Benefits, Disability

Groundwater Contamination In Bethpage A Possible Source Of Disability Claims

N.Y. Assemblyman Anthony Saladino (left) and U.S. Sen. Charles Schumer (D-NY) display a map of the spread of a plume of toxic chemicals from Bethpage to Massapequa.

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

Last year news broke that New York was going to test water on Long Island for contamination from toxic groundwater near the old Grumman site in Bethpage, which previously housed the U.S. Navy. Decades ago it was determined that the site was toxic and the Navy and Grumman had spent millions of dollars to clean it up, but despite this, fears remained that there was some contamination that may have seeped from the site into the groundwater.

Governor Cuomo subsequently announced that the Department of Environmental Conservation (DEC) was going to seek financial compensation for damages to groundwater resources related to that contamination. As a transplanted Queens’s native who now lives in Bethpage, the news was troubling to say the least, but it is just one of many examples of a contaminated water supply. The City of Flint, Michigan, made headlines during the last couple of years after dangerous levels of lead were found in the water. The resulting cover-up resulted in a number of lawsuits and criminal indictments.

If these types of examples are startling, then this one will really get to you. We are in the midst of a heartbreaking contamination event involving our service men and women and their families at Camp Lejeune, North Carolina. From the 1950s through the 1980s, people living or working at the U.S. Marine Corps base there were potentially exposed to drinking water contaminated with industrial solvents, benzene, and other chemicals. It is estimated that almost one million people were exposed to contaminated water during this time.

The Veterans Administration (VA) has established a presumptive service connection for veterans, reservists, and National Guard members exposed to contaminants in the water supply at Camp Lejeune from August 1, 1953 through December 31, 1987, who later developed one of the following eight diseases:  adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, Non-Hodgkin’s lymphoma, or Parkinson’s disease. These conditions are the only ones for which there is sufficient scientific and medical evidence to support the creation of presumptions. However, the VA will continue to review relevant information as it becomes available.  The presumptive service connection means that all Lejeune veterans with one of the eight conditions listed above will not have to provide documentation proving their conditions were caused by the tainted water.

President Barack Obama approved a $2.2 billion compensation program to pay disability compensation benefits. Disability Compensation is a tax free monetary benefit paid to veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service. Compensation also may be paid for post-service disabilities that are considered related or secondary to disabilities occurring in service, and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. As many of these conditions develop over time, the veteran may no longer be on active duty. This will not disqualify a claim for compensation. If you or a family member were at Camp Lejeune, it is imperative that you know your rights. They are complicated and often misunderstood, thereby leading our veterans to miss out on benefits they are more than entitled to and definitely deserve. We are awed by our veterans’ commitment to this country and we thank them for their service.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Uncategorized

WA Concrete Contractor Charged with Felony Theft and Unpaid Workers’ Comp Premiums

A Richland, WA concrete contractor faces unregistered contracting and felony theft charges in an alleged scheme to steal thousands of dollars from consumers.

Jesse Scott Espinoza, owner of Jesse’s Custom Concrete, is accused of accepting down payments for two concrete jobs as an unregistered contractor, then never working a single day on the projects. 

The 38-year-old is scheduled for arraignment on Friday, Oct. 20, in Benton County District Court on two gross misdemeanor charges of unregistered contracting and two misdemeanor counts of failing to respond to civil infractions for unregistered contracting.

He pleaded not guilty last month in Benton County Superior Court to two felony, second-degree theft charges involving these same cases. His trial on the felony charges is scheduled for Dec. 11.

The Benton County Prosecuting Attorney’s office is prosecuting the cases based on contractor compliance investigations by the Washington State Department of Labor & Industries (L&I). 

“It’s so important for people to make sure contractors they hire are registered with L&I,” said Elizabeth Smith, assistant director of L&I Fraud Prevention & Labor Standards. “Hiring a registered contractor gives people a way to get some financial recourse if something goes wrong with the project or the contractor.”

State law requires construction contractors to register with L&I. The agency confirms the contractors have a business license, liability insurance, and a bond, and meet other requirements. Construction contractors can’t legally work or advertise as contractors if their registration is suspended or they never were registered.

Paying for work that never started

Espinoza’s registration was suspended May 2, 2017, after he failed to follow through on an L&I payment plan to pay off thousands of dollars in late premiums for workers’ compensation insurance. 

One week after the suspension, he accepted $3,000 from a Richland man and woman for a concrete job, according to charging papers. About three weeks after that, an L&I inspector caught Espinoza’s workers installing sidewalks in Richland, and issued Espinoza an infraction for unregistered contracting, according to L&I records.

Within a week of the infraction, Espinoza accepted a $2,000 down payment on June 5 from a Kennewick homeowner for a driveway project.

Despite accepting the two down payments, Espinoza never showed up for work on either project and never returned the money, charging papers said.

Owes more than $18,000 to L&I

In addition to the criminal charges, Espinoza has received four civil infractions this year for unregistered contracting. He owes L&I more than $6,500 for late workers’ comp insurance premiums, and more than $12,000 in fines for the infractions. 

Photo credit: Foter.com

Wages and Benefits

New Rules for Mandatory Paid Sick Leave for WA Employers in 2018

Mandatory paid sick leave in Washington starts in just over two months. This week, the Department of Labor & Industries (L&I) released new state requirements on how the paid sick leave law will be implemented.

As a result of voter-approved Initiative 1433, employers are required to provide paid sick leave starting Jan. 1, 2018.

Along with mandatory paid sick leave, Initiative 1433 also increases the state minimum wage annually over the next three years. In 2018, the state minimum wage will climb to $11.50 an hour. The initiative also ensures employers pay their employees tips and service charges.

“This is a big change, so we made sure people had every chance to weigh in on the rules and let us know the potential impacts,” said L&I Assistant Director of Fraud Prevention & Labor Standards Elizabeth Smith. “Now that they’re final, the next step is to make sure that employers know what’s required so they can be ready when the new law takes effect on January 1.”  

The newly adopted rules provide details on how the law will be carried out, covering topics like how employees accrue paid sick leave, what they can use it for, when they can use it, and how to calculate rates of pay for paid sick leave.

The new requirements are the result of a rulemaking process carried out by L&I over several months. The agency held informal meetings to gather public ideas and thoughts on implementing the new law. Then, after drafting the proposed rule, L&I held four public hearings around the state and took numerous written comments. L&I Director Joel Sacks signed the final rules this week.

Statewide outreach and media campaign to raise awareness

L&I is working with numerous organizations around the state to help employers get ready. In November, new L&I tools and resources will be available online, including templates for paid sick leave policies. L&I is also launching a statewide paid media campaign in November including TV, radio, social media and other online ads, which will run through early 2018.

Enforcement phase of rulemaking underway now

A second phase of rulemaking on mandatory paid sick leave is just getting underway. It will detail how the new law will be enforced. This process also offers opportunities to provide input, including two public hearings in November. The deadline for public comment isNovember 17.

Along with mandatory paid sick leave, Initiative 1433 also increases the state minimum wage annually over the next three years. In 2018, the state minimum wage will climb to $11.50 an hour. The initiative also ensures employers pay their employees tips and service charges.

There’s more information online about the upcoming public hearings and the paid sick leave rules process.

Image credit: WA Hospitality Association

Safety violations

Fatal Fall Investigation Results in Citation and Fine for Aberdeen, WA Lumber Mill

An Aberdeen lumber mill has been fined $112,000 for safety violations following the death of a worker last April. Andrew Ward, 41, died when he fell from an elevated platform where he was working to the concrete surface below.

An investigation by the Washington State Department of Labor & Industries (L&I) has found and cited Sierra Pacific Industries for seven safety violations at the lumber mill where the incident happened.

L&I’s investigation found that a section of permanent yellow guardrail was removed from the 17-and-a-half-foot-high platform and replaced with yellow caution tape so that a crane could move some equipment. When Ward went to the edge of the platform to communicate with the crane operator below, he leaned forward and fell.

The investigation found that the employer knew that caution tape cannot be used in place of guardrails at a high elevation, but still regularly allowed it to happen. Additionally, the employer was required to provide workers with a fall protection system, such as a harness, lanyard and tie-off point, while working on the elevated platform without adequate guardrails, and when removing them.

As a result, Sierra Pacific has been cited for a willful violation, the most serious, with the maximum penalty of $70,000 for not ensuring that an open-sided work platform was adequately guarded and for not ensuring employees wore fall protection equipment.

“A death like this is especially tragic because it was completely preventable by using proper fall protection and following safe work practices,” said Anne Soiza, L&I’s assistant director for the Division of Occupational Safety and Health. “Falls are the leading cause of worker deaths and immediate hospitalizations. Employers need to be vigilant about preventing falls.”

The employer was cited for an additional six serious violations, each with the maximum penalty of $7,000. Those violations covered a range of serious hazards that exposed workers to harm, including ineffective safety and health training; a safety program that wasn’t tailored to company operations; inadequate personal protective equipment training; untrained crane personnel; and not following safety precautions required for open flame work.

Because of the willful violation that led to the death of a worker, Sierra Pacific Industries has been placed on the severe violator list and will be subject to follow-up inspections to determine if the conditions still exist in the future.

The company has appealed the violations.

Photo credit: Safety poster by Gravitec Systems, providers of training, equipment and testing.

government, Legislation, Workers' Compensation

Law Promoting Openness Regarding Pharmacy Benefit Managers Meets Industry Resistance

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

A North Dakota law attempting to promote openness about fees and prevent conflicts of interests with so-called pharmacy benefit managers (PBM) would seem non-controversial.

Non-controversial to everyone besides lobbyists for the PBMs who have sued the State of North Dakota in federal court claiming this commonsense legislation harms patient safety and is unconstitutional.

The North Dakota suit matters in the world of workers’ compensation because PBMs are an essential component of drug formularies which are popular with workers compensation insurers and have been touted as a way to prevent opioid abuse and control drug costs. Formularies are a list of approved drugs and dosages. Formularies are administered by the PBMs who buy the drugs, allegedly at a discount, from drug companies and pass along those savings onto users.

Drug formularies have come under criticism for issues addressed by the North Dakota legislation. First, a PBM may have a relationship with a particular drug maker which means that drugs are picked on for business reasons rather than medical reasons. Formularies also may not control drug costs as advertised.  In response to a drug formulary bill in Nebraska last session, the City of Omaha was concerned that formularies might increase drug costs because of the inability to use generic drugs.

Related to that concern, PBMs have been criticized for their role in helping drug companies pass along higher drug costs to consumers. PBMs are paid on what the discount they can negotiate, so drug companies have an incentive to inflate drug costs which benefits PBMs.

Lawmakers on a state or federal level are correct in having concerns about PBMs if they want to address drug costs and opioid use. The PBM industry has argue that state laws are “pre-empted” by federal laws regulating prescription drugs, so state laws are unconstitutional. Pre-emption is premised on the fact that federal laws are superior to state laws if there are federal and state laws on both subject matters.  Recently the U.S. Supreme Court has used pre-emption to strike down state-based consumer protection laws in favor of corporate defendants. The threat of successful litigation may scare states, especially smaller states, from passing laws to regulate PBMs.

But state laws regulating the use of PBMs in the context of workers’ compensation may be easier to defend from a legal standpoint. Workers compensation laws are enacted under a state’s police powers under the 10th Amendment. The constitutional basis of workers’ compensation laws is arguably a fluke of legal history but workers’ compensation is traditionally seen as a state law concern so federal courts may be less to strike down laws regulating PBMs in the context of workers’ compensation.

Social Security

Annual Report on the Social Security Disability Insurance Program, 2016

Since 1956, the Social Security program has provided cash benefits to people with disabilities. This annual report provides program and demographic information about the people who receive those benefits. The basic topics covered are—

  • beneficiaries in current-payment status;
  • workers’ compensation and public disability benefits;
  • benefits awarded, withheld, and terminated;
  • disabled workers who have returned to work;
  • outcomes of applications for disability benefits; and
  • disabled beneficiaries receiving Social Security, Supplemental Security Income, or both.

Profile of Disabled-Worker Beneficiaries

  • Workers accounted for the largest share of disabled beneficiaries (87 percent).
  • Average age was 54.
  • Men represented less than 52 percent.
  • The largest category of diagnoses was diseases of the musculoskeletal system and connective tissue (32.3 percent).
  • Average monthly benefit received was $1,171.15.
  • Supplemental Security Income payments were another source of income for about one out of eight.
  • Awards to disabled workers (706,448) accounted for 88 percent of awards to all disabled beneficiaries (799,330).
  • Benefits were terminated for 820,372 disabled workers.

Read more and download the full report here.

Photo credit: Fabricator of Useless Articles via Foter.com / CC BY

Workers' Compensation, workplace injury, workplace safety

The Road Ahead: Adjusting To Life After An Injury

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who has represented injured workers for more than 27 years, I see first hand what an injury can do to workers and their families. A number of years ago I represented an injured electrician, who as a result of an overextension injury sustained on the job, ended up having multiple surgeries. Almost immediately, this once athletic, high wage earner with a beautiful family and comfortable lifestyle saw an abrupt end to the life he knew.

My client faced a debilitating injury. He was no longer able to travel, his personal relationships suffered, and his once strong physique withered away. His financial situation was dire and he was unable to afford his home. Beside the extreme physical impairment, he ended up being treated for major depression. Both the insurance carrier’s medical providers, as well as the claimant’s treating doctors in this particular case, agreed that the claimant was totally disabled or incapable of performing any meaningful work activity – a standard not easy to meet.

Many of those injured on the job may not be able to return to their prior employment. Yet, according to the law, that does not mean they are totally disabled from any employment. If they are able to perform any work activity at all then they may be considered partially disabled. The amount of weekly payments an injured person receives and the length of time an injured worker receives these benefits is dependent upon a number of factors including degree of disability and loss of earning capacity. A partial disability can be considered mild, moderate, or marked.  These degrees are further broken down into when an injury is deemed permanent to a percentage loss of earning capacity. In some cases the difference of one percent loss of earning capacity can mean the difference of a full year of additional benefits. As you can imagine, much of my practice is consumed with litigation regarding the degree of disability and the loss of earning capacity.

The road for those who are partially disabled is not an easy one. Despite the Workers’ Compensation Board’s determination that an injured person has an ability to perform some work activity, it does not always translate into being able to obtain employment. In the case of serious injuries resulting in extensive lost time, the employer may have had to fill the position or the employer may not be able to accommodate the physical limitations. This puts injured workers in a position of having to look for alternate employment that they may not be trained for. The Board recommends a number of resources available to those seeking assistance, including one-stop career centers, as well as participating in vocational rehabilitation programs and continuing education such as SUNY Educational Opportunity centers adult career and continuing education. For more information go to www.wcb.ny.gov/labor-market-attachment

Many workers who are unable to obtain employment because of their injuries apply for Social Security Disability benefits. The standard for Social Security disability is different than Workers’ Compensation and relies more on the age and ability of the injured person to be retrained and to obtain relevant future employment. Social Security Disability benefits are payable for any illness or injury and do not have to be work related. All medical conditions are considered by the federal judge when making a determination as to eligibility, including physical or emotional impairments.

While an injury on the job can be life altering, there are resources available. You may never be able to return to your pre-injury status, but knowing your options allows you the ability to have some control over your future.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Disability Inclusion

Inclusion Drives Innovation – National Disability Employment Awareness Month

Inclusion drives innovation.

In this spirit, throughout October, the Department of Labor will be recognizing the many ways disability inclusion benefits today’s innovative economy during this year’s National Disability Employment Awareness Month (NDEAM) 2017.

The USDOL highlights how inclusion drives innovation time and time again through advancements developed by and for people with disabilities that have widespread applicability. Some of the most common examples are things like curb cuts, automatic doors, and voice-recognition software that are now common in our daily lives but got their start from innovating for people with disabilities.

Technology corporations benefit from this kind of creative problem-solving, including IBM, Microsoft, and Apple. IBM includes people with a range of disabilities in its product development and testing processes. The result is an “accessibility mindset” that considers how best to deliver products and experiences in a usable way to every individual.

With more than 6 million jobs available across country, this is the time for job creators to realize the potential of the more than 500,000 Americans with disabilities who are looking for jobs right now. More than ever, job creators today can use resources and technology to include Americans of all abilities and benefit from more innovation.  Please, take time to review the companies recognized as “Best Places to Work” based on the 2017 Disability Equality Index. 

Americans with disabilities are a huge part of the American workforce, not only this month, but every month.

 

Photo credit: Foter.com

government, Legislation, Workers' Compensation

Medicaid Cuts Will Cause More Nursing Injuries

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

While efforts to repeal the Affordable Care Act and cut Medicaid appear to have stalled for now, any successful effort to cut Medicaid will adversely impact workplace safety for nurses and nurse’s aides.

Studies by the National Institutes of Health show that reductions in Medicaid funding leads to less staffing at long term care facilities and that lower staffing leads to more injuries for nursing employees. Since most nurses and nurse’s aides are covered under state-based workers compensation laws the additional costs of work injuries from Medicaid cuts may not be fully accounted for on a federal level.

At least in Nebraska nursing employees have some ways to protect themselves when advocating for safer working conditions even if they do not belong to a union.

Nebraska has a whistleblower law that applies specifically to health care workers, including nurses. The benefit of this act is that it allows employees to recover for damages similar to what they could collect under the Nebraska Fair Employment Practices Act, including front pay and possibly attorney fees, without having to exhaust administrative remedies. Additionally, health care workers would have four years to bring a suit under the health care whistleblowers law, rather than the much shorter and complicated statute of limitations under the Nebraska Fair Employment Practices Act.

Nebraska has a broad general whistleblower law that allows employees to oppose unlawful conduct by their employers. Nebraska law requires that nursing homes to be adequately staffed. Federal law also requires that employers provide a workplace to be free of recognizable hazard. Inadequate staffing would certainly be deemed be a recognizable hazard in a nursing home. The only drawback to Nebraska’s whistleblower law is the short and potentially uncertain statute of limitations.

Nebraska law would also allow nurses reporting inadequate staffing to be protected from retaliation under a public policy claim that also has a four year statute of limitations.

Healthcare

Health Insurance – Open Enrollment Period Begins November 1st

It’s Time to Shop for Health Insurance! 

2018 Open Enrollment runs from November 1 through January 15, 2017 in Washington State

  • Plans sold during Open Enrollment start as early as January 1, 2018.
  • After January 15, you can enroll in 2018 health insurance only if you qualify for a Special Enrollment Period.

If you already have insurance, take a look at the policies now available before you renew – you may be able to save money or improve your coverage by transferring to a new policy through the exchange. In order to take advantage of subsidies and tax credits, do your shopping through Washington State’s healthcare marketplace. For those that live outside of Washington, your state may have its own healthcare marketplace. If not, or if you’re unsure, start with the federal government’s marketplace site.

2017 coverage –

Are you in need of health insurance for the remainder of 2017? Open Enrollment for 2017 health coverage ended January 31, 2017. You can still get 2017 health insurance two ways:

Don’t Over-Report Your Income!

The amount you pay for health insurance is based on your household size and income. Workers’ compensation benefits—both time loss and pension – are NOT taxable income. Do not include your time loss or pension payments in your household income figure when applying for health insurance through the exchange or through a Navigator. Veteran’s payments are also excluded from your gross income figure. 

The Affordable Care Act is Working! 

NY Times Analysis: The Impact of Obamacare, in Four Maps

Since 2013, when the major provisions of Obamacare went into effect, the uninsured rate has fallen in every state. And some states that you might not expect have led the way.

The news about the Affordable Care Act has been grim lately: The price of health plans in new marketplaces is up, and choice is declining in many places. But amid the difficulties, new data highlight the law’s effectiveness in getting coverage for millions of Americans.

Over all, the gains are substantial: a seven-percentage-point drop in the uninsured rate for adults.

Read the full article, published in October 2016, for more details including coverage maps.

Photo credit: franchiseopportunitiesphotos via Foter.com / CC BY-SA

Published by Causey Wright