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

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.

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.

Nassau COBA

Nassau COBA Retains MDASR as Disability Counsel

On Wednesday, September 25, 2019 Nassau COBA‘s Board of Governors unanimously voted to retain Sean Riordan and the Law Firm of McIntyre, Donohue, Accardi, Salmonson & Riordan to act as disability counsel for Nassau Corrections Officer Benevolent Association.

MDASR has represented Nassau COBA members in their claims for Workers’ Compensation, Disability Pensions, and Social Security Disability benefits for well over a decade. Over the years we have worked hand-in-hand with Nassau COBA to create a “visitors ¾ bill”, successfully opposed unfair Workers’ Compensation law changes and lobbied for additional benefits for 9/11 First Responders. During this partnership MDASR has been at the forefront of litigation that has expanded the parameters of coverage for Officers claiming ¾ injuries under 607-C of the Retirement & Social Security Law and has created legal precedent which helps Correction Officers throughout the State of New York.

Effective October 1, 2019, as Disability Counsel MDASR will:

  • Waive representation fee ($2,000 savings) for Nassau COBA members for on-the-job occurrences that have a NYS Workers’ Compensation claim
  • Waive representation fee ($2,000 savings) for COBA members who have a permanent injury or illness unrelated to their employment.
  • Help draft and lobby disability legislation on the federal, state and local levels.
  • Provide COBA members 24-Hour Access to an MDASR attorney in the event of an emergency related to the injury of a member.
  • Provide Nassau COBA members free disability consultations.

MDASR looks forward to working with Nassau COBA and providing them with Workers’ Compensation, Social Security Disability and Disability Pension representation.

Work injury leading to opioid addiction

Workers’ Compensation and the Opioid Epidemic

Overuse of pain killers create an opioid addiction

Abuse of opioid prescriptions can lead to addiction
Pain medication for a work-related injury can lead to opioid addiction

Countless families across the United States deal with the catastrophic effects of the opioid epidemic every day. According to the New York State Department of Health, in 2016 there were over 3,000 opioid overdose deaths in New York State alone. Although not every case is eligible for workers' compensation, individuals who were prescribed opioids after a work related injury may be entitled to substantial benefits if such prescriptions contributed to an overdose.

In 2007, our firm represented a client in a workers' compensation case following a motor vehicle collision. Our client had multiple herniated discs and his doctor prescribed opioids for pain relief. Unfortunately, during the years after his injury our client developed an addiction to his prescription opioids and passed away from an overdose. Although our client had not received a workers' compensation prescription in multiple years, we proved his overdose was related to his workers' compensation case because his underlying opioid addiction began with his workers' compensation opioid prescriptions. As a result, our client’s family will receive reimbursement for funeral expenses and our client’s minor children will receive a weekly benefit until at least their 18th birthday.

If you are struggling with an opioid addiction, you should seek medical attention as soon as possible. Additionally, if you or a loved one developed an opioid addiction as a result of a work related injury, you may be entitled to substantial compensation. Please contact our office at (866) 557-7500 or visit our website to schedule a free consultation regarding any workers' compensation, pension, or disability matter.

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

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