Relates to contesting personal injury or wrongful death actions; provides that determinations made by the workers' compensation board or ALJ as to cause of injury, degree of disability and/or permanency of injury shall not be given preclusive effect in any other forum, court or proceeding.
TITLE OF BILL: An act to amend the workers' compensation law, in relation to personal injury or wrongful death actions
PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to correct a recent court decision that for the first time granted preclusive effect to decisions of the Workers' Compensation Board (WCB) relating to disability, potentially barring injured workers from seeking justice through the courts on the basis of an administrative decision of the WCB.
SUMMARY OF SPECIFIC PROVISIONS: This bill adds a new paragraph (b) to section 11 of the Workers' Compensation Law that would bar a court or other forum from granting preclusive effect to decisions by the Workers' Compensation Board regarding cause of injury, degree of disability, lost earnings, need for future medical care and/or permanency of injury.
JUSTIFICATION: In the recent case of Auqui v. Seven Thirty One Limited Partnership, et al., 20 N.Y.3d 1035 (2013), the Court of Appeals for the first time allowed a decision on an injured worker's disability by the Workers' Compensation Board to bind a regular civil court in a related third-party action.
That decision will bar injured workers from seeking justice in the court system if the Workers' Compensation Board finds that they are no longer disabled.
The consequences of the Augui ruling for injured workers and the workers compensation system are far reaching. Injured workers will be forced to choose between maintaining their workers' compensation benefits and pursuing a third party claim in court. Those who receive benefits will risk being denied their constitutional right to a trial by jury because of the administrative decisions of the Workers' Compensation Board.
By preventing courts from granting preclusive effects to a limited category of decisions by the Workers' Compensation Board, this bill will ensure that a worker injured on the job will not lose. their constitutional right to seek justice through the courts because of an administrative hearing that lacks many of the elementary facets of due process.
PRIOR LEGISLATIVE HISTORY: None
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None
EFFECTIVE DATE: This act shall take effect immediately.
STATE OF NEW YORK ________________________________________________________________________ 5754 2013-2014 Regular Sessions IN SENATE June 12, 2013 ___________Introduced by Sen. NOZZOLIO -- 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 personal injury or wrongful death actions THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 11 of the workers' compensation law, as amended by chapter 635 of the laws of 1996, the opening paragraph as amended by chapter 169 of the laws of 2007, the fifth undesignated paragraph as added by chapter 49 of the laws of 1999 and the closing paragraph as added by chapter 392 of the laws of 2008, is amended to read as follows: S 11. Alternative remedy. (A) The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee, his or her personal repre- sentatives, spouse, parents, dependents, distributees, or any person otherwise entitled to recover damages, contribution or indemnity, at common law or otherwise, on account of such injury or death or liability arising therefrom, except that if an employer fails to secure the payment of compensation for his or her injured employees and their dependents as provided in section fifty of this chapter, an injured employee, or his or her legal representative in case of death results from the injury, may, at his or her option, elect to claim compensation under this chapter, or to maintain an action in the courts for damages on account of such injury; and in such an action it shall not be neces- sary to plead or prove freedom from contributory negligence nor may the defendant plead as a defense that the injury was caused by the negli- gence of a fellow servant nor that the employee assumed the risk of his or her employment, nor that the injury was due to the contributory negligence of the employee. The liability under this chapter of The New York Jockey Injury Compensation Fund, Inc. created under section two hundred
[thirteen-a]TWENTY-ONE of the racing, pari-mutuel wagering and breeding law shall be limited to the provision of workers' compensation coverage to jockeys, apprentice jockeys and exercise persons licensed under article two or four of the racing, pari-mutuel wagering and breed-EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11319-04-3 S. 5754 2
ing law and any statutory penalties resulting from the failure to provide such coverage. For purposes of this section the terms "indemnity" and "contribution" shall not include a claim or cause of action for contribution or indem- nification based upon a provision in a written contract entered into prior to the accident or occurrence by which the employer had expressly agreed to contribution to or indemnification of the claimant or person asserting the cause of action for the type of loss suffered. An employer shall not be liable for contribution or indemnity to any third person based upon liability for injuries sustained by an employee acting within the scope of his or her employment for such employer unless such third person proves through competent medical evidence that such employee has sustained a "grave injury" which shall mean only one or more of the following: death, permanent and total loss of use or amputation of an arm, leg, hand or foot, loss of multiple fingers, loss of multiple toes, paraplegia or quadriplegia, total and permanent blind- ness, total and permanent deafness, loss of nose, loss of ear, permanent and severe facial disfigurement, loss of an index finger or an acquired injury to the brain caused by an external physical force resulting in permanent total disability. For purposes of this section "person" means any individual, firm, company, partnership, corporation, joint venture, joint-stock associ- ation, association, trust or legal entity. The liability under this chapter of the New York black car operators' injury compensation fund, inc. shall be limited to: (i) securing the payment of workers' compensation in accordance with article six-F of the executive law to black car operators, as defined in such article, whose injury arose out of and in the course of providing services for a central dispatch facility, as defined in such article, that is a regis- tered member of such fund, and (ii) any statutory penalty resulting from the failure to secure such payment. The liability under this chapter of a central dispatch facility, as defined in article six-F of the execu- tive law, that is a registered member of the New York black car opera- tors' injury compensation fund, inc. that shall be limited to remaining a registered member in good standing of such fund and any statutory penalty, including loss of immunity provided by this section, resulting from the failure to become or remain a registered member in good stand- ing of such fund, except, however, that such central dispatch facility shall be subject to the provisions of section one hundred thirty-one of this chapter and shall be liable for any payments for which it may become responsible pursuant to such section or pursuant to section four- teen-a of this chapter. The liability under this chapter of the New York independent livery driver benefit fund, inc. shall be limited to: (i) securing the payment of workers' compensation coverage to cover those matters required by article six-G of the executive law for independent livery drivers, as defined in such article, whose injury arose out of and in the course of providing covered services for a livery base, as defined in such arti- cle, that is a registered member of such fund, and (ii) any statutory penalty resulting from the failure to secure such payment. (B) DETERMINATIONS BY THE BOARD AS TO CAUSE OF INJURY, DEGREE OF DISA- BILITY, LOST EARNINGS, NEED FOR FUTURE MEDICAL CARE, AND/OR PERMANENCY OF INJURY SHALL NOT BE GIVEN PRECLUSIVE EFFECT IN ANY OTHER FORUM, COURT OR PROCEEDING. S 2. This act shall take effect immediately.