October 2019 New York Workers’ Compensation Law Reporter Highlights

Absence of job search renders claimant unattached to labor market

Case name: Nassau, County of, 119 NYWCLR 146 (N.Y. W.C.B. Full Board 2019)

Summary: The Full Board ruled that the claimant did not show labor attachment and therefore not entitled to benefits. After injuring their right leg and neck the claimants doctor reported 17 percent loss of use of the right leg and severity B for the neck. The claimant was therefore capable of sedentary employment with restrictions. The claimant failed to conduct a search for sedentary employment and therefore did not show labor attachment.

Claimant fails to establish post-injury reduction wages

Case name: Hyde Park Central School District, 119 NYWCLR 148 (N.Y. W.C.B., Full Board 2019)

Summary:  The Full Board held that the claimant's part time employment status was not a result of her injury and was not entitled to reduced earnings. Insufficient medical evidence supporting that part time work was a result of the injury and failure to prove that she had searched for a full time position within her limits, the board denied reduced earnings benefits.

Preinjury plan to retire, lack of medical support point to voluntary retirement

Case name: Spring Valley, Village of, 119 NYWCLR 147 (N.Y. W.C.B., Full Board 2019)

Summary: Claimant testified that his retirement was due to a work related injury, while evidence indicates that he planned to retire before the accident. The claimants doctors notes did not indicate that the injury was due to a workplace accident. The Full Board ruled that the claimant retired voluntarily and their right ankle injury was not due to a work accident.

Carrier provides insufficient evidence to order weaning

Case name: Compusite Turnkey Construction, 119 NYWCLR 151 (N.Y. W.C.B. Panel 2019)

Summary: A Board Panel ruled that a claimant should not be weaned off his Tramadol medication. Claimants pain was reduced from a ten to a six with the use of tramadol and daily duties such as household chores, endurance and social activities showed improvement.

Worker establishes claim for slip-and-fall in public area

Case name: Kaback Enterprises Inc., 119 NYWCLR 152 (N.Y. W.C.B., Panel 2019)

Summary: Claimant was walking in a public area retrieving his tools from a nearby building and injured his right knee. The panel ruled that as the claimant was clocked into work and performing a duty that benefits his employer he had clearly established the claim.

WCL covers claimant's injuries sustained in his home driveway

Case name: Crisafulli Bros. Plumbing & Heating, 119 WYWCLR 155 (N.Y. W.C.B., Panel 2019)

Summary: After reviewing, the Panel ruled that a HVAC technician was compensable after sustaining injuries in his driveway. The claimant was considered an outside employee and was given a van to travel to and from jobs. Therefore, his injury sustained while cleaning the van window was covered under his employment.

Employer's previous attempts to remedy hazard doesn't render injury compensable

Case name: Healthcare Associates, 119 NYWCLR 153 (N.Y. W.C.B., Panel 2019)

Summary: The Board Panel ruled that a claimant that fell on a public side walk outside of their employers building did not qualify as a work related injury. The claimant's accident happened on their routine commute to work on a public sidewalk and does not fall under the responsibilities of her employment.

Nurse wins benefits for lunchtime injury

Case name: Trinity Health Corp., 119 NYWCLR 156 (N.Y. W.C.B., Panel 2019)

Summary: After reviewing the evidence the Board Panel found that a nurses injuries sustained while on her lunch break were in the course of her employment. Claimant was told to stay in or around her place of employment during breaks and therefore were found to be approved for benefits.

Failure to demonstrate ongoing attachment to labor market dooms further PPD

Case name: Pryer v. Hempstead, Incorporated Village of, 119 NYWCLR 157 (N.Y. App. Div 2019)

Summary: The Appellate Division upheld the Board's decision that the claimant was not entitled to continued partial disability benefits due to failure to demonstrate labor market attachment. The claimant must show market attachment otherwise they have voluntarily withdrawn from the labor market, regardless of injury.

Carrier's expert provides persuasive testimony against claimant undergoing lumbar surgery

Case name: Czechowski v. MCS Remedial Services, 119 WYWCLR 163 (N.Y. App. Div. 2019)

Summary: The Appellate Division upheald the Board's decision to not approve lumbar surgery. Testimony from the carrier's medical expert states that there is insufficient evidence of the need for lumbar surgery, based on the Wokers' Compensation Medical Treatment Guides, as well as an indication that conservative treatment had been unsuccessful.

Employer can't apportion award based on preexisting multiple sclerosis condition

Case name: Whitney v. Pregis Corp., 119 NYWCLR 159 (N.Y. App. Div. 2019)

Summary: The Appellate Division reversed the Board's ruling that there was apportionment between the claimants preexisting multiple scleroisis and thei injury while working ont he job. The claimant was effectively performing their duties despite his preexisting condition and the condition was not the cause of his injury.

2019 African Union Day

MDASR Sponsors African Union Day Celebration

MDASR was proud to sponsor and attend the African Union Day Celebration held at Mercy College on September 9th. The event marked the inaugural “Daylight of Africa” celebration and was dedicated to Captain Mbaye Diagne of Senegal and US Soldier Private Emmanual Mensah of Ghana for their exemplary leadership and sacrifices. The African Union Day Foundation’s mission is to encourage investment, socio-economic development, and innovation in Africa. We were proud to sponsor this event and look forward to continuing our relationship with this great organization.

September 11th Victim Compensation Fund Falling Short

Our 9/11 First Responders and volunteers, the heroes of that fateful day almost 18 years ago, are now facing major health issues due to the harmful debris in the air. They, along with search and rescue team members, are now being diagnosed with aggressive cancers caused by their time spent at Ground Zero. The September 11th Victim Compensation Fund was created to support heroes and families of those who tragically passed or could no longer work due to injury or illness related to 9/11. What no one suspected is that disease and cancers caused by carcinogenic material would form a decade later. The fund has been extended to support families of those who have been affected years later but is now expected to be depleted by 2020.

First Responders and volunteers risked their lives for the weeks following the attacks and now are seeing their comrades fall sick with aggressive cancers. They now worry they will pay the ultimate price for their bravery. Experts are finding that the life expectancy of cancer patients resulting from 9/11 is about 80 percent shorter than those with cancer unrelated to 9/11. The September 11th Victim Compensation Fund has paid billions of dollars to support responders in the event they cannot work and thousands depend on it to support their families. Recently those awarded their payments after February 25th only received half of what they are entitled to and those approved after that date are scheduled to receive only 70% of what the fund has historically provided.

MDASR partner, Sean Riordan is actively involved with the 9/11 First Responders DC Lobbying Team and recently went to Washington DC to petition the extension and refunding of the Victims Compensation Act. MDASR continues to fight for the rights of all of our first responders.

Quinn Law Firm and MDASR, LLP. Announce “Of-Counsel” Partnership

Dear PBA President:

The Quinn Law Firm is pleased to announce the establishment of a work relationship with McIntyre, Donohue, Accardi, Salmonson & Riordan, LLP, (“MDASR”) in an “of-counsel” capacity, to offer our clients further representation in the fields of New York State Workers’ Compensation, New York State Disability Retirements and Social Security Disability.

Injuries suffered in the course of police duty are unfortunately commonplace. When injuries occur on the job the only way to properly protect your rights and benefits is through sound and comprehensive legal representation. MDASR has represented injured workers for over 65 years and knows exactly what steps need to be taken to ensure you receive proper medical treatment and just compensation. MDASR has a proud and extensive history of representing law enforcement officers and unions in disability claims throughout the state. MDASR understands the unique challenges police officers face daily and are devoted to applying that extensive knowledge and experience to the comprehensive and effective representation of your rights as a police officer.

MDASR’s partners are recognized throughout New York for their work in the disability field. Sean Riordan heads up the Disability Pension Department for MDASR. Sean is widely recognized as an expert in accidental disability retirement applications/claims under New York Retirement and Social Security Law § 363 (commonly referred to as “three-quarter claims”). He specializes in representing uniformed personnel in their actions against the New York State Retirement System, and has won several precedent-setting cases. Edward McIntyre, a former Sergeant with the Suffolk County Police Department, is an authority on workers’ compensation benefits and a leading advocate for officers’ disability rights. Richard Donohue, MDASR’s managing partner, heads up the Workers’ Compensation Department and is considered one of the foremost authorities on workers’ compensation matters.

In addition to the five (5) Senior Partners, MDASR has twelve (12) associate attorneys and over sixty (60) staff members dedicated to serving their clients. MDASR will be utilizing office space in our White Plains location, to effectively serve the Westchester and Rockland law-enforcement communities.

MDASR’s website is https://licomplaw.com. The main contact number is (631) 665-0609, and they also have an app that can be downloaded to your members’ smart phones. To access the app, go to the “App Store” on your mobile device and search “MDASR LAW”. The app will give your members access to a workers’ compensation or disability expert instantly. Jim Seganti (866-557-7500) will be the main point of contact for our Westchester and Rockland members.

We look forward to working with MDASR to bring our clients’ the best representation possible when faced with workers’ compensation and disability issues.

Should you have any questions about the additional services available to your organization and its membership, please do not hesitate to contact our office.

Very truly yours,

Andrew C. Quinn, Esq.


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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New Regulation Would Protect Workers Exposed to Beryllium

OSHA has recently proposed a new regulation that would help protect workers who are exposed to beryllium.  The chemical, which is released through dust, fumes, mist and in other forms, can cause a fatal respiratory disease in those who are exposed.  Annually, 35,000 workers are exposed to the chemical and 245 new cases of illnesses related to beryllium exposure arise each year.  Such illnesses include lung cancer and chronic beryllium disease- a condition causing inflammation and scarring of the lungs.  Officials estimate that implementing new regulations would prevent 100 deaths and 50 new illness cases annually.

The new regulation would lower the allowed exposure limit from 2.0 to .2 micrograms per cubic meter of air- 1/10th the current level.  The maximum amount of exposure time legally allowed is currently 8 hours.  Additionally, workers would be medically monitored to assess whether they exhibited early signs of beryllium related illness.

Beryllium, a naturally occurring element, is commonly found in the aerospace and electronics industries.  Additionally, it is also used in the manufacturing of nuclear weapons.  In fact, the Labor Department compensated 2,500 nuclear workers who were exposed to beryllium at a total cost of $500 million, to date.  The chemical can also be found in dental lab work and foundry operations.  The proposed regulation would not apply to those who work in an industry in which beryllium is found in raw materials, such as at coal burning power plants, or aluminum producing facilities.

The proposed rule is open for public comment between August 7, 2015 and November 9, 2015.  To read the proposed rule, click here.

Exposure to beryllium, or any other toxic chemical in the workplace can cause serious health conditions.  If you have suffered adverse health effects from being subjected to exposure to a dangerous substance or condition at work, contact an experienced Workers’ Compensation attorney who can advise you of your legal rights and remedies.  Call The Law Offices of McIntyre, Donohue, Accardi, Salmonson, & Riordan, LLP at (866) 557-7500.

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