S T A T E   O F   N E W   Y O R K
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                                 3010--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 28, 2013
                               ___________

Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Labor  --  recommitted  to
  the  Committee  on  Labor  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN ACT to amend the workers' compensation law, in relation to applicable
  average weekly wage

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 16 of section 2 of  the  workers'  compensation
law, as added by chapter 6 of the laws of 2007 and as further amended by
section  104  of part A of chapter 62 of the laws of 2011, is amended to
read as follows:
  16. "[New York state] APPLICABLE average weekly wage" shall  mean  THE
LESSER  OF: (I) the average weekly wage of the state of New York for the
previous calendar year as reported by the commissioner of labor  to  the
superintendent  of financial services on March thirty-first; OR (II) THE
AVERAGE WEEKLY WAGE OF THE  ECONOMIC  DEVELOPMENT  REGION,  PURSUANT  TO
SECTION TWO HUNDRED THIRTY OF THE ECONOMIC DEVELOPMENT LAW, IN WHICH THE
EMPLOYEE  RESIDES AS REPORTED BY THE COMMISSIONER OF LABOR TO THE SUPER-
INTENDENT OF FINANCIAL SERVICES ON MARCH THIRTY-FIRST. PROVIDED,  HOWEV-
ER, THAT THE APPLICABLE AVERAGE WEEKLY WAGE SHALL NOT BE LESS THAN SEVEN
HUNDRED NINETY-TWO DOLLARS.
  S  2.  Paragraph  (a)  of  subdivision 6 of section 15 of the workers'
compensation law, as amended by section 7-a of part GG of chapter 57  of
the laws of 2013, is amended to read as follows:
  (a) Compensation for permanent or temporary total disability due to an
accident  or  disablement  resulting  from  an occupational disease that
occurs, (1) on or after January first, nineteen  hundred  seventy-eight,
shall  not  exceed one hundred twenty-five dollars per week, that occurs
(2) on or after July first, nineteen hundred  seventy-eight,  shall  not

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07470-03-4
              

S. 3010--A                          2

exceed  one hundred eighty dollars per week, that occurs (3) on or after
January first, nineteen  hundred  seventy-nine,  shall  not  exceed  two
hundred  fifteen  dollars  per  week,  that  occurs (4) on or after July
first,  nineteen  hundred  eighty-three,  shall  not  exceed two hundred
fifty-five dollars per week, that occurs (5) on  or  after  July  first,
nineteen  hundred eighty-four, shall not exceed two hundred seventy-five
dollars per week, that occurs (6)  on  or  after  July  first,  nineteen
hundred  eighty-five,  shall  not exceed three hundred dollars per week,
that occurs (7) on or after July first, nineteen hundred  ninety,  shall
not  exceed  three  hundred  forty  dollars per week; and in the case of
temporary total disability shall not be less  than  thirty  dollars  per
week  and  in  the  case of permanent total disability shall not be less
than twenty dollars per week except that if the employee's wages at  the
time  of  injury are less than thirty or twenty dollars per week respec-
tively, he or she shall receive his or her full weekly wages.    Compen-
sation  for permanent or temporary partial disability due to an accident
or disablement resulting from an occupational disease that occurs (1) on
or after January first, nineteen hundred seventy-eight, shall not exceed
one hundred five dollars per week, that occurs  (2)  on  or  after  July
first, nineteen hundred eighty-three, shall not exceed one hundred twen-
ty-five  dollars per week, that occurs (3) on or after July first, nine-
teen hundred eighty-four,  shall  not  exceed  one  hundred  thirty-five
dollars  per  week,  that  occurs  (4)  on or after July first, nineteen
hundred eighty-five, shall not exceed  one  hundred  fifty  dollars  per
week,  that  occurs (5) on or after July first, nineteen hundred ninety,
shall not exceed two hundred eighty dollars per week; nor be  less  than
twenty dollars per week; except that if the employee's wages at the time
of injury are less than twenty dollars per week, he or she shall receive
his  or  her  full  weekly  wages.  In  no event shall compensation when
combined with decreased earnings or earning capacity exceed  the  amount
of  wages  which  the  employee  was  receiving  at  the time the injury
occurred. Compensation for permanent or temporary partial disability, or
for permanent or temporary total disability due to an accident or  disa-
blement  resulting  from  an  occupational disease that occurs (1) on or
after July first, nineteen hundred ninety-one and prior to  July  first,
nineteen  hundred  ninety-two,  shall  not  exceed  three  hundred fifty
dollars per week; (2) on or after July first, nineteen  hundred  ninety-
two,  shall  not  exceed four hundred dollars per week; nor be less than
forty dollars per week except that if the employee's wages at  the  time
of  injury  are  less  than  forty  dollars per week, the employee shall
receive his or her full wages. Compensation for permanent  or  temporary
partial  disability,  or for permanent or temporary total disability due
to an accident or disablement resulting  from  an  occupational  disease
that  occurs  (1)  on  or after July first, two thousand seven shall not
exceed five hundred dollars per week, (2) on or after  July  first,  two
thousand eight shall not exceed five hundred fifty dollars per week, (3)
on  or  after July first, two thousand nine shall not exceed six hundred
dollars per week, and (4) on or after July first, two thousand ten,  and
on  or  after  July first of each succeeding year, shall not exceed two-
thirds of the [New York state] APPLICABLE average weekly  wage  for  the
year  in  which  it is reported. Compensation for permanent or temporary
partial disability, or for permanent or temporary total  disability  due
to  an  accident  or  disablement resulting from an occupational disease
that occurs on or after July first, two thousand seven shall not be less
than one hundred dollars per week except that if the employee's wages at
the time of injury are less than  one  hundred  dollars  per  week,  the

S. 3010--A                          3

employee  shall  receive his or her full wages.  Compensation for perma-
nent or temporary partial disability,  or  for  permanent  or  temporary
total  disability  due  to  an accident or disablement resulting from an
occupational  disease  that  occurs  on or after May first, two thousand
thirteen shall not be less than  one  hundred  fifty  dollars  per  week
except  that if the employee's wages at the time of injury are less than
one hundred fifty dollars per week, the employee shall  receive  his  or
her  full  wages.  In  no  event  shall  compensation when combined with
decreased earnings or earning capacity exceed the amount  of  wages  the
employee was receiving at the time the injury occurred. Compensation for
permanent or temporary partial disability, or for permanent or temporary
total  disability  due  to  an accident or disablement resulting from an
occupational disease or injury that occurred as a result of World  Trade
Center  rescue  activity by an employee of a private voluntary hospital,
who passed a physical examination upon employment  as  a  rescue  worker
that  failed  to  reveal  evidence of a condition that was the proximate
cause of disablement or occupational disease or injury, shall not exceed
three-quarters of a claimant's wage on September eleventh, two  thousand
one.  In  no event shall compensation when combined with decreased earn-
ings or earning capacity exceed the amount of  wages  the  employee  was
receiving on September eleventh, two thousand one.
  S  3. Subdivision 5 of section 52 of the workers' compensation law, as
amended by section 19 of part GG of chapter 57 of the laws of  2013,  is
amended to read as follows:
  5. The chair, upon finding that an employer has failed for a period of
not  less than ten consecutive days to make the provision for payment of
compensation required by section fifty of this article, may impose  upon
such  employer, in addition to all other penalties, fines or assessments
provided for in this chapter, a penalty of up to  two  thousand  dollars
for  each ten day period of non-compliance or a sum not in excess of two
times the cost of compensation for its payroll for the  period  of  such
failure,  which  sum  shall  be  paid into the uninsured employers' fund
created under section twenty-six-a of this  chapter.  When  an  employer
fails  to  provide  business  records  sufficient to enable the chair to
determine the employer's payroll for the period requested for the calcu-
lation of the penalty provided  in  this  section,  the  imputed  weekly
payroll  for each employee, corporate officer, sole proprietor, or part-
ner shall be the [New York state] APPLICABLE average weekly wage, multi-
plied by 1.5. Where the employer is a corporation, the president, secre-
tary and treasurer thereof shall be  liable  for  the  penalty.  If  the
employer  shall  within  thirty days after notice of the imposition of a
penalty by the chair pursuant to this subdivision make an application in
affidavit form for a redetermination review of such  penalty  the  chair
shall  make  a decision in writing on the issues raised on such applica-
tion.
  S 4. This act shall take effect immediately.