Tag Archives: Benefits

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Why Due Process Matters in Workers’ Compensation

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

Two recent decisions from the state supreme courts in Oklahoma and Florida point out that how an injured worker gets workers’ compensation benefits is as important as how much an employee can receive in benefits for a work injury. In the parlance of constitutional law, the how a worker receives benefits is a termed “due process.”

Oklahoma – In Vasquez v. Dillard’s, the Oklahoma Supreme Court found the so-called “Oklahoma option” violated the equal protection clause of the state’s constitution. The Oklahoma option allowed employers to create their own workers’ compensation benefit plans under the Oklahoma Employee Injury Benefit Act (OEIBA) so long as they offered the same benefits as under the state workers’ compensation program. The problem that the Oklahoma Supreme Court had with “Oklahoma option” was that employers were allowed to design plans with procedures that made it more difficult for injured workers to collect benefits than if they were in the state system. In essence, the Oklahoma State Legislature had created separate but unequal workers’ compensation systems for employees injured on the job in that state, which was a violation of the equal-protection clause of the state constitution. But the deeper reason why the Oklahoma option was overturned was that it denied due process to workers who were covered under the OEIBA.

Florida – In Castellanos v. Next Door Company, the Florida Supreme Court struck down attorney fee limits in workers’ compensation cases on due process grounds under the U.S. and Florida constitutions. The Florida court found that fee caps deterred employees from bringing claims because they would be unable to find attorneys. The court also found that fee caps encouraged employers to wrongfully deny claims because workers would be unable to find lawyers to challenge denied claims. Though Castellanos wasn’t an equal protection case like Vasquez, the Florida court pointed out that employers faced no limits on how much they paid their attorneys. Fee caps for employees only created a situation where employees and employers had unequal protections under Florida’s workers’ compensation law.

Vasquez and Castellanos challenged and overturned state laws. But there are other ways for employees to challenge unfair denials of workers’ compensation benefits besides overturning state laws. In the Brown v. Cassens Transportation cases, a group of injured workers in Michigan used a civil RICO statute (anti-racketeering law) to challenge how their employer, the employer’s claims administrator, and a defense medical examiner worked together to undermine their workers’ compensation claims. In Brown, the U.S. 6th Circuit Court of Appeals recognized that since employees gave up their right to a tort suit under Michigan law to receive certain workers’ compensation benefits, injured workers had a constitutionally protected property interest in both the receipt of workers’ compensation benefits and their claims for workers’ compensation benefits and that employer had conspired unlawfully to deny those benefits.

The court in Brown also recognized that workers’ compensation was the exclusive remedy for workplace injuries in Michigan, which is another reason why workers’ compensation benefits were constitutionally protected. The state supreme courts in Florida and Oklahoma also cited the exclusive remedy provisions of their state workers’ compensation acts to support their findings that state laws violated due process and equal protection clauses of the state and federal constitution.

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Removing The Safety Net: A National Trend Of Benefit Reductions For Injured Workers

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

Benefits for injured workers continue to be under attack throughout the country. In New York, there have been a number of changes in the last decade, all in the name of reform. These reforms were encouraging at first as they increased the weekly benefits for some higher wage-earning injured workers for the first time in decades. They also created medical treatment guidelines under the guise of allowing injured workers to obtain pre-approval on certain medical treatments and procedures. 

Unfortunately, the changes also resulted in reduction of benefits for many injured workers. Monetary benefits were capped, so injured workers deemed partially disabled could only receive a certain number of weeks of benefits regardless of their ability to return to their pre-injury jobs. The determination of the degree of disability has become a battle involving multiple, lengthy depositions of medical witnesses where the outcome is how long injured workers get wage replacement or whether they receive lifetime benefits. The criteria is not whether injured workers can return to their prior employment, but whether they are capable of performing any work at all, regardless of their past job experience or education. The battle is not limited to the amount of weeks of benefits injured workers can receive, however. The medical treatment guidelines, touted as getting injured workers prompt medical treatment, discounts the fact that if the requested treatment is not listed within the guidelines, it is denied and the burden is placed upon injured workers and their treating doctors to prove the requested treatment is necessary.

Other changes designed to cut administrative costs and court personnel include reducing the number of hearings held, thereby denying injured workers due process. There also has been a reduction in the number of presiding judges, and in many hearing locations the judges are not even at the site but are conducting hearings through video conferencing. At the end of October, the Board announced a new procedure authorizing the insurance carrier to request a hearing on whether injured workers should be weaned off of opioids that are used by many medical providers to treat chronic pain. While everyone would agree that the misuse of prescription pain medication is an epidemic in this country, many question whether the insurance industry really has the injured workers’ best interest at heart.    

As an attorney who has represented injured workers for more than 26 years, I have seen many workers successfully transition from injured worker back into the labor market. It is very encouraging to note that for many people the system has worked. They receive their treatment, which may involve physical therapy, surgery, pain management, prescription therapy, or whatever else their treating physician recommends. They are paid a portion of their prior income and after a period of convalescence, they are able to return to work. Some injured workers, however, are not so lucky. The decisions about what happens to those unable to work have been left to those who seem to care more about business and insurance industry profits. 

Just about one year ago, 14 people were killed and 22 more injured when ISIS-inspired terrorists went on a shooting rampage in San Bernardino, California. The nation and the world were horrified to hear about this tragedy and the story was in the news for many weeks. Now a year has gone by and many of the survivors have complained about treatment being denied and prescription medication being cut off.  While many injuries happen quietly without the headlines seen in the California attack, there are many similarities. It seems that when an initial injury occurs, there are many good protections and benefits in place. However, as time goes on and costs increase, injured workers are looked upon as enemies to defeat or to forget about. Unfortunately for injured workers and their families, they don’t have this luxury and they don’t have the means to fight.

Most people don’t think it will ever happen to them. That is what most of my clients have thought as well.

 

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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The Cancer Presumption in Workers’ Compensation

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

What is a legal presumption? 

Can a legal presumption be rebutted by sufficient contrary evidence?

Wisconsin workers’ compensation law contains many presumptions. For example, for firefighters, it is presumed that if a firefighter has cancer, the cancer is employment-related. The Statute applies to any State, County, or Municipal firefighter who has worked for ten years with at least two-thirds of the working hours as a firefighter who has cancer of the skin, breast, central nervous system, or lymphatic, digestive, hematological, urinary, skeletal, oral, or reproductive systems. For that firefighter whose disability or death is caused by cancer, the cancer diagnosis is presumptive evidence that the cancer was caused by employment. However, no presumption exists for firefighters who smoke cigarettes or use tobacco products for claims after January 2001. (Wis. Stat. §891.455 Presumption of Employment Connected Disease: Cancer)

Other presumptions in Wisconsin law include a presumption that a youthful worker (under age 27) is presumed to be able to earn the maximum wage rate by the time he reaches age 27, for purposes of Permanent Partial Disability, disfigurement, or death. For example, a McDonalds burger-flipper earning $10 per hour who has a severe burn is presumed (instead of the $200 or $300 he actually earns per week) to be earning $1,400 per week under the Youthful Age Presumption. Evidence of the worker’s likely inability to earn the maximum wage (due to cognitive or academic deficiency or similar lower earning work history) can be used to rebut the presumption and therefore limit the maximum Permanent Partial Disability or disfigurement award.

In a recent cancer case, the Pennsylvania workers’ compensation board found a firefighter cannot receive workers’ compensation benefits for prostate cancer because he failed to show his cancer was work-related despite a statutory presumption for firefighters. The firefighter began working for the City of Philadelphia in the 1970s and retired in 2006 after a diagnosis of prostate cancer. He filed a workers’ compensation claim saying his cancer stemmed from carcinogens he was exposed to while working as a firefighter, such as diesel fumes from fire trucks, second hand tobacco smoke from co-workers, and smoke from burning debris he encountered while fighting fires. Note he also acknowledged he smoked an average of a half pack of cigarettes daily since the 1960s. His doctor’s testimony that his carcinogen exposure caused the prostate cancer was rebutted by the City’s physician indicating that prostate cancer is typically more of a “disease of aging than it is of external influence.” The Judge, in denying the claim, noted “Any elevated risks for prostate cancer among firefighters might also be explained by other factors, such as detection bias, ethnicity and geography.”

The cancer presumption in Wisconsin (for non-smoking firefighters) would be more difficult to rebut, but factors such as family history may prove the “other evidence” necessary to rebut the presumption.

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A Dismantling of the Grand Bargain That Created Workers’ Compensation

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

This week marks the official start of the holiday season. It is a time for family and loved ones, and a time to reflect on the blessings that we have received in our lives. This week marks the countdown to a number of holidays including Christmas, Hanukah and Kwanzaa. Unfortunately for some people, however, the holiday season is fraught with anxiety, depression, illness and injury. Many people who sustain work-related injuries find that without their weekly salary, the holidays are a stark reminder of how their lives have changed dramatically. The inability to provide for even the basic necessities, let alone splurge on holiday presents, is a prescription for depression.

The Grand Bargain Premise of Workers’ Compensation laws in this country is that the employer, through their insurance carrier, is responsible to pay for injured workers’ medical treatment, lost wages, and permanent disability in exchange for injured workers giving up their rights to sue their employers for negligence. During the last couple of decades, Workers’ Compensation benefits have been under the continuous scrutiny of the Business Council, which has been alleging that the cost of benefits to injured workers is at the root of their increase in costs and reduction in profits.

However, a report from the National Academy of Social Insurance (NASI) indicates otherwise. Benefits as a percent of payroll declined in 46 states between 2010 and 2014, continuing a national trend in lower benefits relative to payroll that began in the 1990s. Costs to employers, on the other hand, continue to climb. Between 2010 and 2014, employer costs associated with Workers’ Compensation – such as insurance premiums, reimbursement payments, and administrative costs – grew at a rate nearly five times faster than benefits. Instead of using employers’ money to provide benefits for injured workers, insurance companies pay a host of businesses, including insurance medical examiners, nurse case managers, vocational rehabilitation companies and defense counsel, all of which profit from the system at the expense of workers and reap record profits for themselves. Meanwhile, the insurance industry and the Business Council falsely blame the claims of disabled workers so they can continue to increase profits by slashing benefits and shifting costs to taxpayer-funded programs instead of employer-paid insurance.

Benefits in New York have decreased under the current Workers’ Compensation system. The changes in the law in 2007 allowed higher wage earners to benefit in the short term as the amount of their weekly benefits has increased. However, these benefits are only available for a fixed period of time. If injured workers are able to return to work after a short period of lost time and a limited period of medical treatment, then some may say the system is a success. Unfortunately for many severely-injured high and low wage earners, the Grand Bargain wasn’t so grand. Medical providers’ hands are tied by Medical Treatment guidelines that limit the amount of treatment authorized based upon “best practices” or cookie cutter treatment, as opposed to what is recommended by the treating doctor. Now there is the prospect of limiting prescription medications as well, all in the name of cost reduction.

The reduction of medical treatment based on the treatment guidelines to injured workers should not imply they are fully recovered. Also, they don’t all return to work once they reach their indemnity cap. The cost of providing monetary benefits and medical treatment are shifted to the taxpayers to pick up the tab. Injured workers don’t expect that the very act of working will forever alter their lives in a negative way. Workers’ Compensation benefits are not a charitable donation, but an entitlement based upon a compromise between workers and their employers. Unfortunately, it is clear that these benefits have been gradually eroded. We should not allow any legislation that further erodes these benefits. While the holidays will continue to bring depression and despair for some injured workers, it should not be as a result of our treatment of them afterward.

 

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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New Employees Face Higher Risk, Harder Consequences for Work Injuries

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

As the holiday season approaches, many people will take on second or holiday jobs. Workers taking on such jobs will be taking on a heightened risk of injury. One academic study showed that temporary employees are two to three times more likely to be injured. An Omaha-based construction company found that 65 percent of lost-time injuries took place in the first 90 days of employment (this link is a downloadable presentation). This blog post will describe some causes of injury and then talk about some particular challenges faced by new employees who are injured.

Slips, trips and falls are the most common cause of work injury. This hazard can be particularly acute during the winter in retail and restaurant jobs because customers will track in snow and other moisture. Strain from lifting is also a common injury. Warehouse work is in high demand over the holiday season, and one risk particular to such work is the risk of falling pallets or boxes.

One challenge that new employees face when they get hurt is how to calculate their disability benefits. A worker may not have been employed long enough for an employer and/or insurer to accurately determine how much the employee should be paid in benefits after getting hurt. One approach may to be base this benefit rate on pay of similarly situated co-workers. If you believe you are getting shortchanged on benefits because you were a new employee when you were hurt, you should contact a lawyer.

Workers’ compensation is supposed to pay you benefits regardless of your fault in the injury. But fault can still play a role in work-injury claims. If your injury was the fault of someone other than your employer or a co-worker, then you might be able to pursue a negligence case against that party. Unfortunately, some employers have tried to reintroduce fault into the workers’ compensation system, to the detriment of newer employees. Some employers will fire or discipline employees who have preventable or lost-time accidents during the beginning of their employment. In my view, such policies amount to employers almost admitting that they are retaliating against employees who get hurt at work. If you have been disciplined under such a policy, you should contact an attorney.

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Labor Report Urges Study Of A Federal Role In State Workers’ Comp Laws

Howard Berkes and Michael Grabell have been investigating the decline of workers compensation for Pro Publica and NPR.

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

Howard Berkes and Michael Grabell have been shining a light on the deterioration of state workers’ compensation benefits over the last decade. A new U.S. Department of Labor report bolsters their investigative journalism, noting that those hurt on the job are at “great risk of falling into poverty” because state workers’ compensation systems are failing to provide them with adequate benefits.

The Workers Injury Litigation Group (WILG) has been fighting against this decline for 20 years, and we will continue to advocate for fair benefits for injured workers. The following is a summary of Mr. Berkes and Grabell’s recent article:

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

A “race to the bottom” in state workers’ compensation laws has the Labor Department calling for “exploration” of federal oversight and federal minimum benefits.

“Working people are at great risk of falling into poverty,” the agency says in a new report on changes in state workers’ comp laws. Those changes have resulted in “the failure of state workers’ compensation systems to provide [injured workers] with adequate benefits.”

In the last decade, the report notes, states across the country have enacted new laws, policies and procedures “which have limited benefits, reduced the likelihood of successful application for workers’ compensation benefits, and/or discouraged injured workers from applying for benefits.”

The 44-page report was prompted by a letter last fall from 10 prominent Democratic lawmakers, who urged Labor Department action to protect injured workers in the wake of a ProPublica/NPR series on changes in workers’ comp laws in 33 states.

The ProPublica/NPR stories featured injured workers who lost their homes, were denied surgeries or were even denied prosthetic devices recommended by their doctors.

“The current situation warrants a significant change in approach in order to address the inadequacies of the system,” the report says.

That’s where federal intervention comes in. The Labor Department calls for “exploration” of “the establishment of standards that would trigger increased federal oversight if workers’ compensation programs fail to meet those standards.”

The agency also suggests a fresh look at reestablishing a 1972 Nixon administration commission that recommended minimum benefits and urged Congress to act if states failed to comply.

“In this critical area of the social safety net, the federal government has basically abdicated any responsibility,” says Labor Secretary Thomas Perez.

Without minimum federal standards for workers’ comp benefits, Perez adds, the current system “is really putting workers who are hurt on the job on a pathway to poverty.”

Prior to the report’s release, employers, insurance companies and others involved in workers’ comp programs expressed alarm at the possibility of federal intervention.

“There has never been federal ‘oversight of state workers’ compensation programs’,” says a statement posted on the website of a group called Strategic Services on Unemployment and Workers’ Compensation, which says it represents the workers’ comp interests of the business community.

“Federal requirements imposed on a national basis would be inconsistent with the state workers’ compensation system, which has been in place for more than 100 years without federal oversight,” the group wrote.

Federal minimum benefits could ensure that injured workers across the country would not receive lesser benefits for often shorter periods of time simply because they lived in a state where lawmakers dramatically cut workers’ comp costs for employers.

“This is a system with no federal minimum standards and absolutely no federal oversight,” says Deborah Berkowitz, a senior fellow at the National Employment Law Project. “Clearly, more federal oversight is necessary to assure that that this system works for those most in need of assistance.”

No direct administrative or legislative action is proposed in the report, but Sen. Sherrod Brown, D-Ohio, says he’s “drafting legislation to address many of the troubling findings laid out in this report and will be working with my colleagues to advance it in the next Congress.” 

Brown echoes Perez, saying injuries on the job shouldn’t force workers into poverty.

“But without a basic standard for workers compensation programs, that’s exactly what’s happening in too many states across the country,” Brown adds. 

Another incentive for federal involvement, the report notes, is a shift of billions of dollars in workplace injury costs to taxpayers when state workers’ comp benefits fall short and workers are forced to turn to Medicare and Social Security for treatment and lost wages.

The report lays the groundwork for federal intervention by providing an extensive section detailing the government’s role in promoting national benefits standards in both Republican and Democratic administrations dating back to 1939.

But many in the workers’ comp world consider workplace injury policy and regulation a states’ right and any prospect of a controlling federal role will likely face stiff resistance.

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Can I Collect Unemployment and Workers’ Compensation Benefits at the Same Time?

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

In Nebraska, an injured worker who is laid off, fired or leaves a job for good cause can collect unemployment benefits and still receive Temporary Partial Disability (TPD) benefits and Permanent Partial Disability (PPD) benefits from the workers’ compensation insurance company. The Nebraska Labor Department unemployment law does not allow a worker to receive unemployment during the same week the person is paid Temporary Total Disability (TTD) workers’ compensation payments.

To receive unemployment benefits, the injured worker must be ready, willing and able to work.  As long as injured worker is ready, willing and able to work within one’s own restrictions, that worker can receive unemployment benefits during the same week that they are entitled to TPD and PPD benefits. 

If a person is totally unable to work and getting TTD benefits, that person cannot receive unemployment benefits since they, by definition, are not ready, willing and able to work.

Under the workers’ compensation laws, it is also important to remember that compensation benefits cannot be offset with what is paid under the unemployment benefits. For guidance, please refer to Nebraska Statute 48-130 that supports this rule of law.

If you have been laid off or terminated, you are still entitled to workers’ compensation benefits in the above situations.

If you have any questions, call us for a free consultation.

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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.