Rashinaz Khasanova was thrilled when she landed a full-time housekeeping job at the Seneca Niagara Casino’s hotel in Niagara Falls about six years ago.
But she’s not thrilled since the Senecas’ insurer cut off her workers’ compensation benefits last year, following a back injury she suffered on the job while moving a mattress.
“I was really disappointed and really scared, because I was so in pain,” said Khasanova, an immigrant from the former Soviet republic of Uzbekistan, through an interpreter.
Khasanova, who is now living on unemployment benefits, Medicaid and food stamps, is one of eight former Seneca employees caught in the middle of the Seneca Gaming Corp.’s decision to drop New York State workers’ compensation coverage for its casino employees.
In fact, the Senecas never had to offer any type of compensation coverage, because it is a tribal matter and not governed by state law, according to the state Workers’ Compensation Board.
In spite of that, the Senecas say they are buying insurance and insist employees are well-covered.
“The company’s workers’ compensation program is substantially similar to the New York State program,” Seneca Gaming Corp. said in a prepared statement. “As such, all eligible Seneca Gaming Corp. employees have always been – and remain – eligible for workers’ compensation benefits.”
But attorneys for the former casino employees are appealing to the state Workers’ Compensation Board. They want the board to require the Senecas’ former insurance carrier to resume paying their clients’ benefits. A hearing is set for Feb. 26 in Buffalo.
“I don’t think people working there or hired there realize that, if they get hurt on the job, they’re on their own with no benefits at all,” said Lawrence Lindsay, Khasanova’s attorney.
The Senecas say that is not true.
“Under the company’s current program, as under the state system, each claim is determined on a fact-specific, case-by-case basis,” its statement said. “Coverage and decisions are driven by the merits, facts and circumstances of each particular case.”
Khasanova, who has been in the United States for seven years, landed a 40-hour-a-week job at the Seneca Niagara Casino in 2007. She said she was injured in September 2011 and kept working until Jan. 11, 2012, when she had to stop because of the pain.
“Very heavy mattress change,” she said of the incident in which she was hurt. “Every day, have to clean 14 rooms.”
She said she tried to keep working, but on two occasions in December 2011, she went to a hospital emergency room because of the pain.
Khasanova’s weekly pay at the time she went on workers’ compensation was $398.80. Her benefits started at two-thirds of that weekly pay ($265 a week) and were reduced to half-pay ($132 a week) before she was cut off in May of last year.
Now on Medicaid, she has been receiving $179 a week in unemployment benefits since the Senecas terminated her in August. She also receives $300 a month in food stamps.
In a typical workers’ compensation case, Lindsay said, Khasanova could have appealed.
“We would have been able to go to court and have a judge determine whether the decision to cut her off was appropriate. Her doctors are still saying she has a disability. In all likelihood, a benefit would be being paid to her right now,” he said.
Attorneys representing Khasanova and the seven other injured workers went before an administrative law judge of the state Workers’ Compensation Board in Buffalo on Jan. 31, seeking to restore benefits for their clients.
Lindsay and the other attorneys are trying to force the Senecas’ former insurance carrier, Arch Insurance Co., to resume paying the benefits for cases that began before the Senecas dropped Arch on Dec. 1, 2011.
But when the Senecas changed insurance carriers, they also informed the workers that from now on, their coverage would be governed by “tribal law.”
The problem with that, Lindsay said, is that the Senecas don’t have their own workers’ compensation law.
At first, a Workers’ Compensation Board administrative law judge ruled that Arch Insurance was responsible to continue paying the injured workers, but Arch appealed.
A panel of three members of the board reversed the decision and ordered further hearings.
But there is a problem with the appeal: The Senecas, contending the board has no jurisdiction over them, did not send a representative to last week’s hearing. Seneca Gaming’s third-party workers’ compensation administrator, Tribal First, a San Diego company, also skipped the session.
Last spring, Tribal First sent one of the eight workers’ attorneys a letter, listing numerous U.S. Supreme Court rulings on Indian rights and declaring that no state agency, including the Workers’ Compensation Board, has any say over the Seneca Nation’s activities.
“Sovereign Native American nations are not required to purchase a New York State workers’ compensation policy. They may voluntarily purchase a policy, which would insure workplace accidents and illnesses of their employees,” said Joseph Cavalcante, spokesman for the state Workers’ Compensation Board.
In one respect, Khasanova’s case is a typical workers’ compensation fight over whether the affected workers are still disabled. Correspondence that Lindsay released indicates that Tribal First believes, based on reports from treating physicians, that Khasanova had recovered from her injury as much as she was going to.
Lindsay said Tribal First offered Khasanova a $5,000 settlement last week, but it has not been accepted. He said he’s waiting to see if the board reinstates Arch Insurance as payer of Khasanova’s benefits.
“If that happens, we’re back under New York State workers’ comp law,” Lindsay said.
And if so, he said, Khasanova can do “tremendously better” than $5,000 in benefits.
“Failing that, there’s not much anybody can do,” Lindsay added. “I think [the Senecas] can do anything they want. There’s no checks or balances to that.”