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State Judge Denies Workers' Compensation Claim Brought by ASPCA Animal Rescuer Dying from 9/11-related Cancer

Source: nydailynews.com, article by Rich Schapiro

"Diane DiGiacomo can’t catch a break.

A state judge has shockingly denied a workers’ compensation claim brought by the ex-ASPCA worker who is dying from a 9/11-related cancer, the Daily News has learned.

The 52-year-old single mother spent three months near the shadow of the smoldering footprints of the World Trade Center saving dogs and cats left behind in nearby apartments.

DiGiacomo — whose story was featured in Monday’s Daily News — is now suffering from cancer that has spread to her brain and bones. She weighs 60 pounds and is largely confined to a bed."

Click here to read the article.


The Different Views on Workmen's Comp Injuries

Worker's Compensation Law varies dramatically from state to state, and these complications can often seem unjust. Please consider the following two cases, as described by Michael Grabell and Howard Berkes in a piece produced for NPR, and posted on ProPublica.org.

This clearly demonstrates the need for every injured worker to be properly represented by an advocate that knows and practices Workers’ Compensation Law in their particular jurisdiction.

Click here to read the article.


An Important Decision regarding the Workers Compensation Medical Treatment Guidelines

The Court of Appeals of the State of New York (the State’s highest court) issued an important decision on November 20, 2014 that affirmed the Medical Treatment Guidelines first promulgated by the NYS Workers Compensation Board in 2010. These guidelines defined the treatment an injured claimant could receive for certain parts of his/her body (initially the back, neck, knee and shoulder).

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Can a Workers Compensation claimant go on vacation?

I have received calls from clients recently asking if they are permitted to go on vacation while they are receiving weekly benefits for their disability. It is an interesting question that bears some explanation.

There no case or law that prohibits a client from going on vacation while they are receiving workers compensation benefits. However, what you do on vacation or where you travel to may affect the credibility of the claim.

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Important Zadroga Fund Information

The Chair of the New York State Workers Compensation Board announced important changes in the administration of World Trade Center Volunteer Fund Claims, effective on June 24, that may effect you!

The James Zadroga 9/11 Health and Compensation Act allocated $4.2 billion to create the World Trade Center Health Program, which provides testing and treatment for people who worked in response and recovery operations as well as for other survivors of the 9/11 attacks. Some worker claimants who have not already filed claims under Zadroga may still be able to file!

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Appellate Court Decision in Matter of Prather

The Appellate Division has issued an important decision this week in the Matter of Prather. The Court determined that the Workers Compensation Board erred by having one Workers Compensation law judge preside over the trial of an issue, and another make the decision where there was no reason stated for changing judges.

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Injured workers must support the legislation to change the Medical Treatment Guidelines

On December 1, 2010 the Workers Compensation Board turned the workers compensation system on its head but enacting new regulations to severely restrict the medical treatment given to injured workers. These new regulations were intended to limit the cost of workers compensation claims and thereby reduce the premiums to be paid by employers. Ironically, it has not had a significant impact on the insurance carriers’ requests for increases in premiums. Meanwhile they have created a significant hardship for the injured workers seeking medical treatment.

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NYS Workers Compensation Board’s Guidelines for Determining Permanent Impairment and Loss of Wage Earning Capacity

The Workers’ Compensation Board has issued new guidelines for determining a claimant’s permanent impairment and loss of wage earning capacity. These guidelines can be found at the Workers’ Compensation Board website of www.wcb.ny.gov. The Guidelines will be used by the Workers Compensation Judge to evaluate the maximum number of weeks of benefits (“the cap”) for claimant’s who are determined by a Judge to have a permanent disability to the head, neck, back and/or other injuries that do not involve a limb. These guidelines have made this process extremely complicated because they require some familiarity with medical and vocational rehabilitation terms. This will make a final determination of the loss of wage earning capacity very difficult for unrepresented claimants.

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NYS Workers' Compensation Board Medical Treatment Guidelines Equates to Bureaucrats Practicing Medicine without a License

The NYS Workers' Compensation Board implemented a series of "Medical Treatment Guidelines" that became effective December 1, 2010. Those guidelines pertain to the treatment of Workers' Compensation injuries to a claimant's Neck, Back, Shoulder or Knee. These Guidelines provide the specific treatment that will be paid for dependent on the symptoms presented by the claimant. If the treatment is not covered by the Medical Treatment Guidelines then it will not be authorized or paid for.

The Guidelines do provide for an opportunity to request a "Variance" from the Guidelines to authorize specific treatment. However, the bureaucracy appears to be more than most doctors can handle and the claimant's are suffering as a consequence.

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The Triangle Shirtwaist Fire of 1911

Friday, March 25, 2011 marked the 100th Anniversary of the Triangle Shirtwaist Fire in New York City, a tragedy that marked the beginning of a period of labor reforms in the City of New York, the State of New York and the country. 146 immigrant workers died in that fire where the emergency exit doors were blocked and the fire truck ladders could not reach the windows of the floors the factory the workers were trapped on.

One of the reforms that came from that tragedy was the NYS Workers Compensation Law that was intended to compensate employees who are injured in the course of their employment. Prior to the enactment of the Workers Compensation Law the only way a worker could recover the cost of lost wages and medical expenses for an on-the-job injury was to sue their employer. That was a costly and time consuming process that would take years before the employee would see any money, rather than weeks or months.

The Workers Compensation Law traded the employees right to sue their employer for the ability and right to get immediate medical treatment paid for by the employer/insurance company, and the entitlement to 2/3 of your wages to be paid to the employee during a period of total disability.

It has been argued that many of the reforms initiated after the triangle shirtwaist fire have gradually evaporated as unions have become less dominant and labor jobs have travelled overseas. It is my hope that it will not take another tragedy on our shores, or in a factory in some other country producing goods for the United States, before the rest of the world sees the fairness and justice of giving simple equitable rights to workers who produce the goods that make the profits for the corporations.

May the 100th anniversary of the death of those 146 immigrant workers remind us the safety of the labor must never again be secondary to the profit of the company.


Workers' Compensation Law Judge Rules in Favor of World Trade Center Worker

Decision | Press Release


Some tips for your Independent Medical Exam (IME)

Anyone who has ever filed a workers compensation claim has gone through one, the dreaded IME, or carrier’s consultant examination. The carrier sends you for an examination by a doctor of their choosing to evaluate if your injuries are as bad as your treating doctor says, or more likely not nearly as bad as your doctor says. Some IME’s might suggest completely different diagnoses from your treating doctor (sometimes from the comfort of their chair without the benefit of even putting their hand on you.)

The worst part is that these exams will be used by the carrier to support their position on the amount and type of treatment you need, or the amount of money they must pay you.

So how do you defend against the carrier’s consultant discrediting your claim? Here are a couple of suggestions:

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The NYS Workers’ Compensation Board’s requirements to prove “attachment to the labor market” to justify continuing payments.

The Workers’ Compensation Law is becoming a more complex system for the injured worker to navigate. As this law continues to evolve it is becoming more difficult for a claimant follow up on their claim without the benefit of an attorney experienced in the field of Workers Compensation Law. The most recent change in the law effecting “partially disabled” workers demonstrates that well.

The Workers Compensation Board has issued a number of decisions that allow the insurance company to suspend payments to a claimant because that claimant has failed to demonstrate that they remain “attached to the labor market.” A recent decision of the “Full Board” in the American Axle case...

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For more insight and perspective into various workers’ compensation issues, please visit the
New York Workers Compensation Alliance Law Blog.

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