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Articles Posted in Workplace Accidents

If you are like me, about 50% of your conscious life these days can be summed up in one word: corona-virus.  President Trump declared a national emergency yesterday.  We are urged to engage in “social distancing”, to avoid crowds, wash our hands thoroughly and frequently, and to refrain from touching our face.

What is Michaels & Smolak doing to keep its staff, clients and others safe?  Here’s our current policy, which is still evolving to meet new developments:

Staying informed

scaffold-300x200If you walk into a Syracuse, New York pub on a Friday at 5:20,  and you happen upon a group of personal injury lawyers having an end-of-the-week beer, you might hear them rant about how unfair some New York personal injury laws are.  For example, unlike most States, New York does not allow the immediate family of a wrongful death victim to receive compensation for their grief and heartache at losing their loved one, even if that loved one is a child.  A millionaire drunk driver ran over your thee year old?  Tough luck, mom.  Was he supporting you economically?  Of course not, so you don’t get economic loss recovery.  So what if he was the most important thing to you in the whole world, and your life has been destroyed by losing him.  No compensation for your grief!  You might settle that case for a few thousand dollars, but not the millions it is really worth. Very unfair!

But New York personal injury law has its upside, too.  For example, unlike any other state, New York has something called “the scaffold law”, also known as Labor Law section 240.  That law allows construction workers and others who fall from heights – and  in some cases upon whom objects fall — to get full compensation for their injuries.  This compensation goes far beyond mere workers’ compensation.  The injured fallen worker can sue the general contractor and owner of the construction project for real money, including pain and suffering compensation.  Usually, the case will involve a ladder or scaffold that failed, but can also involve a worker falling because he was not provided with adequate fall protection, such as a harness or barrier.

But here’s the real kicker, and here’s why New York construction accident lawyers like me just love Labor Law section 240:  The injured worker gets fully compensated even if the fall from the height was partially his own fault, as long as Labor Law section 240 was violated.  And Labor Law section 240 is violated almost anytime a construction worker falls from a height, whether because the ladder or scaffold or harness failed, or because such safety devices were not provided, or because proper barriers were not in place.

mountain-of-trashI was sad to learn of the accidental death of a Seneca Meadows employee last Saturday. Seneca Meadows is a local (Seneca Falls and Waterloo, Seneca County, NY) landfill which (controversially) takes in tons of trash from all over the Northeast.  It is a huge operation involving many machines and vehicles.  This is not the first fatality there.

The victim, employed by Seneca Meadows, was operating a “tipper machine” when he was struck by a tractor trailer being backed up to unload garbage onto the tipper machine. The driver of the tractor trailer was not employed by Seneca Meadows, but rather by another company, which is good news for the victim’s family.

Why is that good news?  Because the family — unlike the families of most on-the-job wrongful death victims — has a good chance of getting fairly compensated. Most victims of on-the-job injuries are not fairly compensated because their only resort is workers’ compensation, which offers only an embarrassingly small sum of money for the loss of a father, husband, and breadwinner.

Look at this kid! Fernando Vanegas, 19 years old. Same age as my son Sebastian, who just went off to college.  Full of life, of hopes, of dreams, just like Sebastian. Fernando came to Queens, New York from Ecuador only a year ago to reunite with his parents whom he had not seen in 15 years. As an immigrant with almost no English, the best job he could land was in the construction industry. Dangerous work. He would come home at night and tell his parents how frightening his work was; close calls involving retaining walls almost falling on him. Then, last Thursday, he did not come home. A retaining wall collapsed, burying him and two other workers in a heap of cinder blocks. He died.

He should not have died. The warning signs were all there.  The site should have been shut down. Several safety violations had recently been reported, including that the retaining wall was not stable.  The City failed to shut down the work.

Fernando was a canary in a coal mine. Now of course the site is shut down.  Now of course, at least for a while, the City will err on the side of caution, and shut down similar sites.  Shame on his employer, and shame on the City of New York inspectors, for allowing him to die under such conditions, without heeding such obvious warning signs of danger.

Construction is almost the most dangerous job in America, bested only by mining. And like mining, greed often plays a part in accidents. Companies take cost-saving shortcuts at the expense of safety to try to turn a bigger profit.

Case on point.Last Sunday a 12-ton air handling unit snapped loose from a crane and plummeted 30 stories to the street below in Manhattan. Ten people were injured. Obviously they were using a cable of insufficient strength for the job.

As a recent NYT article points out, this is only the most recent dangerous mishap this year in the New York construction industry. In fact, this year is poised to match 2008 – the year two cranes toppled in New York City claiming 19 lives – as the most deadly construction year in New York history.

Picture of Michael Bersani .jpgCan you sue for compensation beyond your workers’ compensation benefits if you are injured on the job in New York? Maybe. Find out how by watching my new video about New York personal injury lawsuits for on-the-job injuries.

Keep safe!

Mike Bersani

images[5]-13274.jpgWho wouldn’t want to be Spider-man? His outfit is so much cooler than Superman’s. And what about swinging between skyscrapers by spitting that web-gook from your wrists? Isn’t that a more thrilling way of getting around than that all-so-boring Superman extended-arm flight?

Not so fast! Be careful what you wish for. At least that’s what three Spider-man actors are saying.

Let me take you back to December of 2010, when I blogged about Spider-man’s incredible 30-foot plunge to the stage floor in a Broadway performance of the musical, “Spider-Man: Turn Off the Light”. His spider-swing-line failed, catapulting him to the stage below in front of a horrified crowd of Spider-man fans. But Spidey — as I like to call him — in true superhero fashion, recovered and returned to the show within months. The show must go on!

ladder.jpgDo you think you might be a safer driver if your traffic convictions and accidents were posted on line and easily searchable so that all your neighbors and friends could look your record up?

If your answer to that question is “yes”, then you’ll like a new rule by the Safety and Health Administration (“OSHA”) which makes companies’ safety records easily available on a government website.

Why this new rule? The shame factor. OSHA’s thinking is that if companies with a bad safety record know their record will not remain hidden is some dusty notebook in a government basement, but rather see the light of day on the world-wide web, they might think twice about cutting safety corners. In addition, prospective employees will be able to compare, when deciding which job to accept, not only the wages of the employers but also their safety records. As a side benefit, personal injury lawyers like me can build negligence cases against repeat offenders with greater ease.

chess.jpgImagine a three-way chess game where two players actually play, while a third sits by watching. Let’s call the guy watching “the watcher” (I’m brilliant!). The watcher is going to play you next. But here’s the thing: If you win the game you are now playing, the watcher will actually play you. But if you lose, then the watcher automatically wins his game against you and you automatically lose. No need to actually play that game. In other words, if you lose against your opponent, you lose against both your opponent and the watcher. But if you win, you win only against your opponent, and have to play the watcher to take a second win. In other words still, a loss makes for two losses, but a win makes for only one win.

Sound fair? Of course not! But those are the rules of the game the Court of Appeals has recently signed off on in Auqui v. Seven Thirty One Limited Partnership. And the player with the one-loss-equals-two-losses dilemma is YOU if you are an injured worker with a comp claim against your employer as well as a “third-party action” (personal injury lawsuit) against someone else.

Here’s how it works: Let’s say in both cases (comp claim and personal injury lawsuit) you are claiming you are disabled. Your workers’ comp hearing comes up before your personal injury trial. If the comp judge finds you NOT disabled, the personal injury lawsuit judge will rule you are automatically NOT disabled for the purposes of the personal injury trial, too. But if the comp judge finds you ARE disabled, you can’t use that ruling in your favor at the personal injury trial. You have to prove that all over again to the jury, who will never learn of the prior comp disability finding.

migrant worker.jpgShould undocumented Mexican and Guatemalan farm workers who cross our U.S. border illegally, work in New York illegally, then get seriously injured through the negligence of others, then file a personal injury lawsuit in New York against those others, then go back home because they can no longer work or afford to live here while they await their trial date, and then can’t get visas to get back to the U.S. for their depositions or trial, be allowed to give video-taped deposition and trial testimony from their home countries? After all, the general rule is that a plaintiff must present him or herself for depositions and trial testimony in New York where they filed the lawsuit. But still, should their cases be dismissed for failing to appear in New York when they can’t get visas to get back here, even if the visas were denied because they came here illegally to begin with?

This was the question I recently presented to a trial judge, and then to an appellate court. I argued that a “balancing of the scales of justice” required the court to allow the testimony of my injured migrant farm workers by video-conferencing from abroad. I argued that, on one side of the scale of justice, if testimony was allowed to be taken from abroad, both plaintiffs and defendants would have their day in “court”, sort of, and justice would be served, although there would be quite a bit of inconvenience to the parties and the Court, and of course it would be better to have the plaintiffs testify in person before the jury. On the other side of the scale, if the Court required plaintiffs to appear physically in Court in New York for depositions and trial, their claims would be dismissed when they failed to show up, no trial would be had, and no justice would be done.

In other words, on the one hand, there was a less-than-perfect forum for justice, but a satisfactory one nonetheless, and on the other, there is no justice at all.

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