senate Bill S5294

Relates to establishing statutory guidelines for return to work by partially disabled workers

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 16 / May / 2013
    • REFERRED TO LABOR
  • 03 / Jun / 2013
    • 1ST REPORT CAL.953
  • 04 / Jun / 2013
    • 2ND REPORT CAL.
  • 05 / Jun / 2013
    • ADVANCED TO THIRD READING
  • 21 / Jun / 2013
    • COMMITTED TO RULES
  • 08 / Jan / 2014
    • REFERRED TO LABOR
  • 12 / May / 2014
    • 1ST REPORT CAL.600
  • 13 / May / 2014
    • 2ND REPORT CAL.
  • 14 / May / 2014
    • ADVANCED TO THIRD READING
  • 20 / Jun / 2014
    • COMMITTED TO RULES

Summary

Provides that benefits for partially disabled workers who have actual earnings shall be based on such earnings; provides that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity.

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Bill Details

See Assembly Version of this Bill:
A7961
Versions:
S5294
Legislative Cycle:
2013-2014
Current Committee:
Senate Rules
Law Section:
Workers' Compensation Law
Laws Affected:
Amd §15, Work Comp L

Votes

10
1
10
Aye
1
Nay
5
aye with reservations
0
absent
0
excused
0
abstained
show Labor committee vote details

Sponsor Memo

BILL NUMBER:S5294

TITLE OF BILL: An act to amend the workers' compensation law, in
relation to establishing statutory guidelines for return to work by
partially disabled workers

PURPOSE OR GENERAL IDEA OF BILL:

This would define the circumstances under which a partially disabled
worker must seek employment as a condition for receipt of workers'
compensation benefits.

SUMMARY OF PROVISIONS:

This bill would amend Workers' Compensation Law Section 15(5-a) to
limit its scope to partial disability awards for claimants who are
working at a reduction in earnings. It would add a new Workers'
Compensation Law Section 15(5-b) to address compensation for partially
disabled workers who have no actual earnings. It would re-number
existing Workers' Compensation Law Section 15(5-b) as Workers'
Compensation Law Section 15(5-c). It would also provide that benefits
for partially disabled workers who have actual earnings shall be based
on such earnings. It would further provide that benefits for partially
disabled workers who have no actual earnings shall be based on their
wage earning capacity. It would define the term "voluntary withdrawal
from the labor market" and establish it as a defense to a claim for
partial disability benefits. It would also establish a standard for
labor market attachment to be used in cases of voluntary withdrawal
from the labor market.

JUSTIFICATION:

The Workers' Compensation Law provides that in cases of partial
disability, "the board may in the interest of justice fix such wage
earning capacity as shall be reasonable, but not in excess of
seventy-five per centum of (the injured worker's) former full time
actual earnings, having due regard to the nature of his injury and his
physical impairment." (WCL § 15(5-a)). The statute recognizes that a
partially disabled worker retains the ability to do some work, and
provides compensation only for the loss of wage earning capacity. No
compensation is payable for the wage earning capacity the worker
retains. If a partially disabled worker returns to work, benefits are
awarded based on his or her actual earnings. In the absence of a
return to work, the Board must estimate the loss of wage earning
capacity and award benefits accordingly (WCL § 15(5-a)). The law does
not identify the circumstances in which a partially disabled worker
must seek employment as a condition of receiving benefits.

The lack of a statutory standard has resulted in substantial
litigation before the Workers' Compensation Board and in the Courts.
The issue was considered by a sharply divided Court of Appeals in
Matter of Zamora v. New York Neurologic, 19 N.Y.3d 186, 970 N.E.2d
823, 947 N.Y.S.2d 788 (2012). The Court held that the Board could
require non-working, partially disabled claimants to show proof of
labor market attachment as a condition of receiving benefits, but
established no standards.By contrast, the Unemployment Insurance Law
specifically states when work must be sought as a condition of


benefits and establishes a statutory standard for adequate attachment
to the labor market (Labor Law §§ 591, 593). This bill would provide
a statutory standard for labor market attachment in workers'
compensation claims. It defines a "voluntary withdrawal from the labor
market" as one in which (1) the worker's separation from employment
was unrelated to the compensable injury, or (2) the employer
demonstrates that the claimant's loss of wages is wholly unrelated to
such injury. It would authorize the Board to terminate compensation in
cases of voluntary withdrawal from the labor market, and otherwise
require the Board to award benefits in accordance with the statute.

It would further permit the Board to award benefits in cases of
voluntary withdrawal from the labor market where the claimant is
subsequently attached to the labor market through participation in:
(1) one of New York State's Department of Labor's reemployment
services, (2) the services offered by a One-Stop Career Center, (3) a
retraining program, (4) a rehabilitation program by VESID or other
board approved rehabilitation program, (5) a job service commonly
utilized to secure work within a specific industry, or (6) enrollment
and full time attendance in an accredited educational institution to
pursue employment within the work restrictions.

Overall, this would preserve and codify the requirement of a causal
connection between the injury and the loss of earnings, encourage
return to work, expedite delivery of benefits, and reduce litigation.

PRIOR LEGISLATIVE HISTORY:

New bill.

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5294

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- 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 establish-
  ing statutory guidelines for return  to  work  by  partially  disabled
  workers

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivisions 5-a and 5-b of  section  15  of  the  workers'
compensation  law, subdivision 5-a as amended by chapter 113 of the laws
of 1946 and subdivision 5-b as added by chapter 778 of the laws of 1945,
are amended to read as follows:
  5-a.  Determination  of  wage  earning  capacity  IN  CASE  OF  ACTUAL
EARNINGS.  The  wage earning capacity of an injured employee in cases of
partial  disability  shall  be  determined  by  his   actual   earnings,
[provided, however, that if he has no such actual earnings the board may
in  the  interest  of justice fix such wage earning capacity as shall be
reasonable, but not in excess of seventy-five per centum of  his  former
full time actual earnings, having due regard to the nature of his injury
and his physical impairment] IF ANY.
  5-b. DETERMINATION OF WAGE EARNING CAPACITY IN ABSENCE OF ACTUAL EARN-
INGS.  THE  WAGE  EARNING  CAPACITY  OF  AN INJURED EMPLOYEE IN CASES OF
PARTIAL DISABILITY SHALL, IN THE ABSENCE OF ACTUAL EARNINGS,  BE  DETER-
MINED  BY THE BOARD. THE BOARD SHALL IN THE INTEREST OF JUSTICE FIX SUCH
WAGE EARNING CAPACITY AS MAY BE REASONABLE, BUT NOT IN EXCESS OF  SEVEN-
TY-FIVE  PER  CENTUM  OF  THE INJURED EMPLOYEE'S FORMER FULL TIME ACTUAL
EARNINGS, HAVING DUE REGARD  TO  THE  NATURE  OF  THE  INJURY,  PHYSICAL
IMPAIRMENT,  AND  OTHER  RELEVANT FACTORS. THE BOARD SHALL AWARD COMPEN-
SATION BASED ON THE INJURED EMPLOYEE'S LOSS OF WAGE EARNING CAPACITY.
  (A) VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET.   NOTWITHSTANDING  ANY
PROVISION  TO  THE CONTRARY, THE BOARD MAY DECLINE TO AWARD COMPENSATION
IF IT FINDS THAT THE INJURED EMPLOYEE HAS VOLUNTARILY WITHDRAWN FROM THE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11028-01-3

S. 5294                             2

LABOR MARKET. VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET IS  DEFINED  AS
SEPARATION  FROM  EMPLOYMENT  FOR  REASONS  UNRELATED TO THE COMPENSABLE
INJURY, INCLUDING BUT NOT LIMITED TO:  TERMINATION  FOR  CAUSE;  LAYOFF;
VOLUNTARY  RESIGNATION  OF  EMPLOYMENT;  RETIREMENT DUE SOLELY TO AGE OR
YEARS OF SERVICE; OR UNJUSTIFIED REFUSAL OF WORK OFFERED BY THE EMPLOYER
WHICH IS CONSISTENT WITH THE CLAIMANT'S MEDICAL RESTRICTIONS.
  (B) AWARD AFTER VOLUNTARY WITHDRAWAL FROM  THE  LABOR  MARKET.  IF  IT
FINDS  A  VOLUNTARY  WITHDRAWAL  FROM  THE LABOR MARKET, THE BOARD SHALL
AWARD BENEFITS IF THE CLAIMANT IS SUBSEQUENTLY  ATTACHED  TO  THE  LABOR
MARKET  THROUGH PARTICIPATION IN: (I) ONE OF NEW YORK STATE'S DEPARTMENT
OF LABOR'S  REEMPLOYMENT  SERVICES,  (II)  THE  SERVICES  OFFERED  BY  A
ONE-STOP  CAREER  CENTER,  (III)  A RETRAINING PROGRAM, (IV) A REHABILI-
TATION PROGRAM BY VESID OR OTHER BOARD APPROVED REHABILITATION  PROGRAM,
(V)  A  JOB  SERVICE  COMMONLY UTILIZED TO SECURE WORK WITHIN A SPECIFIC
INDUSTRY, (VI) ENROLLMENT AND FULL  TIME  ATTENDANCE  IN  AN  ACCREDITED
EDUCATIONAL   INSTITUTION   TO   PURSUE   EMPLOYMENT   WITHIN  THE  WORK
RESTRICTIONS, OR (VII) RETURN TO WORK.
  5-C. Non-schedule adjustments. Notwithstanding any other provision  of
this  chapter,  in any case coming within the provisions of subdivisions
three or five of this section, in which the right  to  compensation  has
been  established and compensation has been paid for not less than three
months, in which the continuance of disability  and  of  future  earning
capacity cannot be ascertained with reasonable certainty, the board may,
in  the interest of justice, approve a non-schedule adjustment agreed to
between the claimant and the employer  or  his  insurance  carrier.  The
board  shall require, before approving any such agreement, that there be
an examination of the claimant in accordance with  section  nineteen  of
this [chapter] ARTICLE, and such approval shall only be given when it is
found that the adjustment is fair and in the best interest of the claim-
ant.    The board may, in such case, order all future compensation to be
paid in one or more lump sums or periodically, and any  such  adjustment
shall  be  regarded as a closing of the claim unless the board find upon
proof that there has been a change in condition  or  in  the  degree  of
disability of claimant not found in the medical evidence and, therefore,
not contemplated at the time of the adjustment.
  S 2. This act shall take effect immediately.

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