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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| Jan 08, 2020 |
referred to labor |
| Apr 24, 2019 |
referred to labor |
Senate Bill S5302
2019-2020 Legislative Session
Relates to providing access to the workers' compensation system, timely and meaningful wage replacement benefits, and medical treatment; and to improve efficiency of the system and cost savings; repealer
download bill text pdfSponsored By
(D, WF) 13th Senate District
Archive: Last Bill Status - In Senate Committee Labor Committee
- Introduced
-
- In Committee Assembly
- In Committee Senate
-
- On Floor Calendar Assembly
- On Floor Calendar Senate
-
- Passed Assembly
- Passed Senate
- Delivered to Governor
- Signed By Governor
Actions
2019-S5302 (ACTIVE) - Details
- See Assembly Version of this Bill:
- A7045
- Current Committee:
- Senate Labor
- Law Section:
- Workers' Compensation Law
- Laws Affected:
- Rpld §12, §25 sub 2-b, amd Work Comp L, generally
- Versions Introduced in Other Legislative Sessions:
-
2021-2022:
A1146
2023-2024: A337
2019-S5302 (ACTIVE) - Sponsor Memo
BILL NUMBER: S5302
SPONSOR: RAMOS
TITLE OF BILL: An act to amend the workers' compensation law, in
relation to providing access to the workers' compensation system, timely
and meaningful wage replacement benefits, and medical treatment and to
improve efficiency of the system and cost savings; and to repeal certain
provisions of the workers' compensation law relating thereto
PURPOSE:
This bill would amend multiple sections of the workers' compensation law
to ensure that (1) injured workers have meaningful access to the work-
ers' compensation system; (2) timely and meaningful wage replacement
benefits and medical treatment are provided; (3) improve the efficiency
of the system; and (4) cost savings are passed on to employers.
SUMMARY OF PROVISIONS:
Section 1 partially abrogates the exclusive remedy provision of the
statute in situations where (1) the injury occurs as a result of the
employer's violation of a safety statute or regulation; or (2) the injured worker's compensation benefits are terminated as a result of the duration caps. This will enhance workplace safety, provide safety-cons- cious employers with a competitive advantage, and minimize the transfer of costs from employers to taxpayers and the public at large. Section 2 repeals the waiting period, in order to expedite timely first payment to injured workers. Section 3 creates a committee consisting of medical professionals, busi- ness, labor, the board, and appointees of the Legislature to conduct an annual review of the board's medical fee schedule. It prohibits the board from requiring out-of-state physicians from complying with the board's rules and regulations. It requires the employer or carrier to file with the board any medical records concerning a claim that come into the employer or carrier's possession. This will provide meaningful information and expertise to the board in adopting a fee schedule, codi- fy the existing principle that the board lacks the power to enforce its regulations outside of New York State, and ensure that information essential to a claim is equally available to the board and the injured worker. Section 4 clarifies that the term "independent medical examiner" is applicable only to physicians who examine on behalf of an employer or carrier. It also re-establishes the legislative intent that medical treatment guidelines be used to expedite, not deny, treatment for injured workers. It expands the threshold for authorization for special services not covered by the medical treatment guidelines from $1,000 to $2,000. Taken together, these amendments will expedite the delivery of medical treatment to injured workers. Section 5 clarifies that a health care provider has a right to be heard by the board on the issue of whether a medical bill should be paid. This will enable health care providers to adjust payment disputes directly with employers and carriers, instead of requiring injured workers to do so on their behalf. Section 6 establishes that the criteria for permanent total disability include the inability to perform sedentary work and approval for Social Security disability benefits as a result of the compensable injury. It defines temporary total disability as the inability to perform the at-injury employment or a reasonable alternative position offered by the employer. It increases the maximum award for a permanent facial disfig- urement from twenty thousand dollars to thirty thousand dollars. It ensures that benefits awarded for significant loss of function of a limb will be paid for the period intended by the statute, which is the date of eligibility for Social Security retirement benefits. It clarifies that a finding of permanent partial disability for an injury to one body part, unaccompanied by an award, does not preclude the payment of a schedule loss award, but provides a credit for payment of a schedule loss award against any later award for permanent partial disability. It clarifies that awards for permanent disability are payable to the depen- dents of a worker who dies for reasons other than the workplace injury. It reduces the time frames that define protracted healing period in recognition of the impact of advances in medicine. It clarifies that an injured worker's "loss of wage-earning capacity" is the inverse of his or her "wage-earning capacity." It establishes a statutory guideline for the circumstances in which the injured worker must show attachment to the labor market as a condition of receiving benefits. It increases the maximum compensation rate for workers injured between March 13, 2017 and July 1, 2017 from $400 per week to $500 per week to correspond to the effective date of the duration limits on permanent partial disability. It indexes the minimum benefit rate as twenty-five percent of the maxi- mum benefit rate. It establishes a cost of living adjustment mechanism to ensure that compensation benefits remain a meaningful source of wage replacement for workers who are permanently totally disabled and for the dependents of deceased workers. Taken together, these provisions ensure that injured workers will receive full and fair compensation for work- related injuries in view of the benefit limitations that occurred in 2007 and 2017. Section 7 applies the cost of living adjustment to permanent total disa- bility and death benefits. Section 8 eliminates the "remarriage penalty" for the surviving spouses of deceased workers. It eliminates the offset provision for social secu- rity survivor benefits for the surviving spouses of employees of private voluntary hospitals who died as a result of September 11, 2001 and for the surviving spouses of workers who died on or after January 1, 2016. Each of these anachronistic provisions reduce wage support for the survivors of workers who lost their lives in the course of their employ- ment. Section 9 creates a requirement for the board to provide service to workers with limited English proficiency. This provision will help to ensure that workers with limited English proficiency receive adequate information and are able to access the benefits provided by law. Section 10 requires the employer to show that it was prejudiced by late notice if that is the basis for the denial of a claim for compensation. This remedies the current interpretation of the law, in which the injured worker is required to show that the employer was not prejudiced by late notice. Section 11 requires the board to hold at least one hearing in every claim in order to be certain that workers are properly advised of their rights under the law. Section 12 creates a clear statutory mechanism for attorney fees in workers' compensation claims. This will provided much-needed clarity about attorney fees and provide injured workers with specific informa- tion about legal representation. Section 13 repeals the conciliation program, which has not been utilized. It clarifies that the board may not issue a decision without a hearing that provides the parties with notice and an opportunity to be heard. It requires the board to keep a stenographic record of all hear- ings. This will end the issuance of non-hearing determinations that do not comply with the statutory process, improving the delivery of infor- mation and enhancing access to benefits for injured workers. Section 14 limits an employer or carrier's lien right to the correspond- ent damages in a personal injury case, since there is no workers' compensation award for pain, suffering, or the loss of enjoyment of life. This will permit injured workers to retain some benefit from pursuing a personal injury lawsuit to the extent the personal injury recovery does not duplicate benefits provided by the workers' compen- sation law. Section 15 reduces the threshold for eligibility for the safety net to a fifty percent loss of wage earning capacity and provides a statutory definition for the "extreme hardship" requirement, and eliminates the arbitrary time frame within which the injured worker must make a safety net application. It establishes a requirement for return to work programs in order to return injured workers to gainful employment and thus limit the use of the safety net. These provisions will ensure that permanently disabled workers with significant injuries are provided with every opportunity to return to gainful employment, and adequate wage-re- placement benefits if they are unable to do so. Section 16 creates a requirement that insurers provide specified infor- mation to the board in order to create transparency about the use of employer premiums and to enable employers to compare insurers. Section 17 requires annual premium audits of employers in order to ensure a level playing field and reduce costs resulting from employer fraud. Section 18 codifies the rule in Liberius v. City of New York and Hazan v. World Trade Center Volunteer Fund that the board may not use "subject numbers" and other informal administrative guidance as a substitute for the regulatory process or appellate decisions. The judicial process affords litigants a due process right to an impartial determination based on the evidence and the law, and the latter consists of the stat- ute, cases, and duly enacted regulations, as opposed to informal agency guidance. Section 19 expands the coverage and increases the penalties for discrim- ination and retaliation against injured workers in the workers' compen- sation system. The existing statute and penalties are wholly inadequate to protect injured workers from workplace discrimination or to compen- sate them when it occurs. Section 20 clarifies that the term "independent medical examiner" is applicable only to physicians who examine on behalf of an employer or carrier. This amendment will expand access to health care providers for injured workers who require the assistance of expert opinion in obtain- ing compensation benefits. JUSTIFICATION: The 2007 and 2017 amendments to the Workers' Compensation Law were intended to improve benefits for injured workers while reducing costs for employers. Unfortunately, recent studies have shown a deterioration not only in worker benefits, but also in the ability of workers to obtain access to those benefits. The problem is particularly acute for low wage and immigrant workers, who face a wide range of obstacles in obtaining information and pursuing the benefits provided by law. The Workers' Compensation Reform Bill of 2019 preserves all of the elements of previous reform legislation, while ensuring that the bene- fits now provided by law are delivered to injured workers in a manner consistent with the fundamental intent of workers' compensation law: swiftly, surely, and through a worker-friendly process. At the same time, it expands on previous initiatives intended to provide transparen- cy for employers and to reduce costs for employers who maintain safe workplaces. The Reform Bill covers four areas in which the workers' compensation system can be substantially improved for workers, employers, and health care providers while retaining all of the previous reforms. Those areas are (1) medical care; (2) worker benefits; (3) due process and access to benefits; and (4) transparency. Medical Care The 2007 reform legislation directed the Chair of the Work- ers' Compensation Board to prepare a list of pre-authorized procedures in order to reduce delays in the delivery of medical treatment. Regret- tably, the Board's "Medical Treatment Guidelines" have operated as a "ceiling" on available medical treatment, rather than a "floor" to expe- dite a level of basic treatment. Because this is contrary to the original intent of the Legislature, Section 4 of the bill provides that the Board's Guidelines may only be used to approve, not deny, treatment and that requests for treatment that vary from the Guidelines should be decided as provided by the statute. In order to further reduce time-con- suming and costly disputes that delay a worker's recovery and diminish positive outcomes, the dollar amount required for pre-authorization is increased from $1,000 to $2,000. An employer or carrier remains free to dispute a medical bill in accordance with established procedures. Under current practice, health care providers whose bills are disputed are denied the right to be heard on the issue of payment. Instead, the burden is placed on the injured worker, who is in an inferior position to the health care provider where the issue relates to payment of a medical bill. Accordingly, Section 5 of the bill expressly provides that health care providers have standing to address payment of their bills. The workers' compensation medical fee schedule has been the subject of chronic complaint and debate, has generated substantial friction within the system, and results in inadequate and untimely reimbursement to health care providers. Section 3 of the bill creates a committee consisting of medical professionals and others to address these issues in a systematic and ongoing manner. Worker Benefits. Section 6 of the bill builds upon the 2007 and 2017 reforms in order to further define the circumstances in which benefits are due and to correct certain unintended consequences that have reduced benefits in a manner inconsistent with the legislative intent. This section (a) reduces friction and litigation associated with the determination of permanent total disability; (b) defines temporary total disability for the first time; (c) increases compensation for permanent facial disfig- urement, which has remained unchanged for over two decades; (d) ensures that workers who are permanently disabled from work due to a significant injury to a major limb remain eligible for wage replacement benefits until they reach retirement age; (e) expands the recognition included in the 2017 reform legislation that periods of temporary total disability have become shorter as a result of medical advances to the definition of "protracted healing period;" (f) defines the term "loss of wage earning capacity" as the inverse of "wage earning capacity;" (g) specifies the circumstances in which an injured worker is required to demonstrate attachment to the labor market as a condition of receiving benefits; (h) increases the maximum weekly benefit rate from $400 per week to $500 per week effective March 13, 2007 in order to coincide with the effective date of the time limitations on permanent partial disability; (i) indexes the minimum benefit rate to correspond to previous indexing of the maximum benefit rate; and (j) establishes a cost of living increase for workers who are permanently totally disabled and for the dependents of workers whose death arose out of their employment. Taken together, these provisions ensure that the benefits provided by the law will be delivered to injured workers with less controversy, and further that statutory benefits will not diminish to irrelevance without further legislative action. Section 2 of the bill eliminates the statutory wait- ing period, which will reduce the time period an injured worker must go without compensation following a work related injury; Section 8 of the bill eliminates the "remarriage penalty" for the surviving spouses of deceased workers, and also eliminates the statutory offset for social security survivors benefits for deaths that occurred on or after January 1, 2016 and for employees of private voluntary hospital who died on September 11th. Both the remarriage penalty and the offset for social security survivors benefits are anachronisms that unnecessarily reduce or terminate benefits for the survivors of workers who died in the course of their employment. When a worker is injured because of the negligence of a third party, he or she is permitted to bring a lawsuit against the third party in addi- tion to receiving workers' compensation benefits. The Workers' Compen- sation Law gives the employer or insurer a lien on the workers' recov- ery, regardless of whether it is for lost wages and medical expenses (which are covered by workers' compensation) or pain and suffering (which is not). As a result, much or even all of an injured worker's personal injury recovery is often repaid to the employer or insurer, leaving the worker with little or nothing. Section 8 of the bill limits the workers' compensation lien to the portion of a personal injury recovery that corresponds to the workers' compensation benefits paid. This prevents a double recovery while ensur- ing that the worker will be compensated for the portion of his or her damages that are not covered by workers' compensation. Due Process and Access to Benefits. It is challenging for injured workers to access the workers' compen- sation system and to obtain benefits. Low wage and immigrant workers often face substantial additional barriers related to language, litera- cy, and other considerations. It is critical that injured workers be provided with meaningful access to the system and full due process rights in order to be certain that they have adequate not ice of the issues at stake and benefits involved in their claim, and a full and. fair opportunity to be heard and to submit evidence in support of their claims. Section 9 of the bill expands access to the system for immigrant workers by directing the Workers' Compensation Board to create and implement a language access plan. Section 19 of the bill expands the coverage of the statutory discrimination provision and increases the penalties for violations, further protecting the most vulnerable population of injured workers. The 2007 reforms created a "safety net" for permanently disabled workers who could not return to work and who would face extreme hardship. This provision was amended by the 2017 reform legislation. Section 15 of this bill again amends the safety net provision to expand its coverage and to define "extreme hardship" in order to provide guidance about eligibility. This provision ensures that workers who are permanently disabled and cannot return to work receive the full measure of benefits provided by the law. It also requires the creation and implementation of meaningful return-to-work programs that will minimize the use of the safety nets, while benefiting both workers and employers. For a variety of reasons, injured workers are not always able to obtain medical evidence from a treating physician. This problem exists in some geographic regions of the state in which there is a scarcity of medical resources, and within some medical specialties due to a shortage of providers who are authorized to provide treatment by the Board. Section 20 of the bill makes it clear that an injured worker may seek treatment or a second opinion from a health care provider without such a provider being deemed an "independent medical examiner" subject to the complex technical rules applicable to employers and carriers. This provision will expand the availability of medical resources for injured workers while reducing technical and legal obstacles that can result in the delay or denial of their claims. An employer is entitled to notice of a work-related injury within 30 days of the accident. However, the Board may exercise its discretion to excuse late notice if it finds that the employer was not prejudiced by the delay. Judicial decisions currently (and illogically) hold that the worker bears the burden of showing that the employer was not prejudiced, instead of requiring the employer to demonstrate prejudice. Section 10 of the bill would place the burden of proof on the issue of prejudice on the employer, which is in the best position to show what it would or would not have done had it received timely notice. The best means of communicating information to injured workers about their right to benefits and of providing meaningful due process is to provide a hearing. The 1996 workers' compensation reform legislation established a "conciliation" program with a number of statutory require- ments, including a conciliation meeting to ensure that the injured work- er understood the process and that the rights of the parties were adequately protected. This process has not been employed in the manner required by law in over two decades, and has instead been utilized to issue administrative determinations without the benefit of a meeting or hearing. Section 13 of the bill repeals the conciliation statute, there- by prohibiting the issuance of a decision without a hearing being held. Similarly, Section 11 of the bill requires the Board to hold at least one hearing in each claim in order to ensure the workers are provided adequate notice of their rights and at least one opportunity to be heard. Section 13 requires the Board to maintain a stenographic record of all proceedings in order to ensure that an accurate transcript is available for review and use by the parties and the Board. These amend- ments do not impair the ability of the parties to stipulate to findings of fact or law that may be implemented without a hearing. Many injured workers choose to retain counsel to assist them in their claims. Unlike other areas of the law in which the lawyer and client enter into a written retainer describing a specific contingency fee or hourly rate, or where the attorney fee is fixed by statute, the Workers' Compensation Law presently requires attorneys to make an application to the Board for approval of a fee. This results in a lack of clarity and predictability for workers, who are unable to know what the legal fee will be at the time they retain counsel. Moreover, it can engender conflict between the attorney and client, and imposes a burden on the Board to consider and determine attorney fees in each and every case. Section 12 of the bill replaces this process by establishing a clear contingency-fee retainer. This will provide certainty and clarity to injured workers about their potential legal expense at the time they retain an attorney, ensure that the interests of the attorney and the injured worker are harmonious, and reduce the administrative burden of the Board. Transparency. Sections 1, 16 and 17 of the bill are intended to provide employers with transparency about their insurance costs and to relieve law-abiding and safety-conscious employers from the burden of subsidizing those who are not. The Workers' Compensation Law currently prohibits an injured worker from suing his or her employer for personal injury, even where the employer was grossly negligent or the injury was the result of egregious safety violations. As a result of this provision, some portion of the cost of workplace injury is mutualized among all employers who purchase workers' compensation coverage from the same insurer. Section 1 of the bill permits an injured worker to sue his or her employer for personal injury where the accident was the result of the violation of a safety statute or regulation, or where the worker's benefits have been terminated as a result of permanent partial disability time limitations. This provision will encourage employers to focus on workplace safety, reducing the incidence of accidents and injuries and ultimately reducing costs across the board. It will more immediately reduce costs for safety-conscious employers, providing them with a competitive advantage. And it will provide a significant incentive for employers to create and implement the return-to-work programs required by Section 15 of the bill, reducing workers' compensation costs and increasing productivity. Similarly, section 17 of the bill would require all insurers to conduct annual premium audits of employers in order to identify misclassification, underreporting of payroll, and other activities that increase employer costs. Section 16 of the bill would require workers' compensation insurers to provide the Board with information about how employer premium dollars are spent. This will enable the Board to publish a subset of the data, which employers can review in order to select an appropriate insurer. Conclusion. Taken as a whole, this legislation will improve access to, delivery and quality of benefits for injured workers, reduce litigation and friction within the workers' compensation system, and create opportunities for safety-conscious employers to reduce costs, increase productivity, and obtain a competitive advantage in the marketplace. LEGISLATIVE HISTORY: New bill FISCAL IMPLICATIONS: None EFFECTIVE DATE: This act shall take effect immediately.
2019-S5302 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
5302
2019-2020 Regular Sessions
I N S E N A T E
April 24, 2019
___________
Introduced by Sen. RAMOS -- 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 providing
access to the workers' compensation system, timely and meaningful wage
replacement benefits, and medical treatment and to improve efficiency
of the system and cost savings; and to repeal certain provisions of
the workers' compensation law relating thereto
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The opening paragraph of section 11 of the workers' compen-
sation law, as amended by section 8 of part SS of chapter 59 of the laws
of 2017, is amended to read as follows:
The liability of an employer prescribed by the last preceding section
shall be exclusive and in place of any other liability whatsoever, to
such employee, his or her personal representatives, spouse, parents,
dependents, distributees, or any person otherwise entitled to recover
damages, contribution or indemnity, at common law or otherwise, on
account of such injury or death or liability arising therefrom, except
[that if an] IN THE FOLLOWING EVENTS: (I) THE EMPLOYER'S VIOLATION OF AN
APPLICABLE STATUTE OR REGULATION INVOLVING WORKPLACE SAFETY WAS A PROXI-
MATE CAUSE OF THE EMPLOYEE'S INJURY OR DEATH; (II) THE EMPLOYEE'S BENE-
FITS HAVE BEEN TERMINATED PURSUANT TO PARAGRAPH W OF SUBDIVISION THREE
OF SECTION FIFTEEN OF THIS ARTICLE; OR (III) THE employer fails to
secure the payment of compensation for his or her injured employees and
their dependents as provided in section fifty of this article. IN SUCH
EVENTS, an injured employee, or his or her legal representative in case
of death results from the injury, may, at his or her option, elect to
claim compensation under this chapter, or to maintain an action in the
courts for damages on account of such injury[; and in such an action it
shall not be necessary to plead or prove freedom from contributory
negligence nor may the defendant plead as a defense that the injury was
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10935-01-9
S. 5302 2
caused by the negligence of a fellow servant nor that the employee
assumed the risk of his or her employment, nor that the injury was due
to the contributory negligence of the employee.] WHERE AN ACTION IS
BROUGHT PURSUANT TO THE EMPLOYEE'S BENEFITS BEING TERMINATED PURSUANT TO
PARAGRAPH W OF SUBDIVISION THREE OF SECTION FIFTEEN OF THIS ARTICLE, ANY
APPLICABLE STATUTE OF LIMITATIONS SHALL BE TOLLED FROM THE DATE OF INJU-
RY UNTIL THE DATE THE EMPLOYEE'S BENEFITS ARE TERMINATED. THE EMPLOYER
SHALL BE ENTITLED TO TAKE CREDIT FOR COMPENSATION PAID UNDER THIS CHAP-
TER AGAINST ANY DAMAGES AWARDED IN AN ACTION BROUGHT IN THE COURTS FOR
DAMAGES. The liability under this chapter of The New York Jockey Injury
Compensation Fund, Inc. created under section two hundred twenty-one of
the racing, pari-mutuel wagering and breeding law shall be limited to
the provision of workers' compensation coverage to jockeys, apprentice
jockeys, exercise persons, and at the election of the New York Jockey
Injury Compensation Fund, Inc., with the approval of the New York state
gaming commission, employees of licensed trainers or owners licensed
under article two or four of the racing, pari-mutuel wagering and breed-
ing law and any statutory penalties resulting from the failure to
provide such coverage.
§ 2. Section 12 of the workers' compensation law is REPEALED.
§ 3. Subdivisions (a), (b) and (g) of section 13 of the workers'
compensation law, subdivision (a) as amended by chapter 6 of the laws of
2007, the opening paragraph of subdivision (a) as amended by chapter 23
of the laws of 2016, subdivision (b) as amended by chapter 113 of the
laws of 1946 and subdivision (g) as separately amended by chapters 834
and 922 of the laws of 1990, are amended to read as follows:
(a) The employer shall promptly provide for an injured employee such
medical, dental, surgical, optometric or other attendance or treatment,
nurse and hospital service, medicine, optometric services, crutches,
eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
devices, functional assistive and adaptive devices and apparatus for
such period as the nature of the injury or the process of recovery may
require. The employer shall be liable for the payment of the expenses of
medical, dental, surgical, optometric or other attendance or treatment,
nurse and hospital service, medicine, optometric services, crutches,
eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
devices, functional assistive and adaptive devices and apparatus, as
well as artificial members of the body or other devices or appliances
necessary in the first instance to replace, support or relieve a portion
or part of the body resulting from and necessitated by the injury of an
employee, for such period as the nature of the injury or the process of
recovery may require, and the employer shall also be liable for replace-
ments or repairs of such artificial members of the body or such other
devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
ic devices, functional assistive and adaptive devices or appliances
necessitated by ordinary wear or loss or damage to a prosthesis, with or
without bodily injury to the employee. Damage to or loss of a prosthetic
device shall be deemed an injury except that no disability benefits
shall be payable with respect to such injury under section fifteen of
this article. Such a replacement or repair of artificial members of the
body or such other devices, eye-glasses, false teeth, artificial eyes,
orthotics, prosthetic devices, functional assistive and adaptive devices
or appliances or the providing of medical treatment and care as defined
herein shall not constitute the payment of compensation under section
twenty-five-a of this article. All fees and other charges for such
treatment and services shall be limited to such charges as prevail in
S. 5302 3
the same community for similar treatment of injured persons of a like
standard of living.
The chair shall [prepare and] establish a COMMITTEE TO DETERMINE THE
schedule for the state, or schedules limited to defined localities, of
charges and fees for such medical treatment and care, and including all
medical, dental, surgical, optometric or other attendance or treatment,
nurse and hospital service, medicine, optometric services, crutches,
eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
devices, functional assistive and adaptive devices and apparatus [in
accordance with and to be subject to change pursuant to rules promulgat-
ed by the chair. Before preparing such schedule for the state or sched-
ules for limited localities the chair shall request]. THE MEMBERS OF THE
COMMITTEE SHALL BE the president of the medical society of the state of
New York [and], the president of the New York state osteopathic medical
society [to submit to him or her a report on], THE PRESIDENT OF THE NEW
YORK STATE SOCIETY OF ORTHOPEDISTS, THE PRESIDENT OF THE NEW YORK STATE
AFL/CIO, THE PRESIDENT OF THE BUSINESS COUNCIL OF THE STATE OF NEW YORK,
AN INDIVIDUAL DESIGNATED BY THE SENATE MAJORITY LEADER, AN INDIVIDUAL
DESIGNATED BY THE SPEAKER OF THE ASSEMBLY, AND THE CHAIR OF THE BOARD.
THE COMMITTEE SHALL MEET ANNUALLY IN ORDER TO DETERMINE the amount of
remuneration deemed [by such society] to be fair and adequate for the
types of medical care to be rendered under this chapter, but consider-
ation shall be given to the view of other interested parties. In the
case of physical therapy fees schedules the chair shall request the
president of a recognized professional association representing physical
therapists in the state of New York to submit to [him or her] THE
COMMITTEE a report on the amount of remuneration deemed by such associ-
ation to be fair and reasonable for the type of physical therapy
services rendered under this chapter, but consideration shall be given
to the views of other interested parties. The chair shall also prepare
and establish a schedule for the state, or schedules limited to defined
localities, of charges and fees for outpatient hospital services not
covered under the medical fee schedule previously referred to in this
subdivision, to be determined in accordance with and to be subject to
change pursuant to rules promulgated by the chair. Before preparing such
schedule for the state or schedules for limited localities the chair
shall request the president of the hospital association of New York
state to submit to [him or her] THE COMMITTEE a report on the amount of
remuneration deemed by such association to be fair and adequate for the
types of hospital outpatient care to be rendered under this chapter, but
consideration shall be given to the views of other interested parties.
In the case of occupational therapy fees schedules the chair shall
request the president of a recognized professional association repres-
enting occupational therapists in the state of New York to submit to
[him or her] THE COMMITTEE a report on the amount of remuneration deemed
by such association to be fair and reasonable for the type of occupa-
tional therapy services rendered under this chapter, but consideration
shall be given to the views of other interested parties. The amounts
payable by the employer for such treatment and services shall be the
fees and charges established by such schedule. Nothing in this sched-
ule, however, shall prevent voluntary payment of amounts higher or lower
than the fees and charges fixed therein, but no physician rendering
medical treatment or care, and no physical or occupational therapist
rendering their respective physical or occupational therapy services may
receive payment in any higher amount unless such increased amount has
been authorized by the employer, or by decision as provided in section
S. 5302 4
thirteen-g of this article. Nothing in this section shall be construed
as preventing the employment of a duly authorized physician on a salary
basis by an authorized compensation medical bureau or laboratory.
(b) In the case of persons, injured OR RESIDING AND RECEIVING MEDICAL
TREATMENT outside of this state, but entitled to compensation or bene-
fits under this chapter, the provisions as to selection of authorized
physicians AND THE RULES AND REGULATIONS OF THE BOARD GOVERNING MEDICAL
TREATMENT WITHIN THE STATE shall be inapplicable. In such cases the
employer shall promptly provide all necessary medical treatment and care
but if the employer fail to provide the same, after request by the
injured employee such injured employee may do so at the expense of the
employer. The employee shall not be entitled to recover any amount
expended by him for such treatment or services unless he shall have
requested the employer to furnish the same and the employer shall have
refused or neglected to do so, or unless the nature of the injury
required such treatment and services and the employer or his superinten-
dent or foreman having knowledge of such injury shall have neglected to
provide the same; nor shall any claim for medical or surgical treatment
be valid and enforceable, as against such employer, unless within twenty
days following the first treatment, the physician giving such treatment,
furnish to the employer and the chairman a report of such injury and
treatment, on a form prescribed by the chairman. The board may, however,
by the unanimous vote of a panel of not less than three members quali-
fied to act, excuse the failure to give such notice within twenty days
when it finds it to be in the interest of justice to do so, and may,
subject to the limitations contained in section twenty-eight of this
[chapter] ARTICLE, make an award for the reasonable value of such
medical or surgical treatment. All fees and other charges for such
treatment and services, whether furnished by the employer or otherwise,
shall be subject to regulation by the board as provided in section twen-
ty-four of this [chapter] ARTICLE, and shall be limited to such charges
as prevail in the same community for similar treatment of injured
persons of a like standard of living.
(g) Every hospital operating in the state shall, within twenty days of
receiving a written request by a claimant, claimant's representative,
employer, carrier or special fund created under this chapter, provide to
such claimant, claimant's representative, employer, carrier or special
fund for use in board proceedings the medical records of an employee who
has received treatment in such hospital and who is claiming benefits
under this chapter. Each hospital shall designate at least one officer
or employee who shall be responsible for provision of such records on
written request, and to whom the board, claimant, claimant's, employer,
carrier representative or special fund may address informal inquiries
regarding provision of such records.
No hospital shall be required to produce the records of any claimant
pursuant to this section without receiving the cost of copying such
records as determined by the chair. Such cost shall be paid by the
requesting party except that the employer or carrier or special fund
shall reimburse a claimant or claimant's representative the cost of an
initial set of such records where the request is made by a claimant or
claimant's representative. Should the hospital not be able to provide
the requested records within twenty days, they shall notify in writing
the party requesting the records of the reason why the records were not
provided and the date on which they will be provided. Such date shall be
within a reasonable period of time, but shall not exceed thirty days.
Failure to either provide the records within twenty days or to provide a
S. 5302 5
reason why the records have not been provided shall subject the hospital
to a fine of two hundred dollars which shall be imposed by the chair
payable to the board upon finding that this subdivision has not been
complied with. No hospital shall be required to produce the records of
any claimant without receiving its customary fees or charges for reprod-
uction of such records. THE EMPLOYER OR CARRIER SHALL FILE WITH THE
BOARD ANY HOSPITAL OR MEDICAL RECORDS CONCERNING AN INJURED WORKER THAT
COME INTO ITS POSSESSION AND HAVE NOT BEEN PREVIOUSLY FILED WITH THE
BOARD.
§ 4. Paragraphs (d), (e) and the closing paragraph of subdivision 4
and subdivision 5 of section 13-a of the workers' compensation law,
paragraphs (d), (e) and the closing paragraph of subdivision 4 as
amended by chapter 473 of the laws of 2000 and subdivision 5 as amended
by chapter 6 of the laws of 2007 and as further amended by section 104
of part A of chapter 62 of the laws of 2011, are amended to read as
follows:
(d) The independent medical examiner ON BEHALF OF THE EMPLOYER OR
CARRIER shall provide such reports and shall submit to investigation as
required by the chair.
(e) In order to qualify as admissible medical evidence, for purposes
of adjudicating any claim under this chapter, any report submitted to
the board by an independent medical examiner ON BEHALF OF THE EMPLOYER
OR CARRIER licensed by the state of New York shall include the follow-
ing:
(i) a signed statement certifying that the report is a full and truth-
ful representation of the independent medical examiner's professional
opinion with respect to the claimant's condition[:];
(ii) such examiner's board issued authorization number;
(iii) the name of the individual or entity requesting the examination;
(iv) if applicable, the registration number as required by section
thirteen-n of this article; and
(v) such other information as the chair may require by regulation.
Any report by an independent medical examiner ON BEHALF OF THE EMPLOY-
ER OR CARRIER who is not authorized, and who performs an independent
medical examination in accordance with paragraph (c) of this subdivi-
sion, which is to be used as medical evidence under this chapter, shall
include in the report such information as the chair may require by regu-
lation.
(5) No claim for specialist consultations, surgical operations,
physiotherapeutic or occupational therapy procedures, x-ray examinations
or special diagnostic laboratory tests costing more than one thousand
dollars shall be valid and enforceable, as against such employer, unless
such special services shall have been authorized by the employer or by
the board, or unless such authorization has been unreasonably withheld,
or withheld for a period of more than thirty calendar days from receipt
of a request for authorization, or unless such special services are
required in an emergency, provided, however, that the basis for a denial
of such authorization by the employer must be based on a conflicting
second opinion rendered by a physician authorized by the board. The
board, with the approval of the superintendent of financial services,
shall issue and maintain a list of pre-authorized procedures under this
section, WHICH SHALL NOT BE USED TO DENY MEDICAL TREATMENT THAT VARIES
FROM SUCH LIST OR WHICH OCCURS OUTSIDE OF THE STATE.
§ 5. Subdivision 1 of section 13-f of the workers' compensation law,
as amended by chapter 353 of the laws of 1990, is amended to read as
follows:
S. 5302 6
(1) Fees for medical services shall be payable only to a physician or
other qualified person permitted by sections thirteen-b, thirteen-k,
thirteen-l and thirteen-m of this [chapter] ARTICLE or other authorized
provider of health care under the education law or the public health law
permitted to render medical care or treatment under this chapter, or to
the agent, executor or administrator of the estate of such physician or
such other qualified person. Except as provided in section thirteen-d
of this [chapter] ARTICLE, no provider of health care rendering medical
care or treatment to a compensation claimant, shall collect or receive a
fee from such claimant within this state, but shall have recourse for
payment of services rendered only to the employer under the provisions
of this chapter. WHERE AN ISSUE ARISES REGARDING A MEDICAL FEE, A
PROVIDER OF HEALTH CARE SHALL HAVE THE RIGHTS PROVIDED BY SECTIONS TWEN-
TY AND TWENTY-THREE OF THIS ARTICLE. Any compensation claimant who pays
a fee to a provider of health care for medical care or treatment under
this chapter shall have a cause of action against such provider of
health care for the recovery of the money paid, which cause of action
may be assigned to the chair in trust for the assigning claimant. All
such assignments shall run to the chair. The chair may sue the physi-
cian, or other authorized provider of health care as herein described on
the assigned cause of action with the benefits and subject to the
provisions of existing law applying to such actions by the claimant
himself or herself. Hospitals shall not be entitled to receive the
remuneration paid to physicians on their staff for medical and surgical
services.
§ 6. Subdivisions 1, 2, paragraphs s, t, v and w of subdivision 3,
subdivisions 4, 4-a, 5 and paragraph (a) of subdivision 6 of section 15
of the workers' compensation law, subdivision 1 as amended by chapter
675 of the laws of 1977, subdivision 2 as amended by chapter 161 of the
laws of 1966, paragraph s of subdivision 3 as amended by chapter 204 of
the laws of 1988, paragraph t of subdivision 3 as amended by chapter 774
of the laws of 1945, subparagraphs 1 and 2 of paragraph t of subdivision
3 as amended by chapter 924 of the laws of 1990, paragraph v of subdivi-
sion 3 as amended by chapter 364 of the laws of 1989, paragraph w of
subdivision 3 as amended by section 1 of subpart A of part NNN of chap-
ter 59 of the laws of 2017, subdivision 4 as amended by chapter 168 of
the laws of 1979, subdivision 4-a as amended by chapter 712 of the laws
of 1941, subdivision 5 as amended by chapter 161 of the laws of 1966,
paragraph (a) of subdivision 6 as amended by section 7-a of part GG of
chapter 57 of the laws of 2013, are amended and a new subdivision 10 is
added to read as follows:
1. Permanent total disability. In case of total disability adjudged to
be permanent sixty-six and two-thirds per centum of the average weekly
wages shall be paid to the employee during the continuance of such total
disability. Loss of both hands, or both arms, or both feet, or both
legs, or both eyes, or of any two thereof, OR INABILITY TO PERFORM THE
FULL RANGE OF SEDENTARY WORK, OR APPROVAL FOR FEDERAL SOCIAL SECURITY
DISABILITY BENEFITS AS A RESULT OF THE COMPENSABLE ACCIDENT OR OCCUPA-
TIONAL DISEASE shall, in the absence of conclusive proof to the contra-
ry, constitute permanent total disability. In all other cases permanent
total disability shall be determined in accordance with the facts.
Notwithstanding any other provision of this chapter, an injured employee
disabled due to the loss or total loss of use of both eyes, or both
hands, or both arms, or both feet, or both legs, or of any two thereof
shall not suffer any diminution of his compensation by engaging in busi-
ness or employment provided his earnings or wages, when combined with
S. 5302 7
his compensation, shall not be in excess of the wage base on which the
maximum weekly compensation benefit is computed under the law in effect
at time of such earning; further provided, that if the combination
exceeds such wage base, the compensation shall be diminished to an
amount which, together with his earnings or wages, shall equal the wage
base; and further provided that the application of this subdivision
shall not result in reduction of compensation which an injured employee
who is disabled due to the loss or total loss of use of both eyes, or
both hands, or both arms, or both feet, or both legs or of any two ther-
eof, would otherwise be entitled to under any other provision of this
section.
2. Temporary total disability. In case of temporary total disability,
WHICH SHALL CONSIST OF THE INJURED EMPLOYEE'S INABILITY TO PERFORM HIS
OR HER AT-INJURY EMPLOYMENT OR ANY MODIFIED EMPLOYMENT OFFERED BY THE
EMPLOYER THAT IS CONSISTENT WITH THE EMPLOYEE'S DISABILITY, sixty-six
and two-thirds per centum of the average weekly wages shall be paid to
the employee during the continuance thereof, except as otherwise
provided in this chapter.
s. Partial loss or partial loss of use. Compensation for permanent
partial loss or loss of use of a member [may] SHALL be for proportionate
loss or loss of use of the member. Compensation for permanent partial
loss or loss of use of an eye shall be awarded on the basis of uncor-
rected loss of vision or corrected loss of vision resulting from an
injury whichever is the greater.
t. Disfigurement. 1. The board may award proper and equitable compen-
sation for serious facial or head disfigurement, not to exceed [twenty]
THIRTY thousand dollars, including a disfigurement continuous in length
which is partially in the facial area and also extends into the neck
region as described in [paragraph] SUBPARAGRAPH two [hereof] OF THIS
PARAGRAPH.
2. The board, if in its opinion the earning capacity of an employee
has been or may in the future be impaired, may award compensation for
any serious disfigurement in the region above the sterno clavicular
articulations anterior to and including the region of the sterno cleido
mastoid muscles on either side, but no award under subdivisions one and
two OF THIS SECTION shall, in the aggregate, exceed [twenty] THIRTY
thousand dollars.
3. Notwithstanding any other provision hereof, two or more serious
disfigurements, not continuous in length, resulting from the same inju-
ry, if partially in the facial area and partially in the neck region as
described in [paragraph] SUBPARAGRAPH two [hereof] OF THIS PARAGRAPH,
shall be deemed to be a facial disfigurement.
v. Additional compensation for impairment of wage earning capacity in
certain permanent partial disabilities. Notwithstanding any other
provision of this subdivision, additional compensation shall be payable
for impairment of wage earning capacity for any period after the termi-
nation of an award under paragraphs a, b, c, or d, of this subdivision
for the loss or loss of use of [fifty] FORTY per centum or more of a
member, provided such impairment of earning capacity shall be due solely
thereto. Such additional compensation shall be determined in accordance
with paragraph w of this subdivision, BUT SHALL NOT CEASE UNTIL THE DATE
THE DISABLED EMPLOYEE RECEIVES OR IS ENTITLED TO RECEIVE OLD-AGE INSUR-
ANCE BENEFITS UNDER THE SOCIAL SECURITY ACT. The additional compensation
shall be reduced by fifty per centum of any amount of disability bene-
fits which the disabled employee is receiving or entitled to receive for
the same period under the social security act, [and shall cease on the
S. 5302 8
date the disabled employee receives or is entitled to receive old-age
insurance benefits under the social security act]. As soon as practica-
ble after the injury, the worker shall be required to participate in a
board approved rehabilitation program; or shall have demonstrated coop-
eration with efforts to institute such a board approved program and
shall have been determined by the board not to be a feasible candidate
for rehabilitation; such rehabilitation shall constitute treatment and
care as provided in this chapter.
w. Other cases. In all other cases of permanent partial disability,
the compensation shall be sixty-six and two-thirds percent of the
difference between the injured employee's average weekly wages and his
or her wage-earning capacity thereafter in the same employment or other-
wise. NOTHING IN THIS PARAGRAPH SHALL PRECLUDE THE PAYMENT OF COMPEN-
SATION UNDER PARAGRAPHS A THROUGH T OF THIS SUBDIVISION, HOWEVER, THE
EMPLOYER OR CARRIER SHALL BE ENTITLED TO TAKE CREDIT FOR ANY PAYMENT OF
COMPENSATION UNDER SUCH PARAGRAPHS A THROUGH T AGAINST A PAYMENT OF
COMPENSATION UNDER THIS PARAGRAPH. Compensation under this paragraph
shall be payable during the continuance of such permanent partial disa-
bility, without the necessity for the claimant who is entitled to bene-
fits at the time of classification to demonstrate ongoing attachment to
the labor market, but subject to reconsideration of the degree of such
impairment by the board on its own motion or upon application of any
party in interest however, all compensation payable under this paragraph
shall not exceed (i) five hundred twenty-five weeks in cases in which
the loss of wage-earning capacity is greater than ninety-five percent;
(ii) five hundred weeks in cases in which the loss of wage-earning
capacity is greater than ninety percent but not more than ninety-five
percent; (iii) four hundred seventy-five weeks in cases in which the
loss of wage-earning capacity is greater than eighty-five percent but
not more than ninety percent; (iv) four hundred fifty weeks in cases in
which the loss of wage-earning capacity is greater than eighty percent
but not more than eighty-five percent; (v) four hundred twenty-five
weeks in cases in which the loss of wage-earning capacity is greater
than seventy-five percent but not more than eighty percent; (vi) four
hundred weeks in cases in which the loss of wage-earning capacity is
greater than seventy percent but not more than seventy-five percent;
(vii) three hundred seventy-five weeks in cases in which the loss of
wage-earning capacity is greater than sixty percent but not more than
seventy percent; (viii) three hundred fifty weeks in cases in which the
loss of wage-earning capacity is greater than fifty percent but not more
than sixty percent; (ix) three hundred weeks in cases in which the loss
of wage-earning capacity is greater than forty percent but not more than
fifty percent; (x) two hundred seventy-five weeks in cases in which the
loss of wage-earning capacity is greater than thirty percent but not
more than forty percent; (xi) two hundred fifty weeks in cases in which
the loss of wage-earning capacity is greater than fifteen percent but
not more than thirty percent; and (xii) two hundred twenty-five weeks in
cases in which the loss of wage-earning capacity is fifteen percent or
less. For a claimant with a date of accident or disablement after the
effective date of [the] SECTION ONE OF SUBPART A OF PART NNN OF chapter
59 of the laws of two thousand seventeen [that amended this subdivi-
sion], where the carrier or employer has provided compensation pursuant
to subdivision five of this section beyond one hundred thirty weeks from
the date of accident or disablement, all subsequent weeks in which
compensation was paid shall be considered to be benefit weeks for
purposes of this section, with the carrier or employer receiving credit
S. 5302 9
for all such subsequent weeks against the amount of maximum benefit
weeks when permanent partial disability under this section is deter-
mined. In the event of payment for intermittent temporary partial disa-
bility paid after one hundred thirty weeks from the date of accident or
disablement, such time shall be reduced to a number of weeks, for which
the carrier will receive a credit against the maximum benefit weeks. For
a claimant with a date of accident or disablement after the effective
date of [the] SECTION ONE OF SUBPART A OF PART NNN OF chapter 59 of the
laws of two thousand seventeen [that amended this subdivision], when
permanency is at issue, and a claimant has submitted medical evidence
that he or she is not at maximum medical improvement, and the carrier
has produced or has had a reasonable opportunity to produce an independ-
ent medical examination concerning maximum medical improvement, and the
board has determined that the claimant is not yet at maximum medical
improvement, the carrier shall not receive a credit for benefit weeks
prior to a finding that the claimant has reached maximum medical
improvement, at which time the carrier shall receive credit for any
weeks of temporary disability paid to claimant after such finding
against the maximum benefit weeks awarded under this subdivision. For
those claimants classified as permanently partially disabled who no
longer receive indemnity payments because they have surpassed their
number of maximum benefit weeks, the following provisions will apply:
(1) There will be a presumption that medical services shall continue
notwithstanding the completion of the time period for compensation set
forth in this section and the burden of going forward and the burden of
proof will lie with the carrier, self-insured employer or state insur-
ance fund in any application before the board to discontinue or suspend
such services. Medical services will continue during the pendency of any
such application and any appeals thereto.
(2) The board is directed to promulgate regulations that establish an
independent review and appeal by an outside agent or entity of the
board's choosing of any administrative law judge's determination to
discontinue or suspend medical services before a final determination of
the board.
4. Effect of award. An award made to a claimant under ANY PARAGRAPH OF
subdivision three OF THIS SECTION shall in case of death arising from
causes other than the injury be payable to and for the benefit of the
persons following:
a. If there be a surviving spouse and no child of the deceased under
the age of eighteen years, to such spouse.
b. If there be a surviving spouse and surviving child or children of
the deceased under the age of eighteen years, one-half shall be payable
to the surviving spouse and the other half to the surviving child or
children.
The board may in its discretion require the appointment of a guardian
for the purpose of receiving the compensation of the minor child. In the
absence of such a requirement by the board the appointment for such a
purpose shall not be necessary.
c. If there be a surviving child or children of the deceased under the
age of eighteen years, but no surviving spouse then to such child or
children.
d. If there be no surviving spouse and no surviving child or children
of the deceased under the age of eighteen years, then to such dependent
or dependents as defined in section sixteen of this [chapter] ARTICLE,
as directed by the board; and if there be no such dependents, then to
the estate of such deceased [in an amount not exceeding reasonable
S. 5302 10
funeral expenses] as provided in subdivision one of section sixteen of
this [chapter] ARTICLE, or, if there be no estate, to the person or
persons paying the funeral expenses of such deceased in an amount not
exceeding reasonable funeral expenses as provided in subdivision one of
section sixteen of this [chapter] ARTICLE.
An award for disability may be made after the death of the injured
employee.
4-a. Protracted temporary total disability in connection with perma-
nent partial disability. In case of temporary total disability and
permanent partial disability both resulting from the same injury, if the
temporary total disability continues for a longer period than the number
of weeks set forth in the following schedule, the period of temporary
total disability in excess of such number of weeks shall be added to the
compensation period provided in subdivision three of this section: Arm,
[thirty-two] SIXTEEN weeks; leg, [forty] TWENTY weeks; hand, [thirty-
two] SIXTEEN weeks; foot, [thirty-two] SIXTEEN weeks; ear, [twenty-five]
TWELVE weeks; eye, [twenty] TEN weeks; thumb, [twenty-four] TWELVE
weeks; first finger, [eighteen] NINE weeks; great toe, [twelve] SIX
weeks; second finger, [twelve] SIX weeks; third finger, [eight] FOUR
weeks; fourth finger, [eight] FOUR weeks; toe other than great toe,
[eight] FOUR weeks.
In any case resulting in loss or partial loss of use of arm, leg,
hand, foot, ear, eye, thumb, finger or toe, where the temporary total
disability does not extend beyond the periods above mentioned for such
injury, compensation shall be limited to the schedule contained in
subdivision three.
5. Temporary partial disability. In case of temporary partial disabil-
ity resulting in decrease of earning capacity, the compensation shall be
two-thirds of the difference between the injured employee's average
weekly wages before the accident and his wage earning capacity after the
accident in the same or other employment, WHICH DIFFERENCE SHALL BE THE
INJURED EMPLOYEE'S LOSS OF WAGE-EARNING CAPACITY. COMPENSATION UNDER
THIS SUBDIVISION SHALL BE PAYABLE DURING THE CONTINUANCE OF SUCH TEMPO-
RARY PARTIAL DISABILITY, WITHOUT THE NECESSITY FOR THE CLAIMANT TO
DEMONSTRATE ONGOING ATTACHMENT TO THE LABOR MARKET, UNLESS THE BOARD
FINDS THAT THE INJURED EMPLOYEE'S LOSS OF WAGES IS WHOLLY UNRELATED TO
HIS OR HER PARTIAL DISABILITY.
(a) Compensation for permanent or temporary total disability due to an
accident or disablement resulting from an occupational disease that
occurs, (1) on or after January first, nineteen hundred seventy-eight,
shall not exceed one hundred twenty-five dollars per week, that occurs
(2) on or after July first, nineteen hundred seventy-eight, shall not
exceed one hundred eighty dollars per week, that occurs (3) on or after
January first, nineteen hundred seventy-nine, shall not exceed two
hundred fifteen dollars per week, that occurs (4) on or after July
first, nineteen hundred eighty-three, shall not exceed two hundred
fifty-five dollars per week, that occurs (5) on or after July first,
nineteen hundred eighty-four, shall not exceed two hundred seventy-five
dollars per week, that occurs (6) on or after July first, nineteen
hundred eighty-five, shall not exceed three hundred dollars per week,
that occurs (7) on or after July first, nineteen hundred ninety, shall
not exceed three hundred forty dollars per week; and in the case of
temporary total disability shall not be less than thirty dollars per
week and in the case of permanent total disability shall not be less
than twenty dollars per week except that if the employee's wages at the
time of injury are less than thirty or twenty dollars per week respec-
S. 5302 11
tively, he or she shall receive his or her full weekly wages. Compen-
sation for permanent or temporary partial disability due to an accident
or disablement resulting from an occupational disease that occurs (1) on
or after [January first] MARCH THIRTEENTH, nineteen hundred seventy-
eight, shall not exceed one hundred five dollars per week, that occurs
(2) on or after July first, nineteen hundred eighty-three, shall not
exceed one hundred twenty-five dollars per week, that occurs (3) on or
after July first, nineteen hundred eighty-four, shall not exceed one
hundred thirty-five dollars per week, that occurs (4) on or after July
first, nineteen hundred eighty-five, shall not exceed one hundred fifty
dollars per week, that occurs (5) on or after July first, nineteen
hundred ninety, shall not exceed two hundred eighty dollars per week;
nor be less than twenty dollars per week; except that if the employee's
wages at the time of injury are less than twenty dollars per week, he or
she shall receive his or her full weekly wages. In no event shall
compensation when combined with decreased earnings or earning capacity
exceed the amount of wages which the employee was receiving at the time
the injury occurred. Compensation for permanent or temporary partial
disability, or for permanent or temporary total disability due to an
accident or disablement resulting from an occupational disease that
occurs (1) on or after July first, nineteen hundred ninety-one and prior
to July first, nineteen hundred ninety-two, shall not exceed three
hundred fifty dollars per week; (2) on or after July first, nineteen
hundred ninety-two, shall not exceed four hundred dollars per week; nor
be less than forty dollars per week except that if the employee's wages
at the time of injury are less than forty dollars per week, the employee
shall receive his or her full wages. Compensation for permanent or
temporary partial disability, or for permanent or temporary total disa-
bility due to an accident or disablement resulting from an occupational
disease that occurs (1) on or after July first, two thousand seven shall
not exceed five hundred dollars per week, (2) on or after July first,
two thousand eight shall not exceed five hundred fifty dollars per week,
(3) on or after July first, two thousand nine shall not exceed six
hundred dollars per week, and (4) on or after July first, two thousand
ten, and on or after July first of each succeeding year, shall not
exceed two-thirds of the New York state average weekly wage for the year
in which it is reported. Compensation for permanent or temporary partial
disability, or for permanent or temporary total disability due to an
accident or disablement resulting from an occupational disease that
occurs on or after July first, two thousand seven shall not be less than
one hundred dollars per week except that if the employee's wages at the
time of injury are less than one hundred dollars per week, the employee
shall receive his or her full wages. Compensation for permanent or
temporary partial disability, or for permanent or temporary total disa-
bility due to an accident or disablement resulting from an occupational
disease that occurs on or after May first, two thousand thirteen shall
not be less than one hundred fifty dollars per week except that if the
employee's wages at the time of injury are less than one hundred fifty
dollars per week, the employee shall receive his or her full wages.
COMPENSATION FOR PERMANENT OR TEMPORARY PARTIAL DISABILITY, OR FOR
PERMANENT OR TEMPORARY TOTAL DISABILITY DUE TO AN ACCIDENT OR DISABLE-
MENT RESULTING FROM AN OCCUPATIONAL DISEASE THAT OCCURS ON OR AFTER JULY
FIRST OF EACH YEAR COMMENCING IN TWO THOUSAND EIGHTEEN SHALL NOT BE LESS
THAN ONE-SIXTH OF THE NEW YORK STATE AVERAGE WEEKLY WAGE FOR THE YEAR IN
WHICH IT IS REPORTED. In no event shall compensation when combined with
decreased earnings [or earning capacity] exceed the amount of wages the
S. 5302 12
employee was receiving at the time the injury occurred. Compensation for
permanent or temporary partial disability, or for permanent or temporary
total disability due to an accident or disablement resulting from an
occupational disease or injury that occurred as a result of World Trade
Center rescue activity by an employee of a private voluntary hospital,
who passed a physical examination upon employment as a rescue worker
that failed to reveal evidence of a condition that was the proximate
cause of disablement or occupational disease or injury, shall not exceed
three-quarters of a claimant's wage on September eleventh, two thousand
one. In no event shall compensation when combined with decreased earn-
ings or earning capacity exceed the amount of wages the employee was
receiving on September eleventh, two thousand one.
10. COST-OF-LIVING ADJUSTMENTS OF DISABILITY BENEFITS IN CERTAIN
CASES. (A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, IN ADDITION TO
ANY OTHER AMOUNT RECEIVED PURSUANT TO THIS ARTICLE AS DISABILITY BENE-
FITS, AN EMPLOYEE WITH A PERMANENT TOTAL DISABILITY OR THE BENEFICIARY
DEPENDENT OF SUCH EMPLOYEE SHALL BE ENTITLED TO AN ADDITIONAL ALLOWANCE,
TO BE KNOWN AS A COST-OF-LIVING ADJUSTMENT ALLOWANCE, PAYABLE ANNUALLY.
(B) THE COST-OF-LIVING ADJUSTMENT ALLOWANCE SHALL BE COMPUTED BY
APPLYING AN ADJUSTMENT FOR REGIONAL COSTS OF LIVING AND SHALL BE BASED
ON FIFTY PERCENT OF THE ANNUAL INCREASE IN THE CONSUMER PRICE INDEX AS
PROMULGATED BY THE UNITED STATES DEPARTMENT OF LABOR.
§ 7. Subdivisions 1-a, 1-b, 1-c, 1-d, 2, 2-a, 2-b, and 4-d of section
16 of the workers' compensation law, subdivisions 1-a, 1-b, 1-c and 2 as
amended by chapter 168 of the laws of 1979, subdivisions 1-d, 2-b and
4-d as added by chapter 689 of the laws of 2007 and subdivision 2-a as
amended by chapter 174 of the laws of 1981, are amended and two new
subdivisions 1-e and 2-c are added to read as follows:
1-a. For the purpose of this section, (1) the term dependent blind or
physically disabled as used herein in relation to dependent children
shall be deemed to mean totally blind or physically disabled children
whose disablement is total and permanent, (2) the term surviving spouse
shall be deemed to mean the legal spouse but shall not include a spouse
who has abandoned the deceased, [and] (3) the term abandoned shall be
deemed to mean such an abandonment as would be sufficient under section
two hundred of the domestic relations law to sustain a judgment of sepa-
ration on that ground, AND (4) THE TERMS "WIDOWHOOD" OR "WIDOWERHOOD"
SHALL APPLY TO A SURVIVING SPOUSE WITHOUT REGARD TO REMARRIAGE.
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
S. 5302 13
widowerhood [with two years' compensation, in one sum, upon remarriage].
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] I 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 remarriage.
Where such death occurs, and the spouse is receiving the survivors
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].
1-E. 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
S. 5302 14
PHYSICALLY DISABLED, AND THE DEATH OCCURS ON OR AFTER JANUARY FIRST, TWO
THOUSAND SIXTEEN, TO SUCH SPOUSE SIXTY-SIX AND TWO-THIRDS PER CENTUM OF
THE AVERAGE WAGES OF THE DECEASED DURING WIDOWHOOD OR WIDOWERHOOD.
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
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
S. 5302 15
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
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
S. 5302 16
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
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
S. 5302 17
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
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
S. 5302 18
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-
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.
2-C. 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, TWO
THOUSAND SIXTEEN, TO SUCH SPOUSE THIRTY-SIX AND TWO-THIRDS PER CENTUM OF
THE AVERAGE WAGES OF THE DECEASED DURING WIDOWHOOD OR WIDOWERHOOD; 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 THEIR COMPENSATION INCREASED TO SIXTY-SIX AND TWO-
THIRDS PER CENTUM OF SUCH WAGES AND THE SAME SHALL BE PAYABLE 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 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 SIXTY-SIX AND TWO-THIRDS PER CENTUM OF SUCH
WAGES.
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
S. 5302 19
AFTER JANUARY FIRST, TWO THOUSAND SIXTEEN, TO SUCH SPOUSE THIRTY-SIX AND
TWO-THIRDS PER CENTUM OF THE AVERAGE WAGE OF THE DECEASED DURING WIDOW-
HOOD OR WIDOWERHOOD; AND THIRTY PER CENTUM OF SUCH WAGES TO SUCH CHIL-
DREN 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 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
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 STATUTORY TERMINATION OF COMPENSATION PAYABLE TO SUCH
CHILDREN, THE COMPENSATION OF THE SURVIVING SPOUSE SHALL BE INCREASED TO
SIXTY-SIX AND TWO-THIRDS PER CENTUM OF SUCH WAGES.
4-d. If there be no surviving spouse or child, or children 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, 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 dependent blind or
physically disabled child of any age, or grandchildren or brothers and
sisters if dependent upon the deceased at the time of the accident,
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 disabled blind or physically disabled
grandchildren or brothers and sisters of any age, then a sum of [fifty]
ONE HUNDRED thousand dollars shall be paid to the deceased's surviving
parents or if there be no surviving parents to the deceased's estate.
§ 8. The workers' compensation law is amended by adding a new section
17-a to read as follows:
§ 17-A. LIMITED ENGLISH PROFICIENCY. 1. THE BOARD SHALL PROVIDE TRANS-
LATION OF ALL DOCUMENTS AND FORMS USED BY OR ISSUED TO INJURED EMPLOY-
EES. THE TRANSLATION SHALL BE IN THE SIX MOST COMMON NON-ENGLISH
LANGUAGES SPOKEN BY INDIVIDUALS WITH LIMITED-ENGLISH PROFICIENCY IN THE
STATE OF NEW YORK.
2. THE BOARD SHALL PROVIDE INTERPRETATION SERVICES TO INJURED EMPLOY-
EES WITH RESPECT TO ITS PROVISION OF SERVICES, INFORMATION AND/OR BENE-
FITS.
3. THE BOARD SHALL PUBLISH A LANGUAGE ACCESS PLAN THAT REFLECTS:
(A) THE MEANS BY WHICH IT PROVIDES LANGUAGE ASSISTANCE SERVICES;
(B) THE TITLES OF ALL AVAILABLE TRANSLATED DOCUMENTS AND THE LANGUAGES
INTO WHICH THEY HAVE BEEN TRANSLATED;
(C) THE NUMBER OF PUBLIC CONTACT POSITIONS AT THE BOARD AND THE NUMBER
OF BILINGUAL EMPLOYEES IN PUBLIC CONTACT POSITIONS, INCLUDING THE
LANGUAGES THEY SPEAK;
(D) A TRAINING PLAN FOR BOARD EMPLOYEES WHICH INCLUDES, AT MINIMUM,
ANNUAL TRAINING ON ITS LANGUAGE ACCESS POLICIES AND HOW TO PROVIDE
LANGUAGE ASSISTANCE SERVICES;
S. 5302 20
(E) A PLAN FOR ANNUAL INTERNAL MONITORING OF THE BOARD'S LANGUAGE
ACCESS PLAN;
(F) A PLAN OF HOW THE BOARD INTENDS TO NOTIFY INJURED EMPLOYEES OF
OFFERED LANGUAGE ASSISTANT SERVICES; AND
(G) THE APPOINTMENT OF A LANGUAGE ACCESS COORDINATOR AT THE BOARD, WHO
SHALL BE PUBLICLY IDENTIFIED.
4. THE LANGUAGE ACCESS COORDINATOR FOR THE BOARD SHALL MONITOR THE
AGENCY'S COMPLIANCE WITH THIS SECTION BY ANNUALLY COLLECTING DATA ON THE
PROVISION OF LANGUAGE ASSISTANCE SERVICES, THE AVAILABILITY OF TRANS-
LATED MATERIALS, WHETHER SIGNAGE IS PROPERLY POSTED, AND ANY OTHER RELE-
VANT MEASURES.
§ 9. Section 18 of the workers' compensation law, as amended by chap-
ter 747 of the laws of 1947, is amended to read as follows:
§ 18. Notice of injury or death. Notice of an injury or death for
which compensation is payable under this chapter shall be given to the
employer within thirty days after the accident causing such injury, and
also in case of the death of the employee resulting from such injury,
within thirty days after such death. Such notice may be given by any
person claiming to be entitled to compensation, or by some one in his
behalf. The notice shall be in writing, and contain the name and address
of the employee, and state in ordinary language the time, place, nature
and cause of the injury, and be signed by him or by a person on his
behalf or, in case of death, by any one or more of his dependents, or by
a person, on their behalf. It shall be given to the employer by deliver-
ing it to him or sending it by mail, by registered letter, addressed to
the employer at his or its last known place of business; provided that,
if the employer be a partnership then such notice may be so given to any
one of the partners, and if the employer be a corporation, then such
notice may be given to any agent or officer thereof upon whom legal
process may be served, or any agent in charge of his business in the
place where the injury occurred. The failure to give notice of injury or
notice of death unless excused by the board either on the ground that
notice for some sufficient reason could not have been given, or on the
ground that the employer, or his or its agents in charge of the business
in the place where the accident occurred or having immediate supervision
of the employee to whom the accident happened, had knowledge of the
accident or death, or on the ground that the employer has not been prej-
udiced thereby, shall be a bar to any claim under this chapter, but the
employer and the insurance carrier shall be deemed to have waived such
notice unless the objection to the failure to give such notice or the
insufficiency thereof, is raised before the board on the first hearing
of the claim field by such injured employee, or his or her dependents at
which all parties in interest are present, or represented, and at which
the claimant, or principal beneficiary, testifies. THE BURDEN OF PROOF
ON THE ISSUE OF PREJUDICE SHALL REST WITH THE EMPLOYER.
§ 10. Subdivision 1 of section 20 of the workers' compensation law, as
amended by chapter 635 of the laws of 1996, is amended to read as
follows:
1. At any time after [the expiration of the first seven days of disa-
bility on the part of] an INJURY THE injured employee, or at any time
after the employee's death, a claim for compensation may be presented to
the employer or to the chair. The board shall HOLD AN INITIAL HEARING
IN EACH CLAIM AND SHALL have full power and authority to determine all
questions in relation to the payment of claims presented to it for
compensation under the provisions of this chapter. The chair or board
shall make or cause to be made such investigation as it deems necessary,
S. 5302 21
and upon application of either party, shall order a hearing, and within
thirty days after a claim for compensation is submitted under this
section, or such hearing closed, shall make or deny an award, determin-
ing such claim for compensation, and file the same in the office of the
chair. Immediately after such filing the chair shall send to the parties
a copy of the decision. Upon a hearing pursuant to this section either
party may present evidence and be represented by counsel. The decision
of the board shall be final as to all questions of fact, and, except as
provided in section twenty-three of this article, as to all questions of
law. Except as provided in section twenty-seven of this article, all
awards of the board shall draw simple interest from thirty days after
the making thereof at the rate provided in section five thousand four of
the civil practice law and rules. Whenever a hearing or proceeding for
the determination of a claim for compensation is begun before a referee,
pursuant to the provisions of this chapter, such hearing or proceeding
or any adjourned hearing thereon shall continue before the same referee
until a final determination awarding or denying compensation, except in
the absence, inability or disqualification to act of such referee, or
for other good cause, in which event such hearing or proceeding may be
continued before another referee by order of the chair or board.
§ 11. Section 24 of the workers' compensation law, as amended by chap-
ter 494 of the laws of 1950, is amended to read as follows:
§ 24. Costs and fees. (A) If the court before which any proceedings
for compensation or concerning an award of compensation have been
brought, under this chapter, determine that such proceedings have not
been so brought upon reasonable ground, it shall assess the cost of the
proceedings upon the party who has so brought them.
(B) Claims of attorneys and counselors-at-law for legal services in
connection with any claim arising under this chapter, and claims for
services or treatment rendered or supplies furnished pursuant to subdi-
vision (b) of section thirteen of this [chapter] ARTICLE, shall not be
enforceable unless approved by the board. THE BOARD SHALL APPROVE SUCH
CLAIMS OF ATTORNEYS IN ACCORDANCE WITH EACH APPLICABLE PROVISION OF THE
FOLLOWING SCHEDULE:
(I) WHEN AN AWARD IS MADE DIRECTING THE CONTINUATION OF WEEKLY COMPEN-
SATION BENEFITS FOR TEMPORARY TOTAL OR PARTIAL DISABILITY, THE ATTOR-
NEY'S FEE SHALL BE ONE-THIRD OF ONE WEEK'S COMPENSATION.
(II) WHEN AN AWARD IS MADE THAT INCREASES THE AMOUNT OF COMPENSATION
AWARDED OR PAID FOR A PREVIOUS PERIOD OR PERIODS OF TEMPORARY TOTAL OR
PARTIAL DISABILITY, THE ATTORNEY'S FEE SHALL BE FIFTEEN PERCENT OF THE
INCREASED COMPENSATION.
(III) WHEN AN AWARD IS MADE FOR SCHEDULE LOSS OF USE OR PERMANENT
FACIAL DISFIGUREMENT PURSUANT TO PARAGRAPHS A THROUGH T OF SUBDIVISION
THREE OF SECTION FIFTEEN OF THIS ARTICLE, THE ATTORNEY'S FEE SHALL BE
FIFTEEN PERCENT OF THE COMPENSATION DUE IN EXCESS OF THE EMPLOYER OR
CARRIER'S PREVIOUS PAYMENTS.
(IV) WHEN AN AWARD IS MADE FOR PERMANENT TOTAL DISABILITY PURSUANT TO
SUBDIVISION ONE OF SECTION FIFTEEN OF THIS ARTICLE OR PERMANENT PARTIAL
DISABILITY PURSUANT TO PARAGRAPH W OF SUBDIVISION THREE OF SECTION
FIFTEEN OF THIS ARTICLE, THE ATTORNEY'S FEE SHALL BE EQUIVALENT TO TEN
WEEKS OF COMPENSATION AT THE RATE FIXED BY THE BOARD.
(V) WHEN AN AWARD IS MADE FOR DEATH BENEFITS PURSUANT TO SECTION
SIXTEEN OF THIS ARTICLE, THE ATTORNEY'S FEE SHALL BE EQUIVALENT TO
FIFTEEN PERCENT OF THE COMPENSATION DUE IN EXCESS OF THE EMPLOYER OR
CARRIER'S PREVIOUS PAYMENTS, PLUS A SUM EQUIVALENT TO TEN WEEKS OF
COMPENSATION AT THE RATE FIXED BY THE BOARD.
S. 5302 22
(VI) WHEN AN AWARD IS MADE PURSUANT TO SECTION THIRTY-TWO OF THIS
ARTICLE, THE ATTORNEY'S FEE SHALL BE FIFTEEN PERCENT OF ANY BENEFITS TO
BE PAID BY THE EMPLOYER OR CARRIER UNDER THE AGREEMENT. HOWEVER, IF THE
ATTORNEY IS AWARDED A FEE PURSUANT TO THIS SUBDIVISION, PAYMENT OF THE
UNPAID AND UNACCRUED BALANCE OF ANY ATTORNEY FEES UNDER THE FOREGOING
SUBDIVISIONS SHALL BE WAIVED.
[If] (C) WHEN so approved, such claim or claims shall become a lien
upon the compensation awarded, and upon any moneys ordered paid under an
award by the board into the special funds provided for in SUBDIVISION
NINE OF section fifteen[, subdivision nine,] and section twenty-five-a,
and any other section of this chapter, but shall be paid therefrom only
in the manner fixed by the board. Any other person, firm or corporation
who shall exact or receive fee or gratuity for any services rendered on
behalf of a claimant except in an amount determined by the board, shall
be guilty of a misdemeanor. Any person, firm or corporation who shall
solicit the business of appearing before the board on behalf of a claim-
ant, or who shall make it a business to solicit employment for a lawyer
in connection with any claim for compensation under this chapter shall
be guilty of a misdemeanor. In case an award is affirmed upon an appeal
to the appellate division, the same shall be payable with interest ther-
eon from the date when said award was made by the board except as
provided in section twenty-seven of this [chapter] ARTICLE.
(D) WHERE THE CLAIM IS SOLELY FOR MEDICAL TREATMENT, AND NO AWARD OF
COMPENSATION IS MADE, ATTORNEYS AND COUNSELORS-AT-LAW MAY SUBMIT A CLAIM
FOR LEGAL SERVICES RENDERED IN CONNECTION WITH OBTAINING AUTHORIZATION
OR APPROVAL FOR SUCH MEDICAL TREATMENT, INCLUDING THE PROVISION OF
ADVICE AND REPRESENTATION FOR THE INJURED WORKER. THE BOARD SHALL REVIEW
AND APPROVE SUCH CLAIMS, HAVING DUE REGARD FOR THE SERVICES RENDERED AND
WHETHER AUTHORIZATION OR APPROVAL WAS OBTAINED. THE FEES AWARDED TO AN
ATTORNEY PURSUANT TO THIS SUBDIVISION SHALL BE PAID BY THE EMPLOYER OR
CARRIER. ANY ATTORNEY FEE AWARDED PURSUANT TO THIS SUBDIVISION SHALL
BECOME A CREDIT AGAINST A SUBSEQUENT ATTORNEY FEE REQUESTED PURSUANT TO
SUBDIVISION (B) OF THIS SECTION.
§ 12. Subdivision 2-b of section 25 of the workers' compensation law
is REPEALED and subdivision 2-c is renumbered subdivision 2-b.
§ 13. Paragraphs (b) and (c) of subdivision 3 of section 25 of the
workers' compensation law, as amended by chapter 61 of the laws of 1986,
are amended to read as follows:
(b) Nothing herein shall limit the right of the board in a particular
case to hold a hearing and make an award in accordance with other
provisions of this chapter. No case shall be closed AND NO DECISION
SHALL BE ISSUED without A HEARING UPON notice to all parties interested
and without giving to all such parties an opportunity to be heard.
(c) The board shall keep an accurate STENOGRAPHIC record of all hear-
ings held. Whenever a hearing must be continued or adjourned because
the carrier or employer has engaged in dilatory tactics or exhibited
unjustified lack of preparedness, the board shall impose a penalty of
twenty-five dollars to be paid to the fund created by subdivision two of
section one hundred fifty-one of this chapter and shall in addition make
an award of seventy-five dollars payable to the injured worker or his or
her dependants. Dilatory tactics may include but shall not be limited
to: failing to subpoena medical witnesses or to secure an order to show
cause as directed by the referee, failing to bring proper files, failing
to appear, failing to produce witnesses or documents after they have
been requested by the referee or examiner or as directed by the hearing
notice, unnecessarily protracting the production of evidence, or engag-
S. 5302 23
ing in a pattern of delay which unduly delays resolution, except that no
penalty shall be imposed nor award made under this subdivision if the
carrier or employer produces evidence sufficient to excuse its conduct
to the satisfaction of the referee.
§ 14. Subdivision 1, the fifth undesignated paragraph of subdivision 5
and subdivision 6 of section 29 of the workers' compensation law, subdi-
vision 1 as amended by section 805 of the laws of 1984 and as further
amended by section 104 of part A of chapter 62 of the laws of 2011, the
fifth undesignated paragraph of subdivision 5 as amended by chapter 246
of the laws of 1967, and subdivision 6 as amended by chapter 635 of the
laws of 1996, are amended to read as follows:
1. If an employee entitled to compensation under this chapter be
injured or killed by the negligence or wrong of another not in the same
employ, such injured employee, or in case of death, his dependents, need
not elect whether to take compensation and medical benefits under this
chapter or to pursue his remedy against such other but may take such
compensation and medical benefits and at any time either prior thereto
or within six months after the awarding of compensation or within nine
months after the enactment of a law or laws creating, establishing or
affording a new or additional remedy or remedies, pursue his remedy
against such other subject to the provisions of this chapter. If such
injured employee, or in case of death, his dependents, take or intend to
take compensation, and medical benefits in the case of an employee,
under this chapter and desire to bring action against such other, such
action must be commenced not later than six months after the awarding of
compensation or not later than nine months after the enactment of such
law or laws creating, establishing or affording a new or additional
remedy or remedies and in any event before the expiration of one year
from the date such action accrues. In such case, the state insurance
fund, if compensation be payable therefrom, and otherwise the person,
association, corporation or insurance carrier liable for the payment of
such compensation, as the case may be, shall have a lien on the proceeds
of any recovery from such other TO THE EXTENT SUCH RECOVERY IS FOR LOST
WAGES OR MEDICAL EXPENSES, whether by judgment, settlement or otherwise,
after the deduction of the reasonable and necessary expenditures,
including attorney's fees, incurred in effecting such recovery, to the
extent of the total amount of compensation awarded under or provided or
estimated by this chapter for such case and the expenses for medical
treatment paid or to be paid by it and to such extent such recovery
shall be deemed for the benefit of such fund, person, association,
corporation or carrier. Should the employee or his dependents secure a
recovery from such other, whether by judgment, settlement or otherwise,
such employee or dependents may apply on notice to such lienor to the
court in which the third party action was instituted, or to a court of
competent jurisdiction if no action was instituted, for an order appor-
tioning the reasonable and necessary expenditures, including attorneys'
fees, incurred in effecting such recovery. Such expenditures shall be
equitably apportioned by the court between the employee or his depen-
dents and the lienor. Notice of the commencement of such action shall be
given within thirty days thereafter to the chairman, the employer and
the insurance carrier upon a form prescribed by the chairman. Any of the
foregoing providers of compensation and/or medical benefits which has
recovered a lien pursuant to the provisions hereof against the recovery
of a person injured on or after February first, nineteen hundred seven-
ty-four and before July first, nineteen hundred seventy-eight, through
the use or operation of a motor vehicle in this state, shall notify such
S. 5302 24
person by certified mail in a manner to be approved by the chairman and
the superintendent of financial services of the responsibility of an
"insurer" (as defined in subsection (g) of section five thousand one
hundred two of the insurance law), to reimburse such person under such
circumstances to the extent that the recovered lien represent first
party benefits as defined in article fifty-one of the insurance law.
A copy of the papers to be used on the application to compromise and
settle the claim must be served as directed by the court or in the same
manner as provided in the civil practice law and rules for a notice of
motion upon the commissioners of the state insurance fund or such offi-
cer thereof designated by them or upon the person, association, corpo-
ration, or insurance carrier, whose written approval would have been
required to compromise such cause of action by the employee or his
dependents. This notice shall afford them the opportunity to submit
affidavits and to be heard by the court on the application. A PETITION
MAY ALSO BE FILED PURSUANT TO THIS SUBDIVISION ALLOCATING A PORTION OF
THE THIRD-PARTY RECOVERY TO LOST WAGES AND/OR MEDICAL TREATMENT.
6. [The] EXCEPT AS SET FORTH IN SECTION ELEVEN OF THIS ARTICLE, THE
right to compensation or benefits under this chapter, shall be the
exclusive remedy to an employee, or in case of death his or her depen-
dents, when such employee is injured or killed by the negligence or
wrong of another in the same employ, the employer's insurer or any
collective bargaining agent of the employer's employees or any employee,
of such insurer or such collective bargaining agent (while acting within
the scope of his or her employment). The limitation of liability of an
employer set forth in section eleven of this article for the injury or
death of an employee shall be applicable to another in the same employ,
the employer's insurer, any collective bargaining agent of the employ-
er's employees or any employee of the employer's insurer or such collec-
tive bargaining agent (while acting within the scope of his or her
employment). The option to maintain an action in the courts for damages
[based on the employer's failure to secure compensation for injured
employees and their dependents as set forth in section eleven of this
article] shall not be construed to include the right to maintain an
action against another in the same employ, [the employer's insurer,] any
collective bargaining agent of the employer's employees or any employee
[of the employer's insurer] or such collective bargaining agent (while
acting within the scope of his or her employment).
§ 15. Subdivision 3 of section 35 of the workers' compensation law, as
amended by section 2 of subpart A of part NNN of chapter 59 of the laws
of 2017, is amended and a new subdivision 5 is added to read as follows:
3. Extreme hardship redetermination. In cases where the loss of wage-
earning capacity is greater than [seventy-five] FIFTY percent, a claim-
ant may request[, within the year prior to the scheduled exhaustion of
indemnity benefits under paragraph w of subdivision three of section
fifteen of this article], that the board reclassify the claimant to
permanent total disability or total industrial disability due to factors
reflecting extreme hardship. EXTREME HARDSHIP IS DEFINED AS: (A) THE
INJURED WORKER'S INCOME FROM SOCIAL SECURITY DISABILITY BENEFITS AND
DISABILITY PENSION (IF APPLICABLE) WOULD BE LESS THAN FIFTY PERCENT OF
HIS OR HER AVERAGE WEEKLY WAGE UPON TERMINATION OF PPD BENEFITS; OR (B)
THE INJURED WORKER WILL BE UNABLE TO MEET EXPENSES FOR HIMSELF OR
HERSELF AND ANY DEPENDENTS UPON TERMINATION OF PPD BENEFITS; OR (C)
ADDITIONAL MEDICAL, FUNCTIONAL OR VOCATIONAL FACTORS ARISING SUBSEQUENT
TO THE CLASSIFICATION OF PERMANENT PARTIAL DISABILITY HAVE FURTHER
ERODED THE INJURED WORKER'S WAGE EARNING CAPACITY; OR (D) THE INJURED
S. 5302 25
WORKER'S INCOME WOULD BE BELOW THE FEDERAL POVERTY GUIDELINES UPON
TERMINATION OF PPD BENEFITS.
5. RETURN TO WORK PROGRAMS. THE FOLLOWING PROGRAMS SHALL BE DEVELOPED
AND IMPLEMENTED BY JANUARY FIRST, TWO THOUSAND TWENTY:
(A) RETURN TO WORK EDUCATION. THE BOARD AND THE DEPARTMENT OF LABOR
SHALL DEVELOP AND PROVIDE EDUCATION TOOLS AND TECHNICAL ASSISTANCE ON
HOW TO BUILD A RETURN TO WORK CULTURE WITHIN AN ORGANIZATION, PARTIC-
ULARLY TO SMALL- AND MEDIUM-SIZED EMPLOYERS. THESE TOOLS SHALL INCLUDE
TEMPLATES OF SAMPLE POLICIES AND PROCEDURAL FRAMEWORKS FOR RETURN TO
WORK PROGRAMS, AND ILLUSTRATIONS OF THE FINANCIAL BENEFITS OF EFFECTIVE
RETURN TO WORK PROTOCOLS. IN ADDITION, THE BOARD AND THE DEPARTMENT OF
LABOR SHALL DEVELOP AND IMPLEMENT, WITH INPUT FROM STAKEHOLDERS, AN
EDUCATION PROGRAM FOR ALL PARTICIPANTS IN THE WORKERS' COMPENSATION
SYSTEM, INCLUDING EMPLOYERS AND EMPLOYEES, CARRIERS, CLAIMANTS' ATTOR-
NEYS AND CLAIMS EXAMINERS, ON THE VALUE AND COMPONENTS OF AN EFFECTIVE
RETURN TO WORK PROGRAM AND THEIR RESPECTIVE ROLES IN ASSURING POSITIVE
RETURN TO WORK OUTCOMES.
(B) EMPLOYER RETURN TO WORK POLICIES. THE BOARD SHALL REQUIRE A
FORMAL, CONSISTENT RETURN TO WORK POLICY OF ALL NEW YORK EMPLOYERS WHO
EMPLOY MORE THAN TWENTY-FIVE INDIVIDUALS, AND CARRIERS SHALL PROVIDE
MODEL POLICIES FOR EMPLOYERS OF FEWER THAN TWENTY-FIVE. THE POLICY SHALL
BE WRITTEN AND TAILORED TO THE SPECIFIC NEEDS OF THE EMPLOYER.
(C) RETURN TO WORK COMMUNICATION. THE BOARD SHALL REDESIGN THE FORMS
IT USES TO ENCOURAGE AND IMPROVE EARLY AND FREQUENT OUTREACH FROM THE
EMPLOYER TO THE INJURED WORKER, FROM THE PHYSICIAN TO THE EMPLOYER AND
FROM THE PHYSICIAN TO THE INJURED WORKER. THESE FORMS SHALL SEEK CLEARER
INFORMATION ON JOB DUTIES AND PHYSICAL DEMANDS OF A GIVEN JOB; ASCERTAIN
THE EXTENT TO WHICH PHYSICIANS ARE COMMUNICATING WITH THE INJURED WORKER
ABOUT RETURN TO WORK; AND CONTAIN INFORMATION THAT WILL ALLOW REVIEW BY
BOARD STAFF TO ENSURE THAT INJURED WORKERS ARE NOT NEEDLESSLY DELAYED
TREATMENT OR SERVICES THAT COULD FACILITATE RETURN TO WORK.
(D) IMPROVEMENTS IN THE PHYSICIAN'S ROLE. THE OCCUPATIONAL HEALTH
CLINICS, ADMINISTERED BY THE DEPARTMENT OF HEALTH, SHALL DEVELOP CONTENT
AND CURRICULUM FOR A CONTINUING MEDICAL EDUCATION COURSE ON RETURN TO
WORK. THE BOARD SHALL IMPROVE TRAINING OF PHYSICIANS AROUND RETURN TO
WORK PRINCIPLES. THE BOARD SHALL ASSURE THAT PHYSICIANS ARE COMPENSATED
FOR THE TIME IT TAKES TO EVALUATE TRUE RETURN TO WORK OPPORTUNITIES
WITHIN THE INJURED WORKER'S FUNCTIONAL CAPABILITIES.
(E) VOCATIONAL REHABILITATION EVALUATIONS. THE BOARD SHALL ASSURE THAT
A NEUTRAL, NON-MEDICAL VOCATIONAL REHABILITATION EVALUATION IS PROVIDED
TO ALL CLAIMANTS WHO HAVE NOT RETURNED TO WORK AT THE TIME THEY HAVE
REACHED MAXIMUM MEDICAL IMPROVEMENT TO DETERMINE WHETHER THEIR RETURN TO
WORK WOULD BE FACILITATED BY VOCATIONAL EDUCATION OR TRAINING. THE EVAL-
UATION SHALL BE DONE UNDER A STANDARDIZED PROTOCOL ESTABLISHED BY THE
BOARD AND SHALL BE BINDING ON ALL PARTIES. THE VOCATIONAL ASSESSMENT
SHALL BE PAID FOR BY THE CARRIER, SELF-INSURED EMPLOYER OR THE STATE
INSURANCE FUND. SUBMISSION OF THE CURRENT REHABILITATION FORM SHALL BE
REQUIRED, AND PENALTIES SHALL BE IMPOSED FOR THE LATE OR NON-FILING OF
FORMS RELATED TO RETURN TO WORK AND REHABILITATION PROGRAMS.
(F) VOCATIONAL REHABILITATION SERVICES. THE BOARD SHALL ASSURE THAT
VOCATIONAL REHABILITATION SERVICES ARE PROVIDED MORE EXPEDITIOUSLY TO
INJURED WORKERS AND ARE APPROPRIATELY FUNDED. THE OPTIONS AVAILABLE AND
THE COSTS SHALL BE SUBJECT TO REGULATION BY THE BOARD. IF THE EVALUATION
RECOMMENDS VOCATIONAL EDUCATION OR RETRAINING, THE COSTS SHALL BE
COVERED FIRST BY APPROPRIATE SOURCES OF STATE OR FEDERAL FUNDING. CARRI-
ERS SHALL NOT BE PERMITTED TO SEEK A CHANGE IN AN INJURED WORKER'S CLAS-
S. 5302 26
SIFICATION STATUS WHILE THAT INDIVIDUAL IS ACTIVELY PARTICIPATING IN
RETRAINING OR VOCATIONAL REHABILITATION IN ACCORDANCE WITH THE INDIVID-
UALIZED REEMPLOYMENT PLAN DEVELOPED AS A RESULT OF THE VOCATIONAL REHA-
BILITATION EVALUATION.
(G) INCENTIVE PROGRAMS. THE BOARD, THE DEPARTMENT, AND THE DEPARTMENT
OF FINANCIAL SERVICES SHALL DEVELOP INCENTIVE PROGRAMS TARGETED TO
HIRING WORKERS WHO HAVE PERMANENT WORK RESTRICTIONS. THESE PROGRAMS
SHALL BE ESTABLISHED AND ANALYZED FOR THEIR IMPACT ON RETURN TO WORK
RATES AND COST EFFECTIVENESS. PARAMETERS FOR SUCH PROGRAM, AT A MINIMUM,
SHALL INCLUDE THOSE WHICH OFFER EMPLOYERS WAGE SUBSIDIES FOR EMPLOYING
AND RETRAINING INJURED WORKERS, REIMBURSEMENT FOR WORKPLACE ACCOMMO-
DATIONS TO ENABLE INJURED WORKERS TO ADJUST THE JOB TO THEIR CAPACITIES,
VOCATIONAL ASSESSMENTS, RETRAINING FOR THOSE INJURED WORKERS WHO CANNOT
RETURN TO THEIR AT-INJURY EMPLOYER AND FUNDS FOR PURCHASE OF ITEMS THAT
ARE REQUIRED OF ANY NEW HIRE. RETURN TO WORK PROGRAMS SUBSIDIZED BY
THESE PROGRAMS SHALL, AT A MINIMUM, BE AT EIGHTY PERCENT OF THE PRE-HIRE
WAGE. INCENTIVE PROGRAMS SHALL REQUIRE AN EMPLOYER MATCH.
(H) MEDICAL ONLY CASES. THE BOARD SHALL COMPENSATE ATTORNEYS FOR
REPRESENTATION PROVIDED IN CERTAIN MEDICAL-ONLY CASES, SO AS TO FACILI-
TATE THE MEDICAL CARE NECESSARY FOR AN INJURED WORKER'S RETURN TO THE
LABOR FORCE.
(I) WORKERS' COMPENSATION BOARD PROCESS ISSUES. THE BOARD SHALL PUT IN
PLACE IMPROVEMENTS AND PROACTIVE APPROACHES TO RETURN TO WORK. IT SHALL
DEVELOP PROCEDURES FOR PROMPTLY CONTACTING CLAIMANTS NO LATER THAN ONE
HUNDRED TWENTY DAYS AFTER INJURY OR WITHIN TWO WEEKS OF MAXIMUM MEDICAL
IMPROVEMENT TO DETERMINE THE FEASIBILITY OF RETURN TO WORK. PARTIC-
IPANTS IN THE WORKERS' COMPENSATION SYSTEM, INCLUDING THE ADMINISTRATIVE
LAW JUDGES, SHALL BE EDUCATED ON THE IMPORTANCE OF RETURN TO WORK. THE
BOARD SHALL ESTABLISH A PROCEDURE TO ENSURE THAT ALL CLAIMANTS WHO ARE
ELIGIBLE FOR A REDUCED EARNING AWARD RECEIVE SUCH AWARD.
(J) RETURN TO WORK FOR PUBLIC EMPLOYEES. A "PAY WITHOUT PREJUDICE"
PILOT PROGRAM SHALL BE UNDERTAKEN WITH STATE AGENCIES AND SELECTED
PUBLIC AUTHORITIES AND LOCAL GOVERNMENTS TO SPEED UP APPROPRIATE MEDICAL
TREATMENT TO WORKERS THAT SUSTAIN WORKPLACE INJURIES. THE PROGRAM SHALL
BE ANALYZED TO DETERMINE WHETHER IMPROVEMENTS IN TIMELINESS OF MEDICAL
AUTHORIZATION RESULTS IMPROVE RETURN TO WORK OUTCOMES OF PUBLIC EMPLOY-
EES.
§ 16. The workers' compensation law is amended by adding a new section
59 to read as follows:
§ 59. FINANCIAL STATEMENT AND DETAILED CLAIM DATA TO BE FILED WITH THE
BOARD. (A) FOR PURPOSES OF THIS SECTION, THE TERM "INSURER" MEANS ANY
PERSON, CORPORATION, ASSOCIATION OR OTHER BUSINESS ENTITY WHICH ISSUES A
POLICY OF WORKERS' COMPENSATION INSURANCE.
(B) ON OR BEFORE APRIL FIRST OF EACH YEAR, EVERY INSURER SHALL FOR THE
CALENDAR YEAR PROVIDE THE BOARD AND THE PUBLIC WITH A DETAILED FINANCIAL
STATEMENT TO SUPPLEMENT AND EXPAND UPON ANY OTHER INFORMATION OTHERWISE
PROVIDED TO THE BOARD, THE DEPARTMENT OF FINANCIAL SERVICES, OR THE NEW
YORK COMPENSATION INSURANCE RATING BOARD AS IT RELATES TO AN INSURER'S
PROVISION OF WORKERS' COMPENSATION INSURANCE COVERAGE TO EMPLOYERS;
PROVIDED, HOWEVER, THAT THE INITIAL FINANCIAL STATEMENT SO FILED BY AN
INSURER AFTER THE EFFECTIVE DATE OF THIS SECTION SHALL INCLUDE THE
INFORMATION REQUIRED IN THIS SUBDIVISION NOT ONLY FOR SUCH PRIOR CALEN-
DAR YEAR BUT ALSO FOR THE PREVIOUS NINE CALENDAR YEARS PRIOR TO SUCH
REPORT. THE FINANCIAL STATEMENT SHALL, IN DEPTH, DETAIL:
(1) TOTAL PREMIUM COLLECTED;
(2) ASSESSMENTS COLLECTED;
S. 5302 27
(3) DIVIDEND INCOME;
(4) PAYMENT OF WORKERS' COMPENSATION BENEFITS FOR TEMPORARY DISABILI-
TY;
(5) NON-SCHEDULED PERMANENT PARTIAL DISABILITY;
(6) SCHEDULED PERMANENT PARTIAL DISABILITY;
(7) PERMANENT TOTAL DISABILITY;
(8) DEATH BENEFITS;
(9) MEDICAL TREATMENT;
(10) PAYMENTS TO VENDORS INCLUDING BUT NOT LIMITED TO: (I) INDEPENDENT
MEDICAL EXAMINATION PROVIDERS; (II) INVESTIGATORS; (III) NURSE CASE
MANAGERS; (IV) PEER REVIEWS; (V) UTILIZATION REVIEWS; AND (VI) DEFENSE
LITIGATION COSTS;
(11) NUMBER OF OPEN CLAIMS AT THE TIME SUCH STATEMENT IS PREPARED;
(12) OTHER EXPENSES BY CATEGORY AS DETERMINED BY THE BOARD TO REFLECT
THE COST TO THE INSURER TO PROVIDE SUCH COVERAGE;
(13) INVESTMENT INCOME REALIZED FROM THAT PORTION OF THE PREMIUM PAID
FOR A POLICY PROVIDING SUCH COVERAGE;
(14) LIEN RECOVERIES PURSUANT TO SECTION TWENTY-NINE OF THIS CHAPTER;
(15) CREDITS OR OFFSETS OBTAINED PURSUANT TO SECTION TWENTY-NINE OF
THIS CHAPTER; AND
(16) CREDITS, PREMIUM REDUCTIONS, EXPERIENCE MODIFICATIONS OR OTHER
BENEFITS PROVIDED TO INSURED EMPLOYERS AS A RESULT OF LIEN RECOVERIES
AND CREDITS OBTAINED PURSUANT TO SECTION TWENTY-NINE OF THIS CHAPTER.
(C) THE BOARD SHALL, IN BOTH WRITTEN FORM AND AS PART OF THE AGENCY
WEBSITE, MAKE SUCH FINANCIAL STATEMENTS AND DETAILED CLAIM INFORMATION
AVAILABLE TO THE PUBLIC. THE DETAILED CLAIM INFORMATION SHALL BE
PROVIDED IN AGGREGATE FORM FOR ALL INSURERS AND SEPARATED BY SPECIFIC
INSURER, COMBINED WITHOUT ANY IDENTIFICATION OF A SPECIFIC CLAIM TO A
SPECIFIC INSURER. NONE OF THE PUBLICLY AVAILABLE DETAILED CLAIM INFORMA-
TION SHALL IDENTIFY THE INDIVIDUAL INSURER, EMPLOYER OR EMPLOYEE, OR
REPRESENTATIVE OF THE SAME, ASSOCIATED WITH THE CLAIM. SUCH FINANCIAL
STATEMENTS AND DETAILED CLAIM INFORMATION SHALL BE DEEMED A PUBLIC DOCU-
MENT AND NO PERSON SHALL BE REQUIRED TO FILE A REQUEST FOR SUCH FINAN-
CIAL STATEMENTS PURSUANT TO ARTICLE SIX OF THE PUBLIC OFFICERS LAW IN
ORDER TO RECEIVE A COPY THEREOF, BUT UPON REQUEST AND PAYMENT OF THE FEE
FOR COPYING SUCH DOCUMENT, IT SHALL BE PROVIDED FORTHWITH. WITH RESPECT
TO THE ELECTRONIC COPY OF SUCH FINANCIAL STATEMENTS AND DETAILED CLAIM
INFORMATION, WHICH SHALL BE ACCESSIBLE ON THE BOARD'S WEBSITE, THE BOARD
SHALL HIGHLIGHT THE AVAILABILITY OF SUCH INFORMATION TO THE PUBLIC ON
SUCH WEBSITE, AND THE LINK TO EACH INSURER'S FINANCIAL STATEMENT AND THE
AGGREGATED DETAILED CLAIM INFORMATION SHALL BE ACCESSIBLE IN A SIMPLE
AND EASY MANNER. BOTH THE FINANCIAL STATEMENT AND AGGREGATED DETAILED
CLAIM INFORMATION ON THE BOARD'S WEBSITE SHALL BE AVAILABLE IN SPREAD-
SHEET FORMAT, IN ADDITION TO ANY OTHER FORMAT THE CHAIR DETERMINES IS
APPROPRIATE. WHERE SUMMARIES ARE INCLUDED, THEY SHALL BE WRITTEN IN
PLAIN AND SIMPLE ENGLISH SO THAT THE PUBLIC AT LARGE CAN EASILY COMPRE-
HEND THE DATA PROVIDED.
(D) ON OR BEFORE JULY FIRST OF EACH YEAR, THE CHAIR SHALL ISSUE
REPORTS SUMMARIZING AND EXPLAINING THE INFORMATION COLLECTED FROM THE
FINANCIAL STATEMENTS AND THE DETAILED CLAIM INFORMATION AND SUMMARIZING
THE COST AND OTHER ESSENTIAL ELEMENTS RELEVANT TO PROVIDING WORKERS'
COMPENSATION INSURANCE COVERAGE. COPIES OF SUCH REPORTS SHALL BE
FORWARDED TO THE TEMPORARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE
ASSEMBLY AND THE CHAIRS OF THE SENATE AND ASSEMBLY INSURANCE COMMITTEES.
SUCH REPORTS SHALL BE PUBLIC DOCUMENTS AND SHALL BE ACCESSIBLE BOTH IN
S. 5302 28
PAPER COPY AND ON THE BOARD'S WEBSITE IN A SIMILAR FASHION AS PROVIDED
FOR IN SUBSECTION (C) OF THIS SUBDIVISION.
(E) WHERE AN INSURER FAILS OR REFUSES TO PROVIDE THE BOARD WITH A FULL
AND COMPLETE DISCLOSURE AS REQUIRED BY THIS SECTION, THE CHAIR SHALL
TAKE SUCH ACTION HE OR SHE DEEMS NECESSARY TO BRING THE INSURER INTO
FULL COMPLIANCE. SUCH ACTION MAY INCLUDE IMPOSITION OF A CIVIL PENALTY
OF UP TO FIFTY THOUSAND DOLLARS ASSESSED AGAINST THE INSURER FOR EACH
VIOLATION, TEMPORARY SUSPENSION OF ANY RIGHT TO ISSUE ADDITIONAL POLI-
CIES OR CONTRACTS UNTIL THE INSURER BRINGS ITSELF INTO FULL COMPLIANCE,
AN AUDIT OF THE INSURER'S RECORDS BY THE DEPARTMENT OF FINANCIAL
SERVICES OR ITS DESIGNATED REPRESENTATIVE TO OBTAIN THE INFORMATION AND
WHICH AUDIT SHALL BE PAID FOR BY THE INSURER, OR ANY OTHER CIVIL REMEDY
THE CHAIR DEEMS WARRANTED OR NECESSARY UNTIL SUCH INSURER FULLY
COMPLIES. IN ADDITION THE OFFICER WHOSE SIGNATURE IS AFFIXED TO SUCH
STATEMENT MAY BE PERSONALLY PENALIZED TO THE SAME EXTENT.
(F) THE BOARD MAY PROMULGATE SUCH RULES AND REGULATIONS IT DEEMS
NECESSARY FOR THE PROPER ADMINISTRATION OF THE PROVISIONS OF THIS
SECTION, AND SUCH RULES AND REGULATIONS MAY BE PROMULGATED ON AN EMER-
GENCY BASIS IF THE CHAIR WARRANTS SUCH ACTION TO BE NECESSARY.
(G) IF ANY PART OF THIS SECTION, OR THE APPLICATION THEREOF TO ANY
PERSON OR CIRCUMSTANCES SHALL BE HELD TO BE INVALID, SUCH HOLDING SHALL
NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER OF THIS ACT BUT IT SHALL
BE CONFINED IN ITS OPERATION TO THE ITEM, CLAUSE, SENTENCE, SUBPARA-
GRAPH, SUBDIVISION OR OTHER PART OF THIS ACT DIRECTLY INVOLVED IN SUCH
HOLDING, OR TO THE PERSON AND CIRCUMSTANCES THEREIN INVOLVED.
§ 17. The workers' compensation law is amended by adding a new section
112-a to read as follows:
§ 112-A. AUDITS OF EMPLOYERS. 1. (A) EMPLOYERS IN ALL CLASSES OTHER
THAN THE CONSTRUCTION CLASS SHALL BE AUDITED NOT LESS FREQUENTLY THAN
BIENNIALLY AND THE CHAIR OR BOARD MAY PROVIDE FOR MORE FREQUENT AUDITS
OF EMPLOYERS IN SPECIFIED CLASSIFICATIONS BASED ON FACTORS SUCH AS
AMOUNT OF PREMIUM, TYPE OF BUSINESS, LOSS RATIOS, OR OTHER RELEVANT
FACTORS. IN NO EVENT SHALL EMPLOYERS IN THE CONSTRUCTION CLASS, GENERAT-
ING MORE THAN THE AMOUNT OF PREMIUM REQUIRED TO BE EXPERIENCE RATED, BE
AUDITED LESS FREQUENTLY THAN ANNUALLY. THE ANNUAL AUDITS REQUIRED FOR
CONSTRUCTION CLASSES MAY BE A PHYSICAL, ONSITE REVIEW OF ORIGINAL
PAYROLL RECORDS, EMPLOYEE RECORDS, CHECKBOOKS, CASH BOOK (DISBURSEMENTS
AND RECEIPTS), GENERAL LEDGER, CONTRACTS, TAX RETURNS INCLUDING QUARTER-
LY PAYROLL FILINGS, AND ORIGINAL CERTIFICATES OF INSURANCE. THE AUDIT OF
ALL EMPLOYERS SHALL BE CONDUCTED NO MORE THAN ONE HUNDRED TWENTY DAYS
AFTER THE EXPIRATION OF A POLICY PERIOD. AT THE COMPLETION OF AN AUDIT,
IF REQUESTED BY THE AUDITOR, THE EMPLOYER OR OFFICER OF THE CORPORATION
MUST PRINT AND SIGN THEIR NAMES ON THE AUDIT DOCUMENT AFFIRMING THE
ACCURACY OF THE INFORMATION PROVIDED THEREIN. AS REQUIRED BY SECTION ONE
HUNDRED TWELVE OF THIS ARTICLE, EMPLOYERS SHALL MAKE AVAILABLE ALL BOOKS
AND RECORDS NECESSARY FOR THE PAYROLL VERIFICATION AUDIT AND PERMIT THE
AUDITOR TO MAKE A PHYSICAL INSPECTION OF THE EMPLOYER'S OPERATION. IF
AN EMPLOYER FAILS TO PROVIDE REASONABLE ACCESS TO ALL SUCH BOOKS AND
RECORDS NECESSARY FOR A PAYROLL VERIFICATION AUDIT, INCLUDING A PHYSICAL
INSPECTION OF THE EMPLOYER'S OPERATION, THE EMPLOYER SHALL PAY A
SURCHARGE TO THE CARRIER OF TWO TIMES THE MOST RECENT ESTIMATED ANNUAL
PREMIUM.
(B) EMPLOYERS THAT FAIL TO PROVIDE REASONABLE ACCESS TO THE CARRIER
FOR THE PURPOSE OF CONDUCTING AN AUDIT SHALL BE REPORTED TO THE NEW YORK
COMPENSATION INSURANCE RATING BOARD.
S. 5302 29
(C) IF AN EMPLOYER KNOWINGLY UNDERSTATES OR KNOWINGLY CONCEALS
PAYROLL, KNOWINGLY MISREPRESENTS OR KNOWINGLY CONCEALS EMPLOYEE DUTIES
SO AS TO AVOID PROPER CLASSIFICATION FOR PREMIUM CALCULATIONS, OR KNOW-
INGLY MISREPRESENTS OR KNOWINGLY CONCEALS INFORMATION PERTINENT TO THE
COMPUTATION AND APPLICATION OF AN EXPERIENCE RATING MODIFICATION FACTOR,
SAID KNOWING MISREPRESENTATIONS OR KNOWING CONCEALMENTS SHALL BE CONSID-
ERED FRAUDULENT PRACTICES IN VIOLATION OF APPLICABLE PROVISIONS OF
SECTION ONE HUNDRED FOURTEEN OF THIS ARTICLE AND INSURANCE FRAUD IN
VIOLATION OF APPLICABLE PROVISIONS OF SECTION 176.05 OF THE PENAL LAW.
(D) IF DURING THE COURSE OF AN AUDIT CONDUCTED UNDER THIS SECTION, AN
INSURANCE CARRIER OBTAINS INFORMATION INDICATING A VIOLATION OF THE
PROVISIONS OF PARAGRAPH (C) OF THIS SUBDIVISION, THEN THE CARRIER SHALL
REPORT SUCH INFORMATION TO THE BOARD.
2. THIS SECTION SHALL NOT APPLY TO EMPLOYERS THAT SELF-INSURE OR
EMPLOYERS THAT ARE MEMBERS OF A WORKERS' COMPENSATION GROUP SELF-INSURED
TRUST.
3. FOR THE PURPOSES OF THIS SECTION, "CONSTRUCTION CLASS" MEANS THE
WORK OR OCCUPATION DESCRIBED IN "GROUP 3" OF SUBDIVISION ONE OF SECTION
THREE OF THIS CHAPTER.
§ 18. Subdivision 1 of section 117 of the workers' compensation law,
as amended by chapter 17 of the laws of 1984, is amended to read as
follows:
1. The board may adopt reasonable rules consistent with and supple-
mental to the provisions of this chapter and the labor law. The chairman
may make reasonable regulations consistent with the provisions of this
chapter and the labor law. THE BOARD MAY NOT UTILIZE "SUBJECT NUMBERS",
FORMS OR OTHER INFORMAL COMMUNICATIONS OUTSIDE OF ITS RULES, REGULATIONS
OR DECISIONS TO INTERPRET OR APPLY THE LAW.
§ 19. The opening paragraph and second undesignated paragraph of
section 120 of the workers' compensation law, the opening paragraph as
amended by section 31 of part SS of chapter 54 of the laws of 2016, and
the second undesignated paragraph as amended by chapter 61 of the laws
of 1989, are amended to read as follows:
It shall be unlawful for any employer or his or her duly authorized
agent to discharge, THREATEN, PENALIZE, or fail to reinstate pursuant to
section two hundred three-b of this chapter, or in any other manner
discriminate OR RETALIATE against an employee as to his or her employ-
ment (I) because such employee has claimed or attempted to claim compen-
sation from such employer, or claimed or attempted to claim any benefits
provided under this chapter [or], (II) BECAUSE SUCH EMPLOYER BELIEVES
THAT SUCH EMPLOYEE HAS CLAIMED OR WILL CLAIM COMPENSATION; (III) BECAUSE
SUCH EMPLOYEE HAS CAUSED TO BE INSTITUTED OR IS ABOUT TO INSTITUTE A
CLAIM FOR COMPENSATION OR OTHER BENEFIT UNDER THIS CHAPTER; (IV) because
he or she has testified or is about to testify in a proceeding under
this chapter [and no other valid reason is shown to exist for such
action by the employer]; OR (V) BECAUSE SUCH EMPLOYEE HAS OTHERWISE
EXERCISED RIGHTS PROTECTED UNDER THIS CHAPTER. FOR PURPOSES OF THIS
PROVISION, "BECAUSE" SHALL BE INTERPRETED TO REQUIRE THAT THE LISTED
ACTIVITY WAS AT LEAST A CONTRIBUTING FACTOR TO THE EMPLOYER'S ACTION.
Any complaint alleging such an unlawful discriminatory practice must
be filed within two years of the commission of such practice. Upon find-
ing that an employer has violated this section, the board shall make an
order that any employee so discriminated against shall be restored to
employment or otherwise restored to the position or privileges he or she
would have had but for the discrimination and shall be compensated by
his or her employer for any loss of compensation arising out of such
S. 5302 30
discrimination together with such fees or allowances for services
rendered by an attorney or licensed representative as fixed by the
board. Any employer who violates this section shall be liable to a
penalty of not less than one [hundred] THOUSAND dollars or more than
[five hundred] TEN THOUSAND dollars, as may be determined by the board.
All such penalties shall be paid [into the state treasury] TO THE
EMPLOYEE SO DISCRIMINATED AGAINST. All penalties, compensation and fees
or allowances shall be paid solely by the employer. The employer alone
and not his or her carrier shall be liable for such penalties and
payments. Any provision in an insurance policy undertaking to relieve
the employer from liability for such penalties and payments shall be
void.
§ 20. Paragraphs (a) and (b) of subdivision 1, subdivision 7 and
subdivision 11 of section 137 of the workers' compensation law, as added
by chapter 473 of the laws of 2000, are amended to read as follows:
(a) A copy of each report of independent medical examination ON BEHALF
OF AN EMPLOYER OR CARRIER shall be submitted by the practitioner on the
same day and in the same manner to the board, the insurance carrier, the
claimant's attending physician or other attending practitioner, the
claimant's representative and the claimant.
(b) If a practitioner who has performed or will be performing an inde-
pendent medical examination of a claimant ON BEHALF OF AN EMPLOYER OR
CARRIER receives a request for information regarding the claimant,
including faxed or electronically transmitted requests, the practitioner
shall submit a copy of the request for information to the board within
ten days of receipt of the request. Nothing in this subdivision shall be
construed to abrogate the attorney-client privilege.
7. The claimant shall receive notice by mail of the scheduled inde-
pendent medical examination ON BEHALF OF AN EMPLOYER OR CARRIER at least
seven business days prior to such examination. Such notice shall advise
the claimant if the practitioner intends to record or video tape the
examination, and shall advise the claimant of their right to video tape
or otherwise record the examination. Claimants shall be advised of their
right to be accompanied during the exam by an individual or individuals
of their choosing.
11. At the time of the independent medical examination ON BEHALF OF AN
EMPLOYER OR CARRIER the claimant shall receive a notice from the entity
performing the independent medical examination, on a form which shall be
approved and promulgated by the chair, stating the rights and obli-
gations of the claimant and the practitioner with respect to such exam,
and such notice shall include but not be limited to a statement that the
claimant's receipt of benefits could be denied, terminated, or reduced
as a result of a determination which may be based upon the medical eval-
uation made after such independent medical examination, and the claim-
ant's rights to challenge or appeal such a determination.
§ 21. The workers' compensation law is amended by adding a new section
208-a to read as follows:
§ 208-A. COST-OF-LIVING ADJUSTMENTS OF DISABILITY BENEFITS IN CERTAIN
CASES. 1. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, EFFECTIVE JULY
FIRST, TWO THOUSAND NINETEEN, IN ADDITION TO ANY OTHER AMOUNT RECEIVED
PURSUANT TO THIS ARTICLE AS DISABILITY BENEFITS, AN EMPLOYEE WITH A
PERMANENT TOTAL DISABILITY OR THE BENEFICIARY-DEPENDENT OF SUCH EMPLOYEE
SHALL BE ENTITLED TO AN ADDITIONAL ALLOWANCE, TO BE KNOWN AS A COST-OF-
LIVING ADJUSTMENT ALLOWANCE, PAYABLE ANNUALLY.
2. THE COST-OF-LIVING ADJUSTMENT ALLOWANCE SHALL BE COMPUTED BY APPLY-
ING AN ADJUSTMENT FOR REGIONAL COSTS OF LIVING AND SHALL BE BASED ON
S. 5302 31
FIFTY PERCENT OF THE ANNUAL INCREASE IN THE CONSUMER PRICE INDEX AS
PROMULGATED BY THE UNITED STATES DEPARTMENT OF LABOR.
§ 22. This act shall take effect immediately.
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