New York Law Blog

Yet another fatal construction accident took place in New York City this month as a building maintenance worker fell 30 feet from a ceiling he was repairing on Third Avenue in Midtown. The worker fell from a loading dock lift and proceeded to strike his head on a garbage compactor below. According to a friend of the worker, the man was simply reaching for a light switch when he fell, and the friend classified the incident as a “freak accident”. But in reality, do freak accidents really exist? Even a benign accident of this nature could mean that safety codes were not taken into consideration in the area of the accident. Jeffery Lichtman, senior partner at Trolman, Glaser, and Lichtman, weighs in on the nature of such accidents:

As shocking as a story like this may initially appear to be, the reality is that these kinds of “freak accidents” occur in our city quite frequently. The simple fact that this building maintenance worker was inside a loading dock area and was able to fall out while reaching for a light is indicative of improper safety regulations.

From the investigations thus far, it is unclear exactly who was at fault here, but given my own experience with these kinds of accidents, it is typically due to a failure to adhere to the mandates of the labor law of the state of New York.

The story about Long Island Rail Road retirees collecting disability benefits is heating up after it was discovered that some were seeking disability payments from private insurers also. According to the New York Times, close to 97 percent of retired LIRR workers are receiving disability payments from the federal Railroad Retirement Board on top of their normal retirement package. Apparently now some of those retired employees are seeking private disability payments as well.

On Tuesday the railroad gave the state attorney general, Andrew M. Cuomo, and the inspector general of the Metropolitan Transportation Authority evidence raising the possibility that hundreds of its employees were buying private disability insurance policies knowing that the federal railroad board would declare them disabled.

In referring the matter to state investigators, L.I.R.R. officials said their suspicions were raised by two types of disability insurance purchased by railroad employees. One is a general, short-term disability policy; the other guarantees payment of auto loans, credit card debts or personal loans in the event the policyholder is unable to work.

L.I.R.R. officials wrote to the investigators that the pattern of insurance policy purchases “raise a concern in light of the high rate of disability pensions awarded by the R.R.B.”

The disparities were found after the Times invoked the Freedom Of Information Act and the LIRR went to investigate how many employees are using private disability insurance. The initial story by the Times seems to have been the impetus for the fraud investigation:

Two days after The Times first reported that virtually all career L.I.R.R. employees were getting federal disability payments after retiring, federal agents raided the Long Island office of the retirement board, seizing records and computers. Mr. Cuomo’s office has been issuing subpoenas to people associated with the granting of federal disability pensions.

Many veterans of the Iraq war are finding themselves being misdiagnosed with a variety of ailments instead of the one they really have: some form of Traumatic Brain Injury. Also known as varying level of concussions, soldiers are being told they have varying forms of Post Traumatic Stress Disorder instead of being diagnosed with the debilitating brain injury they more than likely have. Along with the misdiagnosis comes the incorrect disability payment leaving some of these soldiers out in the cold when in fact they need help for the brain injuries they have suffered.

Mr. [Kevin, injured in a roadside bomb attack] Owsley is part of a growing tide of combat veterans who come home from Iraq and Afghanistan with mild traumatic brain injuries, or concussions, caused by powerful explosions. As many as 300,000, or 20 percent, of combat veterans who regularly worked outside the wire, away from bases, have suffered at least one concussion, according to the latest Pentagon estimates. About half the soldiers get better within hours, days or several months and require little if any medical assistance. But tens of thousands of others have longer-term problems that can include, to varying degrees, persistent memory loss, headaches, mood swings, dizziness, hearing problems and light sensitivity.

These symptoms, which may be subtle and may not surface for weeks or months after their return, are often debilitating enough to hobble lives and livelihoods.

To this day, some veterans — it is impossible to know how many — remain unscreened, their symptoms undiagnosed. Mild brain injury was widely overlooked by the military and the veterans health system until recently.

Mr. Owsley’s request for a Purple Heart, given to troops wounded or killed in action, was denied by the military, a devastating blow. Others say that their mild brain injury entitled them only to low disability payments, or, if the diagnosis was inconclusive, to none at all.

Army scientists are working on understanding brain injuries better so that they may diagnose any issues more easily, but it may be too little too late for soldiers who have suffered severe personal injury at the hands of bomb blasts in Iraq. Misdiagnosis is also leaving many veterans unable to work, pay their bills, and provide for their families. Veterans Affairs has now stepped in for better screening procedures for those going overseas as well as those coming home.

It was not until 2006, three years into the Iraq war, that the Departments of Defense and Veterans Affairs began to pay close attention to mild traumatic brain injuries. The Pentagon last year opened the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury, a clearinghouse for treatment, training, prevention, research and education. This year it is spending a record $300 million on research for traumatic brain injury and post-traumatic stress disorder.

“We are more attuned to brain injuries now,” said Lt. Col. Michael Jaffee, the director of the Defense and Veterans Brain Injury Center. “There has not been as aggressive an effort before.”

That effort begins with screening. As of May, service members who deploy longer than 30 days will undergo neurocognitive testing before leaving, to establish a baseline for changes that may occur later, and again upon returning. At the same time, soldiers in battle who lose consciousness or feel dazed after a blast or other event must be screened by a medical provider and are either approved for duty in the field, told to rest for several days on base or sent to Landstuhl for further evaluation.

And what to do if the military is neglecting some of these soldiers? Some are considering going to federal court over the issue.