Tampilkan postingan dengan label New York. Tampilkan semua postingan
Tampilkan postingan dengan label New York. Tampilkan semua postingan

Rabu, 11 Januari 2012

Court Reporter's Brain Aneurysm Held Compensable

A court reporter who suffered and survived, with catastrophic disability, was awarded workers' compensation benefits by the NY SupremeCourt - Appellate Division as a result of stressful employment.

"On August 10, 2007, claimant, a court reporter, was found unconscious at her workplace and rushed to a local hospital, where she was diagnosed with a subarachnoid hemorrhage caused by a ruptured basilar artery aneurysm. Although claimant survived, she apparently remains unable to communicate. A workers' compensation claim subsequently was filed on her behalf, and the employer and its workers' compensation carrier (hereinafter collectively referred to as the employer) controverted the claim, asserting that the ruptured aneurysm was not related to claimant's employment. Following a hearing, a Workers' Compensation Law Judge (hereinafter WCLJ) found that the employer did not overcome the presumption of compensability set forth in Workers' Compensation Law § 21(1). "

The Court relied upon the statutory presumption language.

"Pursuant to Workers' Compensation Law § 21(1), a presumption of compensability exists where, as here, an unwitnessed or unexplained injury occurs during the course of the affected worker's employment (see Matter of Brown v. Clifton Recycling, 1 AD3d 735, 735 [2003] ). “The employer may overcome the presumption by presenting substantial evidence to the contrary” (Matter of Steadman v. Albany County, 84 AD3d 1649, 1650 [2011] [internal quotation marks and citations omitted] )."

Read the full decision: In Re: The Claim of Vanessa Richman (Decided January 5, 2012)

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Minggu, 11 Desember 2011

$2 Million Verdict to Plastic Compounder Suffering Mesothelioma - Call For Asbestos Ban

This week a New York state jury awarded $2 Million dolars to a former plastic compounder who was exposed to asbestos fiber and was subsequently diagnosed with mesothelioma. The employee worked in a plastic factory in 1966 and poured raw asbestos fibers to make molds. Some of the asbestos fiber was supplied by Hedman Resources Ltd., a Canadian asbestos mining company.

Mesothelioma is a rare and fatal cancer caused by exposure to asbestos fiber. Hundreds of thousands of lawsuits have been filed against the asbestos manufacturers and producers since the early 1970's in the US seeking benefits. Despite the continuing epidemic of asbestos related disease and massive weight of scientific evidence of the deadly carcinogenic qualities of asbestos, Canada continues to mine asbestos fiber and sell it worldwide. It is estimated that that 107,000 workers die annually from asbestos-related diseases.

To this day there is no asbestos ban in effect in the US. The Canadian asbestos industry still exports asbestos fiber used in the US and other parts of the world. On Thursday, The Asbestos Disease Awareness Organization (ADAO) which combines education, advocacy, and community to provide a unified voice for asbestos victims, today announced with the Canadian Voices of Asbestos Victims the release of the North American Declaration to Eliminate Asbestos-Related Diseases.

The Declaration initiates an enhanced collaboration between the U.S. and Canadian asbestos disease victims and their families, public health organizations, environmental non-governmental organizations, occupational safety and health (OSH) specialists, and politicians. While ADAO has been individually partnering with Canadian counterparts for education, advocacy, and community initiatives for several years now, the North American Declaration for the Elimination of Asbestos-Related Diseases unifies the demands voiced by American and Canadian asbestos victims to eliminate asbestos-caused diseases.


To sign the petition to ban asbestos fiber click here: Petition to Ban Asbestos Fiber 
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For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses. 

Selasa, 30 Agustus 2011

Zadroga 9-11 Compensation Fund To Accept Claims October 3rd

The 9/11 Zadrogra Compensation Fund is scheduled to start accepting claims for compensation on October 3, 2011. Announcement of the publication of the Final Rule was just announced.

With the 10-year anniversary of Sept. 11, 2001, approaching, September 11th Victim Compensa­tion Fund (VCF) Special Master Sheila L. Birnbaum today announced the final rule governing the fund. Since issuing the proposed regulations in June 2011, Special Master Birnbaum has reviewed formal comments and met with, and received feedback from, hundreds of New York-area residents, workers and first responders at town hall meetings held in New York and New Jersey.


For more information about The 9/11 Fund claims click here.


For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered occupational accidents and illnesses.

Jumat, 06 Mei 2011

Do We Need Another Teddy Roosevelt?



Leonard T. Jernigan, Esq.
Guest Blog by Leonard T. Jernigan, Jr.  

On September 14, 1901 at 2:15 a.m. President William McKinley took his last breath and became the second President since Lincoln to die from an assassin’s bullet. To the horror of many New York politicians, Theodore Roosevelt, the former activist governor of New York who had been shuffled into the vice-presidency to keep him from further meddling in New York politics, became President. 


In Edmund Morris’ excellent book, Theodore Rex (2001, Random House, 555 pages), the grim reality of a worker’s plight at the turn of the century is disclosed through exhaustive research and a bird’s eye view of what was happening. In reviewing Standard Oil Company’s kickback contract with the Pennsylvania railroad (the railroad company got rebates from Standard Oil when transporting that company’s oil, but got “drawbacks” when they transported oil from other companies), Roosevelt began to see “a new and dark power” that shadowed every aspect of life in America. 

This new concept of “privilege in commerce” went against the grain of free enterprise and to some was un-American. As Standard Oil swallowed up smaller companies, John D. Rockefeller (who owned 90% of the oil-refining business in the United States) was unrepentant. In his view, interdependent industries needed less competition and “more cooperation.” 

Although President McKinley saw this development as merely an economic trend, ordinary Americans began to see the effects of this dark power. Morris stated it succinctly: “ . . . whatever corporate executives might say about increased efficiency and reduced waste, the historic inclination of Monopoly was to raise prices and lower wages.”

Although the Sherman Anti-trust Act had been passed in 1890, the United States Supreme Court decision of U.S. v. E. C. Knight Co., 156 U.S. 1 (1895) rendered the law ineffective. That decision held that a trust controlling 98% of the national sugar-refining business did not violate the anti-trust provisions of the law, since refining was not itself an interstate activity, and therefore such companies were exempt from regulation. 

Andrew Carnegie created U.S. Steel when he merged his company with nine others, and J. Paul Morgan controlled several banks, Western Union, the Pullman Car Company, Aetna Life Insurance, General Electric and 2-1 railroad companies. Businessmen like to operate in private, and believe that combinations were best put together quietly. 

In reviewing these developments, Roosevelt asserted that the nation had to respond to these new conditions and he argued that the United States “ . . . has got to possess the right of supervision and control and regards the great corporations which are its creatures.” J. P. Morgan’s response was simple: “I owe the public nothing.” 

As corporate wealth grew, working conditions deteriorated, particularly in the coal fields of Pennsylvania, where men worked in the mines for ten hours a day, six days a week, and were lucky if they made $500.00 in a year. By age 40 or 45, most were disabled from black lung disease and were reduced to menial jobs like picking up slate with their grandchildren. Union membership had doubled over the past five years, and the United Mine Workers (UMW) had its first strike in 1900. Roosevelt realized that “ . . . Today’s contempt for the unskilled worker was tomorrow’s likely revolution,” and William Jennings Bryan, during his last run for the presidency in 1900, kept saying “The extremes of society are being driven further and further apart.” 

Roosevelt knew his history, and was aware of the vulnerability of the republics that had failed to preserve a social balance: [T]he death-knell of the republic had rung as soon as the active power became lodged in the hands of those who sought, not to do justice to all citizens, rich and poor alike, but to stand for one special class and for its interest as opposed to the interest of others. 

Roosevelt began to evaluate a course of action until he was able to consolidate his power and run on his own in 1904. Morris summarized it as follows: 

[H]ow, in the meantime, to care for those millions of Americans out there in the twilight? How to articulate their vague feelings that despite general peace and prosperity, something deep down was wrong with the United States? Here was his challenge as president: To put into speech, and political action, what they felt in their hearts, but could not express. In Roosevelt’s first message to Congress he acknowledged the abounding prosperity of the country and gave credit to the captains of industry who, on the whole, had done great good for the people. He then stated: 
"It is no limitation upon property rights or freedom of contract to require that when men receive from government the privilege of doing business under corporate form . . . they shall do so upon absolutely truthful representations. . . . Great corporations exist only because they are created and safeguarded by our institutions; and it is therefore our right and duty to see they work in harmony with these institutions. . . . The first essential in determining how to deal with the great industrial corporations is knowledge of the facts – publicity."
He also argued that the United States should conserve its natural resources, for the protection of future generations. He documented the irresponsibility with which Americans had abused water, mineral and forest resources, leading to the loss of more than half the nation’s original timber and other signs of exhaustion of natural resources. He argued that the Bureau of Forestry should be given total control over forest reserves, aired public lands should be reclamated, and interstate irrigation systems should be developed by the national government. “The doctrine of private ownership of water apart from land cannot prevail without causing enduring wrong.” 

Roosevelt began his trust busting by instructing his Attorney General, Philander Chase Knox (described by Roosevelt as “The best attorney general this government has ever had”), to file a lawsuit against the Northern Security Company for violating the Sherman Anti-Trust Law in creating a railroad monopoly in the Northwest that was, according to Knox, “infinite in scope, perpetual in character.” J. P. Morgan was one of the named defendants. The public was now aroused. 

On December 14, 1903, Knox masterfully argued before the United States Supreme Court that any obstruction to commerce should be removed by the government and that the Northern Security Company, as it currently existed, was uncontrollable by the individual states. On March 14, 1904, in a 5-4 decision, the court affirmed a lower court ruling that the Sherman Act had been violated. 

Roosevelt’s popularity soared as he approached the upcoming election in November, and millionaires “stood in line” to make contributions for his campaign as soon as they realized he would be easily elected. He had been born to wealth and sincerely believed it must be repaid with public service, not money-seeking power. He became increasingly repulsed by men who abused the privilege of wealth: “It tired me to talk to rich men. You expect a man of millions, the head of a great industry, to be a man worth hearing; but as a rule they don’t know anything outside their own businesses.” 

In 1905-1906 he began looking at employer liability. He called for a comprehensive Congressional study of the subject, sought an investigation into child-labor abuses, wanted legislation to maintain sanitary standards in the food industry, and advocated governmental supervision of insurance corporations. Eventually he enacted three new laws in these areas: (1) a re-enacted Federal Employers’ Liability Act, (2) the Workmans Compensation Act for federal employees, and (3) the Child Labor Act for the District of Columbia. 

Roosevelt was a voracious reader, a student of history, culture and science. His moral compass was secure and he held strong convictions about a “square-deal” for all parties. He knew how to lead the nation, in both politics and rhetoric. 

He left us with the well-known mantra, “Speak softly but carry a big stick,” which was a West African proverb. On one occasion he explained in a speech: If a man continually blusters, if he lacks civility, a big stick will not save him from trouble; but neither will speaking softly avail, if back of the softness there does not lie strength, power. 

Theodore Rex helps us to remember the lessons of the past and should be required reading for all those who seek an understanding of workplace safety issues and the dynamics between corporate wealth, labor and politics.

Leonard T. Jernigan, Jr. practices in Raleigh, North Carolina (The Jernigan Law Firm). Mr. Jernigan is the author of North Carolina Practice, Workers Compensation Law and Practice 4th ed. He has been recognized by Best Lawyers in Americaand Super Lawyers. Leonard T. Jernigan, Jr. is an Adjunct Professor of Workers Compensation Law at North Central University School of Law. He is one of only 48 workers' compensation attorneys in the United States authorized by the National Football League Players Association (NFLPA) to represent its members. He is also authorized to represent players in the National Hockey League (NHL) and the Professional Hockey Players Association (PHPA) as well as other professional athletes.

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Selasa, 03 Mei 2011

Texas Disallows Work Comp Retaliation Suits Against State Based on Sovereign Immunity

Guest Blog by Jon Rehm 

The Texas Supreme Court ruled that that sovereign immunity protects public employers against suits for retaliating against employees who file workers compensation cases. This is an unfortunate decision, but not a surprising decision based on the hostility directed towards public employees in today’s political climate. Legally the Texas case was supported by a broad view of sovereign immunity that covered operational aspects of government in addition to its policy making role. Advocates for injured workers should be aware that employers and insurers will attempt to have other states adopt Texas’ approach to workers compensation retaliation suits against public employers. 

Though Texas has restricted the ability of public employees to bring workers comp retaliation suits, the majority of states have a cause for action for retaliation for filing for workers’ compensation claims by statute or case law. This cause of action prevents employers from taking the following stand with their injured workers: 

“Although you have no right to a tort action, you have a right to a workmen's compensation claim which, while it may mean less money, is a sure thing. However, if you exercise that right, we will fire you.”Leach v. Lauhoff Grain Co., 51 Ill.App.3d 1022, 366 N.E.2d 1145, 9 Ill.Dec. 634 (1977). 

So how does one know that an employer is retaliating against an injured worker for filing a workers compensation claim? One you have to file for a workers compensation claim. This is usually a given in these cases. However in Kasten v. Saint-Gobain Performance Plastics Corp., the Supreme Court recently held that an oral notice of a wage and hour claim to the employer qualified as a filing a claim for the purpose of an FLSA retaliation claim. 

Then the employer has to retaliate against the employee. Again this is a given if the employee has been fired, but can mean any adverse employment action taken against the employee. However while “less flagrant reprisals by employers may indeed be adverse ... not every unpleasant matter short of discharge or demotion creates a cause of action for retaliatory discharge.” Richardson v. New York State Dep't of Correctional Serv., 180 F.3d 426, 446 (2d Cir.1999) Attorneys need to check the law in their jurisdiction to see how far courts in their particular jurisdiction have stretched retaliation. 

The heart of a workers compensation retaliation case is linking the retaliation to the filing of the workers compensation claim. This is usually done by circumstantial evidence because employers rarely announce retaliation as a motive. Among the factors showing retaliation: 

(1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Continental Coffee Products v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996). 

In addition proximity in time between filing and retaliation and satisfactory job performance are circumstantial evidence of motivation. Riesen v. Irwin Indus. Tool Co., 272 Neb. 41, 717 N.W.2d 907 (Neb. 2006) 

Notice of the workers compensation injury by the employer is usually the easiest element to prove. Though you probably won’t get an employees boss to admit he or she made negative comments about employees injured condition, your client’s testimony that there were negative comments about their injured condition are sufficient for the purposes of defending a summary judgment motion. 

Proving a company failed to adhere to their own policies usually means that counsel for the employee needs to obtain and familiarize him or herself with the defendant’s employee handbook if one exists. Failure to follow their own procedure can also be evidence that an employer’s reason for firing your client was false. 

Proving discriminatory treatment in comparison to other employers requires fact-specific discovery. In the Riesen case, the employee was fired because he falsified his employment application by not listing all of his previous employers. His employment application only listed room for three employers but asked employees to attach another sheet for more employers. Plaintiff only listed three employers on his application, but listed more on his answers to interrogatories which HR manager for the defendant had read. Plaintiff surmounted this hurdle by showing that almost all the employees at the plant did not attach additional sheets for other employers. Plaintiff also showed that plaintiff was only employee terminated for not listing all of his employers in his employment application. 

Proximity in time between filing and retaliation is another element of cause. Just because an employee was fired many months after they initially filed for comp doesn’t defeat proximity. You can still tie retaliation to proximity if you can tie the retaliation to action like hiring a lawyer or having an expensive surgery. 

Satisfactory job performance can also prove retaliation. If a client had good performance reviews and an absence of discipline prior to the work injury, but starts receiving write-ups and poor reviews after the work injury then you have evidence of retaliation. 

In addition to proving a link between the retaliation and the workers comp claim, plaintiffs usually need to prove the defendant’s stated reason for discharge was false. If the plaintiff offers evidence of the elements listed above then they can usually make the case that the reason for retaliation was pre-textual. 

Hopefully this article has given some guidance for how workers compensation practitioners can prosecute retaliatory discharge cases. With aggressive lawyering and creative thinking, workers compensation practitioners can get good results for their clients and discourage employers from interfering with injured workers rights to receive workers compensation benefits in their jurisdictions.

Jon Rehm practices in Lincoln, Nebraska (Rehm, Bennett & Moore, PC, LLO). He concentrates his practice on representing injured workers and their families. He hold a  degree in journalism from Northwestern University(B.S.) and a law degree from Nebraska College of Law(J.D.).  Jon is a member of the Nebraska State Bar Association, the Nebraska Association of Trial Attorneys and the Workplace Injury Law Advocacy Group.

Sabtu, 16 April 2011

Asbestos Contaminates 772 New York City Schools

The Board of Education of the City of New York has reported that asbestos wiring, a known carcinogen, is hampering the removal of PCB lights. The asbestos contaminating the schools is was discovered while the City was attempting to remove lighting at the school.

WNYC, Public Radio in NY reported that, Deputy Chancellor Kathleen Grimm told a City Council committee said, "Asbestos comes with its own special rules and containment procedures," She said it can only be removed on weekends and holidays, not evenings "because we have to actually contain the area, and make sure that we're removing it properly and disposing of it properly." It is anticipated that it will take 10 years to remove the asbestos from the schools.

Asbestos, for decades, has been linked to asbestosis, lung cancer and mesothelioma. Mesothelioma remains an incurable and fatal disease. Asbestos is one of the modern world’s most historic occupational medical disasters. Not only is it well documented, it continues not to be banned in the US.


For over 3 decades the Law Offices of Jon L. Gelman  1.973.696.7900  jon@gelmans.com have been representing injured workers and their families who have suffered work related accidents and injuries.

Minggu, 08 Agustus 2010

World Trade Center Registration Deadline September 13, 2010

The deadline to register with the NY State Workers' Compensation Board is September 13, 2010 if you participated in the rescue, recovery and clean-up of the World Trade Center following the attack of September 11, 2010. The work duty covers Ground Zero, Fresh Kills Landfill, the barges, the piers and the morgues.


Registration form WTC-12.


Click here to read more about World Trade Center Claims.

Click here for more information on how Jon L Gelman can assist you in a claim for workers' Compensation claim benefits. You may e-mail Jon  Gelman or call 1-973-696-7900.