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

To the Editor:

I know Newsday is one of Long Island's major employers (owned by the Times-Tribune conglomerate), but I never thought its own corporate self interest would would infect its positions on the editorial page. On the issue of workers' compensation, apparently it did (Workers' Comp Reform, 3/21/06).

How soon Newsday forgets. 9/11 was the worst workplace tragedy in the history of the United States. Besides the over 3000 deaths, many Long Islanders suffered devastating permanent partial disabilities and will never return to any gainful occupation. The survivors and their families on Long Island live with this cruel reminder every day. Without the notoriety of 9/11, similar crippling permanent partial disabilities occur each and every day to workers on Long Island. Newsday notes that these serious injuries only make up 11% of those receiving benefits, but make up 72% of the cost. Isn't this the way it should be - with the most seriously disabled receiving the majority of workers compensation benefits? Newsday's logic on this issue eludes me.

There are no research studies showing that New York's workers' compensation costs cause New York to be less competitive than other states. In fact, all leading economic indicators point to a strong economy and the Federal Reserve Bank of New York recently published a report showing that manufacturing is particularly strong in New York. The fact that a number of other states have a different approach is not a persuasive argument to change New York's Workers' Compensation Law. Perhaps New York, like it is in so many other ways, is ahead of the rest of nation on this issue.

On March 25, 1911, 146 immigrant workers lost their lives due to unsafe workplace conditions in the Triangle Shirtwaist Factory Fire in lower Manhattan. This tragedy was directly responsible for the groundbreaking enactment of the New York State Workers' Compensation Law. On the eve of the Triangle Fire's anniversary, it is disappointing that Newsday would take a stance hurting injured workers even further on its editorial page.

Troy G. Rosasco
Co-Chair
New York Workers' Compensation Alliance

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With all the talk of workers' compensation reform in New York lately, some of you may have thought that we forgot about the long term disability and social security disability claim side of our practice. Anything but!

On February 23th and 24th, I attended ACI���s Litigating Long Term Disability Claims conference in Coconut Grove, Florida. This is one of the best LTD claim lawyer conferences in the nation and all the "heavy hitter" plaintiff and defense attorneys in the in LTD business, from Frank Darras to Mark DeBofsky, were there. In fact, both Frank and Mark gave wonderful presentations regarding recent case law and claim filing strategies.

Given that a long term disability insurance carrier last week denied a new client who has end-stage real disease and is awaiting a kidney transplant, it looks like the good fight will continue for the foreseeable future.

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I will be traveling to the State Capitol tomorrow, with fellow New York Workers’ Compensation Alliance Board member Barbara Levine, to attend the Senate Workers’ Compensation Reform hearings called by Upstate Senator George Maziarz. Although the scheduled speakers are heavily stacked in favor of the insurance industry and employer interests, AFL-CIO President Denis Hughes will be speaking on behalf of all injured working men and women across New York State. Of course, the Workers’ Compensation Alliance will be out in full force making sure the Senate Labor Committee is aware of our opposition to the Pataki "Deform" bill.

I had the pleasure of sitting down last week with Senate Labor Committee member John Flanagan (R-Northport) in his district office in Smithtown. Senator Flanagan is certainly one of the Legislature’s rising stars, and we spoke for a considerable time about how the Pataki bill would hurt permanently disabled 9/11 victims. In fact, all the Long Island State Senators, including Dean Skelos, Mike Balboni, Chuck Fuschillo and Carl Marcellino, know first hand the devastating and ongoing impact of 9/11 claims in the workers’ compensation system.

Unlike some upstate Senators, they probably personally know workers who are just now coming down with cancer and lung diseases related to working at Ground Zero. In addition, each has a strong tradition of supporting working people. In fact, many were in attendance last Friday night at a Nassau Republican gala in Woodbury in which union leaders Auggie Buckhardt and Bill Flanagan were honored. I am confident that they will not cap permanent disability benefits for injured workers. I look forward to seeing them in Albany. A full report on the Senate workers’ compensation hearings will follow shortly.

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I had the pleasure of lecturing at St. John's Law School last Friday in Professor Dave Gregory's Employment Law class. Besides the general overview that I usually do on the workers' compensation law, I specifically focused on the recent NY Court of Appeals split decision in Balbuena which was announced on February 21, 2006.

In my mind, Balbuena is the most important labor decision which will come down from the Court this year. It may in fact be the most important of all the Court's decisions this year. Essentially, the Court held that a worker's status as an illegal immigrant did not prevent him from receiving benefits for lost wages in a personal injury law suit. Had this case gone the other way, which it did in one appellate court below, I can guarantee you that workers' comp insurance carriers would have used it to deny workers' comp to undocumented residents before the ink was dry.

Putting aside the technical legal premise upon which the majority opinion rests ( the federal Immigration Reform and Control Act does not preempt NY occupational safety laws), the macro economic issue the Court wrestled with was really how our country deals with illegal immigration juxtaposed against our need for workers who will do jobs that many Americans refuse to do. This case embodies the issues that President Bush is trying to remedy with his current "guest worker" proposal. The majority opinion is scholarly and a must read for any attorney interested in worker rights. As a result of this win for injured workers, employers will be unable to further exploit undocumented workers. Their jobs are already dangerous enough.

Unfortunately, the dissent by Judges Read and Smith was not nearly as persuasive. It focused on why the Court should not sanction "illegal contracts". Where's Scalia when you need him? But then again, some legal experts are predicting that this case might go all the way to the US Supreme Court, so good old Antonin may get his shot yet.

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