The state Workers' Compensation Board published proposed guidelines shortly before midnight on Labor Day weekend outlining changes that would decimate the state's workers' compensation system and put thousands of families at risk of ruin, according to attorney Victor Pasternack of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP.

"The weekend we're supposed to honor labor and celebrate the sacrifices that labor made, these guys [the state Workers' Compensation Board] released this draconian set of guidelines," said attorney Pasternack. "This proposal will kill workers' comp and devastate families throughout New York. It's an insult to hardworking people statewide."

Pasternack is the managing partner with over 40 years of experience at Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, a law firm that has represented over 100,000 New Yorkers in workers' compensation claims. New York AFL-CIO president Mario Cilento agreed with Pasternack, according to a Sept. 10, 2017 , calling the proposed changes "wholly unjustifiable."

The proposal would completely dismantle protections for workers that have been in place since the early 1900s. Such changes would "drastically reduce, and in most cases eliminate, compensation for permanent injuries to limbs, including: fractures; torn ligaments, tendons, and cartilage; dislocations; and surgery up to and in some cases including total joint replacement," according to the . Specifically, a found that:

• Average award for injured workers would be cut by 84 percent, from $18,873 to $3,023.
• 88 percent of workers would see their benefits cut to essentially zero.
• 14 out 17 workers would receive no compensation at all for a permanent injury.

In April, Gov. Andrew M. Cuomo signed into law the proposed New Permanent Impairment Guidelines, which are part of Workers' Compensation Law (WCL) § 15(3)(x), according to a . But the proposed guidelines were not published until Sept. 1, shortly before midnight on Labor Day weekend, Pasternack said, adding that the board "buried" the 81-page proposal on its website, making them "impossible to find." The .

If approved, the new guidelines will go into effect on Jan. 1. Public comment will be accepted for 45 days until Oct. 23. The Board has provided a , but Pasternack doubts the board will take such comments seriously. "The Board deliberately created a cumbersome comment link that makes it difficult for New York workers to respond. They don't want feedback. They don't want dialogue. They want to push these new guidelines through as quickly and quietly as possible."

Pasternack urged citizens of New York to directly contact the Board and politicians to express their opposition to this proposal. "The public needs to speak out and put pressure on the Board, the Governor and our legislature to stop these cruel changes from going into effect," Pasternack said. "The health and well-being of potentially every worker in New York is on the line. This needs to be stopped."

Those who do suffer on-the-job injuries would be wise to explore benefits through workers' compensation, which can cover costs for medical expenses, a portion of lost wages and more.

OSHA's Latest Regulatory Agenda

On July 20, 2017, the Occupational Safety and Health Administration announced its spring regulatory agenda. The agenda was closely aligned with President Donald Trump's stated policies of fewer worker safety regulations throughout America. According to , the following proposed regulations have been abandoned entirely, with no replacement rules in any state of proposal:

• Limits on worker exposure to combustible dust
• Safety rules for vehicles reversing on construction sites and factories
• Updated guidelines for calculations of permissible limits of chemical exposure for workers

Other rules have been moved to the "long term action list," which indicates they have little chance of moving forward. These include: emergency response and preparedness regulations; protections for infectious diseases in healthcare settings; and a series of fixes for cranes and derricks in construction sites.

Cost of Ineffective Regulations

Ineffective - or worse, nonexistent - regulations cause much damage beyond employee injuries. The economic costs of healthcare bills and lost wages hurt employers, as well. Rising premiums for workers compensation insurance can outpace the savings of a hasty workplace safety program. And employees whose job must be replaced due to permanent injuries or death bring their employers the added expense of turnover. Yet business advocates seem largely impervious to these economic realities.

"This suggests the Agency [OSHA] is taking a responsible approach to regulating and trying to focus on those areas where there is the most need," claims Marc Freedman, who is the executive director for labor law policy at the United States Chamber of Commerce. Such statements ignore the very real public health risks of, for example, infectious diseases - a health risk which is immune to politics or rules. Such a health risk will endanger hospital staff, patients, the public, and politicians alike.

Regardless of the state of current politics or federal regulation, employers are wise to protect themselves from liability by ensuring that their employees are reasonably protected against all foreseeable health risks. Not only will employers see benefits in the form of reduced turnover, but their risk management rating can be lowered, thereby reducing insurance premiums. Moreover, the New York makes specific provisions for safety in the workplace. Employers which do not follow these laws are subject to regulatory penalties (such as suspension of a business license), fines, civil lawsuits, and even criminal charges.

Employees, too, should do their part to ensure they are in a safe working environment. Make your employer aware of long-term or systemic problems. Implement personal habits (such as hand washing and wearing non-slip shoes) which will reduce your risk of injury.  Be alert for safety risks, and rectify these hazards as soon as possible.

Injured employees have legal rights which must be protected. Contact a New York City workers' compensation attorney as soon as possible after any work-related accident.

The trend of introducing drug formularies into state workers' compensation systems has become increasingly popular as the use and cost of prescription medications for injured workers has risen.

Just in 2014, prescription drug prices soared 11 percent, almost triple the decade yearly average of 4 percent.

What is a Drug Formulary

A drug formulary is a list of drugs with a reimbursement status. For example, certain drugs may be listed as preauthorized, while others may indicate they are not allowed/authorized. In some cases, certain drugs may be listed as both. On average in most formularies, about 24 percent of drugs are on the non-authorized list.

There are a few different goals with drug formularies in workers' compensation cases. Those include:

• Contain drug costs
• Improve return rates
• Reduce incidence of overprescribing (opioids in particular)

Four of the 10 most expensive drugs listed by the NCCI are opioids, including oxycontin, oxycodone, Percocet and hydrocodone.

How Opioids Can Affect Those on Workers' Compensation

Opioid use across the country has grown to what some describe as "epidemic" proportions. The specifically studied the effect on workers' compensation claims. What they discovered was that opioid use beyond treatment of acute pain can actually hinder progress, and in the long run has high rates of addiction.

launched an analysis of the issue last year, finding that a majority of workers' compensation claims involving pain medications included opioids, which are highly addictive and potentially lethal if not taken exactly as directed. In New York, 73 percent of such claims involved opioids.

Prescription opioid abuse reportedly costs employers in the U.S. an estimated $25 billion annually. But the cost to workers is even more dire, with many suffering addiction, overdoses and even death. Some have even called it "the fatal cure." Research by the Hazelden Betty Ford Foundation found that the more professional stature one has, the less likely one is to have their addictions checked.

There is some precedent for reimbursing workers or families for medication-related injuries when those drugs were taken as part of their workers' compensation benefits. Although several such claims have been denied, a few have been approved.

Other cases have arisen when workers return to work, but are continuing to take their prescribed pain medication. Those individuals may not be as mentally sharp or reflexive, leaving them more prone to suffer another on-the-job injury.

This is a common law principle holding that if you are coming or going from a routine work commute, your employer isn't benefiting from this. Therefore, your actions aren't deemed to be in the course and scope of employment.

As noted in the 1995 decision of  by the N.Y. App. Div. 3d, accidents that happen on the way to work are generally not considered to be in the course of employment. In that same case, the court ruled that in considering whether an action occurs in the scope of employment - or whether the activity is purely personal - is to determine whether the act was sufficiently related to work.

However, as our New York City workers' compensation lawyers can explain, this rule is not absolute. There are numerous exceptions that may be applicable in your situation. Determining whether you may have a viable claim will take a consultation with an experienced attorney.

Exceptions to Coming and Going

While injuries that occur during a routine commute may not be compensable, there are many cases in New York wherein an exception to this rule has been identified and applied.

One of the most common exceptions is one that involves a "special mission." This is one that involves an errand or some other trip that benefits the employer. For example, if your boss asks you to pick up coffee for the office on your way in to work and you are in an accident at that time, this may be deemed part of the "special mission" exception. Note that in this situation, if the other driver was at-fault, you would likely be able to collect workers' compensation and pursue a personal injury claim against the other motorist.

Courts have also allowed exceptions in cases where employees were operating a company-owned vehicle at the time of the commute.

Other exceptions have been allowed in cases where a worker is deemed a "traveling employee." Many workers these days carry out their actual work off-site, and may only report to a fixed location occasionally. Some examples might include:

• Home health aide
• Cable repair person
• Inspectors required to visit different sites each day

In these cases, if you report straight to one of these other destinations, you may be entitled to benefits while on your way into work - even if you weren't being paid during your commute. If you are paid for your commute time, you may also be entitled to workers' compensation.

Another exception is one sometimes referred to as the "continuous coverage" exception. When an employee travels overnight at the employer's behest, even injuries that occurred during "down time" and not actual travel might be considered to be in the course and scope of employment.

Workers who run personal errands during the work day may or may not be entitled to benefits, depending on the individual circumstances.

You Need an Attorney

While we recommend all workers' compensation claimants who suffered serious injury to consult with an attorney, those injured during a commute will need to seek a lawyer who is skilled and experienced. These cases likely will not be simple or straightforward, and will require a legal team willing to delve into the often laborious process of providing evidence to support the assertion that the injury was covered.

Uber and Lyft drivers are a significant segment born of the so-called "gig economy," where workers hired for a single task or project, typically arranged through the digital marketplace, to work on demand. This has revolutionized numerous industries, including transportation. But it has also left us with many sticky legal questions to navigate, including the issue of workers' compensation.

Rideshare companies like Lyft, Uber and Sidecar (transportation network companies) have long argued that they are not an automobile service. Rather, they are technology platforms, and as such, drivers are independent contractors, not employees. Because only employees are entitled to workers' compensation, the reasoning goes, rideshare drivers in New York aren't entitled to workers' compensation. Compelling arguments can be made for an against the employee classification.

For example, with transportation network companies, drivers:

• Use their own vehicles.
• May work for multiple companies.
• Do not work rigid schedules.

On the other hand, the rideshare companies:

• Control hiring.
• Control pricing.
• Screens drivers.
• Sets vehicle standards.

The main question typically raised is how much control a transportation network company has over the driver.

In several states, including Virginia and Alaska, rideshare drivers are specifically excluded from workers' compensation coverage.

In California, however, the California Labor Commissioner's Office determined in 2015 Uber drivers are employees, not independent contractors, but Uber has been fighting off employment lawsuits in that state left and right. In two multi-million-dollar settlements reached last year, Uber agreed to pay $100 million to 385,000 drivers in Massachusetts and California, but on grounds it would continue to classify workers as independent contractors. The state of California continues to lean toward classifying drivers as employees.

In New York, meanwhile, rideshare drivers have access to a , which offers workers' compensation coverage to companies who are participating members. Uber is required to participate, and fares are 2.5 percent higher to cover the fee.

The new bill would require all rideshare companies to participate in the Black Car Fund, thereby ensuring all rideshare drivers will have workers' compensation in New York City.

For purposes of workers' compensation, the fund acts as the driver's "employer," per New York statutes. According to the site, the non-profit organization offers coverage of medical expenses and lost wages to ensure the city's for-hire drivers can be covered in the event of a job-related injury. There are approximately 300 member bases throughout the state, covering 70,000 drivers.

The governors' office reports the new budget also allows transportation network companies to operate across New York and sets uniform licensing standards, granting the Department of Motor Vehicles with broad oversight to ensure adherence to traffic safety laws, anti-discrimination protections, background checks and zero tolerance policies on alcohol and drugs.

Finally, a state board will be founded to review the impact of the newly-authorized expanded industry throughout the state.

However, employers they clearly need to help them recover and get back to work. This is not a new problem.  detailed the issue as it pertained to the state workers' compensation board back in a 2009 series, "A World of Hurt," noting that what workers discover is a "subbasement of the legal world, a $5.5 billion-a-year state-run bureaucracy that struggles to treat workers with due speed ... or mute tensions in the workplace." The Times noted after an 18-month investigation that injured workers sometimes wait months or years for the appropriate money or care.

These issues have been ongoing. Without prompt, adequate medical care, workers are delayed in their recovery, and thus in the return to their jobs. Worse, Medical Treatment guidelines outlined by the state's workers' compensation system may limit the type of care authorized on the basis of, "best practices," as opposed to what the treating physician actually recommends.

That's where our New York City workers' compensation attorneys can step in to help. We fight to ensure you receive fair treatment - and the care to which you are entitled.

New York is not alone in grappling with this problem. In California,  reports are that denials of medical treatment for work-related injuries are at an all-time high.

Although that state doesn't track data on the number of medical treatment requests that are approved vs. denied, there is ample anecdotal evidence to suggest workers are having a difficult time getting the process to move at a reasonable pace. One of those was a 13-year veteran of the state's highway patrol, who was injured at work while patrolling on his motorcycle after being struck by a drunk driver. The driver made a sudden left turn of him and slammed his motorcycle into a nearby car. He has grappled with chronic pain ever since. Despite suffering a clear on-the-job injury, he says, he has not been approved to receive sufficient medical treatment that would allow him to fully recover from those injuries. His doctors have made more than 300 requests for treatment - from a $30 heating pad to surgery - and all have been denied.

His doctors say that if he had received the appropriate medical treatment immediately, he'd probably be back to work by now. Instead, he's considering medical retirement.

In New York, there have been a number of efforts to update the system to make it more efficient, but most of those have faltered. In 2007, weekly benefit caps were increased from $400 to $800, although the trade-off was that most workers were cut off from receiving any benefits after 10 years. A major problem with that, though, is that cases may run longer because they take years to finalize and adjudicate before special administration judges.

Last year, the Republican-led Senate and Democratic Assembly rejected changes to the Workers' Compensation Board in their respective budget proposals. Those changes were aimed at increasing the speed of workers' compensation case dispositions, but union leaders argued they were unfair to workers. They railed against proposals that would give employers more leverage in dealing with claims, specifically those that involved employers having more of a say in which doctors injured workers could use.

If a nurse sustains injury in a hospital setting, he or she should be eligible to receive workers' compensation benefits. Nurses can get covered for many different kinds of physical injuries that are suffered on-the-job. If a healthcare professional is made sick as a result of the performance of work duties in the healthcare field, workers' comp benefits should also be available to provide coverage for treatment of the injuries as well as disability benefits.

There are a wide variety of different kinds of workplace illnesses that could happen and could result in a nurse being entitled to receive benefits through workers' compensation. Some of the most common causes of injury for nurses include:

• Overexertion injuries: Nurses must lift, position, and transfer patients. Some of those patients are heavy. Safely handling patients is essential, but even when following best practices, some nurses will suffer overexertion injuries. Injuries due to strains and sprains are responsible for 54 percent of injuries sustained by healthcare workers which cause them to take days away from work.
• Illnesses from exposure: Nurses can be exposed to dangerous contagious pathogens. This can occur through an accidental needle stick or when interacting with and providing care to patients. The most common illnesses which healthcare workers are diagnosed with include skin disorders and respiratory conditions.
• Acts of violence: Violence has become a major problem for healthcare workers, who are around five to 12 times more likely to suffer an act of violence at work compared with the average private sector work. reported Occupational Safety and Health Administration (OSHA) is currently working on a workplace safety standard which would standardize the steps employers must take to try to protect healthcare workers from acts of violence that occur on-the-job.
• Slips and trips: Nurses can slip when they are trying to move patients, or as a result of slippery floors or cluttered spaces in healthcare setting. OSHA indicates slipping without falling is more common than slipping and falling, but both cause days-away-from work for nurses and other healthcare professionals.

If you suffer these types of injuries, or any others, while working as a nurse, you should find out  about your right to receive workers' compensation for nurses. A legal professional can help.

If you cannot work due to a workplace injury, you may face financial hardship and have a difficult holiday season. Workers' compensation is supposed to protect injured workers from financial hardship, but workers' comp programs are not working as effectively as they should be.  Workers face harm over the holidays as a result of the failure of states to protect their rights after an injury.

In New York, workers get lost wages benefits if they are totally disabled or partially disabled due to their work injury. These benefits begin once the worker has missed at least seven days of work. Benefits received are based on how disabled you are. For example, workers get 2/3 of their average weekly wages if they are 100 percent disabled. If they are only partially disabled, the 2/3 of their weekly wage amount is multiplied by the percentage of disability to determine the amount of benefits they are entitled to receive.

Not having your full salary coming in can be a big hardship as you try to cope with holiday costs. Unfortunately, in recent years, things have become worse for injured workers within New York. ProPublica published a report indicating states were changing their laws in ways that hurt workers, either by making it harder to qualify for workers' compensation, by making it harder to get specific needed benefits, or by reducing coverage. ProPublica identified 33 states where benefits were cut, and  makes clear New York was one of those states.

The situation with states cutting benefits has become serious enough to prompt federal lawmakers to take action. reported 10 democratic senators sent a letter urging action in the wake of the ProPublica research.  To respond to the senators, the Department of Labor put together a report with several proposals for change.

The Department of Labor suggested a commission could be put together to set minimum standards for the state programs administered to protect workers hurt on-the-job. There were such commissions in place in the 1970's during the Nixon era. If the commission discovers a state's program is providing inadequate protection to workers by falling below standards, this could prompt federal intervention.  Department of Labor also suggested congress could create basic minimum guidelines for workers' comp and failure to conform to the expectations would result in federal oversight of the stat's workers' comp program.

These types of changes on the federal level aren't likely any time soon as the federal government grapples with the results of an election in which the executive branch transitions from President Obama to President Elect Trump. Unfortunately, workers may continue to suffer if no changes are made to stop states from cutting benefits.

This leaves many wondering, how did this happen? According to a recent , the answer is actually quite simple. Because there is no federal standard in workers' compensation laws, states have been able to create loopholes and pass legislation that have limited benefits for workers and have made it more difficult to get their claims approved.

This report has been well-received by employees as well as all those who fight for workers' rights. But the idea of federal intervention is not welcome to many, particularly employers and insurance companies. They argue that there has never been federal oversight in the workers' compensation system since it was first implemented 100 years ago, and that there is no need to for federal involvement now.

"However, changes and improvements to the workers' comp system should be debated at the state level, where whatever policy balance results, can be more readily fine-tuned as circumstances require," said Bruce Wood, vice president of the American Insurance Association (AIA).

In response to the report, the U.S. Labor Department called for the exploration of standards that would trigger federal oversight when not met.

The report itself stops short of recommending direct administrative or legislative action on the federal level. But Sen. Sherrod Brown, D-Ohio, said he was drafting legislation to "address many of the troubling findings."

The right to fair compensation

Employees in every state have a right to fair compensation after they are injured on the job. Laws that make it more difficult to file a claim and even harder for injured workers to get the compensation they need, are detrimental to all who rely on those benefits.

Depending on the severity of the injury, an employee might be out of work for weeks or months. During that time, they should be focused only on their recovery. But without proper workers' compensation benefits, they could be facing insurmountable debt and even foreclosure of their home or other property. Implementing federal oversight for workers' compensation programs could prevent more people in this country from facing poverty after a workplace injury and ensure that they get what they need to heal completely.

A building boom in New York City has resulted in many more workers getting hurt on construction sites. Something needs to be done about the rising number of people being injured or killed.  New efforts to hold general contractors accountable for problems would be a step in the right direction. Workers also need to make sure they understand their rights so they can pursue an appropriate claim if they are harmed while on a worksite.

The recent case in which the general contractor was fined arose from problems with scaffolding. Workers had put scaffolding up on a 23-story hotel project in Manhattan.  There was inadequate fall protection provided at this scaffolding area. Employees who were doing work without the right fall protection equipment were in danger of falling as much as 26 feet.

Because of the significant dangers presented by the lack of fall protection, the Occupational Safety and Health Administration levied a substantial fine against the contractor. The company was fined $249,900 for willful and serious safety violations.

OSHA fined the general contractor in 2013, but the company appealed. In the appeal, two arguments were made: the company claimed they had attempted to correct the unsafe conditions and also claimed their executives didn't know about what was going on.

The judge rejected these arguments and upheld the fines. The judge indicated the general contractor was aware of the absence of fall protection on the dangerous scaffolding and indicated the general contractors were in a position where they could (and should) have ordered subcontractors to ensure the worksite was safe. The general contractor was the "controlling employer" and was expected to take responsibility for what was going on.

The regional administrator for OSHA in New York expressed approval of the judge's decision, commentating the decision reiterated an important fact: "Employers cannot ignore their legal responsibility to safeguard their employees and adhere to workplace safety standards."

OSHA has increasingly been holding general contractors accountable. For example, in one recent case, five different contractors received fines of $115,200 because of a myriad of safety hazards on worksites for which the contractors were considered controlling employers.

A New York City general contractor was also found guilty last year of manslaughter, criminally negligent homicide, and reckless endangerment. Although general contractors aren't present every day on worksites, they will need to know what is being done on the sites they are in charge of developing.  A local district attorney commented: "managing a project from afar does not insulate a corporation or general contractor from criminal liability." This is an important rule for NYC contractors to keep in mind.