulations when prescribing opioids. Doctors are now handling injuries with more precaution and are prescribing workers’ compensation patients with physical therapy and other non-habit forming remedies before resorting to opioids. Many states have seen a significant reduction in opioid related deaths and have passed official legislative rulings to maintain this reduction in opioid abuse.

In addition to reducing opioid prescriptions, states are mandating electronic prescribing of controlled substances. While New York has implemented this for both controlled and non-controlled substances since 2016, many states are following their lead in an effort to better control the prescription of controlled substances. By removing the use of paper and faxed prescriptions providers can regulate and supervise claimants’ recovery plans.

Another welcomed trend was increasing coverage for our first responders.  States recognized that the risks and hazards first responders face are above most average positions. Many states have permitted first responders to file workers’ compensation claims for exposure to dangerous substances that have led to the development of cancer and other serious illnesses and post-traumatic stress disorder from traumatic events encountered while on the job. This is a great step in providing our first responders with the rights they deserve.

What trends can we expect in 2020?

In looking forward to 2020, experts expect to see states follow and mimic New York’s compensation drug formulary as a guideline for new legislation. This process requires doctors to get pre-authorization and sufficient documentation on why opioids prescriptions are needed for treatment. Another trend to look for in 2020 is Medical Marijuana prescribed over opioids. While many are looking for better alternatives than opioids for treating pain, New Hampshire Supreme Court ruled in favor of an injured worker using medical marijuana to help treat their injuries. With New York’s compensation drug formulary it may prove difficult to get such prescriptions authorized by the carriers.

The attorneys at McIntyre, Donohue, Accardi, Salmonson & Riordan are committed to staying up to date on the latest Workers’ Compensation trends to best serve our clients’ needs. Our firm strives to provide aggressive representation combined with creative legal solutions to protect injured workers against those that would deprive them of their legal rights. If you have any questions, please call our office at 866-557-7500.

https://www.iwpharmacy.com/blog/looking-back-at-2019-workers-compensation-legislative-trends

First Respnoders at Ground Zero

Exposure at Ground Zero and Aggressive Prostate Cancer Linked?

Here at McIntyre, Donohue, Accardi, Salmonson, & Riordan we have had the distinct honor of representing many first responders who heeded the call of duty on September 11, 2001 in obtaining Workers’ Compensation, Social Security Disability, and/or Accidental Disability benefits associated with their service.

One of these claimants was a Suffolk County Police Officer of the Motorcycle Unit assigned to various World Trade Center sites including Ground Zero. It was during this period that he was exposed to toxic debris and carcinogens for 11 hours at a time without any respiratory protection. This brave officer was subsequently diagnosed with a nearly fatal prostate cancer 17 years later that was deemed related to his earlier exposure at Ground Zero.

Unfortunately, our claimant is not alone in his diagnosis. There is a growing body of evidence which suggests that there may be a link between an increased risk of aggressive prostate cancer and exposure to the fallout from September, 11 2001 as documented by the writer Janet Farrar Worthington:

“’The dust was an inflammatory insult to the body,’ says medical oncologist William Oh, M.D., of the Icahn School of Medicine at Mount Sinai in New York.  Oh and Mount Sinai epidemiologist Emanuela Taioli, M.D., Ph.D., recently published a study in Molecular Cancer Research showing that one of the inflammatory responses within the prostate was an increase in an inflammatory T cell, called Th-17, in men exposed to the toxic dust.

Oh believes that exposure to the toxins ‘increased the inflammatory cascade within the prostate, and this may have contributed to the risk of developing more aggressive prostate cancer,’ particularly in first responders and volunteers who spent a lot of time searching for victims in the rubble.”

This research only highlights the absolute necessity for all first responders to follow up with their physicians on a regular basis to ensure their health and safety.

Additionally, if you or a loved one qualify as a first responder suffering from a similar 9/11- related illness, you may be entitled to compensation. Please contact our office at (866) 557-7500 or visit our website to schedule a free consultation.

Shane L. Farrell

Associate Attorney

shane@licomplaw.com

Janet Farrar Worthington, Ground Zero and Prostate Cancer Prostate Cancer Foundation, (September 11, 2019) https://www.pcf.org/c/ground-zero-and-prostate-cancer/.

New York’s Medical Marijuana

New York’s Medical Marijuana Outlook

New York’s Medical Marijuana program has provided doctors with a new tool to help claimant’s deal with debilitating pain. Nevertheless, the legality of the treatment option does not mean that Workers’ Compensation carriers will accept paying for it.  The question then turns to whether the Workers’ Compensation Board will authorize that treatment over the objection of the carrier.

Legally speaking, the New York Workers’ Compensation Board has expressly noted that they have the authority to compel a New York State Workers’ Compensation carrier to pay for medical marijuana under the liberal construction of WCL § 13(a). Whether the Board finds that a doctor’s request meets the threshold to trigger that action is another matter. The Board has made it clear that a treating provider that requests the use of medical marijuana must satisfy a number of prerequisites before a finding is made that the treatment is appropriate.

The first hurdle for patients is to seek out a medical provider specifically licensed and registered by the Department of Health to prescribe medical marijuana. The provider then must certify that their patient has one of the qualifying conditions under the Public Health Law.

New York’s Public Health Law permits the use of medical marijuana to be recommended to treat severely debilitating or life threatening conditions such as cancer, HIV, ALS, Parkinson’s disease, spinal cord injury with spasticity, epilepsy, inflammatory bowel disease, neuropathy, and Huntington’s disease (see Public Health Law § 3360[7]). The regulation also allows for the use of medical marijuana to treat severely debilitating pain as an alternative to opioids use as long as the underlying condition is expressly noted on the patient’s medical marijuana certification. To complicate matters further, the patient must also have an associated condition: cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures, or severe or persistent muscle spasms (see Public Health Law § 3360[7][ii]; 10 NYCRR 1004.2[a][9]).

If the treating provider finds that the claimant does qualify for the use of medical marijuana, the next step is getting it authorized by the carrier. Provider’s must adhere to the New York State medical treatment guidelines when seeking a specific treatment option. If that option is not covered by the guidelines, the doctor must then file a MG-2.0 variance form specifically noting that the patient/claimant adheres to the use of medical marijuana and explain why treatment options covered by the guidelines are not appropriate or sufficient. The doctor must also provide proof of his registration to prescribe medical marijuana as well as a copy of the claimant’s certification to legally obtain medical marijuana in New York. Only then will the Board consider the merits of the doctor’s request.

Unfortunately for injured workers in New York, carriers have been overwhelmingly successful in overturning Law Judges’ decisions to approve the use of Medical Marijuana on appeal. That does not mean it is impossible to obtain approval for medical marijuana, but only that any request by a doctor must precisely adhere to the Board requirements if they expect the Board to authorize the treatment over the objection of the carrier.

In the event you are seeking the use of medical marijuana as a treatment option in your claim, consult with an experienced Workers’ Compensation attorney to help navigate this process.

Timothy Finnegan

Associate Attorney

Suffolk County PD – Heart Attack in the Line of Duty

It is now widely recognized that cardiovascular issues are nearly 1.7 times higher amongst police officers when compared to the general population [1]. These “heart” issues may vary in severity from mild hypertension to a fatal stroke and can be found in officers of all ages. [2]

Therefore, it becomes vitally important for all Suffolk County police officers to be aware of what may be available to them by way of Worker’s Compensation benefits, and NY General Municipal Law (GML) 207-c benefits, should they sustain a cardiac injury while in the line of duty. These are two distinct legal remedies that may be available to an officer under particular circumstances. They are not the same, and should not be treated as such:

Workers Compensation:

Worker’s Compensation is essentially an insurance required for nearly all employees in New York State including Suffolk County police officers. This insurance provides medical coverage and partial monetary compensation for injuries sustained as a result of their employment. The medical coverage extends only to the job-related injury, and the monetary amount for each officer is determined by the date of the injury in question, and the injured officer’s average weekly wage at that time. Essentially in order for a police officer to successfully obtain Worker’s Compensation benefits for a cardiovascular condition, he must provide medical evidence from his treating physician which shows how it relates to his/her employment.

In Employer: City of Schenectady, a police officer suffered a heart attack while at home after coming back from a strenuous training program required by his department. This officer was able to get Worker’s Compensation benefits because the medical experts agreed that the stress of his job duties as a police officer played a role in causing the heart attack, “It would be certainly appropriate to conclude that his severe job stresses that were present immediately prior to his myocardial infarction would have been a significant contributing factor to this event.” The officer had shown how his heart attack was due, at least in part, to his employment as an officer. Thus, he was able to obtain Workers’ compensation benefits.

GML § 207-c

GML § 207-c provides for the payment of an officer’s full salary and the cost of all medical treatment and hospital care for an individual injured or taken ill as the result of the performance of his/her job duties. This extends to medical bills that are not even part of the injury which the officer sustains in the line of duty.  Under the current standard, an employee is eligible for the benefit as long as they have an injury while in the performance of or takes ill as a result of, any duty within the range of their duties. The focus here is what duty a police officer is engaged in when the cardiac injury occurs. The injury must emanate from the officer’s performance while in the line of duty for GML 207-c to qualify. Therefore, an officer may sometimes be entitled to both GML 207-c and Worker’s Compensation benefits, but not always.

The application of these benefits can best be understood using the following example:

A police officer has a stroke while subduing a criminal who attempted to assault that officer. The officer’s treating physician cites the strenuous activity of restraining the criminal as the contributing factor which caused the heart attack. This stroke was caused by the officer’s employment with the police department, and it emanated from the performance of his duties. Therefore, he would also be entitled to benefits under GML 207-c.

However, if the heart attack occurred once the officer was off duty then that officer may only be entitled to Worker’s Compensation benefits because it did not occur during the performance of his duties.

In the event that an officer receives both Worker’s Compensation and GML  207-c benefits there are some nuances to keep in mind:

  • The Department may be entitled to reimbursement of the salary paid under GML 207-c from the Worker’s Compensation claim associated with the cardiovascular injury.
  • If an officer is receiving Worker’s Compensation benefits associated with the cardiovascular injury the Department is only obligated to pay the difference in salary if GML 207-c applies.
  • GML 207-c would cover all medical expenses not associated with the Worker’s Compensation claim.

Please follow up with your treating physician if you feel that your work as a police officer is contributing to a cardiovascular problem. Given the increased risks of cardiovascular issues posed to all officers, we would encourage you to make sure that you are well versed in these benefits should the worst occur. Feel free to contact our office at 631-665-0609 if you would like to learn more.

[1] Zimmerman FH Cardiol Rev. 2012 Jul-Aug; 20(4):159-66.

[2] Id.

NY's Raise the Age Law Crossroads Detention Center

NY’s Raise the Age Law Creates Obstacles

NY’s Raise the Age Law progressed to its’ next phase on October 1st by raising the age of adult criminal responsibility to 18 years old. This means that the juvenile detention system will be taking on 17 year olds who have potentially committed dangerous crimes.

Previously, 16 and 17 year olds facing felony charges were tried at criminal court and were sent to Rikers. With this new law they will be processed through family court and new youth courts and be sent to Crossroads detention center run by the Administration for Children’s Services (ACS) or the Horizon juvenile center, run by the Correction Department.

After the first phase of Raise the Age centers saw a rise of assault on staff members and more than 25% rise in contraband, including weapons and illegal substances. David Hansell, ACS chief believes that the rise in contraband is in part due to their increased supervision in hopes to avoid violent situations that could occur due to weapons and illegal drugs.

ACS has plans to implement a new behavior management plan that rewards good behavior with perks such as more phone time. The Administration for Children’s Services will also be assuming management over the Horizon juvenile center, with plans to implement these new behavior tactics.

Another issue, one not expected, was overcrowding at ACS’s Nicholas Scoppetta Children’s Center as teens were sent there for housing needs and not detention as their families refused to take them back in.

Officials have been preparing for a year for this shift but still worry about potentially violent 16 & 17 year olds in less-restrictive environments and what that could mean for the safety of staff and other children in the facilities.