The New York Disability Law Blog : New York Disability Lawyer & Attorney : Turley, Redmond & Rosasco : Brooklyn, Queens, Long Island, Nassau, Suffolk, Bronx, Staten Island

Photo courtesy of NY Daily News

Whoever thought that a seemingly harmless job at Dunkin Donuts in Smithtown could cause the death of a 17-year old student in his prime? As reported in Newsday, Amiri Zeqiri fell into a cesspool after a metal cover collapsed while he was walking to dump garbage behind the Donut shop.

The bizarre accident is reminds me of the sad death last year on Long Island of the Walmart employee who was trampled by a crowd of over eager customers in Valley Stream. You would not normally think of Walmart as an exceedingly dangerous place to work either, but workers compensation lawyers like myself deal with such unusual death claims on a regular basis. 

So what, if anything, is the family of this young man entitled to from the workers compensation system for the loss of his life? Unfortunately, not much. Assuming he has left no dependents, his life under the New York Workers' Compensation Law is worth a meager $50,000 payable to his estate. In addition, the insurance carrier for Dunkin Donut's will have to pay $6,000 toward his funeral bill (this is the maximum allowed under the law currently, although funerals on Long Island are currently costing at least double that amount). 

So initially, regardless of the family's current financial status, they are going to have to come up with big bucks just to bury their loved one, and wait months for only partial reimbursement through the workers' compensation system.  This obviously just adds insult to injury. 

Our thoughts and prayers go out to the Amiri Zeqiri's family.  However, we are glad that Suffolk County homicide detectives continue to investigate why the sewer cover collapsed. Certainly, the owner of the property, JKH Realty Group in Queens (no stranger to Town of Smithtown violations) , has a lot of explaining to do.

But for the time being, let us all remember that there are no "safe" workplaces here in New York, even if its just the local donut shop.  

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Newsday reports today that Brookhaven National Lab workers with cancer who were exposed to radiation at BNL during the Cold War will finally be able to receive the federal workers' compensation benefits that Congress intended when it set up a special compensation program for these workers in 2000.

The facts surrounding the Brookhaven exposures are eerily similar to the case our office won at trial regarding our clients who were exposed to radiation, TCE and PCE at the old Sylvania Nuclear Fuel Rod plant in Hicksville, New York. The current owner of the property, Verizon, is now fighting off multiple individual and class action lawsuits for cancer and other illnesses arising from the Hicksville nuclear site .

Prior to today's announcement, the Energy Employees Occupational Illness Compensation Program Act had been a dismal failure for former Brookhaven National Lab employees. In a decade, only 17 of 123 cancer cases had been approved due to the difficulty in establishing "dose exposure". The new "special class" of BNL Cold War workers will make it dramatically easier for those with radiation induced cancers to collect a lump-sum benefit of $150,000 and medical care.

I suppose "better late than never" is the best that can said for the federal government's shoddy treatment of the Brookhaven National Lab  workers.

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At this magical time of year,  while so many New Yorkers are still struggling economically, let us not forget all the important things we still have.  In the spirit of the Christmas season, let us try to put aside our worries, if only for one day, and rejoice for the things that matter most - the happiness and health of our families!

For those among us who are not working due to accidents or disease, may 2010 bring you a return to work and good health.  The attorneys at Turley, Redmond, Rosasco & Rosasco have dedicated our professional lives to representing injured and disabled claimants with construction accident claims, ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims.  May 2010 bring happier, healthier and more prosperous days to all the clients we serve.  Merry Christmas and Happy Holidays!

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In a ground-breaking victory in a David vs. Goliath courtroom setting (it appeared that Verizon had no fewer than 15 attorneys from around the country at the trial), our client Gerard DePascale, his wife, and Liam Neville were awarded $12million today by a jury against Verizon in federal District Court in Central Islip, New York. Specifically, both Mr. Depascale and Mr. Neville were awarded $5 million, while Mrs. DePascale was awarded $2 million.

Gerard DePascale came down with a rare cancer, Stage 4 extra-skeletal myxoid chondrosarcoma, as a result of being exposed, without his knowledge, to various cancer causing toxins on Verizon property while working for a company called Magazine Distributors. The cancer spread to his lungs and he has endured numerous surgeries. Liam Neville also worked for Magazine Distributors in the same location and developed severe kidney disease as a result of the unknown exposure.

The evidence presented at trial showed that Verizon knew about the toxic waste dump on its land in Hicksville as early as 1986 and had an opportunity to investigate and clean-up the site.  However, Verizon never notified the workers of the potential danger on the site and it was only after years of exposure to the workers that they began to do a belated clean-up.

In a related case, Turley, Redmond, Rosasco & Rosasco along with attorney Mitchell Breit, has a pending class action in federal court against Verizon for exposure of these toxins to all workers (which could be well over 1000) in a "medical monitoring" class action lawsuit.  We seek to establish a "9/11 type fund" where Verizon will have to pay for all future medical expenses to monitor the health of the innocent workers. We seek to have the "medical monitoring to be done at Mt. Sinai Medical Center, just like the 9/11 victims.  In another related case, Verizon has already settled with residents in the surrounding area in a multi-million dollar settlement to compensate them for their increased risk of cancer.

Turley, Redmond, Rosasco & Rosasco, LLP has already won Mr. Depascale's workers' compensation claim before a trial judge at the New York State Workers Compensation Board, but the case is still unresolved as a result of the employer's appeal.

Congratulations are due the plaintiff's lead lawyers, Gonzalez & Robinson, from California. Finally, we wish both the DePascale and Neville families the best of luck. Verizon is sure to appeal, so their fight is not over yet. But the verdict today still is a prime example of how a jury of your peers can level the playing field against giant corporations with unlimited resources such as Verizon. 

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I am looking forward to attending the Inaugural Dinner of the new St. John's University School of Law Center for Labor and Employment Law at the Williams Club in New York City this Thursday. In attendance will be our Law School's new Dean, Michael A. Simons.  I am deeply honored to have been asked to become an inaugural member of the Board of Advisors of this prestigious new Labor and Employment Law Center  ,which I am sure will be yet another jewel in the law school's crown.

The Center for Labor and Employment Law would not have been possible without the long-standing support and groundwork of David L. Gregory, The Dorothy Day Professor of Law.  Many moons ago when I was President of the Law School's Labor & Employment Law Society, we recruited the iconic Cesar Chavez, then President of the United Farm Workers, to speak on campus to a rousing student body. Since then, Dave Gregory has turned the law school into one of the nation's pre-eminent recruiting locations for future labor lawyers. 

The new Center's stated purpose is to:  "creatively and dynamically prepare law students for professional excellence as superb labor and employment lawyers of impeccable integrity". Having been a Guest Lecturer at the law school for over 15 years now, I can unequivocally state that St. John's Law School produces some of the finest future labor lawyers in the United States. The new Center will only add to the it's already well deserved reputation.   

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The Attorneys at Turley Redmond, Rosasco & Rosasco are honored to have LexisNexis name our New York Disability Law Blog one of the top 25 workers compensation blogs in 2009 from across the United States for the second year running! LexisNexis is the premier legal publisher in the US, and to have their commendation means a lot not only to our law firm, but to our loyal readers as well. 

We are among very good company, as the top 25 workers" compensation blogs include such notables as The Workers' Comp Insider,  Safety Community, Workers' Comp Forum, Managed Care Matters and the NY Workers' Compensation Alliance Blog (which was written by me up until 9/11/2009). 

Our attorneys take seriously our devotion to providing timely and useful information to claimants injured on the job. To that end, we will be launching a new blog soon aimed more narrowly to the special issues faced by workers hurt on construction sites in NYC, The New York Construction Accident Law Blog.  We will announce the official launch here, so look back in the next week or so.

Once again, thanks to LexisNexis for their recognition of all 25 top workers' comp blogs. While producing well written and useful blog posts can be time consuming, we all do it because we care about injured workers. 

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"Discretionary Clauses" in ERISA disability insurance policies are the largest cause of unfair ERISA LTD claim denials across the country. They essentially create an uneven playing field in favor of an already powerful insurance company over a disabled claimant. Imagine if the Yankees were forced to play the World Series with only seven players on the field, while the Phillies had the usual nine. That's how bad discretionary clauses are for disabled claimants.  For this reason, a number of states now ban discretionary clauses in insurance contracts in an effort to simply make the playing field fair for disabled claimants.

Montana is one such state. The Standard Insurance Company didn't like little old Montana taking away their powerful shield against paying legitimate disability claims. Little did The Standard know that John Morrison, Montana's Commissioner of Insurance, is one scrappy fighter for consumers in Montana.  I recently had a chance to meet Mr. Morrison and he is an impressive fellow who felt strongly that his state had the right to level the playing field for Montana residents.

Well, two days ago, Mr. Morrison beat back The Standard Insurance Company in the Ninth Circuit Court of Appeals in the case of Standard Insurance Co. v. Morrison , No. 08-35246 (October 27).   As stated by the Court:

"Under the Employee Retirement Income Security Act of
1974 (“ERISA”), insureds who believe they have been
wrongfully denied benefits may sue in federal court. The
court determines the standard of review by checking for the
presence of a discretionary clause. Such a clause might read:
“Insurer has full discretion and authority to determine the
benefits and amounts payable [as well as] to construe and
interpret all terms and provisions of the plan.” If an insurance
contract has a discretionary clause, the decisions of the insurance
company are reviewed under an abuse of discretion standard.
Absent a discretionary clause, review is de novo.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111
(1989).

Discretionary clauses are controversial. The National Association
of Insurance Commissioners (“NAIC”) opposes their
use, arguing that a ban on such clauses would mitigate the
conflict of interest present when the claims adjudicator also
pays the benefit. The use of discretionary clauses, according
to NAIC, may result in insurers engaging in inappropriate
claim practices and relying on the discretionary clause as a
shield. See also John H. Langbein, Trust Law as Regulatory
Law: The Unum/Provident Scandal and Judicial Review of
Benefit Denials under ERISA, 101 Nw. U. L. Rev. 1315, 1316
(2007) (“As regards Unum’s ERISA-governed policies,
Unum’s program of bad faith benefit denials was all but
invited by an ill-considered passage in . . . Firestone Tire . . .
which allows ERISA plan sponsors to impose self-serving
terms that severely restrict the ability of a reviewing court to
correct a wrongful benefit denial.”).

According to NAIC, as of 2008, a dozen states had limited or barred the use of discretionary clauses in at least some form of insurance.
Insurers and other supporters of discretionary clauses argue
they keep insurance costs manageable. They assert that more
cases will be filed in the absence of a discretionary clause and
that the wide ranging nature of de novo review will lead to
increased per-case costs as well. Failure to control litigation
costs, they suggest, will discourage employers from offering
employee benefit programs in the first place. See, e.g., Metro.
Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2353 (2008) (Roberts,
C.J., concurring in part and concurring in the judgment)
(“Ensuring that reviewing courts respect the discretionary
authority conferred on ERISA fiduciaries encourages employers
to provide medical and retirement benefits to their
employees through ERISA-governed plans—something they
are not required to do.”)"

In conclusion, the Court stated:

"The Commissioner’s practice is directed at the elimination
of insurer advantage, a goal which the Supreme Court
has identified as central to any reasonable understanding of
the savings clause."

Smart Court. Smarter Insurance Commissioner.  Now, when will New York State Insurance Superintendent James J. Wrynn follow in Mr. Morrison's brave footsteps and protect New York consumers by banning discretionary clauses?

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I had the pleasure to lecture to Social Security Disability Lawyers this past Spring at the NOSSCR Conference in Washington, DC about "Winning Long Term Disability Claims at the Initial Level". They have invited me back to lecture on the topic of "Winning your First ERISA Long Term Disability Administrative Appeal" at their Fall NOSSCR Conference on October 16, 2009 in San Francisco.  My good friend and colleague Pam Atkins, Esq (former President of NOSSCR) will be co-presenting this seminar which should be chock full of practical advice.   The seminar description is below:

There was once a time when only large corporations offered their employees long term disability coverage.  However, major insurance companies, such as Unum and MetLife, are now targeting the small employer benefits market with packages including group long term disability insurance. Therefore, it is likely that more of your clients will come to you with initial long term disability denials in the near future. If so, how do you do an ERISA long term disability administrative appeal?

This practical seminar by two experienced ERISA and Social Security practitioners will teach you how to: 1) request and review the claim file after a denial, 2) know the important ERISA time frames for appeals and decision making under the Department of Labor regulations, 3) understand the interaction between Social Security Disability and LTD claims, 4) develop additional medical and vocational evidence to support your appeal and 5) write a winning brief (or at least bolster the “administrative record” for federal court). Bring your questions to explore this potential growth area to your existing disability claim practice.

Hope to see you there!

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Great legal news for injured and ill 9/11 rescue and recovery workers!  In an article published in Newsday today, Governor David Paterson has just signed a new law effective September 16, 2009 allowing workers who missed lawsuit filing deadlines to sue New York City for negligence for telling workers that the air at Ground Zero was safe, when in fact it was deadly soup of toxins.

Any sick 9/11 Ground Zero worker who had a prior claim dismissed or who never filed a claim in the first place should contact our office immediately at 1-877-NY-DBLAW (1-877-693-2529) to discuss a new lawsuit. These lawsuits are not the same as the filing a World Trade Center workers' compensation claims, which we have been handling now for many years.

Our office would be glad to explain the difference and your filing options   given the new law.  There are additional strict filing deadlines in the new law.  Ask to speak to Troy Rosasco at extension 123.

Many thanks to State Senator Andrea Stewart-Cousins (D-Yonkers) and Governor Paterson for their continued concern and support for 9/11 rescue and recovery workers and volunteers.

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