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

There are literally thousands of former Nassau County workers who are currently receiving lifetime workers' compensation payments (pensions) for life due to on- the- job injuries.  I know - I have represented a large number of these unfortunate individuals.  These payments are overwhelmingly for workers who have been classified as having "permanent partial disabilities" and are destined to live the rest of their life in pain.

According to a Newsday article yesterday, Nassau County is now proposing a $55 million taxpayer funded bond to "sell" these claims to private insurers who would then try to convince the injured worker to settle the claim in a one-time "buy-out".   Is this good for the injured former Nassau workers?  For many of them, it is not a good deal at all unless they are paid "full value" for their settlement. It also may not be a good deal for the taxpayer. (See the excellent WorkersComp Insider post here) .

Our office recently negotiated a lump sum buy-out (often times called a Section 32 settlement) for a Nassau municipal worker for $650,000.00.  We thought this was a fair settlement given that the worker was going to lose both weekly non-taxable cash benefits and medical care for the rest of his life.  Unfortunately, you can bet that the insurance companies "bidding" for the Nassau County claims have no intention of paying fair settlement value to former Nassau employees.

The vast majority of lump sum buy-out offers are grossly unfair to the injured worker and are simply a device for insurance companies to dump claims and invest the excess profits.  The claimant needs a skilled NY workers compensation lawyer to negotiate a fair settlement. So what is amount fair?  First and foremost, for anyone who is likely to need major medical intervention in the near future, such as surgery, no amount of money may be the answer.  Remember, once the injured worker accepts the cash buy-out, he must pay for future medical care, including surgery, on his own.  Any settlement offer in a case like this would have to also "buy-out" the potential future cost of surgery, medications, physical therapy, etc.

Anyone considering a buy-out of a permanent partial disability claim should ask their workers compensation lawyer to do a "present value calculation" of what their future cash AND medical benefits are worth.  This present value calculation, which is the standard for settling long term disability claims, can be drastically impacted by current interest rates.  For instance, today I am using an interest rate tied to the ten year treasury bill rate (3.58% as of 4/08/08) to determine present value for the purposes of settling my cases.  When interest rates go back up, present value settlement offers will go down, so historically, now is a good time to get maximum value when deciding to settle a New York workers' compensation claim.   In addition, if you receive Social Security Disability in New York, you may need a Medicare Set-Aside agreement.

There are many present value calculators on the Internet which can help you determine a fair settlement proposal.  As my third grade math teacher instructed, I like to show my client's the "work", not just the answer, which I do on a Microsoft Excel spreadsheet.  Of course, settlement of any workers compensation claim is as much "art" as  arithmetic, but the math is always the starting point. 

It remains to be seen whether Nassau County dumps its old workers' compensation claims in the hands Warren Buffet and Berkshire Hathaway to settle with permanently disabled workers.  If it does and you are an injured worker approached for a buy-out of your claim, ask a lot of questions of your Nassau workers compensation lawyer.  You don't want to leave any money on the table, and Warren Buffet has enough money. 

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Last night the CBS Evening News with Katie Couric unveiled the first of two special reports on the Social Security Disability claim backlog.  My friend and fellow Social Security Disability lawyer, John Hogan, was interviewed and spoke of the 2 1/2 year wait for a hearing in the Atlanta area!  When you see the disabled claimant's profiled in this report, you will realize how cruel and unacceptable such waits are. 

I suppose that we should be thankful that the hearing wait in the New York metropolitan region is only 18 months!???  But it is hard to feel this way when you see clients losing their homes while they wait for the disability benefits they paid for and deserve.  Sadly, some of my clients have died before they get their hearings.  Hopefully, Congress will listen to this report and fund Social Security properly so that future claims can be expedited. Catch Part 2 of the CBS special report tonight at 6:30 pm EST by clicking here.  Thanks for your concern, Katie!

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Yesterday's front cover of the NY Times had an article detailing the long delays in the Social Security Disability claim process.  Much of the backlog is the result of Congress failing to adequately fund a Social Security disability claim system which is now facing more claims due to the aging of the "baby boomer" generation.  Today, a rash of editorials skewering both President Bush and Congress for this preventable crisis hit the streets and the far reaches of the Internet.  Something must be done - now! 

Last week, I traveled to New Haven, Connecticut to handle a Social Security disability hearing for an emergency room physician stricken with chronic Lyme disease.  The hearing before an Administrative Law Judge went well and we will win the case.  However, the client had to wait over 18 months for her hearing before the judge.  In this particular case, the wait did not have a dramatic financial impact on the doctor since she was already collecting benefits from her own private long term disability insurance policy through Northwestern Mutual Life. 

But this is the exception, not the norm.  Less than 20% of my clients have either employer sponsored group ERISA long-term disability plans or private individual disability income protection.  Most of my clients, when faced with the long delays at Social Security disability, are facing either bankruptcy or foreclosure.  As stated in the article, some die before their case is heard.  I have one such client in the hospital now with stage 4 terminal cancer.  In most cases, "justice delayed is justice denied".  A judge has not even been assigned to the case yet.  Thankfully, I was able to call in a few favors and have Social Security place this case on an expedited review.

The Social Security Administration recently proposed new rules to streamline the disability appeals process.  Click here to see the new rules and submit your comments.  Some of their ideas are good, others would harm disabled claimants even further.  As a member of the NOSSCR Board of Directors, I can assure you we will be submitting detailed comments to both expedite claims while protecting fundamental fairness to disabled claimants.

 

 

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As detailed in Newsday today, Mitchell Breit of the national class action law firm of Whatley, Drake & Kallas and the disability law firm of Turley, Redmond & Rosasco have filed a "medical monitoring" class action lawsuit  against Verizon in New York Supreme Court, County of Brooklyn, for workers who previously worked at the former Sylvania nuclear fuel rod plant in Hicksville, Long Island.  Verizon previously settled a lawsuit by surrounding residents for a reported 11 million dollars due to an increased rate of cancer in the area.  

The lawsuit follows a recent decision by the New York State Workers' Compensation Board which found that a worker on the site, Gerard DePascale, developed a rare and deadly cancer (extra-skeletal myxiod chondrosarcoma) as a result of exposure to toxins on the site.  In addition, a recently released Army Corp of Engineers report found danger to the public by this still contaminated site.  Despite special federal funding won by Senator Chuck Schumer for a complete clean-up of the site, legal wrangling between Verizon, the Army Corp and the New York State Department of Environmental Protection have put a stop to the clean-up.  How many more people have to come down with cancer before Verizon does the right thing?

The lawsuit seeks to force Verizon to set up a "medical monitoring" fund so that the thousands of workers who were unknowingly exposed to the toxins  on the site can benefit from early diagnosis and treatment of any potential medical problems.  As detailed in the Newsday story today, workers like Robert Matteo are mad that they were never told of the dangers on their work site.

Unfortunately, Gerard DePascale, whose cancer has now spread to his lungs, is still waiting a final ruling from the New York State Workers Compensation Board.  Despite winning his case in front of trial judge Abigail Chanis in March 2007, his employer appealed the judge's decision.  He has now been out of work with no workers' compensation benefits since January 2006!  The abnormally long delay in deciding this appeal is causing the DePascale family severe financial hardship.  Thankfully, with new leadership at the Workers' Compensation Board, a decision in Mr. DePascale's case hopefully will be expedited.   

 

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Turley, Redmond & Rosasco founding partner William "Bill" Turley was endorsed today by Newsday as Smithtown's next representative in the Suffolk County Legislature.  Bill, who has been practicing workers' compensation and disability claim law on Long Island for over 20 years, impressed the Newsday staff with his innovative ideas on clean energy and immigration. 

• 13TH DISTRICT
  
  North Smithtown, part of Huntington
  
  Republican Lynn Nowick, 60, of St. James, is running for a fourth term. Her assiduous constituent services assure her popularity. But she has few constructive new ideas, especially regarding the 800-pound gorilla in her district: the fate of the former Kings Park Psychiatric Center.
  
  On this vexing issue, her Democratic opponent, William Turley, 49, of Fort Salonga, agrees that the legislature has little influence beyond rhetorical support of a better proposal for the complex's use. But Turley, an attorney specializing in workers' compensation, brings a refreshing and progressive perspective that differs sharply with Nowick's in every other respect. He favors hiring halls for migrant workers, wants stricter penalties for sex offenders but is concerned about the constitutionality of residential restrictions, and would push for alternative energy policies in the county to offset dependence on foreign oil. We endorse Turley.
  

For many disabled clients on Long Island and New York City, Bill has been a steady hand guiding them through the disability claim maze.  Good luck Bill on November 6th!

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   Marie Cocco of the Washington Post has a great column today profiling one of our clients, Jeanmarie DeBiase, the widow of 9/11 hero Mark DeBiase.  While sick police officers and firefighters have received much deserved attention, workers in a variety of occupations, without whom the Ground Zero clean-up could not have been possible, have not received the same level of press.  Mark was a wireless phone technician who set up emergency communications for other 9/11 rescue and first responders and volunteers.  He died on April 9, 2006 due to interstitial lung disease caused by exposure to dust and toxins at the Fresh Kills landfill, where the World Trade Center debris was trucked.  

More importantly, they have not received the same level of medical and monetary support as the police and firefighters.  Many have lost their health insurance for both themselves and their families. Many ill workers continue to struggle as they fight workers' compensation claims being vigorously fought by employers who have forgotten the meaning of the word "compassion".  On this sixth anniversary of the collapse of the Twin Towers, may we all re-dedicate ourselves to helping families who cannot "move on" from September 11, 2001. 

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A Newsday article today details yet another lawsuit against Verizon for cancers and other life threatening diseases caused by Verizon's contaminated nuclear waste property in Hicksville, New York.  It was just a few years ago that Verizon paid out a multi-million dollar settlement to residents in the surrounding area over their increased rates of cancer.  Incredibly, despite their previous settlement with surrounding residents, they state in today's article that the property is not a health hazard!!!  They must be kidding!!!  Thankfully, at least the newest lawsuit is in front of federal District Court Judge Leonard Wexler, a no nonsense jurist who presided over the previous settlement.  Judge Wexler knows where the skeletons were buried by Verizon.

Perhaps Verizon should review the most recent United States Army Corp of Engineers report  before issuing such silly press releases.  Perhaps they should tell this to Senator Chuck Schumer and Congressman Pete King who both have pledged recently to aid in the cleanup. Perhaps they should tell this to the New York Workers' Compensation Board which has already ruled favorably for two workers on the Verizon site.  By denying the obvious, Verizon is besmirching its once good name and entering the "ENRON" class of corporate responsibility.

Does Verizon have no shame? What about Verizon CEO Ivan Seidenberg? How many more victims have to contract cancer due to Verizon's contaminated nuclear property before they accept responsibility for the nuclear and other toxins on the Hicksville site?  Perhaps they have made a cold calculated business decision that its cheaper to pay off a few hundred cancer victims than it is to clean up there own property.   Anyone ever heard of the Ford Pinto cases?  Whatever Verizon's motivations, you can be sure they have more to do with shareholder returns than the health of Long Islanders.

However, assuming Verizon is first and foremost profit motivated, wouldn't it make good financial sense to be a good neighbor as they roll out their FIOS service across Long Island? After all, who would want to buy anything from a known corporate polluter?  Step up and do the right thing - perhaps you will be embraced by residents of Nassau and Suffolk counties looking for an alternative to Cablevision.  Fight to the death (literally) like Magazine Distributors, and I can't think of one New York resident who would want to sign up for FIOS service  (check out how healthy the workers in the FIOS video look...) if they knew their monthly bills went to fight cancer victims.  

Much like Ground Zero workers, the men and women who worked directly on top of this acknowledged nuclear waste site will be getting sick for years to come.  The time has come for Verizon and Ivan Seidenberg to "do the right thing".  Don't count your chickens just yet.  Verizon even fights its own workers' 9/11 related cancer claims!  Anyone have Michael Moore's phone number? Those are my thoughts - what do you think?

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Recently, a group of some of New York's top long term disability insurance lawyers and advocates gathered in Manhattan to sign an important document for the benefit of all employees who are covered for LTD benefits through an ERISA plan sponsored by their employer.  This letter to the NY Insurance Superintendent Eric Dinallo requested that unfair "discretionary clauses" in insurance contracts be banned in New York, as they have been recently in New Jersey and California. 

As previously reported in this blog, this follows the prior attempts to ban discretionary clauses under the Pataki administration.  To date, it is unknown what the Spitzer administration's position will be on this issue.  However, it is hoped that the Superintendent Dinallo will join other progressive states in leveling the playing field for disablity claimants and stop unfair insurance company practices which deny legitimate long term disability claims.  We will keep you updated when we receive a response from Superintendent Dinallo.

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As an Air Force veteran myself, I have always had a soft spot for my disabled veteran clients who have put their life on the line to protect our country and our freedoms.  However, the United States Veterans' Administration has done an awful job over the years by denying legitimate VA Disability claims and allowing the system to have a now 400,000 case backlog.  This is is not the 'thank you" our young men and women returning from Iraq deserve if they are missing limbs.

Thankfully, help is on the way for disabled veterans fighting the daunting Veterans' Disability Claim process from us "controversial  lawyers".  A new law, originally sponsored by Senator Larry Craig (R-Idaho),  will finally allow disabled veterans to hire attorneys to fight their unfair claim denials or disability ratings.  The new law, effective June 20, 2007,  allows lawyers to enter the administrative disability determination process at the most critical stage - when evidence is being obtained to support the claim.  If they aren't running into a filing deadline, some disabled veterans are waiting until after this June 20th to file their appeals so they can do so with lawyers.

The system is so backward now that our law firm has been representing one New York disabled veteran in his claim for over seven years without a final resolution.  This case illustrates the old adage  "justice delayed is justice denied".  Under the old law, the disabled vet was on his own (he could not by law hire a lawyer) during the initial claim processing and the first appeal to the Board of Veterans' Appeals.  The Veterans' Administration only allowed attorneys to enter the process at the US Court of Appeals for Veterans' Claims, where the evidentiary record had already been closed.  This prevented the attorney from introducing any new evidence the veteran representing himself may have not known to submit.

Even the DAV (Disabled American Veterans), a formerly staunch opponent of the right to attorney representation due to  its desire to "protect the turf " of its own Veterans' Service Officers, seems to  now support attorneys in the process based on a recent Newsday article on VA disability claims .  The American Legion has always supported the right of the disabled American veteran to retain counsel or a law firm. 

Turley, Redmond & Rosasco attorneys have been practicing before the US Court of Veterans' Claims for over ten years.  Whether injured recently in Iraq or still suffering PTSD from Vietnam, do not hesitate to call our partner, David Tobias, Esq., in our Veterans' Disability Department toll free at 1- 877-NY-DBLAW.

 

 

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Congratulations to Turley, Redmond & Rosasco, LLP founder William J. Turley on being nominated last night as the Democratic candidate for the Suffolk County Legislature's 13th District, as detailed in today's Newsday. 

Besides being one of Long Island's leading workers' compensation lawyers, Bill will be an excellent county legislator come this November.  Bill was recently the sole honoree of the New York Workers' Compensation Bar at a fundraiser for "One in Nine", the breast cancer advocacy group.  Needless to say, everyone at our firm is extremely proud of Bill's past and future accomplishments.  Go Bill!

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US Senator Charles Schumer announced in a Newsday article yesterday that treatment, medical monitoring and potential compensation are on the way for potentially thousands of workers who formerly worked atop the nuclear waste site owned by Verizon in Hicksville, New York.  In addition to announcing the new benefits for workers, a frustrated but determined Senator Charles Schumer stated that "I will hold the Army Corps' of Engineers feet to the fire" and "the site should have been cleaned up yesterday", referring to his previous efforts in 2004 to achieve a full cleanup.   

Shocked that their efforts in 2004 to secure a federal cleanup of the Hicksville, Long Island,  New York nuclear waste site have not been completed to date, both Senator Charles Schumer and Congressman Pete King vowed to to cut through the bureaucracy and finger pointing.  Both Schumer and King were reacting to a letter request for intervention from Troy Rosasco, the attorney for Gerard Depascale, who the New York Workers' Compensation Board recently found contracted a rare cancer while working for the Hudson News Group on this site and was awarded lifetime workers' compensation and medical benefits.  In a previous Newsday artcle on Mr. Depascale, Mr. Rosasco compared the illnesses facing the Hicksville workers as similar to the ilnesses facing 9/11 workers who were exposed at Ground Zero.   "Over the course of the next 10-20 years, I believe we are going to see more cases of cancer and other illnesses related to radiation at this site", said Rosasco.

This new aid promised by Senator Schumer will be especially welcome to those workers who were exposed to ionizing radiation  and other toxins on the site and are now in fear of getting sick in the future.  In addition, the Army Corp of Engineers promised to return to the site this May for more investigation.    Turley, Redmond & Rosasco, LLP is compiling a list of  workers who ever worked on this site and may have been exposed to radiation and other chemicals.  Please call Troy Rosasco, Esq. at 631-582-3700, ext. 123 if you worked at this site and would like to be on the list for possible testing, treatment and/or compensation.   We will keep you posted on further developments. 

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That's what Adreinne Esposito, Executive Director of the Citizens' Campaign for the Environment, called the growing controversy regarding Verizon's radiation contaminated property located in Hicksville, New York  in a recent News 12 Long Island television report on the former Sylvania Nuclear Products facility.  See the full video here.

After Newsday's first story broke about our client's cancer related to his work at this site for Magazine Distributors, Inc.,  a division of Hudson News, in an article few weeks weeks ago, the unanswered questions regarding the dangers at this toxic site are rapidly expanding.  Newsday later followed up a week later with another story unearthing a previously unreleased Army Corp of Engineers report dated November 2005 showing worse contamination than previously thought. 

Why did the federal Army Corp of Engineers sit on the Hicksville Sylvania Nuclear Waste Site report for almost two years and release it only to Verizon ( a defendant in a billion dollar lawsuit brought by local residents alleging increased cancer risks) and the New York DEC?  Way back in 2004, New York Senator Chuck Schumer and US Representative Peter King announced, "It's the federal government that created this mess, it's the federal government that should fix it".  Did they "fix" this radioactive site located smack in the middle of Long Island suburbia, or did  powerful corporate and governmental interests  try to sweep this one under the rug. 

According to Ms. Esposito of Citizens' Campaign for the Environment, " Instead of being honest with the public, they covered it up.  That is negligence on the part of the federal government and that's a conspiracy to keep the public in the dark". 

One thing we know is that Senator Chuck Schumer and Congressman Pete King are scrappy fighters determined to protect the health and welfare of both Hicksville residents and all Long Island workers who worked at the employers located on the Verizon property.  The New York State Workers' Compensation Board already ruled that our client contracted a rare and deadly cancer, extraskeletal myxoid chondrosarcoma,  while working on this site for a tenant of Verizon.  As George Johnson, a neighbor of the site for seven years, so appropriately said in the News 12 video, "How many people have to die before something happens, before we do the right thing". 

Let's hope Senator Schumer and Congressman King can get the Army Corp of Engineers and Verizon to do the right thing and clean up this site  with all deliberate speed.  

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Yesterday's Newsday had a disturbing article regarding the radiation related health risks to workers who worked on or around the Hicksville, Long Island, Sylvania Nuclear Waste Site ,now owned by Verizon.  Our office recently won a workers' compensation claim for a worker who contracted a rare cancer, extraskeletal myxoid chondrosarcoma, due to ionizing radiation and other toxins while working on this site for Magazine Distributors, Inc.,  a division of Hudson News.  If I were a worker at this site or knew someone who worked near there, I would read this article carefully.

This nuclear waste site, located at 70,100 and 140 Cantiague Rock Road, Hicksville, NY was operated by Sylvania between 1952 and 1967 and was licensed by the US Atomic Energy Commission to manufacture nuclear fuel rods for use during the Cold War.  The radioactive elements uranium-235 and thorium were processed and milled at the facility.  The uranium and thorium were then subject to machining, grinding and incineration.  The facility then burned sludge to reclaim more uranium.

In addition, the Sylvania plant, although unauthorized to do so, burned scrap uranium as a three shift, seven day a week operation until 1960.  Large 55 gallon drums of uranium scrap metal were burned on site.  During the ongoing site clean-up, 55 gallon drums have been found buried at the site.  In addition to the radioactive substances, the site is contaminated with tetrachloroethene, trichloroethene and nickel.  Someone described the site as the location of a "dirty bomb".

Verizon, the current owner of the site, set aside $240 million for the ongoing clean-up which is now being monitored by both the New York State Department of Environmental Conservation and the Army Corp of Engineers.  Recent documents obtained by our lawyers during the litigation indicate that there may be more contamination than originally thought below the 100 building, the former location of Magazine Distributors, Inc.  

On November 9, 2006, the Hicksville Water District warned residents of of higher than allowed concentrations of tetrachloroethylene (a toxin found on the site)  in the drinking water from one of their supply wells and the potential cancer risks it might cause.  The well was immediately taken out of service.

Currently, neither the Army Corp of Engineers nor the New York State DEC nor Verizon are releasing statements about the what is currently being found on this dangerous site.  Thousands of pounds of contaminated soil have been carefully transported to Envirocare in Utah.  In 2004,  New York Senator Schumer  stated that "it's the federal government that created this mess, it should be the federal government that fixes it".  To date, the public doesn't know the current status of the site and when or if it will be properly cleaned up.  In the meantime, more workers and local residents are getting gravely ill.  Perhaps it's time for Senator Schumer to get to the bottom of this quagmire and let the public know the current health risks on the site.

As reported in Newsday, the lawsuit brought by local residents against the property owner, Verizon, for their increased cancer risk was recently settled for approximately $11 million.  The New York Department of Environmental Conservation is currently prosecuting  lawsuits arising from this site in federal court in Central Islip.  As stated in the Newsday article, this toxic waste dump could have impacts like those facing 9/11  rescue workers.  Workers on this site, which also included the companies Air Techniques and Gilbert Displays, could be facing cancer and other health problems for years to come.   Scary stuff!

 

 

 

 

 

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I was interviewed the other day by WorkersComp Central, a national on-line newspaper dedicated to workers' compensation issues, on the impact of the new Spitzer New York Workers' Comp Reform Bill.  This bill passed both the Senate and the Assembly unanimously yesterday and is expected to be signed by Governor Spitzer next Tuesday.  The new law takes effect July 1, 2007,  and the changes are transformative - to say the least.  For attorneys who have practiced law in this administrative and technical forum many years, the changes will test our ability to adapt to radically new benefit structure.  It should be interesting!  

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Over the past few months, you may have noticed a precipitous drop in the number of posts to the New York Disability Lawyer Blog.   However, as Co-Chair of the New York Workers' Compensation Alliance,  I've been doing the Albany shuffle along with some of my dedicated colleagues in an attempt to protect injured workers from any disastrous workers' comp reform.  Well - were in the ninth inning now given Governor Spitzer's press conference today announcing a workers' compensation reform agreement between all the major players at the bargaining table.  It's been a long but hopefully worthwhile fight.

Give New York Governor Eliot Spitzer credit - he played his cards in the workers' compensation reform deal brilliantly and in the process has undone one of the pillars of the original law that was on the books for nearly 100 years - the permanent partial disability pension.  That's not to say that this pillar was not crumbling of it's own weight and didn't need some reforming. After all, it had been around since the assassination of Prince Archduke Francis Ferdinand!  But like a historic neighborhood that is indelibly disturbed by the need for a three lane highway, it was rather sad to watch, especially for those of us who are a bit nostalgic when it comes to labor history.  The price of progress!

So, who are the winners and losers in the new reform deal? Aside from the obvious political winners -Governor Spitzer, Assembly Speaker Silver and  Senate Majority Leader Bruno- who all seemed to be playing nicely in the rose garden, the winners are as follows:

• Injured workers earning over $600 per week, who will now see an immediate potential benefit increase;
• Injured workers who will have greater access to real job retraining and rehabilitation;
• Injured workers whose authorization for appropriate medical care will be sped up;
• Injured workers whose claims will be resolved quicker due to the implementation of the new "Rocket Docket" proposed by the Workers' Compensation Alliance;
• Employers who should see a 10-15% decrease in workers' comp premiums;
• Honest employers who will no longer subsidize cheating employers due to new criminal employer fraud penalties;
• Doctors who often waited months for authorization for much needed surgeries for their patients.

Now, as in any hard fought compromise,the inevitable losers:

• Injured workers with permanent partial disabilities who cannot be rehabilitated for other work (i.e. the 58 year old carpenter with no high school degree, among others);
• Injured workers earning less than $600 per week;
• Dishonest employers who will now face felony criminal charges;
• The New York Compensation Rating Board, which will be abolished;
• The "Second Injury Fund", which will be phased out of existence;
• Any others that we discover once the actual written bill details are released.

Teddy Roosevelt - excuse me...Eliot Spitzer! - chocks up one more win on the scorched earth reform path.

 

 

 

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Welcome to the newly designed New York Disability Law Blog!  As you will notice, I changed the official title of the blog from "The Disabled Worker Law Blog" to the  more informational "New York Disability Law Blog".  This is in keeping with the blog's purpose of providing useful information and insight regarding disability claims to fellow attorneys and the general public. 

To this end, I am excited to announce the creation of the blog's "Disability Law Library" which will be continually added to and updated.  I hope that this will eventually become the first place attorneys and claimant's turn to when researching disability claims and legal issues.  Still in it's formative stages, the library will have sections on long term disability and ERISA claims, Social Security  disability, New York workers' compensation, civil service disability pensions, scaffold /ladder /construction site lawsuits and a new section on the unfortunate expanding area of veterans' disability claims.

In addition, in 2007 we hope to do a better job collaborating with fellow bloggers such as Jonathan Ginsberg and his excellent Social Security Disability Radio Blog.  Please feel free to comment about the new design and let me know how the New York Disability Law Blog can better serve your needs.  Talk to you soon.

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As Co-Chair of the New York Workers' Compensation Alliance, I was interviewed for an article published Monday at the  Workers' Comp Central web site on the upcoming workers' compensation reform debate in Albany under the new Spitzer administration. 

Short Version - severely injured workers are going to have to fight hard to protect their rights to lifetime workers' comp benefits when they have permanent partial disabilities and are no longer employable.  With the help of the New York State Business Council and the ever present insurance lobby, the debate  is trying to be shifted from protecting workers with horrendous injuries to re-invigorating the dormant upstate economy.  While we all support bringing more jobs back to upstate New York, there are no independent credible studies linking increased workers' compensation costs to a decline in the upstate economy.  If workers' comp costs were such a drain on business, why hasn't it had a similar impact on the downstate economy? 

Workers' comp costs declined after the 1996 reforms under Governor Pataki.  Did this jump start the upstate economy?  Workers' compensation seems to be the easy whipping boy by some for all of upstate's economic woes.  Sure - take it out ion the lady with no hand after it was caught in a machine at work.   Thankfully, Governor-Elect Spitzer has surrounded himself with some of the sharpest policy advisors in New York.  I have no doubt they will be able to think "outside the box" and find solutions to the upstate economic problems without hurting permanently disabled workers.

The entire article is below:

New York -- Spitzer Expected to Make Sweeping Changes in NY Comp: Top [12/11/06]

An alliance of New York attorneys and other advocates representing 200,000 injured workers called for sweeping reforms in the state's workers' compensation system Friday and said it has high hopes for Gov.-elect Eliot Spitzer.

"We think he's going to take a hard look at insurance companies before he proposes any major change in workers' compensation," said Troy Rosasco, who co-chairs the New York State Workers' Compensation Alliance.

"There are already meetings going on, and the time will be sooner rather than later," Rosasco said. "I would think we would have substantial workers' comp reform of some sort or another within the first six months of the Spitzer administration."

Spitzer's transition team did not respond to a request for an interview Friday. And the veteran state attorney general is keeping his own plans for workers' compensation reform close to his vest.

He has told participants in a series of meetings intended to forge a compromise among employers, claimants' attorneys and the unions that they won't get a preview of his plans until his inauguration next month.

But Spitzer gained national attention with a string of major settlements with insurers over allegations of accounting irregularities and the payment of illegal contingent fees to secure business.

Most notably, Spitzer signed a record-setting $1.65 billion settlement with American International Group in February, after he accused the insurance giant of cooking its books to smooth out quarterly financial earnings reports.

That surpassed his $850 million agreement with Marsh & McLennan over its use of continent commissions paid to brokers.

And the AIG case led to the ouster of former company CEO Maurice "Hank" Greenberg and his chief financial officer, Howard Smith, as well as a string of ongoing civil and criminal cases.

"He's a good sheriff of the industry," Rosasco said.

With the New York State Assembly set to return to Albany in January, Spitzer has promised to call a summit meeting of shareholders in workers' compensation.

Reforming the system was a major part of his campaign, along with rescuing the beleaguered economy of upstate New York.

The state of the economy has pitted the alliance against the Business Council of New York State and its affiliate, New York Workers' Compensation Action Network (NYCAN).

NYCAN has called on Spitzer to impose the state's first cap on permanent partial disability, saying the PPDs account for 15% of the state's workers' compensation cases and 75% of the expenditures.

The alliance is opposing the caps and pushing hard to raise the maximum weekly benefit for injured workers, which has been capped at $400 since 1992.

On Friday, the alliance called for increasing the maximum benefit to two-thirds of the state average weekly wage. Suggesting a phased-in payment schedule, the alliance also is seeking to raise the minimum weekly rate from $40 to $120.

The alliance wants to raise the benefit amount under the state's Disability Benefits Law to one-half the claimant's average weekly wage without a maximum limit. And it wants Spitzer and lawmakers to require the state Workers' Compensation Board to set a future revaluation date for workers with PPDs, at which time the worker would have to demonstrate an attempt to reenter the labor market.

The proposals released Friday would increase the dollar limit for required pre-approval of medical services from $500 to $1,200 and require private carriers to pay for medical care while workers' compensation claims are pending.

Finally, the proposals would abolish the Compensation Insurance Rating Board and transfer the job of ratemaking classification to state government.

"The biggest issue and the biggest stumbling block we will face in the upcoming negotiations is how injured workers with permanent partial disabilities are treated," Rosasco said. "If he (Spitzer) were to implement a cap, those who remain out of work will become wards of the state welfare system."

Citing upstate New York's depressed economy, NYCAN said in is recently call for action from Spitzer that brokering a compromise on workers' compensation is "the best way to send a signal that he will boost upstate's fortunes."

NYCAN warned that New York has the second-highest average workers' compensation claims in the nation despite the fact that its maximum weekly benefit hasn't changed in more than a decade.

The group said employers' costs are 15% above the national average. Average claims are more than $16,000, up from $11,793 two years ago.

The group called for limiting PPD awards to 10 years.

Current Gov. George Pataki proposed reforms a year ago and said he would slash employers' costs by more than 15% while boosting benefits by 25% for injured workers.

But Pataki's package ended in a legislative gridlock during the 2006 session. Rosasco said he expects Spitzer to fare better, if workers' advocates succeed in severing the issue from the economic fortunes of upstate New York.

"There is no evidence that says the upstate economy has been hurt by workers' compensation costs," Rosasco said. "Frankly, they have not been able to attract business after a large part of the manufacturing base left for Southeast Asia."

--By Michael Whiteley, WorkCompCentral Southeast Bureau Chief
mike@workcompcentral.com

 

 

 

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Need another reason to vote for Eliot Spitzer for New York Governor tomorrow?  This guy just keeps on working for the little guy (including one of my corporate executive clients receiving over $400,000 per year in disability payments from UnumProvident) and fighting greedy insurance companies right up to his presumptive landslide win on Election Day. This wasn't about getting votes (he doesn't need  any more at this point) - it was about doing the right thing for disabled workers.

Late last week, Unum agreed to $15.5 million dollars in restitution to over charged policyholders and a $1.7 million dollar civil penalty. This settlement with UnumProvident, the nation's beleaguered yet largest long term disability claim insurer, comes on the heels of Spitzer's prior settlement with UnumProvident requiring them to re-access tens of thousands of previous unfair long term disability claim denials.  Give Eliot Spitzer credit and your vote tommorrow - to date, he has done more to protect injured and disabled than any past NY Attorney General of recent memory.  Now let's hope he protects New York workers' compensation claimants just as well in his new role as Governor!

 

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In April of this year, New York joined the growing list of states banning discretionary clauses in ERISA long term disability policies, much to the benefit of disabled workers.  Unfortunately, the New York State Insurance Department recently rescinded it's prior advisory letter in favor of proceeding with formal rule making in the future.  While it is clear that New York still feels that "discretionary clauses" are unfair to ERISA long term disability plan participants, this newest circular letter does subject current disability claimants to uncertainty in the near future.

New York Insurance Department Circular Letter # 8, dated 3/27/06, required long term disability insurance companies to remove "discretionary clauses" from disability income policies within 30 days they were "unjust, unfair, inequitable,  misleading , deceptive or contrary to public policy".  New Circular Letter # 14, dated 6/29/06, super cedes and withdraws Circular #8, and states that the Department will be drafting regulations which would "prohibit the use of discretionary clauses".  In the interim, the Department "suggests" that long term disability insurers remove discretionary clauses from policies.

While the latest statement from the New York Insurance Department takes a little wind out of the initial announcement in March, it could lead to stronger permanent regulations which will have more impact in court.   In addition, the formal rule making process allows for public comment.  You can be sure the long term disability carriers will use this opportunity to water down the new regulations to their economic benefit.   You can also be sure that Turley, Redmond & Rosasco will counter all such comments vigorously to protect disabled policyholders in their long term disability claims.

 

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The New York Workers' Compensation Alliance, a lobbying group and political action committee (PAC) protecting injured workers, just published an excellent synopsis of all 2006 NY Workers' Comp bills that were passed in Albany.  Check it out.

Thankfully, we were successful this year in heading off some of the disastrous workers' comp bills pushed by insurance companies and big business.  No doubt they will be back next year with other draconian "reform" measures, but we'll be ready to expose their true motives - profits at the expense of permanently disabled workers!

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Congratulations to the New York State Assembly and New York State Senate for passing an amendment to the NY Workers' Compensation Law (new Article 8-A) which will grant new rights and benefits to ill 9/11 rescue, recovery, clean-up workers and volunteers who worked at Ground Zero after the World Trade Center tragedy. Thanks to the hard work and diligent efforts of many individuals and organizations, including the NY Workers' Compensation Alliance,  who pushed for passage of this important bill, these heroes will now have their health and economic security protected.

The new "9/11 Bill" allows workers who later become ill with conditions such as asthma, chronic obstructive lung disease (COPD), asbestosis, mesothelioma or cancer to file their claims as "occupational diseases". This change essentially extends their time to file a claim to two years from the "date of disablement", rather than two years from the date of exposure exposure which resulted in the denial of many claims to date. Claimants who have had 9/11 disease cases disallowed for late claim filing (statute of limitations) problems can now re-open those denials. Anyone with a 9/11 claim previously denied due to lateness should contact a workers compensation attorney immediately. Turley, Redmond & Rosasco has been handling 9/11 workers' comp and disability claims since the WTC tragedy.  Our attorneys have written numerous articles and lectured at local law schools regarding 9/11 workers' compensation claims.  Any rescue, recovery, or clean up worker whose claim was previously denied or believes their current illness is related to work at Ground Zero is invited to call us for a FREE CONSULTATION.  That's the least we can do for our 9/11 heroes.  The entire text of the new 9/11 workers' comp bill is below:

--------------------------------------------------------------------------------------

AN ACT to amend the workers' compensation law, in relation to claims for
illnesses sustained by workers who participated in the rescue, recov-
ery and clean-up effort following the terrorist attack at the World
Trade Center on September 11, 2001

The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:

1 Section 1. The workers' compensation law is amended by adding a new
2 article 8-a to read as follows:
3 ARTICLE 8-A
4 WORLD TRADE CENTER RESCUE, RECOVERY AND CLEAN-UP OPERATIONS
5 Section 161. Definitions.
6 162. Registration of participation in World Trade Center rescue,
7 recovery and clean-up operations.
8 163. Notice; participants in the World Trade Center rescue,
9 recovery and clean-up operations.
10 164. Disablement of a participant in World Trade Center rescue,
11 recovery and clean-up operations treated as an accident.
12 165. Reopening of disallowed claims.
13 166. Liability of employer and insurance carrier.
14 167. Claims of volunteers.
15 § 161. Definitions. Whenever used in this article:
16 1. "Participant in World Trade Center rescue, recovery, or cleanup
17 operations" means any (a) employee who within the course of employment,
18 or (b) volunteer upon presentation to the board of evidence satisfactory
19 to the board that he or she:
20 (i) participated in the rescue, recovery, or cleanup operations at the
21 World Trade Center site between September eleventh, two thousand one and
22 September twelfth, two thousand two; or
23 (ii) worked at the Fresh Kills Land Fill in New York city between
24 September eleventh, two thousand one and September twelfth, two thousand
25 two, or

EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17509-01-6
S. 8348 2

1 (iii) worked at the New York city morgue or the temporary morgue on
2 pier locations on the west side of Manhattan between September eleventh,
3 two thousand one and September twelfth, two thousand two, or
4 (iv) worked on the barges between the west side of Manhattan and the
5 Fresh Kills Land Fill in New York city between September eleventh, two
6 thousand one and September twelfth, two thousand two.
7 2. "World Trade Center site" means anywhere below a line starting from
8 the Hudson River and Canal Street; east on Canal Street to Pike Street;
9 south on Pike Street to the East River; and extending to the lower tip
10 of Manhattan.
11 3. "Qualifying condition" means any latent disease or condition
12 resulting from a hazardous exposure during participation in World Trade
13 Center rescue, recovery or clean-up operations.
14 4. "Disablement" shall have the same meaning as defined in section
15 thirty-seven of this chapter and determined by the board in the same
16 manner as provided in section forty-two of this chapter.
17 § 162. Registration of participation in World Trade Center rescue,
18 recovery and clean-up operations. In order for the claim of a partic-
19 ipant in World Trade Center rescue, recovery and clean-up operations to
20 come within the application of this article, such participant must file
21 a written and sworn statement with the board on a form promulgated by
22 the chair indicating the dates and locations of such participation and
23 the name of such participant's employer during the period of partic-
24 ipation. Such statement must be filed not later than one year after the
25 effective date of this article. The board shall transmit a copy of such
26 statement to the employer or carrier named therein. The filing of such a
27 statement shall not be considered the filing of a claim for benefits
28 under this chapter.
29 § 163. Notice; participants in the World Trade Center rescue, recovery
30 and clean-up operations. The notice requirements for injury or death
31 resulting from a qualifying condition for a participant in World Trade
32 Center rescue, recovery and clean-up operations shall be the same as set
33 forth in section eighteen of this chapter, except that the notice shall
34 be given to the employer, or in the case of a volunteer, to the board,
35 within two years after the disablement of the participant or after the
36 participant knew or should have known that the qualifying condition was
37 causally related to his or her participation in World Trade Center
38 rescue, recovery and clean-up operations, whichever is the later date.
39 § 164. Disablement of a participant in World Trade Center rescue,
40 recovery and clean-up operations treated as an accident. The date of
41 disablement of a participant in World Trade Center rescue, recovery and
42 clean-up operations resulting from a qualifying condition that is
43 causally related to such participant shall be treated as the happening
44 of an accident within the meaning of this chapter and the procedure and
45 practice provided in this chapter shall apply to all proceedings under
46 this article, except where otherwise specifically provided herein.
47 § 165. Reopening of disallowed claims. The board, upon receiving a
48 statement duly filed as required under section one hundred sixty-two of
49 this article, from a participant in World Trade Center rescue, recovery
50 and clean-up operations for a qualifying condition that was disallowed
51 as barred by section eighteen or section twenty-eight of this chapter
52 shall reopen and redetermine such claim in accordance with the
53 provisions of this article, provided that no such previously disallowed
54 claim for a qualifying condition shall be determined to have a date of
55 disablement that would bar the claim under section eighteen or section
56 twenty-eight of this chapter.
S. 8348 3

1 § 166. Liability of employer and insurance carrier. The employer in
2 whose employment an employee participated in World Trade Center rescue,
3 recovery and clean-up operations shall be liable for any claim for a
4 qualifying condition that is causally related to such participation
5 provided that such participation arose out of and in the course of such
6 employment. For the purpose of determining which carrier has insurance
7 coverage of such claim, the date of accident shall be considered the
8 last day of such participation.
9 § 167. Claims of volunteers. For persons who participated in World
10 Trade Center rescue, recovery and clean-up operations as volunteers, the
11 uninsured employers' fund shall be deemed to be the employer only for
12 the purposes of administering and paying claims pursuant to this arti-
13 cle. Benefits under this chapter shall be payable to such volunteers
14 only to the extent that funds are available out of funds appropriated to
15 the United States Department of Labor under Public Law 109-148 to reim-
16 burse the uninsured employer's fund for the payment of such benefits.
17 § 2. This act shall take effect immediately and shall be deemed to
18 have been in full force and effect on and after September 11, 2001 and
19 shall apply to all open and closed claims coming within its purview.


--------------------------------------------------------------------------------


NEW YORK STATE SENATE
INTRODUCER'S MEMORANDUM IN SUPPORT
submitted in accordance with Senate Rule VI. Sec 1



BILL NUMBER: S8348

SPONSOR: MARCHI

TITLE OF BILL:
An act to amend the workers' compensation law, in relation to claims for
illnesses sustained by workers who participated in the rescue, recovery
and clean-up effort following the terrorist attack at the World Trade
Center on September 11, 2001


PURPOSE OF THE BILL:
The purpose of this bill is overcome obstacles of filing claims by
participants in World Trade Center rescue, recovery and clean-up oper-
ations following the September 11, 2001 attacks for latent conditions
and illnesses by treating such claims filings in a similar manner to
claims for occupational disease. The bill also addresses specific issues
regarding claims of those who participated as employees and those that
participated as volunteers.


SUMMARY OF PROVISIONS:

Section 1 of the bill adds a new article 8-a to the Workers' Compen-
sation Law ("WCL") which provides as follows:

* Section 161 provides definitions of "Participant in World Trade Center
rescue, recovery and cleanup operations", "World Trade Center site",
"Qualifying condition" and "Disablement" as those terms are used in the
new article. "Qualifying condition" is defined as a latent disease or
condition resulting from a hazardous exposure during participation in
the rescue, recovery or clean-up operation. "Disablement" is defined to
have the same meaning as the term is used in the WCL in reference to an
occupational disease.

* Section 162 requires participants, in order to qualify for special
notice and claims filing provisions for a qualifying condition, to file
a written and sworn statement with the Workers' Compensation Board (WCB)
within eighteen months of the effective date of the legislation stating
the dates that person worked in the operation and name of the employer.
The employer and carrier are to receive a copy.
* Section 163 provides that notice of injury or death from a qualifying
condition shall be given within two years after the disablement of the
participant or after the participant knew or should have known that the
qualifying condition was causally related to participation in rescue,
recovery or clean-up operations, whichever is later.
* Section 164 provides that the date of disablement for a claim by a
participant for a qualifying condition shall be treated as the occur-
rence of an accident so as to provide a statute of limitations standard
to these claims the same as that which applies to an occupational
disease claim.
* Section 165 provides that upon receiving a duly filed registration
statement for a qualifying condition, the WCB shall reopen any previous
claim for such a condition disallowed under WCL § 18 or § 28 and rede-
termine the claim applying the liberal notice and claims filing
provisions as provided.
* Section 166 provides that the employer of any participant in rescue,
recovery and clean-up operations shall be liable for any claim for a
qualifying condition that arose out of and in the course of employment
and that the insurance carrier covering the employer on the last day of
participation in rescue, recovery and clean-up operations has coverage
of such claims.
* Section 167 provides that the Uninsured Employers' Fund shall adminis-
ter and pay the claims of those who participated as volunteers but that
benefits shall be paid only to the extent that funds appropriated by the
federal government for such purpose are available.
Section 2 of the bill provides for an immediate effective date but is
deemed to have been in effect on and after September 11, 2001 and
applies to all open and closed claims coming within its purview.

EXISTING LAW:
Existing law treats claims for latent conditions resulting form a
hazardous exposure during participation in the rescue, recovery or
clean-up operation as accidents.

PRIOR LEGISLATIVE HISTORY:
None.

STATEMENT IN SUPPORT:
The aim of this bill is to remove statutory obstacles to timely claims
filing and notice for latent conditions resulting from hazardous expo-
sure for those who worked in rescue, recovery or cleanup operations
following the World Trade Center September 11th, 2001 attack.
The WCL requires an employee to provide notice to the employer within 30
days (WCL § 18) and to file a claim for benefits within two years of the
injury (WCL § 28). Under the WCL, latent conditions are normally
compensable as occupational diseases. Notice and claims filing require-
ments are triggered by a date of disablement determined by the WCB.
Occupational disease claims usually involve conditions that develop
slowly over a period of years after an employee has performed a partic-
ular type of work. Each disease established by the WCL as occupational
is linked to particular work processes that the employee has performed
over time. In the case of participants in World Trade Center rescue,
recovery or cleanup operations, little is known about what diseases and
conditions might develop later on based on their exposure to uniquely
hazardous conditions so as to recognize them as occupational diseases.
This bill requires that claims for latent conditions alleged to be
causally related to a hazardous exposure while participating in rescue,
recovery or cleanup operations be treated for claims filing (statute of
limitations) and notice purposes in the same manner as an occupational
disease. Claims filing and notice provisions would begin to run from the
date of disablement determined by the WCB rather than from the date of
the actual exposure. As in occupational disease cases, the WCB has wide
latitude to set the date of disablement so that the claim of a partic-
ipant for a qualifying condition who discovered the presence or cause of
that condition at a date after participation ceased not to be barred by
the statute of limitations or for lack of timely notice. In cases where
the participant continues to work after seeking medical treatment for
the qualifying condition, the WCB would have latitude to set a date of
disablement so as to include such treatment as covered under the claim.
Claims for a qualifying condition can be determined to be compensable as
accidents under the WCL based on evidence that they are causally related
to a hazardous exposure during rescue, recovery or cleanup operations.
These complicated and unique issues of causation can best be addressed
by the WCB on a case by case basis.
To be eligible for occupational disease claims filing and notice treat-
ment, participants would be required to register with the WCB within
eighteen months after enactment of the legislation showing the dates and
location of their participation.
The bill also addresses claims handling and liability issues for two
distinct classes of workers who participated in the World Trade Center
rescue, recovery and cleanup effort, those who participated at the
behest of their employer and sustained injuries that arise out of and in
the course of that employment and those that participated as volunteers.
The employees are covered by their employers' workers' compensation
insurance. The bill provides that benefits for latent diseases will be
covered under the insurance policy covering the employer in question for
injuries sustained in the rescue, recovery and cleanup effort on the
date that the employee ended his or her participation in such oper-
ations.
Volunteers have been paid workers' compensation benefits for all inju-
ries related to participation in rescue, recovery and clean-up oper-
ations by the Uninsured Employers' Fund and reimbursed through the U.S.
Department of Labor out of a $50 million federal appropriation for that
purpose. The bill would clarify that benefits to these volunteers would
be financed only out of federal funds reimbursements appropriated for
that purpose and not otherwise be a liability imposed on the Uninsured
Employers' Fund.

BUDGET IMPLICATIONS:
None.

EFFECTIVE DATE:
This bill is effective immediately is deemed to have been in effect on
and after September 11, 2001 and applies to all open and closed claims
coming within its purview.

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It looks like a version of the new 9/11 Workers' Comp Bill introduced recently by Assemblyman Jonathan L. Bing (D-Manhattan) will soon become law.  Final details of a compromise 9/11 bill are currently being worked out by negotiators from Governor Pataki's office, the Assembly and the Senate, where a similar bill was introduced by State Senator John Marchi (R-Staten Island).   The New York Workers' Compensation Alliance has been working closely with all interested parties in Albany to craft a law that will protect all 9/11 heroes. If such a bill is signed by Governor Pataki, Ground Zero rescue, recovery and clean up workers will be given significant new protections that have hindered their workers' compensation claims to date. 

One of the main problems 9/11 workers have faced at the New York Workers' Compensation Board is having their claims denied for late filing.  In New York, an injured worker has two years from the "date of accident" (9/11/01) to file a claim for benefits.  Under the current law, that would make the cut off deadline for filing 9/11 claims September 11, 2003.  But what about the clean up worker  who breathed in numerous toxins at Ground Zero but doesn't begin to experience respiratory symptoms until sometime in 2004?  He is eventually diagnosed with lung cancer related to Ground Zero.  Currently, this claim would be denied by the Workers' Compensation Board as untimely.

Specifically, the new bill would fix this problem by removing the current "Statute of Limitations" (filing deadline) that has led to mass denials of 9/11 workers' comp claims.  It would apply the deadline normally reserved for Occupational Diseases such as mesothelioma or carpal tunnel syndrome (generally two years from the "date of disablement") . Hopefully, the new law will also allow all prior 9/11 claims denied or not filed due to deadline problems to be reopened or newly filed. 

The New York Legislature and the Governor are on a roll lately!  Timely budgets, more school aid, and now a much needed workers' compensation bill to protect the health and economic security of 9/11 heroes.  We are truly living up to our nickname, the "Empire State"!