S T A T E   O F   N E W   Y O R K
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                                  7961

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                              June 12, 2013
                               ___________

Introduced  by M. of A. HEASTIE -- read once and referred to the Commit-
  tee on Labor

AN ACT to amend the workers' compensation law, in relation to establish-
  ing statutory guidelines for return  to  work  by  partially  disabled
  workers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 5-a and 5-b of  section  15  of  the  workers'
compensation  law, subdivision 5-a as amended by chapter 113 of the laws
of 1946 and subdivision 5-b as added by chapter 778 of the laws of 1945,
are amended to read as follows:
  5-a.  Determination  of  wage  earning  capacity  IN  CASE  OF  ACTUAL
EARNINGS.  The  wage earning capacity of an injured employee in cases of
partial  disability  shall  be  determined  by  his   actual   earnings,
[provided, however, that if he has no such actual earnings the board may
in  the  interest  of justice fix such wage earning capacity as shall be
reasonable, but not in excess of seventy-five per centum of  his  former
full time actual earnings, having due regard to the nature of his injury
and his physical impairment] IF ANY.
  5-b. DETERMINATION OF WAGE EARNING CAPACITY IN ABSENCE OF ACTUAL EARN-
INGS.  THE  WAGE  EARNING  CAPACITY  OF  AN INJURED EMPLOYEE IN CASES OF
PARTIAL DISABILITY SHALL, IN THE ABSENCE OF ACTUAL EARNINGS,  BE  DETER-
MINED  BY THE BOARD. THE BOARD SHALL IN THE INTEREST OF JUSTICE FIX SUCH
WAGE EARNING CAPACITY AS MAY BE REASONABLE, BUT NOT IN EXCESS OF  SEVEN-
TY-FIVE  PER  CENTUM  OF  THE INJURED EMPLOYEE'S FORMER FULL TIME ACTUAL
EARNINGS, HAVING DUE REGARD  TO  THE  NATURE  OF  THE  INJURY,  PHYSICAL
IMPAIRMENT,  AND  OTHER  RELEVANT FACTORS. THE BOARD SHALL AWARD COMPEN-
SATION BASED ON THE INJURED EMPLOYEE'S LOSS OF WAGE EARNING CAPACITY.
  (A) VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET.   NOTWITHSTANDING  ANY
PROVISION  TO  THE CONTRARY, THE BOARD MAY DECLINE TO AWARD COMPENSATION
IF IT FINDS THAT THE INJURED EMPLOYEE HAS VOLUNTARILY WITHDRAWN FROM THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11028-01-3
              

A. 7961                             2

LABOR MARKET. VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET IS  DEFINED  AS
SEPARATION  FROM  EMPLOYMENT  FOR  REASONS  UNRELATED TO THE COMPENSABLE
INJURY, INCLUDING BUT NOT LIMITED TO:  TERMINATION  FOR  CAUSE;  LAYOFF;
VOLUNTARY  RESIGNATION  OF  EMPLOYMENT;  RETIREMENT DUE SOLELY TO AGE OR
YEARS OF SERVICE; OR UNJUSTIFIED REFUSAL OF WORK OFFERED BY THE EMPLOYER
WHICH IS CONSISTENT WITH THE CLAIMANT'S MEDICAL RESTRICTIONS.
  (B) AWARD AFTER VOLUNTARY WITHDRAWAL FROM  THE  LABOR  MARKET.  IF  IT
FINDS  A  VOLUNTARY  WITHDRAWAL  FROM  THE LABOR MARKET, THE BOARD SHALL
AWARD BENEFITS IF THE CLAIMANT IS SUBSEQUENTLY  ATTACHED  TO  THE  LABOR
MARKET  THROUGH PARTICIPATION IN: (I) ONE OF NEW YORK STATE'S DEPARTMENT
OF LABOR'S  REEMPLOYMENT  SERVICES,  (II)  THE  SERVICES  OFFERED  BY  A
ONE-STOP  CAREER  CENTER,  (III)  A RETRAINING PROGRAM, (IV) A REHABILI-
TATION PROGRAM BY VESID OR OTHER BOARD APPROVED REHABILITATION  PROGRAM,
(V)  A  JOB  SERVICE  COMMONLY UTILIZED TO SECURE WORK WITHIN A SPECIFIC
INDUSTRY, (VI) ENROLLMENT AND FULL  TIME  ATTENDANCE  IN  AN  ACCREDITED
EDUCATIONAL   INSTITUTION   TO   PURSUE   EMPLOYMENT   WITHIN  THE  WORK
RESTRICTIONS, OR (VII) RETURN TO WORK.
  5-C. Non-schedule adjustments. Notwithstanding any other provision  of
this  chapter,  in any case coming within the provisions of subdivisions
three or five of this section, in which the right  to  compensation  has
been  established and compensation has been paid for not less than three
months, in which the continuance of disability  and  of  future  earning
capacity cannot be ascertained with reasonable certainty, the board may,
in  the interest of justice, approve a non-schedule adjustment agreed to
between the claimant and the employer  or  his  insurance  carrier.  The
board  shall require, before approving any such agreement, that there be
an examination of the claimant in accordance with  section  nineteen  of
this [chapter] ARTICLE, and such approval shall only be given when it is
found that the adjustment is fair and in the best interest of the claim-
ant.    The board may, in such case, order all future compensation to be
paid in one or more lump sums or periodically, and any  such  adjustment
shall  be  regarded as a closing of the claim unless the board find upon
proof that there has been a change in condition  or  in  the  degree  of
disability of claimant not found in the medical evidence and, therefore,
not contemplated at the time of the adjustment.
  S 2. This act shall take effect immediately.