As a former working musician, now an attorney who practices workers’ compensation law, among other specialties, I welcome the opportunity to make Local 802 members aware of their rights under New York State’s Workers’ Compensation system. The subject is too large to cover in a single column. In this article, I will give a brief overview of the program and then describe several possible cases – in each of which the musician should definitely file a claim.
Workers’ compensation provides weekly cash payments for the duration of disability for a worker injured during employment. It provides all reasonable and necessary medical and rehabilitation expenses, and even pays for chiropractic treatments. It also provides payments for the surviving spouse and dependents of a worker who dies on the job or as a result of a job-related injury or illness.
Under current New York State law, the maximum weekly payment is $400, tax-free. No one gets rich on workers’ compensation, but it can keep the wolf away from the door. Workers with long-term, job-related disabilities may also qualify for Social Security Disability Insurance. Between the two benefits, some workers can get up to as much as 80 percent of their highest wages, depending on their Social Security Disability Insurance benefit rate, which is based on lifetime earnings.
ARE YOU COVERED?
A major issue for many musicians is whether they are even covered by workers’ compensation. Under New York State law, musicians are specifically defined as employees for these purposes. However, in my experience far too many musicians are still being told that they are not covered because they are independent contractors. In almost all cases, this is untrue. In fact, had they pursued their claims, they would have been held to be employees and thus would be eligible for workers’ compensation benefits.
The first requirement in workers’ compensation claims is that there must be an employer-employee relationship. If there is, any employee who becomes injured – by a sudden traumatic injury, by a series of repetitive trauma, or by an occupational disease “arising in and out of the course of employment” is eligible to file a claim and is entitled to workers’ compensation.
In addition to cash awards for time lost from work, awards can be made for serious, permanent facial and head disfigurements and certain permanent neck disfigurements. Awards are made for permanent total, or partial, loss or loss of use of members of the body (extremities) and of vision or hearing. In certain instances future disability, in a partial disability case, may be compensated, in the interest of justice, with a lump sum. Awards are also made for permanent or temporary partial disabilities. There is no compensation for pain and suffering, only for the loss of “earning capacity.”
For any award to be granted, a claim must first have been made. If you are injured at work it is crucial that you notify the employer in writing (in the form of an accident report) within 30 days of the injury, and that you file a claim (using form C-3) with the New York State Workers’ Compensation Board within two years.
The Board can, in some instances, relax the notice requirement, but rarely can it waive the two-year claim filing limitation. You can request a C-3 form from the Workers’ Compensation Board or from my office (call (212) 233-1457 or (516) 496-0100 to request one). If you don’t file properly and timely you may be barred from ever getting compensated for the injury or occupational disability.
Workers’ compensation is paid “without regard to fault as a cause of injury.” The amount of the award is fixed by law and is not increased by an employer’s fault or diminished by the employee’s carelessness. Nor does the fact that the injured worker may have had a similar problem or injury in the past prevent a workers’ compensation award for a new injury to the same body part. The law is well established that the employer takes the claimant as s/he finds him or her.
SOME CASE STUDIES
Four musicians on this “gig from hell” all have potential workers’ compensation claims:
- Jack is a bass player with the Scheine Fusco Orchestra. While taking his amplifier up the stairs at the catering hall, he twists his back. No one saw this happen. It hurts, but he plays the engagement. (He should have immediately reported it to the bandleader but, like most workers, he thinks it will go away with aspirin, and says nothing.) Within two days Jack is in tremendous pain. His chiropractor tentatively diagnoses a low back sprain and recommends testing.
Since this should be a workers’ compensation claim, and since the chiropractor will look to workers’ compensation to pay his bill, Jack should immediately report the incident to his company, if he hasn’t already done so. The company, in turn, should give him the name of the compensation insurance carrier and he should relay this information to his doctor. The fact that Jack injured his back five years earlier while playing football does not affect his right to file for compensation for the new injury.
- Bob, the guitar player, caught his heel on a torn rug at the top of the stairway and careened down the stairs, smashing his Gibson ES-335 and breaking his left arm in several places. The entire band, including the leader, saw this happen. Bob obviously got hurt in the course of employment and because the supervisor (bandleader) witnessed the incident, the employer had actual notice. There is one additional element in this case. The accident was caused by the catering hall’s carelessness in not repairing the rug. So in addition to filing for workers’ comp, Bob may also have the right to sue the catering hall for causing his injuries through its negligence.
- A third musician, Carolyn, who has played violin since she was a small child, has been with the orchestra for five years. Lately, whenever performing, she notices pain in her left wrist. At first it’s a tingle, but it gradually worsens so that it becomes an ordeal for her to play. A hand specialist advises her she that has developed carpal tunnel syndrome as a result of playing her instrument. Once the doctor tells her the condition is due to her employment she, too, should inform her employer and ask for the name of the workers’ compensation carrier. She, too, must file a C-3 claim form with the New York State Board.
- Finally, meet Sam – an excitable, 350-lb. keyboard player who smokes three packs of cigarettes a day, never exercises, and is always in a hurry. Both of his parents died from heart attacks, as did two brothers. On this particular day, Sam was in a hurry to make it to another gig. He was running and carrying his heavy Kurzweil electronic piano (instead of rolling it on a dolly) out of the facility when he began to feel chest pain. Since he’d wolfed two meals and a few plates of hors d’oeuvres at the affair, he assumed he was suffering from indigestion. He began feeling hot and nauseous, and started to perspire.
On the way to the other job he stopped home to get some antacids. His wife took one look at him and rushed him to the local hospital, where an emergency room EKG disclosed a myocardial infarction. The doctor didn’t ask about Sam’s work, but did tell Sam’s wife that her husband had all the classic cardiac risk factors: obesity, smoking, Type A personality, no exercise and bad diet. He was “a walking heart attack waiting to happen.” Some weeks later Sam asked his cardiologist whether lifting the electronic piano and running with it could have caused his heart attack. The doctor says: “No, you had all the risk factors. Work doesn’t cause heart attacks. The activity may have triggered something, but it didn’t cause the heart attack.”
Sam, too, should file a workers’ compensation claim. In cases of heart attack and stroke the law recognizes that no one can conclusively determine what caused the situation to occur. Instead, it creates rebuttable presumptions that, if something happens in the course of employment, it is compensable unless someone else can advance a better reason to show it is not. It is sufficient under the law to show that the work activity was a precipitating factor in the injury or disability, even though it was not the sole factor.
Each of these examples will present some difficulties somewhere down the line. Future columns will explore more of the nuances of workers’ compensation for musicians.
Attorney Victor Fusco, a former working musician, practices workers’ compensation, Social Security Disability Insurance and personal injury law, as managing partner of Scheine, Fusco, Brandenstein & Rada, P.C. He is also the host of “Labor Lines,” a program about working men and women and the organizations that represent them, heard three times a week on WGBB-AM 1240 on Long Island. His firm, which has offices in Manhattan, the Bronx, and on Long Island, can be reached at (212) 233-1457 or (516) 496-0100, by mail at Box 307, Woodbury, NY 11797, or via e-mail: Vicfusco@aol.com. There is no charge for a consultation in any of the firm’s areas of expertise.