NY State Senate Bill S9149

Archive: Last Bill Status - Signed by Governor

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

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Actions

view actions (12)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Dec 30, 2022	signed chap.835
Dec 19, 2022	delivered to governor
Jun 03, 2022	returned to senate passed assembly ordered to third reading rules cal.747 substituted for a10349
Jun 02, 2022	referred to labor delivered to assembly passed senate ordered to third reading cal.1914 committee discharged and committed to rules
May 11, 2022	referred to labor

Votes

S9149 (ACTIVE) - Details

See Assembly Version of this Bill:: A10349
Law Section:: Workers' Compensation Law
Laws Affected:: Add §118-a, amd §11, Work Comp L

S9149 (ACTIVE) - Summary

Provides that determinations by the workers' compensation board shall not be given collateral estoppel effect in any other action or proceeding arising out of the same occurrence, other than the determination of the existence of an employer employee relationship.

S9149 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S9149

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the workers' compensation law, in relation to enacting
the justice for injured workers act

 
PURPOSE OR GENERAL IDEA OF BILL:

To correct recent court decisions that granted preclusive effect to
decisions of the Workers' Compensation Board (WCB), barring injured
workers from seeking justice through the courts because of an adminis-
trative decision of the WCB.

 
SUMMARY OF PROVISIONS:

Section one of the bill provides the title of the Justice for Injured
Workers Act.

Section two of the bill adds a new section 118-a to the Workers' Compen-
sation Law that would bar a court or other forum from granting preclu-

sive or collateral estoppel effect to decisions by the Workers' Compen-
sation Board in any other action or proceeding.

Section three of the bill adds a new paragraph (b) to section 11 of the
Workers' Compensation Law that would bar a court or other forum from
granting preclusive or collateral estoppel effect to decisions by the
Workers' Compensation Board in any other action or proceeding.

Section four of the bill sets the effective date.

 
JUSTIFICATION:

The Justice for Injured Workers Act ("JIWA") will bar determinations
made in Worker Compensation proceedings from having preclusive effect in
trials by a worker whose injuries are caused by negligence or wrongful
conduct of third parties (i.e. parties other than the worker's employ-
er.)

Over 100 years ago, New York enacted a Worker's Compensation hearing
System with a "grand bargain" to address the plague of on-the-job inju-
ries suffered by workers. The bargain: workers surrendered their consti-
tutional rights to sue their employer for causing workplace injuries
and, in exchange, employers provided insurance that guaranteed medical
care and cash benefits for such injuries, regardless of fault.

To ensure that this "no fault" system provided quick and consistent
benefits, disputes between an employer and an employee to the existence
or extent of an alleged workplace injury are resolved in lightning-fast
administrative hearings before a Worker's Compensation Law Judge
("WCLJ"). These hearings sacrifice basic procedures and evidentiary
rules of trials to swiftly decide the claims. The hearings do not
address fault; do not allow the parties to take depositions; do not
provide a way to compel witnesses to testify; do not allow for exchanges
of documents before a hearing; do not afford workers the right to order
medical tests or elicit testimony from physicians; and do not give
credence to injured workers' descriptions of their alleged injuries.
Hearsay is allowed as evidence, and witnesses have strict time limits in
which to provide testimony.  Worker's Compensation hearings often
consist of a cursory examination of medical records, and they do not
consist of a searching review for truth, which occurs in a jury trial.

This is why, for almost 80 years, when an injured worker filed a "third-
party action" against someone other than the employer for wrongfully
causing a workplace injury, courts rejected attempts by defendants to
apply collateral estoppel. Courts refused to use, as purportedly conclu-
sive "facts" for purposes of the third-party litigation, the "findings"
from Worker's Compensation hearings. But in 1989, this all changed. The
New York Appellate Division for the Second Department held that a Work-
er's Compensation hearing determination collaterally estopped the worker
from pursuing a subsequent action against a non-employer third-party and
dismissed the action. In the wake of this decision, other New York
courts began to apply the collateral estoppel doctrine to findings by
WCLJs to dismiss third-party actions. Workers suffered.

In 2013, the New York Court of Appeals held that the collateral estoppel
doctrine was being used to deny an injured worker his right to a fair
trial. This ruling, in Auqui v Seven Thirty One Ltd.  Partnership, 22
NY3d 246, 255-57 (2013), reinforced the concept that the party responsi-
ble for causing an injured worker's injuries remains obligated to pay
for lost wages and medical expenses.

Unfortunately, Auqui left open the possibility that courts could apply
the collateral estoppel doctrine to a prior Worker's Compensation deci-
sion and deny injured workers the right to have a jury rule on their
claims.

This legislation is needed to ensure that findings from cursory Worker's
Compensation Board hearings do not prevent workers from exercising their
constitutional right to a jury trial.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
Immediate

S9149 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9149
 
                             I N  S E N A T E
 
                               May 11, 2022
                                ___________
 
 Introduced by Sen. GOUNARDES -- 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 enacting
   the justice for injured workers act
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. This act shall be known as the "justice for injured workers
 act".
   §  2. The workers' compensation law is amended by adding a new section
 118-a to read as follows:
   §  118-A.  EFFECT  OF  FINDINGS  AND  DETERMINATIONS   IN   SUBSEQUENT
 PROCEEDINGS. WITH RESPECT TO AN ACTION FOR A WORKERS' COMPENSATION CLAIM
 PERMISSIBLE  UNDER  THIS CHAPTER, NO FINDING OR DECISION BY THE WORKERS'
 COMPENSATION BOARD, JUDGE OR OTHER ARBITER  SHALL  BE  GIVEN  COLLATERAL
 ESTOPPEL  EFFECT  IN  ANY  OTHER ACTION OR PROCEEDING ARISING OUT OF THE
 SAME OCCURRENCE, OTHER THAN THE DETERMINATION OF  THE  EXISTENCE  OF  AN
 EMPLOYER EMPLOYEE RELATIONSHIP.
   §  3. Section 11 of the workers' compensation law, as amended by chap-
 ter 635 of the laws of 1996, the opening paragraph as amended by section
 8 of part SS of chapter 59 of the laws of 2017, the  fifth  undesignated
 paragraph  as  added  by  chapter 49 of the laws of 1999 and the closing
 paragraph as added by chapter 392 of the laws of  2008,  is  amended  to
 read as follows:
   §  11.  Alternative remedy. 1. The liability of an employer prescribed
 by the last preceding section shall be exclusive and  in  place  of  any
 other liability whatsoever, to such employee, his or her personal repre-
 sentatives,  spouse,  parents,  dependents,  distributees, or any person
 otherwise entitled to recover damages,  contribution  or  indemnity,  at
 common law or otherwise, on account of such injury or death or liability
 arising  therefrom,  except  that  if  an  employer  fails to secure the
 payment of compensation for his  or  her  injured  employees  and  their
 dependents  as  provided  in  section  fifty of this chapter, an injured
 employee, or his or her legal representative in case  of  death  results
 from  the injury, may, at his or her option, elect to claim compensation
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD15789-01-2
 S. 9149                             2
 
 under this chapter, or to maintain an action in the courts  for  damages
 on  account of such injury; and in such an action it shall not be neces-
 sary to plead or prove freedom from contributory negligence nor may  the
 defendant  plead  as  a defense that the injury was caused by the negli-
 gence of a fellow servant nor that the employee assumed the risk of  his
 or  her  employment,  nor  that  the  injury was due to the contributory
 negligence of the employee. The liability under this chapter of The  New
 York  Jockey  Injury  Compensation  Fund, Inc. created under section two
 hundred twenty-one of the racing, pari-mutuel wagering and breeding  law
 shall  be  limited to the provision of workers' compensation coverage to
 jockeys, apprentice jockeys, exercise persons, and at  the  election  of
 the New York Jockey Injury Compensation Fund, Inc., with the approval of
 the  New York state gaming commission, employees of licensed trainers or
 owners licensed under article two or four  of  the  racing,  pari-mutuel
 wagering and breeding law and any statutory penalties resulting from the
 failure to provide such coverage.
   For  purposes of this section the terms "indemnity" and "contribution"
 shall not include a claim or cause of action for contribution or  indem-
 nification  based  upon  a  provision in a written contract entered into
 prior to the accident or occurrence by which the employer had  expressly
 agreed  to  contribution to or indemnification of the claimant or person
 asserting the cause of action for the type of loss suffered.
   An employer shall not be liable for contribution or indemnity  to  any
 third  person based upon liability for injuries sustained by an employee
 acting within the scope of his  or  her  employment  for  such  employer
 unless  such third person proves through competent medical evidence that
 such employee has sustained a "grave injury" which shall mean  only  one
 or  more  of  the  following:  death, permanent and total loss of use or
 amputation of an arm, leg, hand or foot, loss of multiple fingers,  loss
 of multiple toes, paraplegia or quadriplegia, total and permanent blind-
 ness, total and permanent deafness, loss of nose, loss of ear, permanent
 and  severe facial disfigurement, loss of an index finger or an acquired
 injury to the brain caused by an external physical  force  resulting  in
 permanent total disability.
   For  purposes  of  this  section  "person" means any individual, firm,
 company, partnership, corporation, joint  venture,  joint-stock  associ-
 ation, association, trust or legal entity.
   The  liability under this chapter of the New York black car operators'
 injury compensation fund, inc. shall be limited  to:  (i)  securing  the
 payment of workers' compensation in accordance with article six-F of the
 executive  law to black car operators, as defined in such article, whose
 injury arose out of and in  the  course  of  providing  services  for  a
 central  dispatch facility, as defined in such article, that is a regis-
 tered member of such fund, and (ii) any statutory penalty resulting from
 the failure to secure such payment. The liability under this chapter  of
 a  central  dispatch facility, as defined in article six-F of the execu-
 tive law, that is a registered member of the New York black  car  opera-
 tors'  injury compensation fund, inc. that shall be limited to remaining
 a registered member in good standing of  such  fund  and  any  statutory
 penalty,  including loss of immunity provided by this section, resulting
 from the failure to become or remain a registered member in good  stand-
 ing  of  such fund, except, however, that such central dispatch facility
 shall be subject to the provisions of section one hundred thirty-one  of
 this  chapter  and  shall  be  liable  for any payments for which it may
 become responsible pursuant to such section or pursuant to section four-
 teen-a of this [chapter] ARTICLE.
 S. 9149                             3
 
   The liability under this chapter of the New  York  independent  livery
 driver  benefit fund, inc. shall be limited to: (i) securing the payment
 of workers' compensation coverage to cover  those  matters  required  by
 article  six-G  of  the executive law for independent livery drivers, as
 defined  in such article, whose injury arose out of and in the course of
 providing covered services for a livery base, as defined in  such  arti-
 cle,  that  is  a registered member of such fund, and (ii) any statutory
 penalty resulting from the failure to secure such payment.
   2. DETERMINATION BY THE BOARD SHALL NOT BE GIVEN  COLLATERAL  ESTOPPEL
 EFFECT  IN ANY OTHER ACTION OR PROCEEDING ARISING OUT OF THE SAME OCCUR-
 RENCE, OTHER THAN THE DETERMINATION OF  THE  EXISTENCE  OF  AN  EMPLOYER
 EMPLOYEE RELATIONSHIP.
   § 4. This act shall take effect immediately.

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The New York State Senate

senate Bill S9149

Sponsored By

Archive: Last Bill Status - Signed by Governor

Your Voice

Actions

Votes

Jun 2, 2022 - floor Vote

Floor Vote: Jun 2, 2022

Jun 2, 2022 - Rules committee Vote

Rules Committee Vote: Jun 2, 2022

S9149 (ACTIVE) - Details

S9149 (ACTIVE) - Summary

S9149 (ACTIVE) - Sponsor Memo

S9149 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S9149

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Sponsored By

Andrew Gounardes

Archive: Last Bill Status - Signed by Governor

Your Voice

Actions

Votes

Jun 2, 2022 - floor Vote

Floor Vote: Jun 2, 2022

Jun 2, 2022 - Rules committee Vote

Rules Committee Vote: Jun 2, 2022

S9149 (ACTIVE) - Details

S9149 (ACTIVE) - Summary

S9149 (ACTIVE) - Sponsor Memo

S9149 (ACTIVE) - Bill Text download pdf

Comments