senate Bill S5754

Relates to contesting personal injury or wrongful death actions

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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

  • 12 / Jun / 2013
    • REFERRED TO LABOR
  • 08 / Jan / 2014
    • REFERRED TO LABOR

Summary

Relates to contesting personal injury or wrongful death actions; provides that determinations made by the workers' compensation board or ALJ as to cause of injury, degree of disability and/or permanency of injury shall not be given preclusive effect in any other forum, court or proceeding.

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Bill Details

Versions:
S5754
Legislative Cycle:
2013-2014
Current Committee:
Senate Labor
Law Section:
Workers' Compensation Law
Laws Affected:
Amd ยง11, Work Comp L

Sponsor Memo

BILL NUMBER:S5754

TITLE OF BILL: An act to amend the workers' compensation law, in
relation to personal injury or wrongful death actions

PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to
correct a recent court decision that for the first time granted
preclusive effect to decisions of the Workers' Compensation Board
(WCB) relating to disability, potentially barring injured workers from
seeking justice through the courts on the basis of an administrative
decision of the WCB.

SUMMARY OF SPECIFIC PROVISIONS: This bill adds a new paragraph (b) to
section 11 of the Workers' Compensation Law that would bar a court or
other forum from granting preclusive effect to decisions by the
Workers' Compensation Board regarding cause of injury, degree of
disability, lost earnings, need for future medical care and/or
permanency of injury.

JUSTIFICATION: In the recent case of Auqui v. Seven Thirty One
Limited Partnership, et al., 20 N.Y.3d 1035 (2013), the Court of
Appeals for the first time allowed a decision on an injured worker's
disability by the Workers' Compensation Board to bind a regular civil
court in a related third-party action.

That decision will bar injured workers from seeking justice in the
court system if the Workers' Compensation Board finds that they are no
longer disabled.

The consequences of the Augui ruling for injured workers and the
workers compensation system are far reaching. Injured workers will be
forced to choose between maintaining their workers' compensation
benefits and pursuing a third party claim in court. Those who receive
benefits will risk being denied their constitutional right to a trial
by jury because of the administrative decisions of the Workers'
Compensation Board.

By preventing courts from granting preclusive effects to a limited
category of decisions by the Workers' Compensation Board, this bill
will ensure that a worker injured on the job will not lose. their
constitutional right to seek justice through the courts because of an
administrative hearing that lacks many of the elementary facets of due
process.

PRIOR LEGISLATIVE HISTORY: None

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: 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
________________________________________________________________________

                                  5754

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 12, 2013
                               ___________

Introduced  by Sen. NOZZOLIO -- 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  personal
  injury or wrongful death actions

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

  Section 1. Section 11 of the workers' compensation law, as amended  by
chapter  635  of  the  laws of 1996, the opening paragraph as amended by
chapter 169 of the laws of 2007, the  fifth  undesignated  paragraph  as
added  by  chapter  49  of the laws of 1999 and the closing paragraph as
added by chapter 392 of the laws of 2008, is amended to read as follows:
  S 11. Alternative remedy. (A) The liability of an employer  prescribed
by  the  last  preceding  section shall be exclusive and in place of any
other liability whatsoever, to such employee, his or her personal repre-
sentatives, spouse, parents, dependents,  distributees,  or  any  person
otherwise  entitled  to  recover  damages, contribution or indemnity, at
common law or otherwise, on account of such injury or death or liability
arising therefrom, except that  if  an  employer  fails  to  secure  the
payment  of  compensation  for  his  or  her injured employees and their
dependents as provided in section fifty  of  this  chapter,  an  injured
employee,  or  his  or her legal representative in case of death results
from the injury, may, at his or her option, elect to claim  compensation
under  this  chapter, or to maintain an action in the courts for damages
on account of such injury; and in such an action it shall not be  neces-
sary  to plead or prove freedom from contributory negligence nor may the
defendant plead as a defense that the injury was caused  by  the  negli-
gence  of a fellow servant nor that the employee assumed the risk of his
or her employment, nor that the  injury  was  due  to  the  contributory
negligence  of the employee. The liability under this chapter of The New
York Jockey Injury Compensation Fund, Inc.  created  under  section  two
hundred  [thirteen-a] TWENTY-ONE of the racing, pari-mutuel wagering and
breeding law shall be limited to the provision of workers'  compensation
coverage  to  jockeys,  apprentice jockeys and exercise persons licensed
under article two or four of the racing, pari-mutuel wagering and breed-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11319-04-3

S. 5754                             2

ing law and any  statutory  penalties  resulting  from  the  failure  to
provide such coverage.
  For  purposes of this section the terms "indemnity" and "contribution"
shall not include a claim or cause of action for contribution or  indem-
nification  based  upon  a  provision in a written contract entered into
prior to the accident or occurrence by which the employer had  expressly
agreed  to  contribution to or indemnification of the claimant or person
asserting the cause of action for the type of loss suffered.
  An employer shall not be liable for contribution or indemnity  to  any
third  person based upon liability for injuries sustained by an employee
acting within the scope of his  or  her  employment  for  such  employer
unless  such third person proves through competent medical evidence that
such employee has sustained a "grave injury" which shall mean  only  one
or  more  of  the  following:  death, permanent and total loss of use or
amputation of an arm, leg, hand or foot, loss of multiple fingers,  loss
of multiple toes, paraplegia or quadriplegia, total and permanent blind-
ness, total and permanent deafness, loss of nose, loss of ear, permanent
and  severe facial disfigurement, loss of an index finger or an acquired
injury to the brain caused by an external physical  force  resulting  in
permanent total disability.
  For  purposes  of  this  section  "person" means any individual, firm,
company, partnership, corporation, joint  venture,  joint-stock  associ-
ation, association, trust or legal entity.
  The  liability under this chapter of the New York black car operators'
injury compensation fund, inc. shall be limited  to:  (i)  securing  the
payment of workers' compensation in accordance with article six-F of the
executive  law to black car operators, as defined in such article, whose
injury arose out of and in  the  course  of  providing  services  for  a
central  dispatch facility, as defined in such article, that is a regis-
tered member of such fund, and (ii) any statutory penalty resulting from
the failure to secure such payment. The liability under this chapter  of
a  central  dispatch facility, as defined in article six-F of the execu-
tive law, that is a registered member of the New York black  car  opera-
tors'  injury compensation fund, inc. that shall be limited to remaining
a registered member in good standing of  such  fund  and  any  statutory
penalty,  including loss of immunity provided by this section, resulting
from the failure to become or remain a registered member in good  stand-
ing  of  such fund, except, however, that such central dispatch facility
shall be subject to the provisions of section one hundred thirty-one  of
this  chapter  and  shall  be  liable  for any payments for which it may
become responsible pursuant to such section or pursuant to section four-
teen-a of this chapter.
  The liability under this chapter of the New  York  independent  livery
driver  benefit fund, inc. shall be limited to: (i) securing the payment
of workers' compensation coverage to cover  those  matters  required  by
article  six-G  of  the executive law for independent livery drivers, as
defined in such article, whose injury arose out of and in the course  of
providing  covered  services for a livery base, as defined in such arti-
cle, that is a registered member of such fund, and  (ii)  any  statutory
penalty resulting from the failure to secure such payment.
  (B) DETERMINATIONS BY THE BOARD AS TO CAUSE OF INJURY, DEGREE OF DISA-
BILITY,  LOST  EARNINGS, NEED FOR FUTURE MEDICAL CARE, AND/OR PERMANENCY
OF INJURY SHALL NOT BE GIVEN PRECLUSIVE EFFECT IN ANY OTHER FORUM, COURT
OR PROCEEDING.
  S 2. This act shall take effect immediately.

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