Did you know that some nursing homes have bariatric wards where Certified Nurse’s Aides (CNA’s) must care for obese patients? What happens when, due to staffing issues, the direct caregivers get little or no co-worker assistance with these patients and must care for these extra-heavy patients alone?? And must at all times ensure that their patients are safe?
Worker injuries can and do happen. Serious injuries. (Nursing home patients sometimes get hurt too, unfortunately, but they can sue. In cases where there is no one responsible for an injury except for the employer, injured workers cannot sue.)
My client Jean, a CNA in New York, tried to catch her 300 pound patient who was falling. Jean injured her neck and her back in that accident. As time went on she suffered “progressive quadriparesis” (loss of function of her arms and legs,) slowly lost bladder control and could not walk. She moved to Connecticut to be cared for by siblings and one day could no longer function at all. She went to a Connecticut hospital, was admitted as an emergency, and had an 8 hour emergency spinal surgery that showed severe spinal damage.
Truth #1: Jean has no right to sue anyone. Workers’ Comp protects the employer nursing home from being sued. She can only receive, at most, two-thirds of her CNA salary while she is out of work. Her only legal remedy? Workers’ Compensation.
Truth #2: The nursing home’s (employer’s) insurance company is not doing the right thing by Jean. It is refusing to pay for the surgery, for her recovery, or anything else related to the surgery, because Jean, it says, has not yet proven that the surgery was due to the work accident. (We are waiting for a hearing to argue this case before the Judge.)
Observation #1: Many different professions lay their bodies on the line day to day just performing their work (yes, our cops, firemen and emergency workers do, and should be thanked and thanked again. But other jobs—like those occupations that provide direct care for the elderly—can be quite dangerous too. Just ask bariatric direct care givers.)
If you or someone you know has been injured at work or can no longer work due to illness or injury, give us a call. Consultations are free. We handle BOTH Workers’ Comp and Social Security Disability cases.
“We Work for You When You Can’t Work”
In NY, an injured worker is entitled to weekly payments equalling two-thirds (2/3) of their salary while they are out of work. The figure used for their pre-injury salary is known as their “average weekly wage” (“AWW”). How does the Workers’ Compensation Board determine their AWW? Well, the answer is a bit complicated.
In determining AWW, the Workers’ Compensation Board takes into consideration what the injured employee earned on average for the 52 weeks preceding the date of accident. There are numerous ways of calculating that average, but the most common way is by dividing the total amount by 52 to get the AWW. Generally speaking, the insurance carrier will reach out to the injured employee’s employer and obtain a payroll documenting every paycheck that the injured employee received for the 52 weeks preceding the date of accident.
What if someone had more than one job at the time of the accident? Well it is important to note that if an injured employee had multiple jobs at the time of the accident, all wages from all jobs should be included when calculating the AWW. This is known as “concurrent employment.” However, the obligation to provide proof of concurrent employment is on the claimant/injured employee. There are several ways to prove concurrent employment, however, it generally requires a hearing before a Judge.
Also, problems sometimes come up in determining the correct AWW in a case where the injured employee hasn’t filed proper tax returns and/or works off the books. As always, if you ever have any questions or would like our help representing you, consultations are always free and we work off of a contingency fee. We don’t get paid unless you get paid!
I’m a sports nut- like many people I know. I follow all four major pro sports and have read literally hundreds of sports books and publications in my lifetime. I’ve been to and watched countless games. What many people don’t know, interestingly, is that almost all pro sports injuries in the U.S. are covered by Workers’ Compensation.
In February this article appeared in the L.A. Times:
Last fall, the National Football League scored a huge victory in California, helping push through a new law barring most professional athletes from filing workers’ compensation claims in (that particular) state.
But that win has come at a cost.
Publicity from a high-profile battle over the legislation prompted players from around the country to file more than 1,000 injury claims just prior to a September deadline – a huge influx that could cost the nation’s top professional sports leagues hundreds of millions of dollars to resolve.
In the first two weeks of September, current and retired players filed 569 claims against NFL franchises, 283 claims against Major League Baseball clubs, 113 against National Hockey League teams and 79 against NBA squads, a Los Angeles Times analysis of state workers’ compensation data found.
Nearly 70% of the filings include allegations of head or brain injuries caused by repetitive trauma. Most of these athletes appeared to have never played for a California team; they filed claims based on repetitive injuries they say were sustained in part during road games played in the state. It is those claims that are now barred under the new California law.
Among the athletes rushing to beat the deadline were sports legends such as Miami Dolphins quarterback Dan Marino, Baltimore Orioles pitcher Jim Palmer and Houston Rockets center Hakeem Olajuwon, as well as many lesser-known retirees, some suffering serious physical impairment. A number of active players, including San Francisco 49ers standouts Michael Crabtree and Frank Gore, also filed claims.
My understanding of what happened in California is that every NFL injured player- whether they played for a California-based team or not- used to file for comp in California because that state had the most favorable comp law. (Every state has its own separate Workers’ Comp law.) In California, even visiting players could file, and California allowed claims for “cumulative” injuries—successive blows led to concussions that added up to brain damage. However, after the law changed, players weren’t allowed to do this unless they played for a California team (like the Lakers or Sharks, for instance.)
So what’s my point here? My point is, that professional athletes who are suffering these head injuries, with attendant brain damage, or career-ending injuries, actually do have Workers’ Compensation as one way of recovering lost wages and for obtaining medical treatment for their injuries. But professional athletes are subject to what the law in their particular state says about cumulative injuries.
New York allows claims for cumulative trauma. I have both a love of sports and a career-long enthusiasm for my law practice of Workers’ Comp—so maybe I can combine the two! I would be happy to help any injured pro player.
So, to any and all injured New York Jets, Giants, Mets, Rangers, Knicks, Nets, Yankees and Islanders : feel free give my law firm a call!
In a previous essay I wrote about Workers’ Compensation (WC) permanent injury awards:
“Permanent injuries to joints of the body, vision, and hearing, qualify for “schedule loss of use” awards regardless of whether a person is working or not“, I explained.
As a follow up to that, I can tell you that it has become very difficult, in the world of Workers’ Comp in New York, to receive not a permanent injury award, but to receive weekly benefits while out of work!
This sounds counterintuitive: Isn’t Workers’ Compensation primarily designed to pay people while they are out of work? Well, in the current climate, it’s not so easy to obtain a proper weekly payment while out on comp (called a “lost time award”.)
First, understand that eventually it becomes a choice, because ultimately you do not receive both types of awards. The WC law says you can’t get a permanent injury award and ADD it to your lost time award..at the end of the case you have to choose one or the other!!!
For an experienced Workers’ Comp lawyer in New York, then, this becomes an analysis of which one is better for the client.
Here’s a comparison of the two types of awards:
(Note: Permanent injury awards are called “SLU’s”)
Lost time: Paid only if injured worker (IW) is under medical treatment.
SLU: Paid only if the IW is finished with treatment.
Lost time: Paid most often at a lower than maximum rate.
SLU: Paid at the maximum rate.
Lost time: Injured worker can be required to look for work (job search) to qualify.
SLU: No requirement to look for work.
Lost time: Paid in bi-weekly installments.
SLU: Paid in one lump sum.
SLU: Paid one year from date of accident
Lost time: Paid after one week of being out of work.
As you can see, a SLU award has huge advantages over lost time awards. The problem is, when someone has suddenly stopped working and is in need of income to survive, it is unimportant to that person that one year later, they may receive a lump sum that will cover all of their lost wages. That person needs income NOW.
That is why we as WC attorneys still try as hard as we can to get our clients “lost time bi-weekly checks” while they are out. Later on, we worry about whether they qualify for an SLU.
More complicated than you thought? That’s why an experienced WC attorney is essential in almost every WC case.
Since July 1, 2010, the maximum weekly benefit rate for NY workers’ compensation (WC) claimants has been floating from year to year. It is pegged to the date of accident—meaning, even if there are increases in later years, the maximum rate in your case stays the same: the max in effect on your date of accident. The max rate changes every July 1st now—-hence this article. When I broke into the WC business in mid-1983, the maximum weekly rate (amount) of Workers’ Compensation that a worker injured after July 1, 1983 could receive was $255 per week, but only if you were totally disabled. Partially disabled workers could only receive $125 per week, at that time, max!
Yesterday, the Workers’ Compensation Board announced that from July 1, 2014 through June 30, 2015, the maximum weekly benefit rate will be increased to $808.65 per week…. a far cry from when I started practicing as a Workers’ Comp attorney.
Maximum rates have been a political football. For a long time they were frozen.
For nearly 15 years, (1992-2007) the maximum benefit remained stagnant at the weekly rates of $340 for total disability and $280 for partial. As of January 1, 2007, New York’s statutory benefit maximum for total disability ($400) still ranked 49th out of 51 jurisdictions – the 50 states and the District of Columbia. Only Arizona, with a statutory benefit maximum of $374.01, and Mississippi, with a statutory benefit maximum of $387.68, ranked lower.
The Comp Board will say that the 2007 Reform (law change) “dramatically improved indemnity benefits for injured workers.” by increasing the maximum rates. It provided for incremental increases through 2009 and then indexed the maximum rate annually. However, the Workers’ Comp Law in 2007 ’giveth” and then “taketh away.” In exchange for increasing the maximum rates, in 2007 the State Legislature instituted “caps” that made lifetime payments of WC pretty much a thing of the past!
When I broke in in 1983, once an injured worker was found permanently disabled, it was assumed that person would get benefits for the rest of their life—-unless they took a lump sum settlement, or returned to work. Now, the caps say that permanently disabled workers get benefits for a certain number of years, and only if they continuously look for work, but then after the term ends (called the “cap”) the payments stop (with few exceptions.)
So, the max weekly rates went up, but the length of time payments would be made was severely slashed. There was a definite tradeoff in 2007 between labor and big business. This was a landmark political compromise- and one that led to the July 1st annual max rate changes we now have. And don’t forget- not everyone qualifies for the max rate. Most injured workers get less than the max—as the law says if you are totally disabled you get the max, or 2/3 of your weekly wages, at most, whichever is less!
Clearly one of the biggest misconceptions about Workers’ Comp is that you have to be out of work to collect. That’s because most people have a limited understanding of what benefits are available. In New York, there are many situations where injured workers can collect workers comp money benefits even if they are working:
1. Permanent injuries to joints of the body, vision, and hearing, qualify for “schedule loss of use” awards regardless of whether a person is working or not. These awards are extremely common.
Lynn, a right handed office worker, tears her left rotator cuff (shoulder) at work. She normally makes $900 per week salary and she manages to keep going into work and doing her job even with the injury. One year later all of the doctors agree Lynn, who is still performing her job, has suffered a permanent, 20% loss of use of her left arm. An entire arm is worth 312 weeks of money benefits under New York law. This award would then be calculated as follows:
20% of arm= 20% of 312=62.4 weeks at the weekly rate of $600, which is 2/3 of Lynn’s salary. 62.4 x 600= 37,440.
Total monetary award that Lynn collects: $37,440.
All Workers’ Comp benefits are tax-free, BTW.
2. John is a union welder. A torch he is holding when he takes off his mask backfires, burning his face and neck. These leave permanent scars. John only loses one week from work after the accident.
Maximum award John can collect for his facial scars: $20,000.
3. Gina is a nurse. She injures her back at work. She requires physical therapy, pain management, medications, and surgery. After her back surgery, she goes back to work at reduced earnings since she can no longer work full time.
Her employer’s insurance company offers her a lump sum settlement to pay for future loss of earnings and her future medical costs for her back injury, even though she is working part time. The insurance company offers Gina $150,000 to settle the case.
So there are many instances where injured workers can be compensated even if they are working. Therefore, it is important to remember that workers injured on the job should always file a claim not only with their employer but with the Workers’ Compensation Board each and every time they are seriously injured at work whether they are working or not.
Injured workers too often “leave money on the table” that is rightfully theirs; they just don’t know the law.
That’s where The Law Office of Morrin & Sands PLLC can help.
Many of my clients who are injured on the job in New York State are disabled and stay out of work longer than 12 months. In such an instance, can the injured worker ALSO receive Social Security Disability Benefits?
In many cases, the answer is YES.
If the Workers Compensation (WC) claimant (injured worker) is 24 years old and has a back injury, and stays out ow work longer than 12 months, I would say that person has a very low chance of winning a SSD claim. Probably too young. But let’s assume the injured worker is 55, speaks no English, has only had heavy jobs (requiring lots of lifting) their whole life and has that same back injury and time out of work (over 12 months.) Now, there’s a good SSD claim. I file both of these types of claims all the time for my clients………..if I win both, a client gets BOTH benefits at the same time!
The “catch” is that there is a monetary limit to how much a disabled worker can receive as a COMBINATION of SSD and WC. Here’s the rules:
1. SSD will only “offset” (lower its benefits) if the claimant also receives “public” benefits like WC, but not “private” benefits like a Long Term Disability policy that the client is covered by, or a private pension.
2. The applicable limit on receiving SSD and WC is the higher of either:
- 80% of the worker’s pre-injury income, called “average current earnings,” or
- the total amount of SSDI received by all of the members of the recipient’s family in the first month that worker’s compensation is received, called the “total family benefit.”
For most SSDI recipients, the 80% of earnings figure will be higher, and Social Security will use that figure in the offset calculation.
That’s why I practice in both areas of the law—–often, they go together like Batman and Robin, or peanut butter and jelly, or pork and beans, or…………..well, you get the picture!
My pet peeve of the week is New York employers who don’t assist their employees—and in fact obstruct them—from getting prompt, non-emergency medical care for injuries sustained at work- i.e., Workers’ Comp injuries.
According to Section 51 of the Workers’ Compensation Law, employers must post a notice of workers’ compensation coverage (Form C-105) in a “conspicuous” place in the workplace. EVERYONE HAS SEEN THIS FORM POSTED IN PLACES OF BUSINESS IN NEW YORK. FEW NOTICE IT OR READ IT. IT’S GOT A LOT OF FINE PRINT ON IT. USUALLY IT’S STAPLED TO A WALL NEAR THE EMPLOYEE TIME CLOCK. It tells employees the name and phone number of the workers’ comp insurance company, in the event of an on-the-job injury.
The Workers’ Compensation Board requires that the form include the name, address and phone number of the current insurer and the policy number of the employer. It must be posted in a conspicuous place in the employer’s place of business. Violations of this requirement can result in a fine of up to $250 per violation.
Here’s the problem: many employers don’t post it, or post an outdated one, and at the same time DON’T GIVE THEIR EMPLOYEES THIS IMPORTANT INFO ONCE AN EMPLOYEE IS INJURED ON THE JOB.
When an employee is injured on the job in New York State, they cannot obtain non-emergency medical treatment for their injuries UNLESS THEY KNOW THE IDENTITY OF THEIR EMPLOYER’S WORKERS’ COMPENSATION CARRIER. (Often, the insurance carrier changes year to year.) MANY EMPLOYERS HIDE OR WITHHOLD THIS INFORMATION FROM INJURED WORKERS, HOPING THE INJURED WORKER WILL GIVE UP AND NOT SEE A DOCTOR OR FILE A CLAIM FOR WORKERS’ COMPENSATION BENEFITS.
I have experienced many instances where I have instructed an injured employee to call their boss and obtain the employer’s workers’ comp insurance information. When they call, they often get the runaround are are totally ignored. Such employer behavior at the very least, delays treatment of workplace injuries. Why? Because private doctors simply won’t see a patient who was injured on the job without compensation insurance information. And often the required posting isn’t there at the workplace either. Obtaining this info directly from the Board, while possible, can be frustrating as well. Of course, many employers comply with the law. But many do not.
That’s why, if this has ever happened to you, please let me know. I am collecting data about employer witholding from employees, workers’ comp carrier information, and hope to compile such data to illustrate the problem to the powers- that- be at the Workers’ Compensation Board. After all, it’s a pet peeve of mine.
Workers’ Memorial Day was this past Sunday, April 28th. What is Workers’ Memorial Day?
Every year, about 4,500 people are killed at work and 50,000 workers die from occupational diseases while millions more are injured. Decades of struggle by workers and their unions have resulted in significant improvements in working conditions. But the toll of workplace injuries, illnesses and deaths remains enormous.
Since 1989, the US labor movement has observed Workers’ Memorial Day to remember those who have suffered and died on the job. April 28 was chosen because it is the anniversary of the Occupational Safety and Health Administration. Workers’ Memorial Day has been officially endorsed by the International Confederation of Free Trade Unions (ICFTU) and the International Labor Organization (ILO), and is now observed in nearly 100 countries.
Now read this amazing and horrible HISTORICAL clip about something that occurred in 1947—-the explosion of a ship carrying ammonium nitrate:
“The Texas City Disaster is generally considered the worst industrial accident in American history. Witnesses compared the scene to the fairly recent images of the 1943 Air Raid on Bari and the much larger devastation at Nagasaki. Of the dead, 405 were identified and 63 have never been identified. These were placed in a memorial cemetery in the north part of Texas City near Moses Lake. A remaining 113 people were classified as missing, for no identifiable parts were ever found. This figure includes firefighters who were aboard Grandcamp when it exploded.
More than 5,000 people were injured, with 1,784 admitted to twenty-one area hospitals. More than 500 homes were destroyed and hundreds damaged, leaving 2,000 homeless. The seaport was destroyed and many businesses were flattened or burned. Over 1,100 vehicles were damaged and 362 freight cars were obliterated-the property damage was estimated at $100 million ($1.03 billion in today’s terms).“
Remind you of something? Not surprisingly, history unfortunately has repeated itself recently in West, Texas with the loss of much life due to that terrible factory explosion—-involving that very same chemical!!!!. I never understand why these things happen again and again. Let’s all work together to ensure that MORE REGULATION is imposed upon businesses that deal with dangerous substances and chemicals, and that such regulations are ENFORCED PROPERLY so as to protect the working people and all people of this great country from harm!
I get this question all the time. My clients can be hospital workers, maintenance men, teachers, machine operators, carpenters, cooks, you name it. Some are union members, some are not. Almost all are initially worried that if they hire me, that it will somehow threaten their job. A job that they cling to for dear life, a job that they need to hold onto to survive. “Will my employer fire me” is a legitimate concern. Here’s how I advise injured workers about these types of issues:
- You didn’t intend to be injured at work. It just happened by accident, and you shouldn’t be made to feel guilty because of it or feel you need to give up your rights to help your employer. Workers’ Comp (“WC”) says you have certain rights, and those are your rights whether you get a lawyer or not. WC is NOT a lawsuit. WC is a claim for benefits, similar to unemployment.
- Employers are prohibited by law from retaliating against injured workers who claim Workers’ Comp (“claimants.”) Section 120 of the law says that an employer can be fined and assessed monies if they retaliate against an injured worker because the worker filed a claim. These cases do happen; but, truly, not too often, from what I have seen.
- In real life, there can be intimidation at work by the boss. There can be implied threats by the boss. This does go on. In my 30+ years of experience, however, I have rarely if ever seen an instance of a worker getting fired because he/she hired a Workers’ Comp attorney.
- Almost every day I look at the Judges’ Calendar at the Workers’ Comp Board which lists every comp case on the docket that day—dozens and dozens of cases at each hearing point. I would guess that 75-80% of all cases have a lawyer on them for the claimant. So it’s almost expected.
- The employer and its insurance company ALWAYS have a lawyer or representative at WC hearings, so why shouldn’t the claimant?
- You can be fired in New York State if the reason is “legitimate”. Some union contracts add additional protections for workers. In truth, I find that most often, it is a multitude of factors that lead someone to get fired, and that filing WC claims is most often looked down upon by employers only when an employer feels that the employee is being excessive and files many, many claims that are trivial or frivolous.Which does happen sometimes (not in my office, though!)
The bottom line is, workers need to be aware of their rights. WC is a very complicated system, and to even the playing field, workers deserve adequate representation without fear of being fired for exercising their rights.