STATE OF NEW YORK
________________________________________________________________________
7025
2023-2024 Regular Sessions
IN SENATE
May 16, 2023
___________
Introduced by Sen. MANNION -- read twice and ordered printed, and when
printed to be committed to the Committee on Labor
AN ACT to amend the volunteer firefighters' benefit law, in relation to
making technical changes regarding compensation; and to amend the
workers' compensation law, in relation to requiring employers to pay
compensation awards even if an appeal of such award has been filed
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 47 of the volunteer firefighters' benefit law is
2 amended to read as follows:
3 § 47. Costs and fees. The provisions of section twenty-four of the
4 [workmen's] workers' compensation law shall be applicable as fully as if
5 set forth in this chapter.
6 § 2. The first undesignated paragraph of section 23 of the workers'
7 compensation law, as amended by section 3 of subpart A of part NNN of
8 chapter 59 of the laws of 2017, is amended to read as follows:
9 An award or decision of the board shall be final and conclusive upon
10 all questions within its jurisdiction, as against the state fund or
11 between the parties, unless reversed or modified on appeal therefrom as
12 hereinafter provided. Any party may within thirty days after notice of
13 the filing of an award or decision of a referee, file with the board an
14 application in writing for a modification or rescission or review of
15 such award or decision, as provided in this chapter. The board shall
16 render its decision upon such application in writing and shall include
17 in such decision a statement of the facts which formed the basis of its
18 action on the issues raised before it on such application. Within thirty
19 days after notice of the decision of the board upon such application has
20 been served upon the parties, or within thirty days after notice of an
21 administrative redetermination review decision by the chair pursuant to
22 subdivision five of section fifty-two, section one hundred thirty-one or
23 section one hundred forty-one-a of this chapter has been served upon any
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11485-02-3
S. 7025 2
1 party in interest, an appeal may be taken therefrom to the appellate
2 division of the supreme court, third department, by any party in inter-
3 est, including an employer insured in the state fund; provided, however,
4 that any party in interest may within thirty days after notice of the
5 filing of the board panel's decision with the secretary of the board,
6 make application in writing for review thereof by the full board. If the
7 decision or determination was that of a panel of the board and there was
8 a dissent from such decision or determination other than a dissent the
9 sole basis of which is to refer the case to an impartial specialist, or
10 if there was a decision or determination by the panel which reduced the
11 loss of wage earning capacity finding made by a compensation claims
12 referee pursuant to subparagraph w of subdivision three of section
13 fifteen of this article from a percentage at or above the percentage set
14 forth in subdivision three of section thirty-five of this article where-
15 by a claimant would be eligible to apply for an extreme hardship rede-
16 termination to a percentage below the threshold, the full board shall
17 review and affirm, modify or rescind such decision or determination in
18 the same manner as herein above provided for an award or decision of a
19 referee. If the decision or determination was that of a unanimous panel
20 of the board, or there was a dissent from such decision or determination
21 the sole basis of which is to refer the case to an impartial specialist,
22 the board may in its sole discretion review and affirm, modify or
23 rescind such decision or determination in the same manner as herein
24 above provided for an award or decision of a referee. Failure to apply
25 for review by the full board shall not bar any party in interest from
26 taking an appeal directly to the court as above provided. The board may
27 also, in its discretion certify to such appellate division of the
28 supreme court, questions of law involved in its decision. Such appeals
29 and the question so certified shall be heard in a summary manner and
30 shall have precedence over all other civil cases in such court. The
31 board shall be deemed a party to every such appeal from its decision
32 upon such application, and the chair shall be deemed a party to every
33 such appeal from an administrative redetermination review decision
34 pursuant to subdivision five of section fifty-two of this chapter. The
35 attorney general shall represent the board and the chair thereon. An
36 appeal may also be taken to the court of appeals in the same manner and
37 subject to the same limitations not inconsistent herewith as is now
38 provided in the civil practice law and rules. It shall not be necessary
39 to file exceptions to the rulings of the board. An appeal to the appel-
40 late division of the supreme court, third department, or to the court of
41 appeals, shall not operate as a stay of the payment of compensation
42 required by the terms of the award or of the payment of the cost of such
43 medical, dental, surgical, optometric or other attendance, treatment,
44 devices, apparatus or other necessary items the employer is required to
45 provide pursuant to section thirteen of this article which are found to
46 be fair and reasonable. Where such award is modified or rescinded upon
47 appeal, the appellant shall be entitled to reimbursement in a sum equal
48 to the compensation in dispute paid to the respondent in addition to a
49 sum equal to the cost of such medical, dental, surgical, optometric or
50 other attendance, treatment, devices, apparatus or other necessary items
51 the employer is required to provide pursuant to section thirteen of this
52 article paid by the appellant pending adjudication of the appeal. Such
53 reimbursement shall be paid from administration expenses as provided in
54 section one hundred fifty-one of this chapter upon audit and warrant of
55 the comptroller upon vouchers approved by the chair. Where such award is
56 subject to the provisions of section twenty-seven of this article, the
S. 7025 3
1 appellant shall pay directly to the claimant all compensation as it
2 becomes due during the pendency of the appeal, and upon affirmance shall
3 be entitled to credit for such payments. Neither the chair, the board,
4 the commissioners of the state insurance fund nor the claimant shall be
5 required to file a bond upon an appeal to the court of appeals. Upon
6 final determination of such an appeal, the board or chair, as the case
7 may be, shall enter an order in accordance therewith. Whenever a notice
8 of appeal is served or an application is made to the board by the
9 employer or insurance carrier for a modification, rescission or review
10 of an award or decision, such notice of appeal or application shall not
11 permit an employer or carrier from not paying the compensation to the
12 claimant as provided in this chapter. Whenever a notice of appeal is
13 served or an application made to the board by the employer or insurance
14 carrier for a modification or rescission or review of an award or deci-
15 sion, and the board shall find that such notice of appeal was served or
16 such application was made for the purpose of delay or upon frivolous
17 grounds, the board shall impose a penalty in the amount of five hundred
18 dollars upon the employer or insurance carrier, which penalty shall be
19 added to the compensation and paid to the claimant. The penalties
20 provided herein shall be collected in like manner as compensation. A
21 party against whom an award of compensation shall be made may appeal
22 from a part of such award. In such a case the payment of such part of
23 the award as is not appealed from shall not prejudice any rights of such
24 party on appeal, nor be taken as an admission against such party. Any
25 appeal by an employer from an administrative redetermination review
26 decision pursuant to subdivision five of section fifty-two of this chap-
27 ter shall in no way serve to relieve the employer from the obligation to
28 timely pay compensation and benefits otherwise payable in accordance
29 with the provisions of this chapter.
30 § 3. Paragraph (c) of subdivision 3 of section 25 of the workers'
31 compensation law, as amended by chapter 61 of the laws of 1986, is
32 amended to read as follows:
33 (c) The board shall keep an accurate record of all hearings held.
34 Whenever a hearing must be continued or adjourned because the carrier or
35 employer has engaged in dilatory tactics or exhibited unjustified lack
36 of preparedness, the board shall impose a penalty of [twenty-five]
37 seventy dollars to be paid to the fund created by subdivision two of
38 section one hundred fifty-one of this chapter and shall in addition make
39 an award of [seventy-five] two hundred dollars payable to the injured
40 worker or his or her dependants. Dilatory tactics may include but shall
41 not be limited to: failing to subpoena medical witnesses or to secure
42 an order to show cause as directed by the referee, failing to bring
43 proper files, failing to appear, failing to produce witnesses or docu-
44 ments after they have been requested by the referee or examiner or as
45 directed by the hearing notice, unnecessarily protracting the production
46 of evidence, [or] engaging in a pattern of delay which unduly delays
47 resolution, or a request for a modification, rescission or review of an
48 award or decision deemed by the board to be made for the purpose of
49 delay or upon frivolous grounds, except that no penalty shall be imposed
50 nor award made under this subdivision if the carrier or employer produc-
51 es evidence sufficient to excuse its conduct to the satisfaction of the
52 referee.
53 § 4. This act shall take effect on the one hundred twentieth day after
54 it shall have become a law.
