Provides that benefits for partially disabled workers who have actual earnings shall be based on such earnings; provides that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity.
TITLE OF BILL: An act to amend the workers' compensation law, in relation to establishing statutory guidelines for return to work by partially disabled workers
PURPOSE OR GENERAL IDEA OF BILL:
This would define the circumstances under which a partially disabled worker must seek employment as a condition for receipt of workers' compensation benefits.
SUMMARY OF PROVISIONS:
This bill would amend Workers' Compensation Law Section 15(5-a) to limit its scope to partial disability awards for claimants who are working at a reduction in earnings. It would add a new Workers' Compensation Law Section 15(5-b) to address compensation for partially disabled workers who have no actual earnings. It would re-number existing Workers' Compensation Law Section 15(5-b) as Workers' Compensation Law Section 15(5-c). It would also provide that benefits for partially disabled workers who have actual earnings shall be based on such earnings. It would further provide that benefits for partially disabled workers who have no actual earnings shall be based on their wage earning capacity. It would define the term "voluntary withdrawal from the labor market" and establish it as a defense to a claim for partial disability benefits. It would also establish a standard for labor market attachment to be used in cases of voluntary withdrawal from the labor market.
The Workers' Compensation Law provides that in cases of partial disability, "the board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of (the injured worker's) former full time actual earnings, having due regard to the nature of his injury and his physical impairment." (WCL § 15(5-a)). The statute recognizes that a partially disabled worker retains the ability to do some work, and provides compensation only for the loss of wage earning capacity. No compensation is payable for the wage earning capacity the worker retains. If a partially disabled worker returns to work, benefits are awarded based on his or her actual earnings. In the absence of a return to work, the Board must estimate the loss of wage earning capacity and award benefits accordingly (WCL § 15(5-a)). The law does not identify the circumstances in which a partially disabled worker must seek employment as a condition of receiving benefits.
The lack of a statutory standard has resulted in substantial litigation before the Workers' Compensation Board and in the Courts. The issue was considered by a sharply divided Court of Appeals in Matter of Zamora v. New York Neurologic, 19 N.Y.3d 186, 970 N.E.2d 823, 947 N.Y.S.2d 788 (2012). The Court held that the Board could require non-working, partially disabled claimants to show proof of labor market attachment as a condition of receiving benefits, but established no standards.By contrast, the Unemployment Insurance Law specifically states when work must be sought as a condition of
benefits and establishes a statutory standard for adequate attachment to the labor market (Labor Law §§ 591, 593). This bill would provide a statutory standard for labor market attachment in workers' compensation claims. It defines a "voluntary withdrawal from the labor market" as one in which (1) the worker's separation from employment was unrelated to the compensable injury, or (2) the employer demonstrates that the claimant's loss of wages is wholly unrelated to such injury. It would authorize the Board to terminate compensation in cases of voluntary withdrawal from the labor market, and otherwise require the Board to award benefits in accordance with the statute.
It would further permit the Board to award benefits in cases of voluntary withdrawal from the labor market where the claimant is subsequently attached to the labor market through participation in: (1) one of New York State's Department of Labor's reemployment services, (2) the services offered by a One-Stop Career Center, (3) a retraining program, (4) a rehabilitation program by VESID or other board approved rehabilitation program, (5) a job service commonly utilized to secure work within a specific industry, or (6) enrollment and full time attendance in an accredited educational institution to pursue employment within the work restrictions.
Overall, this would preserve and codify the requirement of a causal connection between the injury and the loss of earnings, encourage return to work, expedite delivery of benefits, and reduce litigation.
PRIOR LEGISLATIVE HISTORY:
This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 5294 2013-2014 Regular Sessions IN SENATE May 16, 2013 ___________Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Labor AN ACT to amend the workers' compensation law, in relation to establish- ing statutory guidelines for return to work by partially disabled workers THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivisions 5-a and 5-b of section 15 of the workers' compensation law, subdivision 5-a as amended by chapter 113 of the laws of 1946 and subdivision 5-b as added by chapter 778 of the laws of 1945, are amended to read as follows: 5-a. Determination of wage earning capacity IN CASE OF ACTUAL EARNINGS. The wage earning capacity of an injured employee in cases of partial disability shall be determined by his actual earnings,
[provided, however, that if he has no such actual earnings the board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of his former full time actual earnings, having due regard to the nature of his injury and his physical impairment]IF ANY. 5-b. DETERMINATION OF WAGE EARNING CAPACITY IN ABSENCE OF ACTUAL EARN- INGS. THE WAGE EARNING CAPACITY OF AN INJURED EMPLOYEE IN CASES OF PARTIAL DISABILITY SHALL, IN THE ABSENCE OF ACTUAL EARNINGS, BE DETER- MINED BY THE BOARD. THE BOARD SHALL IN THE INTEREST OF JUSTICE FIX SUCH WAGE EARNING CAPACITY AS MAY BE REASONABLE, BUT NOT IN EXCESS OF SEVEN- TY-FIVE PER CENTUM OF THE INJURED EMPLOYEE'S FORMER FULL TIME ACTUAL EARNINGS, HAVING DUE REGARD TO THE NATURE OF THE INJURY, PHYSICAL IMPAIRMENT, AND OTHER RELEVANT FACTORS. THE BOARD SHALL AWARD COMPEN- SATION BASED ON THE INJURED EMPLOYEE'S LOSS OF WAGE EARNING CAPACITY. (A) VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, THE BOARD MAY DECLINE TO AWARD COMPENSATION IF IT FINDS THAT THE INJURED EMPLOYEE HAS VOLUNTARILY WITHDRAWN FROM THEEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11028-01-3 S. 5294 2
LABOR MARKET. VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET IS DEFINED AS SEPARATION FROM EMPLOYMENT FOR REASONS UNRELATED TO THE COMPENSABLE INJURY, INCLUDING BUT NOT LIMITED TO: TERMINATION FOR CAUSE; LAYOFF; VOLUNTARY RESIGNATION OF EMPLOYMENT; RETIREMENT DUE SOLELY TO AGE OR YEARS OF SERVICE; OR UNJUSTIFIED REFUSAL OF WORK OFFERED BY THE EMPLOYER WHICH IS CONSISTENT WITH THE CLAIMANT'S MEDICAL RESTRICTIONS. (B) AWARD AFTER VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET. IF IT FINDS A VOLUNTARY WITHDRAWAL FROM THE LABOR MARKET, THE BOARD SHALL AWARD BENEFITS IF THE CLAIMANT IS SUBSEQUENTLY ATTACHED TO THE LABOR MARKET THROUGH PARTICIPATION IN: (I) ONE OF NEW YORK STATE'S DEPARTMENT OF LABOR'S REEMPLOYMENT SERVICES, (II) THE SERVICES OFFERED BY A ONE-STOP CAREER CENTER, (III) A RETRAINING PROGRAM, (IV) A REHABILI- TATION PROGRAM BY VESID OR OTHER BOARD APPROVED REHABILITATION PROGRAM, (V) A JOB SERVICE COMMONLY UTILIZED TO SECURE WORK WITHIN A SPECIFIC INDUSTRY, (VI) ENROLLMENT AND FULL TIME ATTENDANCE IN AN ACCREDITED EDUCATIONAL INSTITUTION TO PURSUE EMPLOYMENT WITHIN THE WORK RESTRICTIONS, OR (VII) RETURN TO WORK. 5-C. Non-schedule adjustments. Notwithstanding any other provision of this chapter, in any case coming within the provisions of subdivisions three or five of this section, in which the right to compensation has been established and compensation has been paid for not less than three months, in which the continuance of disability and of future earning capacity cannot be ascertained with reasonable certainty, the board may, in the interest of justice, approve a non-schedule adjustment agreed to between the claimant and the employer or his insurance carrier. The board shall require, before approving any such agreement, that there be an examination of the claimant in accordance with section nineteen of this
[chapter]ARTICLE, and such approval shall only be given when it is found that the adjustment is fair and in the best interest of the claim- ant. The board may, in such case, order all future compensation to be paid in one or more lump sums or periodically, and any such adjustment shall be regarded as a closing of the claim unless the board find upon proof that there has been a change in condition or in the degree of disability of claimant not found in the medical evidence and, therefore, not contemplated at the time of the adjustment. S 2. This act shall take effect immediately.