New York workers Compensation Laws Inadequate, Says David Perecman

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Whose Employee Is It Anyway?

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The Uninsured Employer's Fund would act as the insurance company.

The New York State Employment, Safety and Security Act of 1996, which was supposed to provide for balanced, comprehensive reform of the state's old and inadequate workers' compensation system, is itself a tangled web of rules and regulations that by the state's own admission often requires the aid of a licensed New York workers' compensation lawyer to help guide an applicant through a maze of complex laws and policies that are subject to change by the State of New York, according to David Perecman, a New York workers compensation lawyer and a co-chair of the Labor Law Committee of The New York State Trial Lawyers Association.

"Even in what appears on the surface to be a simple claim," Perecman said, "where the insurance company agrees that the injury or illness is covered by workers' compensation, and the claim is accepted, there may be delays and other problems that come up that could have been dealt with quicker, or avoided altogether, if the disabled employee sought the advice of legal counsel before filing the claim, or before a dispute had arisen."

Perecman said that workers' compensation is also difficult to manage because certain City of New York workers, such as firefighters, sanitation workers, teachers, police officers and others are covered by union carve out programs.

"For an injured worker trying to figure out how the system works, it can appear as if there are at least two sets of rules, " Perecman said. "One for certain New York City employees, and another for other workers, such as Transit Authority employees, for example."

"For some workers," he added, "such as Transit Authority workers, who are not employees of the City of New York, the laws for workers' compensation, and how they affect a person's right to bring a lawsuit against certain parties, will create different results. The way the system is set-up now now, if a transit worker is injured, or killed on the job, the employee is not allowed to sue his or her employer in civil court for the accident or injury."

Perecman further explained that since the Transit Authority provides workers' compensation insurance to its employees, a transit authority worker, and by extension the worker's family members, are only entitled to file a claim against the Transit Authority for workers' compensation, or for workers' compensation death benefits. The injured worker cannot bring a lawsuit against the Authority in civil court, nor can the worker sue a co-worker for an on-the-job injury, even if the Transit Authority, or the co-worker, was at fault.

"But Transit Authority workers," he said, "are permitted to file a civil claim against any other party who caused their injury, including the City of New York, because the city is not their employer, the Authority is.

"The rules are different for certain New York City employees," Perecman added. "Several classes of New York City workers, such as police officers, uniform fire fighters, teachers and sanitation workers who were injured on the job, are permitted to sue the City of New York in civil court under certain circumstances, because these workers receive an alternative type of workers' compensation benefit from their employer."

Generally speaking, transit workers, construction workers and hazmat workers, like most employees who receive workers' compensation benefits from their employers, or who are members of so-called 'carve-out programs,' which allow employers and unions to create their own alternatives for workers' compensation benefits, are barred from suing their employer.

To illustrate how confusing workers' compensation laws can be, Perecman cited a recent highly-publicized accident in New York City involving Ronald Melichar, a city official who was critically injured when he was run over by a subway train at the 137th Street station.

"Had he worked for the Transit Authority and been injured on the job," Perecman explained, "Mr. Melichar would have been entitled to collect workers' compensation insurance only. Instead, he works for the city's department of small business services and could, if he chooses, bring a civil suit against the Transit Authority for his accident."

To illustrate another inherent complication in the system, Perecman described a complicated workers' worker's compensation case his law firm handled recently involving a claimant who was seriously injured when a piece of heavy metal fell on him.

The individual sustained injuries to his head, shoulder, neck and back including seven herniated discs in the cervical and lumbar areas. The claimant was receiving workers' compensation benefits until the insurance carrier decided to pull the rug out from underneath him and require him to be reexamined by three of their own medical consultants, each of whom later filed reports saying he had recovered and could return to work.

"Insurance carriers usually have attorneys, or experienced representatives, at these hearings," Perecman said. "In this instance, the testimony of both the claimant and the insurance carrier's medical witnesses was highly technical. By getting The Perecman Firm involved, the claimant put the same level of experience, if not more, in his corner, as the insurance carrier had in theirs.

"This story," he added, "clearly serves to demonstrate why it is often in the best interest of the person who is injured on the job to seek the advice and counsel of an experienced workers compensation lawyer. As a result of our intervention, this claimant had his workers' compensation benefits reinstated."

In yet another example, Perecman described a case his firm handled involving a claimant who was working at a construction job site when a brick fell from the roof and hit his foot. The injury resulted in the amputation of the worker's big toe.

"At the hearing," Perecman said, "no one wanted to take responsibility for the worker's injury. The alleged employer told the workers' compensation appeals board that the claimant was not employed by him. He said there was a general contractor on the job who was the claimant's real employer.

A trial ensued in an effort to determine who, in fact, really was the claimant's employer at the time of the accident. But, in the end it didn't matter. As it turned out, the alleged employer had no insurance and the general contractor had let his insurance lapse, forcing the Uninsured Employer's Fund to be brought into the picture."

Perecman explained in a Workers' Compensation claim, when an employer either has no workers' compensation insurance, or if his insurance has lapsed, the Uninsured Employer's Fund assumes responsibility for paying benefits on a claim unless, and here is the exception, the accident took place at a construction site. Then, even if the employer has no insurance, the worker has recourse to file a workers' compensation claim with the general contractor's insurance carrier. If the general contractor isn't insured, the claim then goes to the Uninsured Employer's Fund.

"In other words," Perecman said, "The Uninsured Employer's Fund would act as the insurance company."


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Jay Berkowitz
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