The RGLZ Report

First Steps After A Construction Accident

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New York has special provisions to address the unique dangers faced by construction workers. Workers at construction sites are routinely subject to dangerous conditions and potentially serious injury. When a worker is injured, he/she is covered by workers’ compensation. But that is often not sufficient to cover the severe injuries that occur at construction sites. Furthermore, construction sites are usually occupied by numerous employers (contractors, subcontractors) at a time. Often, one of these third parties will be the cause of an injury to a non-employee who is working for someone else on the site.

WHAT YOU NEED TO KNOW:

Whenever you are working at a construction site, note the address or location of the site and be able to identify who hired you. If an accident occurs, take pictures with your cell phone if you can.

Contact MAKE THE ROAD as soon as you are injured. They will put you in touch with attorneys who will dispatch investigators to the scene and make sure you receive all the benefits you are entitled to.

If you are undocumented, you still have rights to workers compensation payments and are protected by the worker safety laws described below. Even if your employer has been paying you in cash, or off the books, you are still entitled to these benefits.

The worker safety laws in this state place a heavy burden on contractors and owners to provide for safety of the workers. Even if you believe the accident was your own fault, contact MAKE THE ROAD and an attorney will discuss whether you have a case.

There are various theories of recovery for construction site accidents. They are discussed below.

Negligence: Under ordinary negligence law, an injured worker may sue a third-party contractor for dangerous conditions that (1) caused the worker’s injury; and (2) that the third-party had control of and knew or should have known was dangerous. A worker’s comparative negligence is at issue in such claims, as in other negligence claims.

Labor Law 240: Under New York’s Labor Law 240, construction workers who perform work necessary or incidental to the erection or repair of a building and who do so at high elevations (on a scaffold or on ladders on tall structures) are entitled to certain safety devices and provisions. If they do not receive such devices and provisions and they are injured in scaffold or other elevation support-related accidents, in addition to workers’ compensation through their employer, they may recover against a contractor or owner who was responsible for supervising the project and providing safety devices (such as general contractor or subcontractor responsible for safety on part or all of the project). These type of accidents generally involve the worker falling or something falling on the worker that was in the process of being secured or hoisted.

Minor repair work and routine maintenance is not considered erection or repair of a building under Labor Law 240.

Examples:

  • You are a construction worker on a scaffold set up by your employer; it falls for no apparent reason. You may recover for any injuries that result.
  • You are a construction worker on the 50th floor of a high-rise project and a floor you were installing gives way. Your employer has provided an old, damaged safety harness, which fails, causing you to fall to the next landing. You can recover for your injuries even though your mistakes in installing the flooring might have contributed to your injury.
  • You are a construction worker on a roof. You fall from the roof. Your employer did not provide roof harnesses or other safety devices.

Labor Law 241: This section provides for strict liability where a contractor or other party violates certain safety codes at a worksite, and that violation results in injury. That means the worker does not have to prove the defendant was at fault (negligent) in causing the injury—the violation establishes fault. This section is not limited to injuries that result from elevation-related accidents. If you recover by making a third-party claim, you will have to reimburse a portion of the workers’ compensation benefits you received.

Example: A safety code provides that lights must be placed a certain distance apart in a tunnel a worker is excavating. The lights are too far apart. A worker trips and breaks a leg. The worker may recover by showing the code violation.

EXAMPLE: You are using a saw on the job that has no guards. The wood you are cutting “kicks back” and you lose a finger in the saw. You have a claim because the power tool was unguarded…

I have been injured in a construction accident while I was working on a construction site:

  • Notify the contractor or property owner immediately or ASAP
  • Identify by name and address if possible any witnesses
  • Seek medical attention and otherwise document your claims
  • Your time to sue is limited; contact MAKE THE ROAD for referral to a lawyer.

(Photo credit:  Ace Work Gear, http://www.aceworkgear.com/brands/portwest-workwear)

Defective St. Jude ICD / CRT-D Devices

Defective St. Jude ICD / CRT-D Devices

assura-ellipseSt. Jude Medical Implantable Cardioverter Defibrillator (ICD) and Cardiac Resynchronization Therapy Defibrillator (CRT-D) devices – Early Battery Depletion

If you are a New York user of a St. Jude Implantable Cardioverter Defibrillator (ICD) or Cardiac Resynchronization Therapy Defibrillator (CRT-D), you need to be aware of a major defect in the device’s battery that can lead to injury or death at worst, and necessitate immediate replacement of the device at best.

Due to conductive lithium deposits in the battery, it can possibly deplete rapidly enough to lose all power within a 24-hour window. This renders the device completely inoperable. Under normal circumstances, a user of one of these devices would have a significant warning as to a nearly depleted battery, and would be able to plan a replacement far in advance. The potential of a catastrophic and sudden device failure presents a situation where the typical “Elective Replacement Indicator” (ERI) signal may only come 24 hours before the device ceases to function, and many are forced to have their devices replaced immediately.

This defect is not acceptable for such a medical device, as it puts patients’ health at grave risk. Failure of the device to operate can and has led to serious injuries to users of the devices, as well as forcing premature procedures to replace the devices. If you, a family member, or someone you know has been put in this situation, or currently has one of these devices, we implore you to call us. We can help recover money for injuries or other complications stemming from these defective medical devices. We can be reached at 800-734-9445, or via email at Info@RGLZlaw.com.

Relevant FDA Notices

FDA Safety Communications
FDA MedWatch Safety Alert

The RGLZ Street Team And Motorcycle Mike ESQ Wrap Up The Summer Season

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In addition to fighting for people’s rights, RGLZ Personal Injury Law supports our local communities in many other ways. In the last few weeks, we have sponsored two local events that proved to be a great way to reconnect with the public, reaffirm our services, and give back to the communities that turn to RGLZ when they need help or just legal advice.

On September 18th, Accompsett Middle School held it’s second annual Color Run. RGLZ was a proud sponsor of the event, which supported a variety of cultural arts programs in the community. The Color Run was a 4k paint race that has no winners, but excited runners are showered with colored powder at stations along the run. Over 225 people participated and it proved to be successful in raising funds to help the children rediscover art.

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The next week, Motorcycle Mike Esq was out in support of the Nassau County Cruise to The Show, and also sponsored this 7th annual parade and car show, which was a great send-off for an awesome summer. It was a fun-filled 2-day event at Eisenhower Park, with over 1200 show cars, vendors, and even a free concert featuring Eddie Money! Motorcycle Mike gained a lot of exposure at the show, along with connecting with the community.

It was a busy and productive September for the “RGLZ Street Team”, and we can’t wait to come up with even more new ways to conduct positive outreach. Stay tuned, as we transition into the colder months of the year, and if you see us out and about, come over and say hi!

Click to check out our photo album from both events!

Winning the Battle Over Medical Record Copying Costs: The Federal HI-Tech Act

The federal Health Information Technology for Economic and Clinical Health Act (the HI-TECH Act) was passed in 2009 to promote the adoption of electronic medical records.  The Act encompasses many subjects, but some of its provisions can be used to substantially reduce the cost of obtaining electronic copies of medical records.  The Act applies to any medical provider who maintains electronic medical records, and requires a digital copy of the records be supplied at cost upon request.[i]  In practice, this results in a significant reduction in the cost of purchasing medical records.

Under the HI-TECH Act, an individual patient may request the digital record.  In addition, any other person who has authority to act for the patient “under applicable law” can make the request.[ii]  Although this language suggests the patient’s attorney should be able to send the request for electronic records as the patient’s “authorized representative,” that would be wrong.  The agency which enforces the HI-TECH Act, the federal Office of Civil Rights (OCR), has consistently taken the position that the Act will only apply if the request for medical records is in a writing signed by the individual and is authored by the individual; i.e. – the patient (or authorized estate representative).  The OCR takes the position that third-party requests for medical records (i.e. – attorney requests) are governed by state laws, which vary from state to state.[iii]  In New York, the state law is Public Health Law Section 18, which provides that the fees shall be cost-based but in no event in excess of $0.75 a page.

To invoke the Act, therefore, the medical record request must be in a writing signed by the patient.  The attorney can prepare the medical record request for the client’s signature.  The letter from the patient requesting the medical records can be forwarded to the health care provider from the attorney’s office, again, as long as the request is in a writing signed by the patient.  The regulations provide that the client (the individual) can require that the medical records be mailed to a third party designated by the patient (i.e. – the attorney’s office).[iv]  It is also important to note that a HIPAA authorization is not required as part of a HI-TECH Act request for electronic records.[v]

Upon receipt of a request for electronic records under the HI-TECH Act, the health care provider must act on the patient’s request no later than 30 days from receipt.[vi]  Recall, that under the New York’s Public Health Law Section 18, the time limit to produce the records is a “reasonable” time.  If the provider cannot comply within 30 days, it/he/she can extend the time by a one- time extension of an additional 30 days, but must provide a written explanation for the delay.[vii]  Although a medical provider may insist on payment of a copying fee, the records must be sent within the allotted time frame, regardless of whether payment has been made in full.[viii]

While there is no private right of action under the HI-TECH Act, the OCR can investigate complaints and levy fines for violations.   Generally speaking, no penalties will be imposed if the failure to comply is corrected within 30 days after the medical provider knew that the failure to comply occurred.  The Office of Civil Rights may provide “technical assistance” to the provider during this 30-day period to resolve the dispute without penalty.[ix]  Translated roughly, that means that the OCR can contact the provider and work out a resolution. If your client’s request for medical records is made consistent with the parameters discussed above, and you nonetheless receive a bill from the hospital or the copying company for $0.75 a page, your recourse is to make a complaint to the Office of Civil Rights.  The process is relatively painless and can be done online in a few minutes time at the OCR website.[x]  OCR normally will only accept complaints that are filed within 180 days of when you knew, or should have known, that the alleged violation of the statute occurred.

The HI-TECH Act, when invoked correctly, should significantly reduce the cost of obtaining your client’s medical records.  Remember, however, the key to triggering the statute is to have your client demand an electronic copy of the record in a writing signed by the client.

1 42 U.S.C. 17935(e)(1),(2); 45 C.F.R. 164.524
2 45 C.F.R. 164.502(g)(1),(2)&(4)
3 OCR Decision Letters, obtainable only through FOIL request
4 See http:\\www.hhs.gov\hipaa\for-professionals/privacy/guidance/access/index.html ;
45 CFR Sec. 164.524
5 CFR Section 164.524 http:\\www.hhs.gov\hipaa\for-professionals/privacy/guidance/access/index.html,
6 45 C.F.R. 164.524(a)(2)(i-iv); 45 C.F.R. 165.524 (b)(2)(i)(A).
7 45 C.F.R. 164.524(b)(2)(ii)(A)&(B)
8 See OCR Decision, Reference Number 16-225898, dated February 4, 2016, obtainable only through FOIL request.
9 See OCR decision letters, obtainable only through FOIL request.
10 www.hhs.gov/hipaa/filing-a-complaint/complaint-process/index.html

RGLZ’s Newest Attorney: Mary Ann Risavich-Birgeles

IMG_3935RGLZ Personal Injury Law is happy to welcome our newest associate Mary Ann Risavich-Birgeles on board as of May 2016. She is the first new attorney on staff since Christopher Glass joined the team in 2012. Mary Ann studied American History and Political Science at University of Pennsylvania, before moving on to the William and Mary School of Law where she received her law degree with an additional recognition for public service.

Mary Ann has previously done work for the New York State Attorney General’s Office in the area of consumer fraud, as well as the Suffolk County Attorney’s Office. She is a member of the Womens’ Bar Association of New York, the American Association of Justice, the New York State Trial Lawyers’ Association, as well as both the Suffolk County and New York State Bar Associations.

Ms. Risavich-Birgeles will predominantly work on cases in the personal injury, nursing home abuse, and medical malpractice fields; adding even more strength to RGLZ’s already considerable talents in those practice areas.

The entire firm is excited to have her on board, and we can’t wait to see her take on the sort of serious cases that RGLZ is known for. We’re confident that she will flourish in her new role, and only reinforce RGLZ’s sterling reputation for excellence both inside and outside of the courtroom.

Are You Paying Too Much for Subpoenaed Medical Records?

CMG Blog Header (1)Any lawyer who routinely purchases medical records as part of their practice is familiar with the ubiquitous $0.75 charge per page.  However, does Public Health Law Section 17 and 18’s provision, requiring medical records be furnished to patients at a maximum of $0.75 per page, apply in the context of subpoenaed medical records?  A reading of CPLR §8001 suggests the answer is no.

CPLR §8001(c) governs the permissible charge for a party who receives a subpoena for a “transcript of records.”  Subsection (c) reads, “Wherever the preparation of a transcript of records is required in order to comply with a subpoena, the person subpoenaed shall receive an additional fee of ten cents per folio upon demand.”  A plain language reading of the section suggests that §8001(c) governs subpoenas for any type of records, mandating payment of $0.10 per page (rather than $0.75).  Unfortunately, there is virtually no case law interpreting §8001’s meaning behind the term, “transcripts of records” (and whether “transcripts” include medical records).

However, legislative records provide good reason to believe the legislature’s intention was for CPLR §8001(c) to apply to subpoenaed medical records.  A pair of proposed bills sponsored by New York State Senator Kemp Hannon attempted to carve out an exception to CPLR §8001(c), specifically for medical records.  Both proposed bills were unsuccessful.   Proposed bill number S05076A, submitted on April 21, 1999, provided for an exception to subsection (c) that would apply only to reproduction of “patient information or clinical records”, in which case “section 18 of the Public Health Law” would apply.  A legislative report on Senator Hannon’s proposed bill, prepared by the Committee on Civil Practice Law and Rules, noted the bill was disapproved.  The report reads “The amendment would leave the ten cents per folio rate for everything but medical records.  There is no evidence that it costs more to reproduce a medical record than other kinds of records.  If, as is probably true, ten cents per folio is too low, it would make more sense to raise the rate for all records.”  Senator Hannon again submitted the proposed bill, now under proposed bill number S2949, on February 27, 2001.  However, Senator Hannon’s proposed language, amending CPLR §8001(c), was never added.

Despite no binding Appellate or Court of Appeals decisions declaring that CPLR §8001(c) applies to the subpoena of medical records, the great bulk of evidence suggests that it does.  As such, if you are paying $0.75 per page for subpoenaed medical records, you are simply paying too much.

6 Years of the Motorcycle Mike Poker Run

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On June 4th, “Motorcycle Mike” Levine was happy to host his sixth annual motorcycle poker run for charity, in support of United Cerebral Palsy of Suffolk. This run brings out bikers from all over New York to ride for a cause, and has become a staple early in the riding season for many of these bikers. Every year, thousands of dollars are raised, and all money taken in from the run and subsequent party goes directly to the charitable cause.

United Cerebral Palsy works to support the betterment of the lives of countless people with a range of disabilities, and we were extremely happy to have been able to raise over $5,000 for them, which will go directly into these programs which help their participants develop skills and interact in ways which dramatically improve their standard of living.

With the help of 102.3 WBAB, we put on a great party with live music, vendors, food, and the first ever Ultimate Road Trip contest, where 10 entrants had a chance to win a bike and trip. Everyone ended up going home with a prize of concert tickets thanks to the generosity of our partners, and we would like to thank Full Throttle Magazine, CYA Action Funwear, The Us Vets Motorcycle Club, and the Enders Motorcycle Club for their support this year.

The most rewarding part of the event was seeing the joy on the faces of UCP program participants who could make it down to see things in action. Being able to provide an experience like this for them is what makes it all worthwhile, and it’s what we’ll remember best about this year’s event.

For more photos from the event click here!

 

 

RGLZ Law Continues to Deliver for Workers

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When Mike Levine of RGLZ Law decided he wanted to give a holiday gift of sweatshirts for construction workers on Long Island this past December, we thought that we were doing something great. When we saw and heard the kind words from the recipients, nothing could have made us happier. And we never anticipated the kind of response that we got.

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Suddenly, we were out of the entire initial batch. Hundreds of these sweatshirts found their way to hard working men and women. And then, unexpectedly, we started hearing from people on sites all over the island, asking us if we could come pay them a visit. So we did. We ordered hundreds more, and yet again, they quickly found their way to people who deserved them.

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And so now, what originally started as a way to “play Santa” for some local workers, has turned into a day-in day-out program of meeting Long Island’s workers and union members, and asking what we can do to help them. We truly believe that these outreach efforts have a positive effect for everyone involved, and we don’t see ourselves stopping anytime soon.

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If you know of, or work on, a site where the workers could use some of our gear, please contact us here and let us know, we’ll be happy to pay a visit. And if you ever need a team you can trust with a construction accident case, look no further than RGLZ. We get the job done.

RGLZ Delivers: Supporting Workers is Not Just a Slogan to Us

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RGLZ Personal Injury Law has a long history of winning cases for injured workers. It’s one of our hallmarks. But we also pride ourselves on the connection we have to our clients, and our ability to empathize with the everyday hardships these people confront in a tough line of work. And so this past December, Mike Levine commissioned over 1000 Safety Orange sweatshirts with the express purpose of distributing them to every construction site possible in our area before winter really kicked in, as a holiday gift to local workers.

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Back at the office, we took a lot of pride and happiness from the photos that come back to us from these gift runs, and our Facebook page lit up with responses from tradespeople who not only liked the idea, but wanted in! And so without a second thought we immediately made the decision to continue the program. We mailed sweatshirts to happy workers, ordered a whole new batch, and began a whole second round of giveaways.

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At RGLZ, we’ve absolutely loved having this chance to engage with the people we work for, and we don’t see ourselves stopping any time soon. As a matter of fact, we followed up this program with a $25,000 donation to the TWU Local 100 in NYC, to sponsor their scholarship program for TWU Local 100 members and their kids.

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We’ve been supporting the rights of injured workers since 1968, but we also support the lives of everyday workers. It’s a commitment to our craft, and our clients, that makes RGLZ Personal Injury Law what it is: A Different Kind of Law Firm.

If you know of any sites where the workers could use some of our gear, please contact us here and let us know! And if you ever need a team you can trust with a construction accident case, look no further than RGLZ. We get the job done.

VW “DieselGate” Emissions Scandal Update

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The Volkswagen emissions scandal is heading into its third month at this point, and things seem to keep getting worse as time goes on. Today we’re going to look at some new developments that have come about in recent weeks, as well as look forward at VW’s rumored plans to “fix” the issues with its diesel powered cars. If you missed our original article about the scandal and what it entails, Click Here to read up on that.

The Scandal now Includes All Diesels Since 2009

That’s right. If you own a VW group diesel produced in the years since 2009, your car is affected. Initially VW denied that some models were affected by the emissions cheating software, but in recent weeks they’ve caved under mounting pressure from regulators worldwide, and have come to admit that this cheating extends to every diesel sold in the last 6 years. They’ve also stopped production on all diesel models in the aftermath of this revelation.

Implications of Emissions Cheating are Beginning to Spread to Gasoline Powered Cars Too

In early November, Volkswagen disclosed that it may have “understated” the amount of CO2 emissions on up to 800,000 cars, now including gasoline powered cars for the first time. While this side of the story hasn’t come out completely, there’s reason to believe that this scandal could be far from over, and new inclusions to the list of vehicles affected by the emissions cheating could continue to grow by the day.

VW has Rolled out a Somewhat Disingenuous “Goodwill” Program for TDI Owners

If you’re a Volkswagen TDI owner, VW will be offering you a bit of bribe money to make you feel better. The offer includes a $500 pre-paid gift card, $500 service voucher, and 3 years of free roadside assistance. What it doesn’t include, thankfully, is any fine print that forces you to give up your right to sue. So you can feel free to take the gift offering, and still pursue legal compensation in regards to the scandal. And you may want to think of doing so, because…

Volkswagen has Seemingly Chosen the “Software Update” as Their Plan to “Fix” the Cars

As of today (November 24), VW has come out saying that their plan for the majority of the affected cars is to reprogram the ECU. If you read our previous article, this means that the cars in question are facing down major negative changes in performance and fuel economy. It’s a lose-lose situation for customers that will do the least damage to VW’s bottom line, and the most damage to the cars’ resale value. Now is the best time to explore your legal options as an owner of a VW diesel vehicle.