Relates to permanent partial disability; provides that such permanent partial disability shall be based on the objective medical guidelines for determination of percentage or permanent impairment; sets forth compensation, entitlement and claim provisions; establishes objective medical guidelines, a benefit evaluation commission and pharmaceutical fee schedules; increases certain claim amounts; and provides for penalties for workers' compensation fraud.
STATE OF NEW YORK
________________________________________________________________________
2989
2009-2010 Regular Sessions
IN ASSEMBLY
January 22, 2009
___________
Introduced by M. of A. KOLB, REILICH, CALHOUN, OAKS, FINCH, CORWIN --
Multi-Sponsored by -- M. of A. BACALLES, BALL, BARCLAY, BURLING,
BUTLER, CROUCH, DUPREY, ERRIGO, HAWLEY, MILLER, MOLINARO, O'MARA,
RAIA, SAYWARD, TEDISCO, THIELE, WALKER -- read once and referred to
the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to permanent
partial disability, establishing objective medical guidelines, a bene-
fit evaluation commission and pharmaceutical fee schedule, and provid-
ing for penalties for workers' compensation fraud; to amend the labor
law, in relation to the use of scaffolding and other devices for use
by employees; to amend the civil practice law and rules, in relation
to making technical corrections thereto; to repeal section 241-a of
the labor law, subdivision 8 of section 1602 of the civil practice law
and rules and repealing certain provisions of the workers' compen-
sation law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "workplace
2 safety act of 2009".
3 § 2. Subdivision 3 of section 15 of the workers' compensation law is
4 REPEALED and a new subdivision 3 is added to read as follows:
5 3. Permanent partial disability. a. In case of disability partial in
6 character but permanent in quality, that occurs on or after the estab-
7 lishment of objective medical guidelines pursuant to section fifteen-a
8 of this article, the compensation shall be exclusively based on an
9 impairment rating established pursuant to section fifteen-a of this
10 article.
11 b. Compensation under this subdivision shall be paid at the rate of
12 sixty-six and two-thirds per centum of the injured worker's average
13 weekly wages, not to exceed the maximum weekly benefit for permanent or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05086-01-9
A. 2989 2
1 temporary partial disability or for permanent or temporary total disa-
2 bility.
3 c. A claimant's entitlement to compensation under this subdivision
4 begins the day after the claimant reaches maximum medical improvement
5 and continues until the earlier of: (1) the expiration of a period
6 computed at the rate of three weeks for each percentage point of impair-
7 ment; or (2) the death of the claimant.
8 d. Supplemental benefits shall be payable to an injured worker who has
9 an impairment rating of fifteen percent or more as determined under this
10 section and who, at the expiration of the period in subparagraph one of
11 paragraph c of this subdivision, has not returned to work or has
12 returned to work earning less than eighty percent of the claimant's
13 average weekly wage as a result of the claimant's impairment, and who
14 has in good faith attempted to obtain employment commensurate with the
15 claimant's physical ability to work. Supplemental benefits shall be
16 payable for a period not to exceed five hundred weeks including any
17 weeks of temporary or permanent disability benefits payable on account
18 of such impairment. Supplemental benefits shall be payable at sixty-six
19 and two-thirds percent of the difference between the injured worker's
20 average weekly wages before and after injury, not to exceed the rate
21 provided in paragraph b of this subdivision.
22 e. In the event the claim is controverted pursuant to section twenty-
23 five of this article and the controversy is resolved in favor of the
24 claimant, the claimant shall receive up to ninety days of additional
25 benefits beyond the period prescribed in paragraph d of this subdivision
26 and not to exceed the period during which such claim was controverted.
27 § 3. Paragraph (a) of subdivision 6 of section 15 of the workers'
28 compensation law, as amended by chapter 689 of the laws of 2007, is
29 amended to read as follows:
30 (a) Compensation for permanent or temporary total disability due to an
31 accident or disablement resulting from an occupational disease that
32 occurs, (1) on or after January first, nineteen hundred seventy-eight,
33 shall not exceed one hundred twenty-five dollars per week, that occurs
34 (2) on or after July first, nineteen hundred seventy-eight, shall not
35 exceed one hundred eighty dollars per week, that occurs (3) on or after
36 January first, nineteen hundred seventy-nine, shall not exceed two
37 hundred fifteen dollars per week, that occurs (4) on or after July
38 first, nineteen hundred eighty-three, shall not exceed two hundred
39 fifty-five dollars per week, that occurs (5) on or after July first,
40 nineteen hundred eighty-four, shall not exceed two hundred seventy-five
41 dollars per week, that occurs (6) on or after July first, nineteen
42 hundred eighty-five, shall not exceed three hundred dollars per week,
43 that occurs (7) on or after July first, nineteen hundred ninety, shall
44 not exceed three hundred forty dollars per week; and in the case of
45 temporary total disability shall not be less than thirty dollars per
46 week and in the case of permanent total disability shall not be less
47 than twenty dollars per week except that if the employee's wages at the
48 time of injury are less than thirty or twenty dollars per week respec-
49 tively, he or she shall receive his or her full weekly wages. Compen-
50 sation for permanent or temporary partial disability due to an accident
51 or disablement resulting from an occupational disease that occurs (1) on
52 or after January first, nineteen hundred seventy-eight, shall not exceed
53 one hundred five dollars per week, that occurs (2) on or after July
54 first, nineteen hundred eighty-three, shall not exceed one hundred twen-
55 ty-five dollars per week, that occurs (3) on or after July first, nine-
56 teen hundred eighty-four, shall not exceed one hundred thirty-five
A. 2989 3
1 dollars per week, that occurs (4) on or after July first, nineteen
2 hundred eighty-five, shall not exceed one hundred fifty dollars per
3 week, that occurs (5) on or after July first, nineteen hundred ninety,
4 shall not exceed two hundred eighty dollars per week; nor be less than
5 twenty dollars per week; except that if the employee's wages at the time
6 of injury are less than twenty dollars per week, he or she shall receive
7 his or her full weekly wages. In no event shall compensation when
8 combined with decreased earnings or earning capacity exceed the amount
9 of wages which the employee was receiving at the time the injury
10 occurred. Compensation for permanent or temporary partial disability, or
11 for permanent or temporary total disability due to an accident or disa-
12 blement resulting from an occupational disease that occurs (1) on or
13 after July first, nineteen hundred ninety-one and prior to July first,
14 nineteen hundred ninety-two, shall not exceed three hundred fifty
15 dollars per week; (2) on or after July first, nineteen hundred ninety-
16 two and prior to the establishing of objective medical guidelines for
17 the determination of percentage of permanent impairment pursuant to
18 section fifteen-a of this article, shall not exceed four hundred dollars
19 per week; nor be less than forty dollars per week except that if the
20 employee's wages at the time of injury are less than forty dollars per
21 week, the employee shall receive his or her full wages. Compensation for
22 permanent or temporary partial disability, or for permanent or temporary
23 total disability due to an accident or disablement resulting from an
24 occupational disease that occurs (1) on or after July first, two thou-
25 sand seven shall not exceed five hundred dollars per week, (2) on or
26 after July first, two thousand eight shall not exceed five hundred fifty
27 dollars per week, (3) on or after July first, two thousand nine shall
28 not exceed six hundred dollars per week, and (4) on or after July first,
29 two thousand ten, and on or after July first of each succeeding year,
30 shall not exceed two-thirds of the New York state average weekly wage
31 for the year in which it is reported. Compensation for permanent or
32 temporary partial disability, or for permanent or temporary total disa-
33 bility due to an accident or disablement resulting from an occupational
34 disease that occurs on or after July first, two thousand seven shall not
35 be less than one hundred dollars per week except that if the employee's
36 wages at the time of injury are less than one hundred dollars per week,
37 the employee shall receive his or her full wages. In no event shall
38 compensation when combined with decreased earnings or earning capacity
39 exceed the amount of wages the employee was receiving at the time the
40 injury occurred. Compensation for permanent or temporary partial disa-
41 bility, or for permanent or temporary total disability due to an acci-
42 dent or disablement resulting from an occupational disease or injury
43 that occurred as a result of World Trade Center rescue activity by an
44 employee of a private voluntary hospital, who passed a physical examina-
45 tion upon employment as a rescue worker that failed to reveal evidence
46 of a condition that was the proximate cause of disablement or occupa-
47 tional disease or injury, shall not exceed three-quarters of a claim-
48 ant's wage on September eleventh, two thousand one. In no event shall
49 compensation when combined with decreased earnings or earning capacity
50 exceed the amount of wages the employee was receiving on September elev-
51 enth, two thousand one.
52 § 4. The workers' compensation law is amended by adding two new
53 sections 15-a and 15-b to read as follows:
54 § 15-a. Objective medical guidelines. 1. The chair shall within thirty
55 days of the effective date of this section appoint a committee of five
56 expert medical consultants to develop objective medical guidelines for
A. 2989 4
1 the determination of percentage of permanent impairment. The percentage
2 of permanent impairment shall be known as the impairment rating. The
3 committee shall within one hundred twenty days of such committee's
4 appointment recommend objective medical guidelines for the determination
5 of percentage of permanent impairment to the chair. The chair shall
6 adopt objective medical guidelines for the determination of percentage
7 of permanent impairment based on the recommendations of the committee
8 within thirty days of receipt of such recommendations.
9 2. Once objective medical guidelines are adopted, the chair shall be
10 granted the authority, when he or she sees fit, to appoint a committee
11 pursuant to subdivision one of this section to make recommendations to
12 amend the objective medical guidelines for the determination of percent-
13 age of permanent impairment.
14 § 15-b. Benefit evaluation commission. 1. A workers' compensation
15 benefit evaluation commission shall be appointed before January first,
16 two thousand fourteen to examine, evaluate and report on the sufficiency
17 of benefit levels in regard to inflation and the overall cost of work-
18 ers' compensation for employers.
19 2. The commission created by this section shall consist of five
20 members as follows: (i) the chair of the workers' compensation board, or
21 his or her designee, who shall act as chair of such commission; (ii) one
22 member appointed by the temporary president of the senate; (iii) one
23 member appointed by the speaker of the assembly; (iv) one member
24 appointed by the minority leader of the senate; and (v) one member
25 appointed by the minority leader of the assembly.
26 3. Such commission may employ and at pleasure remove such personnel as
27 it may deem necessary for the performance of its functions and fix their
28 compensation within the amounts made available therefor.
29 4. The commission may meet within and without the state, shall hold
30 public hearings, and shall have all the powers of a legislative commit-
31 tee pursuant to the legislative law.
32 5. The members of the commission shall receive no compensation for
33 their services, but shall be allowed their actual and necessary expenses
34 incurred in the performance of their duties pursuant to this section.
35 6. To the maximum extent feasible, the commission shall be entitled to
36 request and receive, and shall utilize and be provided with such facili-
37 ties, resources and data of any court, department, division, board,
38 bureau, commission or agency of the state or any political subdivision
39 thereof as it may reasonably request to properly carry out its powers
40 and duties pursuant to this section.
41 7. The commission shall make a report to the governor, temporary pres-
42 ident of the senate, speaker of the assembly, minority leader of the
43 senate and minority leader of the assembly of its findings, conclusions
44 and recommendations on or before January first, two thousand fifteen and
45 annually thereafter. Such report shall be made available to the public
46 and include such legislative proposals as shall be necessary to imple-
47 ment the commission's recommendations.
48 § 5. Paragraph (f) of subdivision 1 of section 25 of the workers'
49 compensation law, as amended by chapter 635 of the laws of 1996, is
50 amended to read as follows:
51 (f) Whenever compensation is withheld solely because a controversy
52 exists on the question of liability as between insurance carriers, sure-
53 ty companies, the special disability fund, the special fund for reopened
54 cases, or an employer, the board [may] shall within ninety days direct
55 that any carrier, surety company, the special disability fund, the
56 special fund for reopened cases shall immediately pay compensation and
A. 2989 5
1 bills for medical care to the extent payable in accordance with sections
2 thirteen-g, thirteen-k, thirteen-l and thirteen-m of this chapter, pend-
3 ing determination of such issue. Any such payment or payments shall not
4 be deemed an admission against interest by the carrier, surety company,
5 special disability fund or the special fund for reopened cases. After
6 final determination, the parties shall make the necessary and proper
7 reimbursement including the payment of simple interest at the rate
8 established by section five thousand four of the civil practice law and
9 rules in conformity with such determination.
10 § 6. Section 50 of the workers' compensation law is amended by adding
11 a new subdivision 3-f to read as follows:
12 3-f. The state insurance fund and any other insurer that issues poli-
13 cies of workers' compensation insurance may require nominal co-payments
14 to be paid by the employee of up to five dollars for pharmaceuticals
15 prescribed under a workers' compensation policy. In addition, premium
16 reductions, in accordance with methodology approved by the superinten-
17 dent of insurance shall be applied to any policy written which requires
18 such pharmaceutical co-payments. Such premium reductions shall be deter-
19 mined before the application of any experience modification premium
20 surcharge or premium discount.
21 § 7. Section 13 of the workers' compensation law is amended by adding
22 a new subdivision (j) to read as follows:
23 (j)(1) When a claimant submits a claim to the employer or its carrier
24 for payment of prescribed medicine or for reimbursement of the cost of
25 prescribed medicine which the employer is required to provide under this
26 section, the employer or carrier shall pay the amount prescribed by the
27 fee schedule adopted under section thirteen-o of this article, or if the
28 prescribed medicine is not included on the current fee schedule, the
29 usual and customary charges for such prescribed medicine, within forty-
30 five days of receipt of the claim, unless the liability of the employer
31 to pay for the prescribed medicine is not reasonably clear.
32 (2) Where the liability of the employer or carrier for the claim for
33 payment of prescribed medicine or reimbursement for payment of
34 prescribed medicine is not reasonably clear, the employer or carrier
35 shall pay any undisputed portion of the claim in accordance with this
36 section and notify the claimant in writing within forty-five days of
37 receipt of the claim:
38 (A) that the claim is not being paid and explaining the reasons for
39 nonpayment; or
40 (B) to request all additional information reasonably needed to deter-
41 mine the employer's or carrier's liability for the claim.
42 Upon receipt of the information requested in subparagraph (B) of this
43 paragraph, the employer or carrier shall comply with paragraph one of
44 this subdivision.
45 (3) Each claim for payment of prescribed medicine or reimbursement for
46 payment of prescribed medicine that is processed in violation of this
47 section shall constitute a separate violation. In addition to the other
48 penalties provided in this chapter, any employer or carrier that fails
49 to reimburse the claimant as required in this section shall be obligated
50 to pay to the claimant the amount prescribed on the fee schedule adopted
51 under section thirteen-o of this article, or if the prescribed medicine
52 is not included on the current fee schedule, the usual and customary
53 charges for the prescribed medicine plus simple interest at the rate set
54 forth in section five thousand four of the civil practice law and rules.
55 (4) Nothing in this subdivision shall prohibit employers or carriers
56 from agreeing to or arranging for direct billing by the pharmacy to the
A. 2989 6
1 employer or carrier for the cost of prescribed medicine, in order for
2 claimants to more promptly receive prescribed medicine for which employ-
3 ers and carriers are liable under this section.
4 § 8. Section 13-a of the workers' compensation law is amended by
5 adding a new subdivision 5-a to read as follows:
6 (5-a) The board may, at its discretion, prescribe regulations to pre-
7 authorize certain specialist consultations, surgical operations,
8 physiotherapeutic or occupational therapy procedures, x-ray examinations
9 or special diagnostic laboratory tests for specified types of injuries.
10 § 9. Subparagraph 4 of paragraph (h) of subdivision 8 of section 15
11 of the workers' compensation law, as amended by chapter 139 of the laws
12 of 2008, is amended to read as follows:
13 (4) As soon as practicable after May first in the year nineteen
14 hundred fifty-eight, and annually thereafter as soon as practicable
15 after January first in each succeeding year, the chair of the board
16 shall assess upon and collect from all self-insurers, except group self-
17 insurers, the state insurance fund, all insurance carriers and group
18 self-insurers, (A) a sum equal to one hundred [fifty] twenty-five per
19 centum of the total disbursements made from the special disability fund
20 during the preceding calendar year (not including any disbursements made
21 on account of anticipated liabilities or waiver agreements funded by
22 bond proceeds and related earnings), less the amount of the net assets
23 in such fund as of December thirty-first of said preceding calendar
24 year, and (B) a sum sufficient to cover debt service, and associated
25 costs (the "debt service assessment") to be paid during the calendar
26 year by the dormitory authority, as calculated in accordance with
27 subparagraph five of this paragraph. Such assessments shall be allocated
28 to (i) self-insurers except group self-insurers and the state insurance
29 fund based upon the proportion that the total compensation payments made
30 by all self-insurers except group self-insurers and the state insurance
31 fund bore to the total compensation payments made by all self-insurers
32 except group self-insurers, the state insurance fund, all insurance
33 carriers and group self-insurers, (ii) insurance carriers based upon the
34 proportion that the total compensation payments made by all insurance
35 carriers bore to the total compensation payments by all self-insurers
36 except group self-insurers, the state insurance fund and all insurance
37 carriers and group self-insurers during the fiscal year which ended
38 within said preceding calendar year, and (iii) group self-insurers based
39 upon the proportion that the total compensation payments made by all
40 group self-insurers bore to the total compensation payments made by all
41 self-insurers, the state insurance fund and all insurance carriers
42 during the fiscal year which ended within said preceding calendar year.
43 Insurance carriers and self-insurers shall be liable for all such
44 assessments regardless of the date on which they came into existence, or
45 whether they have made any claim for reimbursement from the special
46 disability fund. The portion of such sum allocated to self-insurers
47 except group self-insurers and the state insurance fund that shall be
48 collected from each self-insurer except a group self-insurer and the
49 state insurance fund shall be a sum equal to the proportion of the
50 amount which the total compensation payments of each such self-insurer
51 except a group self-insurer or the state insurance fund bore to the
52 total compensation payments made by all self-insurers except group self-
53 insurers and the state insurance fund during the fiscal year which ended
54 within said preceding calendar year. The portion of such sum allocated
55 to insurance carriers that shall be collected from each insurance carri-
56 er shall be a sum equal to that proportion of the amount which the total
A. 2989 7
1 premiums written by each such insurance carrier bore to the total writ-
2 ten premiums reported by all insurance carriers during the fiscal year
3 which ended within said preceding calendar year. The portion of such sum
4 allocated to group self-insurers that shall be collected from each group
5 self-insurer shall be a sum equal to that proportion of the amount which
6 the pure premium calculation for each such group self-insurer bore to
7 the total pure premium calculation for all group self-insurers for the
8 calendar year which ended within the preceding state fiscal year. The
9 payments from the debt service assessment, unless otherwise set forth in
10 the special disability fund financing agreement, are hereby pledged
11 therefor and shall be deemed the first monies received on account of
12 assessments in each year. For the purposes of this paragraph, "direct
13 premiums written" means gross premiums, including policy and membership
14 fees, less return premiums and premiums on policies not taken. For
15 purposes of this paragraph "pure premium calculation" means the New York
16 state annual payroll as of December thirty-first of the preceding year
17 by class code for each employer member of a group self-insurer multi-
18 plied by the applicable loss cost for each class code as determined by
19 the workers' compensation rating board in effect on December thirty-
20 first of the preceding year, and for a group or individual self-insurer
21 who has ceased to self-insure shall be based on payroll at the time the
22 group or individual self-insurer ceased to self-insure reduced by a
23 factor reflecting the reduction in the group or individual self-
24 insurer's self-insurance liabilities since ceasing to self-insure. An
25 employer who has ceased to be a self-insurer or a group that ceases to
26 be licensed as a group self-insurer shall continue to be liable for any
27 assessments into said fund on account of any compensation payments made
28 by him or her on his or her account during such fiscal year, and the
29 security fund, created under the provisions of section one hundred seven
30 of this chapter, shall, in the event of the insolvency of any insurance
31 company, be liable for any assessments that would have been made against
32 such company except for its insolvency. No assessment shall be payable
33 from the aggregate trust fund, created under the provisions of section
34 twenty-seven of this article, but such fund shall continue to be liable
35 for all compensation that shall be payable under any award or order of
36 the board, the commuted value of which has been paid into such fund.
37 Such assessments when collected shall be deposited with the commissioner
38 of taxation and finance for the benefit of such fund. Unless otherwise
39 provided, such assessments, shall not constitute an element of loss for
40 the purpose of establishing rates for compensation insurance but shall
41 for the purpose of collection be treated as separate costs by carriers.
42 All insurance carriers and the state insurance fund, shall collect such
43 assessments, from their policyholders through a surcharge based on
44 premiums in accordance with rules set forth by the New York workers'
45 compensation rating board, as approved by the superintendent of insur-
46 ance. Such surcharge shall be considered as part of premium for purposes
47 prescribed by law including, but not limited to, computing premium tax,
48 reporting to the superintendent of insurance pursuant to section nine-
49 ty-nine of this chapter and section three hundred seven of the insurance
50 law, determining the limitation of expenditures for the administration
51 of the state insurance fund pursuant to section eighty-eight of this
52 chapter and the cancellation by an insurance carrier, including the
53 state insurance fund, of a policy for non-payment of premium. The
54 provisions of this paragraph shall not apply with respect to policies
55 containing coverage pursuant to subsection (j) of section three thousand
56 four hundred twenty of the insurance law relating to every policy
A. 2989 8
1 providing comprehensive personal liability insurance on a one, two,
2 three or four family owner-occupied dwelling. The state insurance fund
3 shall, notify its insureds that such assessments, shall be, for the
4 purpose of recoupment, treated as separate costs, respectively for the
5 purpose of premiums billed on or after October first, nineteen hundred
6 ninety-four.
7 For the purposes of this paragraph, except as otherwise provided: the
8 term "insurance carrier" shall include only stock corporations, mutual
9 corporations and reciprocal insurers authorized to transact the business
10 of workers' compensation insurance in this state; the term "self-insur-
11 er" shall include any employer or group of employers permitted to pay
12 compensation directly under the provisions of subdivision three, three-a
13 or four of section fifty of this chapter;
14 § 10. Subdivisions 1, 2 and 3 of section 114 of the workers' compen-
15 sation law, as added by chapter 635 of the laws of 1996, are amended to
16 read as follows:
17 1. Any person who, knowingly and with intent to defraud presents,
18 causes to be presented, or prepares with knowledge or belief that it
19 will be presented to or by an insurer or purported insurer, or any agent
20 thereof, any written statement as part of, or in support of, an applica-
21 tion for the issuance of or the rating of an insurance policy for
22 compensation insurance, or a claim for payment or other benefit pursuant
23 to a compensation policy which he or she knows to: (i) contain a false
24 statement or representation concerning any fact material thereto; or
25 (ii) omits any fact material thereto, shall be guilty of workers'
26 compensation fraud in the fourth degree when he or she commits a fraudu-
27 lent workers' compensation act and thereby takes or obtains benefits,
28 and when the value of the workers' compensation benefits exceeds one
29 thousand dollars. Workers' compensation fraud in the fourth degree is a
30 class E felony.
31 A person is guilty of workers' compensation fraud in the third degree
32 when he or she commits a fraudulent workers' compensation act and there-
33 by takes or obtains benefits, and when the value of the workers' compen-
34 sation benefits exceeds three thousand dollars. Workers' compensation
35 fraud in the third degree is a class D felony.
36 A person is guilty of workers' compensation fraud in the second degree
37 when he or she commits a fraudulent workers' compensation act and there-
38 by takes or obtains benefits, and when the value of the workers' compen-
39 sation benefits exceeds fifty thousand dollars. Workers' compensation
40 fraud in the second degree is a class C felony.
41 A person is guilty of workers' compensation fraud in the first degree
42 when he or she commits a fraudulent workers' compensation act and there-
43 by takes or obtains benefits, and when the value of the workers' compen-
44 sation benefits exceeds one million dollars. Workers' compensation
45 fraud in the first degree is a class B felony.
46 Upon conviction, the court in addition to any other authorized
47 sentence, may order forfeiture of all rights to compensation or payments
48 of any benefit, and may also require restitution of any amount received
49 as a result of a violation of this subdivision.
50 2. An employer or carrier, or any employee, agent, or person acting on
51 behalf of an employer or carrier, who knowingly makes a false statement
52 or representation as to a material fact in the course of reporting,
53 investigation of, or adjusting a claim for any benefit or payment under
54 this chapter for the purpose of avoiding provision of such payment or
55 benefit shall be guilty of workers' compensation fraud in the fourth
56 degree when he or she commits a fraudulent workers' compensation act and
A. 2989 9
1 thereby takes or obtains benefits, and when the value of the workers'
2 compensation benefits exceeds one thousand dollars. Workers' compen-
3 sation fraud in the fourth degree is a class E felony.
4 A person is guilty of workers' compensation fraud in the third degree
5 when he or she commits a fraudulent workers' compensation act and there-
6 by takes or obtains benefits, and when the value of the workers' compen-
7 sation benefits exceeds three thousand dollars. Workers' compensation
8 fraud in the third degree is a class D felony.
9 A person is guilty of workers' compensation fraud in the second degree
10 when he or she commits a fraudulent workers' compensation act and there-
11 by takes or obtains benefits, and when the value of the workers' compen-
12 sation benefits exceeds fifty thousand dollars. Workers' compensation
13 fraud in the second degree is a class C felony.
14 A person is guilty of workers' compensation fraud in the first degree
15 when he or she commits a fraudulent workers' compensation act and there-
16 by takes or obtains benefits, and when the value of the workers' compen-
17 sation benefits exceeds one million dollars. Workers' compensation fraud
18 in the first degree is a class B felony.
19 3. A person who knowingly makes a false statement or representation as
20 to a material fact for the purpose of obtaining, maintaining or renewing
21 insurance under this chapter, whether for himself or herself or for any
22 other person or entity or for the purpose of evading the requirements of
23 section fifty of this chapter shall be guilty of workers' compensation
24 fraud in the fourth degree when he or she commits a fraudulent workers'
25 compensation act and thereby takes or obtains benefits, and when the
26 value of the workers' compensation benefits exceeds one thousand
27 dollars. Workers' compensation fraud in the fourth degree is a class E
28 felony.
29 A person is guilty of workers' compensation fraud in the third degree
30 when he or she commits a fraudulent workers' compensation act and there-
31 by takes or obtains benefits, and when the value of the workers' compen-
32 sation benefits exceeds three thousand dollars. Workers' compensation
33 fraud in the third degree is a class D felony.
34 A person is guilty of workers' compensation fraud in the second degree
35 when he or she commits a fraudulent workers' compensation act and there-
36 by takes or obtains benefits, and when the value of the workers' compen-
37 sation benefits exceeds fifty thousand dollars. Workers' compensation
38 fraud in the second degree is a class C felony.
39 A person is guilty of workers' compensation fraud in the first degree
40 when he or she commits a fraudulent workers' compensation act and there-
41 by takes or obtains benefits, and when the value of the workers' compen-
42 sation benefits exceeds one million dollars. Workers' compensation fraud
43 in the first degree is a class B felony.
44 In addition to any other remedy, the carrier providing insurance shall
45 be entitled to restitution of any amount obtained or withheld as a
46 result of a violation of this subdivision.
47 § 11. Section 240 of the labor law, the section heading and subdivi-
48 sion 2 as amended by chapter 683 of the laws of 1947 and subdivision 1
49 as amended by chapter 241 of the laws of 1981, is amended to read as
50 follows:
51 § 240. Scaffolding and other devices for use of employees. 1. All
52 contractors and owners and their agents, except owners of one and two-
53 family dwellings who contract for but do not direct or control the work,
54 in the erection, demolition, repairing, altering, painting, cleaning or
55 pointing of a building or structure shall furnish or erect, or cause to
56 be furnished or erected devices or equipment for the performance of such
A. 2989 10
1 labor, such as scaffolding, hoists, stays, ladders, slings, hangers,
2 blocks, pulleys, braces, irons, and ropes, [and other devices which]
3 where such devices or equipment are necessary to give reasonable and
4 adequate protection and safety to a person so employed. Where such
5 devices or equipment are furnished or erected, the devices or equipment
6 shall be so constructed, placed and operated as to [give proper] provide
7 reasonable and adequate protection and safety to a person so employed.
8 No liability pursuant to this subdivision for the failure to provide
9 protection to a person so employed shall be imposed on professional
10 engineers as provided for in article one hundred forty-five of the
11 education law, architects as provided for in article one hundred forty-
12 seven of such law or landscape architects as provided for in article one
13 hundred forty-eight of such law who do not direct or control the work
14 for activities other than planning and design. This exception shall not
15 diminish or extinguish any liability of professional engineers or archi-
16 tects or landscape architects arising under the common law or any other
17 provision of law.
18 2. [Scaffolding or staging more than twenty feet from the ground or
19 floor, swung or suspended from an overhead support or erected with
20 stationary supports, except scaffolding wholly within the interior of a
21 building and covering the entire floor space of any room therein, shall
22 have a safety rail of suitable material properly attached, bolted,
23 braced or otherwise secured, rising at least thirty-four inches above
24 the floor or main portions of such scaffolding or staging and extending
25 along the entire length of the outside and the ends thereof, with only
26 such openings as may be necessary for the delivery of materials. Such
27 scaffolding or staging shall be so fastened as to prevent it from sway-
28 ing from the building or structure.
29 3. All scaffolding shall be so constructed as to bear four times the
30 maximum weight required to be dependent therefrom or placed thereon when
31 in use] Compliance with applicable provisions of the federal Occupa-
32 tional Safety and Health Act and Part 23 of Title 12 of the New York
33 Codes, Rules and Regulations, as amended, shall be prima facie proof of
34 compliance with subdivision one of this section.
35 3. Nothing in this section shall be deemed to relieve a person injured
36 in the erection, demolition, repairing, altering, painting, cleaning or
37 pointing of a building or structure from the consequences of his or her
38 culpable conduct in accordance with section fourteen hundred eleven of
39 the civil practice law and rules.
40 § 12. Section 241 of the labor law, as added by chapter 1108 of the
41 laws of 1969, the opening paragraph as amended by chapter 670 of the
42 laws of 1980, subdivisions 6, 7 and 8 as amended and subdivision 10 as
43 added by chapter 520 of the laws of 1989, subdivision 9 as added by
44 chapter 241 of the laws of 1981, is amended to read as follows:
45 § 241. Construction, excavation and demolition work. 1. All contrac-
46 tors and owners and their agents, except owners of one and two-family
47 dwellings who contract for but do not direct or control the work, when
48 constructing or demolishing buildings or doing any excavating in
49 connection therewith, shall [comply with the following requirements:
50 1. If the floors are to be arched between the beams thereof, or if the
51 floors or filling in between the floors are of fireproof material, the
52 flooring or filling in shall be completed as the building progresses.
53 2. If the floors are not to be filled in between the beams with brick
54 or other fireproof material, the underflooring shall be laid on each
55 story as the building progresses.
A. 2989 11
1 3. If double floors are not to be used, the floor two stories imme-
2 diately below the story where the work is being performed shall be kept
3 planked over.
4 4. If the floor beams are of iron or steel, the entire tier of iron or
5 steel beams on which the structural iron or steel work is being erected
6 shall be thoroughly planked over, except spaces reasonably required for
7 proper construction of the iron or steel work, for raising or lowering
8 of materials or for stairways and elevator shafts designated by the
9 plans and specifications.
10 5. If elevators, elevating machines or hod-hoisting apparatus are used
11 in the course of construction, for the purpose of lifting materials, the
12 shafts or openings in each floor and at each landing level shall be
13 inclosed or fenced in on all sides by a barrier of suitable height,
14 except on two sides which may be used for taking off and putting on
15 materials, and those sides shall be guarded by an adjustable barrier not
16 less than three nor more than four feet from the floor and not less than
17 two feet from the edges of such shafts or openings.
18 6. All areas in which construction, excavation or demolition work is
19 being performed shall be so constructed, shored, equipped, guarded,
20 arranged, operated and conducted] construct, shore, equip, guard,
21 arrange, operate and conduct such work so as to provide reasonable and
22 adequate protection and safety to the persons employed therein or
23 lawfully frequenting such places. The commissioner may make rules to
24 carry into effect the provisions of this subdivision, and the owners and
25 contractors and their agents for such work, except owners of one and
26 two-family dwellings who contract for but do not direct or control the
27 work, shall comply therewith.
28 [7. The commissioner may make rules to provide for the protection of
29 workers in connection with the excavation work for the construction of
30 buildings, the work of constructing or demolishing buildings and struc-
31 tures, and the guarding of dangerous machinery used in connection there-
32 with, and the owners and contractors and their agents for such work,
33 except owners of one and two-family dwellings who contract for but do
34 not direct or control the work, shall comply therewith.
35 8.] 2. Compliance with applicable provisions of the federal Occupa-
36 tional Safety and Health Act and Part 23 of Title 12 of the New York
37 Codes, Rules and Regulations, as amended, shall be prima facie proof of
38 compliance with subdivision one of this section.
39 3. Nothing in this section shall be deemed to relieve a person injured
40 in the construction, demolition or excavation of a building or structure
41 from the consequences of his or her culpable conduct in accordance with
42 section fourteen hundred eleven of the civil practice law and rules.
43 4. The commissioner, as deemed necessary, shall promulgate rules
44 designed for the purpose of providing for the reasonable and adequate
45 protection and safety of persons passing by all areas, buildings or
46 structures in which construction, excavation or demolition work is being
47 performed, and the owners and contractors and their agents for such
48 work, except owners of one and two-family dwellings who contract for but
49 do not direct or control the work, shall comply therewith. The
50 provisions of this subdivision shall not apply to cities having a popu-
51 lation of one million or more.
52 [9.] 5. No liability for the non-compliance with any of the
53 provisions of this section shall be imposed on professional engineers as
54 provided for in article one hundred forty-five of the education law,
55 architects as provided for in article one hundred forty-seven of such
56 law or landscape architects as provided for in article one hundred
A. 2989 12
1 forty-eight of such law who do not direct or control the work for activ-
2 ities other than planning and design. This exception shall not diminish
3 or extinguish any liability of professional engineers, architects or
4 landscape architects arising under the common law or any other provision
5 of law.
6 [10.] 6. Prior to advertising for bids or contracting for or commenc-
7 ing work on any demolition work on buildings covered under this section
8 except agricultural buildings as defined in regulations promulgated by
9 the commissioner and except buildings the construction of which was
10 begun on or after January first, nineteen hundred seventy-four, all
11 owners and their agents, except owners of one and two-family dwellings
12 who contract for but do not direct or control the work, shall conduct or
13 cause to be conducted a survey to determine whether or not the building
14 to be demolished contains asbestos or asbestos material as defined in
15 section nine hundred one of this chapter. Such surveys shall be
16 conducted in conformance with rules and regulations promulgated by the
17 commissioner. Information derived from such survey shall be immediately
18 transmitted to the commissioner and to the local governmental entity
19 charged with issuing a permit for such demolition under applicable state
20 or local laws or, if no such permit is required, to the town or city
21 clerk. If such survey finds that a building to be demolished contains
22 asbestos or asbestos material as defined by section nine hundred one of
23 [the] this chapter, no bids shall be advertised nor contracts awarded
24 nor demolition work commenced by any owner or agent prior to completion
25 of an asbestos remediation contract performed by a licensed asbestos
26 contractor as defined by section nine hundred one of this chapter.
27 § 13. Section 241-a of the labor law is REPEALED.
28 § 14. Subdivision 8 of section 1602 of the civil practice law and
29 rules is REPEALED.
30 § 15. The opening paragraph of subdivision 3 of section 30 of the
31 labor law, as added by chapter 162 of the laws of 1993, is amended to
32 read as follows:
33 Except for variations concerning provisions, rules, codes, orders or
34 any other matter affecting asbestos projects or safety and health stand-
35 ards for public employees, including but not limited to projects covered
36 by article thirty and section twenty-seven-a and subdivision [ten] six
37 of section two hundred forty-one of this chapter;
38 § 16. Section 1603 of the civil practice law and rules, as amended by
39 chapter 635 of the laws of 1996, is amended to read as follows:
40 § 1603. Burdens of proof. In any action or claim for damages for
41 personal injury a party asserting that the limitations on liability set
42 forth in this article do not apply shall allege and prove by a prepon-
43 derance of the evidence that one or more of the exemptions set forth in
44 subdivision one of section sixteen hundred one [or section sixteen
45 hundred two] applies. A party asserting limited liability pursuant to
46 this article shall have the burden of proving by a preponderance of the
47 evidence its equitable share of the total liability.
48 § 17. This act shall take effect immediately; provided, however, that
49 the provisions of section ten of this act shall take effect on the thir-
50 tieth day after it shall have become a law.
