NY State Senate Bill 2017-S3922A

Archive: Last Bill Status - In Senate Committee Labor Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Apr 06, 2018	print number 3922a
Apr 06, 2018	amend (t) and recommit to labor
Jan 03, 2018	referred to labor
Jan 30, 2017	referred to labor

Bill Amendments

Original

A (Active)

co-Sponsors

2017-S3922 - Details

See Assembly Version of this Bill:: A9718
Current Committee:: Senate Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Amd §15, Work Comp L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5294
2015-2016: S2768
2019-2020: S3234, A649

2017-S3922 - Summary

Relates to attachment to the labor market in temporary partial disability cases.

2017-S3922 - Sponsor Memo

                                 BILL NUMBER:  S3922

 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 :

2013/14 Sessions - S.5294 - referred to Labor Committee, reported to
3rd read calendar.
2015/16 Sessions - S.2768 - referred to Labor, no significant action

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect immediately.

2017-S3922 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3922
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2017
                                ___________
 
 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.

                                                            LBD03017-01-7

 S. 3922                             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 REHABILITATION
 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.
   § 2. This act shall take effect immediately.

co-Sponsors

2017-S3922A (ACTIVE) - Details

See Assembly Version of this Bill:: A9718
Current Committee:: Senate Labor
Law Section:: Workers' Compensation Law
Laws Affected:: Amd §15, Work Comp L
Versions Introduced in Other Legislative Sessions:: 2013-2014: S5294
2015-2016: S2768
2019-2020: S3234, A649

2017-S3922A (ACTIVE) - Summary

Relates to attachment to the labor market in temporary partial disability cases.

2017-S3922A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S3922A

SPONSOR: SAVINO
 
TITLE OF BILL:  An act to amend the workers' compensation law, in
relation to attachment to the labor market in temporary partial disabil-
ity cases

 
PURPOSE OR GENERAL IDEA OF BILL:

This would provide that a temporarily disabled claimant would not have
to seek work to maintain their benefits unless the loss of wages is due
to a circumstance unrelated to the injury that caused the disablement.

 
SUMMARY OF PROVISIONS:

Amends Workers Compensation Law § 15 to provide that a temporarily
partially disabled claimant would not have to seek work to maintain
their benefits unless the loss of wages is due to a circumstance unre-
lated to the injury that caused the disablement.

JUSTIFICATION:

The Workers' Compensation Law provides that in cases of partial disabil-
ity, "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 impair-
ment." (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 disa-
bled 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 according-
ly (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 estab-
lishes 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 claim only when
loss of wages is wholly unrelated to such injury.

 
PRIOR LEGISLATIVE HISTORY:

Similar to:

2013-14 Sessions - S.5294 - referred to Labor Committee, reported to
calendar.

2015-16 Sessions - S.2768 - referred to Labor, no significant action

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2017-S3922A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  3922--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2017
                                ___________
 
 Introduced  by  Sens. SAVINO, SANDERS -- read twice and ordered printed,
   and when printed to be committed to the Committee on Labor  --  recom-
   mitted  to  the  Committee  on Labor in accordance with Senate Rule 6,
   sec. 8 -- committee discharged, bill  amended,  ordered  reprinted  as
   amended and recommitted to said committee

 AN ACT to amend the workers' compensation law, in relation to attachment
   to the labor market in temporary partial disability cases
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 5 of section 15 of  the  workers'  compensation
 law,  as  amended by chapter 161 of the laws of 1966, is amended to read
 as follows:
   5. Temporary partial disability. In case of temporary partial disabil-
 ity resulting in decrease of earning capacity, the compensation shall be
 two-thirds of the difference  between  the  injured  employee's  average
 weekly wages before the accident and his wage earning capacity after the
 accident in the same or other employment. COMPENSATION UNDER THIS SUBDI-
 VISION SHALL BE PAYABLE DURING THE CONTINUANCE OF SUCH TEMPORARY PARTIAL
 DISABILITY,  WITHOUT THE NECESSITY FOR THE CLAIMANT TO DEMONSTRATE ONGO-
 ING ATTACHMENT TO THE LABOR MARKET, UNLESS  THE  BOARD  FINDS  THAT  THE
 INJURED  EMPLOYEE'S  LOSS  OF  WAGES  IS  WHOLLY UNRELATED TO HIS OR HER
 PARTIAL DISABILITY.
   § 2. This act shall take effect immediately.
 
 
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03017-02-8

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Senate Bill S3922A

Sponsored By

Archive: Last Bill Status - In Senate Committee Labor Committee

Actions

Bill Amendments

co-Sponsors

2017-S3922 - Details

2017-S3922 - Summary

2017-S3922 - Sponsor Memo

2017-S3922 - Bill Text download pdf

co-Sponsors

2017-S3922A (ACTIVE) - Details

2017-S3922A (ACTIVE) - Summary

2017-S3922A (ACTIVE) - Sponsor Memo

2017-S3922A (ACTIVE) - Bill Text download pdf

Comments

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Sponsored By

Diane J. Savino

Archive: Last Bill Status - In Senate Committee Labor Committee

Actions

Bill Amendments

co-Sponsors

James Sanders Jr.

2017-S3922 - Details

2017-S3922 - Summary

2017-S3922 - Sponsor Memo

2017-S3922 - Bill Text download pdf

co-Sponsors

Joseph P. Addabbo Jr.

Martin Malavé Dilan

James Sanders Jr.

2017-S3922A (ACTIVE) - Details

2017-S3922A (ACTIVE) - Summary

2017-S3922A (ACTIVE) - Sponsor Memo

2017-S3922A (ACTIVE) - Bill Text download pdf

Comments