Provides for cost-of-living adjustments to death benefits and increasing certain wage percentages for calculation of benefits
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Assembly Actions -
Lowercase Senate Actions - UPPERCASE |
|---|---|
| Feb 10, 2011 |
referred to labor |
S T A T E O F N E W Y O R K
________________________________________________________________________
5000
2011-2012 Regular Sessions
I N A S S E M B L Y
February 10, 2011
___________
Introduced by M. of A. SCHROEDER -- read once and referred to the
Committee on Labor
AN ACT to amend the workers' compensation law, in relation to providing
for cost-of-living adjustments to death benefits, increasing certain
wage percentages for calculation of benefits and the frequency of
required doctor visits
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 16 of the workers' compensation law, as amended by
chapter 550 of the laws of 1978, subdivision 1 as amended by chapter 245
of the laws of 2005, subdivisions 1-a, 1-b, 1-c, 2, 3, 3-a and 4 as
amended by chapter 168 of the laws of 1979, subdivisions 1-d, 2-b, 3-b,
4-c and 4-d as added and subdivision 5 as amended by chapter 689 of the
laws of 2007, subdivision 2-a as amended by chapter 174 of the laws of
1981, subdivision 4-a as amended by chapter 509 of the laws of 1985 and
subdivision 4-b as added by chapter 296 of the laws of 1990, is amended
to read as follows:
S 16. Death benefits. If the injury causes death, the compensation
shall be known as a death benefit and shall be payable in the amount and
to or for the benefit of the persons following:
1. Funeral expenses. The chair shall prepare and establish a schedule
for the state or schedules limited to defined localities of maximum
charges and fees for such funeral expenses, to be determined in accord-
ance with, and to be subject to change pursuant to[,] rules promulgated
by the chair. Before preparing such schedule for the state or schedules
for limited localities, the chair shall request the president of the New
York state funeral directors' association to submit to the chair a
report on the amount of remuneration deemed by such association to be
fair and adequate for the types of funeral services rendered under this
chapter, but consideration shall also be given to the views of other
interested parties. The amounts payable by the employer for such
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06761-01-1
A. 5000 2
services shall be the actual fees and charges up to the maximum estab-
lished by such schedule. Provided, however, no such schedule of charges
and fees shall apply where a firefighter dies from injuries received in
the line of duty as a direct result of firefighting or where a police
officer dies from injuries received in the line of duty as a direct
result of law enforcement activities, where such funeral expenses are
reasonable. If such funeral expenses shall have been paid by the claim-
ants entitled to compensation under this section or by others, the
funeral expenses awarded shall be made payable to such claimants or
others, otherwise they shall be made payable to the undertaker who shall
have provided burial. Funeral expenses shall be awarded in case of all
injuries causing death including cases in which there are no persons
entitled to other compensation under this chapter.
1-a. For the purpose of this section, (1) the term "dependent blind or
physically disabled" as used herein in relation to dependent children
shall be deemed to mean totally blind or physically disabled children
whose disablement is total and permanent, (2) the term "surviving
spouse" shall be deemed to mean the legal spouse but shall not include a
spouse who has abandoned the deceased, and (3) the term "abandoned"
shall be deemed to mean such an abandonment as would be sufficient under
section two hundred of the domestic relations law to sustain a judgment
of separation on that ground PROVIDED THAT A SPOUSE WHO RECONCILED WITH
THE DECEASED PRIOR TO THE DATE OF THE DEATH SHALL NOT BE CONSIDERED TO
HAVE ABANDONED THE DECEASED.
1-b. If there be a surviving spouse and no child of the deceased under
the age of eighteen years and no child of any age dependent blind or
physically disabled, and the death occurs on or after July first, nine-
teen hundred forty-eight, and prior to January first, nineteen hundred
seventy-eight, to such spouse forty per centum of the average wages of
the deceased, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS,
during widowhood or widowerhood with two years' compensation in one sum,
upon remarriage; and where the death occurred prior to July first, nine-
teen hundred forty-eight, to such wife (or dependent husband) thirty per
centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS, during widowhood (or dependent widowerhood) with two years'
compensation in one sum, upon remarriage.
1-c. If there be a surviving spouse and no child of the deceased under
the age of eighteen years or under the age of twenty-three years if
enrolled and attending as a full time student in an accredited educa-
tional institution and such enrollment and full time attendance is
certified by such institution and no child of any age dependent blind or
physically disabled, and the death occurs on or after January first,
nineteen hundred seventy-eight, to such spouse sixty-six and two-thirds
per centum of the average wages of the deceased, TOGETHER WITH APPLICA-
BLE COST-OF-LIVING ADJUSTMENTS, during widowhood or widowerhood with two
years' compensation, in one sum, upon remarriage. Where the death
occurs on or after January first, nineteen hundred seventy-eight, and
the spouse is receiving the survivors insurance benefits under the
social security act, the death benefit payable under this section shall
be reduced in accordance with the provisions of table No. [1] I below by
five per centum of the spouse's share of the survivor's insurance bene-
fits under the social security act for each ten dollars of deceased's
average weekly wage in excess of one hundred dollars provided that in no
case shall such reduction exceed fifty per centum of said spouse's share
of the survivors insurance benefits under the social security act.
COST-OF-LIVING ADJUSTMENTS SHALL NOT BE INCLUDED IN THE CALCULATION OF
A. 5000 3
THE DECEASED'S AVERAGE WEEKLY WAGE FOR PURPOSES OF CALCULATION OF THE
OFFSET REDUCTION. NOTWITHSTANDING THE FOREGOING, COST-OF-LIVING ADJUST-
MENTS SHALL NOT APPLY TO A COMPENSATION AWARD WHEN THE SURVIVING SPOUSE
ELECTS TO RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT TO SECTION
THIRTY-TWO OF THIS ARTICLE.
TABLE No. I
Offset provisions applicable in death benefits
where there is a sole surviving spouse
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $100 up to and including $110 ................................... 5
over $110 up to and including $120 .................................. 10
over $120 up to and including $130 .................................. 15
over $130 up to and including $140 .................................. 20
over $140 up to and including $150 .................................. 25
over $150 up to and including $160 .................................. 30
over $160 up to and including $170 .................................. 35
over $170 up to and including $180 .................................. 40
over $180 up to and including $190 .................................. 45
over $190 up to and including $200 .................................. 50
over $200 ........................................................... 50
1-d. If there be a surviving spouse of an employee of a private volun-
tary hospital killed in a World Trade Center rescue, who passed a phys-
ical examination upon employment as a rescue worker that failed to
reveal evidence of a condition that was the proximate cause of death,
and no child of the deceased under the age of eighteen years, or under
the age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, and no child of
any age dependent blind or physically disabled, to such spouse seventy-
five per centum of the average wages of the deceased, TOGETHER WITH
APPLICABLE COST-OF-LIVING ADJUSTMENTS, during widowhood or widowerhood,
with two years' compensation, in one sum, upon remarriage. Where such
death occurs, and the spouse is receiving the survivors insurance bene-
fits under the social security act, the death benefit payable under this
section shall be reduced in accordance with the provisions of table No.
I in subdivision one-c of this section by five per centum of the
spouse's share of the survivor's insurance benefits under the social
security act for each ten dollars of deceased's average weekly wage in
excess of one hundred dollars; provided that in no case shall such
reduction exceed fifty per centum of such spouse's share of the survi-
vors insurance benefits under the social security act. COST-OF-LIVING
ADJUSTMENTS SHALL NOT BE INCLUDED IN THE CALCULATION OF THE DECEASED'S
AVERAGE WEEKLY WAGE FOR PURPOSES OF CALCULATION OF THE OFFSET REDUCTION.
NOTWITHSTANDING THE FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL NOT
APPLY TO A COMPENSATION AWARD WHEN THE SURVIVING SPOUSE ELECTS TO
RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT TO SECTION THIRTY-TWO OF THIS
ARTICLE.
2. If there be a surviving spouse and a surviving child or children of
the deceased under the age of eighteen years or a surviving child or
children of any age dependent blind or physically disabled, and the
death occurs on or after July first, nineteen hundred forty-eight, and
A. 5000 4
prior to January first, nineteen hundred seventy-eight, to such spouse
thirty per centum of the average wages of the deceased, TOGETHER WITH
APPLICABLE COST-OF-LIVING ADJUSTMENTS, during widowhood or widowerhood
with two years' compensation in one sum, upon remarriage; and the addi-
tional amount of twenty per centum of such wages, TOGETHER WITH APPLICA-
BLE COST-OF-LIVING ADJUSTMENTS, for each such child until the age of
eighteen years or until the removal of the dependency of the blind or
physically disabled child or children; in case of the subsequent death
or remarriage of such surviving spouse any surviving child of the
deceased employee, at the time under eighteen years of age or dependent
through mental or physical infirmity, shall have his compensation
increased to thirty per centum of such wages, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS, and the same shall be payable until he shall
reach the age of eighteen years or until such dependent blind or phys-
ically disabled condition shall have been removed; provided that the
total amount payable shall in no case exceed sixty-six and two-thirds
per centum of such wages. COST-OF-LIVING ADJUSTMENTS SHALL NOT BE
INCLUDED IN THE CALCULATION OF THE DECEASED'S AVERAGE WEEKLY WAGE FOR
PURPOSES OF CALCULATION OF THE MAXIMUM AMOUNT PAYABLE. Upon statutory
termination of compensation payments to all such children, the compen-
sation of the surviving spouse shall be increased to forty per centum of
such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, with
two years' compensation, at such rate, in one sum, upon remarriage.
If there be a surviving wife (or dependent husband) and any of the
aforementioned surviving children, and the death occurred prior to July
first, nineteen hundred forty-eight, to such wife (or dependent husband)
thirty per centum of the average wages of the deceased, TOGETHER WITH
APPLICABLE COST-OF-LIVING ADJUSTMENTS, during widowhood (or dependent
widowerhood) with two years' compensation in one sum, upon remarriage;
and the additional amount of ten per centum of such wages, TOGETHER WITH
APPLICABLE COST-OF-LIVING ADJUSTMENTS, for each such child until eigh-
teen years of age or until the removal of the dependency of the blind or
physically disabled child or children; in case of the subsequent death
or remarriage of such surviving wife (or dependent husband) any surviv-
ing child of the deceased shall have his compensation increased to
fifteen per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIV-
ING ADJUSTMENTS, until he shall reach the age of eighteen years or until
such dependent blind or physically disabled condition shall have been
removed; provided that the total amount payable shall in no case exceed
sixty-six and two-thirds per centum of such wages. COST-OF-LIVING
ADJUSTMENTS SHALL NOT BE INCLUDED IN THE CALCULATION OF THE DECEASED'S
AVERAGE WEEKLY WAGE FOR PURPOSES OF CALCULATION OF THE MAXIMUM AMOUNT
PAYABLE. NOTWITHSTANDING THE FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL
NOT APPLY TO A COMPENSATION AWARD WHEN THE SURVIVING SPOUSE ELECTS TO
RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT TO SECTION THIRTY-TWO OF THIS
ARTICLE.
The board may in its discretion require the appointment of a guardian
for the purpose of receiving the compensation of a minor child or a
dependent blind or physically disabled child. In the absence of such a
requirement by the board the appointment of a guardian for such purposes
shall not be necessary.
2-a. If there be a surviving spouse and a surviving child under the
age of eighteen years or under the age of twenty-three years if enrolled
and attending as a full time student in an accredited educational insti-
tution and such enrollment and full time attendance is certified by such
institution or a surviving child of any age dependent blind or phys-
A. 5000 5
ically disabled and the death occurs on or after January first, nineteen
hundred seventy-eight, to such spouse thirty-six and two-thirds per
centum of the average wages of the deceased, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS, during widowhood or widowerhood with two
years' compensation in one sum, upon remarriage; and thirty per centum
of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, to
such child under the age of eighteen years or under the age of twenty-
three years if enrolled and attending as a full time student in an
accredited educational institution and such enrollment and full time
attendance is certified by such institution or a surviving child of any
age dependent blind or physically disabled; in the case of the subse-
quent death of such surviving spouse the surviving child shall have his
compensation increased to sixty-six and two-thirds per centum of such
wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, and the same
shall be payable so long as he is under the age of eighteen years or
under the age of twenty-three years if enrolled and attending as a full
time student in an accredited educational institution and such enroll-
ment and full time attendance is certified by such institution or a
surviving child of any age dependent blind or physically disabled; upon
statutory termination of compensation payable to such child, the compen-
sation of the surviving spouse shall be increased to sixty-six and two-
thirds per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING
ADJUSTMENTS, with two years' compensation, at such rate, in one sum,
upon remarriage. Upon remarriage of such surviving spouse, the surviving
child shall continue to receive thirty per centum of such wages, TOGETH-
ER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS. Where the death occurs on
or after January first, nineteen hundred seventy-eight and the spouse is
receiving survivors insurance benefits under the social security act,
the death benefit payable under this section shall be reduced by five
per centum of the spouse's share of the survivors insurance benefits
under the social security act for each ten dollars of deceased's average
weekly wage in excess of one hundred dollars provided that in no case
shall such reduction exceed fifty per centum of said spouse's share of
the survivors insurance benefits under the social security act as set
forth in table No. I below. COST-OF-LIVING ADJUSTMENTS SHALL NOT BE
INCLUDED IN THE CALCULATION OF THE DECEASED'S AVERAGE WEEKLY WAGE FOR
PURPOSES OF CALCULATION OF THE OFFSET REDUCTION. NOTWITHSTANDING THE
FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL NOT APPLY TO A COMPENSATION
AWARD WHEN THE SURVIVING SPOUSE ELECTS TO RECEIVE SUCH AWARD IN A LUMP
SUM PURSUANT TO SECTION THIRTY-TWO OF THIS ARTICLE.
TABLE No. I
Offset provisions applicable in death benefits
where there is a surviving spouse and one child
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $100 up to and including $110 ................................... 5
over $110 up to and including $120 .................................. 10
over $120 up to and including $130 .................................. 15
over $130 up to and including $140 .................................. 20
over $140 up to and including $150 .................................. 25
over $150 up to and including $160 .................................. 30
over $160 up to and including $170 .................................. 35
A. 5000 6
over $170 up to and including $180 .................................. 40
over $180 up to and including $190 .................................. 45
over $190 up to and including $200 .................................. 50
over $200 ........................................................... 50
If there be a surviving spouse and two or more surviving children
under the age of eighteen years or under the age of twenty-three years
if enrolled and attending as a full time student in an accredited educa-
tional institution and such enrollment and full time attendance is
certified by such institution or a surviving child or children of any
age dependent blind or physically disabled and a death occurs on or
after January first, nineteen hundred seventy-eight, to such spouse
thirty-six and two-thirds per centum of the average wage of the
deceased, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, during
widowhood or widowerhood with two years' compensation in one sum upon
remarriage; and thirty per centum of such wages, TOGETHER WITH APPLICA-
BLE COST-OF-LIVING ADJUSTMENTS, to such children under the age of eigh-
teen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational institu-
tion and such enrollment and full time attendance is certified by such
institution or a surviving child or children of any age dependent blind
or physically disabled, share and share alike; in case of the subsequent
death of such surviving spouse the surviving children shall have their
compensation increased to sixty-six and two-thirds per centum of such
wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, and the
aggregate sum shall be payable, share and share alike, so long as they
are under the age of eighteen years or under the age of twenty-three
years if enrolled and attending as a full time student in an accredited
educational institution and such enrollment and full time attendance is
certified by such institution or a surviving child or children of any
age dependent blind or physically disabled. Upon remarriage of such
surviving spouse, if there be two surviving children each shall receive
twenty-five per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-
LIVING ADJUSTMENTS, and if there are surviving more than two children
under the age of eighteen years or under the age of twenty-three if
enrolled and attending as a full time student in an accredited educa-
tional institution and such enrollment and full time attendance is
certified by such institution or a surviving child or children of any
age dependent blind or physically disabled sixty-six and two-thirds per
centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS, share and share alike. Upon statutory termination of compensation
payable to such children, the compensation of the surviving spouse shall
be increased to sixty-six and two-thirds per centum of such wages,
TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, with two years'
compensation, at such rate, in one sum, upon remarriage. Where the death
occurs on or after January first, nineteen hundred seventy-eight, and
the spouse is receiving survivors insurance benefits under the social
security act, the death benefits payable under this section shall be
reduced by five per centum of the spouse's share of the survivors insur-
ance benefits under the social security act for each ten dollars of
deceased's average weekly wage in excess of one hundred fifty dollars
provided that in no case shall such reduction exceed fifty per centum of
said spouse's share of the survivors insurance benefits under the social
security act as set forth in table No. II below. COST-OF-LIVING ADJUST-
MENTS SHALL NOT BE INCLUDED IN THE CALCULATION OF THE DECEASED'S AVERAGE
WEEKLY WAGE FOR PURPOSES OF CALCULATION OF THE OFFSET REDUCTION.
NOTWITHSTANDING THE FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL NOT
A. 5000 7
APPLY TO A COMPENSATION AWARD WHEN THE SURVIVING SPOUSE ELECTS TO
RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT TO SECTION THIRTY-TWO OF THIS
ARTICLE.
TABLE No. II
Offset provisions applicable in death benefits
where there is a surviving spouse and two or more children
AVERAGE WEEKLY WAGE PERCENTAGE OF SPOUSE'S
SHARE OF SURVIVORS
INSURANCE BENEFITS
over $150 up to and including $160 ................................... 5
over $160 up to and including $170 .................................. 10
over $170 up to and including $180 .................................. 15
over $180 up to and including $190 .................................. 20
over $190 up to and including $200 .................................. 25
over $200 up to and including $210 .................................. 30
over $210 up to and including $220 .................................. 35
over $220 up to and including $230 .................................. 40
over $230 up to and including $240 .................................. 45
over $240 up to and including $250 .................................. 50
over $250 ........................................................... 50
2-b. If there be a surviving spouse of an employee of a private volun-
tary hospital killed in a World Trade Center rescue, who passed a phys-
ical examination upon employment as a rescue worker that failed to
reveal evidence of a condition that was the proximate cause of death,
and a surviving child under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and full-
time attendance is certified by such institution, or a surviving child
of any age dependent blind or physically disabled, to such spouse forty
per centum of the average wages, TOGETHER WITH APPLICABLE COST-OF-LIVING
ADJUSTMENTS, of the deceased during widowhood or widowerhood, with two
years' compensation in one sum, upon remarriage; and thirty-five per
centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS, to such child under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and full-
time attendance is certified by such institution, or a surviving child
of any age dependent blind or physically disabled; in the case of the
subsequent death of such surviving spouse the surviving child shall have
his or her compensation increased to seventy-five per centum of such
wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, and the same
shall be payable so long as he or she is under the age of eighteen
years, or under the age of twenty-three years if enrolled and attending
as a full-time student in an accredited educational institution and such
enrollment and full-time attendance is certified by such institution, or
a surviving child of any age dependent blind or physically disabled;
upon statutory termination of compensation payable to such child, the
compensation of the surviving spouse shall be increased to seventy-five
per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING
ADJUSTMENTS, with two years' compensation, at such rate, in one sum,
upon remarriage. Upon remarriage of such surviving spouse, the surviving
child shall continue to receive thirty-five per centum of such wages,
TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS. Where such death
A. 5000 8
occurs, and the spouse is receiving survivors insurance benefits under
the social security act, the death benefit payable under this section
shall be reduced by five per centum of the spouse's share of the survi-
vors insurance benefits under the social security act for each ten
dollars of deceased's average weekly wage in excess of one hundred
dollars; provided that in no case shall such reduction exceed fifty per
centum of such spouse's share of the survivors insurance benefits under
the social security act as set forth in table No. I in subdivision one-c
of this section. COST-OF-LIVING ADJUSTMENTS SHALL NOT BE INCLUDED IN
THE CALCULATION OF THE DECEASED'S AVERAGE WEEKLY WAGE FOR PURPOSES OF
CALCULATION OF THE OFFSET REDUCTION. NOTWITHSTANDING THE FOREGOING,
COST-OF-LIVING ADJUSTMENTS SHALL NOT APPLY TO A COMPENSATION AWARD WHEN
THE SURVIVING SPOUSE ELECTS TO RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT
TO SECTION THIRTY-TWO OF THIS ARTICLE. If there be a surviving spouse of
an employee of a private voluntary hospital killed in a World Trade
Center rescue, who passed a physical examination upon employment as a
rescue worker that failed to reveal evidence of a condition that was the
proximate cause of death, and two or more surviving children under the
age of eighteen years, or under the age of twenty-three years if
enrolled and attending as a full-time student in an accredited educa-
tional institution and such enrollment and full-time attendance is
certified by such institution, or a surviving child or children of any
age dependent blind or physically disabled and a death occurs on or
after September eleventh, two thousand one, to such spouse forty per
centum of the average wage of the deceased, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS, during widowhood or widowerhood with two
years' compensation in one sum upon remarriage; and thirty-five per
centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS, to such children under the age of eighteen years, or under the
age of twenty-three years if enrolled and attending as a full-time
student in an accredited educational institution and such enrollment and
full-time attendance is certified by such institution, or a surviving
child or children of any age dependent blind or physically disabled,
share and share alike; in case of the subsequent death of such surviving
spouse the surviving children shall have their compensation increased to
seventy-five per centum of such wages, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS, and the aggregate sum shall be payable,
share and share alike, so long as they are under the age of eighteen
years, or under the age of twenty-three years if enrolled and attending
as a full-time student in an accredited educational institution and such
enrollment and full-time attendance is certified by such institution, or
a surviving child or children of any age dependent blind or physically
disabled. Upon remarriage of such surviving spouse, if there be two
surviving children each shall receive thirty-seven and one-half per
centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS, and if there are surviving more than two children under the age
of eighteen years, or under the age of twenty-three if enrolled and
attending as a full-time student in an accredited educational institu-
tion and such enrollment and full-time attendance is certified by such
institution, or a surviving child or children of any age dependant blind
or physically disabled, seventy-five per centum of such wages, TOGETHER
WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, share and share alike. Upon
statutory termination of compensation payable to such children, the
compensation of the surviving spouse shall be increased to seventy-five
per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING
ADJUSTMENTS, with two years' compensation, at such rate, in one sum,
A. 5000 9
upon remarriage. Where the death occurs on or after September eleventh,
two thousand one, and the spouse is receiving survivors insurance bene-
fits under the social security act, the death benefits payable under
this section shall be reduced by five per centum of the spouse's share
of the survivors insurance benefits under the social security act for
each ten dollars of deceased's average weekly wage in excess of one
hundred fifty dollars; provided that in no case shall such reduction
exceed fifty per centum of said spouse's share of the survivors insur-
ance benefits under the social security act as set forth in table No. II
in subdivision two-a of this section. COST-OF-LIVING ADJUSTMENTS SHALL
NOT BE INCLUDED IN THE CALCULATION OF THE DECEASED'S AVERAGE WEEKLY WAGE
FOR PURPOSES OF CALCULATION OF THE OFFSET REDUCTION. NOTWITHSTANDING THE
FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL NOT APPLY TO A COMPENSATION
AWARD WHEN THE SURVIVING SPOUSE ELECTS TO RECEIVE SUCH AWARD IN A LUMP
SUM PURSUANT TO SECTION THIRTY-TWO OF THIS ARTICLE.
3. If there be a surviving child or children of the deceased under the
age of eighteen years or a dependent blind or physically disabled child
or children of any age, but no surviving spouse then where the death
occurs on or after July first, nineteen hundred forty-eight, and prior
to January first, nineteen hundred seventy-eight, for the support of
each such child until the age of eighteen years, or until the removal of
the dependency of such blind or physically disabled child or children,
thirty per centum of the wages of the deceased, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS, and where the death occurred prior to July
first, nineteen hundred forty-eight, for the support of each such child
until the age of eighteen years, or until the removal of the dependency
of such blind or physically disabled child or children, fifteen per
centum of the wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS, of the deceased; provided that the aggregate shall in no case
exceed sixty-six and two-thirds per centum of such wages. COST-OF-LIV-
ING ADJUSTMENTS SHALL NOT BE INCLUDED IN THE CALCULATION OF THE
DECEASED'S AVERAGE WEEKLY WAGE FOR PURPOSES OF CALCULATION OF THE MAXI-
MUM AMOUNT PAYABLE. NOTWITHSTANDING THE FOREGOING, COST-OF-LIVING
ADJUSTMENTS SHALL NOT APPLY TO A COMPENSATION AWARD WHEN THE SURVIVING
SPOUSE ELECTS TO RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT TO SECTION
THIRTY-TWO OF THIS ARTICLE.
3-a. If there be a surviving child or children of the deceased under
the age of eighteen years or under the age of twenty-three years if
enrolled and attending as a full time student in an accredited educa-
tional institution and such enrollment and full time attendance is
certified by such institution or a dependent blind or physically disa-
bled child or children of any age, but no surviving spouse then where
the death occurs on or after January first, nineteen hundred seventy-
eight, for the support of such child or children until the age of eigh-
teen years, or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational institu-
tion and such enrollment and full time attendance is certified by such
institution or until the removal of the dependency of such blind or
physically disabled child or children, sixty-six and two-thirds per
centum of the wages of the deceased, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS. Where there are two or more children, the
compensation payable shall be divided among such children share and
share alike.
3-b. If there be a surviving child or children, of an employee of a
private voluntary hospital killed in a World Trade Center rescue, who
passed a physical examination upon employment as a rescue worker that
A. 5000 10
failed to reveal evidence of a condition that was the proximate cause of
death, under the age of eighteen years, or under the age of twenty-three
years if enrolled and attending as a full-time student in an accredited
educational institution and such enrollment and full-time attendance is
certified by such institution, or a dependent blind or physically disa-
bled child, or children of any age, but no surviving spouse then, where
such death occurs, for the support of each such child until the age of
eighteen years, or under the age of twenty-three years if enrolled and
attending as a full-time student in an accredited educational institu-
tion and such enrollment and full-time attendance is certified by such
institution or until the removal of the dependency of such blind or
physically disabled child or children, seventy-five per centum of the
wages of the deceased, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUST-
MENTS. Where there are two or more children, the compensation payable
shall be divided among such children share and share alike.
4. If there be no surviving spouse or child under the age of eighteen
years, or dependent blind or physically disabled child of any age, or if
the amount payable to surviving spouse and to children under the age of
eighteen years or such dependent blind or physically disabled children
shall be less in the aggregate than sixty-six and two-thirds per centum
of the average wages of the deceased EXCLUSIVE OF APPLICABLE
COST-OF-LIVING ADJUSTMENTS, then where the death occurs on or after July
first, nineteen hundred forty-eight, and prior to January first, nine-
teen hundred seventy-eight, for the support of grandchildren or brothers
and sisters under the age of eighteen years, if dependent upon the
deceased at the time of the accident, twenty-five per centum of such
wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, for the
support of each such person until the age of eighteen years; and for the
support of each parent, or grandparent, of the deceased if dependent
upon him at the time of the accident, forty per centum of such wages
during such dependency; and where the death occurred prior to July
first, nineteen hundred forty-eight, to such dependent grandchildren or
brothers and sisters, fifteen per centum of such wages until eighteen
years of age, and to such dependent parent or grandparent, twenty-five
per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING
ADJUSTMENTS, during dependency. But in no case shall the aggregate
amount payable under this subdivision exceed the difference between
sixty-six and two-thirds per centum of such wages, and the amount paya-
ble as hereinbefore provided to surviving spouse or for the support of
surviving child or children. COST-OF-LIVING ADJUSTMENTS SHALL NOT BE
INCLUDED IN THE CALCULATION OF THE DECEASED'S AVERAGE WEEKLY WAGE FOR
PURPOSES OF CALCULATION OF THE MAXIMUM AMOUNT PAYABLE. NOTWITHSTANDING
THE FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL NOT APPLY TO A COMPEN-
SATION AWARD WHEN THE SURVIVING SPOUSE ELECTS TO RECEIVE SUCH AWARD IN A
LUMP SUM PURSUANT TO SECTION THIRTY-TWO OF THIS ARTICLE.
4-a. If there be no surviving spouse or child under the age of eigh-
teen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational institu-
tion and such enrollment and full time attendance is certified by such
institution or dependent blind or physically disabled child of any age,
then where the death occurs on or after January first, nineteen hundred
seventy-eight, for the support of grandchildren or brothers and sisters
if dependent upon the deceased at the time of the accident, under the
age of eighteen years, or under the age of twenty-three years if
enrolled and attending as a full time student in an accredited educa-
tional institution and such enrollment and full time attendance is
A. 5000 11
certified by such institution, or blind or physically disabled grand-
children or brothers and sisters of any age, twenty-five per centum of
such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, for the
support of each such person until the age of eighteen years; or until
the age of twenty-three years if enrolled and attending as a full time
student in an accredited educational institution or until the removal of
the dependency of such blind or physically disabled grandchildren or
brothers and sisters, and such enrollment and full time attendance is
certified by such institution and for the support of each parent, or
grandparent, of the deceased if dependent upon him or her at the time of
the accident, forty per centum of such wages, TOGETHER WITH APPLICABLE
COST-OF-LIVING ADJUSTMENTS, during such dependency. But in no case shall
the aggregate amount payable under this subdivision exceed sixty-six and
two-thirds per centum of such wages. COST-OF-LIVING ADJUSTMENTS SHALL
NOT BE INCLUDED IN THE CALCULATION OF THE DECEASED'S AVERAGE WEEKLY WAGE
FOR PURPOSES OF CALCULATION OF THE MAXIMUM AMOUNT PAYABLE. NOTWITHSTAND-
ING THE FOREGOING, COST-OF-LIVING ADJUSTMENTS SHALL NOT APPLY TO A
COMPENSATION AWARD WHEN THE SURVIVING SPOUSE ELECTS TO RECEIVE SUCH
AWARD IN A LUMP SUM PURSUANT TO SECTION THIRTY-TWO OF THIS ARTICLE.
4-b. If there be no surviving spouse or child under the age of eigh-
teen years or under the age of twenty-three years if enrolled and
attending as a full time student in an accredited educational institu-
tion and such enrollment and full time attendance is certified by such
institution or dependent blind or physically disabled child of any age
or grandchildren or brothers and sisters if dependent upon the deceased
at the time of the accident, under the age of eighteen years, or under
the age of twenty-three years if enrolled and attending as a full time
student in an accredited educational institution and such enrollment and
full time attendance is certified by such institution or disabled blind
or physically disabled grandchildren or brothers and sisters of any age,
then a sum of fifty thousand dollars shall be paid to the deceased's
surviving parents or if there be no surviving parents to the deceased's
estate.
4-c. If there be no surviving spouse or child, or children of an
employee of a private voluntary hospital killed in a World Trade Center
rescue, who passed a physical examination upon employment as a rescue
worker that failed to reveal evidence of a condition that was the proxi-
mate cause of death, under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and full-
time attendance is certified by such institution, or dependent blind or
physically disabled child of any age, then where the death occurs on or
after September eleventh, two thousand one, for the support of grand-
children or brothers and sisters if dependent upon the deceased at the
time of the accident, under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and full-
time attendance is certified by such institution, or blind or physically
disabled grandchildren or brothers and sisters of any age, twenty-five
per centum of such wages, TOGETHER WITH APPLICABLE COST-OF-LIVING
ADJUSTMENTS, for the support of each such person until the age of eigh-
teen years; or until the age of twenty-three years if enrolled and
attending as a full-time student in an accredited educational institu-
tion, or until the removal of the dependency of such blind or physically
disabled grandchildren or brothers and sisters, and such enrollment and
full-time attendance is certified by such institution and for the
A. 5000 12
support of each parent, or grandparent, of the deceased if dependent
upon him or her at the time of the accident, forty per centum of such
wages, TOGETHER WITH APPLICABLE COST-OF-LIVING ADJUSTMENTS, during such
dependency. But in no case shall the aggregate amount payable under this
subdivision exceed seventy-five per centum of such wages. COST-OF-LIV-
ING ADJUSTMENTS SHALL NOT BE INCLUDED IN THE CALCULATION OF THE
DECEASED'S AVERAGE WEEKLY WAGE FOR PURPOSES OF CALCULATION OF THE MAXI-
MUM AMOUNT PAYABLE. NOTWITHSTANDING THE FOREGOING, COST-OF-LIVING
ADJUSTMENTS SHALL NOT APPLY TO A COMPENSATION AWARD WHEN THE SURVIVING
SPOUSE ELECTS TO RECEIVE SUCH AWARD IN A LUMP SUM PURSUANT TO SECTION
THIRTY-TWO OF THIS ARTICLE.
4-d. If there be no surviving spouse or child, or children of an
employee of a private voluntary hospital killed in a World Trade Center
rescue, who passed a physical examination upon employment as a rescue
worker that failed to reveal evidence of a condition that was the proxi-
mate cause of death, under the age of eighteen years, or under the age
of twenty-three years if enrolled and attending as a full-time student
in an accredited educational institution and such enrollment and full-
time attendance is certified by such institution, or dependent blind or
physically disabled child of any age, or grandchildren or brothers and
sisters if dependent upon the deceased at the time of the accident,
under the age of eighteen years, or under the age of twenty-three years
if enrolled and attending as a full-time student in an accredited educa-
tional institution and such enrollment and full-time attendance is
certified by such institution, or disabled blind or physically disabled
grandchildren or brothers and sisters of any age, then a sum of fifty
thousand dollars shall be paid to the deceased's surviving parents or if
there be no surviving parents to the deceased's estate.
5. Any excess of wages over: (1) seven hundred fifty dollars shall not
be taken into account in computing compensation under this section in
cases where the death occurs on or after July first, two thousand seven,
(2) eight hundred twenty-five dollars shall not be taken into account in
computing compensation under this section in cases where the death
occurs on or after July first, two thousand eight, (3) nine hundred
dollars shall not be taken into account in computing compensation under
this section in cases where the death occurs on or after July first, two
thousand nine, and (4) where the death occurs on or after July first,
two thousand ten, or when the death occurs on or after July first of
each succeeding year, an amount equal to the New York state average
weekly wage for the year in which it is reported shall not be taken into
account in computing compensation under this section. Any excess of
wages over five hundred ten dollars and five cents per week shall not be
taken into account in computing compensation under this section in cases
where the death occurs on or after July first, nineteen hundred ninety,
nor shall any excess of wages over five hundred twenty-five dollars per
week be taken into account in computing compensation pursuant to this
section in cases where death occurs on or after July first, nineteen
hundred ninety-one, nor shall any excess of wages over six hundred
dollars per week be taken into account in computing compensation pursu-
ant to this section in cases where death occurs on or after July first,
nineteen hundred ninety-two with the exception that wages earned over
six hundred dollars per week shall be taken into account in computing
compensation under this section in cases involving an employee of a
private voluntary hospital resulting from a World Trade Center rescue,
who passed a physical examination upon employment as a rescue worker
that failed to reveal evidence of a condition that was the proximate
A. 5000 13
cause of death; nor shall any excess of wages over three hundred eight-
y-two dollars and fifty cents per week be taken into account in comput-
ing compensation under this section in cases where the death occurs on
or after July first, nineteen hundred eighty-three, nor shall any excess
of wages over four hundred twelve dollars and fifty cents per week be
taken into account in computing compensation under this section in cases
where the death occurs on or after July first, nineteen hundred eighty-
four, nor shall any excess of wages over four hundred fifty dollars per
week be taken into account in computing compensation under this section
in cases where the death occurs on or after July first, nineteen hundred
eighty-five; nor shall any excess of wages over one hundred eighty-seven
dollars and fifty cents per week on or after January first, nineteen
hundred seventy-eight or over two hundred seventy dollars per week on or
after July first, nineteen hundred seventy-eight or over three hundred
twenty-two dollars and fifty cents per week on or after January first,
nineteen hundred seventy-nine, and prior to July first, nineteen hundred
eighty-three, be taken into account in computing compensation under this
section nor shall any excess of wages over six hundred and seventeen
dollars and fifty cents a month be taken into account in computing
compensation under this section in cases where the death occurred on or
after July first, nineteen hundred seventy-four, and prior to January
first, nineteen hundred seventy-eight, nor shall any excess of wages
over five hundred and twenty dollars a month be taken into account in
computing compensation in cases where death occurred on or after July
first, nineteen hundred seventy and prior to July first, nineteen
hundred seventy-four, nor shall any excess of wages over four hundred
and fifty-five dollars a month be taken into account in computing
compensation in cases where death occurred on or after July first, nine-
teen hundred sixty-eight and prior to July first, nineteen hundred
seventy, nor shall any excess of wages over three hundred and ninety
dollars a month be taken into account in computing compensation in cases
where death occurred on or after July first, nineteen hundred sixty-five
and prior to July first, nineteen hundred sixty-eight, nor shall any
excess of wages over three hundred and fifty-seven dollars and fifty
cents a month be taken into account in computing compensation in cases
where death occurred on or after July first, nineteen hundred sixty-two
and prior to July first, nineteen hundred sixty-five, nor shall any
excess of wages over three hundred and twenty-five dollars a month be
taken into account in computing compensation in cases where death
occurred on or after July first, nineteen hundred sixty and prior to
July first, nineteen hundred sixty-two, nor shall any excess of wages
over two hundred and ninety-two dollars and fifty cents a month be taken
into account in computing compensation where death occurred on or after
July first, nineteen hundred fifty-eight and prior to July first, nine-
teen hundred sixty, nor shall any excess of wages over two hundred and
sixty dollars a month be taken into account in computing compensation
where death occurred on or after July first, nineteen hundred fifty-four
and prior to July first, nineteen hundred fifty-eight, nor shall any
excess of wages over two hundred and twenty-seven dollars and fifty
cents a month be taken into account in computing compensation where
death occurred on or after July first, nineteen hundred forty-eight and
prior to July first, nineteen hundred fifty-four, nor shall any excess
of wages over one hundred and eighty-two dollars a month be taken into
account in computing compensation where the death occurred on or after
June first, nineteen hundred forty-six and prior to July first, nineteen
hundred forty-eight. When death occurred on or after July first, nine-
A. 5000 14
teen hundred forty-eight and prior to January first, nineteen hundred
seventy-eight, computing compensation to the widow or widower and chil-
dren of a deceased employee in no event shall wages be deemed to be less
than one hundred and thirty dollars a month. All questions of dependency
shall be determined as of the time of the accident. When death occurred
on or after January first, nineteen hundred seventy-eight, in no event
shall wages be deemed to be less than forty-five dollars a week in
computing compensation to the widow or widower and/or children of the
deceased employee.
6. If there be a person entitled to death benefits under the
provisions of this section, who shall be under the age of eighteen
years, and who shall be an inmate of any institution and a public charge
upon the department of social services of the city of New York, or any
other department or body, the benefits allowed hereunder WITH REGARD TO
SUCH PERSON shall be payable to the said department of public welfare of
the city of New York or any other department or body to the extent of
the reasonable charges for the care and maintenance, during the contin-
uance as a public charge in said institution, of said beneficiary and
until the said person shall have attained the age of eighteen years. Any
sum or sums remaining after the said payment out of the benefits shall
be distributed as provided by the other subdivisions of this section.
7. In computing the offsets under subdivisions one-c and two-a of this
section any increase in survivors insurance benefits under social secu-
rity that occurs after the date of death shall not be considered, and
any such offset shall be equally applicable to the survivors insurance
benefits under the social security act which are received retroactively
but such offset shall not apply to increases of such benefits received
retroactively.
8. COST-OF-LIVING ADJUSTMENTS OF DEATH BENEFITS. A. NOTWITHSTANDING
ANY OTHER PROVISION OF LAW, IN ADDITION TO ANY OTHER AMOUNT RECEIVED
PURSUANT TO THIS ARTICLE AS DEATH BENEFITS, A DEPENDENT OF A DECEASED
EMPLOYEE ENTITLED TO BENEFITS UNDER THIS SECTION SHALL BE ENTITLED TO AN
ADDITIONAL ALLOWANCE, TO BE KNOWN AS A COST-OF-LIVING ADJUSTMENT ALLOW-
ANCE, WHICH SHALL BE PAYABLE ANNUALLY.
B. THE COST-OF-LIVING ADJUSTMENT ALLOWANCE SHALL BE COMPUTED ANNUALLY
BY THE BOARD ON FEBRUARY FIRST AND SHALL BE BASED ON SIXTY-SEVEN PERCENT
OF THE INCREASE IN THE CONSUMER PRICE INDEX AS FOR THE PRECEDING CALEN-
DAR YEAR AS PROMULGATED BY THE UNITED STATES DEPARTMENT OF LABOR. IF THE
CONSUMER PRICE INDEX FOR THE PRECEDING YEAR IS LESS THAN TWO PERCENT, NO
COST-OF-LIVING ADJUSTMENT ALLOWANCE SHALL BE PAYABLE, PROVIDED THAT, IF
NO COST-OF-LIVING INCREASE IS PAYABLE IN A GIVEN YEAR BECAUSE THE
CONSUMER PRICE INDEX FOR THE PRECEDING YEAR WAS LESS THAN TWO PERCENT,
THE NEXT SUCCEEDING ANNUAL CALCULATION SHALL CONSIDER THE CHANGE IN THE
CONSUMER PRICE INDEX OVER THE PRECEDING TWO CALENDAR YEARS. NO INCREASE
SHALL EXCEED THE SUM OF TEN DOLLARS PER WEEK IN ANY YEAR. THE COST-OF-
LIVING ALLOWANCE THUS COMPUTED SHALL BE PAYABLE FOR THE TWELVE-MONTH
PERIOD BEGINNING THE FOLLOWING JULY FIRST.
C. THIS SUBDIVISION SHALL NOT BE DEEMED OR CONSTRUED TO DIMINISH THE
RIGHT OF ANY BENEFICIARY TO ANY BENEFITS TO WHICH SUCH BENEFICIARY WOULD
OTHERWISE BE ENTITLED PURSUANT TO LAW.
D. THE BOARD SHALL COMPUTE THE ALLOWANCES PROVIDED BY THIS SUBDIVI-
SION COMMENCING FEBRUARY FIRST, TWO THOUSAND SEVEN AND SHALL AWARD SUCH
ALLOWANCES IN ALL CLAIMS TO WHICH THIS SUBDIVISION APPLIES.
S 2. Subdivision 1, paragraph (a) of subdivision 6 and paragraph (c)
of subdivision 8 of section 15 of the workers' compensation law, subdi-
vision 1 as amended by chapter 675 of the laws of 1977, paragraph (a) of
A. 5000 15
subdivision 6 as amended by chapter 689 of the laws of 2007, paragraph
(c) of subdivision 8 as amended by chapter 635 of the laws of 1996, are
amended and a new subdivision 10 is added to read as follows:
1. Permanent total disability. In case of total disability adjudged to
be permanent sixty-six and two-thirds per centum of the average weekly
wages, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS, shall
be paid to the employee during the continuance of such total disability.
Loss of both hands, or both arms, or both feet, or both legs, or both
eyes, or of any two thereof shall, in the absence of conclusive proof to
the contrary, constitute permanent total disability. In all other cases
permanent total disability shall be determined in accordance with the
facts. Notwithstanding any other provision of this chapter, an injured
employee disabled due to the loss or total loss of use of both eyes, or
both hands, or both arms, or both feet, or both legs, or of any two
thereof shall not suffer any diminution of his compensation by engaging
in business or employment provided his earnings or wages, when combined
with his compensation, shall not be in excess of the wage base, TOGETHER
WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS, on which the maximum
weekly compensation benefit is computed under the law in effect at time
of such earning; further provided, that if the combination exceeds such
wage base, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS,
the compensation shall be diminished to an amount which, together with
his earnings or wages, shall equal the wage base, TOGETHER WITH APPLICA-
BLE WEEKLY COST-OF-LIVING ADJUSTMENTS; and further provided that the
application of this subdivision shall not result in reduction of compen-
sation which an injured employee who is disabled due to the loss or
total loss of use of both eyes, or both hands, or both arms, or both
feet, or both legs or of any two thereof, would otherwise be entitled to
under any other provision of this section.
(a) Compensation for permanent or temporary total disability due to an
accident or disablement resulting from an occupational disease that
occurs, (1) on or after January first, nineteen hundred seventy-eight,
shall not exceed one hundred twenty-five dollars per week, TOGETHER WITH
APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS FOR PERMANENT TOTAL DISA-
BILITIES, that occurs (2) on or after July first, nineteen hundred
seventy-eight, shall not exceed one hundred eighty dollars per week,
TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS FOR PERMANENT
TOTAL DISABILITIES, that occurs (3) on or after January first, nineteen
hundred seventy-nine, shall not exceed two hundred fifteen dollars per
week, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS FOR
PERMANENT TOTAL DISABILITIES, that occurs (4) on or after July first,
nineteen hundred eighty-three, shall not exceed two hundred fifty-five
dollars per week, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUST-
MENTS FOR PERMANENT TOTAL DISABILITIES, that occurs (5) on or after July
first, nineteen hundred eighty-four, shall not exceed two hundred seven-
ty-five dollars per week, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING
ADJUSTMENTS FOR PERMANENT TOTAL DISABILITIES, that occurs (6) on or
after July first, nineteen hundred eighty-five, shall not exceed three
hundred dollars per week, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING
ADJUSTMENTS FOR PERMANENT TOTAL DISABILITIES, that occurs (7) on or
after July first, nineteen hundred ninety, shall not exceed three
hundred forty dollars per week, TOGETHER WITH APPLICABLE WEEKLY
COST-OF-LIVING ADJUSTMENTS FOR PERMANENT TOTAL DISABILITIES; and in the
case of temporary total disability shall not be less than thirty dollars
per week and in the case of permanent total disability shall not be less
than twenty dollars per week, TOGETHER WITH APPLICABLE WEEKLY
A. 5000 16
COST-OF-LIVING ADJUSTMENTS, except that if the employee's wages at the
time of injury are less than thirty or twenty dollars per week respec-
tively, he or she shall receive his or her full weekly wages. Compen-
sation for permanent or temporary partial disability due to an accident
or disablement resulting from an occupational disease that occurs (1) on
or after January first, nineteen hundred seventy-eight, shall not exceed
one hundred five dollars per week, that occurs (2) on or after July
first, nineteen hundred eighty-three, shall not exceed one hundred twen-
ty-five dollars per week, that occurs (3) on or after July first, nine-
teen hundred eighty-four, shall not exceed one hundred thirty-five
dollars per week, that occurs (4) on or after July first, nineteen
hundred eighty-five, shall not exceed one hundred fifty dollars per
week, that occurs (5) on or after July first, nineteen hundred ninety,
shall not exceed two hundred eighty dollars per week; nor be less than
twenty dollars per week; except that if the employee's wages at the time
of injury are less than twenty dollars per week, he or she shall receive
his or her full weekly wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages which the employee was receiving at the time the injury
occurred. Compensation for permanent or temporary partial disability, or
for permanent or temporary total disability due to an accident or disa-
blement resulting from an occupational disease that occurs (1) on or
after July first, nineteen hundred ninety-one and prior to July first,
nineteen hundred ninety-two, shall not exceed three hundred fifty
dollars per week; (2) on or after July first, nineteen hundred ninety-
two, shall not exceed four hundred dollars per week; nor be less than
forty dollars per week except that if the employee's wages at the time
of injury are less than forty dollars per week, the employee shall
receive his or her full wages. Compensation for permanent or temporary
partial disability, or for permanent or temporary total disability due
to an accident or disablement resulting from an occupational disease
that occurs (1) on or after July first, two thousand seven shall not
exceed five hundred dollars per week, (2) on or after July first, two
thousand eight shall not exceed five hundred fifty dollars per week, (3)
on or after July first, two thousand nine shall not exceed six hundred
dollars per week, and (4) on or after July first, two thousand ten, and
on or after July first of each succeeding year, shall not exceed two-
thirds of the New York state average weekly wage for the year in which
it is reported. Compensation for permanent or temporary partial disabil-
ity, or for permanent or temporary total disability due to an accident
or disablement resulting from an occupational disease that occurs on or
after July first, two thousand seven shall not be less than one hundred
dollars per week except that if the employee's wages at the time of
injury are less than one hundred dollars per week, the employee shall
receive his or her full wages. In no event shall compensation when
combined with decreased earnings or earning capacity exceed the amount
of wages the employee was receiving at the time the injury occurred.
Compensation for permanent or temporary partial disability, or for
permanent or temporary total disability due to an accident or disable-
ment resulting from an occupational disease or injury that occurred as a
result of World Trade Center rescue activity by an employee of a private
voluntary hospital, who passed a physical examination upon employment as
a rescue worker that failed to reveal evidence of a condition that was
the proximate cause of disablement or occupational disease or injury,
shall not exceed three-quarters of a claimant's wage on September elev-
enth, two thousand one. In no event shall compensation when combined
A. 5000 17
with decreased earnings or earning capacity exceed the amount of wages
the employee was receiving on September eleventh, two thousand one.
(c) Permanent total disability after permanent partial disability.
Notwithstanding the provisions of paragraph (d) of this subdivision, if
an employee who has previously incurred permanent partial disability
through the loss of one hand, one arm, one foot, one leg, or one eye,
incurs permanent total disability through the loss of another member or
organ, he/she shall be paid, in addition to the compensation for perma-
nent partial disability provided in this section and after the cessation
of the payments for the prescribed period of weeks special additional
compensation during the continuance of such total disability to the
amount of sixty-six and two-thirds per centum of the average weekly wage
earned by him/her at the time the total permanent disability was
incurred, TOGETHER WITH APPLICABLE WEEKLY COST-OF-LIVING ADJUSTMENTS.
If such employee shall establish an earning capacity by employment he OR
SHE shall be paid during the period of such employment, instead of the
additional compensation above provided, two-thirds of the difference
between his average weekly wages at the time the total disability was
incurred and his OR HER wage earning capacity as determined by his OR
HER actual earnings in such employment, TOGETHER WITH APPLICABLE WEEKLY
COST-OF-LIVING ADJUSTMENTS, subject to the limitations in subdivision
six of this section. Such additional compensation, and expense as in
this subdivision provided, shall be paid out of the special disability
fund and in the manner as hereinafter in this subdivision provided.
10. COST-OF-LIVING ADJUSTMENTS OF PERMANENT TOTAL DISABILITY BENEFITS.
(A) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, IN ADDITION TO ANY OTHER
AMOUNT RECEIVED PURSUANT TO THIS ARTICLE AS PERMANENT TOTAL DISABILITY
BENEFITS, AN EMPLOYEE ENTITLED TO BENEFITS UNDER THIS SECTION SHALL BE
ENTITLED TO AN ADDITIONAL ALLOWANCE, TO BE KNOWN AS A COST-OF-LIVING
ADJUSTMENT ALLOWANCE, WHICH SHALL BE PAYABLE ANNUALLY.
(B) THE COST-OF-LIVING ADJUSTMENT ALLOWANCE SHALL BE COMPUTED ANNUALLY
BY THE BOARD ON FEBRUARY FIRST AND SHALL BE BASED ON SIXTY-SEVEN PERCENT
OF THE INCREASE IN THE CONSUMER PRICE INDEX AS FOR THE PRECEDING CALEN-
DAR YEAR AS PROMULGATED BY THE UNITED STATES DEPARTMENT OF LABOR. IF THE
CONSUMER PRICE INDEX FOR THE PRECEDING YEAR IS LESS THAN TWO PERCENT, NO
COST-OF-LIVING ADJUSTMENT ALLOWANCE SHALL BE PAYABLE, PROVIDED THAT, IF
NO COST-OF-LIVING INCREASE IS PAYABLE IN A GIVEN YEAR BECAUSE THE
CONSUMER PRICE INDEX FOR THE PRECEDING YEARS WAS LESS THAN TWO PERCENT,
THE NEXT SUCCEEDING ANNUAL CALCULATION SHALL CONSIDER THE CHANGE IN THE
CONSUMER PRICE INDEX OVER THE PRECEDING TWO CALENDAR YEARS. NO INCREASE
SHALL EXCEED THE SUM OF TEN DOLLARS PER WEEK IN ANY YEAR. THE
COST-OF-LIVING ALLOWANCE THUS COMPUTED SHALL BE PAYABLE FOR THE TWELVE-
MONTH PERIOD BEGINNING THE FOLLOWING JULY FIRST.
(C) THIS SUBDIVISION SHALL NOT BE DEEMED OR CONSTRUED TO DIMINISH THE
RIGHT OF ANY BENEFICIARY TO ANY BENEFITS TO WHICH SUCH BENEFICIARY WOULD
OTHERWISE BE ENTITLED PURSUANT TO LAW.
S 3. Paragraph (a) of subdivision 4 of section 13-a of the workers'
compensation law, as amended by chapter 473 of the laws of 2000, is
amended to read as follows:
(a) No claim for medical or surgical treatment shall be valid and
enforceable, as against such employer, or employee, unless within
forty-eight hours following the first treatment the physician giving
such treatment furnishes to the employer and directly to the chair a
preliminary notice of such injury and treatment, within fifteen days
thereafter a more complete report and subsequent thereto progress
reports if requested in writing by the chair, board, employer or insur-
A. 5000 18
ance carrier at intervals of not less than [three weeks] SIXTY DAYS
apart or at less frequent intervals if requested on forms prescribed by
the chair. The board may excuse failure to give such notices within the
designated periods when it finds it to be in the interest of justice to
do so.
S 4. This act shall take effect January 1, 2012 and shall apply to all
claims for payment of death benefits pursuant to section 16 of the work-
ers' compensation law, regardless of the date of death and claims for
payment of permanent total disability pursuant to section 15 of the
workers' compensation law, regardless of the date of the injury.
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