Markhoff & Mittman Blog

Are You Eligible for Workers’ Comp in New York?

When you are injured on the job, you may wonder if you are eligible to receive workers’ compensation benefits.  These benefits are available for workers who meet certain criteria established by the New York Workers’ Compensation Law.  Most workers who provide services to a business are considered an employee and therefore must be covered by the employer’s workers’ compensation insurance.  An employee could include a day laborer, leased employee, borrowed employee, part-time worker, unpaid volunteer or subcontractor in, some cases.  Independent contractors are generally not covered by the employer’s workers’ compensation insurance.

New York State Workers’ Compensation Board lists factors that are used to classify a worker as an employee.  Some of these criteria include the following:

• If the employer has direct control of the worker performing the task.
• The work being done is aligned with the employer’s type of business, such as a worker installing tile on the roof of a building for a roofing company.
• If an employer pays the worker by the hour, day week or month.  Paying at the end of the project may indicate the worker is an independent contractor.
• The employer provides the materials.
• The employer retains the right to hire or fire the worker.

When determining if someone is an employee, all of the above factors are considered. A workers’ compensation law judge is the one who will determine employment classification during the hearing that follows a work-related injury or illness.  There are some exceptions that can be better explained by the New York workers’ compensation attorneys at Markhoff & Mittman, P.C.  Contact our law firm for advice regarding your workers’ compensation case at (914) 946-1452 or (866) 205-2415.

The article, Who is Covered under New York’s Workers’ Comp Law, has more information about the factors used to determine if a worker is in fact an employee. 

 

Read More about "Are You Eligible for Workers’ Comp in New York?"

Speed or Stuck in the Mud: The 2008 Streamlined "Rocket" Docket Workers Compensation Regulations

Will Injured Workers Recevie Speedy Resolutions of their cases, or be Stuck in the Bureaucratic Mud!

At the Fall 2008 Injured Wokers Bar Association, I (Brian M. Mittman) presented an Overiew of the newly enacted Streamlined Docket Regulations implemented by the New York Workers Compensation Board on September 15, 2008.

The simple purpose of these regulations is to speed up the resolution of controverted (that is, contested or disputed) claims before the Board.

Unfortunately, while the intent is admirable and certainly needed in this area, often times the actual regulations and implementaiton can be counter to what is believed to be the desired results. With this in mind, I took a thorough review of the regulations and presented a power point presentation which attempts to provide a roadmap to the new regulations.

Whether you agree with the regulations or disagree, it is necessary for all parties involved (claimants, attorneys, Judges and Board personnel) to at least understand what we are dealing with so that we can proceed in trying to make it work or suggest appropriate changes.

Workers Compensation Benefits are designed as social legislation - what is right to help out injured workers!

Contact Me

If you have any questions, suggestions and even corrections, feel free to contact me at bmittman@markhofflaw.com so that we can make this process work. Or call 1.866.205.2415

Read More about "Speed or Stuck in the Mud: The 2008 Streamlined "Rocket" Docket Workers Compensation Regulations"

See the Three Steps to Properly FIle a NYS Workers Compensation Claim published by Brian M. Mittman on AVVO.COM

INFORMATION! INFORMATION! INFORMATION! That's all it takes. A little information can go a long, long way. I recently published a quick legal guide - only three steps! on what is needed to file a workers compensation claim in New York. Guide. Take a look, print it out and keep it handy!

This guide was published on www.avvo.com, a free website that allows you to search for lawyers, read about those lawyers (see me!), read publicaitons by those attorneys and even make your own comments about your experience with those attorneys! Check it out!.  - Brian M. Mittman

Read More about "See the Three Steps to Properly FIle a NYS Workers Compensation Claim published by Brian M. Mittman on AVVO.COM"

New York Workers Compensation Board Regulations Will Reinjure Injured Workers!

It is now more difficult to obtain benefits when you are injured on the job in New York! The New York Workers Compensation Board passed highly controversial regulations today. (Press Release) With the noble intent of speeding up the process of obtaining benefits when a New York Workers Compensation Case is disputed, the New York Workers Compensation Board adopted the "Streamlined Docket" (Rocket Docket) regulations that will, unfortunately, only delay and confuse the adjudication of contested claims before the Agency.

What is even more disheartening is that numerous advocates on behalf of injured workers provided appropriate and timely objections to these poorly constructed and cumbersome regulations. The Injured Workers Bar Association, the Workers Compensation Alliance, the Workplace Injury and Litigation Group, the New York State Trial Lawyers Association, and various local Bar Associations and Medical Groups all provided substantial and well reasoned objections to these ill conceived agency regulations. In fact, the Workers Compensation Board itself provided some of the most compelling proof. It recently noted that resolution of disputed claims within ninety days (as required in the 2007 Workers Compensation Law Reforms) was accomplished in 88% of all disputed cases by enforcing current laws and regulations.

However, Chiarman Zachary Weiss and the Workers Compensation Board decided that complicated new regulations were needed. Regulations that are in contradiction to the letter of the law and current case law. Why? I truly do not know and can only begin to fathom how a new regulatory scheme will mire the entire system in litigation that will only slow down and injury the most vulnerable party in the process, the injured worker.

I will personally continue the fight and know that the above noted Associations will do the same. Perhaps an Article 78 proceeding, perhaps continued pressure on the legislature, the Governor and the WCB! Injured workers deserve better, and a small increase in weekly rates (from the 2007 Reforms) is no trade off for making it more difficult to collects those benefits! Stay tuned....

Read More about "New York Workers Compensation Board Regulations Will Reinjure Injured Workers!"

Injustice at glitzy racetrack highlights abuse of workers’ rights

If you’ve attended races at the stately Saratoga Race Course in Saratoga Springs, New York, the last thing on your mind was probably “I wonder how the workers are treated here.”  Let’s face it, when we’re enjoying a nice day out with our friends and family, we don’t think about the people who keep businesses like this track running.

 

But for over 1,200 workers at the race course, life isn’t so rosy.  Investigations by the state labor commission found that 80 percent of 110 backstretch workers were not paid minimum wage or time and a half for overtime.  These workers include everyone from grooms to hot walkers to night watchmen.  Workers, who are employed by individual trainers at the track, are estimated to have been cheated out of $70,000 a week because of these wage violations.

 

In addition to wage violations, many workers were forced to work 7 days a week, more than 360 days a year.  To make matters worse, many are housed in deplorable conditions, sleeping many to a room on bedbug infested mattresses or inflatable mattresses or on the floor.  The workers shuttle between the Saratoga, Belmont, and Aqueduct tracks, where conditions are equally bad.

 

This investigation was part of the state labor commission’s efforts to increase oversight of low-wage industries.  Sadly, the horse racing industry isn’t alone in mistreating low-wage workers – other industries are also cheating employees out of fair pay.  We hope that these investigations result in fair pay and humane working conditions for all workers – and punishment and shame for employers who take advantage of those who have so little.

Read More about "Injustice at glitzy racetrack highlights abuse of workers’ rights"

Will new construction rules save workers’ lives and limbs?

Anyone who has spent time in New York City recently will have noted the explosion in construction.  It seems as though buildings are being torn down, built back up, renovated, or expanded on nearly every street corner.  Enormous booms and cranes stand out against the city skyline.  It can make you think “progress” – or if you’re familiar with what’s been going on in the industry lately you might think “danger”.

New York construction accidents have been such a serious issue this year that now Congress has gotten involved.  Throughout the year the New York Department of Buildings has been trying to pass new rules to shore up their clearly inadequate and understaffed inspection department.  However so far it hasn’t helped.

With 9 crane-related deaths this year, crane accidents have been an especially hot topic.  Now, with so many city, state, and federal officials interested in construction safety, we hope that the solutions they’ve come up with will in fact finally put a halt to the deadly and dangerous construction environment in the city.  Only time will tell if the city and OSHA and other interested parties can truly get their act together and save our workers needless death and injury.

We’ve got more details about the city’s attempts to make construction safer in our law library article “Will New Rules Save NY Workers from Accidents or Death?”.

Read More about "Will new construction rules save workers’ lives and limbs?"

What’s going on with the CRM managed trusts?

You might have heard in the news that Poughkeepsie-based group Compensation Risk Managers (CRM) is going to surrender their license to run self-insured workers' compensation trusts in New York.  It’s a good thing, too because their failures at managing eight self-insured workers’ comp trusts have left New York with a shortfall of at least $59 million.

 

Somebody has to come up with this money so that workers’ comp claims can be paid.  Who do you think is going to do that?  The New York Workers’ Compensation Board (WCB) already tried to get non-CRM trusts to make up the difference, but those trusts responded with a lawsuit and now New York is trying to float a bond to cover the difference.

 

What makes this all the more interesting is that CRM hired the services of one Robert R. Snashall between 2004 to 2007.  Snashall, a former chairman of the WCB, has found new employment with his own Snashall Associates consulting firm, providing his expert consulting advice to groups like CRM.

 

What we’re wondering is how an 8 year veteran of the WCB could advice a group that is now surrendering its license and is responsible for a $59 million shortfall.  It’s something that makes us go, “hmm!”  You can read more about this situation in our library article, “The Incestuous Relationship between Government and Private Industry”.

Read More about "What’s going on with the CRM managed trusts?"

Is your employer committing workers’ comp fraud?

It’s shocking but true – New York area employers are cheating the State Workers’ Comp fund of between $500 and $1 billion dollars each year.  If that’s not enough to get your blood boiling, then wait until you find out what they’re doing – and the effect it has on the benefits you receive if injured.

 

If you’re a construction worker in New York, it’s possible that your employer has reported your job title to the State as “clerk”.  This means that they’re paying a much lower premium to insure you.  How about this – some companies underreport the wages they pay to save money, or they’re classifying employees as independent contractors to skimp on premiums.  They’ll even try to pay you cash to keep your job and your wages off the books completely!

 

What does this mean for you?  Well, with less money going into the State fund, premiums have to be increased for honest businesses in order to cover all of the workers’ comp payouts.  It also means that you might receive less money or reduced benefits if you’re injured on the job.  That doesn’t sound fair, does it?

 

Are you a New Yorker concerned about your on the job injury or problems with your workers’ compensation claim?  Please contact us to find out how we can help protect your rights and get you what you need.

Read More about "Is your employer committing workers’ comp fraud?"

9/11 Workers Receive Additional Protections

Governor Paterson of New York has proposed legislation to expand coverage of the presumptive accidental disability retirement benefits to first responders and 9/11 workers.

“In the midst of the devastation of September 11th, men and women in public service risked their lives to aid in the search for survivors and victims,” said Governor Paterson. “As the nation grieved these heroes returned to work day and night, selflessly placing their own health at risk. It is our duty to offer them the protections they deserve in their time of illness.”

Read More about "9/11 Workers Receive Additional Protections"

New York Self Insured Trusts - No Trust and Certainly Not Insured

As noted in a previous post (Injured Workers Will Suffer again)on this Blog, there is a financial and social disaster about to behalf the injured workers in New York State. New York allows for Self-Insured Trusts. Basically groups of similar employers who pull monies together to insure themseleves and provide approriate Workers' Compensation Benefits to injured workers.

Unfortunatley, mismangement, greed, and non-existent oversight have led to a disaster that harkens back twenty-five years to the great Savings and Loan scandals! Yes, dozens of Self-Insured Trusts are about to or have gone belly-up. Recently, CRM a "third-party" coordinator and provider of such services has surrendered its license in New York. The Workers Compensation Boardis seeking to help "bail out" these trusts and everyone in the State of New York, the taxpayer, will foot the bill.

Workers' Compensation has been hailed as the Great Compromise over the past ninety years, where workers gave up their right to sue an employer, and the employer promised to secure payment of workers compensation benefits (medical and indemnity). Yet in the Self-Insured world of New York today, the ultimate party to pay will be all of us, and the only one truly being hurt will be the injured worker.

Imagine, suffering the indignity of being injured on the job, struggling to make payments on bills due to paltry benefits, trying to recover from a traumatic injury, and now being told you may or may not get benefits until this mess is straightened out, and oh yeah, you ultimately pay for your own care anyway since the taxpayer will be bailing out these trusts.

The business community, the Workers' Compensation Board and the State of New York has failed! I will be posting additional links and stories with the grueling details, stay tuned!

Read More about "New York Self Insured Trusts - No Trust and Certainly Not Insured"

NYC Suspending Crane Construction After May 30 Accident

New York City is going to suspend all crane construction until after the weekend and hire another 20 safety engineers following the latest Manhattan crane crash.  The new engineers will begin to monitor the hundreds of construction sites in the city.  The city will spend a total of $4 million on the engineers.

The recent crane crash in NYC has also sparked interest in other cities.  Boston and D.C. are also reassessing their crane safety procedures.

Two workers were killed and a third was injured in the May 30 crash when a crane fell onto a 32-story building in Manhattan's Upper East Side.  The crane also crashed into the 23-story building across the street.

Mayor Bloomberg has called the crash "unacceptable and intolerable."  We agree and will continue to monitor any progress made by NYC and the Department of Buildings.  As always, our thoughts go out to the family and friends of those workers injured in the crash.

Read More about "NYC Suspending Crane Construction After May 30 Accident"

Guess What? Giving Birth Does not cure Work Related Injuries!

For years, those of us who have appeared before the New York State Workers' Compensation Board have had to deal with some ridiculous legal theories and Law Judges who bought into those theories.

One such theory was that a woman who was injured on the job was entitled to benefits for her work related injury. However, if she was pregnant, or became pregnant, then upon giving birth her benefits were reduced becuase of the birth! INSANE! My response to the insurance carriers and judges was always, so giving birth cured her back condition! RIDICULOUS!

Well, I am pleased to see that this practice has just cost the State of New York over $900,000.00 in a settlement of an Equal Employment Opportunity Commission Lawsuit. The Department of Corrections of the State of New York attempted and succeeded in slashing benefits to dozens of female C.Os upon giving birth. Now the Department must rightfully pay up and let us all hope this insidious discrimination has ended! A recent article on the decision appeared in the NY Post.

 

 

Read More about "Guess What? Giving Birth Does not cure Work Related Injuries!"

Workplace Injury and Litigation Group Passes Resolution denouncing the AMA 6th Medical Guidelines

Please read this resolution, outlining in succinct detail why the AMA 6th Edition is anti-injured worker and should continue to be denounced and not used by State Workers' Compensation Boards! Resolution.

Read More about "Workplace Injury and Litigation Group Passes Resolution denouncing the AMA 6th Medical Guidelines"

AMA Defeated in NY, at least for now!

A hearty thanks to the Workers Compensation Alliance and all those fighting for injured workers in New York! As per the recent article in WorkCompCentral.com, the new administration has seemingly decided to take an approach which will start by looking at and attempting to revamp the 1996 NYS Workers' Comepnsation Medical Guidelines. Dr. Brigham and his cohorts behind the AMA 6th will have to go elsewhere to push their anti-injured worker views! While we cannot tell how the new guidelines will play out, at least the parties involved in the system will be able to provide input that is relevant, insightful and useful!

Read More about "AMA Defeated in NY, at least for now!"

NYC Hosts "Construction Safety Week"

New York City is hosting the 4th Annual Construction Safety Week.  This year's schedule of events includes a number of class and seminars designed to advance safe construction practices.  All programs are free and a schedule can be found here.

Perhaps the most important item on the agenda is the April 28 Scaffold Safety seminar.  Scaffold and high-rise safety has been in the news several times already this year since the crane collapse that killed seven workers on March 15, 2008.

Following the rash of worker deaths earlier this year and criticism from Mayor Bloomberg, Patricia Lancaster resigned her post as the city's building commissioner.  She has been replaced by acting commissioner Robert D. LiMandri.  The city remains committed to worker safety, demonstrating that committment with another $4 million in funding to the Buildings Department to hire 20 specialized engineers to reinspect excavation, concrete, and crane operations around the city.

Read More about "NYC Hosts "Construction Safety Week""

Doctors to Employers: Stop Downplaying Workers' Injuries!

The American College of Occupational and Environmental Medicine (ACOEM) has sent a letter to federal workplace safety regulators outlining their growing concern with companies that downplay worker safety issues.  Dr. Robert McLellan, president of ACOEM, says that the 5,000 doctors he represents “feel they are being methodically pressured . . . to under-treat and mistreat” their patients because of pressures from employers.

The doctor’s are upset that employers seem to care more about their own bottom lines than about their employees well-beings.  It works something like this.  Employers are required to record all workplace injuries that require time off or medical treatment beyond first aid.  Workplaces with low injury rates have lower insurance premiums.  So employers have an incentive to under-treat injuries.  For instance, a cut that might require stitches is sometimes treated with a simple bandage.  Because the bandage is “first aid,” but stitches are not, the bandage goes unreported and the insurance premiums stay low.

Outraged that ACOEM members are pressured by employers to under-treat their patients, McLellan has contacted the Occupational Safety and Health Administration (OSHA) and expects to meet with them about his concerns next month.  ACOEM’s goals are to have OSHA regulators rely on a broad spectrum of workplace safety measures (not just the number of injuries) and to rewrite some of the rules in order to remove the incentive to underreport injuries.

Anything that gets employers to stop caring so much about their bottom lines and a little more about their employees sounds good to us!

Read More about "Doctors to Employers: Stop Downplaying Workers' Injuries!"

TOTAL INDUSTRIAL DISABILITY AND THE NEW YORK WORKERS COMPENSATION BOARD

President Dennis Hughes, of the New York State AFLCIO, has recently posted an insightful editorial on the AFLCIO website discussing the role of state agencies, the political appointees in those agencies and the disturbing trend of those appointees to overturn factual findings of hearing officers in order to promote a political agenda. In particular, a recent decision by the Courts in New York overturned an attempt by the New York State Workers' Compensation Board to deny benefits of a total industrial disaiblity to a worker, even though the facts found by the law judge (hearing officer) were accepted by the Board itself! Can you imagine, the hearing officer found an injured worker, with limited English, an inability to gainfully return to employment and a permanent partial disability to have a total industrial disability, yet the Board (the entity that handles appeals in workers' compensation cases), agreeing with all of the factual findings, nevertheless, found that worker to not have a total industrial disabiilty. The Court, encouraginly, took the Board (consisting of political appointees!) to task, and overturned the decision, in essence reinstating the hearing officers findings. A hearty thank you to the workers' compensation attorneys involved, the judges, and Dennis Hughes for providing workers in New York with this important informaiton!

Read More about "TOTAL INDUSTRIAL DISABILITY AND THE NEW YORK WORKERS COMPENSATION BOARD"

Injured Workers Will Suffer Again!

Once again it is the injured worker in New York who will suffer due to the failings of the Insurance Industy in New York and the New York State Workers Compensation Board. See news article Self-Insureds

The New York Workers' Compensation Law (WCL) allows for groups of similarly situated employers to enter into self-insured trusts to fund their workers' compensation liability. In the past, there have been self-insured trusts for "Beer Wholesalers" and "Health Care Industry Workers". The purpose of such trusts was to allow like employers to pool their risk and receive reduced premiums, while allow the administrators of such trusts to specifically tailor its claims practices to those unique industries - and thereby properly and sensibly set premiums. This has never really happened.

Many of these self-insured trusts remain or were woefully underfunded, and this has led to the NYS WCB seeking to shut those trusts down. In fact, the Chairman of the WCB, Zachary Weiss had proposed funding reform to assure liqudity of these trusts and has recently requested authorization for a $60 million bond issue to help defray the costs of the suspensions an to assure continued payment to injured workers covered under these defunct trusts!

While I appauled the Chairman for seeking to reassure the system, what is wrong here? Why should injured workers suffer due to the inefficiencies and negligence of the past administrations and the NYS WCB! Why should taxpayers be invovled in bond issues to bail out big business that has made money hand over fist in the workers' compensation arena.

Unfortuantely, my experience has shown me that even with the protections being sought, it is the injured worker who will suffer. Who will pay the checks? What will the delay be? Who will handle these claims? If our experience with insurance carriers in liquidation is any example, these answers are simple...the injured worker will be forced to suffer during the delays and administrative nightmares piled on top of an already over-beauracratic system!

Read More about "Injured Workers Will Suffer Again!"

How Many Workers' Comp Insurers Were Lying to Regulators?

American Insurance Group (AIG), the company who was accused by then-governor Eliot Spitzer in 2006 of underreporting premiums for the purposes of funding the New York Workers' Compensation Reinsurance Pool, is now accusing other companies of doing the same thing.

In a third-party complaint filed last week, AIG accused Liberty Mutual, The Hartford Financial Services Group, adn a dozen other insurance companies of dumping the shared costs of the pool on AIG and suppressing probes into their own business practices.

The dispute here is ultimately over who gets to foot the bill for the underfunded state reinsurance pool.  New York established the reinsurance pool to serve as a payor of last resort for workers' compensation claims in the case that an insurance company went bankrupt.  As a trade-off for the privilege of doing business in New York, each insurance company is required to submit payment into the reinsurance pool in proportion to their share of the New York workers' compensation market.  So, if a company was writing 11% of the workers' compensation contracts, they would be responsible for 11% of the pool.

However, companies soon realized that if they could underrepresent the amount of money that they were making from the New York, they would be able to save money off of their share of the reinsurance pool.

AIG was busted back in 2006 and was to pay over $300 million in unpaid costs and is now trying to shift the blame away from themselves and onto the other workers' compensation insurance companies. 

Insurance companies will do anything to make more money, even if it involves lying to state regulators.

Read More about "How Many Workers' Comp Insurers Were Lying to Regulators?"

149 Busted for Workers' Comp Fraud in 2007

The New York State Insurance Department has released a report giving the details of the 708 arrests in 2007 related to insurance and health-care fraud.  The North Country Gazette reports that while the number is up 17%, officials suspect the increase is due to better detection software, not more criminals.  The Frauds Bureau electronic tracking software became fully operational in 2007 and allows insurers to electronically submit suspected fraud reports to the Bureau.

149 people were arrested for workers' compensation fraud, including 89 who had been fraudulently accepting benefits while secretly working second jobs.

The New York Insurance Department's press release can be accessed here.

Read More about "149 Busted for Workers' Comp Fraud in 2007"

Thanks to Workers Compensation Alliance for showing us the real face behind the Spitzer Administration

The AMA Medical Guideline sneak attack gets worse. Through the efforts of the Workers' Compensation Alliance additional information has been unearthed showing that the Spitzer Administration has been co-opted by the Business Council since day one! Spitzer said no caps, no AMA, yet this evidence shows that the AMA has always been on the table. Click the link to read to full story on the WCA website! Support the WCA in its fight!!!!

Read More about "Thanks to Workers Compensation Alliance for showing us the real face behind the Spitzer Administration"

AMA Rears its ugly head in New York!

The New York State Workers Compensation Medical Guidelines Task Force has seemingly been compromised! The head of the committee, Bruce Topman has hired the anti-claimant, carrier favorite Chris Brigham to alleged translate the AMA Guidelines for Permament Impairment into New York Guidelines! Our friends at the Workers' Compensaiton Alliance have provide excellent information. Please take a look. Workers' Comensation Alliance.

Read More about "AMA Rears its ugly head in New York!"

AMA Guidelines, NY Workers Compensation and problems on the horizion!

Injured workers in New York are about to be betrayed by Governor Eliot Spitzer for a second time.  First, when he was running for Governor our organization raised over $10,000 and hosted a reception on his behalf in April 2006.  At the time, the Governor stated that he was not in favor of "caps" on permanent partial disabilities.  Well, we all know he flip-flopped on that issue.

Second, during the recent workers' compensation reform negotiations, all the negotiators from the Governor's office, Speaker Silver's office and Senate Majority Leader Bruno's office  promised that "AMA Guidelines will never come to NY!".  Well, word on the street is that the Governor's man heading the Medical Guidelines Task Force just hired Dr. Christopher Brigham, the insurance and defense industry's best friend, to implement the AMA guidelines in New York.   With more flip-flops like this, Governor Spitzer may morph into Mitt Romney - and we all know where good 'ol Mitt is now.

Read More about "AMA Guidelines, NY Workers Compensation and problems on the horizion!"

Proposed Forms New York Workers' Compensation - Public Comment period

In an effort to implement the recently enacted changes to New York Workers' Compensation Law, the Workers' Compensation Board has attempted to revamp and modify the basic claims forms necessary for filing a workers' compensation claim (the C-2 Employer Notice of Accident; C-3 Injured Workers' Notification of Accident; C-4 Doctors Report of Injured Worker). These changes will have far reaching consequences. It is strongly suggested that everyone affected by the Workers' Compensation Law (injured workers; employers; attorneys; doctors; insurance company workers) review these documents and make comments during the public comment period which ends January 25, 2008. These forms can be seen and commented upon only on the New York State Workers' Compensation Board Website www.wcb.state.ny.us. Please take time and look and comment, it is so important!

Read More about "Proposed Forms New York Workers' Compensation - Public Comment period"