Relates to providing access to the workers' compensation system, timely and meaningful wage replacement benefits, and medical treatment; and to improving efficiency of the system and cost savings.
STATE OF NEW YORK
________________________________________________________________________
5302
2019-2020 Regular Sessions
IN SENATE
April 24, 2019
___________
Introduced by Sen. RAMOS -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the workers' compensation law, in relation to providing
access to the workers' compensation system, timely and meaningful wage
replacement benefits, and medical treatment and to improve efficiency
of the system and cost savings; and to repeal certain provisions of
the workers' compensation law relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of section 11 of the workers' compen-
2 sation law, as amended by section 8 of part SS of chapter 59 of the laws
3 of 2017, is amended to read as follows:
4 The liability of an employer prescribed by the last preceding section
5 shall be exclusive and in place of any other liability whatsoever, to
6 such employee, his or her personal representatives, spouse, parents,
7 dependents, distributees, or any person otherwise entitled to recover
8 damages, contribution or indemnity, at common law or otherwise, on
9 account of such injury or death or liability arising therefrom, except
10 [that if an] in the following events: (i) the employer's violation of an
11 applicable statute or regulation involving workplace safety was a proxi-
12 mate cause of the employee's injury or death; (ii) the employee's bene-
13 fits have been terminated pursuant to paragraph w of subdivision three
14 of section fifteen of this article; or (iii) the employer fails to
15 secure the payment of compensation for his or her injured employees and
16 their dependents as provided in section fifty of this article. In such
17 events, an injured employee, or his or her legal representative in case
18 of death results from the injury, may, at his or her option, elect to
19 claim compensation under this chapter, or to maintain an action in the
20 courts for damages on account of such injury[; and in such an action it
21 shall not be necessary to plead or prove freedom from contributory
22 negligence nor may the defendant plead as a defense that the injury was
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10935-01-9
S. 5302 2
1 caused by the negligence of a fellow servant nor that the employee
2 assumed the risk of his or her employment, nor that the injury was due
3 to the contributory negligence of the employee.] where an action is
4 brought pursuant to the employee's benefits being terminated pursuant to
5 paragraph w of subdivision three of section fifteen of this article, any
6 applicable statute of limitations shall be tolled from the date of inju-
7 ry until the date the employee's benefits are terminated. The employer
8 shall be entitled to take credit for compensation paid under this chap-
9 ter against any damages awarded in an action brought in the courts for
10 damages. The liability under this chapter of The New York Jockey Injury
11 Compensation Fund, Inc. created under section two hundred twenty-one of
12 the racing, pari-mutuel wagering and breeding law shall be limited to
13 the provision of workers' compensation coverage to jockeys, apprentice
14 jockeys, exercise persons, and at the election of the New York Jockey
15 Injury Compensation Fund, Inc., with the approval of the New York state
16 gaming commission, employees of licensed trainers or owners licensed
17 under article two or four of the racing, pari-mutuel wagering and breed-
18 ing law and any statutory penalties resulting from the failure to
19 provide such coverage.
20 § 2. Section 12 of the workers' compensation law is REPEALED.
21 § 3. Subdivisions (a), (b) and (g) of section 13 of the workers'
22 compensation law, subdivision (a) as amended by chapter 6 of the laws of
23 2007, the opening paragraph of subdivision (a) as amended by chapter 23
24 of the laws of 2016, subdivision (b) as amended by chapter 113 of the
25 laws of 1946 and subdivision (g) as separately amended by chapters 834
26 and 922 of the laws of 1990, are amended to read as follows:
27 (a) The employer shall promptly provide for an injured employee such
28 medical, dental, surgical, optometric or other attendance or treatment,
29 nurse and hospital service, medicine, optometric services, crutches,
30 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
31 devices, functional assistive and adaptive devices and apparatus for
32 such period as the nature of the injury or the process of recovery may
33 require. The employer shall be liable for the payment of the expenses of
34 medical, dental, surgical, optometric or other attendance or treatment,
35 nurse and hospital service, medicine, optometric services, crutches,
36 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
37 devices, functional assistive and adaptive devices and apparatus, as
38 well as artificial members of the body or other devices or appliances
39 necessary in the first instance to replace, support or relieve a portion
40 or part of the body resulting from and necessitated by the injury of an
41 employee, for such period as the nature of the injury or the process of
42 recovery may require, and the employer shall also be liable for replace-
43 ments or repairs of such artificial members of the body or such other
44 devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
45 ic devices, functional assistive and adaptive devices or appliances
46 necessitated by ordinary wear or loss or damage to a prosthesis, with or
47 without bodily injury to the employee. Damage to or loss of a prosthetic
48 device shall be deemed an injury except that no disability benefits
49 shall be payable with respect to such injury under section fifteen of
50 this article. Such a replacement or repair of artificial members of the
51 body or such other devices, eye-glasses, false teeth, artificial eyes,
52 orthotics, prosthetic devices, functional assistive and adaptive devices
53 or appliances or the providing of medical treatment and care as defined
54 herein shall not constitute the payment of compensation under section
55 twenty-five-a of this article. All fees and other charges for such
56 treatment and services shall be limited to such charges as prevail in
S. 5302 3
1 the same community for similar treatment of injured persons of a like
2 standard of living.
3 The chair shall [prepare and] establish a committee to determine the
4 schedule for the state, or schedules limited to defined localities, of
5 charges and fees for such medical treatment and care, and including all
6 medical, dental, surgical, optometric or other attendance or treatment,
7 nurse and hospital service, medicine, optometric services, crutches,
8 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
9 devices, functional assistive and adaptive devices and apparatus [in
10 accordance with and to be subject to change pursuant to rules promulgat-
11 ed by the chair. Before preparing such schedule for the state or sched-
12 ules for limited localities the chair shall request]. The members of the
13 committee shall be the president of the medical society of the state of
14 New York [and], the president of the New York state osteopathic medical
15 society [to submit to him or her a report on], the president of the New
16 York state society of orthopedists, the president of the New York state
17 AFL/CIO, the president of the business council of the state of New York,
18 an individual designated by the senate majority leader, an individual
19 designated by the speaker of the assembly, and the chair of the board.
20 The committee shall meet annually in order to determine the amount of
21 remuneration deemed [by such society] to be fair and adequate for the
22 types of medical care to be rendered under this chapter, but consider-
23 ation shall be given to the view of other interested parties. In the
24 case of physical therapy fees schedules the chair shall request the
25 president of a recognized professional association representing physical
26 therapists in the state of New York to submit to [him or her] the
27 committee a report on the amount of remuneration deemed by such associ-
28 ation to be fair and reasonable for the type of physical therapy
29 services rendered under this chapter, but consideration shall be given
30 to the views of other interested parties. The chair shall also prepare
31 and establish a schedule for the state, or schedules limited to defined
32 localities, of charges and fees for outpatient hospital services not
33 covered under the medical fee schedule previously referred to in this
34 subdivision, to be determined in accordance with and to be subject to
35 change pursuant to rules promulgated by the chair. Before preparing such
36 schedule for the state or schedules for limited localities the chair
37 shall request the president of the hospital association of New York
38 state to submit to [him or her] the committee a report on the amount of
39 remuneration deemed by such association to be fair and adequate for the
40 types of hospital outpatient care to be rendered under this chapter, but
41 consideration shall be given to the views of other interested parties.
42 In the case of occupational therapy fees schedules the chair shall
43 request the president of a recognized professional association repres-
44 enting occupational therapists in the state of New York to submit to
45 [him or her] the committee a report on the amount of remuneration deemed
46 by such association to be fair and reasonable for the type of occupa-
47 tional therapy services rendered under this chapter, but consideration
48 shall be given to the views of other interested parties. The amounts
49 payable by the employer for such treatment and services shall be the
50 fees and charges established by such schedule. Nothing in this sched-
51 ule, however, shall prevent voluntary payment of amounts higher or lower
52 than the fees and charges fixed therein, but no physician rendering
53 medical treatment or care, and no physical or occupational therapist
54 rendering their respective physical or occupational therapy services may
55 receive payment in any higher amount unless such increased amount has
56 been authorized by the employer, or by decision as provided in section
S. 5302 4
1 thirteen-g of this article. Nothing in this section shall be construed
2 as preventing the employment of a duly authorized physician on a salary
3 basis by an authorized compensation medical bureau or laboratory.
4 (b) In the case of persons, injured or residing and receiving medical
5 treatment outside of this state, but entitled to compensation or bene-
6 fits under this chapter, the provisions as to selection of authorized
7 physicians and the rules and regulations of the board governing medical
8 treatment within the state shall be inapplicable. In such cases the
9 employer shall promptly provide all necessary medical treatment and care
10 but if the employer fail to provide the same, after request by the
11 injured employee such injured employee may do so at the expense of the
12 employer. The employee shall not be entitled to recover any amount
13 expended by him for such treatment or services unless he shall have
14 requested the employer to furnish the same and the employer shall have
15 refused or neglected to do so, or unless the nature of the injury
16 required such treatment and services and the employer or his superinten-
17 dent or foreman having knowledge of such injury shall have neglected to
18 provide the same; nor shall any claim for medical or surgical treatment
19 be valid and enforceable, as against such employer, unless within twenty
20 days following the first treatment, the physician giving such treatment,
21 furnish to the employer and the chairman a report of such injury and
22 treatment, on a form prescribed by the chairman. The board may, however,
23 by the unanimous vote of a panel of not less than three members quali-
24 fied to act, excuse the failure to give such notice within twenty days
25 when it finds it to be in the interest of justice to do so, and may,
26 subject to the limitations contained in section twenty-eight of this
27 [chapter] article, make an award for the reasonable value of such
28 medical or surgical treatment. All fees and other charges for such
29 treatment and services, whether furnished by the employer or otherwise,
30 shall be subject to regulation by the board as provided in section twen-
31 ty-four of this [chapter] article, and shall be limited to such charges
32 as prevail in the same community for similar treatment of injured
33 persons of a like standard of living.
34 (g) Every hospital operating in the state shall, within twenty days of
35 receiving a written request by a claimant, claimant's representative,
36 employer, carrier or special fund created under this chapter, provide to
37 such claimant, claimant's representative, employer, carrier or special
38 fund for use in board proceedings the medical records of an employee who
39 has received treatment in such hospital and who is claiming benefits
40 under this chapter. Each hospital shall designate at least one officer
41 or employee who shall be responsible for provision of such records on
42 written request, and to whom the board, claimant, claimant's, employer,
43 carrier representative or special fund may address informal inquiries
44 regarding provision of such records.
45 No hospital shall be required to produce the records of any claimant
46 pursuant to this section without receiving the cost of copying such
47 records as determined by the chair. Such cost shall be paid by the
48 requesting party except that the employer or carrier or special fund
49 shall reimburse a claimant or claimant's representative the cost of an
50 initial set of such records where the request is made by a claimant or
51 claimant's representative. Should the hospital not be able to provide
52 the requested records within twenty days, they shall notify in writing
53 the party requesting the records of the reason why the records were not
54 provided and the date on which they will be provided. Such date shall be
55 within a reasonable period of time, but shall not exceed thirty days.
56 Failure to either provide the records within twenty days or to provide a
S. 5302 5
1 reason why the records have not been provided shall subject the hospital
2 to a fine of two hundred dollars which shall be imposed by the chair
3 payable to the board upon finding that this subdivision has not been
4 complied with. No hospital shall be required to produce the records of
5 any claimant without receiving its customary fees or charges for reprod-
6 uction of such records. The employer or carrier shall file with the
7 board any hospital or medical records concerning an injured worker that
8 come into its possession and have not been previously filed with the
9 board.
10 § 4. Paragraphs (d), (e) and the closing paragraph of subdivision 4
11 and subdivision 5 of section 13-a of the workers' compensation law,
12 paragraphs (d), (e) and the closing paragraph of subdivision 4 as
13 amended by chapter 473 of the laws of 2000 and subdivision 5 as amended
14 by chapter 6 of the laws of 2007 and as further amended by section 104
15 of part A of chapter 62 of the laws of 2011, are amended to read as
16 follows:
17 (d) The independent medical examiner on behalf of the employer or
18 carrier shall provide such reports and shall submit to investigation as
19 required by the chair.
20 (e) In order to qualify as admissible medical evidence, for purposes
21 of adjudicating any claim under this chapter, any report submitted to
22 the board by an independent medical examiner on behalf of the employer
23 or carrier licensed by the state of New York shall include the follow-
24 ing:
25 (i) a signed statement certifying that the report is a full and truth-
26 ful representation of the independent medical examiner's professional
27 opinion with respect to the claimant's condition[:];
28 (ii) such examiner's board issued authorization number;
29 (iii) the name of the individual or entity requesting the examination;
30 (iv) if applicable, the registration number as required by section
31 thirteen-n of this article; and
32 (v) such other information as the chair may require by regulation.
33 Any report by an independent medical examiner on behalf of the employ-
34 er or carrier who is not authorized, and who performs an independent
35 medical examination in accordance with paragraph (c) of this subdivi-
36 sion, which is to be used as medical evidence under this chapter, shall
37 include in the report such information as the chair may require by regu-
38 lation.
39 (5) No claim for specialist consultations, surgical operations,
40 physiotherapeutic or occupational therapy procedures, x-ray examinations
41 or special diagnostic laboratory tests costing more than one thousand
42 dollars shall be valid and enforceable, as against such employer, unless
43 such special services shall have been authorized by the employer or by
44 the board, or unless such authorization has been unreasonably withheld,
45 or withheld for a period of more than thirty calendar days from receipt
46 of a request for authorization, or unless such special services are
47 required in an emergency, provided, however, that the basis for a denial
48 of such authorization by the employer must be based on a conflicting
49 second opinion rendered by a physician authorized by the board. The
50 board, with the approval of the superintendent of financial services,
51 shall issue and maintain a list of pre-authorized procedures under this
52 section, which shall not be used to deny medical treatment that varies
53 from such list or which occurs outside of the state.
54 § 5. Subdivision 1 of section 13-f of the workers' compensation law,
55 as amended by chapter 353 of the laws of 1990, is amended to read as
56 follows:
S. 5302 6
1 (1) Fees for medical services shall be payable only to a physician or
2 other qualified person permitted by sections thirteen-b, thirteen-k,
3 thirteen-l and thirteen-m of this [chapter] article or other authorized
4 provider of health care under the education law or the public health law
5 permitted to render medical care or treatment under this chapter, or to
6 the agent, executor or administrator of the estate of such physician or
7 such other qualified person. Except as provided in section thirteen-d
8 of this [chapter] article, no provider of health care rendering medical
9 care or treatment to a compensation claimant, shall collect or receive a
10 fee from such claimant within this state, but shall have recourse for
11 payment of services rendered only to the employer under the provisions
12 of this chapter. Where an issue arises regarding a medical fee, a
13 provider of health care shall have the rights provided by sections twen-
14 ty and twenty-three of this article. Any compensation claimant who pays
15 a fee to a provider of health care for medical care or treatment under
16 this chapter shall have a cause of action against such provider of
17 health care for the recovery of the money paid, which cause of action
18 may be assigned to the chair in trust for the assigning claimant. All
19 such assignments shall run to the chair. The chair may sue the physi-
20 cian, or other authorized provider of health care as herein described on
21 the assigned cause of action with the benefits and subject to the
22 provisions of existing law applying to such actions by the claimant
23 himself or herself. Hospitals shall not be entitled to receive the
24 remuneration paid to physicians on their staff for medical and surgical
25 services.
26 § 6. Subdivisions 1, 2, paragraphs s, t, v and w of subdivision 3,
27 subdivisions 4, 4-a, 5 and paragraph (a) of subdivision 6 of section 15
28 of the workers' compensation law, subdivision 1 as amended by chapter
29 675 of the laws of 1977, subdivision 2 as amended by chapter 161 of the
30 laws of 1966, paragraph s of subdivision 3 as amended by chapter 204 of
31 the laws of 1988, paragraph t of subdivision 3 as amended by chapter 774
32 of the laws of 1945, subparagraphs 1 and 2 of paragraph t of subdivision
33 3 as amended by chapter 924 of the laws of 1990, paragraph v of subdivi-
34 sion 3 as amended by chapter 364 of the laws of 1989, paragraph w of
35 subdivision 3 as amended by section 1 of subpart A of part NNN of chap-
36 ter 59 of the laws of 2017, subdivision 4 as amended by chapter 168 of
37 the laws of 1979, subdivision 4-a as amended by chapter 712 of the laws
38 of 1941, subdivision 5 as amended by chapter 161 of the laws of 1966,
39 paragraph (a) of subdivision 6 as amended by section 7-a of part GG of
40 chapter 57 of the laws of 2013, are amended and a new subdivision 10 is
41 added to read as follows:
42 1. Permanent total disability. In case of total disability adjudged to
43 be permanent sixty-six and two-thirds per centum of the average weekly
44 wages shall be paid to the employee during the continuance of such total
45 disability. Loss of both hands, or both arms, or both feet, or both
46 legs, or both eyes, or of any two thereof, or inability to perform the
47 full range of sedentary work, or approval for federal social security
48 disability benefits as a result of the compensable accident or occupa-
49 tional disease shall, in the absence of conclusive proof to the contra-
50 ry, constitute permanent total disability. In all other cases permanent
51 total disability shall be determined in accordance with the facts.
52 Notwithstanding any other provision of this chapter, an injured employee
53 disabled due to the loss or total loss of use of both eyes, or both
54 hands, or both arms, or both feet, or both legs, or of any two thereof
55 shall not suffer any diminution of his compensation by engaging in busi-
56 ness or employment provided his earnings or wages, when combined with
S. 5302 7
1 his compensation, shall not be in excess of the wage base on which the
2 maximum weekly compensation benefit is computed under the law in effect
3 at time of such earning; further provided, that if the combination
4 exceeds such wage base, the compensation shall be diminished to an
5 amount which, together with his earnings or wages, shall equal the wage
6 base; and further provided that the application of this subdivision
7 shall not result in reduction of compensation which an injured employee
8 who is disabled due to the loss or total loss of use of both eyes, or
9 both hands, or both arms, or both feet, or both legs or of any two ther-
10 eof, would otherwise be entitled to under any other provision of this
11 section.
12 2. Temporary total disability. In case of temporary total disability,
13 which shall consist of the injured employee's inability to perform his
14 or her at-injury employment or any modified employment offered by the
15 employer that is consistent with the employee's disability, sixty-six
16 and two-thirds per centum of the average weekly wages shall be paid to
17 the employee during the continuance thereof, except as otherwise
18 provided in this chapter.
19 s. Partial loss or partial loss of use. Compensation for permanent
20 partial loss or loss of use of a member [may] shall be for proportionate
21 loss or loss of use of the member. Compensation for permanent partial
22 loss or loss of use of an eye shall be awarded on the basis of uncor-
23 rected loss of vision or corrected loss of vision resulting from an
24 injury whichever is the greater.
25 t. Disfigurement. 1. The board may award proper and equitable compen-
26 sation for serious facial or head disfigurement, not to exceed [twenty]
27 thirty thousand dollars, including a disfigurement continuous in length
28 which is partially in the facial area and also extends into the neck
29 region as described in [paragraph] subparagraph two [hereof] of this
30 paragraph.
31 2. The board, if in its opinion the earning capacity of an employee
32 has been or may in the future be impaired, may award compensation for
33 any serious disfigurement in the region above the sterno clavicular
34 articulations anterior to and including the region of the sterno cleido
35 mastoid muscles on either side, but no award under subdivisions one and
36 two of this section shall, in the aggregate, exceed [twenty] thirty
37 thousand dollars.
38 3. Notwithstanding any other provision hereof, two or more serious
39 disfigurements, not continuous in length, resulting from the same inju-
40 ry, if partially in the facial area and partially in the neck region as
41 described in [paragraph] subparagraph two [hereof] of this paragraph,
42 shall be deemed to be a facial disfigurement.
43 v. Additional compensation for impairment of wage earning capacity in
44 certain permanent partial disabilities. Notwithstanding any other
45 provision of this subdivision, additional compensation shall be payable
46 for impairment of wage earning capacity for any period after the termi-
47 nation of an award under paragraphs a, b, c, or d, of this subdivision
48 for the loss or loss of use of [fifty] forty per centum or more of a
49 member, provided such impairment of earning capacity shall be due solely
50 thereto. Such additional compensation shall be determined in accordance
51 with paragraph w of this subdivision, but shall not cease until the date
52 the disabled employee receives or is entitled to receive old-age insur-
53 ance benefits under the social security act. The additional compensation
54 shall be reduced by fifty per centum of any amount of disability bene-
55 fits which the disabled employee is receiving or entitled to receive for
56 the same period under the social security act, [and shall cease on the
S. 5302 8
1 date the disabled employee receives or is entitled to receive old-age
2 insurance benefits under the social security act]. As soon as practica-
3 ble after the injury, the worker shall be required to participate in a
4 board approved rehabilitation program; or shall have demonstrated coop-
5 eration with efforts to institute such a board approved program and
6 shall have been determined by the board not to be a feasible candidate
7 for rehabilitation; such rehabilitation shall constitute treatment and
8 care as provided in this chapter.
9 w. Other cases. In all other cases of permanent partial disability,
10 the compensation shall be sixty-six and two-thirds percent of the
11 difference between the injured employee's average weekly wages and his
12 or her wage-earning capacity thereafter in the same employment or other-
13 wise. Nothing in this paragraph shall preclude the payment of compen-
14 sation under paragraphs a through t of this subdivision, however, the
15 employer or carrier shall be entitled to take credit for any payment of
16 compensation under such paragraphs a through t against a payment of
17 compensation under this paragraph. Compensation under this paragraph
18 shall be payable during the continuance of such permanent partial disa-
19 bility, without the necessity for the claimant who is entitled to bene-
20 fits at the time of classification to demonstrate ongoing attachment to
21 the labor market, but subject to reconsideration of the degree of such
22 impairment by the board on its own motion or upon application of any
23 party in interest however, all compensation payable under this paragraph
24 shall not exceed (i) five hundred twenty-five weeks in cases in which
25 the loss of wage-earning capacity is greater than ninety-five percent;
26 (ii) five hundred weeks in cases in which the loss of wage-earning
27 capacity is greater than ninety percent but not more than ninety-five
28 percent; (iii) four hundred seventy-five weeks in cases in which the
29 loss of wage-earning capacity is greater than eighty-five percent but
30 not more than ninety percent; (iv) four hundred fifty weeks in cases in
31 which the loss of wage-earning capacity is greater than eighty percent
32 but not more than eighty-five percent; (v) four hundred twenty-five
33 weeks in cases in which the loss of wage-earning capacity is greater
34 than seventy-five percent but not more than eighty percent; (vi) four
35 hundred weeks in cases in which the loss of wage-earning capacity is
36 greater than seventy percent but not more than seventy-five percent;
37 (vii) three hundred seventy-five weeks in cases in which the loss of
38 wage-earning capacity is greater than sixty percent but not more than
39 seventy percent; (viii) three hundred fifty weeks in cases in which the
40 loss of wage-earning capacity is greater than fifty percent but not more
41 than sixty percent; (ix) three hundred weeks in cases in which the loss
42 of wage-earning capacity is greater than forty percent but not more than
43 fifty percent; (x) two hundred seventy-five weeks in cases in which the
44 loss of wage-earning capacity is greater than thirty percent but not
45 more than forty percent; (xi) two hundred fifty weeks in cases in which
46 the loss of wage-earning capacity is greater than fifteen percent but
47 not more than thirty percent; and (xii) two hundred twenty-five weeks in
48 cases in which the loss of wage-earning capacity is fifteen percent or
49 less. For a claimant with a date of accident or disablement after the
50 effective date of [the] section one of subpart A of part NNN of chapter
51 59 of the laws of two thousand seventeen [that amended this subdivi-
52 sion], where the carrier or employer has provided compensation pursuant
53 to subdivision five of this section beyond one hundred thirty weeks from
54 the date of accident or disablement, all subsequent weeks in which
55 compensation was paid shall be considered to be benefit weeks for
56 purposes of this section, with the carrier or employer receiving credit
S. 5302 9
1 for all such subsequent weeks against the amount of maximum benefit
2 weeks when permanent partial disability under this section is deter-
3 mined. In the event of payment for intermittent temporary partial disa-
4 bility paid after one hundred thirty weeks from the date of accident or
5 disablement, such time shall be reduced to a number of weeks, for which
6 the carrier will receive a credit against the maximum benefit weeks. For
7 a claimant with a date of accident or disablement after the effective
8 date of [the] section one of subpart A of part NNN of chapter 59 of the
9 laws of two thousand seventeen [that amended this subdivision], when
10 permanency is at issue, and a claimant has submitted medical evidence
11 that he or she is not at maximum medical improvement, and the carrier
12 has produced or has had a reasonable opportunity to produce an independ-
13 ent medical examination concerning maximum medical improvement, and the
14 board has determined that the claimant is not yet at maximum medical
15 improvement, the carrier shall not receive a credit for benefit weeks
16 prior to a finding that the claimant has reached maximum medical
17 improvement, at which time the carrier shall receive credit for any
18 weeks of temporary disability paid to claimant after such finding
19 against the maximum benefit weeks awarded under this subdivision. For
20 those claimants classified as permanently partially disabled who no
21 longer receive indemnity payments because they have surpassed their
22 number of maximum benefit weeks, the following provisions will apply:
23 (1) There will be a presumption that medical services shall continue
24 notwithstanding the completion of the time period for compensation set
25 forth in this section and the burden of going forward and the burden of
26 proof will lie with the carrier, self-insured employer or state insur-
27 ance fund in any application before the board to discontinue or suspend
28 such services. Medical services will continue during the pendency of any
29 such application and any appeals thereto.
30 (2) The board is directed to promulgate regulations that establish an
31 independent review and appeal by an outside agent or entity of the
32 board's choosing of any administrative law judge's determination to
33 discontinue or suspend medical services before a final determination of
34 the board.
35 4. Effect of award. An award made to a claimant under any paragraph of
36 subdivision three of this section shall in case of death arising from
37 causes other than the injury be payable to and for the benefit of the
38 persons following:
39 a. If there be a surviving spouse and no child of the deceased under
40 the age of eighteen years, to such spouse.
41 b. If there be a surviving spouse and surviving child or children of
42 the deceased under the age of eighteen years, one-half shall be payable
43 to the surviving spouse and the other half to the surviving child or
44 children.
45 The board may in its discretion require the appointment of a guardian
46 for the purpose of receiving the compensation of the minor child. In the
47 absence of such a requirement by the board the appointment for such a
48 purpose shall not be necessary.
49 c. If there be a surviving child or children of the deceased under the
50 age of eighteen years, but no surviving spouse then to such child or
51 children.
52 d. If there be no surviving spouse and no surviving child or children
53 of the deceased under the age of eighteen years, then to such dependent
54 or dependents as defined in section sixteen of this [chapter] article,
55 as directed by the board; and if there be no such dependents, then to
56 the estate of such deceased [in an amount not exceeding reasonable
S. 5302 10
1 funeral expenses] as provided in subdivision one of section sixteen of
2 this [chapter] article, or, if there be no estate, to the person or
3 persons paying the funeral expenses of such deceased in an amount not
4 exceeding reasonable funeral expenses as provided in subdivision one of
5 section sixteen of this [chapter] article.
6 An award for disability may be made after the death of the injured
7 employee.
8 4-a. Protracted temporary total disability in connection with perma-
9 nent partial disability. In case of temporary total disability and
10 permanent partial disability both resulting from the same injury, if the
11 temporary total disability continues for a longer period than the number
12 of weeks set forth in the following schedule, the period of temporary
13 total disability in excess of such number of weeks shall be added to the
14 compensation period provided in subdivision three of this section: Arm,
15 [thirty-two] sixteen weeks; leg, [forty] twenty weeks; hand, [thirty-
16 two] sixteen weeks; foot, [thirty-two] sixteen weeks; ear, [twenty-five]
17 twelve weeks; eye, [twenty] ten weeks; thumb, [twenty-four] twelve
18 weeks; first finger, [eighteen] nine weeks; great toe, [twelve] six
19 weeks; second finger, [twelve] six weeks; third finger, [eight] four
20 weeks; fourth finger, [eight] four weeks; toe other than great toe,
21 [eight] four weeks.
22 In any case resulting in loss or partial loss of use of arm, leg,
23 hand, foot, ear, eye, thumb, finger or toe, where the temporary total
24 disability does not extend beyond the periods above mentioned for such
25 injury, compensation shall be limited to the schedule contained in
26 subdivision three.
27 5. Temporary partial disability. In case of temporary partial disabil-
28 ity resulting in decrease of earning capacity, the compensation shall be
29 two-thirds of the difference between the injured employee's average
30 weekly wages before the accident and his wage earning capacity after the
31 accident in the same or other employment, which difference shall be the
32 injured employee's loss of wage-earning capacity. Compensation under
33 this subdivision shall be payable during the continuance of such tempo-
34 rary partial disability, without the necessity for the claimant to
35 demonstrate ongoing attachment to the labor market, unless the board
36 finds that the injured employee's loss of wages is wholly unrelated to
37 his or her partial disability.
38 (a) Compensation for permanent or temporary total disability due to an
39 accident or disablement resulting from an occupational disease that
40 occurs, (1) on or after January first, nineteen hundred seventy-eight,
41 shall not exceed one hundred twenty-five dollars per week, that occurs
42 (2) on or after July first, nineteen hundred seventy-eight, shall not
43 exceed one hundred eighty dollars per week, that occurs (3) on or after
44 January first, nineteen hundred seventy-nine, shall not exceed two
45 hundred fifteen dollars per week, that occurs (4) on or after July
46 first, nineteen hundred eighty-three, shall not exceed two hundred
47 fifty-five dollars per week, that occurs (5) on or after July first,
48 nineteen hundred eighty-four, shall not exceed two hundred seventy-five
49 dollars per week, that occurs (6) on or after July first, nineteen
50 hundred eighty-five, shall not exceed three hundred dollars per week,
51 that occurs (7) on or after July first, nineteen hundred ninety, shall
52 not exceed three hundred forty dollars per week; and in the case of
53 temporary total disability shall not be less than thirty dollars per
54 week and in the case of permanent total disability shall not be less
55 than twenty dollars per week except that if the employee's wages at the
56 time of injury are less than thirty or twenty dollars per week respec-
S. 5302 11
1 tively, he or she shall receive his or her full weekly wages. Compen-
2 sation for permanent or temporary partial disability due to an accident
3 or disablement resulting from an occupational disease that occurs (1) on
4 or after [January first] March thirteenth, nineteen hundred seventy-
5 eight, shall not exceed one hundred five dollars per week, that occurs
6 (2) on or after July first, nineteen hundred eighty-three, shall not
7 exceed one hundred twenty-five dollars per week, that occurs (3) on or
8 after July first, nineteen hundred eighty-four, shall not exceed one
9 hundred thirty-five dollars per week, that occurs (4) on or after July
10 first, nineteen hundred eighty-five, shall not exceed one hundred fifty
11 dollars per week, that occurs (5) on or after July first, nineteen
12 hundred ninety, shall not exceed two hundred eighty dollars per week;
13 nor be less than twenty dollars per week; except that if the employee's
14 wages at the time of injury are less than twenty dollars per week, he or
15 she shall receive his or her full weekly wages. In no event shall
16 compensation when combined with decreased earnings or earning capacity
17 exceed the amount of wages which the employee was receiving at the time
18 the injury occurred. Compensation for permanent or temporary partial
19 disability, or for permanent or temporary total disability due to an
20 accident or disablement resulting from an occupational disease that
21 occurs (1) on or after July first, nineteen hundred ninety-one and prior
22 to July first, nineteen hundred ninety-two, shall not exceed three
23 hundred fifty dollars per week; (2) on or after July first, nineteen
24 hundred ninety-two, shall not exceed four hundred dollars per week; nor
25 be less than forty dollars per week except that if the employee's wages
26 at the time of injury are less than forty dollars per week, the employee
27 shall receive his or her full wages. Compensation for permanent or
28 temporary partial disability, or for permanent or temporary total disa-
29 bility due to an accident or disablement resulting from an occupational
30 disease that occurs (1) on or after July first, two thousand seven shall
31 not exceed five hundred dollars per week, (2) on or after July first,
32 two thousand eight shall not exceed five hundred fifty dollars per week,
33 (3) on or after July first, two thousand nine shall not exceed six
34 hundred dollars per week, and (4) on or after July first, two thousand
35 ten, and on or after July first of each succeeding year, shall not
36 exceed two-thirds of the New York state average weekly wage for the year
37 in which it is reported. Compensation for permanent or temporary partial
38 disability, or for permanent or temporary total disability due to an
39 accident or disablement resulting from an occupational disease that
40 occurs on or after July first, two thousand seven shall not be less than
41 one hundred dollars per week except that if the employee's wages at the
42 time of injury are less than one hundred dollars per week, the employee
43 shall receive his or her full wages. Compensation for permanent or
44 temporary partial disability, or for permanent or temporary total disa-
45 bility due to an accident or disablement resulting from an occupational
46 disease that occurs on or after May first, two thousand thirteen shall
47 not be less than one hundred fifty dollars per week except that if the
48 employee's wages at the time of injury are less than one hundred fifty
49 dollars per week, the employee shall receive his or her full wages.
50 Compensation for permanent or temporary partial disability, or for
51 permanent or temporary total disability due to an accident or disable-
52 ment resulting from an occupational disease that occurs on or after July
53 first of each year commencing in two thousand eighteen shall not be less
54 than one-sixth of the New York state average weekly wage for the year in
55 which it is reported. In no event shall compensation when combined with
56 decreased earnings [or earning capacity] exceed the amount of wages the
S. 5302 12
1 employee was receiving at the time the injury occurred. Compensation for
2 permanent or temporary partial disability, or for permanent or temporary
3 total disability due to an accident or disablement resulting from an
4 occupational disease or injury that occurred as a result of World Trade
5 Center rescue activity by an employee of a private voluntary hospital,
6 who passed a physical examination upon employment as a rescue worker
7 that failed to reveal evidence of a condition that was the proximate
8 cause of disablement or occupational disease or injury, shall not exceed
9 three-quarters of a claimant's wage on September eleventh, two thousand
10 one. In no event shall compensation when combined with decreased earn-
11 ings or earning capacity exceed the amount of wages the employee was
12 receiving on September eleventh, two thousand one.
13 10. Cost-of-living adjustments of disability benefits in certain
14 cases. (a) Notwithstanding any other provision of law, in addition to
15 any other amount received pursuant to this article as disability bene-
16 fits, an employee with a permanent total disability or the beneficiary
17 dependent of such employee shall be entitled to an additional allowance,
18 to be known as a cost-of-living adjustment allowance, payable annually.
19 (b) The cost-of-living adjustment allowance shall be computed by
20 applying an adjustment for regional costs of living and shall be based
21 on fifty percent of the annual increase in the consumer price index as
22 promulgated by the United States department of labor.
23 § 7. Subdivisions 1-a, 1-b, 1-c, 1-d, 2, 2-a, 2-b, and 4-d of section
24 16 of the workers' compensation law, subdivisions 1-a, 1-b, 1-c and 2 as
25 amended by chapter 168 of the laws of 1979, subdivisions 1-d, 2-b and
26 4-d as added by chapter 689 of the laws of 2007 and subdivision 2-a as
27 amended by chapter 174 of the laws of 1981, are amended and two new
28 subdivisions 1-e and 2-c are added to read as follows:
29 1-a. For the purpose of this section, (1) the term dependent blind or
30 physically disabled as used herein in relation to dependent children
31 shall be deemed to mean totally blind or physically disabled children
32 whose disablement is total and permanent, (2) the term surviving spouse
33 shall be deemed to mean the legal spouse but shall not include a spouse
34 who has abandoned the deceased, [and] (3) the term abandoned shall be
35 deemed to mean such an abandonment as would be sufficient under section
36 two hundred of the domestic relations law to sustain a judgment of sepa-
37 ration on that ground, and (4) the terms "widowhood" or "widowerhood"
38 shall apply to a surviving spouse without regard to remarriage.
39 1-b. If there be a surviving spouse and no child of the deceased under
40 the age of eighteen years and no child of any age dependent blind or
41 physically disabled, and the death occurs on or after July first, nine-
42 teen hundred forty-eight, and prior to January first, nineteen hundred
43 seventy-eight, to such spouse forty per centum of the average wages of
44 the deceased during widowhood or widowerhood [with two years' compen-
45 sation in one sum, upon remarriage]; and where the death occurred prior
46 to July first, nineteen hundred forty-eight, to such wife (or dependent
47 husband) thirty per centum of such wages during widowhood (or dependent
48 widowerhood) [with two years' compensation in one sum, upon remarriage].
49 1-c. If there be a surviving spouse and no child of the deceased under
50 the age of eighteen years or under the age of twenty-three years if
51 enrolled and attending as a full time student in an accredited educa-
52 tional institution and such enrollment and full time attendance is
53 certified by such institution and no child of any age dependent blind or
54 physically disabled, and the death occurs on or after January first,
55 nineteen hundred seventy-eight, to such spouse sixty-six and two-thirds
56 per centum of the average wages of the deceased during widowhood or
S. 5302 13
1 widowerhood [with two years' compensation, in one sum, upon remarriage].
2 Where the death occurs on or after January first, nineteen hundred
3 seventy-eight, and the spouse is receiving the survivors insurance bene-
4 fits under the social security act, the death benefit payable under this
5 section shall be reduced in accordance with the provisions of table No.
6 [1] I below by five per centum of the spouse's share of the survivor's
7 insurance benefits under the social security act for each ten dollars of
8 deceased's average weekly wage in excess of one hundred dollars provided
9 that in no case shall such reduction exceed fifty per centum of said
10 spouse's share of the survivors insurance benefits under the social
11 security act.
12 TABLE No. I
13 Offset provisions applicable in death benefits
14 where there is a sole surviving spouse
15 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
16 SHARE OF SURVIVORS
17 INSURANCE BENEFITS
18 over $100 up to and including $110 ................................... 5
19 over $110 up to and including $120 .................................. 10
20 over $120 up to and including $130 .................................. 15
21 over $130 up to and including $140 .................................. 20
22 over $140 up to and including $150 .................................. 25
23 over $150 up to and including $160 .................................. 30
24 over $160 up to and including $170 .................................. 35
25 over $170 up to and including $180 .................................. 40
26 over $180 up to and including $190 .................................. 45
27 over $190 up to and including $200 .................................. 50
28 over $200 ........................................................... 50
29 1-d. If there be a surviving spouse of an employee of a private volun-
30 tary hospital killed in a World Trade Center rescue, who passed a phys-
31 ical examination upon employment as a rescue worker that failed to
32 reveal evidence of a condition that was the proximate cause of death,
33 and no child of the deceased under the age of eighteen years, or under
34 the age of twenty-three years if enrolled and attending as a full-time
35 student in an accredited educational institution and such enrollment and
36 full-time attendance is certified by such institution, and no child of
37 any age dependent blind or physically disabled, to such spouse seventy-
38 five per centum of the average wages of the deceased during widowhood or
39 widowerhood[, with two years' compensation, in one sum, upon remarriage.
40 Where such death occurs, and the spouse is receiving the survivors
41 insurance benefits under the social security act, the death benefit
42 payable under this section shall be reduced in accordance with the
43 provisions of table No. I in subdivision one-c of this section by five
44 per centum of the spouse's share of the survivor's insurance benefits
45 under the social security act for each ten dollars of deceased's average
46 weekly wage in excess of one hundred dollars; provided that in no case
47 shall such reduction exceed fifty per centum of such spouse's share of
48 the survivors insurance benefits under the social security act].
49 1-e. If there be a surviving spouse and no child of the deceased under
50 the age of eighteen years or under the age of twenty-three years if
51 enrolled and attending as a full-time student in an accredited educa-
52 tional institution and such enrollment and full-time attendance is
53 certified by such institution and no child of any age dependent blind or
S. 5302 14
1 physically disabled, and the death occurs on or after January first, two
2 thousand sixteen, to such spouse sixty-six and two-thirds per centum of
3 the average wages of the deceased during widowhood or widowerhood.
4 2. If there be a surviving spouse and a surviving child or children of
5 the deceased under the age of eighteen years or a surviving child or
6 children of any age dependent blind or physically disabled, and the
7 death occurs on or after July first, nineteen hundred forty-eight, and
8 prior to January first, nineteen hundred seventy-eight, to such spouse
9 thirty per centum of the average wages of the deceased during widowhood
10 or widowerhood [with two years' compensation in one sum, upon remar-
11 riage]; and the additional amount of twenty per centum of such wages for
12 each such child until the age of eighteen years or until the removal of
13 the dependency of the blind or physically disabled child or children; in
14 case of the subsequent death [or remarriage] of such surviving spouse
15 any surviving child of the deceased employee, at the time under eighteen
16 years of age or dependent through mental or physical infirmity, shall
17 have his compensation increased to thirty per centum of such wages, and
18 the same shall be payable until he shall reach the age of eighteen years
19 or until such dependent blind or physically disabled condition shall
20 have been removed; provided that the total amount payable shall in no
21 case exceed sixty-six and two-thirds per centum of such wages. [Upon
22 statutory termination of compensation payments to all such children, the
23 compensation of the surviving spouse shall be increased to forty per
24 centum of such wages with two years' compensation, at such rate, in one
25 sum, upon remarriage.]
26 If there be a surviving wife (or dependent husband) and any of the
27 aforementioned surviving children, and the death occurred prior to July
28 first, nineteen hundred forty-eight, to such wife (or dependent husband)
29 thirty per centum of the average wages of the deceased during widowhood
30 (or dependent widowerhood) [with two years' compensation in one sum,
31 upon remarriage]; and the additional amount of ten per centum of such
32 wages for each such child until eighteen years of age or until the
33 removal of the dependency of the blind or physically disabled child or
34 children; in case of the subsequent death [or remarriage] of such
35 surviving wife (or dependent husband) any surviving child of the
36 deceased shall have his compensation increased to fifteen per centum of
37 such wages until he shall reach the age of eighteen years or until such
38 dependent blind or physically disabled condition shall have been
39 removed; provided that the total amount payable shall in no case exceed
40 sixty-six and two-thirds per centum of such wages.
41 The board may in its discretion require the appointment of a guardian
42 for the purpose of receiving the compensation of a minor child or a
43 dependent blind or physically disabled child. In the absence of such a
44 requirement by the board the appointment of a guardian for such purposes
45 shall not be necessary.
46 2-a. If there be a surviving spouse and a surviving child under the
47 age of eighteen years or under the age of twenty-three years if enrolled
48 and attending as a full time student in an accredited educational insti-
49 tution and such enrollment and full time attendance is certified by such
50 institution or a surviving child of any age dependent blind or phys-
51 ically disabled and the death occurs on or after January first, nineteen
52 hundred seventy-eight, to such spouse thirty-six and two-thirds per
53 centum of the average wages of the deceased during widowhood or widower-
54 hood [with two years' compensation in one sum, upon remarriage]; and
55 thirty per centum of such wages to such child under the age of eighteen
56 years or under the age of twenty-three years if enrolled and attending
S. 5302 15
1 as a full time student in an accredited educational institution and such
2 enrollment and full time attendance is certified by such institution or
3 a surviving child of any age dependent blind or physically disabled; in
4 the case of the subsequent death of such surviving spouse the surviving
5 child shall have his compensation increased to sixty-six and two-thirds
6 per centum of such wages and the same shall be payable so long as he is
7 under the age of eighteen years or under the age of twenty-three years
8 if enrolled and attending as a full time student in an accredited educa-
9 tional institution and such enrollment and full time attendance is
10 certified by such institution or a surviving child of any age dependent
11 blind or physically disabled; upon statutory termination of compensation
12 payable to such child, the compensation of the surviving spouse shall be
13 increased to sixty-six and two-thirds per centum of such wages [with two
14 years' compensation, at such rate, in one sum, upon remarriage. Upon
15 remarriage of such surviving spouse, the surviving child shall continue
16 to receive thirty per centum of such wages]. Where the death occurs on
17 or after January first, nineteen hundred seventy-eight and the spouse is
18 receiving survivors insurance benefits under the social security act,
19 the death benefit payable under this section shall be reduced by five
20 per centum of the spouse's share of the survivors insurance benefits
21 under the social security act for each ten dollars of deceased's average
22 weekly wage in excess of one hundred dollars provided that in no case
23 shall such reduction exceed fifty per centum of said spouse's share of
24 the survivors insurance benefits under the social security act as set
25 forth in table No. I below.
26 TABLE No. I
27 Offset provisions applicable in death benefits
28 where there is a surviving spouse and one child
29 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
30 SHARE OF SURVIVORS
31 INSURANCE BENEFITS
32 over $100 up to and including $110 ................................... 5
33 over $110 up to and including $120 .................................. 10
34 over $120 up to and including $130 .................................. 15
35 over $130 up to and including $140 .................................. 20
36 over $140 up to and including $150 .................................. 25
37 over $150 up to and including $160 .................................. 30
38 over $160 up to and including $170 .................................. 35
39 over $170 up to and including $180 .................................. 40
40 over $180 up to and including $190 .................................. 45
41 over $190 up to and including $200 .................................. 50
42 over $200 ........................................................... 50
43 If there be a surviving spouse and two or more surviving children
44 under the age of eighteen years or under the age of twenty-three years
45 if enrolled and attending as a full time student in an accredited educa-
46 tional institution and such enrollment and full time attendance is
47 certified by such institution or a surviving child or children of any
48 age dependent blind or physically disabled and a death occurs on or
49 after January first, nineteen hundred seventy-eight, to such spouse
50 thirty-six and two-thirds per centum of the average wage of the deceased
51 during widowhood or widowerhood [with two years' compensation in one sum
52 upon remarriage]; and thirty per centum of such wages to such children
53 under the age of eighteen years or under the age of twenty-three years
S. 5302 16
1 if enrolled and attending as a full time student in an accredited educa-
2 tional institution and such enrollment and full time attendance is
3 certified by such institution or a surviving child or children of any
4 age dependent blind or physically disabled, share and share alike; in
5 case of the subsequent death of such surviving spouse the surviving
6 children shall have their compensation increased to sixty-six and two-
7 thirds per centum of such wages and the aggregate sum shall be payable,
8 share and share alike, so long as they are under the age of eighteen
9 years or under the age of twenty-three years if enrolled and attending
10 as a full time student in an accredited educational institution and such
11 enrollment and full time attendance is certified by such institution or
12 a surviving child or children of any age dependent blind or physically
13 disabled. [Upon remarriage of such surviving spouse, if there be two
14 surviving children each shall receive twenty-five per centum of such
15 wages, and if there are surviving more than two children under the age
16 of eighteen years or under the age of twenty-three if enrolled and
17 attending as a full time student in an accredited educational institu-
18 tion and such enrollment and full time attendance is certified by such
19 institution or a surviving child or children of any age dependent blind
20 or physically disabled sixty-six and two-thirds per centum of such wages
21 share and share alike.] Upon statutory termination of compensation paya-
22 ble to such children, the compensation of the surviving spouse shall be
23 increased to sixty-six and two-thirds per centum of such wages [with two
24 years' compensation, at such rate, in one sum, upon remarriage]. Where
25 the death occurs on or after January first, nineteen hundred seventy-
26 eight, and the spouse is receiving survivors insurance benefits under
27 the social security act, the death benefits payable under this section
28 shall be reduced by five per centum of the spouse's share of the survi-
29 vors insurance benefits under the social security act for each ten
30 dollars of deceased's average weekly wage in excess of one hundred fifty
31 dollars provided that in no case shall such reduction exceed fifty per
32 centum of said spouse's share of the survivors insurance benefits under
33 the social security act as set forth in table No. II below.
34 TABLE No. II
35 Offset provisions applicable in death benefits
36 where there is a surviving spouse and two or more children
37 AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
38 SHARE OF SURVIVORS
39 INSURANCE BENEFITS
40 over $150 up to and including $160 ................................... 5
41 over $160 up to and including $170 .................................. 10
42 over $170 up to and including $180 .................................. 15
43 over $180 up to and including $190 .................................. 20
44 over $190 up to and including $200 .................................. 25
45 over $200 up to and including $210 .................................. 30
46 over $210 up to and including $220 .................................. 35
47 over $220 up to and including $230 .................................. 40
48 over $230 up to and including $240 .................................. 45
49 over $240 up to and including $250 .................................. 50
50 over $250 ........................................................... 50
51 2-b. If there be a surviving spouse of an employee of a private volun-
52 tary hospital killed in a World Trade Center rescue, who passed a phys-
53 ical examination upon employment as a rescue worker that failed to
S. 5302 17
1 reveal evidence of a condition that was the proximate cause of death,
2 and a surviving child under the age of eighteen years, or under the age
3 of twenty-three years if enrolled and attending as a full-time student
4 in an accredited educational institution and such enrollment and full-
5 time attendance is certified by such institution, or a surviving child
6 of any age dependent blind or physically disabled, to such spouse forty
7 per centum of the average wages of the deceased during widowhood or
8 widowerhood[, with two years' compensation in one sum, upon remarriage];
9 and thirty-five per centum of such wages to such child under the age of
10 eighteen years, or under the age of twenty-three years if enrolled and
11 attending as a full-time student in an accredited educational institu-
12 tion and such enrollment and full-time attendance is certified by such
13 institution, or a surviving child of any age dependent blind or phys-
14 ically disabled; in the case of the subsequent death of such surviving
15 spouse the surviving child shall have his or her compensation increased
16 to seventy-five per centum of such wages and the same shall be payable
17 so long as he or she is under the age of eighteen years, or under the
18 age of twenty-three years if enrolled and attending as a full-time
19 student in an accredited educational institution and such enrollment and
20 full-time attendance is certified by such institution, or a surviving
21 child of any age dependent blind or physically disabled; upon statutory
22 termination of compensation payable to such child, the compensation of
23 the surviving spouse shall be increased to seventy-five per centum of
24 such wages [with two years' compensation, at such rate, in one sum, upon
25 remarriage]. [Upon remarriage of such surviving spouse, the surviving
26 child shall continue to receive thirty-five per centum of such wages.
27 Where such death occurs, and the spouse is receiving survivors insurance
28 benefits under the social security act, the death benefit payable under
29 this section shall be reduced by five per centum of the spouse's share
30 of the survivors insurance benefits under the social security act for
31 each ten dollars of deceased's average weekly wage in excess of one
32 hundred dollars; provided that in no case shall such reduction exceed
33 fifty per centum of such spouse's share of the survivors insurance bene-
34 fits under the social security act as set forth in table No. I in subdi-
35 vision one-c of this section.] If there be a surviving spouse of an
36 employee of a private voluntary hospital killed in a World Trade Center
37 rescue, who passed a physical examination upon employment as a rescue
38 worker that failed to reveal evidence of a condition that was the proxi-
39 mate cause of death, and two or more surviving children under the age of
40 eighteen years, or under the age of twenty-three years if enrolled and
41 attending as a full-time student in an accredited educational institu-
42 tion and such enrollment and full-time attendance is certified by such
43 institution, or a surviving child or children of any age dependent blind
44 or physically disabled and a death occurs on or after September elev-
45 enth, two thousand one, to such spouse forty per centum of the average
46 wage of the deceased during widowhood or widowerhood [with two years'
47 compensation in one sum upon remarriage]; and thirty-five per centum of
48 such wages to such children under the age of eighteen years, or under
49 the age of twenty-three years if enrolled and attending as a full-time
50 student in an accredited educational institution and such enrollment and
51 full-time attendance is certified by such institution, or a surviving
52 child or children of any age dependent blind or physically disabled,
53 share and share alike; in case of the subsequent death of such surviving
54 spouse the surviving children shall have their compensation increased to
55 seventy-five per centum of such wages and the aggregate sum shall be
56 payable, share and share alike, so long as they are under the age of
S. 5302 18
1 eighteen years, or under the age of twenty-three years if enrolled and
2 attending as a full-time student in an accredited educational institu-
3 tion and such enrollment and full-time attendance is certified by such
4 institution, or a surviving child or children of any age dependent blind
5 or physically disabled. [Upon remarriage of such surviving spouse, if
6 there be two surviving children each shall receive thirty-seven and
7 one-half per centum of such wages, and if there are surviving more than
8 two children under the age of eighteen years, or under the age of twen-
9 ty-three if enrolled and attending as a full-time student in an accred-
10 ited educational institution and such enrollment and full-time attend-
11 ance is certified by such institution, or a surviving child or children
12 of any age dependant blind or physically disabled, seventy-five per
13 centum of such wages share and share alike.] Upon statutory termination
14 of compensation payable to such children, the compensation of the
15 surviving spouse shall be increased to seventy-five per centum of such
16 wages [with two years' compensation, at such rate, in one sum, upon
17 remarriage]. Where the death occurs on or after September eleventh, two
18 thousand one, and the spouse is receiving survivors insurance benefits
19 under the social security act, the death benefits payable under this
20 section shall be reduced by five per centum of the spouse's share of the
21 survivors insurance benefits under the social security act for each ten
22 dollars of deceased's average weekly wage in excess of one hundred fifty
23 dollars; provided that in no case shall such reduction exceed fifty per
24 centum of said spouse's share of the survivors insurance benefits under
25 the social security act as set forth in table No. II in subdivision
26 two-a of this section.
27 2-c. If there be a surviving spouse and a surviving child under the
28 age of eighteen years or under the age of twenty-three years if enrolled
29 and attending as a full-time student in an accredited educational insti-
30 tution and such enrollment and full-time attendance is certified by such
31 institution or a surviving child of any age dependent blind or phys-
32 ically disabled and the death occurs on or after January first, two
33 thousand sixteen, to such spouse thirty-six and two-thirds per centum of
34 the average wages of the deceased during widowhood or widowerhood; and
35 thirty per centum of such wages to such child under the age of eighteen
36 years or under the age of twenty-three years if enrolled and attending
37 as a full-time student in an accredited educational institution and such
38 enrollment and full-time attendance is certified by such institution or
39 a surviving child of any age dependent blind or physically disabled; in
40 the case of the subsequent death of such surviving spouse the surviving
41 child shall have their compensation increased to sixty-six and two-
42 thirds per centum of such wages and the same shall be payable so long as
43 they are under the age of eighteen years or under the age of twenty-
44 three years if enrolled and attending as a full-time student in an
45 accredited educational institution and such enrollment and full-time
46 attendance is certified by such institution or a surviving child of any
47 age dependent blind or physically disabled; upon statutory termination
48 of compensation payable to such child, the compensation of the surviving
49 spouse shall be increased to sixty-six and two-thirds per centum of such
50 wages.
51 If there be a surviving spouse and two or more surviving children
52 under the age of eighteen years or under the age of twenty-three years
53 if enrolled and attending as a full-time student in an accredited educa-
54 tional institution and such enrollment and full-time attendance is
55 certified by such institution or a surviving child or children of any
56 age dependent blind or physically disabled and a death occurs on or
S. 5302 19
1 after January first, two thousand sixteen, to such spouse thirty-six and
2 two-thirds per centum of the average wage of the deceased during widow-
3 hood or widowerhood; and thirty per centum of such wages to such chil-
4 dren under the age of eighteen years or under the age of twenty-three
5 years if enrolled and attending as a full-time student in an accredited
6 educational institution and such enrollment and full-time attendance is
7 certified by such institution or a surviving child or children of any
8 age dependent blind or physically disabled, share and share alike; in
9 case of the subsequent death of such surviving spouse the surviving
10 children shall have their compensation increased to sixty-six and two-
11 thirds per centum of such wages and the aggregate sum shall be payable,
12 share and share alike, so long as they are under the age of eighteen
13 years or under the age of twenty-three years if enrolled and attending
14 as a full-time student in an accredited educational institution and such
15 enrollment and full-time attendance is certified by such institution or
16 a surviving child or children of any age dependent blind or physically
17 disabled. Upon statutory termination of compensation payable to such
18 children, the compensation of the surviving spouse shall be increased to
19 sixty-six and two-thirds per centum of such wages.
20 4-d. If there be no surviving spouse or child, or children of an
21 employee of a private voluntary hospital killed in a World Trade Center
22 rescue, who passed a physical examination upon employment as a rescue
23 worker that failed to reveal evidence of a condition that was the proxi-
24 mate cause of death, under the age of eighteen years, or under the age
25 of twenty-three years if enrolled and attending as a full-time student
26 in an accredited educational institution and such enrollment and full-
27 time attendance is certified by such institution, or dependent blind or
28 physically disabled child of any age, or grandchildren or brothers and
29 sisters if dependent upon the deceased at the time of the accident,
30 under the age of eighteen years, or under the age of twenty-three years
31 if enrolled and attending as a full-time student in an accredited educa-
32 tional institution and such enrollment and full-time attendance is
33 certified by such institution, or disabled blind or physically disabled
34 grandchildren or brothers and sisters of any age, then a sum of [fifty]
35 one hundred thousand dollars shall be paid to the deceased's surviving
36 parents or if there be no surviving parents to the deceased's estate.
37 § 8. The workers' compensation law is amended by adding a new section
38 17-a to read as follows:
39 § 17-a. Limited English proficiency. 1. The board shall provide trans-
40 lation of all documents and forms used by or issued to injured employ-
41 ees. The translation shall be in the six most common non-English
42 languages spoken by individuals with limited-English proficiency in the
43 state of New York.
44 2. The board shall provide interpretation services to injured employ-
45 ees with respect to its provision of services, information and/or bene-
46 fits.
47 3. The board shall publish a language access plan that reflects:
48 (a) the means by which it provides language assistance services;
49 (b) the titles of all available translated documents and the languages
50 into which they have been translated;
51 (c) the number of public contact positions at the board and the number
52 of bilingual employees in public contact positions, including the
53 languages they speak;
54 (d) a training plan for board employees which includes, at minimum,
55 annual training on its language access policies and how to provide
56 language assistance services;
S. 5302 20
1 (e) a plan for annual internal monitoring of the board's language
2 access plan;
3 (f) a plan of how the board intends to notify injured employees of
4 offered language assistant services; and
5 (g) the appointment of a language access coordinator at the board, who
6 shall be publicly identified.
7 4. The language access coordinator for the board shall monitor the
8 agency's compliance with this section by annually collecting data on the
9 provision of language assistance services, the availability of trans-
10 lated materials, whether signage is properly posted, and any other rele-
11 vant measures.
12 § 9. Section 18 of the workers' compensation law, as amended by chap-
13 ter 747 of the laws of 1947, is amended to read as follows:
14 § 18. Notice of injury or death. Notice of an injury or death for
15 which compensation is payable under this chapter shall be given to the
16 employer within thirty days after the accident causing such injury, and
17 also in case of the death of the employee resulting from such injury,
18 within thirty days after such death. Such notice may be given by any
19 person claiming to be entitled to compensation, or by some one in his
20 behalf. The notice shall be in writing, and contain the name and address
21 of the employee, and state in ordinary language the time, place, nature
22 and cause of the injury, and be signed by him or by a person on his
23 behalf or, in case of death, by any one or more of his dependents, or by
24 a person, on their behalf. It shall be given to the employer by deliver-
25 ing it to him or sending it by mail, by registered letter, addressed to
26 the employer at his or its last known place of business; provided that,
27 if the employer be a partnership then such notice may be so given to any
28 one of the partners, and if the employer be a corporation, then such
29 notice may be given to any agent or officer thereof upon whom legal
30 process may be served, or any agent in charge of his business in the
31 place where the injury occurred. The failure to give notice of injury or
32 notice of death unless excused by the board either on the ground that
33 notice for some sufficient reason could not have been given, or on the
34 ground that the employer, or his or its agents in charge of the business
35 in the place where the accident occurred or having immediate supervision
36 of the employee to whom the accident happened, had knowledge of the
37 accident or death, or on the ground that the employer has not been prej-
38 udiced thereby, shall be a bar to any claim under this chapter, but the
39 employer and the insurance carrier shall be deemed to have waived such
40 notice unless the objection to the failure to give such notice or the
41 insufficiency thereof, is raised before the board on the first hearing
42 of the claim field by such injured employee, or his or her dependents at
43 which all parties in interest are present, or represented, and at which
44 the claimant, or principal beneficiary, testifies. The burden of proof
45 on the issue of prejudice shall rest with the employer.
46 § 10. Subdivision 1 of section 20 of the workers' compensation law, as
47 amended by chapter 635 of the laws of 1996, is amended to read as
48 follows:
49 1. At any time after [the expiration of the first seven days of disa-
50 bility on the part of] an injury the injured employee, or at any time
51 after the employee's death, a claim for compensation may be presented to
52 the employer or to the chair. The board shall hold an initial hearing
53 in each claim and shall have full power and authority to determine all
54 questions in relation to the payment of claims presented to it for
55 compensation under the provisions of this chapter. The chair or board
56 shall make or cause to be made such investigation as it deems necessary,
S. 5302 21
1 and upon application of either party, shall order a hearing, and within
2 thirty days after a claim for compensation is submitted under this
3 section, or such hearing closed, shall make or deny an award, determin-
4 ing such claim for compensation, and file the same in the office of the
5 chair. Immediately after such filing the chair shall send to the parties
6 a copy of the decision. Upon a hearing pursuant to this section either
7 party may present evidence and be represented by counsel. The decision
8 of the board shall be final as to all questions of fact, and, except as
9 provided in section twenty-three of this article, as to all questions of
10 law. Except as provided in section twenty-seven of this article, all
11 awards of the board shall draw simple interest from thirty days after
12 the making thereof at the rate provided in section five thousand four of
13 the civil practice law and rules. Whenever a hearing or proceeding for
14 the determination of a claim for compensation is begun before a referee,
15 pursuant to the provisions of this chapter, such hearing or proceeding
16 or any adjourned hearing thereon shall continue before the same referee
17 until a final determination awarding or denying compensation, except in
18 the absence, inability or disqualification to act of such referee, or
19 for other good cause, in which event such hearing or proceeding may be
20 continued before another referee by order of the chair or board.
21 § 11. Section 24 of the workers' compensation law, as amended by chap-
22 ter 494 of the laws of 1950, is amended to read as follows:
23 § 24. Costs and fees. (a) If the court before which any proceedings
24 for compensation or concerning an award of compensation have been
25 brought, under this chapter, determine that such proceedings have not
26 been so brought upon reasonable ground, it shall assess the cost of the
27 proceedings upon the party who has so brought them.
28 (b) Claims of attorneys and counselors-at-law for legal services in
29 connection with any claim arising under this chapter, and claims for
30 services or treatment rendered or supplies furnished pursuant to subdi-
31 vision (b) of section thirteen of this [chapter] article, shall not be
32 enforceable unless approved by the board. The board shall approve such
33 claims of attorneys in accordance with each applicable provision of the
34 following schedule:
35 (i) when an award is made directing the continuation of weekly compen-
36 sation benefits for temporary total or partial disability, the attor-
37 ney's fee shall be one-third of one week's compensation.
38 (ii) when an award is made that increases the amount of compensation
39 awarded or paid for a previous period or periods of temporary total or
40 partial disability, the attorney's fee shall be fifteen percent of the
41 increased compensation.
42 (iii) when an award is made for schedule loss of use or permanent
43 facial disfigurement pursuant to paragraphs a through t of subdivision
44 three of section fifteen of this article, the attorney's fee shall be
45 fifteen percent of the compensation due in excess of the employer or
46 carrier's previous payments.
47 (iv) when an award is made for permanent total disability pursuant to
48 subdivision one of section fifteen of this article or permanent partial
49 disability pursuant to paragraph w of subdivision three of section
50 fifteen of this article, the attorney's fee shall be equivalent to ten
51 weeks of compensation at the rate fixed by the board.
52 (v) when an award is made for death benefits pursuant to section
53 sixteen of this article, the attorney's fee shall be equivalent to
54 fifteen percent of the compensation due in excess of the employer or
55 carrier's previous payments, plus a sum equivalent to ten weeks of
56 compensation at the rate fixed by the board.
S. 5302 22
1 (vi) when an award is made pursuant to section thirty-two of this
2 article, the attorney's fee shall be fifteen percent of any benefits to
3 be paid by the employer or carrier under the agreement. However, if the
4 attorney is awarded a fee pursuant to this subdivision, payment of the
5 unpaid and unaccrued balance of any attorney fees under the foregoing
6 subdivisions shall be waived.
7 [If] (c) When so approved, such claim or claims shall become a lien
8 upon the compensation awarded, and upon any moneys ordered paid under an
9 award by the board into the special funds provided for in subdivision
10 nine of section fifteen[, subdivision nine,] and section twenty-five-a,
11 and any other section of this chapter, but shall be paid therefrom only
12 in the manner fixed by the board. Any other person, firm or corporation
13 who shall exact or receive fee or gratuity for any services rendered on
14 behalf of a claimant except in an amount determined by the board, shall
15 be guilty of a misdemeanor. Any person, firm or corporation who shall
16 solicit the business of appearing before the board on behalf of a claim-
17 ant, or who shall make it a business to solicit employment for a lawyer
18 in connection with any claim for compensation under this chapter shall
19 be guilty of a misdemeanor. In case an award is affirmed upon an appeal
20 to the appellate division, the same shall be payable with interest ther-
21 eon from the date when said award was made by the board except as
22 provided in section twenty-seven of this [chapter] article.
23 (d) Where the claim is solely for medical treatment, and no award of
24 compensation is made, attorneys and counselors-at-law may submit a claim
25 for legal services rendered in connection with obtaining authorization
26 or approval for such medical treatment, including the provision of
27 advice and representation for the injured worker. The board shall review
28 and approve such claims, having due regard for the services rendered and
29 whether authorization or approval was obtained. The fees awarded to an
30 attorney pursuant to this subdivision shall be paid by the employer or
31 carrier. Any attorney fee awarded pursuant to this subdivision shall
32 become a credit against a subsequent attorney fee requested pursuant to
33 subdivision (b) of this section.
34 § 12. Subdivision 2-b of section 25 of the workers' compensation law
35 is REPEALED and subdivision 2-c is renumbered subdivision 2-b.
36 § 13. Paragraphs (b) and (c) of subdivision 3 of section 25 of the
37 workers' compensation law, as amended by chapter 61 of the laws of 1986,
38 are amended to read as follows:
39 (b) Nothing herein shall limit the right of the board in a particular
40 case to hold a hearing and make an award in accordance with other
41 provisions of this chapter. No case shall be closed and no decision
42 shall be issued without a hearing upon notice to all parties interested
43 and without giving to all such parties an opportunity to be heard.
44 (c) The board shall keep an accurate stenographic record of all hear-
45 ings held. Whenever a hearing must be continued or adjourned because
46 the carrier or employer has engaged in dilatory tactics or exhibited
47 unjustified lack of preparedness, the board shall impose a penalty of
48 twenty-five dollars to be paid to the fund created by subdivision two of
49 section one hundred fifty-one of this chapter and shall in addition make
50 an award of seventy-five dollars payable to the injured worker or his or
51 her dependants. Dilatory tactics may include but shall not be limited
52 to: failing to subpoena medical witnesses or to secure an order to show
53 cause as directed by the referee, failing to bring proper files, failing
54 to appear, failing to produce witnesses or documents after they have
55 been requested by the referee or examiner or as directed by the hearing
56 notice, unnecessarily protracting the production of evidence, or engag-
S. 5302 23
1 ing in a pattern of delay which unduly delays resolution, except that no
2 penalty shall be imposed nor award made under this subdivision if the
3 carrier or employer produces evidence sufficient to excuse its conduct
4 to the satisfaction of the referee.
5 § 14. Subdivision 1, the fifth undesignated paragraph of subdivision 5
6 and subdivision 6 of section 29 of the workers' compensation law, subdi-
7 vision 1 as amended by section 805 of the laws of 1984 and as further
8 amended by section 104 of part A of chapter 62 of the laws of 2011, the
9 fifth undesignated paragraph of subdivision 5 as amended by chapter 246
10 of the laws of 1967, and subdivision 6 as amended by chapter 635 of the
11 laws of 1996, are amended to read as follows:
12 1. If an employee entitled to compensation under this chapter be
13 injured or killed by the negligence or wrong of another not in the same
14 employ, such injured employee, or in case of death, his dependents, need
15 not elect whether to take compensation and medical benefits under this
16 chapter or to pursue his remedy against such other but may take such
17 compensation and medical benefits and at any time either prior thereto
18 or within six months after the awarding of compensation or within nine
19 months after the enactment of a law or laws creating, establishing or
20 affording a new or additional remedy or remedies, pursue his remedy
21 against such other subject to the provisions of this chapter. If such
22 injured employee, or in case of death, his dependents, take or intend to
23 take compensation, and medical benefits in the case of an employee,
24 under this chapter and desire to bring action against such other, such
25 action must be commenced not later than six months after the awarding of
26 compensation or not later than nine months after the enactment of such
27 law or laws creating, establishing or affording a new or additional
28 remedy or remedies and in any event before the expiration of one year
29 from the date such action accrues. In such case, the state insurance
30 fund, if compensation be payable therefrom, and otherwise the person,
31 association, corporation or insurance carrier liable for the payment of
32 such compensation, as the case may be, shall have a lien on the proceeds
33 of any recovery from such other to the extent such recovery is for lost
34 wages or medical expenses, whether by judgment, settlement or otherwise,
35 after the deduction of the reasonable and necessary expenditures,
36 including attorney's fees, incurred in effecting such recovery, to the
37 extent of the total amount of compensation awarded under or provided or
38 estimated by this chapter for such case and the expenses for medical
39 treatment paid or to be paid by it and to such extent such recovery
40 shall be deemed for the benefit of such fund, person, association,
41 corporation or carrier. Should the employee or his dependents secure a
42 recovery from such other, whether by judgment, settlement or otherwise,
43 such employee or dependents may apply on notice to such lienor to the
44 court in which the third party action was instituted, or to a court of
45 competent jurisdiction if no action was instituted, for an order appor-
46 tioning the reasonable and necessary expenditures, including attorneys'
47 fees, incurred in effecting such recovery. Such expenditures shall be
48 equitably apportioned by the court between the employee or his depen-
49 dents and the lienor. Notice of the commencement of such action shall be
50 given within thirty days thereafter to the chairman, the employer and
51 the insurance carrier upon a form prescribed by the chairman. Any of the
52 foregoing providers of compensation and/or medical benefits which has
53 recovered a lien pursuant to the provisions hereof against the recovery
54 of a person injured on or after February first, nineteen hundred seven-
55 ty-four and before July first, nineteen hundred seventy-eight, through
56 the use or operation of a motor vehicle in this state, shall notify such
S. 5302 24
1 person by certified mail in a manner to be approved by the chairman and
2 the superintendent of financial services of the responsibility of an
3 "insurer" (as defined in subsection (g) of section five thousand one
4 hundred two of the insurance law), to reimburse such person under such
5 circumstances to the extent that the recovered lien represent first
6 party benefits as defined in article fifty-one of the insurance law.
7 A copy of the papers to be used on the application to compromise and
8 settle the claim must be served as directed by the court or in the same
9 manner as provided in the civil practice law and rules for a notice of
10 motion upon the commissioners of the state insurance fund or such offi-
11 cer thereof designated by them or upon the person, association, corpo-
12 ration, or insurance carrier, whose written approval would have been
13 required to compromise such cause of action by the employee or his
14 dependents. This notice shall afford them the opportunity to submit
15 affidavits and to be heard by the court on the application. A petition
16 may also be filed pursuant to this subdivision allocating a portion of
17 the third-party recovery to lost wages and/or medical treatment.
18 6. [The] Except as set forth in section eleven of this article, the
19 right to compensation or benefits under this chapter, shall be the
20 exclusive remedy to an employee, or in case of death his or her depen-
21 dents, when such employee is injured or killed by the negligence or
22 wrong of another in the same employ, the employer's insurer or any
23 collective bargaining agent of the employer's employees or any employee,
24 of such insurer or such collective bargaining agent (while acting within
25 the scope of his or her employment). The limitation of liability of an
26 employer set forth in section eleven of this article for the injury or
27 death of an employee shall be applicable to another in the same employ,
28 the employer's insurer, any collective bargaining agent of the employ-
29 er's employees or any employee of the employer's insurer or such collec-
30 tive bargaining agent (while acting within the scope of his or her
31 employment). The option to maintain an action in the courts for damages
32 [based on the employer's failure to secure compensation for injured
33 employees and their dependents as set forth in section eleven of this
34 article] shall not be construed to include the right to maintain an
35 action against another in the same employ, [the employer's insurer,] any
36 collective bargaining agent of the employer's employees or any employee
37 [of the employer's insurer] or such collective bargaining agent (while
38 acting within the scope of his or her employment).
39 § 15. Subdivision 3 of section 35 of the workers' compensation law, as
40 amended by section 2 of subpart A of part NNN of chapter 59 of the laws
41 of 2017, is amended and a new subdivision 5 is added to read as follows:
42 3. Extreme hardship redetermination. In cases where the loss of wage-
43 earning capacity is greater than [seventy-five] fifty percent, a claim-
44 ant may request[, within the year prior to the scheduled exhaustion of
45 indemnity benefits under paragraph w of subdivision three of section
46 fifteen of this article], that the board reclassify the claimant to
47 permanent total disability or total industrial disability due to factors
48 reflecting extreme hardship. Extreme hardship is defined as: (a) the
49 injured worker's income from Social Security disability benefits and
50 disability pension (if applicable) would be less than fifty percent of
51 his or her average weekly wage upon termination of PPD benefits; or (b)
52 the injured worker will be unable to meet expenses for himself or
53 herself and any dependents upon termination of PPD benefits; or (c)
54 additional medical, functional or vocational factors arising subsequent
55 to the classification of permanent partial disability have further
56 eroded the injured worker's wage earning capacity; or (d) the injured
S. 5302 25
1 worker's income would be below the federal poverty guidelines upon
2 termination of PPD benefits.
3 5. Return to work programs. The following programs shall be developed
4 and implemented by January first, two thousand twenty:
5 (a) Return to work education. The board and the department of labor
6 shall develop and provide education tools and technical assistance on
7 how to build a return to work culture within an organization, partic-
8 ularly to small- and medium-sized employers. These tools shall include
9 templates of sample policies and procedural frameworks for return to
10 work programs, and illustrations of the financial benefits of effective
11 return to work protocols. In addition, the board and the department of
12 labor shall develop and implement, with input from stakeholders, an
13 education program for all participants in the workers' compensation
14 system, including employers and employees, carriers, claimants' attor-
15 neys and claims examiners, on the value and components of an effective
16 return to work program and their respective roles in assuring positive
17 return to work outcomes.
18 (b) Employer return to work policies. The board shall require a
19 formal, consistent return to work policy of all New York employers who
20 employ more than twenty-five individuals, and carriers shall provide
21 model policies for employers of fewer than twenty-five. The policy shall
22 be written and tailored to the specific needs of the employer.
23 (c) Return to work communication. The board shall redesign the forms
24 it uses to encourage and improve early and frequent outreach from the
25 employer to the injured worker, from the physician to the employer and
26 from the physician to the injured worker. These forms shall seek clearer
27 information on job duties and physical demands of a given job; ascertain
28 the extent to which physicians are communicating with the injured worker
29 about return to work; and contain information that will allow review by
30 board staff to ensure that injured workers are not needlessly delayed
31 treatment or services that could facilitate return to work.
32 (d) Improvements in the physician's role. The occupational health
33 clinics, administered by the department of health, shall develop content
34 and curriculum for a continuing medical education course on return to
35 work. The board shall improve training of physicians around return to
36 work principles. The board shall assure that physicians are compensated
37 for the time it takes to evaluate true return to work opportunities
38 within the injured worker's functional capabilities.
39 (e) Vocational rehabilitation evaluations. The board shall assure that
40 a neutral, non-medical vocational rehabilitation evaluation is provided
41 to all claimants who have not returned to work at the time they have
42 reached maximum medical improvement to determine whether their return to
43 work would be facilitated by vocational education or training. The eval-
44 uation shall be done under a standardized protocol established by the
45 board and shall be binding on all parties. The vocational assessment
46 shall be paid for by the carrier, self-insured employer or the state
47 insurance fund. Submission of the current rehabilitation form shall be
48 required, and penalties shall be imposed for the late or non-filing of
49 forms related to return to work and rehabilitation programs.
50 (f) Vocational rehabilitation services. The board shall assure that
51 vocational rehabilitation services are provided more expeditiously to
52 injured workers and are appropriately funded. The options available and
53 the costs shall be subject to regulation by the board. If the evaluation
54 recommends vocational education or retraining, the costs shall be
55 covered first by appropriate sources of state or federal funding. Carri-
56 ers shall not be permitted to seek a change in an injured worker's clas-
S. 5302 26
1 sification status while that individual is actively participating in
2 retraining or vocational rehabilitation in accordance with the individ-
3 ualized reemployment plan developed as a result of the vocational reha-
4 bilitation evaluation.
5 (g) Incentive programs. The board, the department, and the department
6 of financial services shall develop incentive programs targeted to
7 hiring workers who have permanent work restrictions. These programs
8 shall be established and analyzed for their impact on return to work
9 rates and cost effectiveness. Parameters for such program, at a minimum,
10 shall include those which offer employers wage subsidies for employing
11 and retraining injured workers, reimbursement for workplace accommo-
12 dations to enable injured workers to adjust the job to their capacities,
13 vocational assessments, retraining for those injured workers who cannot
14 return to their at-injury employer and funds for purchase of items that
15 are required of any new hire. Return to work programs subsidized by
16 these programs shall, at a minimum, be at eighty percent of the pre-hire
17 wage. Incentive programs shall require an employer match.
18 (h) Medical only cases. The board shall compensate attorneys for
19 representation provided in certain medical-only cases, so as to facili-
20 tate the medical care necessary for an injured worker's return to the
21 labor force.
22 (i) Workers' compensation board process issues. The board shall put in
23 place improvements and proactive approaches to return to work. It shall
24 develop procedures for promptly contacting claimants no later than one
25 hundred twenty days after injury or within two weeks of maximum medical
26 improvement to determine the feasibility of return to work. Partic-
27 ipants in the workers' compensation system, including the administrative
28 law judges, shall be educated on the importance of return to work. The
29 board shall establish a procedure to ensure that all claimants who are
30 eligible for a reduced earning award receive such award.
31 (j) Return to work for public employees. A "pay without prejudice"
32 pilot program shall be undertaken with state agencies and selected
33 public authorities and local governments to speed up appropriate medical
34 treatment to workers that sustain workplace injuries. The program shall
35 be analyzed to determine whether improvements in timeliness of medical
36 authorization results improve return to work outcomes of public employ-
37 ees.
38 § 16. The workers' compensation law is amended by adding a new section
39 59 to read as follows:
40 § 59. Financial statement and detailed claim data to be filed with the
41 board. (a) For purposes of this section, the term "insurer" means any
42 person, corporation, association or other business entity which issues a
43 policy of workers' compensation insurance.
44 (b) On or before April first of each year, every insurer shall for the
45 calendar year provide the board and the public with a detailed financial
46 statement to supplement and expand upon any other information otherwise
47 provided to the board, the department of financial services, or the New
48 York compensation insurance rating board as it relates to an insurer's
49 provision of workers' compensation insurance coverage to employers;
50 provided, however, that the initial financial statement so filed by an
51 insurer after the effective date of this section shall include the
52 information required in this subdivision not only for such prior calen-
53 dar year but also for the previous nine calendar years prior to such
54 report. The financial statement shall, in depth, detail:
55 (1) total premium collected;
56 (2) assessments collected;
S. 5302 27
1 (3) dividend income;
2 (4) payment of workers' compensation benefits for temporary disabili-
3 ty;
4 (5) non-scheduled permanent partial disability;
5 (6) scheduled permanent partial disability;
6 (7) permanent total disability;
7 (8) death benefits;
8 (9) medical treatment;
9 (10) payments to vendors including but not limited to: (i) independent
10 medical examination providers; (ii) investigators; (iii) nurse case
11 managers; (iv) peer reviews; (v) utilization reviews; and (vi) defense
12 litigation costs;
13 (11) number of open claims at the time such statement is prepared;
14 (12) other expenses by category as determined by the board to reflect
15 the cost to the insurer to provide such coverage;
16 (13) investment income realized from that portion of the premium paid
17 for a policy providing such coverage;
18 (14) lien recoveries pursuant to section twenty-nine of this chapter;
19 (15) credits or offsets obtained pursuant to section twenty-nine of
20 this chapter; and
21 (16) credits, premium reductions, experience modifications or other
22 benefits provided to insured employers as a result of lien recoveries
23 and credits obtained pursuant to section twenty-nine of this chapter.
24 (c) The board shall, in both written form and as part of the agency
25 website, make such financial statements and detailed claim information
26 available to the public. The detailed claim information shall be
27 provided in aggregate form for all insurers and separated by specific
28 insurer, combined without any identification of a specific claim to a
29 specific insurer. None of the publicly available detailed claim informa-
30 tion shall identify the individual insurer, employer or employee, or
31 representative of the same, associated with the claim. Such financial
32 statements and detailed claim information shall be deemed a public docu-
33 ment and no person shall be required to file a request for such finan-
34 cial statements pursuant to article six of the public officers law in
35 order to receive a copy thereof, but upon request and payment of the fee
36 for copying such document, it shall be provided forthwith. With respect
37 to the electronic copy of such financial statements and detailed claim
38 information, which shall be accessible on the board's website, the board
39 shall highlight the availability of such information to the public on
40 such website, and the link to each insurer's financial statement and the
41 aggregated detailed claim information shall be accessible in a simple
42 and easy manner. Both the financial statement and aggregated detailed
43 claim information on the board's website shall be available in spread-
44 sheet format, in addition to any other format the chair determines is
45 appropriate. Where summaries are included, they shall be written in
46 plain and simple English so that the public at large can easily compre-
47 hend the data provided.
48 (d) On or before July first of each year, the chair shall issue
49 reports summarizing and explaining the information collected from the
50 financial statements and the detailed claim information and summarizing
51 the cost and other essential elements relevant to providing workers'
52 compensation insurance coverage. Copies of such reports shall be
53 forwarded to the temporary president of the senate, the speaker of the
54 assembly and the chairs of the senate and assembly insurance committees.
55 Such reports shall be public documents and shall be accessible both in
S. 5302 28
1 paper copy and on the board's website in a similar fashion as provided
2 for in subsection (c) of this subdivision.
3 (e) Where an insurer fails or refuses to provide the board with a full
4 and complete disclosure as required by this section, the chair shall
5 take such action he or she deems necessary to bring the insurer into
6 full compliance. Such action may include imposition of a civil penalty
7 of up to fifty thousand dollars assessed against the insurer for each
8 violation, temporary suspension of any right to issue additional poli-
9 cies or contracts until the insurer brings itself into full compliance,
10 an audit of the insurer's records by the department of financial
11 services or its designated representative to obtain the information and
12 which audit shall be paid for by the insurer, or any other civil remedy
13 the chair deems warranted or necessary until such insurer fully
14 complies. In addition the officer whose signature is affixed to such
15 statement may be personally penalized to the same extent.
16 (f) The board may promulgate such rules and regulations it deems
17 necessary for the proper administration of the provisions of this
18 section, and such rules and regulations may be promulgated on an emer-
19 gency basis if the chair warrants such action to be necessary.
20 (g) If any part of this section, or the application thereof to any
21 person or circumstances shall be held to be invalid, such holding shall
22 not affect, impair or invalidate the remainder of this act but it shall
23 be confined in its operation to the item, clause, sentence, subpara-
24 graph, subdivision or other part of this act directly involved in such
25 holding, or to the person and circumstances therein involved.
26 § 17. The workers' compensation law is amended by adding a new section
27 112-a to read as follows:
28 § 112-a. Audits of employers. 1. (a) Employers in all classes other
29 than the construction class shall be audited not less frequently than
30 biennially and the chair or board may provide for more frequent audits
31 of employers in specified classifications based on factors such as
32 amount of premium, type of business, loss ratios, or other relevant
33 factors. In no event shall employers in the construction class, generat-
34 ing more than the amount of premium required to be experience rated, be
35 audited less frequently than annually. The annual audits required for
36 construction classes may be a physical, onsite review of original
37 payroll records, employee records, checkbooks, cash book (disbursements
38 and receipts), general ledger, contracts, tax returns including quarter-
39 ly payroll filings, and original certificates of insurance. The audit of
40 all employers shall be conducted no more than one hundred twenty days
41 after the expiration of a policy period. At the completion of an audit,
42 if requested by the auditor, the employer or officer of the corporation
43 must print and sign their names on the audit document affirming the
44 accuracy of the information provided therein. As required by section one
45 hundred twelve of this article, employers shall make available all books
46 and records necessary for the payroll verification audit and permit the
47 auditor to make a physical inspection of the employer's operation. If
48 an employer fails to provide reasonable access to all such books and
49 records necessary for a payroll verification audit, including a physical
50 inspection of the employer's operation, the employer shall pay a
51 surcharge to the carrier of two times the most recent estimated annual
52 premium.
53 (b) Employers that fail to provide reasonable access to the carrier
54 for the purpose of conducting an audit shall be reported to the New York
55 compensation insurance rating board.
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1 (c) If an employer knowingly understates or knowingly conceals
2 payroll, knowingly misrepresents or knowingly conceals employee duties
3 so as to avoid proper classification for premium calculations, or know-
4 ingly misrepresents or knowingly conceals information pertinent to the
5 computation and application of an experience rating modification factor,
6 said knowing misrepresentations or knowing concealments shall be consid-
7 ered fraudulent practices in violation of applicable provisions of
8 section one hundred fourteen of this article and insurance fraud in
9 violation of applicable provisions of section 176.05 of the penal law.
10 (d) If during the course of an audit conducted under this section, an
11 insurance carrier obtains information indicating a violation of the
12 provisions of paragraph (c) of this subdivision, then the carrier shall
13 report such information to the board.
14 2. This section shall not apply to employers that self-insure or
15 employers that are members of a workers' compensation group self-insured
16 trust.
17 3. For the purposes of this section, "construction class" means the
18 work or occupation described in "Group 3" of subdivision one of section
19 three of this chapter.
20 § 18. Subdivision 1 of section 117 of the workers' compensation law,
21 as amended by chapter 17 of the laws of 1984, is amended to read as
22 follows:
23 1. The board may adopt reasonable rules consistent with and supple-
24 mental to the provisions of this chapter and the labor law. The chairman
25 may make reasonable regulations consistent with the provisions of this
26 chapter and the labor law. The board may not utilize "subject numbers",
27 forms or other informal communications outside of its rules, regulations
28 or decisions to interpret or apply the law.
29 § 19. The opening paragraph and second undesignated paragraph of
30 section 120 of the workers' compensation law, the opening paragraph as
31 amended by section 31 of part SS of chapter 54 of the laws of 2016, and
32 the second undesignated paragraph as amended by chapter 61 of the laws
33 of 1989, are amended to read as follows:
34 It shall be unlawful for any employer or his or her duly authorized
35 agent to discharge, threaten, penalize, or fail to reinstate pursuant to
36 section two hundred three-b of this chapter, or in any other manner
37 discriminate or retaliate against an employee as to his or her employ-
38 ment (i) because such employee has claimed or attempted to claim compen-
39 sation from such employer, or claimed or attempted to claim any benefits
40 provided under this chapter [or], (ii) because such employer believes
41 that such employee has claimed or will claim compensation; (iii) because
42 such employee has caused to be instituted or is about to institute a
43 claim for compensation or other benefit under this chapter; (iv) because
44 he or she has testified or is about to testify in a proceeding under
45 this chapter [and no other valid reason is shown to exist for such
46 action by the employer]; or (v) because such employee has otherwise
47 exercised rights protected under this chapter. For purposes of this
48 provision, "because" shall be interpreted to require that the listed
49 activity was at least a contributing factor to the employer's action.
50 Any complaint alleging such an unlawful discriminatory practice must
51 be filed within two years of the commission of such practice. Upon find-
52 ing that an employer has violated this section, the board shall make an
53 order that any employee so discriminated against shall be restored to
54 employment or otherwise restored to the position or privileges he or she
55 would have had but for the discrimination and shall be compensated by
56 his or her employer for any loss of compensation arising out of such
S. 5302 30
1 discrimination together with such fees or allowances for services
2 rendered by an attorney or licensed representative as fixed by the
3 board. Any employer who violates this section shall be liable to a
4 penalty of not less than one [hundred] thousand dollars or more than
5 [five hundred] ten thousand dollars, as may be determined by the board.
6 All such penalties shall be paid [into the state treasury] to the
7 employee so discriminated against. All penalties, compensation and fees
8 or allowances shall be paid solely by the employer. The employer alone
9 and not his or her carrier shall be liable for such penalties and
10 payments. Any provision in an insurance policy undertaking to relieve
11 the employer from liability for such penalties and payments shall be
12 void.
13 § 20. Paragraphs (a) and (b) of subdivision 1, subdivision 7 and
14 subdivision 11 of section 137 of the workers' compensation law, as added
15 by chapter 473 of the laws of 2000, are amended to read as follows:
16 (a) A copy of each report of independent medical examination on behalf
17 of an employer or carrier shall be submitted by the practitioner on the
18 same day and in the same manner to the board, the insurance carrier, the
19 claimant's attending physician or other attending practitioner, the
20 claimant's representative and the claimant.
21 (b) If a practitioner who has performed or will be performing an inde-
22 pendent medical examination of a claimant on behalf of an employer or
23 carrier receives a request for information regarding the claimant,
24 including faxed or electronically transmitted requests, the practitioner
25 shall submit a copy of the request for information to the board within
26 ten days of receipt of the request. Nothing in this subdivision shall be
27 construed to abrogate the attorney-client privilege.
28 7. The claimant shall receive notice by mail of the scheduled inde-
29 pendent medical examination on behalf of an employer or carrier at least
30 seven business days prior to such examination. Such notice shall advise
31 the claimant if the practitioner intends to record or video tape the
32 examination, and shall advise the claimant of their right to video tape
33 or otherwise record the examination. Claimants shall be advised of their
34 right to be accompanied during the exam by an individual or individuals
35 of their choosing.
36 11. At the time of the independent medical examination on behalf of an
37 employer or carrier the claimant shall receive a notice from the entity
38 performing the independent medical examination, on a form which shall be
39 approved and promulgated by the chair, stating the rights and obli-
40 gations of the claimant and the practitioner with respect to such exam,
41 and such notice shall include but not be limited to a statement that the
42 claimant's receipt of benefits could be denied, terminated, or reduced
43 as a result of a determination which may be based upon the medical eval-
44 uation made after such independent medical examination, and the claim-
45 ant's rights to challenge or appeal such a determination.
46 § 21. The workers' compensation law is amended by adding a new section
47 208-a to read as follows:
48 § 208-a. Cost-of-living adjustments of disability benefits in certain
49 cases. 1. Notwithstanding any other provision of law, effective July
50 first, two thousand nineteen, in addition to any other amount received
51 pursuant to this article as disability benefits, an employee with a
52 permanent total disability or the beneficiary-dependent of such employee
53 shall be entitled to an additional allowance, to be known as a cost-of-
54 living adjustment allowance, payable annually.
55 2. The cost-of-living adjustment allowance shall be computed by apply-
56 ing an adjustment for regional costs of living and shall be based on
S. 5302 31
1 fifty percent of the annual increase in the consumer price index as
2 promulgated by the United States department of labor.
3 § 22. This act shall take effect immediately.