RETRIEVE BILL WORKC - 0607
STATE OF NEW YORK
________________________________________________________________________
S. 6461 A. 9561
SENATE - ASSEMBLY
January 20, 2006
___________
IN SENATE -- A BUDGET BILL, submitted by the Governor pursuant to arti-
cle seven of the Constitution -- read twice and ordered printed, and
when printed to be committed to the Committee on Finance
IN ASSEMBLY -- A BUDGET BILL, submitted by the Governor pursuant to
article seven of the Constitution -- read once and referred to the
Committee on Ways and Means
AN ACT to amend the workers’ compensation law, the executive law and the
insurance law, in relation to compensation claims
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 1 of section 10 of the workers’ compensation
2 law, as amended by chapter 924 of the laws of 1990, is amended to read
3 as follows:
4 1. Every employer subject to this chapter shall in accordance with
5 this chapter, except as otherwise provided in section twenty-five-a
6 [hereof] of this article, secure compensation to [his] its employees and
7 pay or provide compensation for their disability or death from injury
8 arising out of and in the course of the employment without regard to
9 fault as a cause of the injury, except that there shall be no liability
10 for compensation under this chapter when the injury has been solely
11 occasioned by intoxication from alcohol or a controlled substance of the
12 injured employee while on duty; or by the wilful intention of the
13 injured employee to bring about the injury or death of himself or
14 herself or another; or where the injury was casually related to the
15 perpetration by the employee of a crime for which such employee was duly
16 convicted; or where the injury was sustained in or caused by voluntary
17 participation in an off-duty athletic activity not constituting part of
18 the employee's work related duties unless the employer (a) requires the
19 employee to participate in such activity, (b) compensates the employee
20 for participating in such activity or (c) otherwise sponsors the activ-
21 ity.
22 § 2. Section 10 of the workers’ compensation law is amended by adding
23 a new subdivision 4 to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD12276-01-6
S. 6461 2 A. 9561
1 4. Any person incarcerated upon conviction of a crime shall be deemed
2 ineligible for all benefits provided under this chapter. All those whose
3 benefits have ceased by operation of this section, may apply to the
4 board for benefits upon their release from custody by filing with the
5 board a notice of release from incarceration together with proof of such
6 release.
7 § 3. Subdivision (a) of section 13 of the workers’ compensation law,
8 as amended by chapter 451 of the laws of 1996 and the closing paragraph
9 as separately amended by chapter 635 of the laws of 1996, is amended to
10 read as follows:
11 (a) The employer shall promptly provide for an injured employee such
12 medical, dental, surgical, optometric or other attendance or treatment,
13 nurse and hospital service, medicine, optometric services, crutches,
14 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
15 devices, functional assistive and adaptive devices and apparatus for
16 such period as the nature of the injury or the process of recovery may
17 require. The employer shall be liable for the payment of the expenses of
18 medical, dental, surgical, optometric or other attendance or treatment,
19 nurse and hospital service, medicine, optometric services, crutches,
20 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
21 devices, functional assistive and adaptive devices and apparatus, as
22 well as artificial members of the body or other devices or appliances
23 necessary in the first instance to replace, support or relieve a portion
24 or part of the body resulting from and necessitated by the injury of an
25 employee, for such period as the nature of the injury or the process of
26 recovery may require, and the employer shall also be liable for replace-
27 ments or repairs of such artificial members of the body or such other
28 devices, eye-glasses, false teeth, artificial eyes, orthotics, prosthet-
29 ic devices, functional assistive and adaptive devices or appliances
30 necessitated by ordinary wear or loss or damage to a [prothesis] prosth-
31 esis, with or without bodily injury to the employee. Damage to or loss
32 of a prosthetic device shall be deemed an injury except that no disabil-
33 ity benefits shall be payable with respect to such injury under section
34 fifteen of this article. Such a replacement or repair of artificial
35 members of the body or such other devices, eye-glasses, false teeth,
36 artificial eyes, orthotics, prosthetic devices, functional assistive and
37 adaptive devices or appliances or the providing of medical treatment and
38 care as defined herein shall not constitute the payment of compensation
39 under section twenty-five-a of this [chapter] article. All fees and
40 other charges for such treatment and services shall be limited to such
41 charges as prevail in the same community for similar treatment of
42 injured persons of a like standard of living.
43 The chair shall prepare and establish a schedule for the state, or
44 schedules limited to defined localities, of charges and fees for such
45 medical treatment and care, [to be determined] and including all
46 medical, dental, surgical, optometric or other attendance or treatment,
47 nurse and hospital service, medicine, optometric services, crutches,
48 eye-glasses, false teeth, artificial eyes, orthotics, prosthetic
49 devices, functional assistive and adaptive devices and apparatus in
50 accordance with and to be subject to change pursuant to rules promulgat-
51 ed by the chair. Before preparing such schedule for the state or sched-
52 ules for limited localities the chair shall request the president of the
53 medical society of the state of New York and the president of the New
54 York state osteopathic medical society to submit to him or her a report
55 on the amount of remuneration deemed by such society to be fair and
56 adequate for the types of medical care to be rendered under this chap-
S. 6461 3 A. 9561
1 ter, but consideration shall be given to the view of other interested
2 parties. In the case of physical therapy fees schedules the chair shall
3 request the president of a recognized professional association repres-
4 enting physical therapists in the state of New York to submit to him or
5 her a report on the amount of remuneration deemed by such association to
6 be fair and reasonable for the type of physical therapy services
7 rendered under this chapter, but consideration shall be given to the
8 views of other interested parties. The chair shall also prepare and
9 establish a schedule for the state, or schedules limited to defined
10 localities, of charges and fees for outpatient hospital services not
11 covered under the medical fee schedule previously referred to in this
12 subdivision, to be determined in accordance with and to be subject to
13 change pursuant to rules promulgated by the chair. Before preparing such
14 schedule for the state or schedules for limited localities the chair
15 shall request the president of the hospital association of New York
16 state to submit to him or her a report on the amount of remuneration
17 deemed by such association to be fair and adequate for the types of
18 hospital outpatient care to be rendered under this chapter, but consid-
19 eration shall be given to the views of other interested parties. In the
20 case of occupational therapy fees schedules the chair shall request the
21 president of a recognized professional association representing occupa-
22 tional therapists in the state of New York to submit to him or her a
23 report on the amount of remuneration deemed by such association to be
24 fair and reasonable for the type of occupational therapy services
25 rendered under this chapter, but consideration shall be given to the
26 views of other interested parties. The amounts payable by the employer
27 for such treatment and services shall be the fees and charges estab-
28 lished by such schedule. Nothing in this schedule, however, shall
29 prevent voluntary payment of amounts higher or lower than the fees and
30 charges fixed therein, but no physician rendering medical treatment or
31 care, and no physical or occupational therapist rendering their respec-
32 tive physical or occupational therapy services may receive payment in
33 any higher amount unless such increased amount has been authorized by
34 the employer, or by decision as provided in section thirteen-g of this
35 article. Nothing in this section shall be construed as preventing the
36 employment of a duly authorized physician on a salary basis by an
37 authorized compensation medical bureau or laboratory.
38 § 4. Section 13 of the workers’ compensation law is amended by adding
39 a new subdivision (i) to read as follows:
40 (i) (1) When a claimant or pharmacy submits a claim to the employer or
41 its carrier for payment of prescribed medicine or for reimbursement of
42 the cost of prescribed medicine which the employer is required to
43 provide under this section, the employer or carrier shall pay the amount
44 prescribed by the fee schedule adopted under section thirteen-o of this
45 article, or if the prescribed medicine is not included on the current
46 fee schedule, the usual and customary charges for such prescribed medi-
47 cine, within forty-five days of receipt of the claim, unless the liabil-
48 ity of the employer to pay for the prescribed medicine is not reasonably
49 clear.
50 (2) Where the liability of the employer or carrier for the claim for
51 payment of prescribed medicine or reimbursement for payment of
52 prescribed medicine is not reasonably clear, the employer or carrier
53 shall pay any undisputed portion of the claim in accordance with this
54 section and notify the claimant or pharmacy, as appropriate, in writing
55 within forty-five days of receipt of the claim:
S. 6461 4 A. 9561
1 (i) that the claim is not being paid and explaining the reasons for
2 nonpayment; or
3 (ii) to request all additional information reasonably needed to deter-
4 mine the employer's or carrier's liability for the claim. Upon receipt
5 of the information requested in this subparagraph, the employer or
6 carrier shall comply with paragraph one of this subdivision.
7 (3) Each claim for payment of prescribed medicine or reimbursement for
8 payment of prescribed medicine that is processed in violation of this
9 section shall constitute a separate violation. In addition to the other
10 penalties provided in this chapter, any employer or carrier that fails
11 to reimburse the claimant or pay the pharmacy, as appropriate and as
12 required in this section shall be obligated to pay to the claimant or
13 pharmacy the amount prescribed on the fee schedule adopted under section
14 thirteen-o of this article, or if the prescribed medicine is not
15 included on the current fee schedule, the usual and customary charges
16 for the prescribed medicine plus simple interest at the rate set forth
17 in section five thousand four of the civil practice law and rules.
18 (4) Nothing in this subdivision shall prohibit employers or carriers
19 from agreeing to or arranging for direct billing by the pharmacy to the
20 employer or carrier for the cost of prescribed medicine, in order for
21 claimants to more promptly receive prescribed medicine for which employ-
22 ers and carriers are liable under this section.
23 (5) Notwithstanding any other provision of this chapter, if an employ-
24 er or carrier has contracted with a pharmacy to provide prescribed medi-
25 cine to claimants, then such employer or carrier may require claimants
26 to obtain all prescribed medicines from the pharmacy with which it has
27 contracted, except if a medical emergency occurs and it would not be
28 reasonably possible to obtain immediately required prescribed medicine
29 from the pharmacy with which the employer or carrier has a contract. An
30 employer or carrier that requires claimants to obtain prescribed medi-
31 cines from a pharmacy with which it has a contract, must notify claim-
32 ants of the pharmacy or pharmacies with which it has a contract, the
33 locations and addresses of the pharmacy or pharmacies, if applicable,
34 how to initially fill and refill prescriptions through the mail, inter-
35 net, telephone or other means, and any other required information that
36 must be supplied to the pharmacy or pharmacies. If the pharmacy or phar-
37 macies with which the employer or carrier contracts does not offer mail
38 order service and does not have a physical location within a reasonable
39 distance from the claimant, the claimant may obtain prescribed medicines
40 at the pharmacy or pharmacies of his or her choice and the employer or
41 carrier will be liable for such charges in accordance with the fee sche-
42 dule prescribed in section thirteen-o of this chapter.
43 § 5. Subdivision 5 of section 13-a of the workers’ compensation law,
44 as added by chapter 21 of the laws of 1991, is amended to read as
45 follows:
46 (5) No claim for specialist consultations, surgical operations,
47 physiotherapeutic or occupational therapy procedures, x-ray examinations
48 or special diagnostic laboratory tests costing more than [five hundred]
49 one thousand dollars shall be valid and enforceable, as against such
50 employer, unless such special services shall have been authorized by the
51 employer or by the board, or unless such authorization has been unrea-
52 sonably withheld, or withheld for a period of more than thirty calendar
53 days from receipt of a request for authorization, or unless such special
54 services are required in an emergency, provided, however, that the basis
55 for a denial of such authorization by the employer must be based on a
S. 6461 5 A. 9561
1 conflicting second opinion rendered by a physician authorized by the
2 [workers’ compensation] board.
3 § 6. Section 13-a of the workers’ compensation law is amended by
4 adding a new subdivision 7 to read as follows:
5 (7)(a) Notwithstanding any other provision of this chapter to the
6 contrary, any insurance carrier authorized to transact the business of
7 workers’ compensation insurance in this state, self-insurer or the state
8 insurance fund may contract with a network or networks, legally and
9 properly organized, to perform diagnostic tests, x-ray examinations,
10 magnetic resonance imaging, or other radiological examinations or tests
11 of claimants and may require claimant to obtain or undergo such diagnos-
12 tic test, x-ray examinations, magnetic resonance imaging or other radio-
13 logical examinations or tests with a provider or at a facility that is
14 affiliated with the network or networks with which the carrier
15 contracts, except if a medical emergency occurs requiring an immediate
16 diagnostic test, x-ray examination, magnetic resonance imaging or other
17 radiological examination or test or if the network with which the insur-
18 ance carrier, self-insurer or the state insurance fund contracts does
19 not have a provider or facility able to perform the examination or test
20 within a reasonable distance from the claimant's residence or place of
21 employment.
22 (b) Any insurance carrier, self-insurer or the state insurance fund
23 which requires claimants to obtain or undergo diagnostic tests, x-ray
24 examinations, magnetic resonance imaging or other radiological examina-
25 tions or tests with a provider or at a facility affiliated with a
26 network or networks with which it contracts, must notify the claimant of
27 the name and contact information for the network or networks at the same
28 time the written statement of the claimant's rights as required by
29 subdivision two of section one hundred ten of this chapter or immediate-
30 ly after imposing such requirement if the time period within which the
31 written statement of the claimant's rights as required by subdivision
32 two of section one hundred ten of this chapter has expired.
33 (c) At the time a request for authorization for special diagnostic
34 tests, x-ray examinations, magnetic resonance imaging or other radiolog-
35 ical examinations or tests costing more than one thousand dollars as
36 required by subdivision five of this section is approved, the insurance
37 carrier, self-insurer or state insurance fund, or if so delegated the
38 network with which the insurance carrier, self-insurer or state insur-
39 ance fund has contracted, shall notify the physician requesting authori-
40 zation of the requirement that the claimant obtain or undergo the
41 special diagnostic test, x-ray examination, magnetic resonance imaging
42 or other radiological examination or test with a provider or at a facil-
43 ity affiliated with the network or networks with which it has
44 contracted, the contact information for the network and a list of the
45 providers and facilities within the claimant's geographic location. The
46 claimant, in consultation with the provider who requested the special
47 diagnostic test, x-ray examination, magnetic resonance imaging or other
48 radiological test or exam, will determine the provider or facility from
49 within the network which will perform such diagnostic test, x-ray exam-
50 ination, magnetic resonance imaging or other radiological examination or
51 test.
52 (d) The results of the special diagnostic test, x-ray examination,
53 magnetic resonance imaging or other radiological test or exam must be
54 sent to the physician who requested the test or exam immediately upon
55 completion of the report detailing the results.
S. 6461 6 A. 9561
1 § 7. Subdivision 2 of section 13-d of the workers’ compensation law,
2 as amended by chapter 473 of the laws of 2000, is amended to read as
3 follows:
4 2. The chair shall remove from the list of physicians authorized to
5 render medical care under this chapter, or to conduct independent
6 medical examinations in accordance with paragraph (b) of subdivision
7 four of section thirteen-a of this article, the name of any physician
8 who he or she shall find after reasonable investigation is disqualified
9 because such physician:
10 (a) has been guilty of professional or other misconduct or incompeten-
11 cy in connection with rendering medical services [rendered] under [this
12 chapter] the law; or
13 (b) has exceeded the limits of his or her professional competence in
14 rendering medical care or in conducting independent medical examinations
15 under [this chapter] the law, or has made materially false statements
16 regarding his or her qualifications in his or her application for the
17 recommendation of the medical society or board as provided in section
18 thirteen-b of this article; or
19 (c) has failed to transmit copies of medical reports to claimant's
20 attorney or licensed representative as provided in subdivision (f) of
21 section thirteen of this article; or has failed to submit full and
22 truthful medical reports of all his or her findings to the employer, and
23 directly to the chair or the board within the time limits provided in
24 subdivision four of section thirteen-a of this article with the excep-
25 tion of injuries which do not require (1) more than ordinary first aid
26 or more than two treatments by a physician or person rendering first
27 aid, or (2) loss of time from regular duties of one day beyond the work-
28 ing day or shift; or
29 (d) knowingly made a false statement or representation as to a materi-
30 al fact in any medical report made pursuant to this chapter or in testi-
31 fying or otherwise providing information for the purposes of this chap-
32 ter; or
33 (e) has solicited, or has employed another to solicit for himself or
34 herself or for another, professional treatment, examination or care of
35 an injured employee in connection with any claim under this chapter; or
36 (f) has refused to appear before, to testify, to submit to a deposi-
37 tion, or to answer upon request of, the chair, board, medical appeals
38 unit or any duly authorized officer of the state, any legal question, or
39 to produce any relevant book or paper concerning his or her conduct
40 under any authorization granted to him or her under this chapter; or
41 (g) has directly or indirectly requested, received or participated in
42 the division, transference, assignment, rebating, splitting or refunding
43 of a fee for, or has directly or indirectly requested, received or prof-
44 ited by means of a credit or other valuable consideration as a commis-
45 sion, discount or gratuity in connection with the furnishing of medical
46 or surgical care, an independent medical examination, diagnosis or
47 treatment or service, including X-ray examination and treatment, or for
48 or in connection with the sale, rental, supplying or furnishing of clin-
49 ical laboratory services or supplies, X-ray laboratory services or
50 supplies, inhalation therapy service or equipment, ambulance service,
51 hospital or medical supplies, physiotherapy or other therapeutic service
52 or equipment, artificial limbs, teeth or eyes, orthopedic or surgical
53 appliances or supplies, optical appliances, supplies or equipment,
54 devices for aid of hearing, drugs, medication or medical supplies, or
55 any other goods, services or supplies prescribed for medical diagnosis,
56 care or treatment, under this chapter; except that reasonable payment,
S. 6461 7 A. 9561
1 not exceeding the technical component fee permitted in the medical fee
2 schedule, established under this chapter for X-ray examinations, diagno-
3 sis or treatment, may be made by a physician duly authorized as a roent-
4 genologist to any hospital furnishing facilities and equipment for such
5 examination, diagnosis or treatment, provided such hospital does not
6 also submit a charge for the same services. Nothing contained in this
7 paragraph shall prohibit such physicians who practice as partners, in
8 groups or as a professional corporation or as a university faculty prac-
9 tice corporation from pooling fees and moneys received, either by the
10 partnership, professional corporation, university faculty practice
11 corporation or group by the individual members thereof, for professional
12 services furnished by any individual professional member, or employee of
13 such partnership, corporation or group, nor shall the professionals
14 constituting the partnerships, corporations, or groups be prohibited
15 from sharing, dividing or apportioning the fees and moneys received by
16 them or by the partnership, corporation or group in accordance with a
17 partnership or other agreement.
18 § 8. Section 13-d of the workers’ compensation law is amended by
19 adding a new subdivision 5 to read as follows:
20 5. Whenever the department of health shall conduct an investigation
21 with respect to charges of professional or other misconduct by a physi-
22 cian which results in a report, determination or consent order that
23 includes a finding of professional or other misconduct or incompetency
24 by such physician, the chair shall have full power and authority to
25 temporarily suspend, revoke or otherwise limit the authorization under
26 this chapter of any physician upon such finding by the department of
27 health that the physician has been guilty of professional or other
28 misconduct. The recommendations of the department of health shall be
29 advisory to the chair only and shall not be binding or conclusive upon
30 the chair.
31 § 9. Subdivision 1 of section 13-j of the workers’ compensation law,
32 as amended by chapter 113 of the laws of 1946, is amended to read as
33 follows:
34 (1) An insurance carrier shall not participate in the treatment of
35 injured [workmen] workers, except as provided in paragraph five of
36 subdivision (i) of section thirteen of this article and subdivision
37 seven of section thirteen-a of this article and except, that it may
38 employ medical inspectors to examine compensation cases periodically,
39 while under treatment, and report upon the adequacy of medical care, and
40 other matters relative to the medical conduct of the case, a copy of
41 which report shall be filed directly with the [chairman] chair within
42 ten days, and that it may maintain rehabilitation bureaus operated by
43 qualified physicians if authorized by the [chairman] chair in accordance
44 with section thirteen-c of this [chapter] article.
45 § 10. The workers’ compensation law is amended by adding a new section
46 13-o to read as follows:
47 § 13-o. Pharmaceutical fee schedule. The chair shall adopt a pharma-
48 ceutical fee schedule which shall establish maximum allowable fees for
49 prescription medicines provided pursuant to this chapter. The schedule
50 shall include a single dispensing fee. Nothing in the fee schedule shall
51 preclude mail order supply of scheduled medicines, provided that the
52 fees for such mail ordered medicines do not exceed the costs provided by
53 such fee schedule. Any pharmacy providing prescription medicines shall
54 provide the generic drug equivalent, if a generic equivalent is avail-
55 able, unless the prescribing physician specifically provides otherwise
56 by prescription. The fee schedule may be modified on each succeeding
S. 6461 8 A. 9561
1 April first, provided, however, that usual and customary fees may be
2 charged for drugs that are not included in a then-current fee schedule,
3 but are approved for use by the chair.
4 § 11. The opening paragraph and paragraph w of subdivision 3 of
5 section 15 of the workers’ compensation law, paragraph w as relettered
6 by chapter 286 of the laws of 1970, are amended to read as follows:
7 In case of disability partial in character but permanent in quality
8 the compensation shall be sixty-six and two-thirds per centum of the
9 average weekly wages and shall be paid to the employee for the period
10 named in this subdivision[, as follows:]. Compensation awarded pursuant
11 to paragraphs a through s and paragraph u of this subdivision that does
12 not relate to actual lost time from employment shall be payable at one-
13 half the maximum weekly benefit rate applicable to the claim subject to
14 the minimum compensation due pursuant to subdivision six of this
15 section.
16 w. Other cases. In all other cases [in this class] of permanent
17 partial disability, the compensation shall be sixty-six and two-thirds
18 [per centum] percent of the difference between [his] the injured employ-
19 ee's average weekly wages and his or her wage-earning capacity thereaft-
20 er in the same employment or otherwise[,]. Compensation under this para-
21 graph shall be payable during the continuance of such permanent partial
22 disability, [but subject to reconsideration of the degree of such
23 impairment by the board on its own motion or upon application of any
24 party in interest] however, all compensation payable under this para-
25 graph combined with all compensation otherwise payable both under this
26 subdivision and under subdivisions two and five of this section shall
27 not exceed (i) five hundred weeks in cases in which the loss of wage-
28 earning capacity is greater than ninety percent; (ii) four hundred fifty
29 weeks in cases in which the loss of wage-earning capacity is greater
30 than eighty percent but not more than ninety percent; (iii) four hundred
31 weeks in cases in which the loss of wage-earning capacity is greater
32 than seventy percent but not more than eighty percent; (iv) three
33 hundred seventy-five weeks in cases in which the loss of wage-earning
34 capacity is greater than sixty percent but not more than seventy
35 percent; (v) three hundred fifty weeks in cases in which the loss of
36 wage-earning capacity is greater than fifty percent but not more than
37 sixty percent; (vi) three hundred twenty-five weeks in cases in which
38 the loss of wage-earning capacity is greater than forty percent but not
39 more than fifty percent; (vii) three hundred weeks in cases in which the
40 loss of wage-earning capacity is greater than thirty percent but not
41 more than forty percent; (viii) two hundred seventy-five weeks in cases
42 in which the loss of wage-earning capacity is greater than twenty
43 percent but not more than thirty percent; (ix) two hundred sixty weeks
44 in cases in which the loss of wage-earning capacity is greater than ten
45 percent but not more than twenty percent and (x) two hundred fifty weeks
46 in cases in which the loss of wage-earning capacity is ten percent or
47 less.
48 § 12. Subdivision 5-a of section 15 of the workers’ compensation law,
49 as amended by chapter 113 of the laws of 1946, is amended to read as
50 follows:
51 5-a. Determination of wage earning capacity. The wage earning capacity
52 of an injured employee in cases of partial disability shall be deter-
53 mined by his or her actual earnings, provided, however, that if he or
54 she has no such actual earnings the board may in the interest of justice
55 fix such wage earning capacity as shall be reasonable, [but not in
56 excess of seventy-five per centum of his former full time actual earn-
S. 6461 9 A. 9561
1 ings,] having due regard to the nature of his or her injury and his or
2 her physical impairment. A determination of wage earning capacity may
3 be reconsidered by the board on its own motion or upon the application
4 of any party in interest.
5 § 13. Paragraph (a) of subdivision 6 of section 15 of the workers’
6 compensation law, as amended by chapter 924 of the laws of 1990, is
7 amended to read as follows:
8 (a) Compensation for permanent or temporary total disability due to an
9 accident or disablement resulting from an occupational disease that
10 occurs, (1) on or after January first, nineteen hundred seventy-eight,
11 shall not exceed one hundred twenty-five dollars per week, that occurs
12 (2) on or after July first, nineteen hundred seventy-eight, shall not
13 exceed one hundred eighty dollars per week, that occurs (3) on or after
14 January first, nineteen hundred seventy-nine, shall not exceed two
15 hundred fifteen dollars per week, that occurs (4) on or after July
16 first, nineteen hundred eighty-three, shall not exceed two hundred
17 fifty-five dollars per week, that occurs (5) on or after July first,
18 nineteen hundred eighty-four, shall not exceed two hundred seventy-five
19 dollars per week, that occurs (6) on or after July first, nineteen
20 hundred eighty-five, shall not exceed three hundred dollars per week,
21 that occurs (7) on or after July first, nineteen hundred ninety, shall
22 not exceed three hundred forty dollars per week; and in the case of
23 temporary total disability shall not be less than thirty dollars per
24 week and in the case of permanent total disability shall not be less
25 than twenty dollars per week except that if the employee's wages at the
26 time of injury are less than thirty or twenty dollars per week respec-
27 tively, he or she shall receive his or her full weekly wages. Compen-
28 sation for permanent or temporary partial disability due to an accident
29 or disablement resulting from an occupational disease that occurs (1) on
30 or after January first, nineteen hundred seventy-eight, shall not exceed
31 one hundred five dollars per week, that occurs (2) on or after July
32 first, nineteen hundred eighty-three, shall not exceed one hundred twen-
33 ty-five dollars per week, that occurs (3) on or after July first, nine-
34 teen hundred eighty-four, shall not exceed one hundred thirty-five
35 dollars per week, that occurs (4) on or after July first, nineteen
36 hundred eighty-five, shall not exceed one hundred fifty dollars per
37 week, that occurs (5) on or after July first, nineteen hundred ninety,
38 shall not exceed two hundred eighty dollars per week; nor be less than
39 twenty dollars per week; except that if the employee's wages at the time
40 of injury are less than twenty dollars per week, he or she shall receive
41 his or her full weekly wages. In no event shall compensation when
42 combined with decreased earnings or earning capacity exceed the amount
43 of wages which the employee was receiving at the time the injury
44 occurred. Compensation for permanent or temporary partial disability, or
45 for permanent or temporary total disability due to an accident or disa-
46 blement resulting from an occupational disease that occurs (1) on or
47 after July first, nineteen hundred ninety-one and prior to July first,
48 nineteen hundred ninety-two, shall not exceed three hundred fifty
49 dollars per week; (2) on or after July first, nineteen hundred ninety-
50 two, shall not exceed four hundred dollars per week; nor be less than
51 forty dollars per week except that if the employee's wages at the time
52 of injury are less than forty dollars per week, the employee shall
53 receive his or her full wages. Compensation for permanent or temporary
54 partial disability, or for permanent or temporary total disability due
55 to an accident or disablement resulting from an occupational disease
56 that occurs (1) on or after January first, two thousand six shall not
S. 6461 10 A. 9561
1 exceed four hundred twenty-five dollars per week, (2) on or after Janu-
2 ary first, two thousand seven shall not exceed four hundred fifty
3 dollars per week, (3) on or after January first, two thousand eight
4 shall not exceed four hundred seventy-five dollars per week, (4) on or
5 after January first, two thousand nine shall not exceed five hundred
6 dollars per week. In no event shall compensation when combined with
7 decreased earnings or earning capacity exceed the amount of wages the
8 employee was receiving at the time the injury occurred.
9 § 14. Paragraph (f) of subdivision 8 of section 15 of the workers’
10 compensation law, as amended by chapter 635 of the laws of 1996, is
11 amended to read as follows:
12 (f) Any award under this subdivision shall be made against the employ-
13 er or his or her insurance carrier, but if such employer or insurance
14 carrier be entitled to reimbursement as provided in this subdivision,
15 notice or claim of the right to such reimbursement shall be filed with
16 the board in writing prior to the final determination that the resulting
17 disability is permanent, but in no case more than one hundred four weeks
18 after the date of disability or death or fifty-two weeks after the date
19 that a claim for compensation is filed with the chair, whichever is
20 later, or in the event of the reopening of a case theretofore closed, no
21 later than the determination of permanency upon such reopening. The
22 board, in its discretion, may withhold any reimbursements due under this
23 subdivision if the self-insured employer or the insurance carrier shall
24 not have paid any assessment pursuant to this subdivision, section twen-
25 ty-five-a of this article or section one hundred fifty-one of this chap-
26 ter which is past due.
27 The employer or his or her insurance carrier shall in the first
28 instance make the payments of compensation and medical expenses provided
29 by this subdivision. There shall be no reimbursement from the special
30 disability fund created by this subdivision for any benefit paid that is
31 submitted to the representative of such fund appointed by the chair
32 pursuant to this section more than one year after the expense has been
33 paid or one year after a determination has been made by the board that
34 an employer or an insurance carrier is entitled to reimbursement, which-
35 ever is later. Whenever for any reason payments are not made by the
36 employer or his or her insurance carrier at any time after the payments
37 have been made for the first one hundred four weeks for claims where the
38 date of accident or date of disablement occurred prior to August first,
39 nineteen hundred ninety-four, and two hundred sixty weeks for claims
40 where the date of accident or date of disablement occurred on or after
41 August first, nineteen hundred ninety-four, the payments of subsequent
42 compensation and medical expenses shall be made out of the special disa-
43 bility fund by the commissioner of taxation and finance upon vouchers
44 approved by the chair of the [workers’ compensation] board. In case any
45 payments prior to the expiration of the first one hundred four weeks for
46 claims where the date of accident or date of disablement occurred prior
47 to August first, nineteen hundred ninety-four, and two hundred sixty
48 weeks for claims where the date of accident or date of disablement
49 occurred on or after August first, nineteen hundred ninety-four are not
50 made by the employer or his or her insurance carrier by reason of the
51 insolvency of such carrier, the payments until the expiration of one
52 hundred four weeks for claims where the date of accident or date of
53 disablement occurred prior to August first, nineteen hundred ninety-
54 four, and two hundred sixty weeks for claims where the date of accident
55 or date of disablement occurred on or after August first, nineteen
56 hundred ninety-four shall be made out of the stock workers’ compensation
S. 6461 11 A. 9561
1 security fund created by the provisions of section one hundred seven of
2 this chapter if the insolvent carrier be a stock company, or out of the
3 mutual workers’ compensation security fund created under the provisions
4 of section one hundred nine-d of this chapter if the carrier be a mutual
5 company. If any such payments are not made by an employer permitted to
6 secure the payment of compensation pursuant to the provisions of subdi-
7 vision three of section fifty of this chapter, the payments shall be
8 made out of the proceeds of the sale of any securities deposited by the
9 employer with the chair, upon vouchers approved by the chair, until such
10 payments have been made for one hundred four weeks for claims where the
11 date of accident or date of disablement occurred prior to August first,
12 nineteen hundred ninety-four, and two hundred sixty weeks for claims
13 where the date of accident or date of disablement occurred on or after
14 August first, nineteen hundred ninety-four, from the date of disability,
15 after which date they shall be made out of the special disability fund
16 in the manner above provided.
17 In all cases in which awards have been made and charged against the
18 special fund or injuries have occurred which would require payments to
19 be made in accordance with the provisions of former subdivision eight of
20 this section as it existed immediately prior to the time this subdivi-
21 sion, as hereby added, takes effect, the compensation so awarded or that
22 shall be awarded in such cases shall continue to be paid out of the
23 special disability fund by the commissioner of taxation and finance upon
24 vouchers approved by the chair of the [workers’ compensation] board, as
25 though this subdivision had not been enacted.
26 § 15. Paragraph (h) of subdivision 8 of section 15 of the workers’
27 compensation law, as amended by chapter 510 of the laws of 2000, is
28 amended to read as follows:
29 (h) Special disability fund. The fund heretofore maintained and
30 provided for by and pursuant to former subdivision eight of this
31 section, is hereby continued and shall retain the liabilities heretofore
32 charged or chargeable thereto under the provisions of such former subdi-
33 vision eight of this section as it existed immediately prior to the time
34 this subdivision, as hereby added, takes effect, and the liabilities
35 chargeable thereto under the provisions of former subdivision eight-a of
36 this section as added by chapter seven hundred forty-nine of the laws of
37 nineteen hundred forty-four and repealed at the same time this subdivi-
38 sion, as hereby added, takes effect, and payments therefrom on account
39 of such liabilities shall continue to be made as provided herein. The
40 said fund shall be known as the special disability fund and shall be
41 available only for the purposes stated in this subdivision, and the
42 assets thereof shall not at any time be appropriated or diverted to any
43 other use or purpose. The chair of the board shall, as soon as practica-
44 ble after April first, nineteen hundred forty-five, assess upon and
45 collect from each insurance carrier, including the state insurance fund
46 and any county, city, town, village or other political subdivision fail-
47 ing to secure compensation pursuant to subdivision one or two of section
48 fifty of this chapter, a sum equal to one per centum of the total
49 compensation paid by such carrier in the year ending March thirty-first
50 next preceding the date of such assessment. As soon as practicable after
51 May first in the year nineteen hundred fifty-eight, and annually there-
52 after as soon as practicable after January first in each succeeding
53 year, the chair of the board shall assess upon and collect from all
54 self-insurers, the state insurance fund, and all insurance carriers, a
55 sum equal to [one hundred fifty] one hundred fifteen per centum of the
56 total disbursements made from the special disability fund during the
S. 6461 12 A. 9561
1 preceding calendar year, less the amount of the net assets in such fund
2 as of December thirty-first of said preceding calendar year. Such sum
3 shall be allocated to (i) self-insurers and the state insurance fund
4 based upon the proportion that the total compensation payments made by
5 all self-insurers and the state insurance fund bore to the total compen-
6 sation payments made by all self-insurers, the state insurance fund and
7 all insurance carriers and (ii) insurance carriers based upon the
8 proportion that the total compensation payments made by all insurance
9 carriers bore to the total compensation payments by all self-insurers,
10 the state insurance fund and all insurance carriers during the fiscal
11 year which ended within said preceding calendar year. The portion of
12 such sum allocated to self-insurers and the state insurance fund that
13 shall be collected from each self-insurer and the state insurance fund
14 shall be a sum equal to the proportion of the amount which the total
15 compensation payments of each such self-insurer or the state insurance
16 fund bore to the total compensation payments made by all self-insurers
17 and the state insurance fund during the fiscal year which ended within
18 said preceding calendar year. The portion of such sum allocated to
19 insurance carriers that shall be collected from each insurance carrier
20 shall be a sum equal to that proportion of the amount which the total
21 premiums written by each such insurance carrier bore to the total writ-
22 ten premiums reported by all insurance carriers during the fiscal year
23 which ended within said preceding calendar year. For the purposes of
24 this paragraph, "direct premiums written" means gross premiums, includ-
25 ing policy and membership fees, less return premiums and premiums on
26 [polices] policies not taken. An employer who has ceased to be a self-
27 insurer shall continue to be liable for any assessments into said fund
28 on account of any compensation payments made by him or her on his or her
29 account during such fiscal year, and the security fund, created under
30 the provisions of section one hundred seven of this chapter, shall, in
31 the event of the insolvency of any insurance company, be liable for any
32 assessments that would have been made against such company except for
33 its insolvency. No assessment shall be payable from the aggregate trust
34 fund, created under the provisions of section twenty-seven of this arti-
35 cle, but such fund shall continue to be liable for all compensation that
36 shall be payable under any award or order of the board, the commuted
37 value of which has been paid into such fund. Such assessments when
38 collected shall be deposited with the commissioner of taxation and
39 finance for the benefit of such fund. Such assessments shall not consti-
40 tute an element of loss for the purpose of establishing rates for work-
41 ers’ compensation insurance but shall for the purpose of collection be
42 treated as separate costs by carriers. All insurance carriers and the
43 state insurance fund, shall collect such assessments from their policy-
44 holders through a surcharge based on premium in accordance with rules
45 set forth by the New York compensation insurance rating board, as
46 approved by the superintendent of insurance. Such surcharge shall be
47 considered as part of premium for purposes prescribed by law including,
48 but not limited to, computing premium tax, reporting to the superinten-
49 dent of insurance pursuant to section ninety-nine of this chapter and
50 section three hundred seven of the insurance law, determining the limi-
51 tation of expenditures for the administration of the state insurance
52 fund pursuant to section eighty-eight of this chapter and the cancella-
53 tion by an insurance carrier, including the state insurance fund, of a
54 policy for non-payment of premium. The provisions of this paragraph
55 shall not apply with respect to policies containing coverage pursuant to
56 subsection (j) of section three thousand four hundred twenty of the
S. 6461 13 A. 9561
1 insurance law relating to every policy providing comprehensive personal
2 liability insurance on a one, two, three or four family owner-occupied
3 dwelling. The state insurance fund shall, on or before April first,
4 nineteen hundred ninety-four, notify its insureds that such assessments
5 shall be, for the purpose of recoupment, treated as separate costs for
6 the purpose of premiums billed on and after October first, nineteen
7 hundred ninety-four.
8 For the purposes of this paragraph, except as otherwise provided, the
9 term "insurance carrier" shall include only stock corporations, mutual
10 corporations and reciprocal insurers authorized to transact the business
11 of workers’ compensation insurance in this state and the term "self-in-
12 surer" shall include any employer or group of employers permitted to pay
13 compensation directly under the provisions of subdivision three, three-a
14 or four of section fifty of this chapter.
15 The commissioner of taxation and finance is hereby authorized to
16 receive and credit to such special disability fund any sum or sums that
17 may at any time be contributed to the state by the United States of
18 America under any act of congress, or otherwise, to which the state may
19 be or become entitled by reason of any payments made out of such fund.
20 The commissioner of taxation and finance shall be the custodian of
21 said fund and shall invest any surplus or reserve moneys thereof in
22 securities which constitute legal investments for savings banks under
23 the laws of this state and in interest bearing certificates of deposit
24 of a bank or trust company located and authorized to do business in this
25 state or of a national bank located in this state secured by a pledge of
26 direct obligations of the United States or of the state of New York in
27 an amount equal to the amount of such certificates of deposit, and may
28 sell any of the securities or certificates of deposit in which such fund
29 is invested if necessary for the proper administration or in the best
30 interest of such fund. Disbursements from such fund as provided by this
31 subdivision shall be made by the commissioner of taxation and finance
32 upon vouchers signed by the chair of the board.
33 The commissioner of taxation and finance, as custodian of such fund,
34 annually as soon as practicable after January first, shall furnish to
35 the chair of the board a statement of the fund, setting forth the
36 balance of moneys in the said fund as of the beginning of the calendar
37 year, the income of the fund, the summary of payments out of the fund on
38 account of reimbursements and other charges ordered to be paid by the
39 board, and all other charges against the fund, and setting forth the
40 balance of the fund remaining to its credit on December thirty-first.
41 Such statement shall be open to public inspection in the office of the
42 secretary of the board.
43 § 16. Subdivision 8 of section 15 of the workers’ compensation law is
44 amended by adding a new paragraph (m) to read as follows:
45 (m) Any insurance carrier, as defined in subdivision twelve of section
46 two of this chapter, filing an application for a claim for reimbursement
47 from the special disability fund continued pursuant to paragraph (h) of
48 this subdivision shall be assessed a filing fee of two hundred fifty
49 dollars for each such application. The filing fee shall be deposited
50 into the special disability fund. Notwithstanding any other provision
51 of paragraph (h) of this subdivision to the contrary the commissioner of
52 taxation and finance, as custodian of the special disability fund, shall
53 remit two hundred dollars of the filing fee to the insurance carrier
54 filing an application for a claim of reimbursement where the application
55 is accepted for reimbursement from such fund.
S. 6461 14 A. 9561
1 § 17. Subdivision 5 of section 16 of the workers’ compensation law, as
2 amended by chapter 924 of the laws of 1990, is amended to read as
3 follows:
4 5. Any excess of wages over six hundred thirty-seven dollars and
5 fifty cents per week shall not be taken into account in computing
6 compensation under this section in cases where the death occurs on or
7 after January first, two thousand six, nor shall any excess of wages
8 over six hundred seventy-five dollars per week be taken into account in
9 computing compensation pursuant to this section in cases where death
10 occurs on or after January first, two thousand seven, nor shall any
11 excess of wages over seven hundred twelve dollars and fifty cents per
12 week be taken into account in computing compensation pursuant to this
13 section in cases where death occurs on or after January first, two thou-
14 sand eight, nor shall any excess of wages over seven hundred fifty
15 dollars per week be taken into account in computing compensation pursu-
16 ant to this section in cases where death occurs on or after January
17 first, two thousand nine, nor shall any excess of wages over five
18 hundred ten dollars and five cents per week [shall not] be taken into
19 account in computing compensation under this section in cases where the
20 death occurs on or after July first, nineteen hundred ninety, nor shall
21 any excess of wages over five hundred twenty-five dollars per week be
22 taken into account in computing compensation pursuant to this section in
23 cases where death occurs on or after July first, nineteen hundred nine-
24 ty-one, nor shall any excess of wages over six hundred dollars per week
25 be taken into account in computing compensation pursuant to this section
26 in cases where death occurs on or after July first, nineteen hundred
27 ninety-two; nor shall any excess of wages over three hundred eighty-two
28 dollars and fifty cents per week be taken into account in computing
29 compensation under this section in cases where the death occurs on or
30 after July first, nineteen hundred eighty-three, nor shall any excess of
31 wages over four hundred twelve dollars and fifty cents per week be taken
32 into account in computing compensation under this section in cases where
33 the death occurs on or after July first, nineteen hundred eighty-four,
34 nor shall any excess of wages over four hundred fifty dollars per week
35 be taken into account in computing compensation under this section in
36 cases where the death occurs on or after July first, nineteen hundred
37 eighty-five; nor shall any excess of wages over one hundred eighty-seven
38 dollars and fifty cents per week on or after January first, nineteen
39 hundred seventy-eight or over two hundred seventy dollars per week on or
40 after July first, nineteen hundred seventy-eight or over three hundred
41 twenty-two dollars and fifty cents per week on or after January first,
42 nineteen hundred seventy-nine, and prior to July first, nineteen hundred
43 eighty-three, be taken into account in computing compensation under this
44 section nor shall any excess of wages over six hundred and seventeen
45 dollars and fifty cents a month be taken into account in computing
46 compensation under this section in cases where the death occurred on or
47 after July first, nineteen hundred seventy-four, and prior to January
48 first, nineteen hundred seventy-eight, nor shall any excess of wages
49 over five hundred and twenty dollars a month be taken into account in
50 computing compensation in cases where death occurred on or after July
51 first, nineteen hundred seventy and prior to July first, nineteen
52 hundred seventy-four, nor shall any excess of wages over four hundred
53 and fifty-five dollars a month be taken into account in computing
54 compensation in cases where death occurred on or after July first, nine-
55 teen hundred sixty-eight and prior to July first, nineteen hundred
56 seventy, nor shall any excess of wages over three hundred and ninety
S. 6461 15 A. 9561
1 dollars a month be taken into account in computing compensation in cases
2 where death occurred on or after July first, nineteen hundred sixty-five
3 and prior to July first, nineteen hundred sixty-eight, nor shall any
4 excess of wages over three hundred and fifty-seven dollars and fifty
5 cents a month be taken into account in computing compensation in cases
6 where death occurred on or after July first, nineteen hundred sixty-two
7 and prior to July first, nineteen hundred sixty-five, nor shall any
8 excess of wages over three hundred and twenty-five dollars a month be
9 taken into account in computing compensation in cases where death
10 occurred on or after July first, nineteen hundred sixty and prior to
11 July first, nineteen hundred sixty-two, nor shall any excess of wages
12 over two hundred and ninety-two dollars and fifty cents a month be taken
13 into account in computing compensation where death occurred on or after
14 July first, nineteen hundred fifty-eight and prior to July first, nine-
15 teen hundred sixty, nor shall any excess of wages over two hundred and
16 sixty dollars a month be taken into account in computing compensation
17 where death occurred on or after July first, nineteen hundred fifty-four
18 and prior to July first, nineteen hundred fifty-eight, nor shall any
19 excess of wages over two hundred and twenty-seven dollars and fifty
20 cents a month be taken into account in computing compensation where
21 death occurred on or after July first, nineteen hundred forty-eight and
22 prior to July first, nineteen hundred fifty-four, nor shall any excess
23 of wages over one hundred and eighty-two dollars a month be taken into
24 account in computing compensation where the death occurred on or after
25 June first, nineteen hundred forty-six and prior to July first, nineteen
26 hundred forty-eight. When death occurred on or after July first, nine-
27 teen hundred forty-eight and prior to January first, nineteen hundred
28 seventy-eight, computing compensation to the widow or widower and chil-
29 dren of a deceased employee in no event shall wages be deemed to be less
30 than one hundred and thirty dollars a month. All questions of dependency
31 shall be determined as of the time of the accident. When death occurred
32 on or after January first, nineteen hundred seventy-eight, in no event
33 shall wages be deemed to be less than forty-five dollars a week in
34 computing compensation to the widow or widower and/or children of the
35 deceased employee.
36 § 18. Subdivision 1 of section 20 of the workers’ compensation law, as
37 amended by chapter 635 of the laws of 1996, is amended to read as
38 follows:
39 1. At any time after the expiration of the first seven days of disa-
40 bility on the part of an injured employee, or at any time after the
41 employee's death, a claim for compensation may be presented to the
42 employer or to the chair. The board shall have full power and authority
43 to determine all questions in relation to the payment of claims
44 presented to it for compensation under the provisions of this chapter.
45 The chair or board shall make or cause to be made such investigation as
46 it deems necessary, and [upon application of either party,] if there is
47 an issue to be resolved and it cannot be resolved by conciliation or
48 motion calendar in accordance with paragraph (b) of subdivision two-b of
49 section twenty-five of this article, shall order a hearing[, and
50 within]. Within thirty days after a claim for compensation is submitted
51 under this section, such claim is transferred to conciliation or motion
52 calendar, or such hearing closed, the chair or board shall make or deny
53 an award, determining such claim for compensation, and file the same in
54 the office of the chair. Immediately after such filing the chair shall
55 send to the parties a copy of the decision. Upon a hearing pursuant to
56 this section either party may present evidence and be represented by
S. 6461 16 A. 9561
1 counsel. The decision of the board shall be final as to all questions
2 of fact, and, except as provided in section twenty-three of this arti-
3 cle, as to all questions of law. Except as provided in section twenty-
4 seven of this article, all awards of the board shall draw simple inter-
5 est from thirty days after the making thereof at the rate provided in
6 section five thousand four of the civil practice law and rules. Whenev-
7 er a hearing or proceeding for the determination of a claim for compen-
8 sation is begun before a referee, pursuant to the provisions of this
9 chapter, such hearing or proceeding or any adjourned hearing thereon
10 shall continue before the same referee until a final determination
11 awarding or denying compensation, except in the absence, inability or
12 disqualification to act of such referee, or for other good cause, in
13 which event such hearing or proceeding may be continued before another
14 referee by order of the chair or board.
15 § 19. Section 20 of the workers’ compensation law is amended by adding
16 a new subdivision 4 to read as follows:
17 4. Notwithstanding any other law to the contrary, any person entitled
18 to receive compensation under this chapter shall provide the board and
19 any insurance carrier or self-insured who otherwise may be liable for
20 such compensation, upon request, his or her current residence and mail-
21 ing address. Any such claimant shall notify the board and the insurance
22 carrier or self-insured liable for paying such compensation of any
23 change in his or her residence address within thirty days.
24 § 20. Subdivisions 1, 2 and 3 of section 21-a of the workers’ compen-
25 sation law, as added by chapter 635 of the laws of 1996, are amended to
26 read as follows:
27 1. Notwithstanding any other provision of this chapter to the contra-
28 ry, in any instance in which an employer is unsure of the extent of its
29 liability for a claim for compensation by an injured employee pursuant
30 to this chapter, such employer may initiate compensation payments and
31 payments for prescribed medicine and continue such payments for one
32 year, without prejudice and without admitting liability, in accordance
33 with a notice of temporary payment of compensation, on a form prescribed
34 by the board.
35 2. The notice of temporary payment of compensation authorized by
36 subdivision one of this section shall be delivered to the injured
37 employee and the board. Such notice shall notify the injured employee
38 that the temporary payment of compensation and prescribed medicine shall
39 not be deemed to be an admission of liability by the employer for the
40 injury or injuries to the employee. The board, upon receipt of a notice
41 of temporary payment of compensation, shall send a notice to the injured
42 employee stating that:
43 (a) the board has received a notice of temporary payment of compen-
44 sation relating to such injured employee;
45 (b) the payment of temporary compensation and prescribed medicine and
46 the injured employee's acceptance of such temporary compensation and
47 prescribed medicine shall not be an admission of liability by the
48 employer, nor prejudice the claim of the injured employee;
49 (c) the payment of temporary compensation and prescribed medicine
50 shall terminate on the elapse of: one year, or the employer's contesting
51 of the injured employee's claim for compensation, or the board determi-
52 nation of the injured [employees’] employee's claim, whichever is first;
53 and
54 (d) the injured employee may be required to enter into an agreement
55 with the employer to ensure the continuation of payments of temporary
56 compensation and prescribed medicine.
S. 6461 17 A. 9561
1 3. An employer may cease making temporary payments of compensation and
2 prescribed medicine if such employer delivers within five days after the
3 last payment, to the injured employee and the board, a notice of termi-
4 nation of temporary payments of compensation on a form prescribed by the
5 board. Such notice shall inform the injured employee that the employer
6 is ceasing temporary payment of compensation and prescribed medicine.
7 Upon the cessation of temporary payments of compensation and prescribed
8 medicine, all parties to any action pursuant to this chapter shall
9 retain all rights, defenses and obligations they would otherwise have
10 pursuant to this chapter without regard for the temporary payment of
11 compensation and prescribed medicine.
12 § 21. Section 23 of the workers’ compensation law, as amended by chap-
13 ter 635 of the laws of 1996, is amended to read as follows:
14 § 23. Appeals. An award or decision of the board shall be final and
15 conclusive upon all questions within its jurisdiction, as against the
16 state fund or between the parties, unless reversed or modified on appeal
17 therefrom as hereinafter provided. Any party may within thirty days
18 after notice of the filing of an award or decision of a referee, file
19 with the board an application in writing for a modification or rescis-
20 sion or review of such award or decision, as provided in this chapter.
21 The board shall render its decision upon such application in writing and
22 shall include in such decision a statement of the facts which formed the
23 basis of its action on the issues raised before it on such application.
24 Within thirty days after notice of the decision of the board upon such
25 application has been served upon the parties, or within thirty days
26 after notice of an administrative redetermination review decision by the
27 chair pursuant to subdivision five of section fifty-two of this chapter
28 has been served upon any party in interest, an appeal may be taken ther-
29 efrom to the appellate division of the supreme court, third department,
30 by any party in interest, including an employer insured in the state
31 fund; provided, however, that if the decision or determination was that
32 of a panel of the board and there was a dissent from such decision or
33 determination other than a dissent the sole basis of which is to refer
34 the case to an impartial specialist, any party in interest may within
35 thirty days after notice of the filing of the board panel's decision
36 with the secretary of the board, make application in writing for review
37 thereof by the full board, and the full board shall review and affirm,
38 modify or rescind such decision or determination in the same manner as
39 herein above provided for an award or decision of a referee; provided
40 further that if the decision or determination was that of a unanimous
41 panel of the board, any party in interest may within thirty days after
42 notice of the filing of the board panel's decision with the secretary of
43 the board, make application in writing for review thereof by the full
44 board, and the full board may in its discretion review and affirm, modi-
45 fy or rescind such decision in the same manner as herein above provided
46 for an award or decision of a referee. Such an application for discre-
47 tionary review by the full board of a unanimous board panel decision
48 shall not toll the time period within which to file an appeal to the
49 court as above provided. A party requesting either mandatory or discre-
50 tionary review by the full board shall submit an application raising
51 arguments relative to the alleged deficiencies of the board panel deci-
52 sion. Failure to apply for [such] review by the full board shall not
53 bar any party in interest from taking an appeal directly to the court as
54 above provided. The board may also, in its discretion certify to such
55 appellate division of the supreme court, questions of law involved in
56 its decision. Such appeals and the question so certified shall be heard
S. 6461 18 A. 9561
1 in a summary manner and shall have precedence over all other civil cases
2 in such court. The board shall be deemed a party to every such appeal
3 from its decision upon such application, and the chair shall be deemed a
4 party to every such appeal from an administrative redetermination review
5 decision pursuant to subdivision five of section fifty-two of this chap-
6 ter. The attorney general shall represent the board and the chair there-
7 on. An appeal may also be taken to the court of appeals in the same
8 manner and subject to the same limitations not inconsistent herewith as
9 is now provided in the civil practice law and rules. It shall not be
10 necessary to file exceptions to the rulings of the board. An application
11 for discretionary review by the full board of a unanimous board panel
12 decision, or an appeal to the appellate division of the supreme court,
13 third department, or to the court of appeals, shall not operate as a
14 stay of the payment of compensation required by the terms of the award
15 or of the payment of the [doctors’ bills] cost of such medical, dental,
16 surgical, optometric or other attendance, treatment, devices, apparatus
17 or other necessary items the employer is required to provide pursuant to
18 section thirteen of this article which are found to be fair and reason-
19 able. Where such award is modified or rescinded upon appeal, the appel-
20 lant shall be entitled to reimbursement in a sum equal to the compen-
21 sation in dispute paid to the respondent in addition to a sum equal to
22 the [amount of the doctors’ bills] cost of such medical, dental, surgi-
23 cal, optometric or other attendance, treatment, devices, apparatus or
24 other necessary items the employer is required to provide pursuant to
25 section thirteen of this article paid by the appellant pending adjudi-
26 cation of the appeal. Such reimbursement shall be paid from adminis-
27 tration expenses as provided in section one hundred fifty-one of this
28 chapter upon audit and warrant of the comptroller upon vouchers approved
29 by the chair. Where such award is subject to the provisions of section
30 twenty-seven of this article, the appellant shall pay directly to the
31 claimant all compensation as it becomes due during the pendency of the
32 appeal, and upon affirmance shall be entitled to credit for such
33 payments. Neither the chair, the board, the commissioners of the state
34 insurance fund nor the claimant shall be required to file a bond upon an
35 appeal to the court of appeals. Upon final determination of such an
36 appeal, the board or chair, as the case may be, shall enter an order in
37 accordance therewith. Whenever a notice of appeal is served or an appli-
38 cation made to the board by the employer or insurance carrier for a
39 modification or rescission or review of an award or decision, and the
40 board shall find that such notice of appeal was served or such applica-
41 tion was made for the purpose of delay or upon frivolous grounds, the
42 board shall impose a penalty in the amount of [two hundred fifty] five
43 hundred dollars upon the employer or insurance carrier, which penalty
44 shall be added to the compensation and paid to the claimant. Whenever a
45 notice of appeal is served or an application made to the board by the
46 claimant's attorney or licensed representative for a modification or
47 recision or review of an award or decision, and the board shall find
48 that such notice of appeal was served or such application was made for
49 the purpose of delay or upon frivolous grounds, the board shall impose a
50 penalty in the amount of five hundred dollars upon the claimant's attor-
51 ney or licensed representative, which shall be payable to the adminis-
52 trative expense fund pursuant to section one hundred fifty-one of this
53 chapter. The penalties provided herein shall be collected in like manner
54 as compensation. A party against whom an award of compensation shall be
55 made may appeal from a part of such award. In such a case the payment of
56 such part of the award as is not appealed from shall not prejudice any
S. 6461 19 A. 9561
1 rights of such party on appeal, nor be taken as an admission against
2 such party. Any appeal by an employer from an administrative redetermi-
3 nation review decision pursuant to subdivision five of section fifty-two
4 of this chapter shall in no way serve to relieve the employer from the
5 obligation to timely pay compensation and benefits otherwise payable in
6 accordance with the provisions of this chapter.
7 Nothing herein contained shall be construed to inhibit the continuing
8 jurisdiction of the board as provided in section one hundred twenty-
9 three of this chapter.
10 § 22. Paragraph (a) of subdivision 2-a of section 25 of the workers’
11 compensation law, as amended by chapter 635 of the laws of 1996, is
12 amended to read as follows:
13 (a) In any controverted case, upon receipt of the notice of controver-
14 sy, the board shall schedule a pre-hearing conference before a referee
15 or conciliator as soon as practicable but not to exceed [sixty] forty-
16 five days after receipt of notice of controversy and a medical report
17 referencing an injury. The board shall give notice of the pre-hearing
18 conference to all parties. A party may appear at such conference pro se,
19 or by an attorney or licensed representative or other representative
20 authorized by the board to appear on behalf of such party.
21 § 23. Paragraph (b) of subdivision 2-b of section 25 of the workers’
22 compensation law, as amended by chapter 635 of the laws of 1996, is
23 amended to read as follows:
24 (b) Each claim that is filed shall be reviewed for possible transfer
25 for conciliation. Claims [where the expected duration of benefits is
26 fifty-two weeks or less] shall be transferred for conciliation within
27 thirty days of receipt of a carrier's response to notice of index
28 required under this section, except uncontested claims where there have
29 been only temporary or minor injuries and where board appearance by the
30 claimant is unnecessary. Such minor and uncontested claims shall be
31 handled through a motion calendar as prescribed by the rules and regu-
32 lations promulgated pursuant to this section.
33 § 24. Paragraph (a) of subdivision 2-c of section 25 of the workers’
34 compensation law, as added by chapter 491 of the laws of 1995, is
35 amended to read as follows:
36 (a) For the purposes of employments classified under sections two
37 hundred twenty, two hundred forty and two hundred forty-one of the labor
38 law, employments listed under group six of subdivision one of section
39 three of this chapter and any other manufacturing employments performed
40 in a factory setting, an employer and a recognized or certified exclu-
41 sive bargaining representative of its employees may include within their
42 collective bargaining agreement provisions to establish an alternative
43 dispute resolution system to resolve claims arising under this chapter.
44 Any collective bargaining agreement or agreement entered into by the
45 employee and an employer which purports to preempt any provision of this
46 chapter or in any way diminishes or changes rights and benefits provided
47 under this chapter, except as expressly provided herein, shall be null,
48 void and unenforceable.
49 § 25. Paragraph (d) of subdivision 3 of section 25 of the workers’
50 compensation law, as amended by chapter 635 of the laws of 1996, is
51 amended to read as follows:
52 (d) If, in any case, the issues have not been resolved within [two
53 years] one year after such issues have been raised before the board, or
54 if multiple claims arise from the same accident or occurrence, or if all
55 parties agree to an expedited hearing, or if a notice of controversy is
56 filed, or if the chair otherwise deems it necessary, the chair may order
S. 6461 20 A. 9561
1 that the case be transferred to a special part for expedited hearings.
2 Proceedings in such part shall be conducted in an expedited manner.
3 § 26. Section 26 of the workers’ compensation law, as separately
4 amended by chapters 106 and 135 of the laws of 1969, is amended to read
5 as follows:
6 § 26. Enforcement of payment in default. In case of default by the
7 employer in the payment of any compensation due under an award for the
8 period of thirty days after payment is due and payable, or in the case
9 of failure by the employer to make full payment of an award for medical
10 care issued by the board or the chair pursuant to section thirteen-g of
11 this article or in case of failure or refusal by the employer to deposit
12 with the [chairman] chair within ten days after demand the commuted or
13 estimated value of the compensation payable under an award made in
14 accordance with the provisions of section fourteen-a of this [chapter]
15 article as security for prompt and convenient payment of such compen-
16 sation periodically as it accrues, or where the employer has failed to
17 secure the payment of compensation to his employees as required by
18 section fifty [hereof] of this chapter and there is such default in
19 payment for a period of ten days after same is due or there is default
20 or refusal of such employer to deposit with the [chairman] chair within
21 ten days after demand the commuted or estimated value of compensation
22 not presently payable, as security for prompt and convenient payment of
23 such compensation periodically as it accrues in accordance with the
24 provisions of section twenty-five of this [chapter] article, or in case
25 of failure by an employer, within twenty days after it is due, to pay an
26 assessment imposed by the [chairman] chair pursuant to subdivision five
27 of section fifty-two of this chapter, the [chairman] chair in any such
28 case or on the [chairman's] chair's consent any party to an award may
29 file with the county clerk for the county in which the injury occurred
30 or the county in which the employer has his or her principal place of
31 business, (1) a certified copy of the decision of the [workmen's] work-
32 ers’ compensation board awarding compensation or ending, diminishing or
33 increasing compensation previously awarded, from which no appeal has
34 been taken within the time allowed therefor, or if an appeal has been
35 taken by an employer who has not complied with the provisions of section
36 fifty [hereof] of this chapter, where he fails to deposit with the
37 [chairman] chair the amount of the award as security for its payment
38 within ten days after the same is due and payable, or (2) a certified
39 copy of the demand for deposit of security, or (3) a certified copy of
40 the [chairman's] chair's order imposing, and the demand for payment of,
41 such assessment, or (4) a certified copy of the award for medical care
42 issued pursuant to section thirteen-g of this article, and thereupon
43 judgment must be entered in the supreme court by the clerk of such coun-
44 ty in conformity therewith immediately upon such filing. If the payment
45 in default be an instalment, the board may declare the entire award due
46 and judgment may be entered in accordance with the provisions of this
47 section. Such judgment shall be entered in the same manner, have the
48 same effect and be subject to the same proceedings as though rendered in
49 a suit duly heard and determined by the supreme court, except that no
50 appeal may be taken therefrom. The court shall vacate or modify such
51 judgment to conform to any later award or decision of the board upon
52 presentation of a certified copy of such award or decision. The award
53 may be so compromised by the board as in the discretion of the board may
54 best serve the interest of the persons entitled to receive the compen-
55 sation or benefits. Where an award has been made against the employer in
56 accordance with the provisions of subdivision nine of section fifteen[,
S. 6461 21 A. 9561
1 subdivision nine], or of section twenty-five-a, or of section twenty-
2 six-a of this article, such an award may be similarly compromised by the
3 board, upon notice to a representative of the fund to which the award is
4 payable, but if there be no representative of any such fund, notice
5 shall be given to such representative as may be designated by the
6 [chairman] chair of the board; and notwithstanding any other provision
7 of law, such compromise shall be effective without the necessity of any
8 approval by the state comptroller. Neither the [chairman] chair nor any
9 party in interest shall be required to pay any fee to any public officer
10 for filing or recording any paper or instrument or for issuing a tran-
11 script of any judgment executed in pursuance of this section. The
12 employer shall be liable for all costs and attorney fees necessary to
13 enforce the award. Whenever the term employer is used in this section it
14 shall be deemed to include without limitation a contractor liable for
15 the payment of compensation pursuant to section fifty-six of [the work-
16 men's compensation law] this chapter.
17 § 27. Paragraph (b) of subdivision 2 of section 26-a of the workers’
18 compensation law, as amended by chapter 316 of the laws of 1991, is
19 amended to read as follows:
20 (b) For the purpose of establishing and maintaining this fund, the
21 board, upon rendering a decision with respect to any claim for compen-
22 sation under this chapter that the employer liable therefor has failed
23 to secure the payment of compensation with respect thereto in accordance
24 with section fifty of this chapter, shall impose an assessment in the
25 sum of [two hundred fifty] five thousand dollars against the employer
26 and direct its payment into the fund in connection with each such claim
27 wherein injury shall have occurred on or after the first of May, nine-
28 teen hundred fifty-nine, or in death cases where death as the result of
29 injury shall have occurred on or after said date. [The board shall also
30 impose an additional assessment of fifteen per centum of the award or
31 awards made in each such claim, such additional assessment shall not be
32 less than one thousand five hundred dollars and shall not exceed five
33 thousand dollars in any one claim, and shall direct that such additional
34 assessment also be paid into the fund.]
35 § 28. Subdivision 4 of section 27 of the workers’ compensation law, as
36 amended by chapter 425 of the laws of 1985, is amended to read as
37 follows:
38 4. In the event of a review or appeal of any such award the value of
39 which has not been paid into the aggregate trust fund, if the amount of
40 award is modified or changed, the employer or insurance carrier shall
41 pay directly to the claimant compensation due to the date as of which
42 the present value of future benefits is payable into such fund, and to
43 the said fund the present value of future benefits, but if the original
44 award is affirmed, the employer or insurance carrier shall pay to such
45 fund the present value of the award computed as of the effective date of
46 the original award and simple interest on such amount at three and one-
47 half per centum per annum computed from the date of the original award
48 to the date that payment is made into such fund, plus simple interest at
49 the rate provided in section five thousand four of the civil practice
50 law and rules, on past due payments of compensation to the date of the
51 affirmance of such award, which past due payment and interest shall be
52 made directly to the claimant. The foregoing provision shall apply in
53 the event of such review or appeal regardless of whether the widow or
54 widower or other parties in interest have died or the widow or widower
55 remarried subsequent to the date as of which the present value of the
56 original award was computed. If any award, the present value of which
S. 6461 22 A. 9561
1 has been paid into the aggregate trust fund, is subsequently modified or
2 changed by the board for any reason other than because of subsequent
3 death or remarriage, the amount equal to the present value of the unpaid
4 death benefits or other compensation at the effective date of such
5 modification or change shall be computed on the basis both of the
6 original award and of the modified or changed award. If such amount is
7 greater on the basis of the original award, the difference shall be paid
8 by said trust fund to the employer or insurance carrier minus the cost,
9 if any, of the actuarial computation made by or on behalf of the board.
10 If such amount is greater on the basis of the modified or changed award,
11 the difference shall be paid to said trust fund by such employer or
12 insurance carrier in addition to the cost, if any, of the actuarial
13 computation made by or on behalf of the board. In the case of an acci-
14 dent, occurring on or subsequent to July first, nineteen hundred thir-
15 ty-nine, where the present value of an award for permanent total or
16 permanent partial disability other than award for a definite number of
17 weeks has been paid into the aggregate trust fund, if an award is made
18 for death resulting from the injury causing the said disability, the
19 employer or insurance carrier which paid the present value of said disa-
20 bility award into such fund shall be entitled to the difference between
21 the amount paid into such fund and the sum disbursed from such fund to
22 the injured employee prior to his or her death, plus simple interest on
23 such difference at three and one-half per centum per annum. In the case
24 of an accident occurring on or subsequent to July first, nineteen
25 hundred thirty-nine, where the present value of an award for permanent
26 partial disability for a definite number of weeks has been paid into the
27 aggregate trust fund, if the injured employee dies prior to the end of
28 such definite number of weeks, the employer or insurance carrier which
29 made the said payment into such fund shall be entitled to the present
30 value of the unexpended disability benefits not payable to beneficiaries
31 computed on the basis of annuities certain with interest at the rate of
32 three and one-half per centum per annum, minus however the cost, if any,
33 of the actuarial computation made by or on behalf of the board. In the
34 case of a claim for the death of an employee resulting from an accident
35 occurring on or subsequent to January first, two thousand one, the pres-
36 ent value of an award paid into the aggregate trust fund shall be calcu-
37 lated based on the assumption that any child while under the age of
38 twenty-three years will be enrolled and attending as a full time student
39 in an accredited educational institution and would thereby be entitled
40 to benefits for all periods while under the age of twenty-three years.
41 After all such children reach the age of twenty-three, the aggregate
42 trust fund shall refund to the carrier which paid such present value
43 into such fund the portion of such present value representing benefits
44 for which such children were not actually entitled because they were not
45 enrolled and attending as a full time student in an accredited educa-
46 tional institution plus simple interest on such difference at three and
47 one-half per centum per annum.
48 § 29. Subdivision 5 of section 27 of the workers’ compensation law, as
49 amended by chapter 415 of the laws of 1983, is amended to read as
50 follows:
51 5. All computations made by the board shall be upon the basis of the
52 survivorship annuitants table of mortality, the remarriage tables of the
53 Dutch Royal Insurance Institution and interest at three and one-half per
54 centum per annum on claims based on accidents occurring up to and
55 including June thirtieth, nineteen hundred thirty-nine, at three per
56 centum per annum on claims based on accidents occurring from July first,
S. 6461 23 A. 9561
1 nineteen hundred thirty-nine up to and including August thirty-first,
2 nineteen hundred eighty-three, [and] at six per centum per annum on
3 claims based on accidents occurring from September first, nineteen
4 hundred eighty-three up to and including December thirty-first, two
5 thousand and at three and one-half per centum per annum on claims based
6 on accidents occurring thereafter, except (a) that computations of pres-
7 ent values of death benefits required to be paid into the aggregate
8 trust fund by an insurance carrier which is a stock corporation or a
9 mutual association shall be based, in the case of a dependent parent,
10 grandparent, blind or physically disabled child or spouse, upon said
11 table of mortality disregarding possible change in or termination of
12 dependency, with interest at three and one-half per centum per annum on
13 claims based on accidents occurring up to and including June thirtieth,
14 nineteen hundred thirty-nine, at three per centum per annum on claims
15 based on accidents occurring from July first, nineteen hundred thirty-
16 nine up to and including August thirty-first, nineteen hundred eighty-
17 three, [and] at six per centum per annum on claims based on accidents
18 occurring from September first, nineteen hundred eighty-three up to and
19 including December thirty-first, two thousand and at three and one-half
20 per centum per annum on claims based on accidents occurring thereafter
21 and (b) that computations of present values of permanent partial disa-
22 bility benefits awarded for a definite number of weeks shall be on the
23 basis of annuities certain with interest at three and one-half per
24 centum per annum on claims based on accidents occurring up to and
25 including June thirtieth, nineteen hundred thirty-nine, at three per
26 centum per annum on claims based on accidents occurring from July first,
27 nineteen hundred thirty-nine up to and including August thirty-first,
28 nineteen hundred eighty-three [and], at six per centum per annum on
29 claims based on accidents occurring from September first, nineteen
30 hundred eighty-three up to and including December thirty-first, two
31 thousand and at three and one-half per centum per annum on claims based
32 on accidents occurring thereafter.
33 § 30. The closing paragraph of subdivision 7 of section 27 of the
34 workers’ compensation law, as amended by chapter 62 of the laws of 1989,
35 is amended to read as follows:
36 Such additional payments shall be required until the surplus of the
37 fund equals or exceeds one per centum of the total outstanding loss
38 reserves as shown by three successive annual reports of the fund to the
39 superintendent of insurance and such additional payment shall be
40 required as a payment upon each award based on an accident occurring
41 prior to July first next succeeding the third such annual report, but
42 not as a payment upon any award based on an accident occurring on or
43 after said July first; provided, however, that if and when the surplus
44 of the fund as shown by any annual report thereafter shall be less than
45 one per centum of the total outstanding loss reserves, then the addi-
46 tional payments as provided in paragraphs (a), (b), (c) and (d) of this
47 subdivision shall be resumed and shall be payable upon any award based
48 on an accident occurring on or after July first next succeeding the
49 close of the year for which such annual report is made. Thereafter, the
50 suspension or resumption of additional payments as required by this
51 subdivision shall be governed by the foregoing provisions. Such loss
52 reserves shall be computed based upon the tables specified in subdivi-
53 sion five of this section [twenty-seven of this law] and interest at
54 [six] three and one-half per centum per annum.
55 § 31. Section 27 of the workers’ compensation law is amended by adding
56 a new subdivision 8 to read as follows:
S. 6461 24 A. 9561
1 8. In the case of a claim concerning which the aggregate trust fund
2 enters a waiver agreement pursuant to section thirty-two of this arti-
3 cle, the insurance carrier, as defined in subdivision twelve of section
4 two of this chapter, which paid the present value of the award for such
5 claim shall not be entitled to a refund of any portion of the present
6 value of such award.
7 § 32. Section 32 of the workers’ compensation law, as amended by chap-
8 ter 635 of the laws of 1996, is amended to read as follows:
9 § 32. Waiver agreements. No agreement or release except as otherwise
10 provided in this chapter by an employee to waive his or her right to
11 compensation under this chapter shall be valid.
12 (a) Whenever a claim has been filed, the claimant or the deceased
13 claimant's dependents and the employer [or his], its carrier or, the
14 aggregate trust fund, if the board has directed that the present value
15 of any unpaid compensation be paid into such fund pursuant to section
16 twenty-seven of this article, may enter into an agreement settling upon
17 and determining the compensation and other benefits due to the claimant
18 or their dependents. The agreement shall not bind the parties to it,
19 unless it is approved by the board. Such agreements, when so approved,
20 notwithstanding any other provisions, shall be final and conclusive upon
21 the claimant, the [claimants] claimant's dependents, the employer [and
22 the], its insurance carrier and the aggregate trust fund. Every insur-
23 ance carrier as defined in subdivision twelve of section two of this
24 chapter shall offer each claimant the opportunity to enter into an
25 agreement settling upon and determining the compensation and other bene-
26 fits due, in the case of disability, within two years after the date the
27 claim was indexed by the board or six months after the claimant is clas-
28 sified with a permanent disability, whichever is later, and in the case
29 of death, within six months after entitlement to benefits is established
30 for all beneficiaries. The offer made by the insurance carrier shall
31 clearly state what portion of the offer is (i) for compensation as
32 defined in subdivision six of section two of this chapter, if any; (ii)
33 for medical benefits, including prescription medicine, if any; and (iii)
34 for the fee of the attorney or licensed representative, if any. If a
35 claimant is represented by an attorney or licensed representative, the
36 insurance carrier shall present such offer to such legal representative.
37 If a claimant is not represented by an attorney or a licensed represen-
38 tative, the insurance carrier shall, in addition to the offer to enter
39 into a settlement agreement, provide the claimant with a statement of
40 his or her rights, obligations and potential liability if the offer is
41 accepted.
42 (b) The agreement shall be approved by the board in a decision duly
43 filed and served unless:
44 (1) the board finds the proposed agreement unfair, unconscionable, or
45 improper as a matter of law;
46 (2) the board finds that the proposed agreement is the result of an
47 intentional misrepresentation of material fact; or,
48 (3) within ten days of submitting the agreement one of the interested
49 parties requests that the board disapprove the agreement.
50 (c) A decision duly filed and served approving an agreement submitted
51 to the board shall not be subject to review pursuant to section twenty-
52 three of this article. However, a decision duly filed and served disap-
53 proving an agreement submitted to the board is subject to review pursu-
54 ant to section twenty-three of this article. If the board disapproves
55 of an agreement it shall duly file and serve a notice of decision
56 setting aside the proposed agreement.
S. 6461 25 A. 9561
1 (d) An agreement for compensation and other benefits covered by this
2 chapter may be modified at [anytime] any time by agreement of all
3 interested parties provided it is approved by the board.
4 (e) As part of an agreement settling upon and determining the compen-
5 sation and other benefits due to the claimant, the parties may agree
6 that all or any part of the compensation and other benefits may be
7 provided through the purchase by the insurance carrier as defined in
8 subdivision twelve of section two of this chapter or an agent of such
9 insurance carrier of an annuity for the benefit of the claimant,
10 provided the annuity is purchased from an insurer authorized to issue
11 annuity contracts in this state that has a strong or excellent financial
12 rating as determined by rating agencies deemed accepted by the chair.
13 Upon approval of the agreement by the board and the purchase of the
14 annuity for the benefit of the claimant, the liability of the insurance
15 carrier, self-insurer or state insurance fund for the compensation
16 and/or other benefits covered by the annuity is extinguished to the
17 extent the life insurance company guaranty corporation of New York as
18 established by article seventy-seven of the insurance law assures
19 payment of the contractual obligations of the insurer that issued the
20 annuity should the insurer become impaired or insolvent.
21 § 33. Paragraph (a) of subdivision 1 of section 52 of the workers’
22 compensation law, as amended by chapter 924 of the laws of 1990, is
23 amended to read as follows:
24 (a) Failure to secure the payment of compensation shall constitute a
25 misdemeanor, punishable by a fine of not less than [five hundred] one
26 thousand nor more than [two thousand five hundred] five thousand dollars
27 or imprisonment for not more than one year, or both.
28 § 34. Paragraph (b) of subdivision 1 of section 52 of the workers’
29 compensation law, as amended by chapter 924 of the laws of 1990, is
30 amended to read as follows:
31 (b) Where any person has previously been convicted of a failure to
32 secure the payment of compensation within the preceding five years, upon
33 conviction for a second violation such person shall be fined not less
34 than [one] two thousand nor more than [five] ten thousand dollars in
35 addition to any other penalties including fines otherwise provided by
36 law, and upon conviction for a third or subsequent violation such person
37 may be fined up to [seven] fifteen thousand [five hundred] dollars in
38 addition to any other penalties including fines otherwise provided by
39 law.
40 § 35. Subdivision 5 of section 52 of the workers’ compensation law, as
41 amended by chapter 924 of the laws of 1990, is amended to read as
42 follows:
43 5. The chair, upon finding that an employer has failed for a period of
44 not less than ten consecutive days to make the provision for payment of
45 compensation required by section fifty of this [chapter] article, may
46 impose upon such employer, in addition to all other penalties, fines or
47 assessments provided for in this chapter, a penalty of five thousand
48 dollars and either two hundred fifty dollars for each ten day period of
49 non-compliance or a sum not in excess of two percent of its payroll for
50 the period of such failure, whichever is the most appropriate as deter-
51 mined by the chair, which sum shall be paid into the uninsured employ-
52 ers’ fund created under section twenty-six-a of this chapter. Where the
53 employer is a corporation, the president, secretary and treasurer there-
54 of shall be liable for the penalty. If the employer shall within thirty
55 days after notice of the imposition of a penalty by the chair pursuant
56 to this subdivision make an application in affidavit form for a redeter-
S. 6461 26 A. 9561
1 mination review of such penalty the [chairman] chair shall make a deci-
2 sion in writing on the issues raised on such application.
3 § 36. Section 52 of the workers’ compensation law is amended by adding
4 a new subdivision 6 to read as follows:
5 6. Where the employer is a corporation, the president, vice-president,
6 secretary, and treasurer shall jointly and severally be personally
7 liable for any and all obligations due and owing to an insurance carri-
8 er, including but not limited to the state insurance fund, or to a group
9 self-insurance plan created pursuant to subdivision three-a of section
10 fifty of this article, for workers’ compensation and employers’ liabil-
11 ity coverage.
12 § 37. Subdivisions 1 and 2 of section 54 of the workers’ compensation
13 law, subdivision 1 as amended by chapter 605 of the laws of 1946, are
14 amended to read as follows:
15 1. Right of recourse to the insurance carrier. Every policy of insur-
16 ance covering the liability of the employer for compensation shall be
17 issued by [a] one or more stock [company] companies, [by a] mutual
18 [corporation] corporations or [by a] reciprocal [insurer] insurers
19 authorized to transact [workmen's] workers’ compensation insurance in
20 this state. In the case of a policy with multiple insurers, such insur-
21 ers shall share one hundred percent of the liabilities by subscription,
22 and one of the insurers shall serve as the lead insurer for notice and
23 cancellation purposes. Such a policy shall contain a provision setting
24 forth the right of the [chairman] chair to enforce in the name of the
25 people of the state of New York for the benefit of the person entitled
26 to the compensation insured by the policy either by filing a separate
27 application or by making the insurance carrier a party to the original
28 application, the liability of the insurance carrier in whole or in part
29 for the payment of such compensation; provided, however, that payment in
30 whole or in part of such compensation by either the employer or the
31 insurance carrier shall to the extent thereof be a bar to the recovery
32 against the other of the amount so paid.
33 2. Knowledge and jurisdiction of the employer extended to cover the
34 insurance carrier. Every such policy shall contain a provision that, as
35 between the employee and the insurance carrier, the notice to or know-
36 ledge of the occurrence of the injury on the part of the employer shall
37 be deemed notice or knowledge, as the case may be, on the part of the
38 insurance carrier, or if more than one insurer, the lead carrier; that
39 jurisdiction of the employer shall, for the purpose of this chapter, be
40 jurisdiction of the lead insurance carrier and that [the] such insurance
41 carrier shall in all things be bound by and subject to the orders, find-
42 ings, decisions or awards rendered against the employer for the payment
43 of compensation under the provisions of this chapter.
44 § 38. Section 54 of the workers’ compensation law is amended by adding
45 a new subdivision 9 to read as follows:
46 9. Certificate of insurance. A certificate of insurance or other
47 proof that the payment of benefits has been secured as required by this
48 chapter shall specify whether any corporate officer, partner of a part-
49 nership or self-employed person is excluded from coverage for benefits.
50 § 39. Section 54 of the workers’ compensation law is amended by adding
51 a new subdivision 10 to read as follows:
52 10. Refusal to issue policy; federal employer identification number.
53 An insurance carrier, including the state insurance fund, may refuse to
54 issue a policy for workers’ compensation insurance to any employer that
55 fails to disclose its federal employer identification number as defined
56 in paragraph three of subdivision (a) of section ten of the tax law or,
S. 6461 27 A. 9561
1 if such employer is an individual that has not obtained such a number,
2 such employer's social security number.
3 § 40. Section 54 of the workers’ compensation law is amended by adding
4 a new subdivision 11 to read as follows:
5 11. Refusal to issue policy; conviction. An insurance carrier,
6 including the state insurance fund, may refuse to issue a policy of
7 insurance to any person or to any entity owned or controlled, or the
8 majority interest of which is owned or controlled directly or indirect-
9 ly, by any person that has been convicted of any felony within the last
10 ten years or any misdemeanor within the last five years which consti-
11 tuted a fraudulent insurance act including those provided under article
12 one hundred seventy-six of the penal law or sections ninety-five, nine-
13 ty-six, one hundred fourteen and one hundred thirty-one of this chapter.
14 For the purposes of this subdivision, "person" means any individual,
15 firm, company, partnership, corporation, limited liability company,
16 joint venture, joint-stock association, association, trust or any other
17 legal entity whatsoever.
18 § 41. Section 54-b of the workers’ compensation law, as amended by
19 chapter 113 of the laws of 1946, is amended to read as follows:
20 § 54-b. Enforcement on failure to pay award or judgment. [In the event
21 of the failure of a carrier or self-insurer to pay an award after the
22 expiration of thirty days from the entry thereof, from which award or
23 decision in connection therewith no appeal has been taken as provided by
24 law, the chairman may enforce the payment of said award against the
25 carrier or self-insurer by the entry of judgment in accordance with the
26 provisions hereof and section twenty-six. Where, however, the carrier
27 or self-insurer has taken an appeal and the award or decision in
28 connection therewith has been finally affirmed, as provided by law, and
29 no rehearing has been ordered by the board herein, if such award and
30 accrued costs and interest are not paid within thirty days after the
31 entry of a final order by the court of last resort, the chairman may
32 enforce, in like manner, payment against such carrier or self-insurer of
33 all sums of money due thereon.] In case of default by a carrier or self-
34 insured employer in the payment of any compensation due under an award
35 for the period of thirty days after payment is due and payable, or in
36 the case of failure by a carrier or self-insured employer to make full
37 payment of an award for medical care issued by the board or the chair
38 pursuant to section thirteen-g of this chapter, the chair in any such
39 case or on the chair's consent any party to an award may file with the
40 county clerk for the county in which the injury occurred or the county
41 in which the carrier or self-insured employer has his or her principal
42 place of business, (1) a certified copy of the decision of the workers’
43 compensation board awarding compensation or ending, diminishing or
44 increasing compensation previously awarded, from which no appeal has
45 been taken within the time allowed therefor, or if an appeal has been
46 taken by a carrier or self-insured employer who has not complied with
47 the provisions of section fifty of this article, where he or she fails
48 to deposit with the chair the amount of the award as security for its
49 payment within ten days after the same is due and payable, or (2) a
50 certified copy of the award for medical care issued pursuant to section
51 thirteen-g of this chapter, and thereupon judgment must be entered in
52 the supreme court by the clerk of such county in conformity therewith
53 immediately upon such filing. If the payment in default be an install-
54 ment, the board may declare the entire award due and judgment may be
55 entered in accordance with the provisions of this section. Such judgment
56 shall be entered in the same manner, have the same effect and be subject
S. 6461 28 A. 9561
1 to the same proceedings as though rendered in a suit duly heard and
2 determined by the supreme court, except that no appeal may be taken
3 therefrom. The court shall vacate or modify such judgment to conform to
4 any later award or decision of the board upon presentation of a certi-
5 fied copy of such award or decision. The award may be so compromised by
6 the board as in the discretion of the board may best serve the interest
7 of the persons entitled to receive the compensation or benefits. Where
8 an award has been made against a carrier or self-insured employer in
9 accordance with the provisions of subdivision nine of section fifteen,
10 or of section twenty-five-a of this chapter, such an award may be simi-
11 larly compromised by the board, upon notice to a representative of the
12 fund to which the award is payable, but if there be no representative of
13 any such fund, notice shall be given to such representative as may be
14 designated by the chair of the board; and notwithstanding any other
15 provision of law, such compromise shall be effective without the neces-
16 sity of any approval by the state comptroller. Neither the chair nor any
17 party in interest shall be required to pay any fee to any public officer
18 for filing or recording any paper or instrument or for issuing a tran-
19 script of any judgment executed in pursuance of this section. The carri-
20 er or self-insured employer shall be liable for all costs and attorneys
21 fees necessary to enforce the award. For the purposes of this section,
22 the term "carrier" shall include the state insurance fund and any stock
23 corporation, mutual corporation or reciprocal insurer authorized to
24 transact the business of workers’ compensation insurance in this state.
25 § 42. The workers’ compensation law is amended by adding a new section
26 54-c to read as follows:
27 § 54-c. Verification of coverage. 1. Every insurance carrier shall
28 provide verification upon request of the holder of a certificate of
29 insurance or other proof that the payment of benefits has been secured
30 as required by this chapter, by electronic means or otherwise, whether
31 current coverage in fact exists.
32 2. The chair shall assess a penalty of five hundred dollars against
33 any insurance carrier upon a finding that such insurance carrier has
34 refused to provide a verification of coverage pursuant to subdivision
35 one of this section.
36 § 43. Subdivision 1 of section 87 of the workers’ compensation law, as
37 amended by chapter 473 of the laws of 2000, is amended to read as
38 follows:
39 1. Any of the surplus or reserve funds belonging to the state insur-
40 ance fund, by order of the commissioners, approved by the superintendent
41 of insurance, may be invested in the types of securities described in
42 subdivisions one, two, three, four, five, six, eleven, twelve, twelve-a,
43 thirteen, fourteen, fifteen, nineteen, twenty, twenty-one, twenty-one-a,
44 twenty-four, twenty-four-a, twenty-four-b, twenty-four-c and twenty-five
45 of section two hundred thirty-five of the banking law or, up to fifty
46 percent of such surplus or reserve funds, in the types of securities or
47 investments described in paragraphs two, three, eight and ten of
48 subsection (a) of section one thousand four hundred four of the insur-
49 ance law except that up to ten percent of the surplus and reserve funds
50 belonging to the state insurance fund that may be invested in the secu-
51 rities of any solvent American institution or of an investment company
52 as described in such paragraphs may be invested irrespective of the
53 rating of such institution's obligations or other similar qualitative
54 standards described in paragraphs two, three, eight and ten of such
55 subsection, but shall not include any derivative instrument or deriva-
56 tive transaction or any investment found by the superintendent of insur-
S. 6461 29 A. 9561
1 ance to be against public policy. Any of the surplus or reserve funds
2 belonging to the state insurance fund, upon like approval of the super-
3 intendent of insurance, may be loaned on the pledge of any such securi-
4 ties. The commissioners, upon like approval of the superintendent of
5 insurance, may also sell any of such securities or investments.
6 § 44. Subdivision 2 of section 110 of the workers’ compensation law,
7 as amended by chapter 635 of the laws of 1996, is amended to read as
8 follows:
9 2. An employer, or a third party designated by the employer, shall
10 file with the chair of the workers’ compensation board and with the
11 carrier if the employer is insured, upon a form prescribed by the chair,
12 a report of any accident resulting in personal injury which has caused
13 or will cause a loss of time from regular duties of one day beyond the
14 working day or shift on which the accident occurred, or which has
15 required or will require medical treatment beyond ordinary first aid or
16 more than two treatments by a person rendering first aid. Such report
17 shall state the name and nature of the business of the employer, the
18 location of its establishment or place of work, the name, current resi-
19 dence and mailing address, social security number, date of birth and
20 occupation of the injured employee, the time, nature and cause of the
21 injury and such other information as may be required by the chair. Such
22 report shall be transmitted to the insurance carrier via fax or computer
23 within three business days of receipt by the employer of the notice of
24 such accident and injury and filed with the board via fax, computer or
25 mail within [ten] five business days after [the occurrence of the]
26 receipt by the employer of the notice of such accident and injury. An
27 employer shall furnish a report of an occupational disease incurred by
28 an employee in the course of his or her employment, to the chair of the
29 workers’ compensation board, and to the carrier if the employer is
30 insured, upon the same form. The carrier, within fourteen days of
31 receipt of the report or accompanying the initial check forwarded to the
32 employee, whichever is earlier, or a self-insured employer, within four-
33 teen days of transmitting the report to the chair or accompanying the
34 initial check forwarded to the employee, whichever is earlier, shall
35 provide the injured employee or, in the case of death, his or her depen-
36 dents with a written statement of their rights under this chapter, in a
37 form prescribed by the chair. An employer shall file a report of any
38 other accident resulting in personal injury incurred by its employee in
39 the course of employment, upon the same form, whenever directed by the
40 chair.
41 § 45. Section 122 of the workers’ compensation law, as amended by
42 chapter 113 of the laws of 1946, is amended to read as follows:
43 § 122. [Transcripts] Records of proceedings. A copy of the testimony,
44 evidence and procedure of any investigation or hearing, or a particular
45 part thereof, [transcribed by a stenographer in the employ of the board
46 and certified by such stenographer to be true and correct] prepared at
47 the direction of the board and using the method determined by the board
48 as appropriate, may be received in evidence with the same force and
49 effect as if [such stenographer] the person who created the record were
50 present and testifying to the facts so certified. A copy of such [tran-
51 script] record shall be furnished to any party upon payment of the fee
52 for [transcripts of] similar [minutes] records in the supreme court to
53 the board.
54 § 46. Section 132 of the workers’ compensation law is amended by
55 adding two new subdivisions 4 and 5 to read as follows:
S. 6461 30 A. 9561
1 4. Notwithstanding the provisions of any other law, any insurance
2 carrier providing compensation under this chapter may require, no more
3 often than every six months, any claimant to certify in writing, upon a
4 form prescribed by the chair, that the conditions and circumstances by
5 which he or she is qualified to receive compensation have continued to
6 the date of such certification. The form shall include such specific
7 questions bearing upon continued eligibility for compensation, as the
8 chair deems appropriate.
9 5. Notwithstanding the provisions of any law, any insurance carrier
10 billed for health care services by a provider under this chapter may
11 require such provider to certify in a form prescribed by the chair, that
12 such provider rendered the services indicated. The form shall include a
13 list of each service, the name of the claimant to which each such
14 service was rendered, the date each such service was rendered and the
15 amount billed for each such service.
16 § 47. The workers’ compensation law is amended by adding a new section
17 133-a to read as follows:
18 § 133-a. Restitution for benefits paid in certain cases. For any claim
19 which the board determines to be non-compensable under section ten of
20 this chapter based on the fact that the injury was causally related to
21 the perpetration by the employee of a crime for which the employee was
22 duly convicted, the board shall order restitution by the employee to the
23 employer or carrier for any benefits paid to such employee.
24 § 48. Subdivision 3 of section 136 of the workers’ compensation law,
25 as added by chapter 635 of the laws of 1996, is amended to read as
26 follows:
27 3. Powers, duties and responsibilities. The inspector general shall
28 investigate violations of the laws and regulations pertaining to the
29 operation of the workers’ compensation system. The inspector general
30 shall have the following powers, duties and functions:
31 (a) to conduct and supervise investigations, within or without this
32 state, of possible fraud and other violations of laws, rules and regu-
33 lations pertaining to the workers’ compensation system;
34 (b) to subpoena witnesses, administer oaths or affirmations, take
35 testimony and compel the production of such books, papers, records and
36 documents as the inspector general may deem to be relevant to an inves-
37 tigation undertaken pursuant to this section;
38 (c) [to report to the attorney general, the insurance frauds bureau,
39 or other appropriate law enforcement agency, violations found through
40 investigations undertaken pursuant to this section and to provide such
41 materials and assistance as may be necessary or appropriate for the
42 successful investigation and prosecution of violations of this chapter]
43 to coordinate investigations of possible fraud and other violations of
44 laws, rules and regulations pertaining to the workers’ compensation
45 system with insurance frauds bureau of the department of insurance,
46 including the unit for workers’ compensation insurance frauds investi-
47 gations within such insurance frauds bureau, and any fraud investi-
48 gations unit of the state insurance fund, such coordination including
49 quarterly meetings with representatives from the insurance frauds bureau
50 of the department of insurance, including the unit for workers’ compen-
51 sation insurance frauds investigation of such insurance frauds bureau,
52 and any frauds investigations unit of the state insurance fund and a
53 report to the chair detailing the coordination efforts and the results
54 of such efforts;
55 (d) to prosecute fraud, any illegal acts or other violations of laws,
56 rules and regulations pertaining to the workers’ compensation system and
S. 6461 31 A. 9561
1 this chapter, including, but not limited to, appearing before and
2 presenting such matters to a grand jury, and any and all courts in this
3 state;
4 (e) notwithstanding any other provision of law, to appoint and employ,
5 a chief fraud prosecutor and one or more deputy fraud prosecutors in
6 each office maintained by the board and to determine their duties and
7 fix their compensation within the amounts appropriated therefor and such
8 chief fraud prosecutor and deputy fraud prosecutors shall be employees
9 in the noncompetitive class not to be designated confidential or policy
10 influencing;
11 (f) to make information and evidence relating to fraud, illegal acts
12 or other violations of laws, rules and regulations pertaining to the
13 workers’ compensation system and this chapter which he or she may obtain
14 in carrying out his or her duties available to appropriate law enforce-
15 ment officials and to consult with the attorney general, the insurance
16 frauds bureau of the department of insurance, any fraud investigation
17 unit of the state insurance fund, local district attorneys and other
18 appropriate law enforcement agencies to coordinate investigations and
19 criminal prosecutions;
20 [(d)] (g) to submit a written report, on an annual basis, to the
21 governor and to the chair of the board, listing all activities undertak-
22 en, including all activities taken to comply with paragraphs (c), (d),
23 (e) and (f) of this subdivision, to the extent such activities can be
24 disclosed pursuant to subdivision five of this section; and
25 [(e)] (h) to recommend legislative and regulatory changes to the
26 governor and to the chair of the board.
27 § 49. Subdivision 5 of section 136 of the workers’ compensation law,
28 as added by chapter 635 of the laws of 1996, is amended to read as
29 follows:
30 5. Disclosure of information. The inspector general shall not publicly
31 disclose information which is:
32 (a) a part of an ongoing investigation or prosecution; or
33 (b) specifically prohibited from disclosure by any other provision of
34 law.
35 The disclosure of information in order to coordinate investigations
36 with the insurance frauds bureau of the department of insurance, includ-
37 ing the unit for workers’ compensation insurance frauds investigations
38 within such insurance frauds bureau, and any frauds investigations unit
39 of the state insurance fund, to provide the report required by paragraph
40 (c) of subdivision three of this section or to apprise the chair of
41 ongoing investigations shall not be considered public disclosure for
42 purposes of this section.
43 § 50. The workers’ compensation law is amended by adding a new section
44 138 to read as follows:
45 § 138. Annual performance reports. The chair shall cause to be
46 prepared an annual report on the performance of all carriers, self-in-
47 sured employers, the state insurance fund, third party administrators,
48 group administrators, self insurance trusts and all other entities and
49 individuals providing workers’ compensation insurance, coverage or
50 services or administering workers’ compensation benefits pursuant to
51 this chapter. The chair may promulgate rules and regulations necessary
52 to implement this section.
53 § 51. The workers’ compensation law is amended by adding a new section
54 139 to read as follows:
55 § 139. Medical criteria; functional impairments. The chair of the
56 board shall appoint and consult with a committee of not less than three
S. 6461 32 A. 9561
1 nor more than eleven outstanding medical consultants to develop objec-
2 tive medical criteria to determine functional impairments. The commit-
3 tee shall meet and confer with representatives of the board and with
4 representatives of employers and employees, and shall thereafter report
5 their findings and recommendations to the chair. The chair, after
6 giving due consideration to such findings and recommendations, shall
7 promulgate objective medical criteria to evaluate functional impair-
8 ments. The promulgation of objective medical criteria shall be used for
9 determining entitlement eligibility absent special circumstances. As
10 needed the chair shall appoint and consult with a committee such as that
11 described above to review and update the objective medical criteria to
12 evaluate functional impairments to ensure such criteria reflects current
13 medical science.
14 § 52. The workers’ compensation law is amended by adding a new section
15 141-a to read as follows:
16 § 141-a. Technological integration. The legislature hereby finds and
17 declares that the systems modernization programs implemented by the
18 workers’ compensation board have improved its claims processing, ability
19 to effectively interact with its constituents and have made overall
20 operations more efficient. In recognition of these beneficial results
21 and in order to encourage greater utilization of improved technology,
22 the chair is hereby authorized to institute programs designed to encour-
23 age all those who interact with the board to do so using the most
24 advanced technological means available that are consistent with the
25 technological capabilities of the board. Such programs may include
26 incentives to encourage board constituents to implement and use technol-
27 ogy to communicate and interact with the board.
28 § 53. Subdivision 2 of section 204 of the workers’ compensation law,
29 as amended by chapter 38 of the laws of 1989, is amended to read as
30 follows:
31 2. The weekly benefit which the disabled employee is entitled to
32 receive for disability commencing (i) on or after July first, two thou-
33 sand six and prior to July first, two thousand seven shall be one-half
34 of the employee's weekly wage, but in no case shall such benefit exceed
35 two hundred twenty-five dollars, (ii) on or after July first, two thou-
36 sand seven and prior to July first, two thousand eight shall be one-half
37 of the employee's weekly wage, but in no case shall such benefit exceed
38 two hundred eighty dollars, and (iii) on or after July first, two thou-
39 sand eight shall be one-half of the employee's weekly wage, but in no
40 case shall such benefit exceed three hundred forty dollars; except that
41 if the employee's average weekly wage is less than twenty dollars, the
42 benefit shall be such average weekly wage. The weekly benefit which the
43 disabled employee is entitled to receive for disability commencing on or
44 after May first, nineteen hundred eighty-nine shall be one-half of the
45 employee's weekly wage, but in no case shall such benefit exceed one
46 hundred seventy dollars; except that if the employee's average weekly
47 wage is less than twenty dollars, the benefit shall be such average
48 weekly wage. The weekly benefit which the disabled employee is entitled
49 to receive for disability commencing on or after July first, nineteen
50 hundred eighty-four shall be one-half of the employee's weekly wage, but
51 in no case shall such benefit exceed one hundred forty-five dollars;
52 except that if the employee's average weekly wage is less than twenty
53 dollars, the benefit shall be such average weekly wage. The weekly bene-
54 fit which the disabled employee is entitled to receive for disability
55 commencing on or after July first, nineteen hundred eighty-three and
56 prior to July first, nineteen hundred eighty-four shall be one-half of
S. 6461 33 A. 9561
1 the employee's average weekly wage, but in no case shall such benefit
2 exceed one hundred thirty-five dollars nor be less than twenty dollars;
3 except that if the employee's average weekly wage is less than twenty
4 dollars the benefit shall be such average weekly wage. The weekly bene-
5 fit which the disabled employee is entitled to receive for disability
6 commencing on or after July first, nineteen hundred seventy-four, and
7 prior to July first, nineteen hundred eighty-three, shall be one-half of
8 the employee's average weekly wage, but in no case shall such benefit
9 exceed ninety-five dollars nor be less than twenty dollars; except that
10 if the employee's average weekly wage is less than twenty dollars, the
11 benefit shall be such average weekly wage. The weekly benefit which the
12 disabled employee is entitled to receive for disability commencing on or
13 after July first, nineteen hundred seventy and prior to July first,
14 nineteen hundred seventy-four shall be one-half of the employee's aver-
15 age weekly wage, but in no case shall such benefit exceed seventy-five
16 dollars nor be less than twenty dollars; except that if the employee's
17 average weekly wage is less than twenty dollars the benefit shall be
18 such average weekly wage. For any period of disability less than a full
19 week, the benefits payable shall be calculated by dividing the weekly
20 benefit by the number of the employee's normal work days per week and
21 multiplying the quotient by the number of normal work days in such peri-
22 od of disability. The weekly benefit for a disabled employee who is
23 concurrently eligible for benefits in the employment of more than one
24 covered employer shall, within the maximum and minimum herein provided,
25 be one-half of the total of the employee's average weekly wages received
26 from all such covered employers, and shall be allocated in the propor-
27 tion of their respective average weekly wage payments.
28 § 54. Section 351 of the workers’ compensation law, as added by chap-
29 ter 635 of the laws of 1996, is amended to read as follows:
30 § 351. Preferred provider organizations; contracts. [Any] The state
31 insurance fund, any stock corporation, mutual corporation or reciprocal
32 insurer authorized to transact the business of workers’ compensation
33 insurance in this state or self-insurer may contract with a preferred
34 provider organization to deliver all medical services mandated by this
35 chapter, provided such contract takes effect on or after January first,
36 nineteen hundred ninety-seven and the insurer or the employer has no
37 financial interest in the preferred provider organization. Where there
38 is a duty to collectively bargain, an employer shall collectively
39 bargain the use and implementation of a preferred provider organization
40 with the authorized collective bargaining agent of its employees.
41 § 55. Subdivision 1 of section 354 of the workers’ compensation law,
42 as added by chapter 635 of the laws of 1996, is amended to read as
43 follows:
44 1. Each preferred provider organization shall provide at least [five]
45 two providers in every medical specialty from which the employee may
46 choose and at least [three] two hospitals from which the employee may
47 choose in the event that hospitalization is necessary. The [chair]
48 commissioner of health may waive such numerical requirements upon a
49 finding that the geographical area in which the preferred provider
50 organization is located cannot meet the requirements.
51 § 56. The workers’ compensation law is amended by adding a new section
52 356 to read as follows:
53 § 356. Pilot program to encourage the voluntary delivery of benefits
54 without board intervention. 1. The chair of the board shall implement,
55 on a pilot program basis, at such times and locations as the chair deems
56 appropriate, a program permitting and encouraging the voluntary delivery
S. 6461 34 A. 9561
1 of compensation and medical benefits by employers or their represen-
2 tatives to injured workers, without prior notification to, or inter-
3 vention by, the board, in cases which are undisputed by the parties. The
4 chair shall first implement such pilot program in employments pertaining
5 to manufacturing as described in group six of subdivision one of section
6 three of this chapter and any other manufacturing employments performed
7 in a factory setting. The chair, in implementing such pilot program may
8 choose to designate a specific employer, or geographic location where
9 the provisions of this section may apply and set time limits for partic-
10 ipation in the program. The board shall, at all times, be in supervision
11 of such program but may intervene only to resolve a dispute in the case
12 at the request of one or both parties.
13 2. For the purpose of implementing such pilot program, any provision
14 of this chapter which may impede the procedural implementation of such
15 pilot program may be deemed by the chair as inapplicable to such pilot
16 program, but in no case shall diminish or change any benefits or
17 substantive right to which an employee or his or her dependents, or
18 survivors may be entitled pursuant to the provisions of this chapter.
19 3. All payment of benefits made pursuant to such pilot project shall
20 be made without prejudice in accordance with section twenty-one-a of
21 this chapter.
22 4. The chair, in consultation with the pilot program advisory commit-
23 tee, is authorized to promulgate rules and regulations to enable the
24 implementation and supervision of such pilot program which shall include
25 but not be limited to:
26 a. requirements for reporting on the payment of compensation and
27 medical benefits by employers and/or their representatives to ensure
28 that the board can supervise the parties’ compliance with provisions of
29 this chapter;
30 b. penalties, including monetary penalties, for abuse of the pilot
31 program or violation of the provisions of this chapter while participat-
32 ing in such pilot program;
33 c. procedures to govern the voluntary delivery of benefits, for
34 obtaining board intervention on disputes, and for the delivery of legal
35 notices to claimants required by this chapter; and
36 d. the extent to which claimants who are unrepresented by an attorney
37 or licensed representative shall participate in the pilot program.
38 5. The chair shall report to the governor, the temporary president of
39 the senate, and the speaker of the assembly on the progress of such
40 pilot program no later than September first, two thousand seven.
41 6. The chair is hereby authorized to issue and promulgate any regu-
42 lations necessary to carry out the provisions of this section.
43 § 57. The executive law is amended by adding a new section 170-b to
44 read as follows:
45 § 170-b. Sharing of information pertaining to fraud. 1. Any govern-
46 ment agency and its officers and employees that has information or
47 evidence showing that a person may have committed fraud or other
48 violation of law and, in good faith, makes such information or evidence
49 available to any other government agency having authority to investigate
50 such possible fraud or other violation of law shall not be subject to
51 civil liability. No civil cause of action of any nature shall arise
52 against such government agency or its officers or employees as a result
53 of providing any such information or evidence.
54 2. For the purposes of this section, "person" means any individual,
55 firm, company, partnership, corporation, limited liability company,
S. 6461 35 A. 9561
1 joint venture, joint-stock association, association, trust or any other
2 legal entity whatsoever.
3 3. For the purposes of this section, "government agency" shall include
4 any agency, board, bureau, commission, department or division of this
5 state, any other state or the federal government, any political subdivi-
6 sion of this state, any public authority or public benefit corporation
7 of this state and any federal, state or local law enforcement agency.
8 § 58. Section 402 of the insurance law is amended by adding a new
9 subsection (d) to read as follows:
10 (d) The insurance frauds bureau, including the unit for workers’
11 compensation insurance frauds investigations within the insurance frauds
12 bureau shall coordinate investigations of possible fraud and other
13 violations of laws, rules and regulations pertaining to the workers’
14 compensation system with the workers’ compensation fraud inspector
15 general and any frauds investigations unit of the state insurance fund,
16 such coordination including quarterly meetings with representatives from
17 the workers’ compensation fraud inspector general and the frauds inves-
18 tigations unit of the state insurance fund.
19 § 59. Section 406 of the insurance law, as amended by chapter 635 of
20 the laws of 1996, is amended to read as follows:
21 § 406. Immunity. In the absence of fraud or bad faith, no person shall
22 be subject to civil liability, and no civil cause of action of any
23 nature shall arise against such person (i) for any information relating
24 to suspected fraudulent insurance transactions furnished to law enforce-
25 ment officials, their agents and employees; [and] (ii) for any informa-
26 tion relating to suspected fraudulent insurance transactions furnished
27 to other persons subject to the provisions of this chapter; [and] (iii)
28 for any such information furnished in reports to the insurance frauds
29 bureau, its agents or employees [or], the workers’ compensation fraud
30 inspector general, its agents or employees or any frauds investigations
31 unit of the state insurance fund, its agents or employees; and (iv) for
32 any assistance provided to the insurance frauds bureau, its agents or
33 employees, the workers’ compensation fraud inspector general, its agents
34 or employees or any frauds investigations unit of the state insurance
35 fund, its agents or employees, in connection with its or their investi-
36 gations or in connection with investigations conducted jointly by the
37 insurance frauds bureau, workers’ compensation fraud inspector general
38 or the frauds investigations unit and another law enforcement agency or
39 agencies. Nor shall the superintendent or any agent or employee of the
40 insurance frauds bureau, the workers’ compensation fraud inspector
41 general or any agent or employee of the workers’ compensation fraud
42 inspector general or any agent or employee of any frauds investigations
43 unit of the state insurance fund, in the absence of fraud or bad faith,
44 be subject to civil liability and no civil cause of action of any nature
45 shall arise against them by virtue of the publication of any report or
46 bulletin related to [the] their official activities [of the insurance
47 frauds bureau] with regard to the detection, prevention and prosecution
48 of fraud. Nothing herein is intended to abrogate or modify in any way
49 any common law privilege of immunity heretofore enjoyed by any person.
50 § 60. Section 409 of the insurance law is amended by adding a new
51 subsection (h) to read as follows:
52 (h) Any frauds investigations unit created by the state insurance fund
53 pursuant to this section or any other provision of law shall coordinate
54 investigations of possible fraud and other violations of laws, rules and
55 regulations pertaining to the workers’ compensation system with the
56 workers’ compensation fraud inspector general and the insurance frauds
S. 6461 36 A. 9561
1 bureau, including the unit for workers’ compensation insurance frauds
2 investigations within such insurance frauds bureau, such coordination to
3 include quarterly meetings with representatives from the workers’
4 compensation fraud inspector general and the insurance frauds bureau,
5 including the unit for workers’ compensation insurance frauds investi-
6 gations within such insurance frauds bureau.
7 § 61. Subsection (c) of section 1108 of the insurance law, as amended
8 by chapter 838 of the laws of 1985, is amended to read as follows:
9 (c) The state insurance fund of this state, except as to the
10 provisions of subsection (d) of section two thousand three hundred thir-
11 ty-nine, section three thousand one hundred ten, subsection (a), para-
12 graph one of subsection (b), paragraph three of subsection (c) and
13 subsection (d) of section three thousand two hundred one, sections three
14 thousand two hundred two, three thousand two hundred four, subsections
15 (a) through (d) of section three thousand two hundred twenty-one,
16 section three thousand four hundred fifty, subsections (b) and (c) of
17 section four thousand two hundred twenty-four, section four thousand two
18 hundred twenty-six and subsections (a) and (b) and (g) through (j) of
19 section four thousand two hundred thirty-five of this chapter and except
20 as otherwise specifically provided by the laws of this state.
21 § 62. Subsection (b) of section 2305 of the insurance law, as amended
22 by chapter 113 of the laws of 1995, paragraph 13 as added by chapter 85
23 of the laws of 2003, is amended to read as follows:
24 (b) rate filings for:
25 (1) workers’ compensation insurance;
26 (2) motor vehicle insurance, or surety bonds, required by section
27 three hundred seventy of the vehicle and traffic law;
28 (3) joint underwriting;
29 (4) motor vehicle assigned risk insurance;
30 (5) insurance issued by the New York Property Insurance Underwriting
31 Association;
32 (6) risk sharing plans authorized by section two thousand three
33 hundred eighteen of this article;
34 (7) title insurance;
35 (8) medical malpractice liability insurance;
36 (9) insurance issued by the Medical Malpractice Insurance Association;
37 (10) mortgage guaranty insurance;
38 (11) credit property insurance, as defined in section two thousand
39 three hundred forty of this article; and
40 (12) gap insurance
41 (13) Private passenger automobile insurance.
42 shall be filed with the superintendent and shall not become effective
43 unless either the filing has been approved or thirty days, which the
44 superintendent may with cause extend an additional thirty days and with
45 further cause extend an additional fifteen days, have elapsed and the
46 filing has not been disapproved as failing to meet the requirements of
47 this article, including the standard that rates be not otherwise unrea-
48 sonable. After a rate filing becomes effective, the filing and support-
49 ing information shall be open to public inspection. If a filing is
50 disapproved, notice of such disapproval order shall be given, specifying
51 in what respects such filing fails to meet the requirements of this
52 article. The annual rate filing made pursuant to this article with
53 regard to workers’ compensation insurance affecting the general rate
54 level shall be subject to at least one public hearing to be convened by
55 the superintendent at least ninety days prior to the effective date of
56 new rates. Such rate filing shall separately identify each insurer's
S. 6461 37 A. 9561
1 use of waiver agreements entered into pursuant to section thirty-two of
2 the workers’ compensation law, and calculate any savings derived there-
3 from based on the estimated value of costs that would have been payable
4 for medical benefits and compensation payments had the claim not been
5 settled. In order to calculate the rate savings attributable to such
6 waiver agreements, every workers’ compensation insurer shall be required
7 to establish a program to be approved by the superintendent in which the
8 insurer must make a good faith offer to the claimant settling the claim
9 for workers’ compensation benefits. The superintendent may in his or her
10 discretion determine not to hold a public hearing, but only if the
11 requested rate change is either a decrease or an increase of less than
12 two percent. The superintendent shall be required to issue a written
13 opinion on such rate filing at least sixty days prior to the effective
14 date of the new rates. The opinion shall include, among other subjects
15 deemed appropriate by the superintendent, a discussion of the profit-
16 ability of the workers’ compensation insurance line, and the profit
17 factor being permitted by the department. Upon its request, the depart-
18 ment shall be provided with support and assistance from the workers’
19 compensation board and other state agencies and departments with appro-
20 priate jurisdiction.
21 § 63. Section 2318 of the insurance law is amended to read as follows:
22 § 2318. Risk sharing plans. Agreements may be made among insurers with
23 respect to the equitable apportionment among them of insurance which may
24 be afforded applicants who are in good faith entitled to but are unable
25 to procure such insurance through ordinary methods, and such insurers
26 may agree among themselves on the use of reasonable rate modifications
27 subject to the approval of the superintendent[; but this section shall
28 not apply to workers’ compensation insurance].
29 § 64. The insurance law is amended by adding a new section 3450 to
30 read as follows:
31 § 3450. Employers’ liability insurance; limits of liability. The mini-
32 mum limits of coverage applicable to any employer's liability insurance
33 policy, whether or not such policy also insures the employer for the
34 payment of workers’ compensation benefits, issued for delivery in this
35 state shall be one hundred thousand dollars because of bodily injury of
36 one or more employees arising out of any one accident, one hundred thou-
37 sand dollars because of bodily injury by disease to any one employee and
38 five hundred thousand dollars in aggregate during any single policy
39 period for bodily injury by disease to all employees. For the purpose of
40 this section, bodily injury shall include death resulting from bodily
41 injury.
42 No employer's liability policy may be issued for delivery in this
43 state with limits of coverage that are less than the minimum limits
44 provided in this section. Nothing in this section shall prohibit an
45 insurer, including the state insurance fund, from offering coverage, for
46 an additional premium, under an employer's liability policy with limits
47 of coverage that exceed the minimum limits provided by this section.
48 § 65. Subsection (g) of section 3215 of the insurance law is amended
49 to read as follows:
50 (g) The provisions of subsections (a) through (f) of this section
51 shall not apply to any group life insurance policies or group annuity
52 contracts.
53 § 66. Subsection (h) of section 3215 of the insurance law is relet-
54 tered subsection (i) and a new subsection (h) is added to read as
55 follows:
S. 6461 38 A. 9561
1 (h) A group annuity contract may provide benefits by reason of disa-
2 bility of the insured employee to supplement the maximum weekly compen-
3 sation for disability provided under paragraph (a) of subdivision six of
4 section fifteen of the workers’ compensation law, provided that:
5 (1) The sum of the supplemental disability benefit under the group
6 annuity contract and the maximum weekly compensation for disability
7 received under the workers’ compensation law shall not exceed two-thirds
8 of the "average weekly wage" of the insured employee as such term is
9 defined in the workers’ compensation law without regard to any maximum
10 weekly compensation for disability pursuant to subdivision six of
11 section fifteen of the workers’ compensation law.
12 (2) The supplemental disability benefit under the group annuity
13 contract shall be payable upon receipt of notice of payment of disabili-
14 ty benefits under the workers’ compensation law.
15 (3) The premium charged for the supplemental disability benefit under
16 the group annuity contract shall be reasonable in relation to the bene-
17 fits provided.
18 (4) The group annuity contract shall contain termination and
19 nonforfeiture provisions, including cash surrender and death benefits,
20 which in the opinion of the superintendent are equitable to the insured
21 employees who contribute funds to the group annuity contract and the
22 policyholder, provided that:
23 (A) Upon termination of employment or death prior to annuitization,
24 the insured employee or his or her beneficiary shall be entitled to a
25 cash surrender or death benefit that shall not be less than an amount
26 accumulated for such employee under the group annuity contract arising
27 solely from contributions made by such employee, less the cost of insur-
28 ance attributable to such contributions and less any supplemental disa-
29 bility benefits received.
30 (B) Upon termination of the group annuity contract, the employer shall
31 apply no less than the excess, if any, of the employees’ aggregate
32 contributions under the contract over the net cost of insurance for the
33 sole benefit of the employees.
34 (C) Nothing herein shall be construed to require that the contract or
35 certificate contain the same provisions required for contracts or
36 certificates subject to section four thousand two hundred twenty-three
37 of this chapter.
38 § 67. Section 3220 of the insurance law is amended by adding a new
39 subsection (e) to read as follows:
40 (e) A group life insurance policy may provide benefits by reason of
41 the death of the insured employee to supplement the maximum weekly death
42 benefit provided under section sixteen of the workers’ compensation law,
43 provided that:
44 (1) The sum of the supplemental death benefits under the group life
45 insurance policy and the maximum weekly death benefits received under
46 the workers’ compensation law payable to each dependent of the insured
47 employee shall not exceed the applicable percentage of the average week-
48 ly wage of the insured employee, as such term is defined in the workers’
49 compensation law, that such dependent is entitled to receive under
50 section sixteen of the workers’ compensation law, without regard to any
51 maximum weekly death benefit pursuant to subdivision five of such
52 section sixteen.
53 (2) The sum of the supplemental lump sum benefits under the group life
54 insurance policy payable upon remarriage of the surviving spouses and
55 the compensation payable upon remarriage pursuant to section sixteen of
56 the workers’ compensation law shall be calculated without regard to any
S. 6461 39 A. 9561
1 maximum weekly death benefit pursuant to subdivision five of such
2 section sixteen.
3 (3) For purposes of this subsection, the term "dependent" shall
4 include all persons eligible to receive death benefits under section
5 sixteen of the workers’ compensation law, including, but not limited to,
6 the surviving spouse, dependent children and dependent grandchildren.
7 (4) The supplemental death benefit under the group life insurance
8 policy shall be payable upon receipt of notice of payment of death bene-
9 fits under section sixteen of the workers’ compensation law.
10 (5) The premium charged for the supplemental death benefit under the
11 group life insurance policy shall be reasonable in relation to the bene-
12 fits provided.
13 (6) If the policy is, in whole or in part, on a plan of insurance
14 other than the term plan, it shall contain nonforfeiture provisions that
15 in the opinion of the superintendent are equitable to the insured
16 employees and to the policyholder, provided that:
17 (A) Upon termination of employment, the insured employee shall be
18 entitled to a cash surrender benefit that shall not be less than an
19 amount accumulated for such employee under the group life insurance
20 policy arising solely from contributions made by such employee, less the
21 cost of insurance attributable to such contributions.
22 (B) Upon termination of the group life insurance policy, the employer
23 shall apply no less than the excess, if any, of the employees’ aggregate
24 contributions under the policy over the net cost of insurance for the
25 sole benefit of the employees.
26 (C) Nothing herein shall be construed to require that the policy or
27 certificate contain the same provisions required for individual life
28 insurance policies or to require a conversion benefit pursuant to para-
29 graph six of subsection (a) of this section.
30 § 68. The superintendent of insurance, in consultation with the chair
31 of the workers’ compensation board, may promulgate regulations relating
32 to the standards to be followed in the approval of forms and in the
33 procedural requirements needed to implement the provisions of this act,
34 and the chair of the workers’ compensation board, in consultation with
35 the superintendent of insurance, may promulgate regulations relating to
36 the procedural requirements needed to implement the provisions of this
37 act.
38 § 69. Severability. If any clause, sentence, paragraph, section or
39 part of this act shall be adjudged by any court of competent jurisdic-
40 tion to be invalid, such judgment shall not affect, impair or invalidate
41 the remainder thereof, but shall be confined in its operation to the
42 clause, sentence, paragraph, section or part thereof directly involved
43 in the controversy in which said judgment shall have been rendered.
44 § 70. This act shall take effect immediately, provided that:
45 a. section one of this act shall apply to all accidents that occur on
46 or after the effective date of this act;
47 b. sections three, four, nine, ten and sixteen of this act shall take
48 effect on the one hundred twentieth day after this act shall have become
49 a law;
50 c. sections five and fifty-six of this act shall take effect on the
51 ninetieth day after this act shall have become a law;
52 d. sections eleven and twelve of this act shall apply to any compen-
53 sation awarded pursuant to paragraphs a through s and paragraph u of
54 subdivision 3 of section 15 of the workers’ compensation law and any
55 determination of permanent partial disability after this act shall have
56 become a law;
S. 6461 40 A. 9561
1 e. section twenty-one of this act shall apply to all appeals taken on
2 or after the effective date of this act;
3 f. sections twenty-four, thirty-eight and forty-two of this act shall
4 take effect on the one hundred eightieth day after this act shall have
5 become a law;
6 g. sections twenty-eight, twenty-nine and thirty of this act shall
7 apply to all injuries or disablements occurring on or after January
8 first, two thousand one;
9 h. sections thirty-one and thirty-two of this act shall apply to all
10 cases irrespective of the date of accident;
11 i. section forty-seven of this act shall apply to all accidents that
12 occur on or after the effective date of this act;
13 j. section fifty of this act shall take effect on the three hundred
14 sixty-fifth day after this act shall have become a law;
15 k. sections sixty-one and sixty-four of this act shall take effect on
16 the first of October next succeeding the year in which it shall have
17 become a law, and shall apply to all policies issued or renewed on or
18 after such date;
19 l. section sixty-two of this act shall take effect immediately and
20 shall apply to all rate filings filed on or after such date, provided,
21 however, that the superintendent of insurance is authorized to promul-
22 gate rules and regulations necessary to effectuate the provisions of
23 this act;
24 m. the amendments to subdivision 2-c of section 25 of the workers’
25 compensation law made by section twenty-four of this act shall not
26 affect the repeal of such subdivision and shall be deemed repealed ther-
27 ewith; and
28 n. the addition, amendment or repeal of any rule or regulation neces-
29 sary for the implementation of the foregoing sections of this act on its
30 effective date is authorized.