S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4546
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 3, 2017
                                ___________
 
 Introduced  by M. of A. TITUS -- read once and referred 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 IF IT FINDS THAT THE INJURED EMPLOYEE HAS VOLUNTARILY WITHDRAWN FROM THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03017-01-7

 A. 4546                             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 REHABILITATION
 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.
   § 2. This act shall take effect immediately.