Tag Archives: Injury

Improper Body Mechanics While Lifting Far From Only Cause Of Nursing Injuries

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

A commenter on our firm’s Facebook page stated the use of proper body mechanics will prevent nurses from getting injured. There is some truth to that statement, but there are many ways, probably not limited to this list, that nurses can get injured that aren’t related to lifting at all. Here a few I’ve encountered recently:

  1. Inadequate staffing – There is a strong correlation between staffing levels and nursing injuries. Nurses, especially CNAs, may be forced to lift or move patients on their own because of inadequate staffing or lack of equipment. Nurses may also be forced to prevent patients from suddenly falling. Use of proper lifting techniques may not be possible in such situations.
  2. Patient attacks – Studies show patient attacks on nurses are on upswing. I see a lot of this in nurses that work in mental or behavioral health.  Even they aren’t nurses, many direct care workers and human services technicians who work in mental and behavioral health are vulnerable to patient or client attack. It’s hard to argue a patient attack is the fault of the nurse
  3. Slips and falls – Slip and falls are a common type of work injury. I represented a nurse working at a dialysis clinic who injured their back when they slipped in pool of urine.
  4. Environmental and chemical exposures – In rural areas, many nursing or medical facilities are in older buildings that are vulnerable to mold and other environmental exposure. If you work in a sick building, it’s hard to argue that’s your fault.

Even if you use proper technique, repetitive heavy lifting can still cause strain and can be disabling in some instances. Nursing personnel are particularly vulnerable to these types of injuries.

I want to make one thing crystal clear: whether a nurse or any other employee is injured because of improper lifting technique THOSE INJURIES ARE STILL COVERED BY WORKERS COMPENSATION! (most of the time) In exchange for no-fault compensation, employees give up the right to sue their employer for negligence. While this might not seem like a grand bargain to a worker who was hurt to no fault of their own, that compromise is the cornerstone of workers compensation.

While the idea of no-fault compensation for work injuries is a winner in a court of law, the idea is more controversial in the court of public opinion as expressed on social media. There is an idea out there that filing a workers’ compensation claim is “milking the system” and that you certainly shouldn’t file a claim if you are at-fault for the injury. Statements that nursing injuries can be avoided, if nurses just use proper lifting techniques is consistent with that line of thinking.

A lot of hostility to those who bring work injury claims and their attorneys stems from concepts like “personal responsibility.” But when a nurse is hurt on the job because of understaffing, slipping on urine on the floor or a toxic building, the employee isn’t fully able to hold their employer responsible for the full extent of their harms even if the employer is fully responsible for the harm.

There is also the assumption that workers compensation claims are fraudulent. But would it be fair to assume that all nursing homes defraud Medicare and Medicaid just because one chain of homes in Florida defrauded the government $1 billion? No, it wouldn’t and the same is true for workers’ compensation claims. Ultimately entitlement to workers’ compensation benefits is determined in court where employees are subject to medical examination from doctors picked by insurance companies. Injured workers are also subject to written and oral questioning from insurance company lawyers. Employees usually have formidable barriers to win compensation in a disputed workers’ compensation case, so the idea that fraudulent claims run rampant is absurd.

The Three Stooges Get Workers’ Comp: Why Backs Trump Knees and Shoulders in Wisconsin

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

Wisconsin’s unique workers’ compensation system contains one significant distinction, between “limb” injuries and “spine” injuries. Limb injuries (shoulders, elbows, wrists, hips, knees) are not worth as much to the injured worker as a spine injury.

To illustrate this problem to my law students, I use the 3 Stooges example: Moe, Larry and Curly work for a tree service earning $15 per hour or $600 per week. A tree branch falls on all three of them, injuring Moe’s shoulder, Larry’s knee, and Curly’s neck. They are all off work for 10 weeks while they are healing from surgeries required by the injury. During that time they received Temporary Total Disability at two-thirds of their wage or $400 per week, a total of $4,000 for each of them. After they are done healing, all three of their doctors assign a 10% functional disability rating for their injury and a 10- pound lifting restriction, which their employer cannot accommodate.

Moe gets 10% of 500 weeks for his shoulder payable at $362 per week, or a whopping total of $18,100 – making his total workers’ comp recovery just over $20,000.

Larry gets 10% of a knee or 42.5 weeks at $362 per week, or $15,385 – making his total recovery just under $20,000.

Curly, who had a neck injury and surgery, gets 10% of 1000 weeks at $362 per week, or $36,200. However, since he cannot return to the tree company, he also gets a recovery for his Loss of Earning Capacity. Based on his 10- pound restriction and his very limited education, he is probably limited to a minimum wage or part time job which would result in a 50% Loss of Earning Capacity, payable for 500 weeks or a total of $181,000. If his disability is serious enough, he may in fact receive his $400 per week for the rest of his life, bringing his total to well over a half million dollars.

That’s why many workers’ compensation attorneys (and insurance companies) focus their attention on spine injuries.

The Road Ahead: Adjusting To Life After An Injury

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

As an attorney who has represented injured workers for more than 27 years, I see first hand what an injury can do to workers and their families. A number of years ago I represented an injured electrician, who as a result of an overextension injury sustained on the job, ended up having multiple surgeries. Almost immediately, this once athletic, high wage earner with a beautiful family and comfortable lifestyle saw an abrupt end to the life he knew.

My client faced a debilitating injury. He was no longer able to travel, his personal relationships suffered, and his once strong physique withered away. His financial situation was dire and he was unable to afford his home. Beside the extreme physical impairment, he ended up being treated for major depression. Both the insurance carrier’s medical providers, as well as the claimant’s treating doctors in this particular case, agreed that the claimant was totally disabled or incapable of performing any meaningful work activity – a standard not easy to meet.

Many of those injured on the job may not be able to return to their prior employment. Yet, according to the law, that does not mean they are totally disabled from any employment. If they are able to perform any work activity at all then they may be considered partially disabled. The amount of weekly payments an injured person receives and the length of time an injured worker receives these benefits is dependent upon a number of factors including degree of disability and loss of earning capacity. A partial disability can be considered mild, moderate, or marked.  These degrees are further broken down into when an injury is deemed permanent to a percentage loss of earning capacity. In some cases the difference of one percent loss of earning capacity can mean the difference of a full year of additional benefits. As you can imagine, much of my practice is consumed with litigation regarding the degree of disability and the loss of earning capacity.

The road for those who are partially disabled is not an easy one. Despite the Workers’ Compensation Board’s determination that an injured person has an ability to perform some work activity, it does not always translate into being able to obtain employment. In the case of serious injuries resulting in extensive lost time, the employer may have had to fill the position or the employer may not be able to accommodate the physical limitations. This puts injured workers in a position of having to look for alternate employment that they may not be trained for. The Board recommends a number of resources available to those seeking assistance, including one-stop career centers, as well as participating in vocational rehabilitation programs and continuing education such as SUNY Educational Opportunity centers adult career and continuing education. For more information go to www.wcb.ny.gov/labor-market-attachment

Many workers who are unable to obtain employment because of their injuries apply for Social Security Disability benefits. The standard for Social Security disability is different than Workers’ Compensation and relies more on the age and ability of the injured person to be retrained and to obtain relevant future employment. Social Security Disability benefits are payable for any illness or injury and do not have to be work related. All medical conditions are considered by the federal judge when making a determination as to eligibility, including physical or emotional impairments.

While an injury on the job can be life altering, there are resources available. You may never be able to return to your pre-injury status, but knowing your options allows you the ability to have some control over your future.

 

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.

Protecting Yourself At Work: What To Do If There Is An Active Shooter

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

As an attorney who has been practicing before the New York State Workers’ Compensation Board representing injured workers for more than 27 years, I am drawn to organizations that assist workers. That’s why I am a member of the New York Committee for Occupational Safety & Health (NYCOSH), whose mission notes that every worker has the human right to a safe and healthy workplace and that workplaces injuries are often preventable. As a member, I receive many emails with various announcements regarding workplace safety, as well as statistics of injuries and deaths that occur on the job, many of which are preventable.

It is a sign of the times that on May 23, 2017, I received an email about educating workers on how to best respond in case of an active shooter. NYCOSH, along with the New York City Central Labor Council (NYCCLC), was sponsoring the event that was meant to educate participants on what actions to take to prevent and prepare for potential incidents, including what to do when an active shooter enters the workplace. Many of the cases that make front page news are mass shootings or those in the name of terrorism. Few of us can forget the Islamic extremist, who along with his wife fatally shot 14 of his co-workers at a Christmas party. Many of us go about our workday never anticipating a disgruntled employee, a client harboring a grudge, a terrorist, or a coworker intent on robbery, who may come to our workplaces with murder on their minds. When NYCOSH set out to sponsor their recent event trying to deal with a growing problem in this country, there was no way of knowing that workplace shootings would be in the national headlines three times in just two weeks. 

Last week we were shocked and appalled by the images of Republican Senators and their colleagues being shot at by a deranged person not happy with current politics. While many of our elected officials have heavy security when they are at work in the Capital’s office buildings, these members were on a ballfield early in the morning practicing for a charity baseball game taking place the next day. Despite the close proximity of the Capitol Police there to protect Steve Scalise, the current United States House of Representatives Majority Whip, five people were shot. Thankfully the sole fatality was the shooter himself.

In Orlando in early June, a disgruntled ex-employee systematically shot and killed five coworkers and then himself. A week later, a UPS employee in San Francisco walked into a UPS facility and killed three coworkers before killing himself.

According to the Bureau of Labor and Statistics, in 2015 there were 354 homicides by shooting at the workplace. There were 307 in 2014, 322 in 2013, 381 in 2012, and 365 in 2011. Based on these statistics, it is clear that this is not an issue going away anytime soon. These are scary times and we all need to prepare for this new normal. 

While I was not able to attend the NYCOSH event, I did go to the website for the U.S. Department of Homeland Security, which offered these suggestions for responding when an active shooter is in your area.

  • Evacuate if you can.
  • Run as fast as you can and leave everything behind.
  • Just get out if possible.
  • If there is no accessible escape route, then hide somewhere and lock and blockade the door and silence any noise such as a radio or cell phone.
  • Lastly, if your life is in imminent danger, take action and try to incapacitate the shooter.
  • Throw things.
  • Use anything as a weapon.
  • Don’t go down without a fight.

It’s unfortunate that we even have to talk about protecting ourselves from active shooters. But in today’s day and age, we can never be too careful. As a mother, I worry for the safety of my children when they walk out the door as I’m sure many of you do as well. As a lawyer, I worry about the safety of workers every day on the job who are continually dealing with workplace injuries that could have been prevented.

 

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.

Post-Injury Drug Test? OSHA Says Not So Fast

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

Workers who report an on-the-job injury may not be subject to mandatory drug testing if a new rule from the Occupational Safety and Health Administration that prohibits blanket post-injury drug tests withstands a court challenge from employers.

In May, OSHA published a rule prohibiting employers from having policies that force employees hurt on the job to take drug tests because of concerns about retaliation. This blog has long recognized the potential for retaliation that mandatory drug tests pose and supports the proposed rule by OSHA. OSHA’s new rule was drafted at roughly the same time as the release of the U.S. Department of Labor report that was critical of the shortcomings in state workers’ compensation systems.

Though OSHA implemented the limits on drug testing to limit retaliation, the rules limiting drug testing also help preserve employee doctor choice, which is an integral part of workers’ compensation law in Nebraska and other states. Many employers will inform employees that they must get drug tested at an occupational medicine clinic if they have a work injury even if workers have a right to see their own doctor. This can lead to employees being forced back to work too soon and or not receiving sufficient treatment for their work injuries. Both the fear of retaliation and the circumvention of doctor choice rules lead the costs of work injuries to be borne by employees, which is a major concern of the Department of Labor.

Due to push back from employers, the rule’s enforcement will be postponed until Nov. 1 and will likely be delayed longer due to a court challenge to the rule. A challenge to a Labor Department rule deeming that home health aides were employees for the purposes of the Fair Labor Standards Act took over a year to work its way through the federal courts, until it was upheld by a federal circuit court in June.

Even if the rule is implemented, post-injury drug testing will not disappear from the workplace. Employers can still test if they have a reasonable suspicion of intoxication or drug use. Most federal and defense contractors will be exempt from the OSHA rule, as well as truckers and railroad employees. Furthermore, in states with drug-free workplace laws, mandatory post-injury testing may still be permitted, depending on the language of the statute. Nebraska allows employers to fire an employee who refuses a lawful request for a drug test. If the new OSHA rule is ultimately upheld by the federal courts, I would expect a push by employers to amend drug-free workplace laws.

Injured As A Result of 9/11? The World Trade Center Accidental Disability Deadline Is Approaching

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

I recently traveled to Virginia with most of my immediate family to celebrate my father’s 80th birthday. While he is not in the best physical shape, he was clearly touched that we all came to wish him well as he celebrated this milestone birthday. As an added bonus, we also got to visit with my grandmother, Mary Walsh, who will celebrate her 109th birthday in August. 

My dad was a New York City firefighter for many years. Unfortunately, quite a few of his current health issues were caused by his exposure to smoke while battling fires during the worst years – the 1970s and 1980s – the City of New York has seen in terms of firefighting calls. Along with the smoke inhalation, years of carrying heavy packs, rescuing people and sustaining burns, broken bones, and other injuries have wreaked havoc on his body. While he saw more than his share of death and destruction, it pales in comparison to the losses the City sustained on September 11, 2001, when 411 emergency responders, including 343 firefighters, lost their lives. Even more distressing is that according to statistics, more than 850 additional first responders have died as a result of 9/11 related illness since that day. Just two weeks ago in fact, retired firefighter Robert Newman from Patchogue, Long Island, died from cancer as a result of breathing in toxins at the World Trade Center.

Many of these first responders initially retired without realizing the extent of their illnesses, and that they were entitled to compensation for their injuries. While Workers’ Compensation benefits are not available to uniformed employees of the FDNY or NYPD who participated in the rescue, recovery, or cleanup operations, they are still eligible for certain benefits.

In 2005, the World Trade Center (WTC) Disability Law took effect in New York State. This law establishes a presumption that certain disabilities for those who participated in the rescue, recovery, and cleanup at the World Trade Center and other specified sites would entitle them to accidental disability retirement benefits subject to certain criteria including when, where, and for how long they worked at a WTC site. Subsequent amendments expanded the list of individuals eligible, extended the filing deadline, and added qualifying conditions.

The bill allows many police officers and firefighters who retired with non-WTC accidental disabilities to have their retirement reclassified as an accidental disability related to the WTC disaster. Death benefit legislation enacted in 2006 provides an accidental death benefit to certain city and state employees within this same eligibility group. If approved, World Trade Center accidental disability retirement will become effective as of the date of reclassification and not retroactive to the date of retirement.  

If you are disabled, you should file an Application for World Trade Center Accidental Disability

Presumption. If you have not already done so, you must file this Notice on or before September 11, 2018. In order to preserve your right to file at some time in the future if you are presently not disabled, you will also need to file an Application for World Trade Center Notice on or before September 11, 2018.  While you do not need an attorney to represent you, it may be in your best interest to seek the advice of a professional as there are certain restrictions, deadlines, various forms, and qualifying conditions that could make filing the application difficult. 

The after effects of 9/11 continue to take their toll even after all these years, with no immediate end in sight.  We are grateful that there is at least some small consolation for our first responders who should at least not have to be worried about financial issues for themselves and their families. 

 

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.

In Complicated Times, Police Who Risk Their Lives Still Need Support

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

Last week was a very bad one for police officers across the country, starting with the separate police shooting of two unarmed men. These shootings – days apart in different parts of the country – sparked widespread outrage and protests throughout the country. 

While the investigation continues into the circumstances surrounding these civilian shootings, video evidence suggests the outrage over these shootings appears to be justified. The week ended with the assassination of five police officers in Dallas who were providing protection to citizens engaged in a peaceful protest over the shootings of the unarmed men. The gunman indicated he had killed the police officers in retaliation for the shooting deaths. This was the worst loss of life for the police department since September 11, 2001.  Additionally, seven police officers were injured in the attack.

These horrific events highlight the difficult job that police face every day. While not all police officers are perfect (in fact, who amongst us is?), most don’t begin their shifts with the mindset that they are going to kill a civilian. Most see their role as keeping the peace and protecting citizens. They do, however, wonder many times whether they will make it through their shift safely and return home to their loved ones.    Unfortunately, they are not always immune to death and injury.   

As an attorney who has represented many law enforcement officers injured on the job, I know the majority of them receive medical treatment and may have a period of convalescence, but then are able to return to work. However, some sustain serious and career-ending injuries. Most police officers in New York City and Long Island are likely a member of a Civil Service Retirement System. If so, and they become permanently disabled from performing their specific job duties, they may be eligible for a life-long disability pension.

There are many pension systems in the state, all with different applications, rules, procedures, and guidelines. Each disability pension has its own statute of limitations and guidelines for eligibility. There are different pensions available, ranging from one-third to three-quarters. Just because you were injured on the job does not mean you are automatically entitled to the three-quarter pension, which would enable you to receive 75% of your previous year’s earnings. 

Although not always relevant, how police officers are injured on the job can impact whether they are entitled to a three-quarter disability pension. Additionally, just because they were injured while working does not automatically mean they are entitled to a three-quarter disability pension. Factors that get taken into account are issue of causation, medical evidence from the officer’s own doctor, and the retirement system’s medical board. It is not always an easy process for our law enforcement personnel to receive reasonable retirement benefits, but it should be. Day in and day out, they protect the citizens of our cities and our states, putting their own lives at risk simply because they are dressed in blue. 

There is a huge spotlight this week on police, and rightfully so, as there is so much mistrust and anger regarding the recent events. There needs to be an honest, open dialogue where those aggrieved are given the opportunity to be heard without fear of reprisal, just as the police department needs to be given the opportunity to have investigations completed before a rush to judgment. While the majority of police officers are honest and hardworking, those who fail to uphold their oath should be punished.

Police officers are sworn to protect and serve; they run toward trouble when we run away from it. They patrol neighborhoods that are dangerous, riddled with crime, where we are taught to avoid them. They put their lives on the line every day, knowing they might never return to their families. Yes, this has been a very tough week. Let’s hope that future discussions help bridge the gap between our police and the citizens they are sworn to protect.

 

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.

Improving Construction Safety – A Path Reducing Unnecessary Injuries And Deaths

Partner Chris Latham Supports Construction Site Safety At City Hall Rally

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

As an attorney who has represented thousands of injured workers in my career, I have seen first hand some of the serious and deadly injuries that occur in the construction trade. Last year I wrote a blog on the construction trades and discussed a report issued by the New York Committee for Occupational Safety and Health (NYCOSH) claiming that while the construction industry employs less than 4 percent of New York’s workers, it claims nearly one-fifth of work-related deaths – making it the deadliest industry in the state. The report went on to mention that half of the fatalities were immigrant workers who did not have the protection of unions. Unfortunately, the past year has not seen any major improvements.    Injuries at construction sites are up 78 percent this year alone and there have been 16 deaths, mostly immigrant, non-union workers.  

The New York Times published an investigation on construction fatalities and noted that an increase in construction and the urgency to finish projects quickly has resulted in shortcuts and inadequate training for workers. Many of these workers have not been properly instructed or lack adequate supervision and are more likely to be injured or killed. The unions maintain that if these job sites were staffed with union trades, there would be a noticeable decrease in injuries and death. Those who are new to the union, called apprentices, work under the supervision of those who are senior and more experienced. While union projects may cost more than non-union jobs, unions point to the increase in accidents and deaths as a direct result of non-union contractors putting profits ahead of safety. 

If you work in downtown Manhattan you probably saw or heard about the Rally for Workplace Safety held on December 10. Thousands of construction workers united in a massive protest outside City Hall calling for safer work sites, better working conditions for construction workers, and union protection.  So many different trades were on site, all with the purpose of calling attention to unsafe workplace issues. My brother in law, a steam fitter who was present during the rally, noted that there was a procession with 17 coffins that represented the 16 who have already died, and one for the next unlucky worker. Before the protest, a hard hat was placed at the site of where each one of these workers perished.

Fortunately, there are some positive steps being taken. Councilman Rory I. Lancman of Queens has introduced a bill to compel the Buildings Department to report safety violations to the Occupational Safety and Health Administration (OSHA). Additionally, Councilman Corey Johnson of Manhattan, on his website noted that he is supporting legislation that would require workers at buildings taller than 10 stories to pass mandatory apprentice training overseen by unions.  

While construction trades will never be 100 percent safe, they most definitely can be safer.  These protests and legislation are a small but positive step in trying to decrease the likelihood of unnecessary injuries and death.

 

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.