Tag Archives: Benefits

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Action Needed To Ensure Sick 9/11 First Responders Receive Benefits

Animal Control Officer Diane DiGiacomo

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

A couple weeks ago, the Workers’ Compensation community was stunned over the outcome of the case of Animal Control Officer Diane DiGiacomo who developed cancer from exposure to toxins in the air after 9/11. Diane’s job was to search for and rescue pets near Ground Zero when many of the buildings surrounding the area were either evacuated or abandoned for weeks after the terrorist attack. 

Diane had filed a Workers’ Compensation claim after being diagnosed with breast cancer that had metastasized to her brain. The judge ruled that she was not entitled to New York State Workers’ Compensation benefits because she had not filed a timely claim. At the time of the ruling, Diane was bedridden and weighed a mere 60 pounds. Tragically, four days after the decision, she died as a result of her cancer. While my firm did not represent her, Diane’s tragic story touched many of us in the industry, whether as advocates for the injured worker or as defense counsel. What makes this case particularly sad is that the judge noted it was clear from the medical evidence that the cancer developed at least in part due to her exposure to the toxins in the air. Unfortunately, Diane was not entitled to Workers’ Compensation benefits because the deadline to register had passed.   

In order to be able to obtain Workers’ Compensation benefits for exposure after the 9/11 attacks, those who participated in the rescue, recovery, and clean up operations had to file a TWC-12 registration form prior to the current deadline of September 11, 2014. You did not have to actually be sick to file this form, but it preserved your rights if you worked in the area to file a claim later if you were found to be sick. It should be noted that the deadline has been extended twice because many of the illnesses such as cancer are slow starting and do not manifest themselves until many years after final exposure to toxins. The New York State Legislature has not extended this deadline again, at least as of this date.  

Officer DiGiacomo did not file her claim until sometime after September 11, 2014, because she was not actually diagnosed with cancer until after this date. According to the New York State Workers’ Compensation Board website, as of September 11, 2011, there were close to 49,000 WTC- 12 forms filed; however, hundreds or even thousands more may have been at the site doing rescue, recovery, and clean up and have not registered precisely because they were not sick as of the deadline or they didn’t know they had 9/11-related medical conditions. Perhaps it was based on their lack of understanding of the law or the opinion of some that they did not want to register because they somehow felt they would be taking benefits away from those who were already ill. Whatever the reason, it is imperative that the deadline once again be extended so that those who are currently ill, or become ill, have the full protection of the law.  

A bill introduced in the New York State Assembly by Assemblyman Peter J. Abbate, Jr., and co-sponsored by Assemblyman Phillip Goldfeder to extend the deadline to September 11, 2017, is still sitting in Committee. While Officer DiGiacomo did not live long enough to see the deadline extended, it is not too late to compensate her son and the rest of her family. Let’s make sure that those who helped get our city back on its feet are not forgotten.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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Workers’ Compensation Basics: Payments to Workers and their Families

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

Here’s the next installment in the firm’s series that focuses on the basics of the workers’ compensation system. It gives information on how payments to injured workers and/or their families are handled. 

Workers’ compensation generally pays by the week, although it may be paid bi-weekly or monthly in some circumstances. The amount of the payment is established by state laws or statutes, regulation or court decision. 

Family members are paid in the event of the death of a worker arising from an accident or disease. Family members are occasionally paid for providing home-health care.     

The amounts paid and duration of payment varies from state to state. Generally there is a minimum and a maximum. The maximum is usually two-thirds of the gross wages earned, with a limit that is adjusted from time to time. 

To calculate the amount actually paid, most states use average wages for a specified number of weeks or months before the injury, death or disease. 

Payments are made for temporary inability to work, which is generally labeled temporary total disability. There may be a waiting period before payments begin. The waiting period varies from state to state. 

Payments are also made when a worker is temporarily limited to light duty and working either fewer hours or for a lower rate of pay. These benefits are called temporary partial disability. 

Payments are made for permanent inability to work and, if severe enough, some states pay for the worker’s lifetime. Some states do not pay for less than lifetime. These benefits are called permanent total disability. 

Payments are made for permanent reduction of the ability to work. This benefit is normally labeled permanent partial disability. 

Payments that are made for loss of body parts or limited use of body parts are also labeled permanent partial disability. State law establishes the value of the various body parts. 

Payments are less frequently paid while workers are participating in retraining or vocational rehabilitation. This is not a common benefit. 

WORKERS’ COMPENSATION DOES NOT PAY FOR PAIN AND SUFFERING. 

It is important to contact an experienced workers’ compensation lawyer if you have questions or concerns about any of the information shared here. Please read the previous blog posts in the workers’ compensation basics series by clicking on these links: 

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Is a Pulmonary Embolism Compensable under Workers’ Compensation?

Today’s post comes from guest author Brody Ockander, from Rehm, Bennett & Moore.

The short answer is yes, but it could be difficult to prove if it is not directly related to another workers’ compensation injury. In Nebraska, proving a pulmonary embolism and deep vein thrombosis (DVT) requires the same legal and medical causation tests as a heart attack or stroke (see Zissin v. Shanahan and Wingfield v. Hill Brothers Transportation, Inc.).

What that means is legal causation must be proved by showing that exertion or stress encountered during employment is greater than that experienced during the ordinary non-employment life. Then, it must also be proven by medical causation: i.e., show that the employment contributed in some material and substantial degree.

On the other hand, if someone develops DVT as a result of another injury caused by work, it would probably be much easier to meet the causation required to prove compensability. For example, let’s say a worker injures his knee during work and has surgery on that knee. Then, as a result of the surgery, a postoperative complication of DVT arises and eventually becomes a pulmonary embolism. In that scenario, the pulmonary embolism is clearly related to the work injury and clearly compensable.

Absent a prior injury, however, causation must be met by the standards stated above, which will be very fact intensive. An example of this scenario came up in the recent case, Wingfield v. Hill Brothers Transportation, Inc., 288 Neb. 174. In that case, a truck driver for 35 years asserted that his deep vein thrombosis and pulmonary embolism was from sitting while driving a truck so long. The workers’ compensation court dismissed the cases, holding that the truck driver did not adequately prove legal and medical causation.

This case illustrates how difficult the causation standard is for pulmonary embolism cases that are not directly linked to a work injury. These types of cases will almost certainly require the assistance of a lawyer. 

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Yes, Monetary Benefits Are Available For Injured Volunteer Firefighters

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

I recently read the news about a benefit fundraiser being held for the widow of a Long Island volunteer firefighter who died in the line of duty when the floor he was on during a fire collapsed. The volunteer, only 43 year old, left behind a widow and a 19-year-old daughter.  He had served his community for 17 years as a volunteer and in addition, worked for the Nassau County Public Workers Department. This tragedy once again reminds us of the dangers of the firefighting profession.

Most New York City residents are protected by a paid force of brave men and women who are employed by the City. The Fire Department of New York is the largest municipal fire department in the United States, employing more than 10,000 uniformed firefighters. I am proud to say that my brother Danny serves as a Lieutenant in the FDNY, and my brother Bob and my dad are both retired from the force.   

There are still nine volunteer fire companies left in New York City that respond to calls in their neighborhoods; more than half of them are located in Queens – West Hamilton Beach, Broad Channel and the Rockaways. As these men and women are not compensated for their service to their communities, most of them have paying jobs elsewhere. However, they are still entitled to benefits if they are ever injured on the job. The New York State Workers’ Compensation Law provides benefits for those volunteers injured in the “line of duty” or engaged in activities pursuant to orders or authorization. These duties include, but are not limited to, participation in fire drills; travel to and from fire calls or authorized activities; firehouse duties; property inspections; attendance at fire instruction and training; and authorized drills, parades, funerals, reviews or tournaments. An “injury” includes any disablement of a volunteer firefighter that results from services performed in the line of duty and any disease that may arise from an injury.    

Monetary benefits include payments for loss of earning capacity up to $400 per week, death benefits to surviving spouse and/or minor children up to $800 per week, and schedule loss-of-use awards based upon loss of function to a limb, loss of vision, loss of hearing, and facial disfigurements. Additional monetary awards are given to cover funeral expenses. Furthermore, volunteer members are entitled to receive necessary medical care for treatment and recovery from their disabilities. Notice must be given to the proper party within 90 days of the incident, and claims must be filed within two years of the accident or death. 

In many instances the monetary awards are inadequate to properly compensate an injured volunteer or a surviving spouse or child of a hero. The fact that a fundraiser is even necessary for the family of the firefighter who was killed in Long Island is inconceivable. While it is clear that Volunteer Firefighter benefits will never truly compensate for those who are injured or killed on the job, the knowledge that there are benefits available will hopefully ease some of the financial strains for those in our community who serve. I saw a wonderful quote recently that said “volunteering is the ultimate exercise in democracy. You vote in elections once a year, but when you volunteer, you vote every day about the kind of community you want to live in.” So to those who serve, I am truly grateful, and to the family of fallen hero Joseph Sanford, Jr.  – his sacrifice will never be forgotten.

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.   

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Workers’ Comp Programs Further Injure Injured Workers

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

Those of us who represent injured workers have known for a long time that workers’ compensation does not restore an injured worker to his pre-injury wage or status.  Two reports released in March show how workplace injuries have failed injured workers and leave them deeper in debt.  OSHA released a report indicating the changes in workers’ compensation programs have made it much more difficult for injured workers to receive benefits or medical expenses.  Although employers pay insurance premiums to workers’ compensation insurance companies who are supposed to pay benefits for medical expenses, employers provide just 20% of the overall financial cost of workplace injuries through workers’ compensation according to the OSHA report. 

This “cost shifting” is borne by the taxpayer.  As a result of this cost shifting, taxpayers are subsidizing the vast majority of the income and medical care costs of injured workers.  After a work injury, injured workers’ incomes average more than $30,000 lower over a decade than if they had not been injured.  Additionally, very low wage workers are injured at a disproportionate rate. 

Another report by ProPublica and National Public Radio found that 33 states have workers’ compensation laws that reduced benefits or made it more difficult for those with certain injuries and diseases to qualify for benefits.  Those hurdles, combined with employers and insurers increasing control of medical decisions (such as whether an injured worker needs surgery) reduced the worker’s likelihood of obtaining the medical care needed.

Overall, injured workers who should be paid under workers’ compensation are receiving less benefits and their medical care is being dodged by insurers and paid for by taxpayers through Medicaid and Medicare, or by increased insurance premiums for all of us through group health insurance rate increases.

Our general sense that injured workers are faring poorly is borne out by the research.

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Facebook Postings Hurt Workers’ Compensation Claims

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

While Facebook is extremely popular and used by over a billion people every day, no Facebook posting has ever helped an injured worker in a workers’ compensation claim. On the contrary, use of a Facebook page poses real dangers for injured workers pursuing workers’ compensation benefits.

Since Facebook is a public site, anything posted can be used by respondent insurance companies in claims denial. Even the most benign postings (birthday parties, family gatherings, etc.) can pose problems. For example, a grandparent lifting a 30 pound grandchild when doctors have imposed a 10 pound lifting limit could damage a claim. Additionally, nothing prevents an Administrative Law Judge from looking at a Facebook page.  Even innocent posts may be subject to misinterpretation. A picture of the worker riding a motorcycle or fishing taken prior to the injury but posted afterward could place the seed of doubt in an ALJ’s mind that the worker is not as limited as he claims. The best advice is to be extremely careful about what is posted because “friends” are not the only one who can access your Facebook page.

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File a Workers’ Comp Claim – Get Fired

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

A new study from the Workers Compensation Research Institute (WCRI) indicates trust or mistrust in the work relationship plays a significant role in the outcome of a workers’ compensation claim.  In a recent benchmark study in Iowa by WCRI, almost four out of ten workers interviewed reported they were concerned they would be fired or laid off after they were injured. 

The Iowa study reflects similar results in Wisconsin and other benchmark states.  All workers who were interviewed received workers’ comp benefits and experienced more than a week of lost work time.  Additional findings noted two-thirds of the injured Iowa workers had other health conditions (having smoked for ten years or had diabetes or lung conditions).  Obviously those with significant pre-existing conditions had predictably worse results.

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Worker’s Compensation Benefits Increase; Employers Costs Historically Low

Today’s post comes from guest author Thomas Domer, from The Domer Law Firm.

A new study released by the National Academy of Social Insurance (NASI) indicates worker’s compensation benefits rose by 1.3% to $61.9 billion in 2012 while employer costs rose by 6.9% to $83.2 billion. Even though total benefits and costs increased in 2012, worker’s compensation benefits and costs per $100 of covered payroll have been lower from 2007 to 2012 than at any time over the last 30 years. In 2012 benefits were 98 cents per $100 of covered payroll while employer costs were $1.32 per $100 of covered payroll. 

Over the last 30 years medical benefits have accounted for an increasing share of total benefits from 33% in 1984 to nearly 50% in 2012. Medical benefits accounted for almost 50% of the $61 billion in total benefits paid. In Wisconsin medical benefits exceed cash benefits, indicating that medical cost containment is a significant issue.

The Academy’s report Worker’s Compensation: Benefits Coverage and Costs 2012 is the 17th in an annual survey. The report provides the nation’s only comprehensive data on worker’s compensation benefits coverage and employer costs.