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

                                  4090

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              March 8, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor

AN ACT to amend the  workers'  compensation  law,  in  relation  to  the
  continuation  of  death  benefits  to a surviving spouse regardless of
  remarriage

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

  Section 1. Subdivisions 1-b, 1-c, 1-d, 2, 2-a and 2-b of section 16 of
the workers' compensation law, subdivisions 1-b, 1-c and 2 as amended by
chapter  168  of the laws of 1979, subdivision 2-a as amended by chapter
174 of the laws of 1981 and subdivisions 1-d and 2-b as added by chapter
689 of the laws of 2007, are amended to read as follows:
  1-b. If there be a surviving spouse and no child of the deceased under
the age of eighteen years and no child of any  age  dependent  blind  or
physically  disabled, and the death occurs on or after July first, nine-
teen hundred forty-eight, and prior to January first,  nineteen  hundred
seventy-eight,  to  such spouse forty per centum of the average wages of
the deceased during widowhood or widowerhood [with  two  years'  compen-
sation  in one sum, upon remarriage]; and where the death occurred prior
to July first, nineteen hundred forty-eight, to such wife (or  dependent
husband)  thirty per centum of such wages during widowhood (or dependent
widowerhood) [with two years' compensation in one sum, upon remarriage].
  1-c. If there be a surviving spouse and no child of the deceased under
the age of eighteen years or under the  age  of  twenty-three  years  if
enrolled  and  attending  as a full time student in an accredited educa-
tional institution and such  enrollment  and  full  time  attendance  is
certified by such institution and no child of any age dependent blind or
physically  disabled,  and  the  death occurs on or after January first,
nineteen hundred seventy-eight, to such spouse sixty-six and  two-thirds
per  centum  of  the  average  wages of the deceased during widowhood or
widowerhood [with two years' compensation, in one sum, upon remarriage].

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05484-01-3
              

S. 4090                             2

Where the death occurs on  or  after  January  first,  nineteen  hundred
seventy-eight, and the spouse is receiving the survivors insurance bene-
fits under the social security act, the death benefit payable under this
section  shall be reduced in accordance with the provisions of table No.
1 below by five per centum of  the  spouse's  share  of  the  survivor's
insurance benefits under the social security act for each ten dollars of
deceased's average weekly wage in excess of one hundred dollars provided
that  in  no  case  shall such reduction exceed fifty per centum of said
spouse's share of the survivors  insurance  benefits  under  the  social
security act.
                               TABLE No. I

             Offset provisions applicable in death benefits
                 where there is a sole surviving spouse

AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
                                                      SHARE OF SURVIVORS
                                                      INSURANCE BENEFITS

over $100 up to and including $110 ................................... 5
over $110 up to and including $120 .................................. 10
over $120 up to and including $130 .................................. 15
over $130 up to and including $140 .................................. 20
over $140 up to and including $150 .................................. 25
over $150 up to and including $160 .................................. 30
over $160 up to and including $170 .................................. 35
over $170 up to and including $180 .................................. 40
over $180 up to and including $190 .................................. 45
over $190 up to and including $200 .................................. 50
over $200 ........................................................... 50
  1-d. If there be a surviving spouse of an employee of a private volun-
tary  hospital killed in a World Trade Center rescue, who passed a phys-
ical examination upon employment as  a  rescue  worker  that  failed  to
reveal  evidence  of  a condition that was the proximate cause of death,
and no child of the deceased under the age of eighteen years,  or  under
the  age  of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, and no  child  of
any  age dependent blind or physically disabled, to such spouse seventy-
five per centum of the average wages of the deceased during widowhood or
widowerhood[, with two years' compensation,  in  one  sum,  upon  remar-
riage].  Where such death occurs, and the spouse is receiving the survi-
vors insurance benefits under the social security act, the death benefit
payable under this section shall  be  reduced  in  accordance  with  the
provisions  of  table No. I in subdivision one-c of this section by five
per centum of the spouse's share of the  survivor's  insurance  benefits
under the social security act for each ten dollars of deceased's average
weekly  wage  in excess of one hundred dollars; provided that in no case
shall such reduction exceed fifty per centum of such spouse's  share  of
the survivors insurance benefits under the social security act.
  2. If there be a surviving spouse and a surviving child or children of
the  deceased  under  the  age of eighteen years or a surviving child or
children of any age dependent blind  or  physically  disabled,  and  the
death  occurs  on or after July first, nineteen hundred forty-eight, and
prior to January first, nineteen hundred seventy-eight, to  such  spouse
thirty  per centum of the average wages of the deceased during widowhood

S. 4090                             3

or widowerhood [with two years' compensation in  one  sum,  upon  remar-
riage]; and the additional amount of twenty per centum of such wages for
each  such child until the age of eighteen years or until the removal of
the dependency of the blind or physically disabled child or children; in
case  of  the  subsequent death [or remarriage] of such surviving spouse
any surviving child of the deceased employee, at the time under eighteen
years of age or dependent through mental or  physical  infirmity,  shall
have  his compensation increased to thirty per centum of such wages, and
the same shall be payable until he shall reach the age of eighteen years
or until such dependent blind or  physically  disabled  condition  shall
have  been  removed;  provided that the total amount payable shall in no
case exceed sixty-six and two-thirds per  centum  of  such  wages.  Upon
statutory termination of compensation payments to all such children, the
compensation  of  the  surviving  spouse shall be increased to forty per
centum of such wages [with two years' compensation, at such rate, in one
sum, upon remarriage].
  If there be a surviving wife (or dependent husband)  and  any  of  the
aforementioned  surviving children, and the death occurred prior to July
first, nineteen hundred forty-eight, to such wife (or dependent husband)
thirty per centum of the average wages of the deceased during  widowhood
(or  dependent  widowerhood)  [with  two years' compensation in one sum,
upon remarriage]; and the additional amount of ten per  centum  of  such
wages  for  each  such  child  until  eighteen years of age or until the
removal of the dependency of the blind or physically disabled  child  or
children;  in  case  of  the  subsequent  death  [or remarriage] of such
surviving wife  (or  dependent  husband)  any  surviving  child  of  the
deceased  shall have his compensation increased to fifteen per centum of
such wages until he shall reach the age of eighteen years or until  such
dependent  blind  or  physically  disabled  condition  shall  have  been
removed; provided that the total amount payable shall in no case  exceed
sixty-six and two-thirds per centum of such wages.
  The  board may in its discretion require the appointment of a guardian
for the purpose of receiving the compensation of  a  minor  child  or  a
dependent  blind  or physically disabled child. In the absence of such a
requirement by the board the appointment of a guardian for such purposes
shall not be necessary.
  2-a. If there be a surviving spouse and a surviving  child  under  the
age of eighteen years or under the age of twenty-three years if enrolled
and attending as a full time student in an accredited educational insti-
tution and such enrollment and full time attendance is certified by such
institution  or  a  surviving  child of any age dependent blind or phys-
ically disabled and the death occurs on or after January first, nineteen
hundred seventy-eight, to such  spouse  thirty-six  and  two-thirds  per
centum of the average wages of the deceased during widowhood or widower-
hood  [with  two  years'  compensation in one sum, upon remarriage]; and
thirty per centum of such wages to such child under the age of  eighteen
years  or  under the age of twenty-three years if enrolled and attending
as a full time student in an accredited educational institution and such
enrollment and full time attendance is certified by such institution  or
a  surviving child of any age dependent blind or physically disabled; in
the case of the subsequent death of such surviving spouse the  surviving
child  shall have his compensation increased to sixty-six and two-thirds
per centum of such wages and the same shall be payable so long as he  is
under  the  age of eighteen years or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited educa-
tional institution and such  enrollment  and  full  time  attendance  is

S. 4090                             4

certified  by such institution or a surviving child of any age dependent
blind or physically disabled; upon statutory termination of compensation
payable to such child, the compensation of the surviving spouse shall be
increased to sixty-six and two-thirds per centum of such wages [with two
years'  compensation,  at  such  rate, in one sum, upon remarriage. Upon
remarriage of such surviving spouse, the surviving child shall  continue
to  receive  thirty per centum of such wages]. Where the death occurs on
or after January first, nineteen hundred seventy-eight and the spouse is
receiving survivors insurance benefits under the  social  security  act,
the  death  benefit  payable under this section shall be reduced by five
per centum of the spouse's share of  the  survivors  insurance  benefits
under the social security act for each ten dollars of deceased's average
weekly  wage  in  excess of one hundred dollars provided that in no case
shall such reduction exceed fifty per centum of said spouse's  share  of
the  survivors  insurance  benefits under the social security act as set
forth in table No. I below.

                               TABLE No. I

             Offset provisions applicable in death benefits
             where there is a surviving spouse and one child

AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
                                                      SHARE OF SURVIVORS
                                                      INSURANCE BENEFITS
over $100 up to and including $110 ................................... 5
over $110 up to and including $120 .................................. 10
over $120 up to and including $130 .................................. 15
over $130 up to and including $140 .................................. 20
over $140 up to and including $150 .................................. 25
over $150 up to and including $160 .................................. 30
over $160 up to and including $170 .................................. 35
over $170 up to and including $180 .................................. 40
over $180 up to and including $190 .................................. 45
over $190 up to and including $200 .................................. 50
over $200 ........................................................... 50
  If there be a surviving spouse and  two  or  more  surviving  children
under  the  age of eighteen years or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited educa-
tional institution and such  enrollment  and  full  time  attendance  is
certified  by  such  institution or a surviving child or children of any
age dependent blind or physically disabled and  a  death  occurs  on  or
after  January  first,  nineteen  hundred  seventy-eight, to such spouse
thirty-six and two-thirds per centum of the average wage of the deceased
during widowhood or widowerhood [with two years' compensation in one sum
upon remarriage]; and thirty per centum of such wages to  such  children
under  the  age of eighteen years or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited educa-
tional institution and such  enrollment  and  full  time  attendance  is
certified  by  such  institution or a surviving child or children of any
age dependent blind or physically disabled, share and  share  alike;  in
case  of  the  subsequent  death  of such surviving spouse the surviving
children shall have their compensation increased to sixty-six  and  two-
thirds  per centum of such wages and the aggregate sum shall be payable,
share and share alike, so long as they are under  the  age  of  eighteen
years  or  under the age of twenty-three years if enrolled and attending

S. 4090                             5

as a full time student in an accredited educational institution and such
enrollment and full time attendance is certified by such institution  or
a  surviving  child or children of any age dependent blind or physically
disabled.  [Upon  remarriage  of  such surviving spouse, if there be two
surviving children each shall receive twenty-five  per  centum  of  such
wages,  and  if there are surviving more than two children under the age
of eighteen years or under the  age  of  twenty-three  if  enrolled  and
attending  as  a full time student in an accredited educational institu-
tion and such enrollment and full time attendance is certified  by  such
institution  or a surviving child or children of any age dependent blind
or physically disabled sixty-six and two-thirds per centum of such wages
share and share alike.] Upon statutory termination of compensation paya-
ble to such children, the compensation of the surviving spouse shall  be
increased to sixty-six and two-thirds per centum of such wages [with two
years'  compensation,  at such rate, in one sum, upon remarriage]. Where
the death occurs on or after January first,  nineteen  hundred  seventy-
eight,  and  the  spouse is receiving survivors insurance benefits under
the social security act, the death benefits payable under  this  section
shall  be reduced by five per centum of the spouse's share of the survi-
vors insurance benefits under the  social  security  act  for  each  ten
dollars of deceased's average weekly wage in excess of one hundred fifty
dollars  provided  that in no case shall such reduction exceed fifty per
centum of said spouse's share of the survivors insurance benefits  under
the social security act as set forth in table No. II below.

                              TABLE No. II

             Offset provisions applicable in death benefits
       where there is a surviving spouse and two or more children

AVERAGE WEEKLY WAGE                               PERCENTAGE OF SPOUSE'S
                                                      SHARE OF SURVIVORS
                                                      INSURANCE BENEFITS
over $150 up to and including $160 ................................... 5
over $160 up to and including $170 .................................. 10
over $170 up to and including $180 .................................. 15
over $180 up to and including $190 .................................. 20
over $190 up to and including $200 .................................. 25
over $200 up to and including $210 .................................. 30
over $210 up to and including $220 .................................. 35
over $220 up to and including $230 .................................. 40
over $230 up to and including $240 .................................. 45
over $240 up to and including $250 .................................. 50
over $250 ........................................................... 50
  2-b. If there be a surviving spouse of an employee of a private volun-
tary  hospital killed in a World Trade Center rescue, who passed a phys-
ical examination upon employment as  a  rescue  worker  that  failed  to
reveal  evidence  of  a condition that was the proximate cause of death,
and a surviving child under the age of eighteen years, or under the  age
of  twenty-three  years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment  and  full-
time  attendance  is certified by such institution, or a surviving child
of any age dependent blind or physically disabled, to such spouse  forty
per  centum  of  the  average  wages of the deceased during widowhood or
widowerhood[, with two years' compensation in one sum, upon remarriage];
and thirty-five per centum of such wages to such child under the age  of

S. 4090                             6

eighteen  years,  or under the age of twenty-three years if enrolled and
attending as a full-time student in an accredited  educational  institu-
tion  and  such enrollment and full-time attendance is certified by such
institution,  or  a  surviving child of any age dependent blind or phys-
ically disabled; in the case of the subsequent death of  such  surviving
spouse  the surviving child shall have his or her compensation increased
to seventy-five per centum of such wages and the same shall  be  payable
so  long  as  he or she is under the age of eighteen years, or under the
age of twenty-three years if  enrolled  and  attending  as  a  full-time
student in an accredited educational institution and such enrollment and
full-time  attendance  is  certified by such institution, or a surviving
child of any age dependent blind or physically disabled; upon  statutory
termination  of  compensation payable to such child, the compensation of
the surviving spouse shall be increased to seventy-five  per  centum  of
such wages [with two years' compensation, at such rate, in one sum, upon
remarriage.  Upon  remarriage  of  such  surviving spouse, the surviving
child shall continue to receive thirty-five per centum of  such  wages].
Where such death occurs, and the spouse is receiving survivors insurance
benefits  under the social security act, the death benefit payable under
this section shall be reduced by five per centum of the  spouse's  share
of  the  survivors  insurance benefits under the social security act for
each ten dollars of deceased's average weekly  wage  in  excess  of  one
hundred  dollars;  provided  that in no case shall such reduction exceed
fifty per centum of such spouse's share of the survivors insurance bene-
fits under the social security act as set forth in table No. I in subdi-
vision one-c of this section. If there  be  a  surviving  spouse  of  an
employee  of a private voluntary hospital killed in a World Trade Center
rescue, who passed a physical examination upon employment  as  a  rescue
worker that failed to reveal evidence of a condition that was the proxi-
mate cause of death, and two or more surviving children under the age of
eighteen  years,  or under the age of twenty-three years if enrolled and
attending as a full-time student in an accredited  educational  institu-
tion  and  such enrollment and full-time attendance is certified by such
institution, or a surviving child or children of any age dependent blind
or physically disabled and a death occurs on or  after  September  elev-
enth,  two  thousand one, to such spouse forty per centum of the average
wage of the deceased during widowhood or widowerhood  [with  two  years'
compensation  in one sum upon remarriage]; and thirty-five per centum of
such wages to such children under the age of eighteen  years,  or  under
the  age  of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution,  or  a  surviving
child  or  children  of  any age dependent blind or physically disabled,
share and share alike; in case of the subsequent death of such surviving
spouse the surviving children shall have their compensation increased to
seventy-five per centum of such wages and the  aggregate  sum  shall  be
payable,  share  and  share  alike, so long as they are under the age of
eighteen years, or under the age of twenty-three years if  enrolled  and
attending  as  a full-time student in an accredited educational institu-
tion and such enrollment and full-time attendance is certified  by  such
institution, or a surviving child or children of any age dependent blind
or  physically  disabled.  [Upon remarriage of such surviving spouse, if
there be two surviving children  each  shall  receive  thirty-seven  and
one-half  per centum of such wages, and if there are surviving more than
two children under the age of eighteen years, or under the age of  twen-
ty-three  if enrolled and attending as a full-time student in an accred-

S. 4090                             7

ited educational institution and such enrollment and  full-time  attend-
ance  is certified by such institution, or a surviving child or children
of any age dependant blind  or  physically  disabled,  seventy-five  per
centum  of such wages share and share alike.] Upon statutory termination
of compensation payable  to  such  children,  the  compensation  of  the
surviving  spouse  shall be increased to seventy-five per centum of such
wages [with two years' compensation, at such  rate,  in  one  sum,  upon
remarriage].  Where the death occurs on or after September eleventh, two
thousand one, and the spouse is receiving survivors  insurance  benefits
under  the  social  security  act, the death benefits payable under this
section shall be reduced by five per centum of the spouse's share of the
survivors insurance benefits under the social security act for each  ten
dollars of deceased's average weekly wage in excess of one hundred fifty
dollars;  provided that in no case shall such reduction exceed fifty per
centum of said spouse's share of the survivors insurance benefits  under
the  social  security  act  as  set forth in table No. II in subdivision
two-a of this section.
  S 2. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.