Workers’ Comp in New York, Social Security, and Medical Marijuana

Section 10 of the Workers’ Compensation law in New York State says, among other things,  that there shall be no liability for compensation “when the injury has been solely occasioned by intoxication from alcohol or a controlled substance………”

It has long been the law that if someone gets injured on the job SOLELY because they are drunk or stoned, the employer is NOT responsible.

But what about the recent legislation regarding medical marijuana? Does this affect the Workers’ Comp system in New York?

In my opinion, New York State and Governor Cuomo’s recent passage of a limited medical marijuana bill should NOT affect Workers’ Comp. Why? Because the bill says:

To be prescribed medical marijuana, a patient must receive a certification from a licensed practitioner who must register with the Department of Health and be qualified to treat the serious condition for which the patient is seeking treatment. The serious conditions for which medical marijuana can be prescribed are cancer, HIV/AIDS, ALS (Lou Gehrig’s Disease), Parkinson’s Disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication on intractable spasticity, epilepsy, inflammatory bowel disease, neuropathies, Huntington’s Disease, or as added by the commissioner by DOH.

Looking at this list, there are few if any such conditions that could possibly be work-related. The only ones that are possible are the nerve damage situations but those seem to cover only the most severe. So this law likely won’t affect Workers’ Comp.

But what about Social Security Disability and Medical Marijuana? I googled these together and found some interesting articles. Remember, marijuana is still illegal on the federal level and Social Security is a federal program. If someone is alleging a mental disability and is taking marijuana on a daily basis it might be hard for the Judge to decide their case. Anyone who is found to be disabled because of drug use can be denied benefits on that basis.

So the use of medical marijuana will make disability claims more complicated.

Bottom line—this is still new territory for the disability field, so stay tuned………

Citizens United II- The McCutcheon case

Soapbox: Definition——–The term is used to describe a person engaging in often flamboyant impromptu or unofficial public speaking, as in the phrases "He’s on his soapbox", or "Get off your soapbox."

OK so here I am back on my soapbox. As you may know, my political pet peeve is the ability of the wealthiest, richest people and corporations to now, after the Supreme Court decision in the case called Citizens United, essentially BUY our politicians.


Two articles in the New York Times on April 3rd talk about this subject. First, the main Editorial starts with these words: "The Supreme Court on Wednesday continued its crusade to knock down all barriers to the distorting power of money on American elections…" (referring to a follow-up case to Citizens United decided this past week called McCutcheon.)

The editorial goes on to state that "Thanks to Wednesday’s (McCutcheon) decision, the interests of the very few wealthiest Americans–which differ significantly from those of most Americans–will now get even more outsize consideration by legislators."

We now have a system where there is no limit on how much money can be given to a politician! Why? Because the Supreme Court said so, in Citizens United and McCutcheon.

Even more troubling: An Op-Ed article on the very next page of the New York Times on April 3rd. This article is by the Vice-Charperson of the Federal Election Commission (FEC.) She states that, "The Federal Election Commission is failing to enforce the nation’s campaign finance laws. I’m in a position to know. I’m the vice-chairwoman of the commission…"

The vice-chairwoman goes on to explain that the FEC continuously fails to pursue "investigations into potentially significant fundraising and spending violations" by political candidates. Why? Because "the three Republicans often vote as a bloc against pursuing" these cases.

So, what we NOW have is a Supreme Court and an Election Commission that are saying to the wealthiest tiny fraction of our population, "Go ahead, do whatever you want, we won’t look over your shoulder. Wanna "donate" thousands, or even millions of dollars for the purpose of controlling (bribing) politicians for your self-serving or even evil reasons? Go ahead! It’s OK with us!"

Bribery: Synonyms—–extortion, payoff, protection, slush fund, graft, hush money, enticement, payola, buyoff, corrupt money, influence peddling.

In a word, corruption. It’s now a government that can be bought by the highest bidder.

This is no joke. Educate yourselves about the result of these Supreme Court decisions, because they do affect everyone. The middle class has shrunk in huge proportions, in my opinion, because the wealthiest Americans have been able to BUY and therefore CONTROL the officials who are in power.

That’s not the Democracy we all want, or deserve. A Constitutional Amendment to reverse Citizen’s United could put our electoral system back to where it was, before Citizens United., where it should have remained.

Note: The views and opinions expressed on this web site are solely those of Morrin & Sands PLLC. These views and opinions do not necessarily represent those of any other individual or staff member of The Law Office of Morrin & Sands PLLC.

Is Government regulation a good thing?

Earlier this month (on 6/2) the New York Times printed several Letters to the Editor on a topic I am very passionate about: Government regulation. Is it a good thing?

Well, let’s look at what happens when there is lax or NO government regulation. I’m going to use as an example the horrific and deadly factory explosion and fire in West, Texas, home of Governor Rick Perry. I quote from a great article from a newsletter called Kos:

"Governor Rick Perry has been running around the U.S. boasting about Texas and its low taxes, small government, weak regulation, little oversight, anti-union right to work state in which workers and consumers have few protections. Rick Perry is proud to let business owners know that they can move their businesses to Texas where they can avoid paying taxes while they run rough shod over the safety and well-being of its residents and consumers………..

As we learned very recently, there can be devastating consequences to Rick Perry and the Texas GOP’s anti-government hysterics……….

Rick Perry claims that low regulation levels the playing field. But as we recently learned, low regulation also levels schools, homes, churches and businesses. Not to mention the loss of life where apparently life is cheap in Rick Perry’s unregulated Texas………."

The problem, as detailed in one prescient letter to the Times, is that "regulation is costly, inefficient and frustrating, but much better than the alternative. History proves conclusively that unregulated free markets are incapable of reining in the excesses of capitalism, which must be tempered through government meddling……."

OK, so here’s my point. Capitalism is a fantastic system–the best in the history of the world. But for it to work properly, the people—yes, you and me—need to make sure that businesses PLAY BY THE RULES.



Yes, there are too many rules and the government is inefficient. But no rules? Nope, not the answer.

So, just to get political for a moment, when someone suggests to you that government regulation is a bad thing, think about this: Do you want badly polluted water and air, corrupt banks, contaminated food, tainted drugs, unsafe workplaces, and dangerous travel?

Isn’t government regulation needed to make sure that the common good of ALL citizens remains the primary thing we should try to protect?

Do YOU trust all businesses to do what they want, or should WE make sure businesses play by the rules – such as not storing tons of dangerous explosives in a factory and not telling anyone?

As one Times letter put it, "…the challenging issue is to find the right mix of governments and markets in the name of the common good."

Workers Compensation Wrongdoing: Part II

In my previous blog about what people think about when they hear the words “Workers’ Compensation,” (fraud is part of the thought process of many,) I mentioned attorney Leonard Jernigan’s “Top 10 Fraud cases.” (They are employer fraud cases.)Well here is a recent blog of his that complements my earlier piece on the subject of “comp fraud.” It is so good that I repost it here verbatim (Note: The tactics described by Jernigan below are used by insurance carriers every day. They are a routine experience for injured workers.)

“As a workers’ compensation attorney I find it interesting that many people in the public question the disability status of injured workers. Let’s assume for the moment that you have sustained an injury on the job and you’ve been out of work for 5 months after back surgery. When you are unable to return to work quickly, the insurance industry has a lot of tools at its disposal to verify your disability status. They can pour over your medical records, pre- and post-injury, looking for any piece of evidence to deny your claim. They can send your file to lawyers who review medical records and recorded statements to potentially attack your credibility and honesty. They can hire a nurse to attend your appointments and speak with the physician and the staff, as well as obtain information directly from you. They can do background searches on you to see if you have a criminal or civil record. Obviously they will check to see if you ever filed a workers’ compensation claim before. They will also do social media and Internet searches on you and your family members (Facebook, Twitter, LinkedIn, etc.). They also can hire private investigators to follow you and your family around and take video recordings of your activities. With all these resources at the disposal of the insurance company, it’s hard to believe that many cases of employee fraud slip through the system.

A private investigator pretended to be a potential buyer and spent an hour or more going through the house.

We have one client recently who was followed by several private detectives for more than a year. They not only followed him around, but also followed his wife and son, who have no workers’ compensation claim. Another client had to sell his house because of his disability. A private investigator pretended to be a potential buyer and spent an hour or more going through the house. Does the concept of “Big Brother” come to mind? Are you concerned about invasion of privacy, particularly for family members, friends, and others who may be seen in such videos? We always tell our clients such activity may occur so don’t be alarmed by it, but that isn’t too comforting to people who are struggling through health issues, who have depression and anxiety problems, and who are sensitive to privacy concerns.

It would be interesting if the roles were reversed and employers who underpay premiums by misclassifying the status of their employees, who fail to purchase insurance required to protect their workers, and who don’t follow proper safety regulations that cause injury, were followed this closely by employees or regulators who administer the workers’ compensation program. I have no doubt that these employers and insurance representatives would be outraged.”

Facts: Dangerous things in the right hands

My new hero (heroine?) is a scholar named Kathy A. Ruffing. She works for a group called “The Center on Budget and Policy Priorities” which is – according to its website- “(O)ne of the nation’s premier policy organizations working at the federal and state levels on fiscal policy and public programs that affect low- and moderate-income families and individuals.”

Simply put, Ms. Ruffin researches how this country’s economic policies affect our poor. Her latest paper – 24 pages in length, replete with charts and graphs- is entitled “Social Security Disability Insurance is Vital to Workers with Severe Impairments.” Why would she write such a paper? Simply put again, Social Security Disability as a Federal program is under attack. Some critics have charged that spending on the program is “out of control.” Note that the present Republican candidate for President has constantly railed against the U.S. becoming the “Entitlement Society.” However, Kathy addresses these allegations with an interesting approach: using facts. Like these well-researched nuggets:

– Disability recipients receive modest benefits. The average monthly benefit in 2011 was $1,111- or $13,326 per year.

-Most recipients depend upon their disability benefits for their subsistence. Disability benefits make up more than 90 percent of income for nearly half of non-institutionalized recipients, and more than 75% of income for the vast majority.

-If recipients could actually perform work- which they are allowed to do under SSA’s work incentive programs- they would. There is no disincentive in the program for recipients to try to work for up to 9 months (there is no loss of payments in such cases) but few do.

-Fewer than half of applications are ultimately allowed, often after prolonged appeal. Eligibility criteria are quite stringent.

-Even rejected applicants fare poorly in the job market.

Basically, Ms. Ruffing uses statistics melded with logical arguments to show that Social Security Disability is a bedrock program for our country’s disabled and poor and it should not be messed with. The politicians need to find ways to keep it vibrant and healthy, in the long-term. And those are the facts.

A link to her article:

Social Security Disability Hearings – by the Numbers

I like statistics, especially when they involve sports. But the Social Security Administration (SSA) puts out lots of stats regarding Social Security Disability claims too. Some break claims numbers down by Hearing Office location. As background, understand that where you live determines which Social Security hearing office (called “ODAR”) hears your case.

For instance, take a look at these averages:

Bronx: 9 months- 55%

Brooklyn: 12 months – 70.2%

Jericho (Long Island): 9 months- 68.8 %.

Manhattan:8 months- 52.7%

Queens: 10 months- 55.1%

The above data were compiled over 2011 and 2012. The figures in the left hand column are the average wait time for a hearing after a denied claimant has appealed. That’s right—you may have an average wait time of a year to get a hearing in front of a Social Security Disability Judge once you are denied at the initial level!

On the other hand, the figures on the right are your average chance of winning the case fully —once you get to a hearing—-in that hearing location. That’s right again— you have a better chance of winning your case at some hearing offices rather than others.

Why should this be? The simple answer is that hearing Judges are human. They have their own biases and their own penchants for how they view persons applying for Disability. Each hearing office has its own set of Judges.

On April 12, 2011, a group called the “Mental Health Project” filed a class action lawsuit charging systematic bias against low-income and foreign-born individuals seeking Social Security disability benefits in Queens.

The Queens ODAR had the third highest benefits-denial rate in the country and the highest benefits-denial rate in the New York region, based on data covering decisions from 2005 to 2008. Almost all of the Judges named in the suit ranked high on the national list of top claims deniers.

What’s interesting is that since the suit was filed, things have changed in Queens ODAR. Queens isn’t even the highest denial-rate ODAR in the NY metro area anymore. (The Queens Judges used to deny many many more cases than they approved.) There was a shakeup there, however, involving quite a number of the Judges, no doubt due to the lawsuit. Now, apparently, the Queens hearing office is actually a little above the national average in finding in favor of the disabled claimant.

The national average wait time for a hearing is 11 months. The national average “fully favorable” decision (win) percentage for Social Security disability hearings is 52.5%

That’s what the SSA’s stats tell us.