Provides that benefits for partially disabled workers who have actual earnings shall be based on such earnings; provides that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7961
SPONSOR: Heastie TITLE OF BILL: An act to amend the workers' compensation law, in
relation to establishing statutory guidelines for return to work by
partially disabled workers
PURPOSE OR GENERAL IDEA OF BILL:
This would define the circumstances under which a partially disabled
worker must seek employment as a condition for receipt of workers'
compensation benefits.
SUMMARY OF PROVISIONS:
This bill would amend Workers' Compensation Law Section 15(5-a) to limit
its scope to partial disability awards for claimants who are working at
a reduction in earnings. It would add a new Workers' Compensation Law
Section 15(5-b) to address compensation for partially disabled workers
who have no actual earnings. It would re-number existing Workers'
Compensation Law Section 15(5-b) as Workers' Compensation Law Section
15(5-c). It would also provide that benefits for partially disabled
workers who have actual earnings shall be based on such earnings. It
would further provide that benefits for partially disabled workers who
have no actual earnings shall be based on their wage earning capacity.
It would define the term "voluntary withdrawal from the labor market"
and establish it as a defense to a claim for partial disability bene-
fits. It would also establish a standard for labor market attachment to
be used in cases of voluntary withdrawal from the labor market.
JUSTIFICATION:
The Workers' Compensation Law provides that in cases of partial disabil-
ity, "the board may in the interest of justice fix such wage earning
capacity as shall be reasonable, but not in excess of seventy-five per
centum of
the injured worker's former full time actual earnings,
having due regard to the nature of his injury and his physical impair-
ment." (WCL 15(5-a)). The statute recognizes that a partially disabled
worker retains the ability to do some work, and provides compensation
only for the loss of wage earning capacity. No compensation is payable
for the wage earning capacity the worker retains. If a partially disa-
bled worker returns to work, benefits are awarded based on his or her
actual earnings. In the absence of a return to work, the Board must
estimate the loss of wage earning capacity and award benefits according-
ly (WCL s 15(5-a)). The law does not identify the circumstances in which
a partially disabled worker must seek employment as a condition of
receiving benefits.
The lack of a statutory standard has resulted in substantial litigation
before the Workers' Compensation Board and in the Courts. The issue was
considered by a sharply divided Court of Appeals in Matter of Zamora v.
New York Neurologic, 19 N.Y.3d 186, 970 N.E.2d 823, 947 N.Y.S.2d 788
(2012). The Court held that the Board could require non-working,
partially disabled claimants to show proof of labor market attachment as
a condition of receiving benefits, but established no standards.By
contrast, the Unemployment Insurance Law specifically states when work
must be sought as a condition of benefits and establishes a statutory
standard for adequate attachment to the labor market (Labor Law §§ 591,
593).
This bill would provide a statutory standard for labor market attachment
in workers' compensation claims. It defines a "voluntary withdrawal from
the labor market" as one in which (1) the worker's separation from
employment was unrelated to the compensable injury, or (2) the employer
demonstrates that the claimant's loss of wages is wholly unrelated to
such injury. It would authorize the Board to terminate compensation in
cases of voluntary withdrawal. from the labor market, and otherwise
require the Board to award benefits in accordance with the statute.
It would further permit the Board to award benefits in cases of volun-
tary withdrawal from the labor market where the claimant is subsequently
attached to the labor market through participation in: (1) one of New
York State's Department of Labor's reemployment services, (2) the
services offered by a One-Stop Career Center, (3) a retraining program,
(4) a rehabilitation program by VESID or other board approved rehabili-
tation program, (5) a job service commonly utilized to secure work with-
in a specific industry, or (6) enrollment and full time attendance in an
accredited educational institution to pursue employment within the work
restrictions.
Overall, this would preserve and codify the requirement of a causal
connection between the injury and the loss of earnings, encourage return
to work, expedite delivery of benefits, and reduce litigation.
PRIOR LEGISLATIVE HISTORY:
New bill.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
