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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
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| Jan 27, 2025 |
referred to labor |
Assembly Bill A3418
2025-2026 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
BRONSON
Current Bill Status - In Assembly 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
co-Sponsors
Jen Lunsford
2025-A3418 (ACTIVE) - Details
2025-A3418 (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K
________________________________________________________________________
3418
2025-2026 Regular Sessions
I N A S S E M B L Y
January 27, 2025
___________
Introduced by M. of A. BRONSON, LUNSFORD -- read once and referred 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. Subdivision 1 of section 11 of the workers' compensation
law, as amended by chapter 835 of the laws of 2022, is amended to read
as follows:
1. (A) The liability of an employer prescribed by the last preceding
section shall be exclusive and in place of any other liability whatsoev-
er, to such employee, [his or her] SUCH EMPLOYEE'S personal represen-
tatives, spouse, parents, dependents, distributees, or any person other-
wise entitled to recover damages, contribution or indemnity, at common
law or otherwise, on account of such injury or death or liability aris-
ing 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 PROXIMATE CAUSE OF THE EMPLOYEE'S INJURY OR
DEATH; (II) THE EMPLOYEE'S BENEFITS 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] SUCH EMPLOYER'S injured employees and their dependents as
provided in section fifty of this chapter. IN SUCH EVENTS, an injured
employee, or [his or her] SUCH EMPLOYEE'S legal representative in case
of death results from the injury, may, at [his or her] SUCH EMPLOYEE'S
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00318-01-5
A. 3418 2
contributory negligence nor may the defendant plead as a defense that
the injury was 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
INJURY UNTIL THE DATE THE EMPLOYEE'S BENEFITS ARE TERMINATED. THE
EMPLOYER SHALL BE ENTITLED TO TAKE CREDIT FOR COMPENSATION PAID UNDER
THIS CHAPTER 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 breeding law and any statutory penalties resulting from the failure
to provide such coverage.
(B) For purposes of this section the terms "indemnity" and "contrib-
ution" shall not include a claim or cause of action for contribution or
indemnification based upon a provision in a written contract entered
into prior to the accident or occurrence by which the employer had
expressly agreed to contribution to or indemnification of the claimant
or person asserting the cause of action for the type of loss suffered.
(C) An employer shall not be liable for contribution or indemnity to
any third person based upon liability for injuries sustained by an
employee acting within the scope of [his or her] SUCH EMPLOYEE'S employ-
ment for such employer unless such third person proves through competent
medical evidence that such employee has sustained a "grave injury" which
shall mean only one or more of the following: death, permanent and total
loss of use or amputation of an arm, leg, hand or foot, loss of multiple
fingers, loss of multiple toes, paraplegia or quadriplegia, total and
permanent blindness, total and permanent deafness, loss of nose, loss of
ear, permanent and severe facial disfigurement, loss of an index finger
or an acquired injury to the brain caused by an external physical force
resulting in permanent total disability.
(D) For purposes of this section "person" means any individual, firm,
company, partnership, corporation, joint venture, joint-stock associ-
ation, association, trust or legal entity.
(E) The liability under this chapter of the New York black car opera-
tors' injury compensation fund, inc. shall be limited to: (i) securing
the payment of workers' compensation in accordance with article six-F of
the executive law to black car operators, as defined in such article,
whose injury arose out of and in the course of providing services for a
central dispatch facility, as defined in such article, that is a regis-
tered member of such fund, and (ii) any statutory penalty resulting from
the failure to secure such payment. The liability under this chapter of
a central dispatch facility, as defined in article six-F of the execu-
tive law, that is a registered member of the New York black car opera-
tors' injury compensation fund, inc. that shall be limited to remaining
a registered member in good standing of such fund and any statutory
penalty, including loss of immunity provided by this section, resulting
from the failure to become or remain a registered member in good stand-
ing of such fund, except, however, that such central dispatch facility
A. 3418 3
shall be subject to the provisions of section one hundred thirty-one of
this chapter and shall be liable for any payments for which it may
become responsible pursuant to such section or pursuant to section four-
teen-a of this article.
(F) The liability under this chapter of the New York independent
livery driver benefit fund, inc. shall be limited to: (i) securing the
payment of workers' compensation coverage to cover those matters
required by article six-G of the executive law for independent livery
drivers, as defined in such article, whose injury arose out of and in
the course of providing covered services for a livery base, as defined
in such article, that is a registered member of such fund, and (ii) any
statutory penalty resulting from the failure to secure such payment.
§ 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
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,
A. 3418 4
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
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
A. 3418 5
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] FAILS 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] SUCH EMPLOYEE for such treatment or services unless
[he] SUCH EMPLOYEE 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] SUCH EMPLOYER'S superintendent or [foreman] FOREPERSON
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 follow-
ing the first treatment, the physician giving such treatment, furnish to
the employer and the [chairman] CHAIRPERSON a report of such injury and
treatment, on a form prescribed by the [chairman] CHAIRPERSON. The
board may, however, by the unanimous vote of a panel of not less than
three members qualified 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 other-
wise, shall be subject to regulation by the board as provided in section
twenty-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
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
A. 3418 6
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 section 8 of part CC of chapter 55 of the laws of 2019, 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. Such list of pre-
authorized procedures shall be issued and maintained for the purpose of
expediting authorization of treatment of injured workers. Such list of
pre-authorized procedures shall not prohibit varied treatment when the
treating provider demonstrates the appropriateness and medical necessity
of such treatment.
§ 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:
(1) Fees for medical services shall be payable only to a physician or
other qualified person permitted by sections thirteen-b, thirteen-k,
A. 3418 7
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] THEMSELF. 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 and 5 of section 15 of the workers' compensation
law, subdivision 1 as amended by chapter 675 of the laws of 1977, subdi-
vision 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, subpara-
graphs 1 and 2 of paragraph t of subdivision 3 as amended by chapter 924
of the laws of 1990, paragraph v of subdivision 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 chapter 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, and subdivision 5 as
amended by chapter 161 of the laws of 1966, are amended and a new subdi-
vision 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] SUCH EMPLOYEE'S compensation by
engaging in business or employment provided [his] SUCH EMPLOYEE'S earn-
ings or wages, when combined with [his] SUCH EMPLOYEE'S 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
A. 3418 8
base, the compensation shall be diminished to an amount which, together
with [his] SUCH EMPLOYEE'S 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 thereof,
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 SUCH
EMPLOYEE'S 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
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
A. 3418 9
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] SUCH EMPLOYEE'S wage-earning capacity thereafter in the same
employment or otherwise. NOTHING IN THIS PARAGRAPH SHALL PRECLUDE THE
PAYMENT OF COMPENSATION UNDER PARAGRAPHS A THROUGH T OF THIS SUBDIVI-
SION, 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 disability, without the necessity for the claimant who
is entitled to benefits 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
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-
A. 3418 10
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] SUCH CLAIMANT is not at maximum medical improvement,
and the carrier has produced or has had a reasonable opportunity to
produce an independent 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 maxi-
mum medical improvement, at which time the carrier shall receive credit
for any weeks of temporary disability paid to claimant after such find-
ing 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
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
A. 3418 11
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] SUCH EMPLOYEE'S wage earning
capacity after the accident in the same or other employment, WHICH
DIFFERENCE SHALL BE THE INJURED EMPLOYEE'S LOSS OF WAGE-EARNING CAPACI-
TY. COMPENSATION UNDER THIS SUBDIVISION SHALL BE PAYABLE DURING THE
CONTINUANCE OF SUCH TEMPORARY 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 SUCH EMPLOYEE'S PARTIAL DISABILITY.
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
A. 3418 12
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 TERM "SURVIVING SPOUSE" 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] THE APPLICABLE PERIOD; and where the
death occurred prior to July first, nineteen hundred forty-eight, to
such [wife (or dependent husband)] SPOUSE thirty per centum of such
wages during [widowhood (or dependent widowerhood) with two years'
compensation in one sum, upon remarriage] THE APPLICABLE PERIOD.
1-c. If there be a surviving spouse and no child of the deceased under
the age of eighteen years or under the age of twenty-three years if
enrolled and attending as a full time student in an accredited educa-
tional institution and such enrollment and full time attendance is
certified by such institution and no child of any age dependent blind or
physically disabled, and the death occurs on or after January first,
nineteen hundred seventy-eight, to such spouse sixty-six and two-thirds
per centum of the average wages of the deceased during [widowhood or
widowerhood with two years' compensation, in one sum, upon remarriage]
THE APPLICABLE PERIOD. Where the death occurs on or after January
first, nineteen hundred seventy-eight, 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. [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 survi-
vors 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-
A. 3418 13
ical examination upon employment as a rescue worker that failed to
reveal evidence of a condition that was the proximate cause of death,
and no child of the deceased under the age of eighteen years, or under
the age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, and no child of
any age dependent blind or physically disabled, to such spouse seventy-
five per centum of the average wages of the deceased during [widowhood
or widowerhood, with two years' compensation, in one sum, upon remar-
riage. Where such death occurs, and the spouse is receiving the survi-
vors insurance benefits under the social security act, the death benefit
payable under this section shall be reduced in accordance with the
provisions of table No. I in subdivision one-c of this section by five
per centum of the spouse's share of the survivor's insurance benefits
under the social security act for each ten dollars of deceased's average
weekly wage in excess of one hundred dollars; provided that in no case
shall such reduction exceed fifty per centum of such spouse's share of
the survivors insurance benefits under the social security act] THE
APPLICABLE PERIOD.
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
PHYSICALLY DISABLED, AND THE DEATH OCCURS ON OR AFTER JANUARY FIRST, TWO
THOUSAND TWENTY-SIX, TO SUCH SPOUSE SIXTY-SIX AND TWO-THIRDS PER CENTUM
OF THE AVERAGE WAGES OF THE DECEASED DURING THE APPLICABLE PERIOD.
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 remarriage]
THE APPLICABLE PERIOD; 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] SUCH PERSON'S compensation increased to
thirty per centum of such wages, and the same shall be payable until
[he] SUCH PERSON 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 compen-
sation 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)] SPOUSE 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)] SPOUSE thirty per centum of the average wages of the deceased
during [widowhood (or dependent widowerhood) with two years' compen-
sation in one sum, upon remarriage] THE APPLICABLE PERIOD; and the addi-
A. 3418 14
tional 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 subse-
quent death [or remarriage] of such surviving [wife (or dependent
husband)] SPOUSE any surviving child of the deceased shall have [his]
SUCH CHILD'S compensation increased to fifteen per centum of such wages
until [he] SUCH CHILD 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 widow-
erhood with two years' compensation in one sum, upon remarriage] THE
APPLICABLE PERIOD; 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 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; in the case of the subsequent death of
such surviving spouse the surviving child shall have [his] SUCH CHILD'S
compensation increased to sixty-six and two-thirds per centum of such
wages and the same shall be payable so long as [he] SUCH CHILD 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
A. 3418 15
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] THE APPLICABLE PERIOD; and thirty per centum of such
wages to such children under the age of eighteen years or under the age
of twenty-three years if enrolled and attending as a full time student
in an accredited 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 insti-
tution 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 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 sixty-six and two-thirds 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 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 survivors insurance benefits under the social
A. 3418 16
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 survi-
vors insurance benefits under the social security act as set forth in
table No. II below.
TABLE No. II
Offset provisions applicable in death benefits
where there is a surviving spouse and two or more children
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $150 up to and including $160 ................................... 5
over $160 up to and including $170 .................................. 10
over $170 up to and including $180 .................................. 15
over $180 up to and including $190 .................................. 20
over $190 up to and including $200 .................................. 25
over $200 up to and including $210 .................................. 30
over $210 up to and including $220 .................................. 35
over $220 up to and including $230 .................................. 40
over $230 up to and including $240 .................................. 45
over $240 up to and including $250 .................................. 50
over $250 ........................................................... 50
2-b. If there be a surviving spouse of an employee of a private volun-
tary hospital killed in a World Trade Center rescue, who passed a phys-
ical examination upon employment as a rescue worker that failed to
reveal evidence of a condition that was the proximate cause of death,
and a surviving child under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and full-
time attendance is certified by such institution, or a surviving child
of any age dependent blind or physically disabled, to such spouse forty
per centum of the average wages of the deceased during [widowhood or
widowerhood, with two years' compensation in one sum, upon remarriage]
THE APPLICABLE PERIOD; 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 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 or her] SUCH
CHILD'S compensation increased to seventy-five per centum of such wages
and the same shall be payable so long as [he or she] SUCH CHILD 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 seventy-five per centum of such wages [with two years'
compensation, at such rate, in one sum, upon remarriage]. [Upon remar-
riage 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
A. 3418 17
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 benefits under the social
security act as set forth in table No. I in subdivision 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 proximate 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 institution and such enroll-
ment 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 eleventh, 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] THE APPLICABLE PERIOD; and thirty-five per centum of
such wages to such children under the age of eighteen years, or under
the age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, or a surviving
child or children of any age dependent blind or physically disabled,
share and share alike; in case of the subsequent death of such surviving
spouse the surviving children shall have their compensation increased to
seventy-five per centum of such wages and the aggregate sum shall be
payable, share and share alike, so long as they are under the age of
eighteen years, or under the age of twenty-three years if enrolled and
attending as a full-time student in an accredited educational institu-
tion and such enrollment and full-time attendance is certified by such
institution, or a surviving child or children of any age dependent blind
or physically disabled. [Upon remarriage of such surviving spouse, if
there be two surviving children each shall receive thirty-seven and
one-half per centum of such wages, and if there are surviving more than
two children under the age of eighteen years, or under the age of twen-
ty-three if enrolled and attending as a full-time student in an accred-
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.
A. 3418 18
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 TWENTY-SIX, TO SUCH SPOUSE THIRTY-SIX AND TWO-THIRDS PER CENTUM
OF THE AVERAGE WAGES OF THE DECEASED DURING THE APPLICABLE PERIOD; 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
AFTER JANUARY FIRST, TWO THOUSAND TWENTY-SIX, TO SUCH SPOUSE THIRTY-SIX
AND TWO-THIRDS PER CENTUM OF THE AVERAGE WAGE OF THE DECEASED DURING THE
APPLICABLE PERIOD; AND THIRTY PER CENTUM OF SUCH WAGES TO SUCH CHILDREN
UNDER THE AGE OF EIGHTEEN YEARS OR UNDER THE AGE OF TWENTY-THREE YEARS
IF ENROLLED AND ATTENDING AS A FULL-TIME STUDENT IN AN ACCREDITED EDUCA-
TIONAL INSTITUTION AND SUCH ENROLLMENT AND FULL-TIME ATTENDANCE IS
CERTIFIED BY SUCH INSTITUTION OR A SURVIVING CHILD OR CHILDREN OF ANY
AGE DEPENDENT BLIND OR PHYSICALLY DISABLED, SHARE AND SHARE ALIKE; IN
CASE OF THE SUBSEQUENT DEATH OF SUCH SURVIVING SPOUSE THE SURVIVING
CHILDREN SHALL HAVE THEIR COMPENSATION INCREASED TO SIXTY-SIX AND TWO-
THIRDS PER CENTUM OF SUCH WAGES AND THE AGGREGATE SUM SHALL BE PAYABLE,
SHARE AND SHARE ALIKE, SO LONG AS THEY ARE UNDER THE AGE OF EIGHTEEN
YEARS OR UNDER THE AGE OF TWENTY-THREE YEARS IF ENROLLED AND ATTENDING
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-
A. 3418 19
time attendance is certified by such institution, or dependent blind or
physically disabled child of any age, or grandchildren or [brothers and
sisters] SIBLINGS 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 educational institution and such enrollment and full-time
attendance is certified by such institution, or disabled blind or phys-
ically disabled grandchildren or [brothers and sisters] SIBLINGS 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-b to read as follows:
§ 17-B. 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;
(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]
SOMEONE ON SUCH PERSON'S 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] SUCH PERSON or by a person on [his] SUCH PERSON'S behalf or, in
case of death, by any one or more of [his] SUCH PERSON'S dependents, or
by a person, on their behalf. It shall be given to the employer by
A. 3418 20
delivering it to [him] SUCH EMPLOYER or sending it by mail, by regis-
tered letter, addressed to the employer at [his or its] SUCH EMPLOYER'S
last known place of business; provided that, if the employer be a part-
nership 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] SUCH EMPLOYER'S 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] SUCH EMPLOYER'S agents in charge of the busi-
ness in the place where the accident occurred or having immediate super-
vision 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
prejudiced 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 hear-
ing of the claim [field] FILED by such injured employee, or [his or her]
SUCH EMPLOYEE'S 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,
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 is amended by adding
a new subdivision 5 to read as follows:
A. 3418 21
5. 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] SUCH WORKER'S 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 docu-
ments after they have been requested by the referee or examiner or as
directed by the hearing notice, unnecessarily protracting the production
of evidence, or engaging 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 chapter 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] SUCH EMPLOY-
EE'S dependents, need not elect whether to take compensation and medical
benefits under this chapter or to pursue [his] SUCH EMPLOYEE'S 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] SUCH EMPLOYEE'S remedy against such
other subject to the provisions of this chapter. If such injured employ-
A. 3418 22
ee, or in case of death, [his] SUCH EMPLOYEE'S 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 enact-
ment 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] SUCH EMPLOYEE'S dependents secure a recovery from such other,
whether by judgment, settlement or otherwise, such employee or depen-
dents 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 apportioning 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] SUCH EMPLOYEE'S dependents and the
lienor. Notice of the commencement of such action shall be given within
thirty days thereafter to the [chairman] CHAIRPERSON, the employer and
the insurance carrier upon a form prescribed by the [chairman] CHAIR-
PERSON. 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 seventy-four and before July first, nineteen hundred
seventy-eight, through the use or operation of a motor vehicle in this
state, shall notify such person by certified mail in a manner to be
approved by the [chairman] CHAIRPERSON and the superintendent of finan-
cial 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]
SUCH EMPLOYEE'S dependents. This notice shall afford them the opportu-
nity to submit affidavits and to be heard by the court on the applica-
tion. A PETITION MAY ALSO BE FILED PURSUANT TO THIS SUBDIVISION ALLOCAT-
ING A PORTION OF THE THIRD-PARTY RECOVERY TO LOST WAGES AND/OR MEDICAL
TREATMENT.
A. 3418 23
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] SUCH
EMPLOYEE'S dependents, when such employee is injured or killed by the
negligence or wrong of another in the same employ, the employer's insur-
er 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] SUCH INDIVIDUAL'S 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 applica-
ble to another in the same employ, the employer's insurer, any collec-
tive 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] SUCH INDIVIDUAL'S 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] SUCH INDIVIDUAL'S 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
SUCH WORKER'S AVERAGE WEEKLY WAGE UPON TERMINATION OF PPD BENEFITS; OR
(B) THE INJURED WORKER WILL BE UNABLE TO MEET EXPENSES FOR THEMSELF 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 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-SIX:
(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
A. 3418 24
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-
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
A. 3418 25
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;
(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;
A. 3418 26
(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
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 THE CHAIR 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.
A. 3418 27
(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.
(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.
A. 3418 28
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 [chair-
man] CHAIRPERSON 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 chapter 105 of the laws of 2019, 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] SUCH EMPLOYER'S
duly authorized agent to discharge, THREATEN, PENALIZE, or fail to rein-
state 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] SUCH EMPLOYEE'S employment (I) because such employee has claimed or
attempted to claim compensation from such employer, requested a claim
form for injuries received in the course of employment, 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 INSTI-
TUTED OR IS ABOUT TO INSTITUTE A CLAIM FOR COMPENSATION OR OTHER BENEFIT
UNDER THIS CHAPTER; (IV) because [he or she] SUCH EMPLOYEE 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 INTER-
PRETED 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] SUCH EMPLOYEE would have had but for the discrimination and shall
be compensated by [his or her] SUCH EMPLOYEE'S employer for any loss of
compensation arising out of such discrimination together with such fees
or allowances for services rendered by an attorney or licensed represen-
tative 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 penal-
ties, compensation and fees or allowances shall be paid solely by the
employer. The employer alone and not [his or her] SUCH EMPLOYER'S carri-
er 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.
A. 3418 29
§ 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 TWENTY-SIX, 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
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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