The New York Disability Law Blog

Brookhaven Lab Workers Get Compensation for Cancer Caused by Radiation Exposure

Troy Rosasco — Thu, 04 Feb 2010 18:14:39 -0500

Newsday reports today that Brookhaven National Lab workers with cancer who were exposed to radiation at BNL during the Cold War will finally be able to receive the federal workers' compensation benefits that Congress intended when it set up a special compensation program for these workers in 2000.

The facts surrounding the Brookhaven exposures are eerily similar to the case our office won at trial regarding our clients who were exposed to radiation, TCE and PCE at the old Sylvania Nuclear Fuel Rod plant in Hicksville, New York. The current owner of the property, Verizon, is now fighting off multiple individual and class action lawsuits for cancer and other illnesses arising from the Hicksville nuclear site .

Prior to today's announcement, the Energy Employees Occupational Illness Compensation Program Act had been a dismal failure for former Brookhaven National Lab employees. In a decade, only 17 of 123 cancer cases had been approved due to the difficulty in establishing "dose exposure". The new "special class" of BNL Cold War workers will make it dramatically easier for those with radiation induced cancers to collect a lump-sum benefit of $150,000 and medical care.

I suppose "better late than never" is the best that can said for the federal government's shoddy treatment of the Brookhaven National Lab workers.

Merry Christmas and Happy New Year from Turley, Redmond, Rosasco & Rosasco!

Troy Rosasco — Thu, 24 Dec 2009 13:10:43 -0500

At this magical time of year, while so many New Yorkers are still struggling economically, let us not forget all the important things we still have. In the spirit of the Christmas season, let us try to put aside our worries, if only for one day, and rejoice for the things that matter most - the happiness and health of our families!

For those among us who are not working due to accidents or disease, may 2010 bring you a return to work and good health. The attorneys at Turley, Redmond, Rosasco & Rosasco have dedicated our professional lives to representing injured and disabled claimants with construction accident claims, ERISA and private long term disability claims, Social Security disability claims and workers' compensation claims. May 2010 bring happier, healthier and more prosperous days to all the clients we serve. Merry Christmas and Happy Holidays!

Jury Awards DePascale Plaintiffs $12 Million Against Verizon for Failure to Clean Toxic Waste Site in Hicksville

Troy Rosasco — Thu, 12 Nov 2009 16:16:16 -0500

In a ground-breaking victory in a David vs. Goliath courtroom setting (it appeared that Verizon had no fewer than 15 attorneys from around the country at the trial), our client Gerard DePascale, his wife, and Liam Neville were awarded $12million today by a jury against Verizon in federal District Court in Central Islip, New York. Specifically, both Mr. Depascale and Mr. Neville were awarded $5 million, while Mrs. DePascale was awarded $2 million.

Gerard DePascale came down with a rare cancer, Stage 4 extra-skeletal myxoid chondrosarcoma, as a result of being exposed, without his knowledge, to various cancer causing toxins on Verizon property while working for a company called Magazine Distributors. The cancer spread to his lungs and he has endured numerous surgeries. Liam Neville also worked for Magazine Distributors in the same location and developed severe kidney disease as a result of the unknown exposure.

The evidence presented at trial showed that Verizon knew about the toxic waste dump on its land in Hicksville as early as 1986 and had an opportunity to investigate and clean-up the site. However, Verizon never notified the workers of the potential danger on the site and it was only after years of exposure to the workers that they began to do a belated clean-up.

In a related case, Turley, Redmond, Rosasco & Rosasco along with attorney Mitchell Breit, has a pending class action in federal court against Verizon for exposure of these toxins to all workers (which could be well over 1000) in a "medical monitoring" class action lawsuit. We seek to establish a "9/11 type fund" where Verizon will have to pay for all future medical expenses to monitor the health of the innocent workers. We seek to have the "medical monitoring to be done at Mt. Sinai Medical Center, just like the 9/11 victims. In another related case, Verizon has already settled with residents in the surrounding area in a multi-million dollar settlement to compensate them for their increased risk of cancer.

Turley, Redmond, Rosasco & Rosasco, LLP has already won Mr. Depascale's workers' compensation claim before a trial judge at the New York State Workers Compensation Board, but the case is still unresolved as a result of the employer's appeal.

Congratulations are due the plaintiff's lead lawyers, Gonzalez & Robinson, from California. Finally, we wish both the DePascale and Neville families the best of luck. Verizon is sure to appeal, so their fight is not over yet. But the verdict today still is a prime example of how a jury of your peers can level the playing field against giant corporations with unlimited resources such as Verizon.

Disability Attorney Named to Board of Advisors at St. John's University Center for Labor and Employment Law

Troy Rosasco — Tue, 10 Nov 2009 17:14:58 -0500

I am looking forward to attending the Inaugural Dinner of the new St. John's University School of Law Center for Labor and Employment Law at the Williams Club in New York City this Thursday. In attendance will be our Law School's new Dean, Michael A. Simons. I am deeply honored to have been asked to become an inaugural member of the Board of Advisors of this prestigious new Labor and Employment Law Center ,which I am sure will be yet another jewel in the law school's crown.

The Center for Labor and Employment Law would not have been possible without the long-standing support and groundwork of David L. Gregory, The Dorothy Day Professor of Law. Many moons ago when I was President of the Law School's Labor & Employment Law Society, we recruited the iconic Cesar Chavez, then President of the United Farm Workers, to speak on campus to a rousing student body. Since then, Dave Gregory has turned the law school into one of the nation's pre-eminent recruiting locations for future labor lawyers.

The new Center's stated purpose is to: "creatively and dynamically prepare law students for professional excellence as superb labor and employment lawyers of impeccable integrity". Having been a Guest Lecturer at the law school for over 15 years now, I can unequivocally state that St. John's Law School produces some of the finest future labor lawyers in the United States. The new Center will only add to the it's already well deserved reputation.

LexisNexis Names New York Disability Law Blog Top Workers' Comp Blog for 2009!

Troy Rosasco — Tue, 03 Nov 2009 19:57:33 -0500

The Attorneys at Turley Redmond, Rosasco & Rosasco are honored to have LexisNexis name our New York Disability Law Blog one of the top 25 workers compensation blogs in 2009 from across the United States for the second year running! LexisNexis is the premier legal publisher in the US, and to have their commendation means a lot not only to our law firm, but to our loyal readers as well.

We are among very good company, as the top 25 workers" compensation blogs include such notables as The Workers' Comp Insider, Safety Community, Workers' Comp Forum, Managed Care Matters and the NY Workers' Compensation Alliance Blog (which was written by me up until 9/11/2009).

Our attorneys take seriously our devotion to providing timely and useful information to claimants injured on the job. To that end, we will be launching a new blog soon aimed more narrowly to the special issues faced by workers hurt on construction sites in NYC, The New York Construction Accident Law Blog. We will announce the official launch here, so look back in the next week or so.

Once again, thanks to LexisNexis for their recognition of all 25 top workers' comp blogs. While producing well written and useful blog posts can be time consuming, we all do it because we care about injured workers.

Montana Wins ERISA Disability Claim Discretionary Clause Appeal - Why Doesn't New York Have Similar Ban?

Troy Rosasco — Thu, 29 Oct 2009 17:27:19 -0500

"Discretionary Clauses" in ERISA disability insurance policies are the largest cause of unfair ERISA LTD claim denials across the country. They essentially create an uneven playing field in favor of an already powerful insurance company over a disabled claimant. Imagine if the Yankees were forced to play the World Series with only seven players on the field, while the Phillies had the usual nine. That's how bad discretionary clauses are for disabled claimants. For this reason, a number of states now ban discretionary clauses in insurance contracts in an effort to simply make the playing field fair for disabled claimants.

Montana is one such state. The Standard Insurance Company didn't like little old Montana taking away their powerful shield against paying legitimate disability claims. Little did The Standard know that John Morrison, Montana's Commissioner of Insurance, is one scrappy fighter for consumers in Montana. I recently had a chance to meet Mr. Morrison and he is an impressive fellow who felt strongly that his state had the right to level the playing field for Montana residents.

Well, two days ago, Mr. Morrison beat back The Standard Insurance Company in the Ninth Circuit Court of Appeals in the case of Standard Insurance Co. v. Morrison , No. 08-35246 (October 27). As stated by the Court:

"Under the Employee Retirement Income Security Act of
1974 (“ERISA”), insureds who believe they have been
wrongfully denied benefits may sue in federal court. The
court determines the standard of review by checking for the
presence of a discretionary clause. Such a clause might read:
“Insurer has full discretion and authority to determine the
benefits and amounts payable [as well as] to construe and
interpret all terms and provisions of the plan.” If an insurance
contract has a discretionary clause, the decisions of the insurance
company are reviewed under an abuse of discretion standard.
Absent a discretionary clause, review is de novo.
Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111
(1989).

Discretionary clauses are controversial. The National Association
of Insurance Commissioners (“NAIC”) opposes their
use, arguing that a ban on such clauses would mitigate the
conflict of interest present when the claims adjudicator also
pays the benefit. The use of discretionary clauses, according
to NAIC, may result in insurers engaging in inappropriate
claim practices and relying on the discretionary clause as a
shield. See also John H. Langbein, Trust Law as Regulatory
Law: The Unum/Provident Scandal and Judicial Review of
Benefit Denials under ERISA, 101 Nw. U. L. Rev. 1315, 1316
(2007) (“As regards Unum’s ERISA-governed policies,
Unum’s program of bad faith benefit denials was all but
invited by an ill-considered passage in . . . Firestone Tire . . .
which allows ERISA plan sponsors to impose self-serving
terms that severely restrict the ability of a reviewing court to
correct a wrongful benefit denial.”).

According to NAIC, as of 2008, a dozen states had limited or barred the use of discretionary clauses in at least some form of insurance.
Insurers and other supporters of discretionary clauses argue
they keep insurance costs manageable. They assert that more
cases will be filed in the absence of a discretionary clause and
that the wide ranging nature of de novo review will lead to
increased per-case costs as well. Failure to control litigation
costs, they suggest, will discourage employers from offering
employee benefit programs in the first place. See, e.g., Metro.
Life Ins. Co. v. Glenn, 128 S. Ct. 2343, 2353 (2008) (Roberts,
C.J., concurring in part and concurring in the judgment)
(“Ensuring that reviewing courts respect the discretionary
authority conferred on ERISA fiduciaries encourages employers
to provide medical and retirement benefits to their
employees through ERISA-governed plans—something they
are not required to do.”)"

In conclusion, the Court stated:

"The Commissioner’s practice is directed at the elimination
of insurer advantage, a goal which the Supreme Court
has identified as central to any reasonable understanding of
the savings clause."

Smart Court. Smarter Insurance Commissioner. Now, when will New York State Insurance Superintendent James J. Wrynn follow in Mr. Morrison's brave footsteps and protect New York consumers by banning discretionary clauses?

Rosasco Lectures Again to Social Security Disability Attorneys on LTD Claims at NOSSCR Conference in San Francisco

Troy Rosasco — Fri, 02 Oct 2009 17:20:28 -0500

I had the pleasure to lecture to Social Security Disability Lawyers this past Spring at the NOSSCR Conference in Washington, DC about "Winning Long Term Disability Claims at the Initial Level". They have invited me back to lecture on the topic of "Winning your First ERISA Long Term Disability Administrative Appeal" at their Fall NOSSCR Conference on October 16, 2009 in San Francisco. My good friend and colleague Pam Atkins, Esq (former President of NOSSCR) will be co-presenting this seminar which should be chock full of practical advice. The seminar description is below:

There was once a time when only large corporations offered their employees long term disability coverage. However, major insurance companies, such as Unum and MetLife, are now targeting the small employer benefits market with packages including group long term disability insurance. Therefore, it is likely that more of your clients will come to you with initial long term disability denials in the near future. If so, how do you do an ERISA long term disability administrative appeal?

This practical seminar by two experienced ERISA and Social Security practitioners will teach you how to: 1) request and review the claim file after a denial, 2) know the important ERISA time frames for appeals and decision making under the Department of Labor regulations, 3) understand the interaction between Social Security Disability and LTD claims, 4) develop additional medical and vocational evidence to support your appeal and 5) write a winning brief (or at least bolster the “administrative record” for federal court). Bring your questions to explore this potential growth area to your existing disability claim practice.

Hope to see you there!

New Law Permits 9/11 Ground Zero Workers to Sue NYC according to Lawyer Rosasco

Troy Rosasco — Wed, 30 Sep 2009 13:17:28 -0500

Great legal news for injured and ill 9/11 rescue and recovery workers! In an article published in Newsday today, Governor David Paterson has just signed a new law effective September 16, 2009 allowing workers who missed lawsuit filing deadlines to sue New York City for negligence for telling workers that the air at Ground Zero was safe, when in fact it was deadly soup of toxins.

Any sick 9/11 Ground Zero worker who had a prior claim dismissed or who never filed a claim in the first place should contact our office immediately at 1-877-NY-DBLAW (1-877-693-2529) to discuss a new lawsuit. These lawsuits are not the same as the filing a World Trade Center workers' compensation claims, which we have been handling now for many years.

Our office would be glad to explain the difference and your filing options given the new law. There are additional strict filing deadlines in the new law. Ask to speak to Troy Rosasco at extension 123.

Many thanks to State Senator Andrea Stewart-Cousins (D-Yonkers) and Governor Paterson for their continued concern and support for 9/11 rescue and recovery workers and volunteers.

Rosasco to Lecture on Workers' Compensation & Disability Law to State Bar Association

Troy Rosasco — Mon, 21 Sep 2009 11:30:55 -0500

I will be travelling to Albany this Friday to present a lecture to the New York State Injured Workers' Bar Association (IWBA) entitled "The Interplay between Long Term Disability Claims, Social Security Disability Claims and Workers' Compensation Claims".

The Fall IWBA conference is always one of our most heavily attended and this year, with discussion of major claims procedure changes coming down from the New York Workers' Compensation Board and our recent LaCroix bill victory, I expect a packed house.

Hope to see you there!

Remembering 9/11: Ground Zero Ironworker Picurro Still Fighting for Life

Troy Rosasco — Fri, 11 Sep 2009 14:49:20 -0500

On the eighth anniversary of 9/11, it seems appropriate that we all recognize that the health impacts on both victims and Ground Zero rescue workers continue in many cases to increase, not decrease. A colleague forwarded me this excellent video from this morning's Democracy Now program regarding Ground Zero and the case of rescue worker Joe Picurro.

Although I am personally familiar with Joe's tragic story of the health consequences that Ground Zero workers face, this excellent update, which includes interviews with 9/11 Ground Zero funding champion Congresswoman Carolyn Maloney and Dr. Jacqueline Moline of the Mt. Sinai Medical Center World Trade Center Monitoring program is a must see for anyone interested in the long term health effects of the WTC tragedy. Mt. Sinai has now screened over 27,000 workers, and new Ground Zero workers compensation cases (usually involving lung disease, cancer and post-traumatic stress disorder) still come into my office on an all too regular basis.

All the attorneys and employees of Turley ,Redmond, Rosasco & Rosasco, LLP offer their ongoing support to our clients and all those impacted by the 9/11 tragedy. God bless you. We will never forget.

Happy Labor Day 2009 from Queens' Workers Compensation Lawyers

Troy Rosasco — Mon, 07 Sep 2009 21:41:36 -0500

Turley, Redmond & Rosasco, LLP, New York's Leading Construction Accident Lawyers and Workers' Compensation Lawyers, wishes all NY workers, either healthy or injured, a restful Labor Day 2009. You deserve it. Stay safe out there!

Is Daniel J. Hickey, Jr. the "Bernie Madoff" of New York Workers Compensation?

Troy Rosasco — Fri, 04 Sep 2009 15:05:38 -0500

That's my opinion as quoted recently in an excellent piece of investigative journalism by Mary Beth Pfeiffer of the Poughkeepsie Journal. Why label him the "Bernie Madoff" of NY Workers' Comp?

As a result of his alleged actions, many small employers throughout New York State are now facing tremendous liabilities and possible bankruptcy because Daniel G. Hickey, Jr. and his former company, Bermuda based Compensation Risk Managers (CRM) allegedly submitted false information to the New York Workers' Compensation Board about outstanding claims and reserves, hired a public relations firm to post fake messages on the Yahoo Finance message board, and his company admitted acting as unlicensed claims adjusters. Read here about CRM's pull out from the NY market.

Despite his alleged misdeeds, according to the Journal story, Mr. Hickey resigned last March just in time to get a $3.3 million severance package an 2 million shares of company stock! Only in America!

To many small employers, the failure of the trusts administered by CRM is a financial calamity. One member of the Elite Contractors Trust, which was managed by CRM, recently received a bill for over $300,000 to cover unfunded claims. Few employers can withstand such an unforeseen financial impact. How many layoffs will this cause? Only time will tell.

This is another example that proves that the most expensive and pernicious NY workers' compensation misdeeds are not committed by injured workers. For his role in the CRM scandal, the New York Disability Law Blog inducts Daniel J. Hickey, Jr. into it's "Wall of Shame".

Should You Hire a "Social Security Disability Advocate" or a Real Lawyer to Represent You in Your Disability Claim?

Troy Rosasco — Tue, 04 Aug 2009 18:42:27 -0500

In my opinion, why eat hamburger when you can have steak for the same price? So called "Social Security Disability Advocates" are now swarming throughout the country, with new ones popping up every day. What do you need to know about some of these outfits before signing up and risking your hard earned Social Security Disability benefits to some faceless, out-of-state entity? Don't be fooled by slick websites with smiling people - many of these outfits are nothing more than disability claim factories and some have major conflicts of interest.

I was recently interviewed by a reporter for the Charleston, West Virginia Gazette-Mail newspaper about the invasion of Allsup into the West Virginia marketplace. Allsup has long been dogged by claims that they really represent insurance companies trying to recover disability insurance payments - not individuals desperately in need of Social Security Disability benefits. The article concedes that outfits like Allsup and Advantage 2000 get the bulk of their income from ERISA long term disability insurance companies.

However, in many ways the Allsup's of the world are old news by now. It is the new crop of so called "Disability Advocates" that may present the greatest danger for the uninformed consumer. Take for instance, Disability Advocates of America. On their Home page, they state that they provide "Legal Services" nationwide, but fail to give you the names or qualifications of their attorneys. How can you make an informed choice for legal representation when they hide the identities of the lawyers? And of course, the next question is why are they hiding the qualifications of their lawyers? Hmm... Even more disturbing is their "Online Application". How many claimants would mistakenly believe that this "Online Application" was actually a real online application for Social Security Disability benefits like the one on the Social Security Administration website? Scary stuff!

Companies like Genex Services, SSDC Services, Corp. , and get this name, Freedom Disability (formerly Social Service Coordinators), all have prior or existing connections to the insurance industry and in many ways act as collection companies on their behalf, no matter how nice their "advocates" or "consultants" may seem. When push comes to shove, is their relationship with the insurance company more important than their obligations to you as an individual? I think you know the answer.

Finally, on a serious but humorous note, how much training does it take to become a "Social Security Disability Advocate"? According to Disability Associates, Inc., they are the:

"only advocate training program in America designed to transform a complete novice [beginner] into a highly skilled Social Security Disability Advocate within a very short period of time." "We offer a unique self-paced business and training program that enables you to train and work from home, full or part time, earning up to $6,000.00 per case."

Now that's reassuring!!! How do they appear for a formal judicial hearing before an Administrative Law Judge "from home"? And they get the same fee as an attorney who cross examines the medical and vocational experts at your hearing? This could be a costly mistake!

I suppose the real message here for the disabled is "buyer beware". You can find local, experienced Social Security Disability attorneys who carry professional malpractice insurance ( for your protection) and who have no insurance company conflicts of interest by visiting the National Organization of Social Security Claimants' Representatives (NOSSCR) lawyer referral service. At least in the New York metro area, most of my clients appreciate meeting or talking with an attorney like myself before hiring me. And you know what - my clients deserve it! If claimants are going to pay the price for "steak" for representation, they deserve competent attorney representation, rather than so called "advocates".

New York Long Term Disability Lawyers Get Bad Decision for Claimants from Appeals Court

Troy Rosasco — Thu, 09 Jul 2009 20:57:04 -0500

NY Long Term Disability Attorneys have had some pretty good days in the Second Circuit Court of Appeals recently with cases like McCauley v. Unum. Unfortunately, today the winning streak stopped cold with the mind-boggling decision in Burke v. PriceWaterhouseCoopers and Hartford Insurance, (Second Circuit, 7/9/09).

This case dealt with the issue of when the Statute of Limitations (S.O.L.) to sue in an ERISA disability claim begins to run. The S.O.L. is important because failure to sue within the applicable time limits could cause the plaintiff to lose his right to sue in federal court regarding a long term disability claim denial. In Burke, the Court held that the S.O.L. begins to run from the date the insurance company claims that a "proof of loss" is due pursuant to a contract.

This practically can result in the S.O.L. beginning to run even before a claim is denied! It is an absurd result which will cause unnecessary litigation with plaintiffs in ERISA disability termination cases to having to run to court earlier than before.

Thankfully, the Fourth Circuit in White v. Sun Life, 488 F.3d 240 (4th Cir. 2007) is now in conflict with the Burke decision. Splits among the circuit courts can often lead to US Supreme Court review so as to have uniform law nationwide on the issue. Let's hope some sharp appellate lawyer attempts to take this silly decision up to the Supremes!

New York Disability Lawyer Adds Informational Twitter Posts to Blog

Troy Rosasco — Tue, 07 Jul 2009 19:15:07 -0500

OK - its time to try out this Twitter thing! My good friend Kevin O'Keefe of LexBlog says it is an important tool to provide helpful info to my clients and readers, and I have great respect for his opinions on lawyers and Internet technology.

If you look to the left side of our blog and scroll down a bit, you will see my last five Twitter posts. From my perspective, Twitter allows me to quickly get out useful information and news without having to compose a full blog post. Why? You can only use 140 characters in any Twitter post, so you better get to the point fast!

For example, I broke the story about the appointment of Robert Beloten as the new NY Workers' Compensation Board Chairman on Twitter within minutes of confirming it with the NY Times, and this "tweet" ( the term Twitter uses for a "post" ) was "retweeted" (RT) across the Internet multiple times the same day. News travels with lightning speed on Twitter.

In any case, we will give Twitter a "twhirl" and if our readers like it, we will continue to tweet away!

Judge Robert E. Beloten Appointed New York Workers Compensation Board Chairman

Troy Rosasco — Thu, 02 Jul 2009 14:00:09 -0500

When I first started practicing workers' compensation law in the early 1990's at the Hempstead, NY hearing office, Robert (Bob) Beloten was one of the sitting Workers' Compensation Law Judges. In many ways, I was very "green" and needed some guidance on how things "really worked" at the WCB. Not only did Bob Beloten provide such guidance to me and other young attorneys at the time, he also made sure that our lack of experience did not harm our clients. That's what a good judge does- and Bob Beloten was certainly among the best.

When I was asked to present a seminar on workers compensation law at St. John's University Law School a few years back and needed a judge to offer his perspectives, I immediately reached out to Judge Beloten. He graciously accepted and the law students at St. John's were treated to one of the finest seminars on judicial independence and philosophy in some time.

Bottom Line - Robert E. Beloten is a top notch workers' comp professional who has lived and breathed the workers' compensation law for most of his legal career. The NY Times has a nice article out today about Robert Beloten's appointment as WCB Chair. Governor Paterson has made a wise choice in selecting the next Chairman of the New York State Workers' Compensation Board. I wish him the best of luck!

NY Independent Medical Examiners (IME's) and Fuctional Capacity Evaluators (FCE's) Subject to Medical Malpractice Lawsuits on Disability Claims

Troy Rosasco — Wed, 01 Jul 2009 13:41:40 -0500

How many times has one of your clients told you the IME or FCE physically hurt them during the course of a so called "independent medical exam" or "functional capacity exam"? What if the injury is permanent? Can they sue the IME doctor or physical therapist for medical malpractice?

According to a sharply divided NY Court of Appeals, the answer is "Yes". On June 24, 2009, the Court in Bazakos v. Lewis, 209 NY Slip Op 05199, the majority ruled that the claim of the plaintiff was that the doctor “breached his duty "to perform the examination in a manner not to cause physical harm to the examine." and found a "limited doctor-patient relationship" between the examiner and the claimant.

New Chief Judge Jonathan Lippman was almost apoplectic in a strongly worded dissent. The dissent argued that there was no medical treatment provided by the defendant because none was intended nor was any provided. The examination was a “disclosure device in litigation” and that the benefit was not for the plaintiff but in fact for the defendant in the underlying personal injury action. They added that the conduct of the defendant “during his examination … is not amenable to [a] description of medical malpractice within the meaning of CPLR §214-a.” Unfortunately, Judge Lipman forgets that "benefit for the defendant" ended up seriously inuring the claimant.

At the end of the day, what does this decision portend for the future of IME's in workers' comp and disability claims? First, their typical boilerplate statement at the end of their reports saying that the exam was performed, but their was no doctor /patient relationship, is now worthless. Second, far fewer IME's will lay a hand on injured workers during an IME absent a full indemnification agreement from the insurance carrier. Many others will quit the IME business in NY all together. Third, there is no reason this decision should not apply also to physical therapists who routinely do the more intrusive (and often unsafe) Functional Capacity Examinations (FCE) in long term disability claims (our law firm does not allow our clients to attend FCE exams). Finally, IME and PT medical malpractice rates will likely rise in New York given this new extension of liability.

Given the scandalous expose on workers' compensation IME fraud in the NY Times recently, this decision will hopefully curb some IME abuse. Hit the hacks where it hurts!

New Workers Compensation IME Rule May Stop Brokers from Altering Reports in New York

Troy Rosasco — Mon, 29 Jun 2009 18:27:28 -0500

Adding to an increasingly positive legacy, outgoing NY Workers' Comp Board Chairman Zachary S. Weiss has left injured workers a major tool to combat insurance company IME (independent medical exam) fraud in NY. As I explained in a WorkersComp Central article discussing the new IME rule, IME "brokers" will no longer be able to have "secret" conversations with IME doctors regarding the results of their reports.

In New York State, many IME brokers actually write the report for the examining doctor and simply send the doctor the finished product for signature. Some IME brokers (entities) have been caught red handed changing the findings and degree of disability of their own examining physicians. I know - I've seen the changed reports! This was also proved in the scathing NY Times series earlier this year exposing IME Dr. Hershel Samuels. As Dr. Samuels nonchalantly stated on video:

"If you did a truly pure report....you'd be out on your ears and the insurers wouldn't pay for it. You have to give them what they want, or your in Florida. That's the game, baby." (How's that for honesty!)

Now comes WCB Subject Matter Release No. 046-324 regarding broker oral communications with IME's which states: "[E]mployees of all registered IME entities are prohibited from verbally discussing, instructing, or directing an IME provider as to his or her opinions or findings in the IME report. This means the IME report must always be submitted "as is"." All requests for "clarification must be submitted in writing on written notice to all parties of interest. Written "addendums" must be served on all parties require the signature of the IME. Even NY claimant's workers compensation lawyers can ask for clarification, as long as it is in writing. Why wait for a deposition if you can ask your question now?

The poorly paid clerks employed by IME brokers should read this carefully so that they know the potential extent of their liability if they do not follow this rule. They can be criminally prosecuted under WCL Sec. 114 for failure to abide by this rule. They can no longer write reports, format reports, type reports from dictation for the doctor's signature or put words in the IME's mouth. The report must come in complete, prepared by the IME himself, and with the proper signature prior to the IME broker seeing the contents of the report. It must be sacrosanct and stand "as is" when delivered to all parties of interest.

Now this is real workers' compensation reform!

NY Workers Compensation Board Chairman to become Social Security Disability Judge

Troy Rosasco — Tue, 16 Jun 2009 18:26:31 -0500

I should have picked up the clues! A few weeks ago I was speaking at the New York Social Security Disability Bar Association Annual Dinner in Manhattan. This is always a great night for the Bench and the Bar break bread and have a few laughs. I was there to speak about one of my favorite Social Security Judges, Andrew Weiss of the Long Island Office of Disability Adjudication and Review, who was receiving the prestigious Hon. Lester Rosen Award. I have known Andy since his early days as a Workers Compensation Law Judge in Hempstead and he has a singularly unique blend of compassion and humor.

Much to my surprise, in attendance was the current Chairman of the New York Workers' Compensation Board, Zachary S. Weiss (no relation). Having attended these dinners for at least the last 15 years, I had never seen the Chair of the Workers' Comp Board enter the somewhat more calm sanctum of the Social Security Bar. The Chair and I had a pleasant conversation over cocktails and it was my honor to introduce him later from the podium. Other than that, I thought nothing more about the Chair's presence.

It all clicked last Friday when the New York Times reported that Chairman Weiss was resigning from the Workers' Compensation Board to accept a position as a federal Administrative Law Judge (ALJ) for the Social Security Administration in the Jericho office. My friends who are ALJ's had told me that offers went out to the new class of judges right about the same time as the Social Security Bar Dinner. It was not a coincidence that Chairman Weiss was at the dinner - he was simply getting to know his future colleagues and the attorneys who might be appearing before him in the future! Smart man!

As I said in an article published in WorkersComp Central regarding Chairman Weiss' resignation, he is quite simply a brilliant man. I have spoken to him on many occasions. Although we have disagreed in the past on the substance of a few workers' compensation system issues, there is no question that his formidable intellect combined with compassion will directly benefit the individuals appearing before him in the future claiming Social Security Disability benefits. Out of the often times murky waters of the NY workers' compensation system (click here for an interesting post from the Workers Comp Insider Blog), Zachary S. Weiss has emerged untarnished and renewed as a federal judge. I wish him success and happiness in his new position adjudicating Social Security disability claims.

Ground Zero Worker Daniel Arrigo Waits for Workers' Comp - Rosasco Says Sadly Familiar in Workers' Comp Central Article

Troy Rosasco — Mon, 11 May 2009 19:27:46 -0500

Last week the New York Daily News had an excellent story by Heidi Evans detailing the battle 9/11 responder Daniel Arrigo has gone through to obtain his workers' compensation benefits. Here we are - nearly 8 years since the World Trade Center tragedy - and insurance companies are now to fighting 9/11 workers comp claims harder than ever as the spotlight has shifted from terrorism to the economy. Give the New York Daily News credit for keeping the spotlight shining bright on the health of WTC first responders and volunteers.

In a follow-up to the Daily News article, I was interviewed by the leading trade publication on workers' compensation issues, Workcompcentral, on Mr. Arrigo's case. In the article, I stated that Mr. Arrigo's plight is "sadly familiar" to those of us attorneys who handle 9/11 Ground Zero claims on a regular basis. Sadly, there are many more "Daniel Arrigos" out there in need of experienced Ground Zero workers' compensation lawyers because insurance companies fight legitimate claims with one hand, while asking for taxpayer bailouts with the other. Disgusting!