WORKERS’ MEMORIAL DAY by Kurt Young

Sadly, working is a dangerous thing.  Every year somewhere between 5,000 to 6,000 people nationwide, about 150-200 people in Ohio leave their home for work in a civilian job and don’t return.  Some die instantly, some days, weeks or even years later.  But it’s too high a number.

And it’s not just the people you think of.  God bless our first responders who run to danger and don’t always make it back, or without long term cancer or cardiac and pulmonary issues.  It’s not just factory workers or nurses, it can be a custodian.  It can be supervisor driving for work.

On April 28th every year we who fight for workers, lawyers, labor leaders, people of faith, gather to remember those we lost in Northwest Ohio.  Workers’ Memorial Day, which is also known as International Commemoration Day for Dead and Injured is held on that around the world, to remember the injured and dead from our workforce.  Our neighbors to the north in Canada make it a national day of morning.  

This year’s remembrance will be held on Monday April 29th @ 6 PM by our partners at Local 500 of the Laborer’s International Union for North America (LIUNA) on Nebraska. There will be speakers, there will be stories about those we lost, we’ll light candles and sing “Solidarity Forever’, and in the words of Mother Jones (Mary G. Harris an Irish born labor organizer from the 1800 and 1900's, she died at the age of 93) , “Mourn the dead and fight like hell for the living”.  

This all started in 1989 when the AFL-CIO declared this day to be Workers’ Memorial Day.  Why April 28th?  It is the anniversary of the date the Occupational Safety and Health Act of 1970 went into effect, and when the Occupational Safety and Health Administration was formed (April 28, 1971). Previously, in 1984, the Canadian Union of Public Employees (CUPE) established a day of mourning. The Canadian Labour Congress declared an annual day of remembrance in 1985 on April 28, which is the anniversary of a comprehensive Workers' Compensation Act (refer to the entry Workplace Safety & Insurance Board), passed in 1914. In 1991, the Canadian parliament passed an Act respecting a National Day of Mourning for persons killed or injured in the workplace, making April 28 an official Workers' Mourning Day.  And this has spread to England, and then around the world thanks to labor unions.  

Having done this for 30 years I can tell you I have represented double digit numbers of families whose loved one died due to physical harm from a job.  Some died at the scene, some hours or day later in a hospital, others months or years later.  It’s always a horrible thing to deal with.  

I can tell you that there is some help for these families.  But it is dependent on whether they had people who depended on them.  Spouses are automatically taken care of if legally married, children until age 18, unless they continue their education in an accredited trade school or college.  Anyone else has to prove their dependency.  If you can’t they pay a burial expense.  That’s it.  Unless you can proven an intentional act by the employer, that’s the extent of it.  

If a worker has benefits that were due them, and passes away without dependants, or we can’t prove that the death was related to work, we can still get an estate those accrued benefits.  My most used Ohio Supreme Court case involves that type of death claim.  An injured worker who lingered in a coma for 16 years before succumbing to injuries from an on the job motor vehicle accident.       

When you hear people claim that the Ohio Bureau of Workers’ Compensation is neutral and will take care of legitimate hurt workers, read The State ex rel. Estate of Sziraki vs. Bureau of Workers’ Compensation, et al., for lawyers it’s 137 Ohio St. 3d 201, you can get it from the author’s here -  https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2013/2013-ohio-4007.pdf

Dean Sziraki was 34 years old, unmarried and with no children.  He had taken over the family business ahead of schedule due to the untimely death of his father.  He was involved in a horrific accident, driving site to site to check on projects.  Dean severed his spinal cord and so horribly damaged his brain that he lingered in coma from May 14, 1991 to until his death in a long term care facility in January of 2007.  But he never regained meaningful consciousness. 

The employer, his mother Marilyn took over the company, certified the claim.  They paid Dean Temporary Total Disability (TT) benefits for about a year then found him to have reached Maximum Medical Improvement (MMI).  This is the end of ongoing money and normally you would apply for Permanent Total Disability (PTD).  Dean’s mother, as the employer filed for that for him.  Normally that takes about 9-12 months to process and can go back to the end date of the TT.  But, nothing was done with the application for several years. When it was processed, someone decided they were doing family a favor to convert this to Statutory PTD.  

Statutory PTD is a benefit available to those who lose to amputation or lose all work use, of two or more limbs or other major body parts.  The advantage to a worker is that you will get paid every two weeks for the rest of your life AND can return to work if you can.  Dean was in a coma, he was a quadriplegic, but again, was not going back to work. In all a process that should have take 9-12 months didn’t result in a payment to the family from 1992 to until 2007.  You read that right, 15 years.  And that was after Dean died, his family’s probate attorney hired me, and we fixed what we could.

But Dean’s family, had the hired any workers’ compensation attorney would have got paid from 1992 until his death, PTD, a benefit for PTD recipients where the ravages of inflation (Ohio workers’ compensation claims have no cost of living adjustments) put you below a liable payrate called DWRF, and $363,800 for the fact that his arms and legs never worked again known as a Scheduled Loss Award 

Instead they cheated these people, and they admitted in court the BWC knew the family was entitled to these benefits, out of $44,512 in Permanent Total Disability payments and $297,032 in Scheduled Loss Awards.  The BWC’s attorneys in court actually argued with a straight face they have no legal duty to pay any benefit, even when the law allowed them to pay it without a motion and they didn’t take legal action to protect Dean, they said they were going to do and didn’t, a year past a deadline for them step in had passed.  

So to the families of the next 65,000 - 70,000 or so injured workers in Ohio (yearly average per BWC Annual Reports 2020-23) and the 150-204 (yearly average per BWC Annual Reports 2020-23) hire an attorney.  They are not looking out for you.  If they did that Dean’s family, imagine what you’re not getting. 

And until I can’t do this anymore, I will mourn the dead, and fight like hell for the living.