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The Workers’ Compensation Board issued a bulletin regarding the training opportunities on the new medical treatment guidelines, which go into effect for dates of service on or after Dec. 1.

The new guidelines change the manner medical care is provided to injured workers for the middle and low back, neck, shoulder, and knee. With few exceptions, all treatment in accordance with the guidelines will be pre-authorized. This is a new process that involves new procedures and new revised forms. The board is encouraging medical providers, insurers, legal professionals, and their staffs to take available training to ensure a smooth transition. Free web-based training is available on the board’s website. Those with questions may call the board’s bureau of health management at (800) 781-2362. For a copy of the bulletin, visit www.wcb.state.ny.us/content/main/SubjectNos/sn046_445.jsp.

The board also has proposed updates to the medical, podiatry, chiropractic, and psychology fee schedules to be effective Dec. 1. The changes increase the fees for evaluation and management services by 30 percent in the medical fee schedule; change the chiropractic fee schedule to allow for separate billing of treatment modalities rather treating such treatment as part of evaluation and management services; modify the ground rules to be consistent with the medical treatment guidelines that will be in effect as of Dec. 1; adjust for new, modified, and deleted current procedural terminology codes; and change minor typographical clarifications to the previous fee schedules. For information on the proposed rule, visit www.wcb.state.ny.us/content/main/wclaws/Proposed/Proposed_FeeSchedules.jsp.

The New York State Domestic Workers Bill of Rights, the first in the United States, becomes law today — Nov. 29.

By amending the Human Rights Law, Workers Compensation Law and Labor Law, the state government gave the more than 200,000 domestic workers in the metropolitan area — housekeepers, nannies, home aides — a package of limited rights and benefits previously denied them.
Limited Protection

The measure provides statutory protections from harassment, mandates for overtime pay, a six-day (or shorter) workweek and three paid vacation days after the first year on the job even if there is only one employee in a household instead of four under prior law. The changes will extend disability benefits to employees who work fewer than 40 hours per week. While the new laws apply to employees who do some work on an ad hoc, or casual, basis, they do not extend to the teenager who baby-sits once in a while or the person hired to clean out closets every spring. The Human Rights Law will prohibit “unwelcome sexual advances,” seeking “sexual favors,” or verbal and/or physical conduct which tends to be a condition of employment or creates an “intimidating, hostile or offensive work environment.”

Overtime pay is defined as one and one-half times the hourly pay over 40 hours; for live-in domestic workers (who may be present to assist elderly or disabled persons day and night), it is 44 hours. In barring a seven-day work week, the Bill of Rights does not require, but does encourage, allowing that that the day off be the worker’s Sabbath or day of worship.

The bill of rights protects workers against discrimination on the basis of sex, race, national origin and religion, but does not extend that to some of New York’s other protected classes, such as those discriminated against because of age, sexual orientation or marital status. Nor is the Bill of Rights about discrimination in hiring, salary issues or other conditions; it covers only what is specified.
A Change in Attitude

Organizers working with a coalition of non-profit groups fought for paid sick leave or sick days, vacation days and severance pay but won none of those benefits. While they did not succeed in getting their entire agenda passed, the changes do represent some shift in attitudes toward those who work in other people’s homes, almost all of whom are minority women employed at the lowest pay scales, often working under difficult and demeaning conditions. According to Joycelynn Campbell, organizing coordinator for Domestic Workers United, 93 percent of domestic workers are women, 95 percent are women of color and 99 percent are immigrants, mostly from Caribbean and Latin American countries.

The new benefits are minimal compared to those that unions regularly negotiate for their members, and are less than what was sought by the 10-year old, non-profit organization Domestic Workers United. Union membership and collective bargaining are explicitly unavailable to domestic workers. The Bill of Rights requires an investigation into the feasibility of a union being established and recognized by the state Employment Relations Act, which applies to private employment.

According to the domestic workers law, the labor department was to examine and report on whether an employee organization could be formed in accordance with the State Labor Relations Act; how bargaining units could be formed; whether there are issues unique to the domestic work context; and alternative frameworks for collective organization., and the unionizing portion has not been released. So far, the state Department of Labor has not authorized unions for these workers.

A report has, however, been issued rejecting several other demands. In addition to the collective bargaining issues, the legislature directed the Department of Labor to consider sick leave, notice of termination and severance pay. All were rejected.
Getting the Word Out

Whether and how covered employees will be made aware of the protections and benefits without a union may depend in part on the good will of and information provided by their employers. Information on the workers’ new rights will be available on Domestic Workers United website. The group is considering using billboards to get the information out.

Enforcement will require workers to file complaints about violations with the state, but it may be that, even when employers are not in compliance, employees will be reluctant to make formal complaints or will remain unaware of their options.

This could be a particular issue for the affected workers who are undocumented immigrants. The legislation does not address them or their employers. Campbell of Domestic Workers United said, “Immigration is not an issue. Our members are not afraid of speaking out. They have been educated about their rights, and these are workers’ human rights.”

Legal representation is available pro bono through NELA, the National Employment Law Association and today, as law goes into effect, Domestic Workers United will announce the opening of its legal clinic at 1201 Broadway (Suite 807-8) in Manhattan.

A complaint of harassment or abuse filed with the Department of Labor could expose the employer to further filings if they have, for example, not paid unemployment and disability insurance or workers’ compensation, as well as state and federal taxes.
Emily Jane Goodman is a New York State Supreme Court Justice

It didn’t take very long for the Department of Labor and Industries to calculate 2011’s workers’ compensation rates. You may remember the imbroglio that ensued after L&I declined to issue its proposed 2011 rates due to the changes that Initiative 1082 may impose (calculating premiums based on employee payroll, as opposed to hours worked). But since I-1082 was defeated last week L&I wasted no time in issuing the verdict: a 12 percent average rate increase. This follows the 2010 rate increase of 7.6 percent.

The new rate takes effect on January 1, but the Department will hold public hearings in January to gather comments before adopting the 12 percent as a permanent rate.

This news comes just weeks after the Employment Security Department announced a roughly 40 percent increase in unemployment insurance for 2011, after a 40 percent increase from 2009-2010. So, all-in-all, a rough stretch for the business community.

Premises liability is a broad area of the law that involves a person being injured or harmed in some way due to a defect that exists on a property. Examples of premises liability cases include slips and falls, or trips and falls, due to snow and ice; a slippery surface; a defect such as a  pothole, broken stair, cracked or uneven sidewalk; falling objects; security issues or other defective conditions.

The general rule regarding liability in a defective premise case is that a duty of reasonable care is owed to persons utilizing the property. Generally speaking, liability for an injury due to a defective premises does not depend on just ownership or title to the affected property but on possession, care, custody or control. The standard of care that is required of the possessor of land and the duty to warn depends upon the classification of the injured party. There is a limited duty owed to a trespasser, a duty owed to children where an attractive nuisance is involved is much greater and different duties of care are owed to licensees, guests, and business invitees.

To hold a defendant liable in a defective premises or negligence case, a plaintiff must prove by a preponderance of evidence: (1) The existence  of defect; (2) That the defendant knew or in the exercise of reasonable care should have known about the defective condition; (3) That the defect existed for such a length of time that the defendant should have, in the exercise of reasonable care, discovered and remedied this condition and (4) That the plaintiff’s injuries and resulting damages are casually related to the defective condition.

One of the major issues in premise liability cases is constructive notice. Constructive notice is not actual notice but notice that the Defendant should or could have known which can be proven through the use of circumstantial evidence. In order to determine liability in a defective premises or premises liability case there are a number of issues that should be investigated:

The Presence of Icy or Slippery Outdoor Stairs or Surfaces:

The mere presence of snow and ice does not necessarily establish negligence on the part of the owner or possessor of the property. In Connecticut, the general rule is that a property owner may wait until the end of a storm and a reasonable time thereafter before removing the snow and ice from outside steps, walkways or surfaces. A weather issue or ice and snow contributing or causing a fall could be the basis of an allegation of negligence.

Property Defects or Building Code Violations:

There could be a one of a number of building code violations which cause or contribute to the fall or accident. A building code expert or engineer could render a decision as to the correctness of the stair length or depth, the type, dimensions and locations of the handrails or other variations of code requirements. If the steps are improperly built or are not up to the standards of the building code then this could give rise to an allegation of negligence.

Defective or Poorly Maintained Surfaces:

If stairs or other surfaces that are defective are poorly maintained or are not kept in a good state of repair these situations might be grounds for allegations of negligence.

It is important if you are involved in a slip and fall or other type of premises liability accident case that all of the potential causes of the accident and the corresponding allegations of negligence be properly investigated and developed so that your rights are protected.

ALBANY, N.Y., Nov. 8 — The Property Casualty Insurers Association of America issued the following news release:

In a letter to the New York State Workers Compensation Board, the Property Casualty Insurers Association of America (PCI) expressed concern that proposed changes to the workers compensation medical, podiatry and chiropractic fee schedule could have unintended negative consequences for the state’s no-fault automobile system.

New York’s workers compensation fee schedule is applicable to services rendered under no-fault coverage. As result, the proposed fee schedule changes, which carry increases for certain services such as a 30 percent increase in Evaluation & Management fees and changes to the way chiropractic services are billed which will result in increases of between 30-42 percent, would impact auto insurance rates.

“Although some updating of the workers compensation fee schedule may be warranted, the proposed changes could lead to significant cost increases for motorists,” said Kristina Baldwin, assistant vice president for PCI. “In addition to potentially increasing auto insurance costs, increasing fees required to be paid to medical care providers may make New York’s no-fault system even more attractive as a target for fraud, thereby exacerbating the problems plaguing the system. The no-fault system is already fraught with fraud and abuse, much of which is perpetrated by medical providers. Against this backdrop, an increase in certain medical provider fees raises great concern.”

In the letter to the Workers Compensation Board, Baldwin highlights how medical claim costs have skyrocketed for auto insurance. Since the end of 2004, the average amount paid for medical claims related to auto accidents in New York rose by 60.4 percent, 31.2 points faster that the 29.2 growth rate of all other no-fault states and nearly 42 points faster than the 18.6 percent growth rate in the consumer price index cost of medical goods and services found in the region.

“We attribute much of the disparity in no-fault medical costs to fraud,” said Baldwin. “Related to the fraud problem is our concern that the no-fault system does not have the variety of cost containment tools found in the workers compensation system to guard against overutilization, which is a highly prevalent problem in the no-fault system. We are urging the board to take into consideration that the dramatic increases in the workers compensation fee schedule may have a real impact on no-fault costs.”