|Assembly Actions - Lowercase
Senate Actions - UPPERCASE
|Jun 20, 2014||
committed to rules
|May 14, 2014||
advanced to third reading
|May 13, 2014||
2nd report cal.
|May 12, 2014||
1st report cal.600
|Jan 08, 2014||
referred to labor
|Jun 21, 2013||
committed to rules
|Jun 05, 2013||
advanced to third reading
|Jun 04, 2013||
2nd report cal.
|Jun 03, 2013||
1st report cal.953
|May 16, 2013||
referred to labor
senate Bill S5294
Relates to establishing statutory guidelines for return to work by partially disabled workers
Archive: Last Bill Status - In Committee
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
view actions (10)
May 12, 2014 - Labor committee VoteS529490committee9Aye0Nay6Aye with Reservations0Absent1Excused0Abstained
Jun 3, 2013 - Labor committee VoteS5294101committee10Aye1Nay5Aye with Reservations0Absent0Excused0Abstained
S5294 - Bill Details
S5294 - Bill Texts
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.
view sponsor memo
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'
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.
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:
This act shall take effect immediately.
view full 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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