The members of the law firm of DiNardo & Metschl, P.C. have represented construction workers and serviced the building trade unions for more than twenty-five (25) years.
The firm is comprised of Emil R. DiNardo, Daniel R. Metschl, James A. Verrico, and Rachel A. Roth. With E. Michael Semple of counsel to the firm, and Kathleen Kotarski, Liesl Souter and Gerry Nadolny providing paralegal and investigative support, the firm is well-equipped to offer complete legal representation to its clients.
DiNardo & Metschl, P.C. is a civil litigation firm, with its primary focus in the area of personal injury. The firm represents persons who have been injured on constructions sites, in automobile accidents or through the use of defective or improperly designed products. The firm also represents injured persons who seek Workers’ Compensation and Social Security Disability Benefits. With satellite offices in New York City, the Southern Tier, Syracuse and Albany, the firm is ready and able to respond immediately to the litigation and representation needs of its building trade clients throughout New York State.
Construction work is a dangerous occupation due to the constant exposure to heights, to heavy machinery and to the frequent presence of unsafe working conditions, practices and procedures. This manual outlines and provides brief explanations of the rights and remedies available to the injured construction worker.
I. NEW YORK STATE WORKERS’ COMPENSATION BENEFITS
Workers’ Compensation benefits are available to individuals whose disability or death arises out of a work-related accident, without regard to who may be at fault in causing the accident.
A. RIGHTS AND RESPONSIBILITIES UNDER THE WORKERS’ COMPENSATION ACT
It is critical that you report the details of any workplace accident to your foreman or supervisor as soon as possible. Insurance companies can and do deny and delay benefits based on the failure to report an accident timely.
You have the right to prompt, reasonable and proper medical care, from the physician of your choosing, to cure or relieve the effects of your work-related injuries or diseases. This includes medical, surgical, nursing and hospital services. Also, you are entitled to be reimbursed for any reasonable transportation costs incurred in obtaining medical treatment.
WAGE LOSS BENEFITS
You have the right to weekly compensation benefits, which may be claimed as long as disability and wage loss continue. These compensation benefits may be paid at a total or partial disability rate depending upon the extent of your disability. Also, you may be entitled to a schedule or lump sum award for permanent disability.
Prompt payment of benefits is required by law. In cases not in dispute in which lost time from employment exceeds seven(7) days, the first payment is due within eighteen (18) days after a disability begins or within ten (10) days after the employer receives notice of the injury, whichever is greater.
RIGHT TO HEARING
If you feel that you are being denied rights provided by law, you are entitled to a hearing before an administrative law judge, and you have a right to be represented by legal counsel at all hearings.
If you are unable to perform all work for which you had previous training or experiences, you are entitled to vocational rehabilitation, including counseling, guidance, specialized job placement and short-term retraining.
The Law protects an injured worker who seeks to claim compensation for disability resulting from an on-the-job injury. It is unlawful for an employer to discriminate against a worker who has or aids in a claim for compensation.
B. WHAT TO DO IN THE EVENT OF AN ON-THE-JOB INJURY
STEP 1. MEDICAL CARE
Obtain first aid or other necessary medical treatment as soon as possible. You have a right to choose your own physician, podiatrist or chiropractor to treat you provided that he or she is authorized by the Workers’ Compensation Board to treat the type if injury incurred. Necessary treatment will be paid directly by your employer or your employer’s insurance company if the case is not disputed. If the case is disputed, hearings will be held to determine, among other things, the responsibility for medical bills.
STEP 2. UNION REPRESENTATIVE
Contact your union steward and union hall as soon as possible. They will be sure to protect your rights, as well as assist you in obtaining medical help, sickness and health benefits, and legal advise.
STEP 3. ACCIDENT REPORT
You must notify your supervisor or foreman, verbally or in writing, of the injury as soon as possible. If you fail to inform your employer, in writing, within thirty (30) days after the date of the accident or within ninety (90) days after your disablement from an occupational disease, such as carpal tunnel, or after you learn that such a disease may be due to the nature of your work, you may lose your right to Workers’ Compensation benefits. Your employer may require you to complete an accident report. If so, be careful in filing the report. This report should be concise and accurate and should list each and every part of your body that was injured, even if you believe the injury to be slight.
STEP 4. STATEMENTS
You are required to complete a claim for Workers’ Compensation Benefits on Form C-3. This C-3 form should be provided to your employer and mailed to the nearest office of the Workers’ Compensation Board. If this is not done within two (2) years from the date of accident causing the injury, or from the date of disablement from an occupational disease, you may lose your right to benefits. (If Form C-3 is not available from your union hall or employer, it may be obtained writing to or calling our office or the nearest office of the Workers’ Compensation Board.
You are not required and should not give a statement to any person representing an employer, contractor or their insurance representatives without first obtaining legal advise. The simplest advise is: never give a statement. In the event that you choose to give a statement, it should only be done in the presence of your union representative or your attorney. Once tape-recorded or signed, that statement can be used against you at a later date, even if you gave the statement while you were under the influence of sedatives for pain or laid up in a hospital bed. Therefore, a statement should not be given except after consultation with your union representative or attorney.
STEP 5. KEEP RECORDS
It is important that an injured worker keep accurate records of any out-of-pocket expenses incurred as a result of an injury. Also, dates, times, medical treatment or hospitalization, transportation costs and mileage, names of witnesses and a general outline of the ongoing disability, pain and suffering, and change in lifestyle that has resulted from the injury are important to record. This handbook and daily log can prove effective in meeting these needs.
II. THIRD-PARTY LEGAL ACTION: AN ADDITIONAL RIGHT
The passage of the Workers’ Compensation Laws eliminated the right of an injured worker to sue his or her employer. However, in recognition of the fact that construction work is one of the most hazardous occupations in the nation, the State of New York enacted laws which permit injured construction workers to sue property owners, and their contractors, if there was a failure to provide proper protection or a safe place to work to the injured worker.
Since New York’s Workers’ Compensation benefits are some of the lowest in the nation (maximum weekly benefit is $400.00), a civil lawsuit is the only way an injured worker will receive adequate compensation for lost wages, lost pension benefits, future medical care and pain and suffering.
There are certain conditions and time limits which may effect when, and if, you can sue for civil damages. In most instances, you have three (3) years from the date of your accident to commence a suit. For instance, if you are injured on a State project, you only have ninety (90) days from the date of your accident to notify the State that you have a claim. Failure to notify the State within that 90 days may preclude you from the State. Thus, it is very important that you contact your Business Agent or our office as soon as possible after an accident, so that your rights under the law are protected.
III. OTHER SOURCES OF INCOME
If your compensation claim is contested by the insurance carrier or if you are disabled by an off the-job injury or illness, you may be eligible for disability benefits. This system provides less money for mor limited periods than the Workers’ Compensation system, (maximum is $170.00 per week for 26 weeks).
If you are disabled from performing construction work, but can perform light duty (partial disability), you may be eligible to receive Workers’ Compensation benefits and Unemployment benefits. As long as you are ready, willing and able to work within your restrictions, and you are NOT receiving Workers’ Compensation Benefits at the total disability rate, you may apply for and receive both benefits.
SOCIAL SECURITY DISABILITY INSURANCE
This is part of the Federal Social Security system. You must have made payments through your job. It is intended for people with long-term total disability or permanent disability. To be eligible, if you are thirty-one (31) or older, you must have contributed to the Social Security for at least ten (10) years. The necessary time in this system is reduced for workers under thirty-one (31). The disability requirements are very stringent. You must be able to document that you are unable to work. Benefits are based on your average earnings over a period of time. If you then receive Workers’ Compensation benefits, your federal disability payments may be reduces.
Workers’ Compensation includes medical care cost, but the disability system does not. If your bills are very high and your family income very low, you might be eligible for Medicaid, a state program for people unable to pay doctor bills. Even if you are receiving medical care through the compensation system, your drop in earnings might make other members of your family eligible for Medicaid. Check with your city or county Department of Social Services.
If you and your family are trying to live on only your cash benefits, your income might be low enough to qualify you for food stamps. This federal program is administered by local social services departments.
Check with your local union to see if you are entitled to any union-related sickness and health and welfare benefits.
IV. DO I NEED A LAWYER?
Once an injury has occurred and after receiving medical attention and contacting your union representative, the question always arises, “Do I need an attorney?” You should always week the advice of your union representative and/or an experienced labor law attorney before answering this question. As outlined above, you need not settle for the limited benefits provided by the Workers’ Compensation system. The Legislature of the State of New York has provided you with an additional comprehensive civil remedy under the New York State Labor Law to recover full damages for work site injury.